The buzz says that Karl Rove has been indicted. Patrick Fitzgerald spent all day Friday at Rove’s lawyer’s office. We’ll see.

Other links worth following: “Cheney Pushed U.S. to Widen Eavesdropping“; Cheney’s role in Plamegate is getting fresh attention.

Frank Rich’s column for tomorrow’s New York Times is up behind the firewall, and it’s a doozy. Raw Story has excerpts. It might turn up at True Blue Liberal some time in the next few hours. [Update: Yep; here it is.] Here’s a bit not quoted on Raw Story:

This being an election year, Karl Rove hopes the hearings can portray Bush opponents as soft on terrorism when they question any national security move. It was this bullying that led so many Democrats to rubber-stamp the Iraq war resolution in the 2002 election season and Mr. Goss’s appointment in the autumn of 2004.

Will they fall into the same trap in 2006? Will they be so busy soliloquizing about civil liberties that they’ll fail to investigate the nominee’s record? It was under General Hayden, a self-styled electronic surveillance whiz, that the N.S.A. intercepted actual Qaeda messages on Sept. 10, 2001 — “Tomorrow is zero hour” for one — and failed to translate them until Sept. 12. That same fateful summer, General Hayden’s N.S.A. also failed to recognize that “some of the terrorists had set up shop literally under its nose,” as the national-security authority James Bamford wrote in The Washington Post in 2002. The Qaeda cell that hijacked American Flight 77 and plowed into the Pentagon was based in the same town, Laurel, Md., as the N.S.A., and “for months, the terrorists and the N.S.A. employees exercised in some of the same local health clubs and shopped in the same grocery stores.”

If Democrats — and, for that matter, Republicans — let a president with a Nixonesque approval rating install yet another second-rate sycophant at yet another security agency, even one as diminished as the C.I.A., someone should charge those senators with treason, too.

A couple of days ago, I said “we’re observing is a textbook example of how people who have a choice allow themselves to become subject to dictatorship.” In the past 24 hours this became even more apparent.

Maybe a nanosecond of time elapsed between the revelation of the NSA’s phone data mining program and knee-jerk approval of it from much of the Right. It was hard to tell. And the spinning continues. “Only a paranoid solipsist could feel threatened by the recently revealed calling analysis program,” writes Heather Mac Donald in The Weekly Standard.

As a practical matter, no one’s privacy is violated by such analysis. … True, the government can de-anonymize the data if connections to terror suspects emerge, and it is not known what threshold of proof the government uses to put a name to critical phone numbers. But until that point is reached, your privacy is at greater risk from the Goodyear blimp at a Stones concert than from the NSA’s supercomputers churning through trillions of zeros and ones representing disembodied phone numbers.

Until that point is reached. We have no way of knowing where the NSA is setting that point, and since they are operating without proper oversight we have no way of knowing if, indeed, they are looking only for terrorist activity. We have to take it on faith that we’re safe from government surveillance. But, hey, out of millions of American telephone users, what are the chances the feds would take an interest in insignificant little you?

And even after that point is reached, the notion that 280 million Americans who have not been communicating with al Qaeda are at risk from this quadrillion-bit program is absurd. What exactly are the privacy advocates worried about? That an NSA agent will search the phone records of his ex-wife or of themselves? This quaint scenario completely misunderstands the scale of, and bureaucratic checks on, such data analysis programs.

It’s true that if the program is being run as it’s described to us (which we have to take on faith, of course) then the chances of having one’s own calls attract governmental interest are enormously small. Unless, perhaps, you ever call Middle Eastern friends or co-workers, or order falafel from a take-out place run by, say, Egyptian nationals living here on a green card. Given the “six degrees of separation” rule, that might put you only one or two degrees from someone under suspicion of terrorist activities without your even knowing about it.

And I am charmed by Ms. Mac Donald’s pure faith that the feds would never, ever use the same data mining program for any other reason. Like, maybe, to find who’s getting “action alert” phone calls from Moveon.org. Or who’s been on the phone to the Democratic National Committee. Or who Michael Moore rings up when he wants to schmooze.

