Ashcroft refused to reauthorize warrantless wiretapping program

There's now much discussion in the blogosphere about former Deputy Attorney General James B. Comey's testimony before Congress. Comey related that in 2004, the warrantless wiretapping program had come up for reauthorization--the previous authorization was due to expire the following day. Comey, filling in for Attorney General John Ashcroft, who was in the hospital for emergency gall bladder surgery, refused to sign Bush's order for reauthorization. Bush secretly sent his White House Counsel Alberto Gonzales and Chief of Staff Andrew Card to Ashcroft's hospital bedside to get his signature, but an aide to Ashcroft tipped off Comey. Comey rushed to the hospital, and obtained from FBI Director Robert Mueller a directive to Ashcroft's security staff to not remove Comey even if Gonzales and Card insisted upon it.

At the hospital, Ashcroft also refused to sign the reauthorization directive. Comey related that the entire senior staff of the Department of Justice, including himself and FBI Director Mueller, were prepared to resign over the issue. Had that happened--in an election year, no less--perhaps the outcome of that election would have been different.

Bush consulted directly with Comey and Mueller, and gave them assurances that the program would be modified to comply with Department of Justice recommendations, and Comey signed the reauthorization several weeks later. It's not clear whether it continued to operate without authorization for that period of weeks.

A Talking Points Memo reader comments:

When the warrantless wiretap surveillance program came up for review in March of 2004, it had been running for two and a half years. We still don't know precisely what form the program took in that period, although some details have been leaked. But we now know, courtesy of Comey, that the program was so odious, so thoroughly at odds with any conception of constitutional liberties, that not a single senior official in the Bush administration's own Department of Justice was willing to sign off on it. In fact, Comey reveals, the entire top echelon of the Justice Department was prepared to resign rather than see the program reauthorized, even if its approval wasn't required. They just didn't want to be part of an administration that was running such a program.

This wasn't an emergency program; more than two years had elapsed, ample time to correct any initial deficiencies. It wasn’t a last minute crisis; Ashcroft and Comey had both been saying, for weeks, that they would withhold
approval. But at the eleventh hour, the President made one final push, dispatching his most senior aides to try to secure approval for a continuation of the program, unaltered.

...

I think it’s safe to assume that whatever they were fighting over, it was a matter of substance. When John Ashcroft is prepared to resign, and risk bringing down a Republican administration in the process, he’s not doing it for kicks. Similarly, when the President sends his aides to coerce a signature out of a desperately ill man, and only backs down when the senior leadership of a cabinet department threatens to depart en masse, he’s not just being stubborn.

It’s time that the Democrats in Congress blew the lid off of the NSA’s surveillance program. Whatever form it took for those years was blatantly illegal; so egregious that by 2004, not even the administration’s most partisan members could stomach it any longer. We have a right to know what went on then. We publicize the rules under which the government can obtain physical search warrants, and don’t consider revealing those rules to endanger security; there’s no reason we can’t do the same for electronic searches. The late-night drama makes for an interesting news story, but it’s really beside the point. The punchline here is that the President of the United States engaged in a prolonged and willful effort to violate the law, until senior members of his own administration forced him to stop. That’s the Congressional investigation that we ought to be having.

Jacob Sullum at Reason observes that Tony Snow's response to Comey's testimony (quoted in the New York Times) amounts to "the administration's position is that the program was always legal, became a little more legal after the changes demanded by Ashcroft, and is even more legal now."

UPDATE (May 17, 2007): The DOJ says Gonzales has no desire to modify or retract his statement in Congressional testimony that the warrantless wiretap program raised no controversy within the Bush administration, even though that is clearly contradicted by the above account.

FURTHER UPDATE (May 17): TPM Muckraker has gotten to the bottom of why this came to a head on March 10, 2004. The program had to be reauthorized by the Attorney General every 45 days, which Ashcroft had been signing off on. In June 2003, John Yoo left his position as Deputy Director of the Office of Legal Counsel. On October 3, 2003, Jack L. Goldsmith was confirmed by the Senate as the Assistant Attorney General for the OLC, and on December 11, 2003, James Comey was confirmed as Deputy Attorney General. Comey was authorized to have access to information about the warrantless wiretap program, and he put Goldsmith to work reviewing "what [Goldsmith] considered shaky legal reasoning in several crucial opinions, including some drafted by Deputy Assistant Attorney General John Yoo," to quote The New York Times. Comey brought his evidence to Ashcroft a week before the reauthorization date, and they both agreed that it could not continue as it had been. Now that the been reviewed by lawyers in the DOJ for the first time, it was found to be severely problematic, and neither was willing to reauthorize it.

Bush reauthorized it on March 11, 2004 without Attorney General approval, which led to threatened resignations from Ashcroft, Comey, Mueller, and others, at which point parts of the program were suspended and a DOJ audit of the program commenced.

