The Commission on Warrantless Wiretapping and FISA Compromise

Apparently, while I’ve been on my Haggis and Beamish pilgrimage, Steny Hoyer has been busy brokering a compromise on FISA.

House Majority Leader Steny H. Hoyer (D-Md.) said Wednesday a FISA deal is “still in flux” but he described the latest developments as “promising” and said he hoped to have a solution soon.

[snip]

Sen. Kit Bond of Missouri, the top Republican on the Intelligence committee and one of the GOP’s top negotiators on the issue, said he met with Hoyer to discuss the issue on Monday, but did not say a breakthrough had been achieved.

“This is still a ping-pong match,” said Rep Jane Harman (D-Calif.), referring to the back and forth on the bill between the two chambers.

Harman said the latest developments signify "positive movement" on the bill and praised the job Hoyer has been doing on the issue.

Hoyer has been the strongest proponent of a compromise in the Democratic leadership and has worked hard to broker a deal on the issue. He often acts as an intermediary between liberal House Democrats unwilling to grant the telecom companies immunity and conservative Senate Republicans and the White House, both of whom will not accept any FISA bill without immunity.

Now, before I say what I’m about to say, let me reiterate that I believe we should not compromise. The telecoms broke the law when they accepted a letter authorizing the spying on Americans signed by the White House Counsel in lieu of the Attorney General in March 2004, and they should be held accountable for breaking the law.

That said, let me make some points about what basis for compromise Steny might be negotiating, and how such a compromise might be an avenue for transparency about the Administration’s (as distinct from just the telecom’s) lawbreaking with the illegal wiretap program.

Remember that Steny is not just the chief broker currently on FISA. He was also the chief broker on the House bill that passed on March 14. And that bill had one provision that seems to have been forgotten in recent discussions of compromise, but was clearly intended, even in March, to serve as the kernel of any future compromises: the call for a commission to investigate the illegal wiretap program.

Here’s what the bill–as passed by the House–calls for:

SEC. 301. COMMISSION ON WARRANTLESS ELECTRONIC SURVEILLANCE ACTIVITIES.

(a) Establishment of Commission- There is established in the legislative branch a commission to be known as the `Commission on Warrantless Electronic Surveillance Activities’ (in this section referred to as the `Commission’).

(b) Duties of Commission-

(1) IN GENERAL- The Commission shall–

(A) ascertain, evaluate, and report upon the facts and circumstances relating to electronic surveillance activities conducted without a warrant between September 11, 2001 and January 17, 2007;

(B) evaluate the lawfulness of such activities;

(C) examine all programs and activities relating to intelligence collection inside the United States or regarding United States persons that were in effect or operation on September 11, 2001, and all such programs and activities undertaken since that date, including the legal framework or justification for those activities; and

(D) report to the President and Congress the findings and conclusions of the Commission and any recommendations the Commission considers appropriate.

(2) PROTECTION OF NATIONAL SECURITY- The Commission shall carry out the duties of the Commission under this section in a manner consistent with the need to protect national security.

(c) Composition of Commission-

(1) MEMBERS- The Commission shall be composed of 9 members, of whom–

(A) 5 members shall be appointed jointly by the majority leader of the Senate and the Speaker of the House of Representatives; and

(B) 4 members shall be appointed jointly by the minority leader of the Senate and the minority leader of the House of Representatives.

(2) QUALIFICATIONS- It is the sense of Congress that individuals appointed to the Commission should be prominent United States citizens with significant depth of experience in national security, Constitutional law, and civil liberties.

(3) CHAIR; VICE CHAIR-

(A) CHAIR- The Chair of the Commission shall be jointly appointed by the majority leader of the Senate and the Speaker of the House of Representatives from among the members appointed under paragraph (1)(A).

(B) VICE CHAIR- The Vice Chair of the Commission shall be jointly appointed by the minority leader of the Senate and the minority leader of the House of Representatives from among the members appointed under paragraph (1)(B).

(4) DEADLINE FOR APPOINTMENT- All members of the Commission shall be appointed not later than 90 days after the date of the enactment of this Act.

(5) INITIAL MEETING- The Commission shall hold its first meeting and begin operations not later than 45 days after the date on which a majority of its members have been appointed.

(6) SUBSEQUENT MEETINGS- After its initial meeting, the Commission shall meet upon the call of the Chair.

(7) QUORUM- A majority of the members of the Commission shall constitute a quorum, but a lesser number may hold hearings.

(8) VACANCIES- Any vacancy in the Commission shall not affect its powers and shall be filled in the same manner in which the original appointment was made.

(d) Powers of Commission-

(1) HEARINGS AND EVIDENCE- The Commission or, on the authority of the Chair, any subcommittee or member thereof may, for the purpose of carrying out this section, hold such hearings and sit and act at such times and places, take such testimony, receive such evidence, and administer such oaths as the Commission, such designated subcommittee, or designated member may determine advisable.

(2) SUBPOENAS-

(A) ISSUANCE-

(i) IN GENERAL- The Commission may issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence relating to any matter that the Commission is empowered to investigate under this section. The attendance of witnesses and the production of evidence may be required from any place within the United States at any designated place of hearing within the United States.

(ii) SIGNATURE- Subpoenas issued under this paragraph may be issued under the signature of the Chair of the Commission, the chair of any subcommittee created by a majority of the Commission, or any member designated by a majority of the Commission and may be served by any person designated by such Chair, subcommittee chair, or member.

(B) ENFORCEMENT-

(i) IN GENERAL- If a person refuses to obey a subpoena issued under subparagraph (A), the Commission may apply to a United States district court for an order requiring that person to appear before the Commission to give testimony, produce evidence, or both, relating to the matter under investigation. The application may be made within the judicial district where the hearing is conducted or where that person is found, resides, or transacts business. Any failure to obey the order of the court may be punished by the court as civil contempt.

(ii) JURISDICTION- In the case of contumacy or failure to obey a subpoena issued under subparagraph (A), the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt of that court.