Scores of righties have pointed out that marketers can obtain your calling history. I’m not happy about that, but let’s go on … for some reason, these same righties don’t make a connection to the obvious next step — why would marketers want your calling history unless they could connect you, as a potential customer, to that history?

“Can we please cut the crap?” asks Kevin Drum. “Even a child knows that phone numbers can be linked to names and addresses using ordinary commercial databases. There is absolutely nothing anonymous about this data, and only a shameless con man would try to convince us otherwise.” Or a Bush cultie.

Ron Hutcheson of Knight Ridder reminds us that the feds have a long history of abusing personal information. “From the Red Scare in the 1920s to illegal wiretaps during the Nixon era, Americans have struggled to find the right balance between individual rights and collective security,” he writes.

By the Red Scare in the 1920s, when the government made large-scale arrests of radicals and leftists in the wake of communists taking power in Russia, the bureau had assembled a rapidly expanding database of more than 150,000 names.

Abuses over the years cross party lines and political ideologies. Franklin Roosevelt wanted a file on Americans who sent him critical telegrams. Lyndon Johnson asked the FBI to get him the phone records of Republican vice presidential candidate Spiro Agnew.

Attorney General Robert Kennedy, remembered today as a champion of the underdog, approved wiretaps on the Rev. Martin Luther King Jr. [But see this for context.] Nearly every recent president has ordered questionable “name checks” – a search of FBI files for any damaging information – on political opponents.

During the Nixon administration, a name check on journalist Daniel Schorr backfired when the FBI misunderstood its instructions and conducted a full background investigation, including interviews with Schorr’s associates. White House officials, desperate for a cover story to explain the FBI probe, made the improbable claim that Schorr had been under consideration for a government appointment. …

… few politicians can resist the chance to gather information on their enemies, and few intelligence-gatherers can resist pressure to please the president.

The Bush Administration was caught wiretapping UN delegates for political purposes, and is under suspicion of leaking classified information to smear political enemies.

So let’s get over the fallacy that the data mining program couldn’t possibly be part of a pattern of abuses. Yes, it could.

Greg Palast writes,

[T]he snooping into your phone bill is just the snout of the pig of a strange, lucrative link-up between the Administration’s Homeland Security spy network and private companies operating beyond the reach of the laws meant to protect us from our government. You can call it the privatization of the FBI — though it is better described as the creation of a private KGB.

The leader in the field of what is called “data mining,” is a company, formed in 1997, called, “ChoicePoint, Inc,” which has sucked up over a billion dollars in national security contracts.

Worried about Dick Cheney listening in Sunday on your call to Mom? That ain’t nothing. You should be more concerned that they are linking this info to your medical records, your bill purchases and your entire personal profile including, not incidentally, your voting registration. Five years ago, I discovered that ChoicePoint had already gathered 16 billion data files on Americans — and I know they’ve expanded their ops at an explosive rate.

They are paid to keep an eye on you — because the FBI can’t. For the government to collect this stuff is against the law unless you’re suspected of a crime. (The law in question is the Constitution.) But ChoicePoint can collect if for “commercial” purchases — and under the Bush Administration’s suspect reading of the Patriot Act — our domestic spying apparatchiks can then BUY the info from ChoicePoint.

No evidence has come to light that this is happening. But,

ChoicePoint’s board has more Republicans than a Palm Beach country club. It was funded, and its board stocked, by such Republican sugar daddies as billionaires Bernie Marcus and Ken Langone — even after Langone was charged by the Securities Exchange Commission with abuse of inside information.

I first ran across these guys in 2000 in Florida when our Guardian/BBC team discovered the list of 94,000 “felons” that Katherine Harris had ordered removed from Florida’s voter rolls before the election. Virtually every voter purged was innocent of any crime except, in most cases, Voting While Black. Who came up with this electoral hit list that gave Bush the White House? ChoicePoint, Inc.

