In May, 2007, James Comey testified before the Senate Judiciary Committee about an incident that occurred in March, 2004. He was acting Attorney General at the time - John Ashcroft was in intensive care at George Washington Hospital. The Department of Justice was reviewing an Administration spying program, and Ashcroft and Comey had determined it was illegal. So egregious, in fact, that Comey, Ashcroft, Robert Mueller of the FBI, and other top DOJ officials threatened to resign if it continued.

Gonzales (then W’s personal attorney) and Andrew Card (White House Chief of Staff) barged into his hospital room and attempted to get Ashcroft to sign off on the program, despite the fact that he had temporarily ceded his authority to Comey. Mueller had put in a call to his agents at the hospital telling them not to allow anyone to remove Comey from Ashcroft’s room, and saying he was on his way. Ashcroft, angered, pointedly refused Gonzales’ and Card’s request, stating that Comey — whom they refused to acknowledge — was currently the Attorney General. This was an extremely bizarre sequence of events. A transcript of Comey’s riveting testimony can be found here. The Administration continued the program, despite the fact that DOJ ruled it illegal. Eventually, a compromise of some sort was reached. The program was changed in some undisclosed way and DOJ signed off on it.

Glenn Greenwald at Salon.com summed the situation up well on May 16th — just after Comey’s testimony (link):

Comey repeatedly stated that it appeared that Ashcroft was not even oriented to his surroundings…Not only did Comey think that he had to rush to the hospital room to protect Ashcroft from having a conniving Card and Gonzales manipulate his severe illness and confusion by coercing his signature on a document — but the administration’s own FBI Director thought it was necessary to instruct his FBI agents not to allow Comey to be removed from the room.

Comey and Mueller were clearly both operating on the premise that Card and Gonzales were basically thugs. Indeed, Comey said that when Card ordered him to the White House, Comey refused to meet with Card without a witness being present, and that Card refused to allow Comey’s summoned witness (Solicitor General Ted Olson) even to enter Card’s office. These are the most trusted intimates of the White House — the ones who are politically sympathetic to them and know them best — and they prepared for, defended themselves against, the most extreme acts of corruption and thuggery from the President’s Chief of Staff and his then-legal counsel (and current Attorney General of the United States).

Does this sound in any way like the behavior of a government operating under the rule of law, which believes that it had legal authority to spy on Americans without the warrants required for three decades by law? How can we possibly permit our government to engage in this behavior, to spy on us in deliberate violation of the laws which we enacted democratically precisely in order to limit how they can spy on us, and to literally commit felonies at will, knowing that they are breaking the law?

How is this not a major scandal on the level of the greatest presidential corruption and lawbreaking scandals in our country’s history? Why is this only a one-day story that will focus on the hospital drama but not on what it reveals about the bulging and unparalleled corruption of this administration and the complete erosion of the rule of law in our country? And, as I’ve asked many times before, if we passively allow the President to simply break the law with impunity in how the government spies on our conversations, what don’t we allow?
If we had a functioning political press, these are the questions that would be dominating our political discourse and which would have been resolved long ago.

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One of the big, unanswered questions is, what were the components of the original program that so concerned people like Ashcroft and Comey and Mueller — people who had no problem with violating the FISA law, secret torture renditions, Gitmo and all the rest? Also, this spying ostensibly was conducted by the National Security Agency. The participation and concern of Mueller indicates an FBI component very worrisome to its director.

Glenn Greenwald delves into this today (link):

Ever since George Bush came right out in December, 2005 and admitted spying on Americans without the warrants required by law, the administration has been playing the same rhetorical game. From the beginning, when asked questions about the scope of their spying activities (are you eavesdropping on domestic calls, too? opening mail with no warrants? entering homes with no warrants?), they have carefully confined their denials to “the specific program which the President confirmed” — i.e. , the specific “Terrorist Surveillance Program” the NYT revealed. They have always made clear that there are “other intelligence programs” that we do not know about and which are excluded from all of their public assurances.

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We are left to conclude that:

1. These “other intelligence programs” were so heinous that even top officials who were on board with the publicly known part of Bush-Cheney’s radical, unitary executive theory and concomitant lawless behavior objected to them in the strongest possible terms.
2. Either Bush is incontestably a serial felon, or one must accept his argument that he is effectively exempt — as determined by his sole judgment — from any law that Congress might pass, or any finding of illegality his own Justice Department might issue. No one in Congress seems willing to address this Constitutional crisis forthrightly.

Greenwald suggests that the “other intelligence programs” might have been domestic operations targeting American citizens that were curtailed to satisfy the DOJ’s legality concerns. But it seems out of character for Bushco to abruptly stop doing whatever it was that caused the DOJ and Mueller to freak. I wonder if the scarier secret parts of Bush’s war on us were to some degree distanced from governmental authorities via an added layer of outsourcing?

An interesting piece ran in the Washington Post Outlook section on July 8th by RJ Hillhouse titled “Who Runs the CIA? Outsiders for Hire.” She notes that In April, Director of National Intelligence Mike McConnell was poised to publicize a year-long examination of outsourcing by U.S. intelligence agencies. But the report was inexplicably delayed — and suddenly classified a national secret. What McConnell doesn’t want you to know is that the private spy industry has succeeded where no foreign government has: It has penetrated the CIA and is running the show.
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Intelligence professionals tell me that more than 50 percent of the National Clandestine Service (NCS) — the heart, brains and soul of the CIA — has been outsourced to private firms such as Abraxas, Booz Allen Hamilton, Lockheed Martin and Raytheon.

(Coincidentally, Mr. Comey — who submitted his letter of resignation from the Justice Department two days after the hospital incident — is currently the senior vice president and general counsel of the Lockheed Martin Corporation.)

