Tell me more about Virgil’s relationship with Carrie. He appears to be very loyal to her, even when he’s chewing her out for crossing a line.

We discussed, prior to shooting the pilot, we had some rehearsal sessions, and there was a meeting with [writer] Michael Cuesta, [showrunner] Alex Gansa, and Carrie [Claire Danes] and we went over a lot of issues. We decided that Virgil went to the New Jersey Institute of Technology and studied engineering, and when he graduated, he wanted to work for the CIA and he applied for a job, and Saul was the guy I interviewed with, and he turned me down. And he hired somebody from MIT. So I just kind of was on my own, doing my own sort of freelance audio-visual surveillance, I met Carrie, and we became friends, and I sort of became, over time, like her big brother. My guess is, because I studied a little bit of behavioral psychology, Virgil was an outsider as a kid. And he grew up in a neighborhood in New Jersey where it was brawn over brains, and Virgil was a little bit of a tech nerd. And he was a brainiac and he had a sharp tongue, and you take a few beatings. You take a few shots to the ego and shots to your manhood, so to speak. And therefore, when you get older, you want to take care of people who are being abused or being ostracized. So it makes sense that Virgil would look after [Carrie], because she is an outsider, she is an outsider in this community. Also, everyone had someone to answer to. Saul has to answer to someone. Estes has to answer to answer to someone. Virgil has her back. Virgil’s going to look after her and take care of her. He doesn’t want what happened to him to happen to her…

As an actor, I have to justify how I’m behaving in the present. Everything we do as human beings in the present is the result of things that have happened to us in the past. People who become nurses are usually people who had to take care of their father or their mother. Archetypically, if you’re a caregiver, you’re a caregiver from a very young age. We choose these professions subconsciously.

Is that true for you, in terms of deciding you wanted to act?

In terms of me choosing acting, I needed to be recognized. As a child, I wasn’t recognized by my parents. My parents were divorced by the time I was 3. My father was around, I could never get his approval. My mother, she was a single mom. I was also an only child. So I had to make a lot of noise in order to be recognized. And as an actor, we choose acting because it’s an opportunity for you to hear me and to be recognized…when I first came to town, I would interview with agents, and I would say “I didn’t come here to go swimming, I didn’t come here to go fishing, I didn’t come here to get laid. I came here to win an Academy Award, an Emmy, and a Cleo. So let’s get to work.”

Do you feel like you’ve gotten the recognition from your parents that you were looking for?

The last time I went looking for my father’s approval, I was 31 years old, and I’d had a modicum of success. I was on a TV show called Civil Wars, which was created by Steven Bochco. I was a bicycle messenger. And my father came out [to visit] and my father taught me how to garden, and I wanted to show him my garden. And I took him to the back, and I presented my garden to him, and he looks to the left, he looks to the right, he looks up to the sun, and says, “What did you plant the peppers on that side for?” That was the last time I went looking for his approval. It had nothing to do with career…My father did the best that he could with the tools that he had. He just wanted me to be able to provide for myself. My father wasn’t being critical in his mind. He was trying to be helpful, but he didn’t know how to verbalize that in a manner that wouldn’t be offensive. He didn’t know how to say “This is beautiful, this is amazing. You should rotate your stuff. Maybe next year, move stuff around.”

Do you think that dynamic comes across in Virgil’s relationship with Carrie?

He is the voice of reason for her. He’s very compassionate and understanding. I believe in her. And I trust her. I love her unconditionally. There’s no reason for me to put a condition on her because she’s no threat to me. Her behavior is a threat to Estes, her behavior is a threat to Saul.

I also appreciate that Virgil’s one of the only male characters on the show Carrie hasn’t put the moves on yet. What does that say about their friendship? Could we use more relationships between male and female characters that are just strictly friendly or professional?

