And here I thought the 83 year old Mouse was tougher than the graying terrorist watching home videos with all the kids. But it turns out that the Navy SEALs bested Mickey Mouse just as handily as they killed Osama bin Laden. (h/t JL)

Walt Disney Co. said Wednesday that it will withdraw its applications to trademark the term “SEAL Team 6” for use on toys, games, and other consumer products.

[snip]

The Navy filed its own applications for the terms “SEAL Team” and “Navy SEALs” 10 days later, explaining in the filings that the phrases denote “membership in an organization of the Department of the Navy that develops and executes military missions involving special operations strategy, doctrine, and tactics.”

“We are fully committed to protecting our trademark rights,” said Commander Danny Hernandez, the chief Navy spokesman.

A Disney spokesman said the company was withdrawing the applications “out of deference to the Navy.”

So if you want to go through a fantasy ride about nabbing Osama bin Laden, you’re just going to have to act it out yourself, with water pistols in your backyard. And if you want to indoctrinate your children into violence from a young age, you’ll just have to stick with the weekend cartoons.

Look on the bright side, though! There are at least some things taxpayers have paid for that the government will insist on keeping!

As I reported yesterday, one of the amendments to the PATRIOT Act Harry Reid made sure wouldn’t get a vote pertained to making it clear how the government interprets the PATRIOT Act. Mark Udall and Ron Wyden wanted to force the government to at least explain how they were interpreting the law so constituents would know how lame their Senators were for voting in favor of it.

Spencer took the time to go ask some folks what this was about.

Among other things, Wyden explained that Section 215, as I suspected, was one of the concerns.

“It is fair to say that the business records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it.”

And Wyden notes that the government is increasingly using such secret interpretations.

“I’m talking about instances where the government is relying on secret interpretations of what the law says without telling the public what those interpretations are,” Wyden says, “and the reliance on secret interpretations of the law is growing.”

Which seems consistent with the February 2, 2011 briefing on yet another new use of PATRIOT.

DOJ didn’t want to answer Spencer’s questions. They sent him to some old Todd Hinnen testimony admitting to using it to get things like drivers licenses, as well as secret programs of indistinct number (I’m pretty sure there were just two a year ago) he won’t tell us about.

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like.  It has never been used against a library to obtain circulation records.  Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed.

In other words, DOJ chose not to send Spencer to Robert Mueller’s testimony where he admitted it had been used to collect information on hydrogen peroxide purchasers. Note that at Mueller’s earlier testimony–which took place just a couple of weeks after the government briefed the intelligence committees on this new use of Section 215–Wyden went on a bit of a rant on this same topic.

“I believe that the American people would be absolutely stunned, I think members of Congress, many of them, would be stunned, if they knew how the PATRIOT Act was being interpreted and applied in practice,” Wyden declared heatedly. “I’m going to insist in significant reform in this area. We’re not talking about operations and methods. There is a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved…..Right now with respect to the executive branch’s official interpretation of what the law means, we’re not getting it.”

Wyden said the Justice Department should release Office of Legal Counsel opinions about what kinds of investigative activities are authorized under the PATRIOT Act. Intelligence committee members have seen those classified opinions, most other members of Congress and the general public have not.

Finally, though, Spencer pointed to Mark Udall’s speech in the Senate yesterday. His comments make it clear that the wider collection programs–like, presumably the hydrogen peroxide one–are targeted at all Americans, not just those suspected of terrorist ties.

For example, currently, the intelligence community can (1) place wide-ranging wiretaps on Americans without even identifying the target or location of such surveillance, (2) target individuals who have no connection to terrorist organizations, and (3) collect business records on law-abiding Americans, without any connection to terrorism. We ought to be able to at least agree that the source of an investigation under PATRIOT Act powers should have a terrorist-related focus. If we can’t limit investigations to terrorism, where do they end? Is there no amount of information that our government can collect that should be off limits? I know Coloradans are demanding that we at least place common-sense limits on government investigations and link data collection to terrorist-related activities.

If Congress passes this bill to extend the PATRIOT Act until 2015, it would mean that for four more years, the federal government will continue to have unrestrained access to private information about Americans who have no connection to terrorism – with little to no accountability about how these powers are used. Again, we all agree the intelligence community needs effective tools to combat terrorism, but we must provide those tools in a way that protects the constitutional freedoms of our people and lives up to the standard of transparency that democracy demands.

[snip]

Finally, I was joined by Senator Wyden in filing an amendment designed to narrow the scope of “business record” materials that can be collected under Section 215 of the PATRIOT Act. This amendment would still allow law enforcement agencies to use the PATRIOT Act to obtain such records, but would require those entities to demonstrate that the records are in some way connected to terrorism or clandestine intelligence activities.

Law enforcement currently can obtain any kind of records. In fact, the PATRIOT Act’s only limitation states that such information has to be related to “any tangible thing.” That’s right – as long as these business records are related to “any tangible thing,” the U.S. government can require businesses to turn over information on all of their customers, whether or not there is any link to terrorism. I don’t think it’s unreasonable to ask our law enforcement agencies to identify a terrorism investigation before seizing the private information of law-abiding American citizens. [my emphasis]

It’s clear they’re using Section 215 to just collect data–things like beauty supply purchases and geolocation data–to dump into government databases.