(iii) ADDITIONAL ENFORCEMENT- In the case of the failure of a witness to comply with any subpoena or to testify when summoned under authority of this paragraph, the Commission, by majority vote, may certify a statement of fact attesting to such failure to the appropriate United States attorney, who shall bring the matter before the grand jury for its action, under the same statutory authority and procedures as if the United States attorney had received a certification under sections 102 through 104 of the Revised Statutes of the United States (2 U.S.C. 192 through 194).

(3) CONTRACTING- The Commission may, to such extent and in such amounts as are provided in appropriations Acts, enter into contracts to enable the Commission to discharge its duties under this section.

(4) INFORMATION FROM FEDERAL AGENCIES-

(A) IN GENERAL- The Commission is authorized to secure directly from any executive department, bureau, agency, board, commission, office, independent establishment, or instrumentality of the Government documents, information, suggestions, estimates, and statistics for the purposes of this section. Each department, bureau, agency, board, commission, office, independent establishment, or instrumentality shall furnish such documents, information, suggestions, estimates, and statistics directly to the Commission upon request made by the Chair, the chair of any subcommittee created by a majority of the Commission, or any member designated by a majority of the Commission.

[snip]

(f) Security Clearances for Commission Members and Staff-

(1) EXPEDITIOUS PROVISION OF CLEARANCES- The appropriate Federal agencies or departments shall cooperate with the Commission in expeditiously providing to the Commission members and staff appropriate security clearances to the extent possible pursuant to existing procedures and requirements, except that no person shall be provided with access to classified information under this section without the appropriate security clearances.

(2) ACCESS TO CLASSIFIED INFORMATION- All members of the Commission and commission staff, as authorized by the Chair or the designee of the Chair, who have obtained appropriate security clearances, shall have access to classified information related to the surveillance activities within the scope of the examination of the Commission and any other related classified information that the members of the Commission determine relevant to carrying out the duties of the Commission under this section.

(3) FACILITIES AND RESOURCES- The Director of National Intelligence shall provide the Commission with appropriate space and technical facilities approved by the Commission.

[snip]

(i) Reports and Recommendations of Commission-

(1) INTERIM REPORTS- The Commission may submit to the President and Congress interim reports containing such findings, conclusions, and recommendations for corrective measures as have been agreed to by a majority of Commission members.

(2) FINAL REPORT- Not later than one year after the date of its first meeting, the Commission, in consultation with appropriate representatives of the intelligence community, shall submit to the President and Congress a final report containing such information, analysis, findings, conclusions, and recommendations as have been agreed to by a majority of Commission members.

(3) FORM- The reports submitted under paragraphs (1) and (2) shall be submitted in unclassified form, but may include a classified annex.

(4) RECOMMENDATIONS FOR DECLASSIFICATION- The Commission may make recommendations to the appropriate department or agency of the Federal Government regarding the declassification of documents or portions of documents.

Best as I can tell, here’s what this provision calls for: a commission, which will have a majority of members picked by the majority (that is, Democratic) party, with the ability to investigate not just the illegal wiretap program, but also,

all programs and activities relating to intelligence collection inside the United States or regarding United States persons that were in effect or operation on September 11, 2001, and all such programs and activities undertaken since that date, including the legal framework or justification for those activities

That is, not just the warrantless wiretap program, but the National Security Letters, CIFA, and anything else they’ve been doing. This commission is intended to be Church Committee II.

Furthermore, it includes several provisions designed to thwart Republican efforts to undermine it:

  • The staffers get security clearances (so Bush can’t refuse to give investigators security clearances, as he did with OPR at DOJ originally)
  • The Committee can subpoena people–and it can enforce the subpoena either in the city where the hearing is intended to be held, where the person lives or conducts business
  • The Committee has several means available to enforce subpoenas, both by contempt of court or referral to the US Attorney for the jurisdiction in question (with some flexibility on which jurisdiction you refer it to)
  • The Committee must submit an unclassified report (though a classified annex is permissible)

Now, this proposal is not perfect. I would include several more provisions. Most notably, I would make any immunity offered to telecoms contingent upon the formation of this commission, and the sworn, transcribed testimony of the first set of witnesses (which would include at least Bush, Cheney–testifying separately, Alberto Gonzales, Andy Card, Jim Comey, Jack Goldsmith, and David Addington). In addition, I’d put another set of requirements for the membership, ruling out those with a conflict (people like Jamie Gorelick, who not only served under Clinton when he was establishing some of the legal and technical framework for this program, but who has since gone on to lobby for the telecoms). In addition, I’d rule out Lee Hamilton, collaborationist extraordinaire and a close friend of Dick Cheney, by name; it is time to end Lee Hamilton’s career as the happy bipartisan who repeatedly gets rolled on these committees. I’d also require that there be some carry-over from staffers who have seen some of these documents on either the intelligence or judiciary committees; having such carry-over on the 9/11 Commission prevented the Administration from burying information it otherwise would have.

But let’s take the commission as currently described. Let’s assume, for the sake of argument, that it would be included in any compromise bill. What would it mean?

First and foremost, it might mean calling Republicans’ bluff. If this commission were included as is, I suspect BushCo might get awfully squirmy about whether their concern is–as they’ve been claiming for over a year–immunity. Or whether it is, in fact, saving Bush and Cheney’s own ass. I suspect, in fact, that the Republicans would reject such a compromise (or at least Bush would). Which would mean we could pass an extension to PAA, and go on to fix FISA under President Obama, with a much more heavily Democratic Congress.

But let’s suppose they accept this commission as part of a compromise solution. What are the trade-offs?

If we continue as is, and if the plaintiffs in the suits get by the problems of standing and state secrets, then we might hold the telecoms accountable. I think that’s increasingly likely in the al-Haramain case, but less likely in the others–and it would surely be reviewed by Scalia and his nutso friends first. If one of these cases goes to trial, we are likely to get confirmation of what we already know: that AT&T has splitters on its backbones so the government can access communications traffic directly, and that for the period immediately following March 10, 2004, the telecoms operated under an authorization signed by the White House Counsel rather than–as dictated by law–the Attorney General. But our discovery will be largely limited to what we already know. Anything else will be presented in camera, if the plaintiffs even get a meaningful review of it.