Virgil is married. And that hasn’t been tested. It’s never been tested. And I think that’s true. That there isn’t that dynamic going on there. And now on a larger scale, I am the Virgil to her Dante. Virgil, in Dante’s Inferno, is the character that helps Dante navigate his way through the labyrinth of hell. I’m the Virgil to her Dante. Any time she gets herself into situations that are hellish or hell-like, I’m there.

Do you guide her through or get her caught? I worry about Virgil and Max knowing about Carrie’s medication.

We’ll just have to see.

On Due South, The Shield, and now Homeland, you’ve played characters who aren’t averse to bending the rules and taking aggressive action to crack down on people who violate the law or are threats to the United States. I’d be curious as to what the persistence of those themes mean about our fears of crime and terrorism. Do we not trust the people who are supposed to protect us? Do we really think our laws are too restrictive?

It’s very interesting. I’ve been very, very fortunate. My first series was Civil Wars, and my second series was Due South, created by Academy Award winner Paul Haggis. The difficulty, I’ll talk about each one individually and try to make a summation. The interesting thing about Ray Vecchio [his character on Due South, about a Canadian Mountie paired with an American cop] is I didn’t like him at first. I had a very hard time playing the foil…The Mountie’s the hero, he’s the hero archetype. In order for him to be the hero, he has to solve the case, he has to get the girl. Which means the foil cannot solve the case, the foil cannot get the girl. So I was getting very frustrated with the role because it wasn’t very satisfying. And I called my very first acting teacher, Ingrid Sonnichsen, she teaches at Carnegie Mellon now, and I said, “I got a dilemma.” And I said, “I don’t like playing the character I’m playing.” She said, “That’s a problem.” And I said, “I know. This could run for five years.” She said, “You need to find the one thing, the one thing about him that you like.” And she said, “What’s the best quality that he has?” And I said, “He’s a true friend. He will take a bullet for the Mountie. he will give his undying allegiance to helping this outsider.” Again. An outsider. Help find the murderer of his dad, and just be his friend in a land where no one else will be his friend. That’s the parallel between Vecchio and Virgil. They both serve that same function.

Now, [Detective Steve] Billings, Billings on the other hand does not fall into either one of those characters. Billings was very self-serving, but every character was on The Shield. Self-preservation was the major theme running through The Shield. Every character had to make a choice over you or me. Vic Mackey or Ronnie. Who’s going down? Ronnie’s going down. Lem or Shane? I’m sorry Lem. You’re gone. Me or anybody else? That pervert that I planted the information on. Playing jokes on Dutch. What I did to Dutch with Alex O’Laughlin’s character…What was great about The Shield is they tapped into a side of me, which I like to play jokes on people, I like to rib you, I’m an instigator, and they understood that when they hired me. So the thing about Dave Marciano and Billings that was in common was being this little instigator, this jerk. But he does it with humor. This guy’s a ball-buster. And I am. And they tapped into that side of me.

Do all of these shows suggest that we shouldn’t trust the government?

I think we make commentaries. I didn’t mean to avoid your question earlier about that. Here’s the thing about The Shield. When I became Acting Captain, there’s a big riot…and they ask me to make a decision, and I’m like ahh, and they’re like, you’re George Bush. Just think of yourself as George Bush. The liberal Hollywood likes to point out the faults and defects of the current administration. Isn’t that what’s theater is all about? Theater was created to show the powers that be what the masses were unhappy with. And I think that what happens, when we tell stories, even in the modern day, because this is our mythology. Television and film are our mythology, in which we tell stories to the masses so they know how to behave, and it’s a mirror held up to the government or the police. We like to show the general public what the powers that be are doing to you. And we like to show them in inept ways because people want to stick it to the man. There is a lot of waste. There is a lot of ineptitude in our government, there is a lot of ineptitude in our police force. There is a lot of corruption…Dirty. Everything’s dirty. It’s not so slick. It’s very real. All these other shows are very slick. Look how slick our cops our. Look how slick our lawyers are. It’s dirty. It’s in the trenches. That’s what I loved about Michael Clayton. Michael Clayton was amazing. Here’s this big lawyer who’s helping bring down law firms…It’s always a moral dilemma. The thing about The Shield is there’s a moral dilemma every episode. That’s the whole thing that just happened with Penn State. That’s a moral crime. And a sin to morality…they’ll overlook shit for greed and power.