As TPM Muckraker summarizes:

The warantless wiretap surveillance program stank. For two and a half years, Ashcroft signed off on the program every forty-five days without any real knowledge of what it entailed. In his defense, the advisors who were supposed to review such things on his behalf were denied access; to his everlasting shame, he did not press hard enough to have that corrected.

When Comey came on board, he insisted on being granted access, and had Goldsmith review the program. What they found was so repugnant to any notion of constitutional liberties that even Ashcroft, once briefed, was willing to resign rather than sign off again.

So what were they fighting over? Who knows. But there’s certainly evidence to suggest that the underlying issue was was whether constitutional or statutory protections of civil liberties ought to be binding on the president in a time of war. The entire fight, in other words, was driven by the expansive notion of executive power embraced by Cheney and Addington. And here's the kicker - it certainly sounds as if the program was fairly easily adjusted to comply with the law. It wasn't illegal because it had to be; it was illegal because the White House believed itself above the law.

Kearny board of education member hasn't had enough controversy

Kearny board of education member Paul Castelli has apparently decided that the town hasn't had enough controversy over history teacher David Paskiewicz's misuse of the classroom as an evangelizing pulpit, and has gone public with a denunciation of the board's conciliatory statement from last week. The Observer reports:

“Matthew LaClair is absolutely not a hero,” Castelli said, referring to a statement the Board made last week that praised Matthew for standing up for his rights. “His parents are opportunists and it’s a combination of both Matthew and his parents. Though I leave it up to the people to decide for themselves, it’s pretty obvious that he (Matt’s father, Paul) did just as much speaking as his son did.”

In addition to seeing Matt as far from a hero, Castelli also said he was not convinced the Anti-Defamation League’s curriculum was what was needed. The ADL will soon be instructing students and teachers on the parameters involved in the separation of church and state.

“I would have been more comfortable if there had been more specifics as to what they would be teaching the students and teachers,” Castelli said. “It was really unclear what they were actually going to do.”

He also says the Board was never given a clear resolution to a Board-directed investigation into suspected harassment against Matthew.

Matthew claimed to have been harassed numerous times by classmates, including a death threat on his Myspace Web page — an incident that was investigated by the Kearny Police Department.

Finally, Castelli says that despite suspected closure in the matter with the agreement, he still feels the Board is susceptible to being named in a lawsuit, should someone (he didn’t mention anyone or entity specifically) decide to sue the LaClairs.

Who, and on what grounds, would someone sue the LaClairs? They've done nothing wrong--all they've done is insist that the board of education do the right thing about improper classroom behavior by a teacher whose initial defense was to deny what he had been recorded doing.

Castelli is also quoted at the Observer saying that he doesn't feel sorry for Matthew LaClair for receiving taunts and threats from classmates, stating (incorrectly) that "Throughout the ordeal, he was asked to identify the kids who had done these things to him, and not once did he identify anyone. How could anyone be expected to take action if they didn’t know whom they were taking action against? It wasn’t possible. And it wasn’t possible to feel sorry for someone unless they were willing to give up the information we needed to ensure a proper investigation took place." As the Observer points out, "Matthew has said it was impossible to identify possible threat makers because often, taunts would be hurled from within a large group of kids. Additionally, Matthew did identify, for police, the student who made the Myspace death threat against him several months ago."

Spying on the Homefront

Tomorrow night on PBS's Frontline is "Spying on the Homefront":

FRONTLINE addresses an issue of major consequence for all Americans: Is the Bush administration's domestic war on terrorism jeopardizing our civil liberties? Reporter Hedrick Smith presents new material on how the National Security Agency's domestic surveillance program works and examines clashing viewpoints on whether the president has violated the Foreign Intelligence Surveillance Act (FISA) and infringed on constitutional protections. In another dramatic story, the program shows how the FBI vacuumed up records on 250,000 ordinary Americans who chose Las Vegas as the destination for their Christmas-New Year's holiday, and the subsequent revelation that the FBI has misused National Security Letters to gather information. Probing such projects as Total Information Awareness, and its little known successors, Smith discloses that even former government intelligence officials now worry that the combination of new security threats, advances in communications technologies, and radical interpretations of presidential authority may be threatening the privacy of Americans.

(Via the Electronic Frontier Foundation.)

CALEA compliance day

Today's the day that providers of VoIP and broadband Internet in the United States must comply with CALEA, mandating that they supply a way for law enforcement to eavesdrop on any communications carried over those mechanisms. I suspect many VoIP providers are in compliance but that fewer broadband Internet providers are, since the draft standard for CALEA for data over broadband Internet only came out in March. (And if you'd like to read the standard, it will cost you $164 for the PDF or $185 for a paper copy.)

Bob Hagen at the Global Crossing blog points out some free tools that can be used to protect your privacy.

