The ACLU Begins to Win Back Our Country

If you haven’t given to the ACLU in a while, here’s the donate button. The ACLU (with some help) has scored some important wins this week, starting with today’s decision that National Security Letters are unconstitutional.

The ACLU said it was improper to issue so-called national securityletters, or NSLs — investigative tools used by the FBI to compelbusinesses to turn over customer information — without a judge’s orderor grand jury subpoena. Examples of such businesses include Internetservice providers, telephone companies and public libraries.

Yusill Scribner, a spokeswoman for the U.S. attorney’s office, said prosecutors had no immediate comment.

JameelJaffer, who argued the case for the ACLU, said the revised law hadwrongly given the FBI sweeping authority to control speech because theagency was allowed to decide on its own — without court review –whether a company receiving an NSL had to remain silent or whether itcould reveal to its customers that it was turning over records.

Here’s the decision for your reading pleasure.

And just the other day, a different judge ruled that DOJ had to provide specifics about the documents it was refusing to turn over in FISA. Maybe the ACLU will pull of a hat trick and get the FISC rulings from earlier Read more

Republicans Back Sound Minimization Oversight

I’m watching HJC’s first hearing on FISA Amendment, and I think the Republicans may be giving us a superb opportunity to address one of the big problems of the FISA Amendment.

You see, the Republicans have no fucking clue that the reason McConnell chose the Republican bill over the Democratic one is because it removed all oversight over minimization.

Thus far–and at 12:04 we’ve only had questions from 3 Republicans–Dan Lungren has already said the way to deal with concerns about civil liberties is to ensure the minimization procedures protect Americans. And the designated Republican shill, Robert Turner, said precisely the same thing.

Since the absence of any way to do that is one of the big defects with the current bill, I propose we use these public Republican comments to push a revision of the minimization oversight to ensure the Administration can’t sneak into my underwear drawer.

Goldsmith’s PR Campaign Begins

And so the man who began a silent revolt against BushCo’s shredding of the Constitution begins to speak. The NYT has a long Magazine article on Jack Goldsmith reviewing the revolt and previewing Goldsmith’s book, due to come out on September 17. The article provides details we’ve known in sketchy form before–like how the key decisions, prior to Goldsmith’s arrival, were made by Cheney and Addington bypassing normal channels in the Department of Justice and instead developing these opinions with a small cabal.

In the Bush administration, however, the most important legal-policy decisionsin the war on terror before Goldsmith’s arrival were made not by theOffice of Legal Counsel but by a self-styled “war council.” Thisgroup met periodically in Gonzales’s office at the White House or Haynes’soffice at the Pentagon. The members included Gonzales, Addington, Haynes andYoo. These men shared a belief that the biggest obstacle to a vigorous responseto the 9/11 attacks was the set of domestic and international laws that arosein the 1970s to constrain the president’s powers in response to the excessesof Watergate and the Vietnam War. (The Foreign Intelligence Surveillance Actof 1978, for example, requires that executive officials get a warrant beforewiretapping suspected enemies in the United States.) The head of the Officeof Legal Counsel in the first years of the Bush administration, Jay Bybee,had little experience with national-security issues, and he delegated responsibilityfor that subject matter to Yoo, giving him the authority to draft opinionsthat were binding on the entire executive branch. Yoo was a “godsend” toa White House nervous about war-crimes prosecutions, Goldsmith writes in hisbook, because his opinions reassured the White House that no official who reliedon them could be prosecuted after the fact. But Yoo’s direct access toGonzales angered his boss, Attorney General John Ashcroft, according to Goldsmith.

It depicts the compartmentalization that Cheney and Addington used to make sure they could ignore the country’s laws.

Arrest John Boehner

The government’s primary strategy, in responding to the ACLU’s request for release of the FISC rulings disallowing parts of the Administration’s domestic wiretapping program, is to argue that the ACLU doesn’t have standing to ask for the documents. Only an aggrieved person can ask for such rulings, and even then, the aggrieved person cannot see the orders themselves that authorize domestic spying.

But there are two problems with that, it seems. First, the administration simply ignores that opinions are presumptively public, and therefore doesn’t address the historic role courts have played in whether they can publish their own orders. Further, the examples the Administration cites for refusing to release the FISC orders are cases in which the FISC approved wiretapping–not where it ruled wiretaps illegal.

Congress, which recognized the necessity for strict secrecy in matters handled by the FISC, specifically provided that the FISC operates under special security measures, and that FISA orders and applications are not to be disclosed absent specific judicial findings. See 50 U.S.C. 5 1803(c) ("application made and orders grantedlI] shall be maintained under security measures"); id. § 1806(f) (FISA orders, applications and related materials may be disclosed by a reviewing court in a criminal case "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance"); FISC R. Pro. 3 (FISC must comply with 9 1803(c), 5 1822(e), and Executive Order 12,958 governing classification of national security information).

The government cites examples where the government’s application was granted, not, as in this case, where it was denied. There’s no question–the order in question was deemed illegal.