-The cognitive dissonance of the Uncanny Valley.

-Person of Interest is Early Edition with electronic surveillance instead of a magic newspaper.

-You’re still going to be able to go to a physical place and rent movies.

-This new St. Vincent song is exactly how the heat makes my brain feel right now.

I wonder if Google will threaten to stop operating in the United States once it turns out our government’s been up to snooping malfeasance:

The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.

E-mails obtained by The Washington Post detail how counterterrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.

The FBI’s general counsel assures us that this was all “good-hearted.” And those reassurances keep coming down the pike. After each revelation of illegal surveillance, we’re assured that these abuses aren’t that kind of abuse—like the kind where J Edgar Hoover (who remains an honored figure in the FBI, with the headquarters building named after him) spied on Martin Luther King Jr, or Richard Nixon used counterterrorism powers against domestic political enemies. We’re talking about some whole other kind of innocuous, good-hearted abuses.

And who knows, maybe they are. But how many times does “good-hearted” abuse need to go unpunished before something more insidious happens? I find the political complacency in the face of these surveillance abuses to be really stunning. I get that many people figure that the whole arbitrary detention and torture thing is something that’s supposed to happen to other, browner people with funny names. But we don’t need to guess about what happens when the government has unrestricted surveillance power—it’s a story we’ve seen already.

The Washington Post reports today that the Obama administration will largely continue this policy:

The Obama administration will largely preserve Bush-era procedures allowing the government to search — without suspicion of wrongdoing — the contents of a traveler’s laptop computer, cellphone or other electronic device, although officials said new policies would expand oversight of such inspections.

The policy, disclosed Thursday in a pair of Department of Homeland Security directives, describes more fully than did the Bush administration the procedures by which travelers’ laptops, iPods, cameras and other digital devices can be searched and seized when they cross a U.S. border.

Privacy law expert Peter Swire noted a number of problems with this severely intrusive policy, namely that it limits privacy, free speech and business secrets, sets bad precedent for other more untrustworthy regimes throughout the world, and could discourage foreign travel to the U.S.

Obama administration officials say that more protections have been put in place. In one new “oversight,” CBP officers “should now generally take no more than 5 days” to conduct searchers (more than enough time to copy the entire contents of large hard drives). Homeland Security Secretary Janet Napolitano said the new policy “strike[s] the balance between respecting the civil liberties and privacy of all travelers.” Civil Liberties advocates disagree:

“Under the policy begun by Bush and now continued by Obama, the government can open your laptop and read your medical records, financial records, e-mails, work product and personal correspondence — all without any suspicion of illegal activity,” said Elizabeth Goitein, who leads the liberty and national security project at the nonprofit Brennan Center for Justice.

The Center for American Progress Action Fund and the Electronic Frontier Foundation mobilized action campaigns last year calling on citizens to urge the federal government to abandon this policy. The Post reports that according to DHS data, “[b]etween October 2008 and Aug. 11, more than 221 million travelers passed through CBP checkpoints. About 1,000 laptop searches were performed, only 46 in-depth.”

In the Wall Street Journal today, Yoo responded to the report, claiming that the inspectors general are ignoring history and are simply “responding to the media-stoked politics of recrimination.” But in his attack on the report, Yoo neither responded to the specific criticisms of his legal reasoning nor mentioned that he refused to cooperate with the investigation.

Instead, Yoo persisted in pushing the flaws in his legal argument, such as the claim that the Foreign Intelligence Surveillance Act did not take war into consideration:

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States. Congress enacted FISA during the waning days of the Cold War. … In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind. It was to meet such emergency circumstances that the Founders designed the presidency.