Christian radio station's part in Catalina Island fire

The fire which raged across 4,200 acres of Catalina Island began near a radio tower for Christian talk radio station KBRT-AM. Three contractors working for the station were cutting steel antenna cable with a gas-powered circular saw, which ignited dry brush and quickly grew out of control.

Radio talk show host Tom Leykis, an atheist, observed on his show that this fire was started by men working for a Christian radio station, which he considered ironic. His first caller suggested that the contractors might have been atheists--as if that would have been a sufficient cause for a supernatural explanation of the fire.

The correct inference is that the laws of nature don't care about your religious beliefs--lightning rods protect whorehouses as well as churches (or better, when churches choose not to use them because it's interfering with God's will).

ARMLS Marketwatch Report, Q1 '07

The Arizona Regional Multiple Listing Service just released their ARMLS Economic and Market Watch Report for the first quarter of 2007.

The report says that the current market in Maricopa County (MC) for residential real estate is neither a buyer's nor a seller's market - it's right in the middle. As I have argued elsewhere, to call the current Phoenix market anything other than a seller's market is absurd. If you buy right now you lose, in my humble opinion.

In spite of the fact that MC housing inventory grew from 43,164 homes (at the end of Q4 '06) to 52,055 on March 31st, and that the number of homes sold fell by 910, the report has the audacity to claim that "[c]ombined with historically low mortgage rates, home sales should continue at a steady pace", and that Q2's average sales price will be higher than Q1's $350,400 (I'm not a big fan of using the average price as a gauge of anything. Its value is too easily influenced by outliers on the high end).

In the section on "Trends", Ken Fears says the following:

...there were 26,135 sub-prime loans issued in 2005 [sic - I think that should be 2004] for the Phoenix-Mesa-Scottsdale metro area, which represent 15.4% of the total population of loans for this area. In 2005, the percentage of sub-prime loans in the Phoenix-Mesa-Scottsdale area rose to 31.5% for a total of 69,997 sub-prime loans issued. This figure was higher than the nation as a whole where 28% of loans in 2005 were sub-prime compared to 14% in 2004.

So what does this mean for local Realtors®? There is no doubt that the rules for making sub-prime loans have been to [sic] lax. Furthermore, defaults will rise as mortgage rates rise and employment begins to falter with the waning economy. However, banks learned an important lesson in the last two mortgage banking crisis [sic]. It is much better to help the holders of sub-prime loans to meet their monthly payment than it is for the bank to write off the loan as a loss; a small bite to profits is better than a total loss. So banks will be much more inclined to re-work loan agreements. In addition, sub-prime loans make up a small percentage of the total number and dollar volume of existing mortgages. These factors help to mitigate the notion that there is a large overhang of defaults about to splash on the market, bringing down home prices and sales and the overall economy with it.

David Lereah's "Commentary" had this to say:

On balance, I expect about 10 to 25 percent of subprime households to be unable to secure a mortgage loan because of today’s stricter lending standards. However, many of these households will probably, over time, purchase a home when they have attained the financial capacity to do so (e.g., saving for a down payment, growing their income). So the long-term health of the housing market will probably stay in tact. In the near-term, I would expect home sales to fall by 100,000 to 250,000 annually during the next two years due to tighter underwriting practices, slowing the nation’s housing recovery.

As for the over 8 million adjustable-rate loans (25 percent of which were sub-prime) originated during the past three years, First American Corelogic estimates that about 1.1 million of them totaling about $326 billion are likely to end up in fore-closure. A bit over $300 billion of subprime adjustable mortgage loans are due to re-set by October 1st of this year. Most lenders will attempt to work out problem loans by refinancing borrowers into other mortgages. A disproportionate share of these foreclosures will occur in high cost regions, like California. Certainly, a rise in foreclosures results in an upward blip in housing inventories, depressing home values. But the good news is that these foreclosures will occur in relatively healthy local markets that boast decent levels of economic activity and job creation, improving the prospects of selling the foreclosed properties in a reasonable amount of time. Foreclosures will create temporary inventory problems, but inventories will be eventually worked out.

"Inventories will eventually be worked out," which will be "depressing home values" - but, nonetheless, Q2 in MC will see a "steady pace" in home sales and a higher average sale price? Hmmmmm...

Dr. Lawrence Yun, in his "Forecast" section, says that in the last year Phoenix jobs grew by 89,000 and that this may increase the number of potential homebuyers. Yun acknowledges that Phoenix has seen a fall in home sales, but he says that rental rates have, as a result, been "climbing fast." He asserts that, "very soon, the squeezed renters will begin to search for a home purchase."

Rents in the area are definitely rising, as you would expect, but they'll have to rise a long way to catch up with area home prices!