And something in the neighborhood of 85 Senators are about to give them the green light to continue doing so, all by lying to us that it’s about terrorism.

It seems we’re going to be discussing anthrax in detail again. And in anticipation of those discussions, I wanted to challenge the notion that the circumstantial evidence against Ivins remains strong.

The whole case depends on the FBI’s contention that a flask Ivins had–RMR-1029–was “the murder weapon.” But in fact, the FBI only has proof that Ivins had what might be one of eight or more potential precursors to the murder weapon. Their efforts to equate the two ignore some interim steps about which they seem to have little evidence (and what they have they’re not examining very closely).

So here’s my summary of the circumstantial case against Bruce Ivins. (Jim White gave me a ton of scientific help with this, but the errors surely result from my own misunderstanding.)

When US Attorney Jeff Taylor announced FBI was closing the investigation in February 2010, he gave the following 7 pieces of evidence that Ivins was the culprit.

First, we were able to identify in early 2005 the genetically-unique parent material of the anthrax spores used in the mailings. As the court documents allege, the parent material of the anthrax spores used in the attacks was a single flask of spores, known as “RMR-1029,” that was created and solely maintained by Dr. Ivins at USAMRIID. This means that the spores used in the attacks were taken from that specific flask, regrown, purified, dried and loaded into the letters. No one received material from that flask without going through Dr. Ivins. We thoroughly investigated every other person who could have had access to the flask and we were able to rule out all but Dr. Ivins.

Second, as a renowned expert in the production and purification of anthrax spores, Dr. Ivins was one of a handful of scientists with the capability to create spores of the concentration and purity used in the attacks. The affidavits allege that, not only did Dr. Ivins create and maintain the spore batch used in the mailings, but he also had access to and experience using a lyophilizer. A lyophilizer is a sophisticated machine that is used to dry pathogens, and can be used to dry anthrax. We know others in Dr. Ivins’ lab consulted him when they needed to use this machine.

Third, in the days leading up to each of the mailings, the documents make clear that Dr. Ivins was working inordinate hours alone at night and on the weekend in the lab where the flask of spores and production equipment were stored. A review of his access records revealed that Dr. Ivins had not spent this many “off hours” in the lab at any time before or after this period. When questioned about why he was in the lab during these off hours prior to each of the mailings, Dr. Ivins was unable to offer any satisfactory explanation.

Fourth, the affidavits indicate Dr. Ivins had engaged in behavior and made a number of statements that suggest consciousness of guilt. For example, one night shortly after a search warrant was executed on his house, Dr. Ivins took highly unusual steps to discard a book and article on DNA coding while under 24/7 surveillance. In addition, he had submitted a questionable sample of anthrax from his flask of parent spores to the FBI, presumably to mislead investigators. He had also made far-reaching efforts to blame others and divert attention away from himself, and had made threatening e-mail statements to a friend regarding the case. Recently, he had detailed threats in his group therapy session to kill people who had wronged him, after learning he might be indicted.

Fifth, as reflected in the court documents, Dr. Ivins had a history of mental health problems and was facing a difficult time professionally in the summer and fall of 2001 because an anthrax vaccine he was working on was failing. The affidavits describe one e-mail to a co-worker in which Dr. Ivins stated that he had “incredible paranoid, delusional thoughts at times,” and feared that he might not be able to control his behavior.

Sixth, throughout his adult life Dr. Ivins had frequently driven to other locations to send packages in the mail under assumed names to disguise his identity as the sender. He had also admitted to using false names and aliases in writings. In addition, he was a prolific writer to Congress and the media, the targeted victims in the anthrax attacks. Law enforcement recovered 68 letters to such entities from his house in a Nov. 1, 2007 search.

I’ll conclude with one more point. The envelopes used in the attacks were all pre-franked envelopes, sold only at U.S. Post Offices during a nine-month window in 2001. An analysis of the envelopes revealed several print defects in the ink on the pre-printed portions of the envelopes. Based on the analysis, we were able to conclude that the envelopes used in the mailings were very likely sold at a post office in the greater Frederick Maryland, area in 2001. Dr. Ivins maintained a post office box at the Post Office in Frederick, from which these pre-franked envelopes with print defects were sold.

Here’s what remains of each of these 7 pieces of evidence:

1. The spores in the attack came from RMR-1029 and Ivins controlled access to that flask

The certainty of this claim was seriously challenged by both the National Academy of Sciences report and subsequent reporting on several grounds.

First, the NAS study concluded only that the genetic analysis was consistent with the spores being derived from RMR-1029.

The results of the genetic analyses of the repository samples were consistent with the finding that the spores in the attack letters were derived from RMR-1029, but the analyses did not definitively demonstrate such a relationship.

That only says that whoever prepared the (probable) two separate batches of anthrax may have started with anthrax obtained at some point from that flask. NAS holds out the possibility the anthrax producer may have gotten it from somewhere else, that it was possible to get similar genetic results from other means (that is, suggesting that’s not the only way to have produced the samples found in the letter).

An even bigger problem is the complete lack of attention on what happened to the anthrax after it came from Ivins’ flask, if it did. The NAS later emphasizes this interim step.