And worse, they KNEW the racially-tainted list of felons was bogus. And when we caught them, they lied about it. While they’ve since apologized to the NAACP, ChoicePoint’s ethnic cleansing of voter rolls has been amply assuaged by the man the company elected.

Oops.

Back to what the NSA is up to … from an editorial in yesterday’s Los Angeles Times:

Even under the Patriot Act, there are judicially supervised rules on how investigators may use technology — known as “pen registers” and “trap and trace” — that monitor telephone traffic without actually listening in on conversations. So the legality of this program is debatable at best.

This is a critical point — there is insufficient oversight. If persons from the legislative or judicial branch with proper security clearance were allowed full access to what the NSA is up to in order to ensure the information is not being abused, the program would be less objectionable. But the bleeping Justice Department can’t even get in to the NSA.

The issue — which righties can never get through their thick heads — is not data mining or surveillance itself, but how it’s being done — in violation of law, and under a radical new theory of executive power that would make the Framers’ hair stand on end.

But what really creeped me out yesterday was the bogus poll that appeared, overnight, telling us that most Americans were just fine with the NSA data mining project. So Washington Post headlines and cable news bobbleheads like Chris Matthews assured us that most Americans supported President Bush’s program, without noting that the poll was taken awfully quickly by a long-time Republican operative named Richard Morin. Jane H. wrote yesterday,

So before the phone records story even breaks, Morin — who knows absolutely what he is doing — starts polling people who have no idea what he’s talking about and giving it his best shot, tying it to the War on Terra. It works. Today it’s plastered across the front page of the washingtonpost.com like Carol Doda’s bright red lightbulb tits flashing at the Condor Club. …

… just like clockwork, the chattering class picked up the ball and ran with Morin’s meme. Said JWR here in the comments this morning, “Surprise! Juan Williams just cited that WaPo poll in asserting that the American people are A-Ok with illegal domestic spying.” And Howie Klein writes from the road, “I’m sitting in a hotel room in NYC and CNN has repeated those numbers every 20 minutes since I woke up. Every one of the talking heads they bring on to comment, cites it. I can only imagine what Fox must be making of it.” [emphasis added]

Strangely, a Newsweek poll taken after the data mining story became public came up with entirely different results. But it’s a Saturday, so fewer people will hear that a majority of Americans think the NSA has gone too far.

The Richard Morin poll was a slick move to both influence public opinion (most of your fellow Americans are OK with this; why not you?) and intimidate Democrats who don’t want voters to think they are soft on national security. And news media meekly went along with the scam.

Righties insist that the data mining program couldn’t possibly be intruding into the privacy of law-abiding citizens. And maybe it isn’t. But righties won’t recognize the incremental steps to tyranny until the jack boots are goose-stepping into their own neighborhoods. And that’s when it’s too late.

Billmon quotes William Arkin:

This NSA dominated program of ingestion, digestion, and distribution of intelligence raises profound questions about the privacy and civil liberties of all Americans. Though there is no evidence that the new harvesting programs have been involved in illegal activity or have been abused to reach into the lives of innocent Americans, an all-seeing domestic surveillance is slowly being established, one that in just a few years time will be able track the activities and “transactions” of any targeted individual in near real time.

Warning: Don’t read Billmon’s post unless you’re prepared to have your hair set on fire.

If we listen to the righties, we’ll trust the feds. We’ll allow them to operate without oversight. We’ll let them build a surveillance apparatus worthy of Orwell’s 1984. And we’ll be taught to approve of this in the name of liberty.

As Digby says, “It has become clear to me that we are frogs being slowly boiled to death.”

What follows is speculation. I’m passing this on from Josh Marshall, who also calls it speculation. But it’s real juicy speculation.

Remember Mary McCarthy? In a post on the just-fired CIA executive director Kyle “Dusty” Foggo, Josh writes,

Foggo seems to have been close to the hack-in-chief in the partisanized hackocracy that Goss tried to create at the CIA. But does Foggo’s role in pressing what were apparently leak probes of unprecedented scope have some deeper connection to the story?