Forecasting the impact of the subprime fallout, Yun presents this analysis:

Consider, the subprime loans comprised about 13% of the overall mortgage market, and 20% of mortgage originations since 2005(though there are divergent figures depending upon the source). The recent overall rise in default rates is primarily associated with the subprime loans rather than with the predominant prime loans. The delinquency rate on prime loans was only 2.8% by comparison with the foreclosure rate running at 0.5%. Both delinquencies and foreclosures for prime loans have been steady with very little movement. Therefore, a 14.3% delinquency on 13% of the loan market means subprime problems are impacting close to 2% of all loans. Factor in the fact that one-third of all homeowners own their home free-and-clear, the subprime problems are associated with about 1.4% of all homes. History says that less than half of these homes with delinquent mortgage payments ever move into actual foreclosure. So roughly speaking, 0.7% of all homes will at most run into eventual foreclosure from recent meltdown in the subprime sector.

Something tells me that Yun's numbers are overly rosy. Using his 1.4% figure only gives us an average of 1459 Trustee's Sale Notices per month in Maricopa County. Since we're already seeing numbers higher than that, and there's no indication that things are going to be slowing down, Yun appears to be missing a piece of the puzzle. To be fair, Yun's numbers refer strictly to subprime loans - so one could argue that the additional numbers seen in the real world are delinquencies in alt-A and prime mortgages. In any case, the next few months should prove very interesting.

Kearny Board of Education and LaClairs settle case

The LaClair family and the Kearny Board of Education have settled their dispute regarding David Paszkiewicz's proselytization in U.S. history class, as reported in the New York Times:

The Kearny Board of Education in New Jersey and the parents of Matthew LaClair, a 17-year-old junior at Kearny High School, settled their dispute on Tuesday night about a teacher who proselytized in class.

The settlement will include training for teachers and students about the separation of church and state and a public statement by the board praising Matthew for bringing the matter to its attention.

...

As part of the settlement, in which neither side admits wrongdoing, the New Jersey regional office of the Anti-Defamation League will start training teachers and students in September about keeping church and state separate in public schools, and about “the distinction between the scientific theory of evolution and the religious doctrine of creationism.”

Another part of the deal says the board will make a public statement commending Matthew for his “courage and integrity,” and the LaClairs will issue a statement commending the board.

The settlement does not address the status of Mr. Paszkiewicz, 39, who has remained a history teacher at the high school. Mr. Paszkiewicz, who is also a Baptist youth pastor, had his classes switched in the middle of the school year so as not to have Matthew as a student.

The board endorsed the settlement in a 6-1 vote last night.

EFF sues Uri Geller for misusing DMCA

The Electronic Frontier Foundation filed a lawsuit yesterday against Uri Geller and his company Explorogist Ltd. for filing a DMCA takedown notice against a YouTube video posted by the Rational Response Squad. The video depicted an excerpt from the Nova program "Secrets of the Psychics" which featured James Randi showing how some of Geller's feats could have been done with magic tricks. The video includes about three seconds of footage owned by Geller, which clearly falls under fair use guidelines.

To quote from the EFF's press release: "We've seen a rash of people abusing the DMCA lately, attempting to take down legitimate criticism and commentary online," said EFF Staff Attorney Jason Schultz. "To allow thin-skinned public figures like Uri Geller to abuse this system forces critics to remain silent and creates unfair hurdles for free speech to thrive online."

The filings in the case may be found at the EFF's website. Here's the video, and a bonus video.





UPDATE (August 6, 2008): This lawsuit has been settled. There was a monetary settlement and Geller's company has agreed to license the footage for noncommercial use under a Creative Commons license.

This integer is mine, you may not use it

70 D0 87 F2 02 2E 37 96 EB 84 B3 1B B5 92 10 E7

This 128-bit integer was used to encrypt a copyrighted haiku, and all rights to decrypt that haiku with this integer have been given to me. You may not use this 128-bit integer for any purpose; if you distribute it or publish it you are in violation of the DMCA's restrictions on circumvention.

(Actually, I've probably blown it by publishing this number--but there are others which are mine and which you also may not obtain or distribute. And that goes for you, too, AACS LA.)

You can get your own 128-bit integer and read the haiku for yourself at Ed Felten's Freedom to Tinker blog.

Cinco de Mayo: Celebration of kicking a French bill collector's ass

Long or Short Capital gives some historical detail on Cinco de Mayo that's generally lacking from most descriptions (with a little bit of exaggeration and humor). It's not a celebration of Mexican independence, but of a successful victory by Mexican forces led by General Ignacio Zaragozea Seguin against French occupation forces at the Battle of Puebla on May 5, 1862.

The Mexican government owed money to the English, the Spanish, and the French, and was late on debt payments. All three creditors sent armed representatives to Mexico. The English and Spanish were successfully negotiated with, but the French decided to obtain repayment by taking possession of Mexico, and sent a large military force. General Zaragoza led a force of Mexicans and Indians and were victorious.