But if we get the commission, we have a shot at getting testimony on the record or–just as likely–pursuing contempt charges against Cheney, Addington, and Bush (after the time, it should be said, when Bush can pardon them). And some of the key players–for example, on CIFA–aren’t muckety mucks like Cheney. They’re contractors who have an interest in staying on the right side of the law.

The Church Committee was not, by itself, sufficient to punishing Nixon for his domestic spying. Though, in fact, impeachment wasn’t enough either. And 30 years later, those who fought the legislation that came out of the Church Committee are still fighting it–they’re the same people who would be subpoenaed by this Commission.

Still, for all that I don’t want any compromise with the Republicans on FISA, I am wondering whether this Commission is an active part of the discussions. And at the very least, I’d like to see Democrats talking about this commission as prominently as they’re talking about FISA.

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131 replies
  1. oldtree says:

    Ms. Harman has just rendered herself irrelevant, useless, and worse, a traitor. Funny how these congress people think they can ignore laws like the rest of the government.

  2. bmaz says:

    Just exactly how much Beamish did you consume anyway? You could still be under the influence it seems….

    • Jim Clausen says:

      No compromise. We need to exorcise this cancer upon democracy.

      Rule of law should trump all. Good to have you back Marcy, and Bmaz did a bang up job while you were gone.

      Can January 2009 come too soon?

    • emptywheel says:

      Seriously, answer this question.

      If you had to choose between 1) a commission with teeth or 2) a court with no state secrets/standing issues, which would you choose.

      Now how about 1) a commission that would be as effective as 9/11 Commission, but with a Dem majority, or 2) rolling the dice on the court system?

      Or to put it another way, if you had to choose between exposing the Administration or exposing the telecoms, which would you choose?

      • bmaz says:

        I would choose the commission for the reason stated @14 above, not to mention the vagaries in the litigation process you allude to; not sure the plaintiffs in those cases would agree. Be nice to include a provision in the commission structure that would allow some form of restitution to said plaintiffs if the commission were to find culpable wrongdoing.

  3. CTMET says:

    Maybe the GOP knows Bushco is ridiculously corrupt, but they would rather throw them under the bus after they are out of office. That way they can make the case that, “that was the past…. we’re good guys now”

  4. phred says:

    I hope the Beamish and Haggis were tasty, but it is sure good to have you back EW!

    I’m all in favor of another shot at a Church Commission with another round of legislation to keep the Executive Branch in check. However, I am concerned that testimony given to the commission might interfere with any subsequent prosecution of the responsible parties. It is not enough to discover the details of what they have done, there must be punishment for any and all crimes committed. In your reading of the committee provision, do you believe that subsequent prosecution will be possible?

    • emptywheel says:

      NAL, but yes. They clearly would have the ability to refer for prosecution.

      The biggest problem is, how do you make sure the Lee Hamilton’s of the world don’t get ahold of it?

      • phred says:

        The biggest problem is, how do you make sure the Lee Hamilton’s of the world don’t get ahold of it?

        With the Steny Hoyer’s of the world in charge of the compromise, I doubt that there would be any assurance that the establishment players wouldn’t find a way to gloss over any inconvenient truths in their rush to tell the public there is nothing to see, move along…

    • bmaz says:

      If you could actually get Church II as Marcy has suggested here, I would take it in a heartbeat; because I think criminal convictions for the substantive offenses are pretty much a pipe dream at best. First off, there is the statute of limitations problem I have repeatedly warned of. Secondly, also as I warned about at the time (mostly to very deaf ears), as a defense attorney defending one of these yahoos on criminal charges on the various wiretapping stuff, and assuming the charges could survive statute concerns and motions to dismiss (again, not the best bet in the world), the first thing I would start doing is framing a reasonable doubt defense around the passage of the PAA and, just as importantly, if not more so, the wholesale extension of the PAA that was done by congress at one point. I would argue that those actions by Congress effectively, if not specifically, authorized and approved the very conduct my client is now charged with; if Congress later said it was okay, how can my patriot client be guilty beyond a reasonable doubt for having done the same thing to protect the country. End of story.

      • phred says:

        Thanks bmaz. So to answer EW’s question, I would also take a commission with teeth in a heartbeat, since the courts aren’t a sure avenue to success/incarceration.

        By the way, I would pretty much faint with happiness if LHP and Glenn Greenwald were both on board. I’ll have to go read up on the other two (Orrin Kerr and Milton Mollen).

  5. looseheadprop says:

    If there is a commission, I may have to apply ot be a staff attorney. I mean, geez, for me that would be just about as much fun as you can possibly have with your clothes on.

    Think about all those yummy document dumps. LHP exits drooling.

    • emptywheel says:

      Yeah, you might.

      In my dream world, I’d make sure David Kris wasn’t on it–too involved. I thought about nominating Marty Lederman, but again, a conflict for serving on OLC.

      Glenn Greenwald and Orrin Kerr?

    • emptywheel says:

      LHP and bmaz

      I’m also curious about your assessment of how watertight this subpoena power would be. Assuming the Commission WANTED sworn testimony from Bush and Cheney, separately, could they get it within the 1 year timeline on the Commission, assuming they were, at that point, private citizens?

      • bmaz says:

        Assuming they were out of office at the time of proposed process attachment, and the guidelines set up were carefully enough set up with tough enough teeth, I assume it could be done. Subject to the 5th of course, but since the commission would be in lieu of criminal, it could also be specified that commission attachment was, by definition, immunity so as to eliminate the 5th.

        • looseheadprop says:

          it could also be specified that commission attachment was, by definition, immunity so as to eliminate the 5th.

          I really hate this idea. Immunity should be givenon a case by case basis only as a volitional act by the Commission. Automatice immunity serves no additional purpose and only precludes ANY criminal prosecution for things we don’t even know about yet.

          Nope, can’t go with you on htat one.