We now know that the CIA Inspector General’s investigation, which CIA spokespersons had until recently been calling perfunctory, was nothing of the sort. They were there on the scene yesterday helping haul documents out of Foggo’s home and office. That investigation has been going on for some time. And clearly it was a pretty big deal.

The biggest scalp bagged by those leak investigations was CIA historian and Africa specialist Mary McCarthy. You remember that a few weeks ago she was fired from the Agency, just before retiring, allegedly for leaking information to the Washington Post‘s Dana Priest.

Now, in emails today, several readers noted the fact that at the time of her firing, McCarthy was working in the CIA’s Inspector General’s office, the same office that was then investigating Foggo and not more than a few weeks after McCarthy’s firing would participating in raids on Foggo’s home and office.

Could it be that McCarthy’s firing had nothing to do with leaks to journalists, but was part of a last-ditch effort by Foggo and Goss to cover their butts? Hmmmm … but, as Josh says, there is no doubt more going on beneath the surface that we have yet to learn about, so this theory could fall apart in days to come.

Josh also cites news stories that say Goss did not know Foggo before making him the number three guy at the CIA, which makes one wonder how Foggo leaped from a much lower-level position into the executive director’s office.

Maybe the Foggo came on little cat feet?

Sorry, but when you get a chance to snark about somebody named Foggo, I say take advantage. Lots of other people have already used “Foggo of War.” I’m trying to be original.

Speaking of which, in “The Foggo of War” Larry Johnson writes more about Mr. Foggo and his affiliations with the guys running the poker-and-prostitute parties connected to Randy “Duke” Cunningham. Foggo may be a bit player in that part of the drama, Johnson says.

In case you missed Jonathan Turley‘s segment on last night’s Countdown — here’s the transcript.

OLBERMANN: The simplest, broadest question here, could this program possibly be legal?

TURLEY: Frankly, I don‘t see how it can. If what was said in “USA

Today” is true—and there‘s been no denial of any of the essential facts

it seems to me, once again, to violate federal law. It is true that courts do not require a warrant to get the phone number of targeted individuals as part of a criminal investigation. But there is no law that allows the government to do this type of operation.

OLBERMANN: The choice that the government made not to go to FISA or the attorney general, is that in some way an acknowledgement that the NSA took a good guess at this and a good look at it and said, Well, this is probably not going to get approved by a FISA court?

TURLEY: Well, it‘s a very interesting admission, because they went to the attorney general to try to get a signoff on the domestic surveillance program. And they ran into one of the most conservative lawyers in the government, James Comey. And James Comey refused. He said, I don‘t see how this is lawful. Then they went to John Ashcroft in the hospital and even Ashcroft balked and said, I‘m not comfortable with this.

So they could have had two lessons. One is, maybe we should do things lawfully. Instead, they learned, Let‘s not ask people to sign off on these things.

OLBERMANN: Yes. The president says that everything he authorized was lawful. Would he have authorized the NSA to collect these phone records, or could that OK have come from somewhere lower in the chain?

TURLEY: Well, if he did not authorize this program, we are living in dangerous times indeed, because we would have a rogue agency. Only the president of the United States should be the one to approve this type of massive operation.

So I would assume that he did. But when the president says, I would never authorize something that‘s unlawful, you know, it has a lot of people chuckling, because most experts believe the domestic surveillance program, which was disclosed in December, is unlawful, and indeed is a federal crime.

OLBERMANN: When you were here 24 hours ago, you said that the president‘s understanding of his own powers was unprecedented, that he, quote, “believes that he has the inherent authority to violate federal law.” Does the “USA Today” article, does this story basically vindicate that point of view that you expressed?

TURLEY: Quite frankly, I think it does. Every time we have looked under the rug, we have seen this president going to the edge of law and beyond it. And that is consistent with his view that he can violate federal law when he believes it‘s in the nation‘s interest. And that‘s not just national security laws. In his signing statement controversies, he has taken the same position, I, on domestic laws that range from environmental to affirmative action.