But the IG report stated:

Yoo wrote that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid such a reading.”

Yoo’s analysis of this point would later raise serious concerns for other officials in OLC and the Office of the Deputy Attorney General (ODAG) in late 2003 and early 2004. Among other concerns, Yoo did not address the section of FISA that creates an explicit exemption from the requirement to obtain a judicial warrant for 15 days following a congressional declaration of war. See 50 U.S.C. § 1811. Yoo’s successors in OLC criticized this omission in Yoo’s memorandum because they believed that by including this provision in FISA Congress arguably had demonstrated an explicit intention to restrict the government’s authority to conduct electronic surveillance during wartime.

In his op-ed, Yoo also argued that “the 1952 Supreme Court case of Youngstown Sheet & Tube v. Sawyer is the IG’s lodestar,” but that it doesn’t apply in the case of Bush’s warrantless wiretapping program. Yoo never mentioned, however, that he neglected to make that argument in his legal memos supporting the program:

Yoo’s legal memoranda omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution of government powers between the Executive and Legislative Branches. Justice Jackson’s analysis of President Truman’s Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC’s subsequent reevaluation of Yoo’s opinions on the legality of the PSP.

Finally, though he mentioned that IG report covers “‘other’ intelligence measures” that he signed off on, Yoo never addressed the charge that his “discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” which led former Attorney General John Ashcroft to conclude that he had “been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.”

Rep. Jane Harman, D-Calif., told The Associated Press she was shocked to learn of the existence of other classified programs beyond the warrantless wiretapping.

Former Bush Attorney General Alberto Gonzales made a terse reference to other classified programs in an August 2007 letter to Congress. But Harman said that when she had asked Gonzales two years earlier if the government was conducting any other undisclosed intelligence activities, he denied it.

“He looked me in the eye and said ‘no,’” she said Friday.

As ThinkProgress previously reported, former Deputy Attorney General James Comey’s testimony before Congress implied that “other programs exist for domestic spying” outside of the NSA program. Gonzales even stated in 2007 that “other intelligence activities” existed. The new report found Gonzales’ statements to be “incomplete and confusing” and “inaccurate,” though not intentionally misleading.

Attorney General John Ashcroft had originally given authorization for the program based on a “misimpression” of what activities the NSA was actually conducting. The lack of full disclosure led to the showdown in Ashcroft’s hospital room in 2004, which almost caused a mass resignation at DoJ.

According to the report, top Cheney aide David Addington could personally decide who in the administration was “read into” the classified program. The inspectors general interviewed more than 200 people inside and outside the government. But because the inspectors general “lacked the authority to compel testimony,” five former Bush administration officials — Ashcroft, John Yoo, George Tenet, Andrew Card, and Addington — refused to be questioned.

Most of the intelligence leads generated under what was known as the “President’s Surveillance Program,” which began shortly after 9/11, did not have any connection to terrorism, the report said. Moreover, the information produced was of “limited” value to intelligence officials.

White the IGs’ report does not yield any details about the secret programs, Radar reported in 2008 that a program called “Main Core” was engaged in massive data collection of Americans:

According to a senior government official… ”There exists a database of Americans, who, often for the slightest and most trivial reason, are considered unfriendly, and who, in a time of panic, might be incarcerated. The database can identify and locate perceived ‘enemies of the state’ almost instantaneously.” … One knowledgeable source claims that 8 million Americans are now listed in Main Core as potentially suspect. In the event of a national emergency, these people could be subject to everything from heightened surveillance and tracking to direct questioning and possibly even detention.

Glenn Greenwald notes that there likely “will be no consequences” for any of this “rampant and blantant” lawlessness because the Obama administration “opposes all Congressional investigations into Bush-era crimes and, worse, is engaged in extraordinary efforts to block courts from adjudicating the legality of Bush’s surveillance activities by claiming that even long-obsolete and clearly criminal programs are ‘state secrets.’”