      • looseheadprop says:

        Executive priviledge relating to events that occured while you were the executive, I believe, continues once you leave office. So, while you might be able to compell them to show up, as to matters where an actuall genuine privledge exists, i don’t think there is any way to compell testimony about privledged matters

        Also, immunized testimony might therefore preclude post-office impeachment.

        One way for this country to restore it’s dignity and world standing whould be impeachment of Bush and Cheney even after they leave office.

        Done corectly such an impeachment process could produce a result similar to that of a truth and reconcilliation commission.

        Therefore, whatever this FISA commssion does ought to be done with a sober eye toweard the ramifications of things like immunized testimony.

        I would really HATE HATE HATE to see another mess like the Iran Contra hearings produced.

        You know that was all going on while I was a prosecutor and although talking “politics” was considered bad form in the office, talking current events –espeacially current events involving investigative methods was OK.

        We used to go crazy over how the panel was fucking up Wlash’s work. I swore if something similar ever happened again, I would move heaven and earth not to see those mistakes repeated.

        Which is why, despite my frivolous comment above, I really am serious about wanted to work with that commission if it comes into being.

        • klynn says:

          I would really HATE HATE HATE to see another mess like the Iran Contra hearings produced.

          Ditto, ditto and more ditto, (especially on the HATE part of your comment.)

          • looseheadprop says:

            EW, this is how unfounded rumors get started. I will be busy buying and renovating my post divorce house, not running for congress.

              • looseheadprop says:

                Thanx, but I really suck at fundraising. Can’t get the knack of “call time” also known as “dialing for dollars”

            • phred says:

              I will be busy buying and renovating my post divorce house, not running for congress.

              If you get a big enough place, it could also serve as your campaign headquarters, and then you could do both! I’m just sayin’…

              • earlofhuntingdon says:

                Not familiar with NYC prices, are we. Campaign contributions might fill the gap. But I think we’ve had enough of comingling personal and political lives for a while. Besides, LHP will need the dough for her flat inside the Beltway.

                • looseheadprop says:

                  Actually Carolyn McCarthy started her first campaign from her living room, or so the story goes. I wasn’t there myself

                  • Helen says:

                    But she had huge name recognition. (Not that I’m trying to talk you out of it; getting rid of King would be sweet).

              • looseheadprop says:

                Yeah, I live in Peter King’s district. He’s the last Republican in the LI delegation. In connection with another race in 2005 there was some polling done, he’s got really high negatives on certain issues. A big chunk inthe middle of his district has this monster anti immigration core. last cycle a Hispanic dem got well into the 40’s running against him.

                EW’s after me because a white soccer mom ought to whoop ass. But this race is NOT a priority for the County Chair of the party (who buy the way believes that you MUST kiss DCCC ass to be a “real”" candidate)and I don’t have the time or the ability to raise money this cycle. Wel, I don’t have the ability to raise maney any cycle. I tried, I suck at it

                • BooRadley says:

                  If you ever change your mind, the party hires someone to do the begging/fundraising for you. They ask for the money.

                  They put you on the phone ONLY to say hi and ask how the family is doing.

                  My guess is Jane, Howie, and emptywheel could raise ten grand for you on FDL in a heartbeat. That could be your downstroke to the party to get them to hire a begger/fundraiser for you.

                  In any capacity, you’re gold to liberals/progressives. The last thing I want to do is put pressure on someone as cool/nice/smart/moral/ as you, but I definitely understand why ew asked you.

                    • looseheadprop says:

                      Thank you so much. I mean it, gee, I’m getting all misty eyed. Which is why I’m so bad at raising money. It’s so damn emotional for me.

                  • looseheadprop says:

                    If you ever change your mind, the party hires someone to do the begging/fundraising for you. They ask for the money.

                    They put you on the phone ONLY to say hi and ask how the family is doing.

                    I’m sorry but that’s not how it works. YOU have to call, You have to do the ask. The professional fundraise keeps the records and sends out the follow up letters and makes the follow up phone calls. You have to make the sale.

                    I know they could raise $10 thousand. .King has $2 Million

                • earlofhuntingdon says:

                  I think top staff positions are better anyway. You get to do the work you’re good at, that’s the principal public purpose for elected office, without having to raise the money or kiss the babies to get that power in the first place. If it’s once removed from the power, it’s once removed from the compromises needed to keep it.

                  • looseheadprop says:

                    I beleive I could achieve a hell of a lot more good on Marcy/Steny’s Commission staff than I could as a freshman Congress Critter

        • bmaz says:

          One way for this country to restore it’s dignity and world standing whould be impeachment of Bush and Cheney even after they leave office.

          Done corectly such an impeachment process could produce a result similar to that of a truth and reconcilliation commission.

          I have consistently advocated exactly that; impeachment now or impeachment later, just do it. Also has the benefit of getting around many, if not most perhaps, of the privilege problems.

          As to your comment @34, Hey now! I didn’t say I was advocating that, I was just answering the damn question. I fully believe, and always have, that the fucking process that the Constitution specifically provides for these situations is the one that should be used. Of the two choices that EW gave me, I would roll with the commission though.

          • looseheadprop says:

            I don’t see anyting under the subpeona section that says automatic immunity for appearance before hte Commssion. Where is that coming from?

            • bmaz says:

              Came out of my butt. I was trying to answer EW’s question about her hypothesis and noted that absent some provision that there could not be criminal charges preferred, the targets would still retain 5th privileges, and that would be a way around it if you were going to do it. Never said I thought it was a good idea or not. For the reasons stated, I much prefer the impeachment process; but if you were going to go with the commission, and as part of that process were disallowing criminal referrals, I suppose you could overcome any 5th concerns through immunity. Purely off the cuff speculating and hypothecating; you need not get so worked up over it. I say stupid stuff all the time….

              • looseheadprop says:

                Simpler, and more flexible to just let them give immunity on a case by case basis.

                • bmaz says:

                  Seeing as how bad this got your undergarments bunched, I will just withdraw the meandering thought altogether. Simpler to use the vehicle designed for the task and put right there in that Constitution thingy….