The flask designated RMR-1029 was not the immediate, most proximate source of the letter material. If the letter material did in fact derive from RMR-1029, then one or more separate growth steps, using seed material from RMR-1029 followed by purification, would have been necessary. Furthermore, the evidentiary material in the New York letters had physical properties that were distinct from those of the material in the Washington, D.C. letters.

What would have to happen to prove that Ivins took spores from his flask and prepared the anthrax used in the attacks is to prove, first of all, that his lab and his skills could have produced the differences from the RMR-1029 flask (for example, could have introduced the silicon and tin found in the attack samples). In addition, you’d have to explain the variables introduced into the NY samples but not the DC ones. And you’d have to prove that all those procedures were possible in Ivins’ lab.

But there’s another problem with the claim that the anthrax had to have come from Ivins’ flask. Remember, what the FBI did was identify four morphological characteristics of the Leahy anthrax, then see which of the samples of anthrax in their repository had those same characteristics, which turned out to be 8-10 samples. It then investigated everyone who had access to those samples, and basically eliminated everyone but Ivins.

But such a process of elimination only works if you’re sure the repository of anthrax samples the FBI had represented all the possible samples from which the anthax could have come. The NAS wasn’t convinced that the repository was that comprehensive.

The FBI repository was developed from an intensive effort to identify laboratories having access to the Ames strain; however, we cannot conclude that this approach identified every laboratory or was a comprehensive representation.

For good reason. To develop the repository, the FBI depended on the records of transfers between labs. But as Noah Shachtman reported, the FBI had proof their repository was incomplete in 2003.

In December 2003, while conducting an inventory of one of USAMRIIDs biocontainment suites, investigators discovered 22 undocumented Ames anthrax samples. They began to fear that the repository they had spent nearly two years assembling might have gaping holes in it. So for the first time, the FBI decided to scour USAMRIID for any vials they had missed.

The institute staff fumed at the search—ongoing experiments would be disrupted, they shouted. (Hank) Heine, Ivins’ coworker, decided to exact a bit of revenge on his FBI handler. While the agent was collecting samples in his lab—dressed in full protective gear—Heine handed her a vial and told her it was a deadly plague strain. The vial started shaking in the agent’s gloved hand. Heine cracked up. “They were entirely dependent on me to identify everything in every box,” he says. “I could’ve held up a critical piece of evidence, said it was something else, and put it aside. There’s no way they would’ve known.”

That was almost two years after they first got samples for their repository, and there’s no indication the FBI did this kind of census of samples in Batelle (which had the one non-USAMRID sample that matched RMR-1029) or Dugway (from which Ivins’ precursor samples derived). And as Heine pointed out–and NAS did, too–since the FBI was completely dependent on the scientists to collect their samples, it meant that anyone trying to hide a sample could have done so easily.

A final challenge was that the repository collection process was based on the integrity of the individuals asked to provide samples. If the motive for the repository was to identify the source of the letter material, standards of custody of evidence would dictate that agents of the FBI should have obtained the samples. In most instances, holders of the material were asked to provide samples and send them in. The sender could have been the instigator and may not have complied with instructions, as the FBI alleges with respect to Dr. Ivins.

The FBI’s entire case against Ivins relied on their claim that the sample had to be the precursor to the attack anthrax based on process of elimination. But not only does FBI not have the record-keeping to prove they had accounted for all samples nor the proof that their repository represented a valid cross-sample, they’ve got little to prove that the differences between the anthrax used in the attacks could have been introduced in Ivins’ lab, as they suggest they were.

2. Ivins was one of a handful of scientists with capability to make the anthrax and he had access to the equipment–a lyophilizer–to make the spores

NAS refuted the claim that you could conclude anything about the scientific skill or equipment needed to produce the anthrax used in the attack.

The committee finds no scientific basis on which to accurately estimate the amount of time or the specific skill set needed to prepare the spore material contained in the letters. The time might vary from as little as 2 to 3 days to as much as several months. Given uncertainty about the methods used for preparation of the spore material, the committee could reach no significant conclusions regarding the skill set of the perpetrator.

This is again the problem of pointing to Ivins’ flask as a precursor without explaining how that precursor anthrax was prepared to result in the two different samples used in the attack. And while FBI points to the lyophilizer, they don’t consider things like the equipment needed (perhaps a fermenter) to produce the volume used in the attack, nor the skills and equipment to introduce things like silicon into the samples. These issues might disqualify Ivins just as readily as a lyophilizer would disqualify other scientists.

3. In the days leading up to the mailings, Ivins spent an unusual amount of time alone in his lab at night, giving him the opportunity to make the anthrax

This gets back into the problem of explaining how Ivins’ sample was purportedly prepared. As noted, NAS’ experts gave the range of time it would take to prepare this sample as between 2 days and several months.

As a result of the different possible production schemes that might have yielded product with the observed characteristics of the evidentiary materials, the committee finds that the time required for this work could be as little as 2 or 3 days to as much as several months. The differences are based on different estimates of the time required for propagation, purification, and drying, among other variables, as well as the state of the starting material.. In particular, it is not known whether some of the initial steps might have occurred well in advance of the letter attacks. The committee cannot resolve these distinctions because it had no information identifying a production method or the steps involved in production.