He said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

Whatever the case may ultimately prove to be, I think this demonstrates what should long have been obvious, namely that broad surveillance powers are incredibly likely to be used for abusive domestic political purposes. Obviously, there are potential tactical national security gains to be made by letting the NSA and FBI just do whatever they want. But in a strategic sense, what happens when you allow secret unrestrained surveillance power is that harmful abuses wind up swamping legitimate uses of the authority. Unfortunately, back when debates where taking place about illegal surveillance, it was only the hippie bloggers making this point. All Republicans and all “responsible” Democrats like Jane Harman understood that anyone worrying about abuse needs to put a tinfoil hat on.

Now that it looks like Harman has been the target of abuse, I’m hoping she’ll lead a campaign for the sort of broad reforms that can help ensure this doesn’t happen again. But I fear she’ll lead a narrow campaign aimed at simply sending the message “don’t f**k with Jane Harman.”

While the documents reveal 79 such cases on or after Sept. 12, 2001, they do not specify how many of the applications were made during Christie’s tenure. Christie served as U.S. attorney from Jan. 17, 2002 through November 2008. ACLU staff attorney Catherine Crump noted:

Tracking the location of people’s cell phones reveals intimate details of their daily routines and is highly invasive of their privacy. The government is violating the Constitution when it fails to get a search warrant before tracking people this way.

The new revelations about the cell phone tracking program under Christie is yet another example of the warrantless spying programs authorized under the Bush administration. Previous programs approved without a court order or warrant have included the secret program to monitor radiation levels at over 100 Muslim sites and the NSA spying program on the phone and e-mail communications of thousands of people inside the U.S. These programs run contrary to the Fourth Amendment to the U.S. Constitution, which forbids “unreasonable searches” and sets out specific requirements for warrants, including “probable cause.”

During his tenure as U.S. attorney, Christie also awarded his former boss, John Ashcroft, a $28-52 million dollar no-bid contract to “monitor a large corporation willing to settle criminal charges out of court.” Former Attorney General Nicholas Katzenbach blasted the decision, saying that awarding a no-bid contract “suggests other political things, and that seems to me to be as wrong as it can be.” Christie also doled out “a multi-million-dollar, no bid contract to an ex-federal prosecutor who declined to criminally prosecute Christie’s brother on stock fraud charges two years earlier.”

Christie’s campaign manager, Bill Stepien, declined to comment on the cell phone spying program “due to pending litigation.”

But during the period before the NSA program became public, the members of the Gang of Eight would have included House Speaker J. Dennis Hastert, R-Ill.; Nancy Pelosi, initially the ranking Democrat on the House intelligence committee, and later the House minority leader; Senate Majority Leader Bill Frist, R-Tenn.; Tom Daschle, D-S.D., and later Harry Reid, D-Nev., the Senate minority leaders at the time; Senate Intelligence Chairman Pat Roberts, R-Kan.; John D. Rockefeller IV, D-W.Va., the ranking Democrat on Senate Intelligence; House Intelligence Chairman Peter Hoekstra, R-Mich.; and Harman, who replaced Pelosi as the ranking Democrat on House Intelligence after Pelosi became minority leader.

A “Democratic aide” told CQ that Pelosi wasn’t at the NYT meeting. Nather adds that GOP members of the Gang of Eight “would have had more incentive to try to kill the story, since most GOP lawmakers later said the Times jeopardized national security by running the story.”

HARMAN: I’m just very disappointed that my country — I’m an American citizen just like you are — could have permitted what I think is a gross abuse of power in recent years. I’m one member of Congress who may be caught up in it, but I have a bully pulpit and I can fight back. I’m thinking about others who have no bully pulpit and may not be aware, as I was not, that right now somewhere, someone’s listening in on their conversations, and they’re innocent Americans.