        • earlofhuntingdon says:

          Agree on the idea that this committee’s work should in substance be a Truth and Reconciliation Commission. A “Church II” handle would set the right historical and investigative tone. But it should go farther because Cheney’s gone farther than Nixon in creating an imperial presidency, partly in hopes of retaining his gains when the opposition return to power.

          A Church II, of course, would make Cheney’s heart flutter. He’s seethed about the first Church committee for three decades. It had the audacity, and Congress had the will, to subject the President to oversight and restrictions. Ever since, Cheney has been a sulking King John, angry over having been forced to sign the Magna Carta (which the original John ignored once out of arrow range of his recalcitrant barons). But the barons won, and, ultimately, their gains were extended to the commons.

          An attitude of mere restoration or, worse, “business as usual, put all that behind us”, would be a victory for Cheney and the imperial presidency.

          • Minnesotachuck says:

            A Church II, of course, would make Cheney’s heart flutter. He’s seethed about the first Church committee for three decades.

            I’m all for anything that makes Darth’s heart flutter, preferably as a prelude to his premature exit from office, one way or the other.

            • earlofhuntingdon says:

              Lurking moderator might suggest that’s a step or two up the ladder toward a no-no. Big Brother is watching; he has a leer, not a sense of humor or proportion.

              • Minnesotachuck says:

                I guess that came across with implications I didn’t intend. I certainly don’t advocate regime changes of the Shakespearean variety. We’ve had enough of that in my lifetime and don’t need any more.

                • bmaz says:

                  I had no problems with your statement; of course I got busted on the mothership last year for suggesting that Darth would be an appropriate substrate for Soylent Green….

                  • earlofhuntingdon says:

                    Soylent Green. The only movie other than Planet of the Apes I liked Charleton Heston in. Maybe it was really Edward G. Robinson I liked.

                • earlofhuntingdon says:

                  Agreed and understood. Those who work for alphabet soup agencies just deal with whatever pops up from continual searches by their ever new and improved software.

                  • BoxTurtle says:

                    My tinfoil hat fell off. As a programmer, I suspect they are not improving their GATHERING software much. They want to aquire as much information as they can.

                    But I bet they’re improving their back end software to better sort through what they gather.

                    So the end result is likely that they monitor everything, reject anything that looks like spam, and pass the rest off to the back end. When they’re questioned about the scope of their warrent (HA!), they just say “we filter as best we can”.

                    Boxturtle (hat back on, shiny side out)

                    • earlofhuntingdon says:

                      I was thinking of filtering software that trolls the data they keep for ever more James Burke-like Connections*, looking for looming, pre-crime threats.

                      Some version of that may now be necessary. True to form, Cheney disdained Congressional much less public debate about the form and limits to that activity. He implemented or greatly expanded existing programs via black budgets controlled by the Pentagon and their wholly-owned subsidiary intelligence agencies. Just as with unregulated capitalism, unregulated spying may well do more harm than good, and never pay a price for it.

                      * http://en.wikipedia.org/wiki/James_Burke_(science_historian)

          • bobschacht says:

            A “Church II” handle would set the right historical and investigative tone. But it should go farther because Cheney’s gone farther than Nixon in creating an imperial presidency, partly in hopes of retaining his gains when the opposition return to power.

            A “Church II” is essential. And while EW is blackballing a few folks, I want to suggest some additional names to blackball:
            * Sen. Jello Jay
            * Rep. Nancy (”Impeachment is off the table”) Pelosi

            The tendency in such matters is to turn to the gray-haired folk who have been around forever, but too many of them have had their hands in the coookie jar. I’d rather see Russ Feingold, Sheldon Whitehouse, Russ Holt and the like in charge.

            Where are the folks who really care about the U.S. Constitution?

            Bob in HI

            • emptywheel says:

              I would presume that the “no conflict” rule would rule out all those who had been briefed on the program–including both Nancy and Jello Jay and Reid.

              I’d imagine you’d have one Senator and one Congresscritter from each party, presumably from the Intell or Judiciary committees.

              So Feingold would be great–they’d probably counter weigh him with Hatch (who was also on both committees). Holt is a good suggestion, as would Nadler be. They’d probably pick someone like Issa for the House side.

    • masaccio says:

      Me too! We could staff the thing with the lawyers that comment here, and provide computer expertise as well.

  6. WilliamOckham says:

    I still say the best strategy on FISA is just to run out the clock. Any bill will be worse than returning to the original FISA.

  7. JohnLopresti says:

    I am glad ew has redisplayed the commission construct already developed, as I think it was some parallel to its structure which finally lured Yoo to acquiesce to do verbal jousts with the committee investigating his own contributions to lawlessness, or, call it undeclared martial law. Fact finding without sanctions. There was an air in congress that the time was right to realign with the directions the populace was going when Church did his work, and a lot of helpful lawmaking surfaced eventually much like the leadership of the Church’s committee, but in other areas seemingly unrelated, as if a fresh breeze was abroad in the land. Steve Vladek, William E. Kennard or Harold Furchtgott-Roth might be interesting nominees. I would have to think about the changes in the field since I left it to be substantive.

  8. klynn says:

    And what happens when we are not the majority?

    Karl’s math can be haunting sometimes…

    • emptywheel says:

      Well, the timeline on this says 135 days after passage you’ve got your commission start date (assuming Dems could pick their majority members in that time period, the GOP couldn’t stall the start date and would have an incentive to pick their minority members). So assuming this were signed before Memorial day, then you’d have the start date in October.

      Then you’ve got a year to finish. No word on what happens if the Dems were to lose their majority in the interim–presumably, you’d forge ahead, but one could argue that the GOP woudl get to pick one more and the Dems would lose one.

      But we’re really only talking about Karl’s math THIS November, not in 2010. And I don’t know anyone who is marginally sane who thinks Karl has any math possible for the GOP to regain the majority in either House in November.

      • klynn says:

        That makes me feel better. I just get a little uncomfortable when there is overwhelming bipartisan support. I suddenly have visions of Addington whispering, “Oh this will work for us–give a big thumbs up GOPers!”

