TPMM shares this NYT article raising many questions about what we've been asked to believe about the NSA domestic surveillance. We've been asked to believe that the program was lawful, there were no disagreements, and the disclosures about the program were unlawful. Today's revelations cast these assumptions aside, and require a revisit of what we've been told since 2001.

Another curious revelation in the NYT's review of the novel includes:

technicians stumbled onto the N.S.A.’s program accidentally within 12 hours of its inception, setting off what officials described as a brief firestorm of anxiety among senior officials.

Within 12 hours of the program's inception doesn't tell us much:

- Which program are they talking about;

- How do we know that the program they stumbled upon had not been operating longer?

- If someone was able to determine the FBI technicians did stumble upon a specific activity, who did this review to ensure the FBI's claims were about the program they thought it was, and not another program?

If the timeline is true -- that the program had only been operating for 12 hours, but was discovered -- we need to re-examine the review of that discovery. Someone had to do the following:

- Understand that they had detected something which was not lawful;

- Work as liaision between the FBI, FBI technicians, telecoms, and the NSA to compare what the technicians were looking at, the results they were observing, and the ongoing NSA-telecom coordination on the warrants;

- Establish there were no other explanations;

- Get a confirmation from the NSA that the FBI technicians had "stumbled upon" something that had been coordinated with the NSA, telecoms, and done without warrants

- Confirm that the activity the FBI technicians stumbled upon was related to government-related wiretapping, but was not lawful or authorized according to the law

- Then make a decision not to review that program under FISA for legality;

- Make a decision, despite FBI technicians learning of illegal activity, to not prosecute that violation of FISA.

The above chain of events required several breaks in what was suppsoed to have happened:

A. Illegal surveillance should have been provided to the FISA Court and US Attys for review. Someone in the White House or DoJ blocked that prosecution and court review.

B. The evidence of the unlawful surveillance should have been secured and forwarded to appropriate law enforcement, IG, and ethics personnel. However, we learn the President blocked DOJ OPR from reviewing this program, and that DoJ IG and Congress claim they never knew. However Harmon's revelations paint a different picture: She knew.

C. Congress should have been made aware of the unlawful government surveillance. Upon notification, the Congressional committees, even the minority members, had the power to direct DoJ IG and NSA IG to revivew these. Yet, despite the events of 2001, it apparently wasn't until 2005 when the NYT story broke that Congress acted.

- When did Congress really learn of the illegal activity; and why is there no direction by any of the Committee staff to the IGs to provide details?

- Or, were the Members of Congress informed of a program they knew was illegal, and refused to investigate, despite DoJ legal counsel's reservations?

- Was there no record of anyone in DoJ or NSA talking to anyone in Congress about their concerns within days of this discovery by the FBI technicatians?

- What happened between 2001 when the program was first started and 2005 when the NYT story broke: Which people in NSA and DOJ, knowing of the unlwafulness, were dissuaded from communicating their concerns to DOJ OPR, DoJ IG, NSA IG, Congress, the FISA Court, and the District of Colubmia attorney disciplinary board?

The revelations today raise more questions about the timelines, assumptions, claims, and whether the FISA-related circuit breakers were corrupted in other to-be-understood ways.

Here is something that doesn't reconcile with the telecom's claims about their activities. Qwest refused to participate because of questions about unlawfulness. We're also asked to believe that the telecoms should be eligible for immunity.

The NYT's report raises questions about the merits of the telecoms' claims:

But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.

and:

The adviser warned him not to sign the warrant applications because it was unclear where the wiretaps were coming from.

Withut a signed warrant application, and no legal opinion behind the Presidential order, what documents were the telecoms relying on to support the NSA?

Were the telecoms only relying on a verbal order of the President; if so, what were they promised would be forthcoming?

Is the problem with the NSLs -- that more information would support the NSLs, but that information didn't appear, nor was provided -- repeat the larger problems of the NSA surveillance with the telecoms' assitance: There was no required documentation ever provided despite legal requirements on the telecoms to secure that documentation per FISA?

Here are some key issues:

- Who was signing the documentation the telecoms were relying on; or was there no documentation, and the telecoms knew or should have known that, without that documentation, the activity was not lawful?

- How was the FBI so quickly able to determine the surveillance was not lawful: Did they look for required documentation, and within 12 hours learn from whom that the required legal authorizations were not available?

Within 12 hours, the FBI technicians knew that the required legal oversight had not been followed. This raises questions about what other reviews in DoJ and NSA were not getting followed, who knew about those lapses, and which specific personnel with responsibility to enforce those requirements knew within 12 hours that those requirements were getting ignored, but did not notify COngress, DoJ OPR, DoJ IG, or NSA IG? Conversely, if there were notifications in 2001 to these entities, then for four [4] years until the NYT story in 2005, many people knew here was illegal surveillance, but would ask us to believe they all 'believed' it was lawful. That defies reason, especially on Hayden's confirmation hearing/claims.

Absent a legal opinion or required documentation to get a warrant, DoJ OLC in the wake of the NYT reporting had no basis to assert the program was lawful or consistent with anything. It appears Hayden and DOJ OLC were retroactively asserting lawfulness of something they knew never had been approved, as required, in writing as lawful. Retroactive recollections suggest, after the NYT story, people within the White House met, coordinated stories, and retroactively asserted timelines which defied memoranda, and manufactured "beliefs" about things which they knew or should have known were not credible retellings of any beliefs.