Even the guy in charge of this investigation, Edward Montooth, admits they don’t have the timeframe nailed down.

“We still have a difficult time nailing down the time frame,” he says. “We don’t know when he made or dried the spores.”

But the value of the evidence about Ivins spending time in his lab in the nights before the mailing window for the anthrax relies on the short end of this time frame: it assumes that Ivins made the anthrax in 3 or 8 day windows leading up to the two dates the anthrax was mailed.

If it turns out the anthrax prep took much longer–two months, for example–then the same lab records that are one of the most incriminating pieces of evidence given the FBI’s original theory would then work in reverse, showing that Ivins wasn’t in his lab during the key period needed to culture the attack anthrax.

4. Ivins acted guilty by, among other things, submitting a questionable sample of anthrax to the FBI

There are a number of key reasons FBI argues Ivins acted suspicious. A key one is that he gave a sample purported to be RMR-1029 in April 2002 that tested negative for the four morphological variations ultimately used to ID the anthrax.

As a threshold matter, NAS argues that the proof this was a doctored sample is weaker than the FBI maintains, partly because the FBI’s statistics were off and partly because it didn’t account for problems with the FBI’s own repository protocol or aspects of colonies.

The genetic evidence that a disputed sample submitted by the suspect came from a source other than RMR-1029 was weaker than stated in the Department of Justice Amerithrax Investigative Summary.

That said, the chances of it being doctored are still significant.

But even assuming the later sample was doctored, there are a couple of other odd details about this. First, Ivins submitted a sample in February 2002 that, though it didn’t comply with the FBI’s sampling protocol, did ultimately test positive for the four morphological variations in question. Then, after being asked to resubmit, he submitted the questionable sample in April, which tested negative for the morphological variations. Ultimately, in 2004, after discovering USAMRID’s record-keeping was a clusterfuck, they found additional samples that Ivins should have turned over as well as RMR 1029.

But if Ivins submitted a dummy sample in April 2002, then why did he submit what appears to be a good sample of RMR-1029 in February 2002?

5. Ivins was mentally ill

Ivins apparently was mentally instable. But I’m not sure how you distinguish between someone who was mentally ill and therefore tried to kill a bunch of people and someone who responded to being in the middle of a WMD attack who therefore reacted in unpredictable fashion that appeared suspicious?

6. Ivins has a history of driving places to mail things as well as writing letters to politicians and the press

There are two parts to this argument: an explanation for why Ivins would have driven to Princeton to mail the anthrax, and an explanation for why Ivins allegedly chose to send Daschle and Leahy, in particular, deadly anthrax.

The former invokes the whole theory about Ivins trying to attract attention from the sorority KKG. That whole story was pretty shaky from the start, not least because it doesn’t explain why Ivins would drive to Princeton to mail anthrax from a mailbox somewhat close to a KKG office, rather than sending it from closer to DC from a place directly associated with a KKG house. The psychological profile of Ivins did add one potential explanation for this: “Princeton represented his father,” who had mocked Ivins when he was a child. Whatever. I still find the whole KKG theory a big stretch, particularly given that the FBI hasn’t figured out how Ivins made the anthrax in the first place.

But then there’s the question of why he would send anthrax to Leahy and Daschle. The FBI affidavit supporting search warrants suggests that Ivins targeted them, in part, because they were pro-choice.

In 2001, members of the Catholic pro-life movement were known to be highly critical of Catholic Congressional members who voted pro-choice in opposition to the beliefs of the Catholic Church. Two of the more prominent members of Congress who fell in this category were Senator Tom Daschle, then Senate Majority Leader; and Senator Patrick Leahy, Chairman of the Senate Judiciary Committee, both recipients of the 2001 anthrax mailings.

Ivins’ will–which threatened to give a third of his estate to Planned Parenthood if his wife prevented him from being cremated–pretty much refuted that as a motivating factor. The psychological profile did refer to a letter Daschle sent DOD in June 2001 raising concerns about the anthrax vaccine.

They also suggest that Ivins wanted to press for an anthrax vaccine–a theory which would incriminate a number of other people in government to a much greater degree, and a theory which–as Shachtman writes–doesn’t have much evidence as far as Ivins.

The Justice Department asserts in its investigative summary that Ivins mailed the letters to gin up support for an anthrax vaccine, offering a few ambiguous emails and comments to friends and investigators as proof. If there’s any further, credible evidence to support this notion, Wired couldn’t find it in the thousands of pages of case documents released by the government or in the hours of interviews conducted with the investigators. Montooth concedes it’s a placeholder rationale at best

All of these details–the KKG theory and the Daschle-Leahy theory–remain very very weak. At the very least, they suggest the FBI should have looked harder for accomplices to Ivins, which, having been confronted with a convenient suicide in 2008, they appear not to have done.

7. Franking evidence shows the envelopes used in the attacks could have been purchased in Frederick, MD

The franking evidence, which shows that the envelopes used in the attacks came from a particular print run, is some of the stronger evidence in this case.

But the franking evidence doesn’t lead exclusively to the Frederick, MD, post office. Envelopes from that print run might have been sent to a whole slew of MD and VA post offices serviced by the Dulles Stamp Distribution Office, including at a minimum Cumberland, Elkton, Glen Burnie, Lutherville, Severna Park, and Galena, MD, and Machipongo, Arlington, and Fairfax, VA. In other words, this evidence, while it might include Ivins, would also include a great many other possible suspects.