      • strider7 says:

        the other night ,during the torture hearings,the questioning was directed to Rivkin about blanket pardons,which he ducked.Then Issa asked if Pelosi and Harman would be considered in this proposal since they were active participants in the briefings.The repubs are already thinking along these lines.

        • Helen says:

          Which is a good thing. Leave it to Issa to believe that if everyone is doing it, it’s OK.

  9. Sara says:

    Very OT

    NPR just had a breaking news bulletin regarding Scott Bloch. The search included a full body search, and the FBI recovered several thumb drives on his person. NPR’s bulletin included information that the FBI raid was about Scott undermining the IG’s investigations, and apparently missing records are on the thumb drives.

    Well — wait for the next bulletin I guess.

    • dosido says:

      Oh yuck, full body searches and thumb drives in the same breath? Just when I was relishing EW and LHP’s geeky fantasies of commission appointments?

      I just wanted to repeat for the millionth time for those citizens who are just catching on, the illegal wiretapping began before 9/11 and oh! didn’t keep us “safe”.

    • phred says:

      Sara — what do you make of the fact the Congressional Republicans have called for Bloch’s resignation? Still trying to figure out if there are any good guys in this story…

    • watercarrier4diogenes says:

      Sara, I was unable to find that specific info at NPR. Got a link?

      However, I did find this interesting tidbit there:

      The man handling the OSC inquiry has an unusual background for a federal prosecutor: NPR has learned that James Mitzelfeld is the man who signed off on the subpoenas.

      In 1994, Mitzelfeld won a Pulitzer Prize as a reporter for The Detroit News, where he uncovered spending abuses at Michigan’s House Fiscal agency. Mitzelfeld went on to work in Detroit’s U.S. attorney’s office; he is now at the U.S. attorney’s office in Washington, D.C.

      Mitzelfeld also subpoenaed information about a woman at OSC named Rebecca McGinley. According to sources, the subpoena refers to a problem with compensatory time that McGinley logged during a special assignment a year and a half ago.

      Full story is “Special Counsel Case May Extend Far Beyond Bloch – Ari Shapiro

      Which Grand Jury in Washington, DC might Mitzelfeld be associated with? Fitz’s?

      • Sara says:

        Nope, my NPR link was simply that I have a little radio next to my computer, and I turn it down real low so it doesn’t distract, but there so if a word jolts, I can turn it up and listen. It was a breaking news bulletin. It was just before Talk of the Nation — and I was listening to see if today’s topic was worth it. (was not, Juan Williams on Hillary and Obama).

        By the way, it is “Green-up Time” in Minnesota (one of my favorite Kurt Weil songs). Morning and Evening I go out and estimate the size of the new leaves on my oaks. I am sick of grey sticks.

        • watercarrier4diogenes says:

          Here’s something I found on POGO, reporting that Ari Shapiro’s radio show was the source of the info, with transcript.

          • emptywheel says:

            Mr. ew said that the report on around 6 said they found the thumb drives “on his body”–he thinks they said the thumb drives were on a lanyard around his neck.

            So perhaps no cavities.

            • watercarrier4diogenes says:

              Agreed. If you read the Ari Shapiro transcript I linked to @124:

              INCLUDED A PHYSICAL SEARCH OF BLOCH’S BODY. INVESTIGATORS SEIZED TWO THUMB DRIVES FROM BLOCH [caps emphasis theirs]

              it would be difficult to leap from that and his subsequent dialog to “full body/body cavity search” terminology.

  10. pdaly says:

    Welcome back, emptywheel.
    It was nice to meet Mr. emptywheel in you prior post with photos.

    I hope Hoyer’s bill includes something that addresses the limits of the Unitary Executive to ignore this law if it passes. Some sort of line like “this law supersedes all prior laws both written and otherwise”

  11. Minnesotachuck says:

    Now, this proposal is not perfect. I would include several more provisions.

    Another provision should be a more careful vetting process for the staff director than was done for the 9/11 commission. As Philip Shenon’s The Commission points out, that position is the most critical one in the entire venture, and in that case Phillip Zelikow was a disaster. He had all sorts of conflicts of interest that didn’t emerge until after his selection. Considering Lee Hamilton’s role in his selection, you are right to exclude him by name in the enabling legislation. Perhaps the selection of the staff director should be approved by the whole House and Senate.

  12. BayStateLibrul says:

    All roads to a Commission will end in a clusterfuck.
    I lost my optimism for the Republic six months ago.
    Where the fuck is the IG Report on Gonzo that was promised in
    the springtime…

  13. Sara says:

    Someone in Bloch’s office clearly is a whistle blower, and went to the FBI or at least someone who connected to the FBI. From what I just heard on NPR, the raid and the warrants clearly directed them rather precisely where to look. Full Body Searches in the executive floor at DoJ is something of a stretch, though my imagination is better than Condi’s. And the point of the raid — that IG Fine’s investigations were being undermined — well that’s a new construction.

    Remember the FBI has a grand jury all up and ready to go next week, and they have apparently hauled in the whole office staff.

    Yea, I can see why the Republicans would want him fired as well as asking for his scalp.

    • phred says:

      Yea, I can see why the Republicans would want him fired as well as asking for his scalp.

      Could you elaborate? If Bloch was functioning as a firewall (even if he did insult Davis — although it was Davis who read the insulting email in public), then why would Republicans call for his resignation? I doubt they have acquired a new found respect for oversight.

  14. MadDog says:

    OT – Via Raw Story – The Wired Blog has a piece up entitled: “Investigate the Pentagon Pundit Project – and the New York Times – Yourself, Online

    Of particular interest is the DoD link to this:

    The Defense Department has released thousands of pages of documents related to this outreach effort. Years’ worth of internal Pentagon memos, military talking points and interview tapes and transcripts with former Defense Secretary Donald Rumsfeld are all now posted to the Pentagon’s website.”