Watch it:

Harman’s anger seems a bit disingenuous, considering that she was one of the earliest supporters of Bush’s warrantless wiretapping program. When the practice was revealed by the New York Times in 2005, she defended it as “essential,” though admitted she was “concerned” about its scope:

“I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities,” Harman said. “Like many Americans, I am deeply concerned by reports that this program in fact goes far beyond the measures to target Al Qaeda about which I was briefed.”

In fact, in 2004 she “urged that The [New York] Times not publish the article” revealing Bush’s program.

Indeed, she issued a press release in 2007 specifically highlighting that the updated FISA bill she approved of would fully allow warrantless wiretapping:

This bill does a good job — a far better job than the bill reported last month by the Senate Intelligence Committee. … This legislation arms our intelligence professionals with the ability to listen to foreign targets — without a warrant — to uncover plots that threaten US national security. The bill also protects the Constitutional rights of Americans by requiring the FISA court, an Article III Court, to approve procedures to ensure that Americans are not targeted for warrantless surveillance.

To her credit, Harman warned against “a slippery legal slope to potential unprecedented abuse of innocent Americans’ privacy” and stated her opposition to granting telecommunications companies retroactive immunity. Perhaps her outrage at being a target of wiretapping herself will force her to realize that the program she deemed “essential” invaded the privacy of untold millions of Americans.

I am outraged to learn from reports leaked to the media over the last several days that the FBI or NSA secretly wiretapped my conversations in 2005 or 2006 while I was Ranking Member on the House Intelligence Committee.

This abuse of power is outrageous and I call on your Department to release all transcripts and other investigative material involving me in an unredacted form. It is my intention to make this material available to the public. [...]

[I]t is entirely appropriate to converse with advocacy organizations and constituent groups, and I am concerned about a chilling effect on other elected officials who may find themselves in my situation.

“Let me be absolutely clear,” Harman wrote. “I never contacted the Department of Justice, the White House or anyone else to seek favorable treatment regarding the national security cases on which I was briefed, or any other cases.”

In July 2008, as Congress — including then-Sen. Barack Obama — moved towards approving the re-write of surveillance law, progressives mobilized against the legislation. As Glenn Greenwald points out, many of the concerns held by progressives at the time are proven by the NYT report. Here’s how Greenwald summarized the opposition in June 2008:

The ACLU specifically identifies the ways in which this bill destroys meaningful limits on the President’s power to spy on our international calls and emails. Sen. Russ Feingold condemned the bill on the ground that it “fails to protect the privacy of law-abiding Americans at home” because “the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power.” Rep. Rush Holt — who was actually denied time to speak by bill-supporter Silvestre Reyes only to be given time by bill-opponent John Conyers — condemned the bill because it vests the power to decide who are the “bad guys” in the very people who do the spying.

On July 3rd, Obama explained his support for the “improved yet imperfect bill” by saying that as president he would have his Attorney General “conduct a comprehensive review of all our surveillance programs” in order to make further recommendations on protecting civil liberties. According to the Lichtblau and Risen, the “overcollection” of domestic collection was “detected” during a “periodic review” of the NSA’s activities:

As part of a periodic review of the agency’s activities, the department “detected issues that raised concerns,” it said. Justice Department officials then “took comprehensive steps to correct the situation and bring the program into compliance” with the law and court orders, the statement said. It added that Attorney General Eric H. Holder Jr. went to the national security court to seek a renewal of the surveillance program only after new safeguards were put in place.

Sen. Russ Feingold (D-WI), who opposed the 2008 FISA Amendment Act, issued a statement today calling on Congress to “get to work fixing these laws that have eroded the privacy and civil liberties of law-abiding citizens.” Feingold also called on the Obama administration to “declassify certain aspects of how these authorities have been used so that the American people can better understand their scope and impact.”

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.

The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.

The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.

Congressional officials said they have “begun inquiries” into the matter.

Disclosure of the information sought by the customers, “which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,” Justice Department lawyers said in papers filed Friday in San Francisco.