The other problem is that, if the materials requested are as classified as the government claims, then John Boehner should be prosecuted for leaking classified information. The government argues that Alberto Gonzales’ revelations about the FISC orders were authorized, but it does not say whether Tony Snow’s, Mike McConnell’s, and John Boehner’s revelations were. And it bases its discussion of the limited release solely on that Gonzales reference.

How to Spike an Investigation

This WSJ article–which relies on Debra Wong Yang and George Cardona as sources–suggests that the Jerry Lewis investigation has been stalled because of staffing shortages in the USA Office.

Overall, funding for the offices has grown well below the rate ofinflation. As a result, "fewer cases were getting charged and biggerinvestigations were taking longer because there weren’t enoughprosecutors to do them," says Debra Yang, who stepped down in October2006 as the U.S. attorney in Los Angeles.

[snip]

In Los Angeles, a federal criminal investigation of Rep. Jerry Lewis, aCalifornia Republican, stalled for nearly six months due to a lack offunds, according to former prosecutors. The lead prosecutor on theinquiry and other lawyers departed the office, and vacancies couldn’tbe filled. George Cardona, the interim U.S. attorney in Los Angeles,declined to comment on specific cases but confirmed that lack of fundsand unfilled vacancies caused delays in some investigations.

But the story the article actually tells is that the investigation got "stalled" because of the departure of existing prosecutors, not the slow hiring of new ones.

August 24

The WaPo provides more details on an investigation I’m rather interested in:

Fine’s office has also separately expanded a probe into whether seniorGonzales aides improperly considered partisan affiliations whenreviewing applicants for nonpolitical career positions. As part of thatinquiry, Fine sent hundreds of questionnaires in the past week to former Justice Department job applicants. [my emphasis]

Here’s the questionnaire and the cover letter (and kudos to the WaPo for posting both).

Paul Kane actually does good bloggy work on extracting the content of the questionnaire. As Kane points out, the questionnaire asks about Monica Goodling’s questions, but also Kyle Sampson, Jan Williams, and Angela Williamson. Williamson seems to have been in charge of logistics in OAG in 2005 and was cc’ed on a lot of the emails pertaining to Tim Griffin’s hiring in DOJ. Jan Williams was OAG’s White House Liaison just before Monica took the position; in a response to a Waxman request, DOJ revealed that it does not have paper copies of her files from her tenure at the position.

As Kane points out, the questionnaire asks applicants if anyone from the White House sat in on interviews. The questionnaire also tracks attendance of people from the Deputy Attorney General’s office (remember–Sampson had tried to take hiring power away from Comey, and they institutionalized such a practice with the AG delegation in March 2006). In addition to questions on political affiliation (of which one asks about "your position on the war on terror"), the questionnaire asks about questions pertaining to religious beliefs, sexual orientation, adultery, abortion, same-sex marriage, and any other unusual questions.

Now, frankly, I’m a little disappointed that it has taken three months since Monica admitted "crossing the line" in her testimony, four months since OIG first started investigating this, and five months since I first noted Schumer’s hints about Monica’s politicization of the hiring process. Though the reference to an expansion of the investigation perhaps means that Fine has now established that Monica was not the only one asking these questions–if all four people about whom he asks were asking political questions of job candidates, then it suggests that someone was directing them to do so.

Which gets into the interesting point about timing. The date on Fine’s letter is August 24–the same day that Alberto Gonzales resigned. I’ve suggested before that the Administration is immunizing itself from big scandal by having those who committed Civil Hatch violations resign. Even if they are found guilty, they cannot be punished. And Gonzales went on the very day this investigation expanded.

But here’s the other question about timing. The letter asks for details about interviews going back to January 1, 2004. Meaning, Fine suspects this politicization precedes the Alberto Gonzales at DOJ.

The Inspector General

I noted the other day that Pat Leahy had sent a letter to Brad Schlozman asking for his overdue homework. What I didn’t note in the post–but did in comments elsewhere–was the carbon copy line:

cc: The Honorable Alberto Gonzales
      The Honorable Glen Fine

In comments where I mentioned this, I suggested this reflected a belief on Leahy’s part that the Inspector General was a co-participant in his effort to hold real investigations into the Bush Administration (as to the cc for Gonzales? Dunno–but that was the day before Gonzales resigned).

That suggestion is born out by the letter Fine sent to Leahy today, reassuring Leahy (or, more importantly, signaling to others) that the direction of his investigation includes an assessment of whether Alberto Gonzales perjured himself on multiple occasions.

The Iglesias Cover-Up, Again

Most people who linked to Isikoff’s latest did so to note that Jack Goldsmith will testify before the Senate Judiciary Committee in September.

The Senate Judiciary Committee, for example, has already planned ahearing next month featuring the first public testimony of formerOffice of Legal Counsel chief Jack Goldsmith. A one-time administrationstalwart, he became convinced that Gonzales and other administrationofficials were breaking the law in eavesdropping on conversations ofU.S. residents without judicial warrants, according to multiple formerdepartment officials.