    Tons of stuff to look at and review. Such as “Tara Jones E-mails 200-699” where she says on January 29, 2007:

    …General Petreaus has requested a roundtable meeting with the retired military analysts on Wednesday, January 31…

    And here is her “list of invitees”:

    Retired Miliary Analysts

    Colonel Ken Allard (USA, Retired) MSNBC
    Mr. Jed Babbin (AF, Former JAG) American Spectator, Real Clear Politics
    Admiral Dennis C. Blair (USN, Retired)
    Commander Peter Brookes (USN, Reserve) Heritage Foundation
    Lieutenant General Frank B. Campbell (USAF, Retired)
    Dr. James Jay Carafano (LTC, USA, Retired) Heritage Foundation
    Lieutenant Colonel Gordon Cucullu (USA, Retired) Fox News
    Lieutenant General Michael P. DeLong (USMC, Retired) Fox News
    General Wayne A. Downing (USA, Retired) MSNBC
    Lieutenant Colonel Tim J. Eads (USA, Retired) Fox News
    General Ronald Fogleman (USAF, Retired)
    Lieutenant Colonel John Garrett (USMC, Retired) Fox News
    Lieutenant General Buster Glosson (USAF, Retired)
    Brigadier General David L. Grange (USA, Retired) CNN
    Command Sergeant Major Steven Greer (USA, Retired) Fox News
    Major General Timothy M. Haake (USAR, Retired)
    Admiral Thomas B. Hayward (USN, Retired) – Former Chief of Naval Operations
    Colonel Jack Jacobs (USA, Retired) MSNBC
    Admiral David E. Jeremiah (USN, Retired)
    General Jack Keane (USA, Retired) ABC
    General William F. “Buck” Kernan (USA, Retired) Lehrer Newshour
    Colonel Glenn Lackey (USA, Retired)
    Admiral Thomas Joseph Lopez (USN, Retired)
    Lieutenant Colonel Robert L. Maginnis (USA, Retired) Fox News, CNN, BBC, Radio
    Major General James “Spider” Marks (USA, Retired)
    CNN
    Dr. Jeff McCausland (Colonel, USA, Retired) CBS (mostly radio)
    Lieutenant General Thomas McInerney (USAF, Retired) Fox News
    Major Andy Messing Jr. (USAR, Retired) Fox News
    Major General Burton R. Moore (USAF, Retired)
    General Thomas S. Moorman, Jr. (USAF, Retired)
    Major General Michael J. Nardotti, Jr. (USA, Retired)
    Captain Chuck Nash (USN, Retired) Fox News
    General William L. Nash (USA, Retired) Council on Foreign Relations
    General Glenn K. Otis (USA, Retired)
    General Joseph Ralston (USAF, Retired)
    Lieutenant General Erv Rokke (USAF, Retired)
    Major General Robert H. Scales, Jr. (USA, Retired) Fox News
    General H. Hugh Shelton (USA, Retired)
    Major General Donald W. Shepperd (USAF, Retired) CNN
    Lieutenant Colonel Carlton Sherwood (USMC, Retired)
    Mr. Wayne Simmons (USN, Retired) Fox News
    Major General Perry Smith (USAF, Retired)
    Captain Martin L. Strong (USN, Retired)
    Captain Robert R. Timberg (USMC, Retired) Us Naval Institute
    Major General Paul E. Vallely (USA, Retired) Fox News
    Colonel John Warden (USAF, Retired)
    General Larry D. Welch (USAF, Retired)
    Mr. Bing West (USMC, Retired) Atlantic Monthly, Freelance Writer
    General Charles E. Wilhelm (USMC, Retired)
    General Tom Wilkerson (USMC, Retired) US Naval Institute

    (My Bold)
    Note the prevalence of Fox News as the “official propaganda outlet of the Repug Party.”

  15. klynn says:

    O/T on Bloch:

    From TMP this past November:

    Investigator Wars
    By Paul Kiel – November 30, 2007, 11:26AM

    The Washington Post has an update to Special Counsel Scott Bloch’s alleged scheme to have geeks scrub his hard drive (for background click here). Turns out that Bloch has the files that he erased on a thumb drive, but he’s not turning them over, no sir: They’re personal. And it’s sparked a good bit of squabbling amongst the White House’s ineffectual investigative agencies (in this case the other party is the Office of Personnel Management’s inspector general).

    But here’s the part that’s good. Earlier this year, Bloch launched, to great fanfare, a sprawling investigation of Karl Rove’s alleged efforts to politicize the federal government, but it seems not to have gotten very far. But maybe, Bloch’s enemies are saying, the investigation was just a canny ploy to incapacitate the investigations of him:

    Attorneys representing the staff members in the complaints against Bloch cited the latest dispute in calling for his resignation.

    “At the time that he initiated this probe of Karl Rove, we thought he was doing this to make himself bulletproof so the White House could not take disciplinary action against him,” said Debra Katz, an attorney for the staff members. Bloch denied that charge and said the Rove investigation is the responsibility of his office.

    Ah, oversight.

    So we’ve known about the thumb drives for a while…

    What is confusing is how this news is breaking. NPR is couching this in a very different tone than McClatchy. NPR = WH Spin McClatchy inside information of sorts regarding the obstruction by Bloch irt protecting Condi on the election travel. Hmmm

    Intel war?

    Great list MadDog…

  16. Loo Hoo. says:

    So some of our favorite lawyers are chosen. Now, which dems would make up the dream commission?

  17. earlofhuntingdon says:

    Excellent suggestions on staffing issues. Weeding out conflicts would go sharply against the grain for these political plum positions, which is what makes them so essential. The goal is to lower the likelihood of putting on this and similar commissions CongressCritters whose job is to clown, chuckle, obfuscate or obstruct in order scuttle their work. Or, to feed it while in progress to the opposition (as Gerald Ford did on the Warren Commission and Fred Thompson in connection with Watergate investigations).

    I would also beef up the provisions regarding minimum qualifications of both CongressCritters and staff. If the work extends beyond a few years, transition provisions are needed for those leaving and, frankly, those too long on the commission who aren’t pulling their weight.