Kevin Bankston of the Electronic Frontier Foundation, a lawyer for the customers, said Monday the filing was disappointing in light of the Obama presidential campaign’s “unceasing criticism of Bush-era secrecy and promise for more transparency.”

Glenn Greenwald argues, “In other words, beyond even the outrageously broad ‘state secrets’ privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and — even if what they’re doing is blatantly illegal and they know it’s illegal — you are barred from suing them unless they ‘willfully disclose’ to the public what they have learned.”

Personally, I don’t see any way that could wind up leading to abuses.

Since that time, the Bush Justice Department had been trying to identify Risen’s sources for his book on the nation’s spy agencies, called State of War. In April, the New York Times reported that former government officials had been called before a grand jury and confronted with phone records documenting their calls with Risen. Neither Risen nor the New York Times had received a subpoena for those records.

Risen told Olbermann that in light of Tice’s revelations, he believes he may have been a target of the NSA’s journalist-spying program:

OLBERMANN: Do you believe you have been a target of this NSA wiretap program?

RISEN: What I know for a fact is that the Bush administration got my phone records. Whether that was obtained by the FBI or the NSA, my lawyers and I have been trying to investigate that. We’re not sure. But we know for a fact that they showed my phone records to other people in the federal grand jury. And we have asked the court to investigate that.

Risen added that he believes the purpose of the NSA’s efforts was to “have a chilling effect on potential whistle blowers in the government, to make them realize that there is a big brother out there that will get them if they step out of line.” Watch it:

Transcript:

OLBERMANN: The NSA had access to all Americans’ communications, may still have, with certain groups monitored, quote, 24/7, 365 days a year, happening all the time, according to our previous guest, Russell Tice, and also credit card records. One of many targeted groups were journalists.

So, in our number two story, do any of these journalist targets know they were targets? Let’s turn to New York Times investigative reporter James Risen. He and a colleague at the time won the 2006 Pulitzer Prize for their disclosure of the Bush administration program of warrant less wiretapping. A federal grand jury has been trying to get him to divulge confidential sources for State of War, the book he wrote on the CIA.

Thanks for your time, sir.

JAMES RISEN, AUTHOR, STATE OF WAR : Thanks for having me.

OLBERMANN: Do you believe you have been a target of this NSA wiretap program?

RISEN: What I know for a fact is that the Bush administration got my phone records. Whether that was obtained by the FBI or the NSA, my lawyers and I have been trying to investigate that. We’re not sure. But we know for a fact that they showed my phone records to other people in the federal grand jury. And we have asked the court to investigate that.

OLBERMANN: So your overall reaction to what Mr. Tice said tonight, what he said yesterday about the targeting of all journalists would be what?

RISEN: It’s — I don’t know. I can’t confirm what he said. But it’s really worth pursuing, and it’s worth investigating.

Here’s what I do know, is that the NSA has far greater capability than has ever been made public. All you have to do is look back at what we reported on about the eavesdropping program, and to remember that the famous hospital scene, where this was this big Constitutional crisis between Bush and the Justice Department lawyers, who were battling him over whether the program was legal. What they eventually disclosed was that they were arguing over a part of the program that nobody even today knows the specifics of.

So there is a large amount of operations and capabilities that the NSA has that most people don’t know of its existence, including me. So that’s, you know, one of the things I think is interesting about what he said.

OLBERMANN: Yes. I know exactly what you mean by that. Obviously, we have to — since we have such limited information, there’s a lot of theory going into this. What do you make of this one? The government, if Mr. Tice is correct, wiretaps or wiretapped journalists 24/7, then focuses in on any investigative reporter who is divulging or getting near information it considers too valuable or too much in some way?

RISEN: Yes. That’s clearly the great fear and the threat that — of the kind of capability that he is talking about. Is it possible that all they have to do is turn a few switches and knobs and suddenly narrow the field of what they’re looking at. He made the point, and I thought it was interesting — and I don’t know if it is true or not — that his job was to minimize the collection on journalist, but he said that it is quite possible that they could be reverse engineering that to actually gain that, collect that information.