In a new article posted at The Nation’s website two days ago titled “Outsourcing Intelligence”, Ms. Hillhouse expands a bit on the Post piece:

Over the past six years, a quiet revolution has occurred in the intelligence community toward wide-scale outsourcing to corporations and away from the long-established practice of keeping operations in US government hands, with only select outsourcing of certain jobs to independently contracted experts. Key functions of intelligence agencies are now run by private corporations. The Office of the Director of National Intelligence (ODNI) revealed in May that 70 percent of the intelligence budget goes to contractors.For all practical purposes, effective control of the NSA is with private corporations, which run its support and management functions. As the Washington Post’s Walter Pincus reported last year, more than 70 percent of the staff of the Pentagon’s newest intelligence unit, CIFA (Counterintelligence Field Activity), is made up of corporate contractors. Defense Intelligence Agency (DIA) lawyers revealed at a conference in May that contractors make up 51 percent of the staff in DIA offices.

So it’s not at all a stretch to speculate that sensitive, clearly illegal domestic operations might have been outsourced in an attempt to insulate administration officials from culpability. What might these activities have been? A piece in the New York Times on Christmas Eve, 2006, by Eric Lichtbau and James Risen may be instructive here. (I am not linking to it as it is part of the Times’ premium service.):

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.
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What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.
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This so-called ”pattern analysis” on calls within the United States would, in many circumstances, require a court warrant if the government wanted to trace who calls whom.

The use of similar data-mining operations by the Bush administration in other contexts has raised strong objections, most notably in connection with the Total Information Awareness system, developed by the Pentagon for tracking terror suspects, and the Department of Homeland Security’s Capps program for screening airline passengers. Both programs were ultimately scrapped after public outcries over possible threats to privacy and civil liberties.

But the Bush administration regards the N.S.A.’s ability to trace and analyze large volumes of data as critical to its expanded mission to detect terrorist plots before they can be carried out, officials familiar with the program say. Administration officials maintain that the system set up by Congress in 1978 under the Foreign Intelligence Surveillance Act does not give them the speed and flexibility to respond fully to terrorist threats at home.

A former technology manager at a major telecommunications company said that since the Sept. 11 attacks, the leading companies in the industry have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists.

”All that data is mined with the cooperation of the government and shared with them, and since 9/11, there’s been much more active involvement in that area,” said the former manager, a telecommunications expert who did not want his name or that of his former company used because of concern about revealing trade secrets.

Such information often proves just as valuable to the government as eavesdropping on the calls themselves, the former manager said.
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Several officials said that after President Bush’s order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation’s largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States’ communications networks and international networks. The identities of the corporations involved could not be determined.

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.
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Historically, the American intelligence community has had close relationships with many communications and computer firms and related technical industries. But the N.S.A.’s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency’s operational capability, according to current and former government officials.

Phil Karn, a computer engineer and technology expert at a major West Coast telecommunications company, said access to such switches would be significant. ”If the government is gaining access to the switches like this, what you’re really talking about is the capability of an enormous vacuum operation to sweep up data,” he said.

It appears that the something resembling the Total Information Awareness program — ostensibly terminated by Congress — was still operating at the end of 2006. Consider this exchange during a Senate Intelligence Committee hearing in February of 2006 between Senator Ron Wyden (D-Oregon) and Mueller, NSA Director Michael Hayden and National Intelligence Director John Negroponte:
WYDEN: Mr. Director, is it correct that when John Poindexter’s program, Operation Total Information Awareness, was closed, that several of Mr. Poindexter’s projects were moved to various intelligence agencies?

NEGROPONTE: I don’t know the answer to that question.

WYDEN: Do any of the other panel members know? The press has reported intelligence officials saying that those programs run by Mr. Poindexter — I and others on this panel led the effort to close it. We want to know if Mr. Poindexter’s programs are going on somewhere else. Can anyone answer that? Mr. Mueller?

MUELLER: I have no knowledge of that, sir.

WYDEN: Any other panel members?

HAYDEN: Senator, I’d like to answer in closed session.

Hardly a denial.

Pardon the leap as I note in passing the Halliburton KBR subsidiary’s 2006 detention facilities contract detailed here:

The Halliburton subsidiary KBR (formerly Brown and Root) announced on Jan. 24 that it had been awarded a $385 million contingency contract by the Department of Homeland Security to build detention camps. Two weeks later, on Feb. 6, Homeland Security Secretary Michael Chertoff announced that the Fiscal Year 2007 federal budget would allocate over $400 million to add 6,700 additional detention beds (an increase of 32 percent over 2006). This $400 million allocation is more than a four-fold increase over the FY 2006 budget, which provided only $90 million for the same purpose.

Both the contract and the budget allocation are in partial fulfillment of an ambitious 10-year Homeland Security strategic plan, code-named ENDGAME, authorized in 2003. According to a 49-page Homeland Security document on the plan, ENDGAME expands “a mission first articulated in the Alien and Sedition Acts of 1798.” Its goal is the capability to “remove all removable aliens,” including “illegal economic migrants, aliens who have committed criminal acts, asylum-seekers (required to be retained by law) or potential terrorists.”
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Significantly, both the KBR contract and the ENDGAME plan are open-ended. The contract calls for a response to “an emergency influx of immigrants, or to support the rapid development of new programs” in the event of other emergencies, such as “a natural disaster.” “New programs” is of course a term with no precise limitation. So, in the current administration, is ENDGAME’s goal of removing “potential terrorists.”

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Those are about all of the dots I feel like pointing out right now. Connect as you wish.
I must note that the ENDGAME plan (so-named by DHS Director George Orwell) really does cite the Alien and Sedition Acts as its direct precursors. Among other things, the long ago discredited and overturned Sedition Act of 1798 made it illegal to “write, print, utter, or publish” anything critical of the President.