And all of this lacks anything that ties Ivins specifically to the Princeton mailboxes, like anthrax residue in his car or fibers from his car in the envelopes.

At a minimum, this suggests the FBI would have had a hard time proving their case against Ivins (just the abysmal record-keeping of USAMRID alone would have introduced a great deal of doubt).

The big problem, though, is that the interim step in this case–the process by which something genetically like RMR-1029 had the significant changes introduced as it was turned into a murder weapon–remains significantly unexamined. That’s precisely the area where new questions are being asked. Or more accurately, questions that were asked in 2008 remain unanswered.

That, and the guy who has been refusing a more broadbased examination of the FBI’s work on this case for years is about to get two more years as FBI Director.

That’s a very good question, Congressman Nadler:

On September 16, 2008, the House Committee on the Judiciary, on which I sit, conducted an oversight hearing of the FBI at which you testified. At that hearing, I asked you the following: “[W]hat was the percentage of weight of the silicon in the powders that your experts examined?” You testified that you would get back to me. On November 26, 2008, I sent to you this follow-up question in writing: “What was the percentage of weight of the silicon in the powder used in the 2001 anthrax attacks?”

On April 17, 2009, then-Acting Assistant Attorney General M. Faith Burton, of the DOJ Office of Legislative Affairs, responded with the following answer:

FBI Laboratory results indicated that the spore powder on the Leahy letter contained 14,470 ppm of silicon (1.4%). The spore powder on the New York Post letter was found to have silicon present in the sample; however, due to the limited amount of material, a reliable quantitative measurement was not possible. Insufficient quantifies of spore powder on both the Daschle and Brokaw letters precluded analysis of those samples.

A February 15, 2011 report by the National Academy of Sciences (“NAS report”), in which the NAS included its review of the FBI’s data and scientific analysis in the anthrax investigation, raises three questions about this DOJ/FBI response to me. First, with respect to the anthrax on the letter sent to Senator Leahy, the NAS report shows on pages 66 and 67 (Table 4.4) that the silicon content found by the FBI was 1.4% in one sample and 1.8% in a second sample. Why were both figures not provided to me in response to my questions?

Second, the NAS report shows on pages 66 and 67 (Table 4.4) that the FBI found the silicon content in the New York Post letter anthrax to be 10% when the bulk material was measured by mass and 1-2% when individual spore coats were measured by mass per spore. Why was neither piece of data provided to me in response to my questions?

Third and finally, the NAS report raises questions about the appropriateness of the measurements taken of the anthrax on the letter to the New York Post. Specifically, on page 77, the NAS report says:

ICP-OES analysis indicated a silicon content of the bulk New York Post letter material of 10 percent by mass, while SEM-EDX performed by SNL demonstrated silicon in individual spore coats at a level corresponding to 1 percent by mass per spore. At the January 2011 meeting, the FBI attributed this difference to a limited amount of sample available (only one replicate was performed for ICP-OES analysis) and the heterogeneous character of the New York Post letter. An explanation based on the heterogeneous character implies that the specific samples analyzed were not representative of the letter material. In such a case, additional samples should have been analyzed to determine representativeness. If such data exist, they were not provided to the committee. Lacking this information, one cannot rule out the intentional addition of a silicon-based substance to the New York Post letter, in a failed attempt to enhance dispersion. The committee notes that powders with dispersion characteristics similar to the letter material could be produced without the addition of a dispersant.

Were additional samples tested to determine the extent to which the ones examined were representative of the New York Post letter material? If not, why not? And, if the FBI does not have this data, how would you respond to the NAS that, without it, one cannot rule out the possibility that silicon was intentionally added? If the FBI did do these additional tests, please provide the resulting data to me and NAS.

As I noted the other day, the questionable silicon data seems to have come from the same lab that claims to have found proof that the 9/11 hijackers tested positive for anthrax, too.

Congratulations to Kathy Hochul, who rode a disciplined campaign against Paul Ryan’s plan to privatize Medicare to victory in a Republican Congressional district tonight.

There’s a lesson here. Republicans voted on Ryan’s shitty plan. Which allowed Democrats to highlight how shitty it, and Republicans, are. And … Victory!!!

Obama, however, seems to be missing that lesson:

I want to extend my congratulations to Congresswoman-elect Kathy Hochul for her victory in New York’s 26th Congressional District. Kathy and I both believe that we need to create jobs, grow our economy, and reduce the deficit in order to outcompete other nations and win the future.  Kathy has shown, through her victory and throughout her career, that she will fight for the families and businesses in western New York, and I look forward to working with her when she gets to Washington.

One corner of real America just made it very clear they don’t want anyone messing with Medicare. And yet Obama’s off negotiating just that, rather than making it clear that Republicans want to hold Medicare hostage along with the rest of the government.