This is a president who believes that he can define what the law is or ignore it. He‘s also a president that created his own judicial system just on the other side of the border, and he says that he can try people by his own rules and execute them. Well, that combines the legislative, judicial, and executive powers of this government in one person.

OLBERMANN: Incidentally on this—and it is (INAUDIBLE) incidental –

ordinarily this might be the lead story—are the phone companies up the creek here legally? Are there class-action lawsuits to be filed here? Would you sell your AT&T stock right away?

TURLEY: I hope they are sued. I know they‘re being sued in one case.

I think Qwest has really come out of this, I, with considerable courage. You know, these companies are not supposed to simply hand over millions of bits of information on a wink and a nod. They have to confirm that the government agent or the government official, including the president of the United States, is acting with legal authority. And Qwest did exactly the right thing.

And I expect there are going to be customers with AT&T and Verizon and other companies that are going to be asking, Why did you do this? What was the authority shown to you? Because I got to tell you, I‘ve spent a day now looking for the possible authority that they would use for this operation, and I‘ve come up with nothing.

OLBERMANN: Lastly, again that tangent here that almost got buried in the middle of this, the Department of Justice abandoning the investigation into the original NSA domestic spying program. I asked Dana Milbank about the politics of that. (INAUDIBLE) now, and, let me ask you about the way that this happened. DOJ says it couldn‘t get clearance, security clearance to do this. But doesn‘t almost every high-level investigation mandate some sort of clearance? Didn‘t the CIA leak investigation require clearance? Why did they give up so easily on this investigation and not the others?

TURLEY: Well, I think it‘s clear that this administration is not going to do a serious investigation of itself. And what is really troubling is that the intelligence community controls clearances. I have a clearance. I‘m involved in an NSA-related case. They control those clearances. So they control the ability of people to investigate their own alleged crimes. Now, there‘s an obvious problem with that.

OLBERMANN: Jonathan Turley, constitutional law expert, great thanks once again.

TURLEY: Thanks, Keith.

OLBERMANN: Just remember the story of the commentator during the wiretap paranoia of the ‘70s who said, whenever he picked up the phone, instead of saying, Hello, he‘d just bark out, “[Blank] J. Edgar Hoover.”

I may start greeting people with “[Blank] John Negroponte.”

Righties have been spamming me with this, so I’ll respond to it once and get it over with. The most recent email:

President Roosevelt, in a signed May 21, 1940 memorandum to his attorney general, FDR wrote:

I have agreed with the broad purpose of the Supreme Court decision relating to wire-tapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that under ordinary circumstances wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.

However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.

It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called “fifth columns” in other countries and in preparation for sabotage, as well as in actual sabotage.

It is too late to do anything about it after sabotage, assassinations and “fifth column” activities are completed.

You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigating agents that they are at liberty to secure information by listening devices direct to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.

The left loves to whine and rant and bitch about what the administration is doing. Instead, please be responsible and use the truth to make your arguments. It would be nice to read.

Douglas Charles, History News Network, provides some historical background (emphasis added):

In 1934 Congress passed the Federal Communication Act which outlawed the interception and divulgence of wire or radio communications. The law was later upheld by two companion Supreme Court rulings, Nardone v. US, in 1937 and 1939. But with the crisis of World War II mounting, in May of 1940 President Roosevelt secretly authorized the use of wiretaps in national defense cases if approved by the attorney general. Roosevelt further directed that the use of wiretaps be kept to a “minimum” and limited “insofar as possible” to foreign nationals. (Because this authorization was not justified using any congressional mandate, war declaration, or constitutional powers, resting instead on a White House interpretation of the Supreme Court’s intent not to restrict wiretaps in “grave matters involving the defense of the nation,” the Bush administration apparently chose not to cite this to bolster their NSA program.)

First off, the argument that because FDR did something I, as a liberal, must accept it is, um wobbly. FDR imprisoned thousands of Japanese Americans; I hardly think that should have been a precedent. In this case I am not certain that FDR was entirely in the right, and I need more information to make that determination.