This could form the basis of conspiracy, perjury, obstruction of justice. It is not lawful for targets of a criminal investigation to, after the fact, manufacture timelines and recollections; nor assert something as a "belief" when they, at the time of the original alleged wrong doing, did not hold that belief, but the opposite: Genuine fear that the program, it's illegality, and lack of documentation violated the law. They cannot credibly claim they believed anything: They emphatically knew, asserted, and inner concern to the opposite. This could support allegations that the evidence provided under oath to Congress was manufactured, not a genuine belief, but designed to mislead Congress.

Absent legal memoranda, it could also attach to DOJ OLC legal counsel subsequent legal memoranda they provided to the Judiciary Committees. DoJ OLC responded to several questions in writing to the Committees. These statements need to be revisited. If, as it appears, the DoJ OLC in 2001 did not have written documentation, but later said to Congress they "concluded" the program was lawful, this could subject legal counsel to a disbarment investigation for alleged frivolous statements they knew defied the written record, and attaching DoJ OLC and WH legal counsel to the underlying unlawful telecom-NSA violations of FISA. What was the motivation of legal counsel to mislead the Congress? They appear to have a larger problem on their hands. It could be that the NSA illegal activity, and the legal counsel retroactive statements about those timelines relate to something larger: Alleged war crimes attached with that unlawful activity.

This is a problem: Only Congress has the power to declare war. The President only has one power: Executive.

the office had already issued a broad, classified opinion declaring the president’s surveillance powers in the abstract in wartime

DoJ OLC cannot say the President has "broad" powers in re surveillance, when the FISA Court must approve that surveillance. FISA is the exclusive means to conduct surveillance.

- How was DoJ OLC defining "broad" powers without coordinating with the FISA Court?

DoJ OLC cannot declare the President has any power. Only the Constitution can do that.

- Has DoJ OLC pretended it is the Constitution, and declared the President has a new power to ignore the Constitution, bypass the FISA Court, and self-review despite illegality and non-compliance with warrant requirements?

It appears the answer was unconstitutionally, "Yes," which DoJ OLC legal counsel should be subject to a DoJ OPR review.

- What is the status of the DOJ OPR review of these apprarent reckless actions of DOJ OLC; when will the DC Disciplinary Board get a DoJ OPR referral on these issues?

Hayden during his confirmation hearings made statements to the SEnate about the "lawfulness" of the surveillance. He's also signed affidavits asserting to the lawfulness of various NSA programs.

Today we learn NSA lawyers did not get access to Yoo's legal opinions:

Even after the final legal opinions were written, lawyers at the National Security Agency were not allowed to see them, officials said.

- What was the basis for Hayden's statements before Congress on the lawfulness of the surveillance?

- Did Hayden, outside official channels, receive a direct order to do something, without the required legal documentation related to FISA requirements, warrants, or DoJ OLC commentary?

- How does Hayden's actions as NSA director square with NSA policies on affidavits related to lawfulness of activity, and need to protect state secrets: Did Hayden assert something was lawful, yet there was no legal basis for that assertion in those affidavits to Congress, the FISA court, or other courts reviewing alleged illegal surveillance?

- Where is EFF on Judge Vaughn Walker's review: Is EFF comfortable with DoJ OLC legal statements to Judge Walker on the civil litigation; or are these revelations in the NYT raising doubts about the truthfulness of DoJ OLC affidavits provided to the court?

It looks like the NYT had some DoJ spin on this article. It does not appear the DoJ "nervousness" was related to secrecy, but with the real belief/conclusion the program/surveillance was illegal. It appears the FBI and DOJ are recasting "real concerns about illegal activity" as "concerns with secrecy":

At the F.B.I., the secrecy and questions surrounding the program bred suspicion among officials.

The concern wasn't the "question" or the "secrecy" but whether the illegal activity would be prosecuted, or swept under the rug by the President, DoJ AG, and others.

If there were "concerns," how does the President's blocking DoJ OPR from reviewing this fit in with the FBI technician's discovery of the illegal surveillance:

- How soon afer the FBI technicians discovered the illegal activity did DoJ OPR attempt to review this activity?

- When did DoJ AG (Ashcroft and/or Gonzalez) order US prosecutors not to enforce the FISA requirements against US government officials, telecoms, or other Executive Branch-connected contractors, agents, and personnel?

Once the FBI technicians discovered the illegal activity, there would have to be (at least) a second legal review by another lawyer to answer the FBI technicians' question: Was this illegal or not; and who was doing it. It appears the retroactive statements about "concern" are designed to shift attention from the legal problems, and sugar coat the multiple, known legal conclusions that the activity was illegal.

All, please beware that the individual who posted this blog posting and all comments,known as TESTING, is known to post unsubstantiated accusations such as this blog posting. He is little better than a spammer and his blog postings are spam at its worst.

While there may be some truth in the posting, it is only surely a result of pure accident on his part if there is so. Testing simply posts things he does not know about and then says because no one has stopped to explain the topic to him and the ins and outs, there must be a conspiracy.

He is no better than ChickenLittle....THE SKY IS FALLING THE SKY IS FALLING.