Ron Wyden and Mark Udall have an amendment to the PATRIOT Act that makes it clear the Obama Administration briefed the Intelligence Committees in February on an intelligence collection program, conducted under PATRIOT authority, that interprets the language of the law so broadly as to mean something it really doesn’t say. The amendment reads, in part,

(6) United States Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws, and should not describe the execution of these laws in a way that misinforms or misleads the public;

(7) On February 2, 2011, the congressional intelligence committees received a secret report from the Attorney General and the Director of National Intelligence that has been publicly described as pertaining to intelligence collection authorities that are subject to expiration under section 224 of the USA PATRIOT Act (Public Law 107–56; 115 Stat. 295); and

(8) while it is entirely appropriate for particular intelligence collection techniques to be kept secret, the laws that authorize such techniques, and the United States Government’s official interpretation of these laws, should not be kept secret but should instead be transparent to the public, so that these laws can be the subject of informed public debate and consideration.

(b) REPORT.—Not later than 60 days after the date of the enactment of this Act, the Attorney General shall publish in the Federal Register a report—

(1) that details the legal basis for the intelligence collection activities described in the February 2, 2011, report to the congressional intelligence committees; and

(2) that does not describe specific intelligence collection programs or activities, but that fully describes the legal interpretations and analysis necessary to understand the United States Government’s official interpretation of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

In short, Eric Holder and James Clapper came to SSCI on February 2 and told the committee about a way the government was broadly interpreting FISA and the powers expiring next Monday.

This Amendment would require Holder to admit to what the government was doing, in broad terms, without revealing what kind of surveillance was going on.

This probably pertains to the Section 215 authorities; we know they’re using it to construct databases of people who buy hydrogen peroxide and acetone. But I would bet there’s a more generalized collection program that results in more databases they can mine. A very good guess would be using geolocation data from cell phones to collect information on the whereabouts of Americans.

Don’t you think the time to press for such admissions is before this shit gets re-upped for another four years?

Update: Apparently this isn’t even among the amendments Reid is pulling parliamentary maneuvers to avoid even discussing. So I guess this is just an effort to wave a flag saying, “PATRIOT isn’t what it says it is?”

I sort of get the feeling that the entire legislative effort on cyberwar is going on in a classified annex.

Nevertheless, even from what we can see, we’ve got a dispute. As I noted a few weeks back, The House Armed Services Committee included a provision that explicitly granted DOD the power to conduct clandestine cyberwar activities in some situations, but required quarterly briefing on such activities.

SEC. 962. MILITARY ACTIVITIES IN CYBERSPACE.

(a) AFFIRMATION.—Congress affirms that the Secretary of Defense is authorized to conduct military activities in cyberspace.

(b) AUTHORITY DESCRIBED.—The authority referred to in subsection (a) includes the authority to carry out a clandestine operation in cyberspace—

(1) in support of a military operation pursuant to the Authorization for Use of Military Force (50 U.S.C. 1541 note; Public Law 107–40) against a target located outside of the United States; or

(2) to defend against a cyber attack against an asset of the Department of Defense.

(c) BRIEFINGS ON ACTIVITIES.—Not later than 120 days after the date of the enactment of this Act, and quarterly thereafter, the Secretary of Defense shall provide a briefing to the Committees on Armed Services of the House of Representatives and the Senate on covered military cyberspace activities that the Department of Defense carried out during the preceding quarter.

(d) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Secretary of Defense to conduct military activities in cyberspace.

That seemed to be a response to earlier claims by DOD that it didn’t have to brief such things to Congress.

As it happens, that’s another of the sections of the Defense Authorization to which the Administration objects (though they did not issue a veto threat on it).

Military Activities in Cyberspace: The Administration agrees that appropriate military operations in cyberspace are a vital component of national security, but objects to Section 962. The Administration has concerns about this provision and wants to work with Congress to ensure that any such legislation adds clarity and value to our efforts in cyberspace.

The choice by administrations to conduct cyberwar under DOD’s auspices rather than CIA’s as a way to avoid oversight is something that John Rizzo (!) warned about. And the bill has already given the Administration an extra three months of secret cyberwar before it has to start briefing Congress compared to the original bill.

What kind of war is Obama waging in cyberspace it refuses to tell Congress about?

The Administration just issued its official position on the House Armed Services Committee Defense Authorization bill. In it, Obama issues veto threats on several issues, including an extra engine for the Joint Strike Fighter and limits on START nuclear reductions (but not, it must be said, on any delay of DADT repeal, though he did oppose efforts to delay repeal).

Most interesting, though, is the veto threat on the forever war (see Ben Wittes for a good summary of most of these sections):