That’s the great threat and the fear that I thought was interesting and something really worth pursuing.

OLBERMANN: It almost suggests a kind of NSA equivalent of Google for anyone of us out here, you, me or the viewer.

RISEN: Right.

OLBERMANN: Not to miss the obvious. Is the desired ultimate result, having been on both the investigative end of this and the recipient end of this, do you think that the ultimate result is suppression of reporting, either through direct coercion, or a chilling effect, that this could have every time somebody could contemplates pursuing, publishing, broadcasting a risky story?

RISEN: Yes. That is certainly part of it. I think the more direct part is to frighten people in the government from talking. It is to have a chilling effect on potential whistle blowers in the government, to make them realize that there is a big brother out there that will get them if they step out of line. I think that’s the more direct chilling effect on the source, rather than on the reporter so much.

We have a large organization that will support us. In my case, in my leak investigation, Simon and Schuster has been supporting me for my book. But, you know, the whistle blowers don’t have that.

OLBERMANN: As Mr. Tice well knows right now. James Risen, of the New York Times and author of State of War, with a unique perspective on this. And we thank you for sharing it.

RISEN: Thank you.

TICE: The National Security Agency had access to all Americans’ communications — faxes, phone calls, and their computer communications. And it didn’t matter whether you were in Kansas, in the middle of the country, and you never made any foreign communications at all. They monitored all communications. [...] But an organization that was collected on were U.S. news organizations and reporters and journalists.

OLBERMANN: To what purpose? I mean, is there a file somewhere full of every e-mail sent by all the reporters at the “New York Times?” Is there a recording somewhere of every conversation I had with my little nephew in upstate New York? Is it like that?

TICE: If it was involved in this specific avenue of collection, it would be everything. Yes. It would be everything.

Tice, a major whistleblower who helped reveal President Bush’s warrantless wiretapping program to the New York Times in 2005, also told Olbermann that the agency sought specifically “to be deceptive” to prevent congressional committees from learning more about the program, calling it “a shell game”:

TICE: The agency would tailor some of their briefings to try to be deceptive for — whether it be, you know, a congressional committee or someone they really didn’t want to know exactly what was going on. So there would be a lot of bells and whistles in a briefing, and quite often, you know, the meat of the briefing was deceptive.

Watch portions of the interview (full interview here):

In October, two other whistleblowers told ABC News that the NSA “routinely” listened in on Americans’ phone calls and agents would often share “salacious or tantalizing” intercepted calls with each other. All this despite Bush’s frequent protestations that his illegal wiretaping program was “limited,” that it targeted only “a phone call of an al Qaeda, known al Qaeda suspect,” and that he ensured “that our civil liberties of our citizens are treated with respect.”

To the end, Bush and Cheney defended the program. In his final days in office, Cheney declared that “it always aggravated” him that the Times won a Pulitzer for exposing his administration’s illegal spying program.

In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping.

Separately, in his confirmation hearing today, Attorney General nominee Eric Holder said the President cannot violate FISA:

FEINGOLD: Is there anything in the FISA statute that makes you believe that the president has the ability under some other inherent power to disregard the FISA statute?

HOLDER: No, I do not see that in the FISA statute.

Watch it:

“I think that’s a very important break in favor of the rule of law that we’ve been waiting for in this country for many years,” remarked Sen. Russ Feingold (D-WI).

“I think that there’s a lot that remains to look at, and I appreciate that President Obama doesn’t want to make it his purpose as a new president, with America in real distress in many directions, to go back and look at all this, but I think we in Congress have an independent responsibility, and I fully intend to discharge that responsibility,” Whitehouse said.

In a 487-page report out today recapping Bush’s “imperial presidency,” House Judiciary Chairman John Conyers (D-MI) recommends that “the incoming Administration finally begin an independent criminal review of activities of the outgoing Administration.”