However, righties conveniently overlook the fact that this memo was addressed to the Attorney General, who was charged with approving the targets of wiretapping. We learned today, however, that the Justice Department has been completely shut out of the NSA program; the DoJ is not being allowed to even conduct an inquiry into what the NSA is up to. This is significant.

Of course, the NSA has reason to believe the DoJ would not approve.

Second, wiretapping is not the issue. Of course the feds should conduct surveillance, including wiretaps, of persons suspected of terrorist activity. If you’re not a regular here, be advised that I was in lower Manhattan on 9/11. I have a keen appreciation of what terrorism is, and I don’t want to see any more of it. And my understanding is that the feds have the authority to wiretap foreign nationals without a warrant.

The REAL issue is presidential authority under the constitution. As Douglas Charles points out, FDR did not use the same constitutional justification for his wiretapping power that Bush uses. This is a critical point. Another critical point is that Congress has enacted considerable legislation on wiretapping since Roosevelt’s time. Professor Charles continues,

During the mid-1970s, the widespread abuses of power by the FBI, CIA, and NSA were revealed. Two eerily relevant examples for us today, moreover, are the illegal NSA programs codenamed MINARET and SHAMROCK. Through Operation MINARET the NSA eavesdropped on the international telephone calls of some 1,600 Americans; and in Operation SHAMROCK the NSA won the cooperation of American cable companies who, for 28 years, provided the secret agency with copies of Americans’ private messages. Finally, after it was learned that President Richard Nixon liberally interpreted the crime-control law’s language to establish wiretaps on war critics, Congress responded with the Foreign Intelligence Surveillance Act. The new law created a controversial secret court from which the government would have to obtain warrants to establish foreign intelligence and counter-intelligence wiretaps. No longer would the president have the sole power to eavesdrop on communications without any oversight or accountability. Obtaining a warrant from this court, however, was not problematic, especially after the advent of the Patriot Act which lessened the standard for foreign intelligence wiretap warrants to demonstrating only a “significant” link to terrorists or foreign countries.

In RightieWorld, for some reason, the past 60 years of U.S. federal history are irrelevant.

Jonathan Turley of George Washington University, a constitutional law scholar, said on Countdown tonight that he was certain this phone database program violates federal law. He said he’s been looking all day and could find not a shred of legal authority that would permit the NSA to conduct a program like this without congressional or judicial oversight of any kind. I believe FDR’s program would also violate federal law as it exists today. Now, FDR would be required to get warrants from the FISA court to conduct wiretaps on American citizens. FISA law hadn’t yet been written in FDR’s day.

Once again, the real issue is not that Bush has the NSA conducting wiretaps and other surveillance. The real issue is that Bush has assumed unprecedented power to decide for himself what laws apply to him and which don’t. He has, in effect, declared himself to be above the law.

And the FDR example is utterly irrelevant. Once again, wiretapping is not the issue. The issue is that Bush has given himself permission to break the law.

Glenn Greenwald, an attorney with background in cases involving civil liberties, has written several posts explaining why the NSA spy program is illegal, and why Bush’s claims of “inherent authority” and congressional authorization under AUMF are bogus. You can find links to these arguments in this post. He discusses legal issues governing the surveillance program described in today’s USA Today article here. Follow these links for more information on why the NSA program is in violation of current federal law and the Constitution.

Please do not leave comments arguing with me about legality of NSA until you have read Glenn’s arguments. I don’t have time to reinvent the wheel more than twice a day.

And no forgiveness.

Oliver Burkeman reports for The Guardian,

Hillary Clinton’s political shift to the right reached new territory this week as she warmly praised George Bush at a speech in Washington and defended her decision to let Rupert Murdoch sponsor a fundraising event on her behalf.

On the day that a New York Times poll found Mr Bush’s approval ratings at an all-time low of 31%, the leading contender for the Democratic party’s 2008 presidential nomination praised the US president’s “charm and charisma”.

The Senator doesn’t need a fundraising event; she needs an intervention.

Update: Bob Herbert thinks the whole Dem party needs an intervention.