Detainee Matters:  The Administration strongly objects to section 1034 which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards.  At a minimum, this is an issue that merits more extensive consideration before possible inclusion.  The Administration strongly objects to the provisions that limit the use of authorized funds to transfer detainees and otherwise restrict detainee transfers and to the provisions that would legislate Executive branch processes for periodic review of detainee status and regarding prosecution of detainees.  Although the Administration opposes the release of detainees within the United States, Section 1039 is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests.  It unnecessarily constrains our Nation’s counterterrorism efforts and would undermine our national security, particularly where our Federal courts are the best – or even the only – option for incapacitating dangerous terrorists.  For decades, presidents of both political parties – including Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush – have leveraged the flexibility and strength of our Federal courts to incapacitate dangerous terrorists and gather critical intelligence.  The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts – a powerful tool that must remain an available option.  The certification requirement in section 1040, restricting transfers to foreign countries, interferes with the authority of the Executive branch to make important foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur.  The Administration must have the ability to act swiftly and to have broad flexibility in conducting its negotiations with foreign countries.  Section 1036 undermines the system of periodic review established by the President’s March 7, 2011, Executive Order by substituting a rigid system of review that could limit the advice and expertise of critical intelligence and law enforcement professionals, undermining the Executive branch’s ability to ensure that these decisions are informed by all available information and protect the full spectrum of our national security interests.  It also unnecessarily interferes with DoD’s ability to manage detention operations.  Section 1042 is problematic and unnecessary, as there already is robust coordination between the Department of Justice, the Department of Defense, and the Intelligence Community on terrorism-related cases, and this provision would undermine, rather than enhance, this coordination by requiring institutions to assume unfamiliar roles and could cause delays in taking into custody individuals who pose imminent threats to the nation’s safety.  If the final bill presented to the President includes these provisions that challenge critical Executive branch authority, the President’s senior advisors would recommend a veto.

While I would have preferred a full-throated rejection of the forever war, this is a neat approach that, given realistic assumptions of what we can expect from Obama, pushes back in an interesting fashion.

What the Administration has done is list five different provisions:

• 1034: redefining the AUMF to be a forever war (and also giving the President the power to detain people in the forever war)
• 1039: barring the use of funds for civil trials
• 1040: imposing certification requirements on the Secretary of Defense to transfer detainees
• 1036: codifying an indefinite detention system, with fewer detainee rights than Obama’s own EO calls for
• 1042: requiring the Attorney General ask permission from the DNI and Secretary of Defense before prosecuting “terrorist offenses” in civilian courts

And then said, generally, if “these provisions that challenge critical Executive branch authority” remain in the bill, his advisors would recommend a veto.

Of course, on its face, the forever war section doesn’t “challenge critical Executive branch authority,” unless you argue that by granting the President the ability to constantly redefine this war, you’re infringing on his authority to do so without a grant of such authority from Congress. That’s not how I understand the Constitution, but you can never be too sure anymore about the people who run our war machines.

Nevertheless, Obama is including that with a bunch of other restrictions (some of which passed in similar form on other laws, to which he responded with a non-signing statement signing statement, and some of which are new), so as to be able to say his opposition is grounded in separation of power concerns rather than the judgment that Congress shouldn’t mandate a forever war the President hasn’t asked for.

Again, I’d rather have a loud denunciation of the forever war. I’d rather have a clear argument about how we will start moving away from a war footing in our opposition to terrorism.

But I’m not going to get that, so I’ll take this graceful veto threat instead.

We’re on our second near-record tornado this year and summer hasn’t even started. Joplin, MO and Birmingham, AL have been especially hard hit, but much of flyover country is set to spend the summer hunkering down to hide from truly horrifying weather.

Yet Eric Cantor wants to hold disaster relief hostage to debt hysteria. (h/t Steve Benen)

The No. 2 House Republican said that if Congress doles out additional money to assist in the aftermath of natural disasters across the country, the spending may need to be offset.

House Majority Leader Eric Cantor (R-Va.) said “if there is support for a supplemental, it would be accompanied by support for having pay-fors to that supplemental.”

The stance is all the more heartless given that most rational people believe there’s a tie between the increasingly volatile weather and climate change. That is, it’s not just that Eric Cantor wants to deprive fly-over country of any government assistance in the face of freak natural disaster, he’s demanding that communities suffering the consequences of climate change also pay the bill to clean up after climate change-caused disaster. He’s asking already-devastated communities to pay for our collective addiction to oil (and coal).

One obvious solution might be to impose a carbon tax at least big enough to pay for such disasters, which are likely to become more and more common.

But these same Republicans that want Joplin to pay the price of getting flattened by tornadoes are also heading in the wrong direction. They want debt reduction, they claim. But they also refuse to cut subsidies to the same carbon industry contributing so much to climate change.

We have enough money, apparently, to keep paying off the most profitable corporations in the world. But not enough to help our neighbors who pay the physical, emotional, and economic price for those corporations’ profits.

The DNC and Midwestern state Democratic Parties are rolling out an extravaganza today, using the occasion of Chrysler paying back some of its federal loans to mock GOP presidential candidates for opposing the auto bailout.

The DNC had a press conference with Jennifer Granholm, Ted Strickland, and Bob King to mock people like Mitt, T-Paw, Gingrich, and Huntsman. “Many of these naysayers now want to be President,” Strickland said.

MI posted a release (though apparently didn’t care enough send it to members):

Chrysler is reportedly set to announce that it will repay $5.9 billion in loans to the U.S. government and American taxpayers. Chrysler’s good news comes on the heels of a report that Chrysler made its first quarterly profit since emerging from structured bankruptcy reorganization.  Chrysler posted a 22.5% increase of sales in April compared to the same month last year and first quarter net income of $116 million, marking a remarkable turnaround for Chrysler and the domestic auto industry.“This is a great sign for Chrysler communities across the state and another positive sign of the recovery of manufacturing here in Michigan,” said Michigan Democratic Party Chair Mark Brewer. “Though it was unpopular in many parts of the country, President Obama and Democrats did what was needed to save the more than 1.4 million jobs that the American auto industry supports. If the President hadn’t acted to prevent Chrysler and GM from shutting their doors permanently, the entire state could have seen further economic disaster.”