Well, I’m glad it only took Isikoff two months to get around to the "who what why when where" details of this story.

But I’m interested in a different detail. Isikoff relies on one named source–David Iglesias–and two unnamed sources in his story. The first of those had this to say:

The investigation (headed by the department’s respected inspectorgeneral, Glenn Fine) has already turned up new documents and e-mailsabout the purge that have not been made public and that areinconsistent with previous Justice Department statements, according toa key witness who was recently interviewed by the investigators and wasshown the material. (The witness asked not to be publicly identifiedwhile the probe is ongoing.)

Not that Iglesias would be a "key witness" or anything. Wait a minute …

Already, the House Judiciary Committee has revealed abundant evidence that there was a concerted cover-up of the reasons for Iglesias’ firing. Emails released earlier this month only added to the evidence. If I’m wild-arsed-guessing correctly that Iglesias is both Isikoff’s named–and unnamed–source, it suggests there is still more documentary evidence that the White House and DOJ worked together to hide the real reasons for Iglesias’ firing.

One more detail. Isikoff reaffirms–and this article supports–the fact that there is an ongoing Senate Ethics investigation into Domenici’s actions. Domenici sure seemed like he was happy that Gonzales had resigned.

Domenici was more tempered in his response. “The resignation ofAlberto Gonzales had become inevitable,” he said in a statement Monday.“His situation was a distraction to the Department of Justice and itsattempt to carry out its important duties.”

Domeniciadded that he looked forward to reviewing Bush’s as-yet unnamed nomineeto replace Gonzales “carefully and objectively.”

Then again, he has played dumb about his own involvement in this issue before. Lucky for Domenici that he and Bush had another opportunity to coordinate their stories on Monday, huh?

Schlozman’s Not Done

In my rush to leave town on Thursday, I missed this letter Pat Leahy sent to Brad Schlozman about his missing homework:

Dear Mr. Schlozman:

According to news reports, you have confirmed that you resigned last week from the Department of Justice. Yet, the Judiciary Committee is still waiting for your responses to written questions from Committee Members following your June 5 testimony at the Committee’s hearing on "Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?-Part V." These responses were due June 28, nearly two months ago.

In addition, during your appearance before the Committee, you testified about your preparation for the hearing, the unprecedented U.S. attorney replacements, the use of partisan considerations in career hiring, and your role as the interim U.S, Attorney and while at the Civil Rights Division in pressing certain cases in connection with recent elections. Your answers to questions made clear the importance of certain emails and other documents the Committee has still not received from the Department of Justice.

Your answers and these documents are especially important after you appeared to mislead the Committee and the public about your decision to file an election eve lawsuit in direct conflict with Read more

Random Thoughts on AGAG’s Demise

Just some random thoughts on AGAG’s resignation.

AGAG and Kim

There have been a number of people connecting Gonzales’ resignation with Rove’s (Cenk Uygur’s take and Sidney Blumenthal’s). I am much much more interested in the timing of DOJ Civil Rights Division head Wan Kim’s resignation. Here’s the chronology:

The week of August 13: Bradley Schlozman resigns 

August 23: Wan Kim resigns, apparently giving all of six day’s notice

August 24: Gonzales first offers his resignation to Bush

According to this NYT story,the whole Gonzales thing was rushed and sudden, and it all took placestarting the day after Kim was reported to have resigned.

A senior administration official said today that Mr. Gonzales, whowas in Washington, had called the president in Crawford, Tex., onFriday to offer his resignation. The president rebuffed the offer, butsaid the two should talk face to face on Sunday.

Mr. Gonzales andhis wife flew to Texas, and over lunch on Sunday the president acceptedthe resignation with regret, the official said.

On Saturday nightMr. Gonzales was contacted by his press spokesman to ask how thedepartment should respond to inquiries from reporters about rumors ofhis resignation, and he told the spokesman to deny the reports.

WhiteHouse spokesmen also insisted on Sunday that they did not believe thatMr. Gonzales was planning to resign. Aides to senior members of theSenate Judiciary Committee said over the weekend that they had receivedno suggestion from the administration that Mr. Gonzales intended toresign.

As late as Sunday afternoon, Mr. Gonzales himself wasdenying through his spokesman that he was quitting. The spokesman,Brian Roehrkasse, said Sunday that he telephoned the attorney generalabout the reports of his imminent resignation “and he said it wasn’ttrue — so I don’t know what more I can say.” [my emphasis]

Now, granted, unlike Kim, Gonzales gave three week’s notice. But the IG investigation of the Civil Rights Division is one (of several) that clearly has merit. And the politicization of the Civil Rights Division is one that was reported to have been ordered from on high. Is it possible that Gonzales was unwilling to further perjure himself to protect those who had politicized justice in this country?

All of which is not to say that Gonzales’ resignation was unrelated to Rove’s. But from the descriptions, it sounds like Gonzales’ wife had a major influence in his decision to resign. And something seems to have triggered her influence just in the last week.

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