After receiving loan packages and emerging from structured bankruptcy reorganization, Chrysler and General Motors are both hiring again and operating at a profit. Right here in Michigan, more than 12,100 manufacturing and auto dealer jobs have been created in the last year.

IN posted a release and sent it to DFH journalists from adjoining states:

In response to today’s news that Chrysler has repaid $5.9 billion in loans to the U.S. government and American taxpayers, Indiana Democratic Party Chair lauded President Obama for his strong economic leadership and success taking action to prevent the collapse of America’s domestic auto industry.Parker also said Indiana Republicans who voted against or publicly opposed Obama’s auto plan now find themselves on the wrong side of history.

“Indiana’s auto industry was hard hit by the recent economic crisis, and this is a great sign both for Chrysler and Hoosier workers,” Parker said. “President Obama’s plan wasn’t popular in many parts of the country, but Democrats did what was necessary to save the more than 1.4 million jobs that the American auto industry supports. Without that kind of strong leadership, many of our communities would have suffered economic disaster.”

Chrysler’s good news comes on the heels of a report that the company made its first quarterly profit since emerging from structured bankruptcy reorganization. Chrysler posted a 22.5% increase of sales in April compared to the same month last year and first quarter net income of $116 million, marking a remarkable turnaround for Chrysler and the domestic auto industry.

After receiving loan packages and emerging from structured bankruptcy reorganization, Chrysler and General Motors are both hiring again and operating at a profit.

Parker noted that Indiana Gov. Mitch Daniels and U.S. Rep Mike Pence, who is seeking the Republican gubernatorial nomination, both opposed the President’s auto plan.

(I haven’t seen one from OH yet, but they sent this wonderfully catty release earlier this month.)

Update: Here’s Obama’s statement (which lacks any “I told you sos”):

Chrysler’s repayment of its outstanding loans to the U.S. Treasury and American taxpayers marks a significant milestone for the turnaround of Chrysler and the countless communities and families who rely on the American auto industry. This announcement comes six years ahead of schedule and just two years after emerging from bankruptcy, allowing Chrysler to build on its progress and continue to grow as the economy recovers. Supporting the American auto industry required making some tough decisions, but I was not willing to walk away from the workers at Chrysler and the communities that rely on this iconic American company. I said if Chrysler and all its stakeholders were willing to take the difficult steps necessary to become more competitive, America would stand by them, and we did. While there is more work to be done, we are starting to see stronger sales, additional shifts at plants and signs of strength in the auto industry and our economy, a true testament to the resolve and determination of American workers across the nation.

But there’s something missing, perhaps because the DNC is too focused on national races and doesn’t appear to know much about the local industry. The DNC is focused on the GM and Chrysler headlines, not so much the suppliers, where the bulk of the jobs are. More importantly, the Democrats as a whole don’t seem to be cataloging the many examples where down-ticket Republicans are claiming credit for government investments in new technology that are just now paying off in jobs.

The problem is particularly acute here in W MI, home of some of the GOP’s biggest evangelists claiming business simply needs government to get out of the way. But it’s also home to a good number of factories–including, increasingly, clean energy factories supported by Granholm credits and federal stimulus dollars–that rely on government funding.

As Wizardkitten ranted wonderfully earlier this months, GOPers routinely show up to claim credit for these plants, even while ignoring that Democratic investments rather than GOP austerity made the plants possible.

Governor Snyder, who spent a campaign trash-talking both the state economic development team and the tax credits that are now growing a clean energy economy here in Michigan, not only used an advanced battery plant created with state incentives and stimulus money to introduce the Republican ticket last August, now has given his “Reinventing Michigan” award to another Governor Granholm/MEDC/Recovery Act success story – and tries to play it off as a victory surrounding his political talking points.

[snip]

Pete Hoekstra also tried to turn Energetx into a political football during his failed 2010 gubernatorial campaign, at the time holding a press conference to both celebrate the jobs and denounce the credits that brought them here – a move that forced CEO Slikkers to defend the company and the state economic development team. Awkward.

Now, Snyder has given them a shiny award, and uses the occasion to push his simplistic trickle-down plan that probably would have had the company looking at Indiana or some other state for incentives in the first place. The hubris is amazing.

Both at a national and a regional level, it seems to me, these are the jobs the DNC ought to be bragging about. Nationally, few people understand how stimulus dollars invested in new technology that should help the Big 2.5 compete in the near future. I hear a lot of people badmouthing the auto bailout because they don’t understand how significant a shift GM, at least, has made on efficiency; but this cool new tech ought to make folks on the coasts happier about the money spent.

And pointing to these factories at a regional level would highlight the good, new news. Michiganders, for one, are acutely aware that MI needed new technology, and Granholm worked her ass off to attract it. That effort is just now coming to fruition.

More importantly, we’re waging an ideological battle here in the Midwest, as a bunch of GOP hacks try to restructure the Midwest with policies that will strip the region of the things we do well (in many cases, like educating our children). The national party might like to keep it a secret that government investment actually works, particularly in new industries. But if it keeps that story a secret, we’re going to lose the ideological battle for the Midwest.