  18. earlofhuntingdon says:

    As you point out, there’s no need to act on this now, with a corrupt lame duck President and mediocre Congress, unless it is to keep the GOP thinking they’ll eventually get what they want, while ultimately disappointing them.

    This commission could be legislated in the next Congress. Different players will return after the election. Some evidence will go stale, but CheneyBush are unlikely to give it up anyway. Some statutes of limitation may pass, but same problem: without the evidence in the hands of CheneyBush, investigations that might lead to prosecutions would be stymied.

    One of the most important roles these negotiations have, let alone an active, well-staffed committee, is pre-emptive (in a constructive way). It is some evidence that Congress might return from its extended lunch afternoon and start watching the store. That’s unlikely to dissuade Cheney from action. It might dissuade an agency or division head or an operative (the one most likely to be left holding the ball) from overreaching or committing new crimes. It will have the opposite effect if this is seen as another giveaway by Raging Bull Reid.

    For that to take place, these negotiations have to be credible. The fall back position, on this issue (unlike many others), would be no action. That seems to have the most consequences for the wrongdoers because it leaves their potential liability unresolved.

  19. Sara says:

    Wes Clark says he was invited to one meeting during the fall of 2002, but was never invited back. Shortly after the meeting he published his Op/Ed in the Post, in opposition to the invasion, which is probably why. He also accepted Biden’s invitation to testify before the Foreign Relations Committee — a hearing to which the Administration refused to send any witnesses. He was interviewed on Radio the day the Times story broke.

    • looseheadprop says:

      You know what? That little anecdote drive a bullet through the Admin’s excuses for this little project. Thank you. You made me smile

    • PJEvans says:

      Unfortunately Clinton wants all of those delegates, and is refusing to go along. The agreement to which she was a party seems to have slipped right out of her mind, along with a lot of other things.

      • Sara says:

        From TPM … Hillary rejects latest Delegate Proposal …

        Does anyone truly believe:

        A. This race is still on ?
        B. The Easter Bunny exists ?

        I would suggest a C. Hillary has no Exit Strategy. Iraq or otherwise.

      • emptywheel says:

        If she loses MI as an issue, she has nothing left to run on. Me, I hope the abundant group of Hillary supporters among MI’s supers (from the Gov on down) tell her to bug off, if she can’t accept something reasonable.m

  20. earlofhuntingdon says:

    Use or full immunity — and possibly financial or liability protection against civil suits — should be rare and provided only in exchange for what the committee needs most. Full cooperation, full disclosure. That includes cooperating witnesses willing to give statements, and to testify before grand juries and at trial, full disclosure of records, etc. The committee should know what these companies intend to offer, and immunity or other protection should be dependent on those things actually being produced.

    Immunity is an incredible gift. It should not be given up lightly – and certainly not to further the ploy of impeding such a committee’s investigations.

    • strider7 says:

      Full disclosure? Full disclosure?
      HA HA HA HA HA HA HA!!! The data is gone!!!
      You got nothing to bargain with.

      • earlofhuntingdon says:

        If the data was ever digital, that’s not an accurate statement. It’s gone only until someone with the power and will starts to look for it. No one has, that’s true. They may never have, unless we help encourage them to act.

  21. earlofhuntingdon says:

    OT, but we’re wandering a bit. Via thinkprogress and AP, Rick Santorum is bridling at the Bush administration’s new-found political correctness in requiring more restrained use of insults, such as “islamofascism” and related Jonah Goldbergisms.

    Our government in this memo is teaching us a politically correct version of the truth. For example, it tells us that democracy and Islam are compatible. But Islam is less compatible with democracy than is Christianity. Jesus said, “Render unto Caesar the things which are Caesar’s, and unto God the things that are God’s.” There was from the beginning a recognition of two realms – the sacred and the secular. From Islam’s inception there has been one realm. Islamic law (sharia) is the law of the government.

    http://thinkprogress.org/

    Mr. Santorum seems to have no idea how stupid that remark makes him look to the literate world – and how stupid it makes the United States appear everywhere. Until Pope John XXIII, Catholics eschewed the history of their church, but that doesn’t excuse the Catholic Mr. Santorum’s ignorance or his demagoguery.

    Already widespread, Christianity was “made” when the Roman emperor Constantine made it the state religion – and adopted it as his banner before his most famous battle. He used it as a prime motivator for his men and as a promise to Roman society of what his rule would be. He “made” it, and co-opted it at the Council of Nicaea, setting in virtual stone its framework for centuries.

    Christianity survived when organized government failed because it was the law, religion and social organization wrapped up in the robes of the Vicar of Christ. Christianized Roman law and Catholic canon law were the laws that undergirded medieval kings. Roman law still forms the basis for European laws. In breaking from the Pope, Henry VIII made himself head of his still Christian church as well as head of state and that framework continues today.

    It wasn’t until the founding of the United States and then Revolutionary France, that law, religion and government were formally separated. Mr. Bush is trying his best to undo that achievement.

    Mr. Santorum’s stupidity, his perversion of all history is a hallmark of the modern GOP. They use it when defending indefensible administrative actions – the EPA’s denial of California’s request to issue higher fuel mileage standards. They use it when claiming that “no one could have foreseen flying an airplane” into a major government building in Washington, or that “no one could have foreseen” the inevitable problems of forcibly occupying a Middle Eastern state.

    Most of all, they use it when attempting to justify why the President has powers no one before him as ever claimed. For the GOP, history and facts get in the way. They make up their own reality with each “novel” step they take and condemn the rest of us to the history they keep repeating.

  22. BoxTurtle says:

    Just joining this thread, so:

    1) I’m in favor of Teleco immunity, but ONLY after Bush leaves office and only with the legally binding agreement that the teleco’s come 100% clean about what they did, who ordered them to do it, etc. The teleco’s are irrevelent, I want BushCo.

    2) Full body search found thumb drives!?! Wow! That should be a lock for obstruction of , ah, justice. PLUS we have all the records he didn’t want us to have. And it seems there’s a mole in his office. It’s early, but a half shot of Single Malt seems apropo.

    3)I would support LHP for any office he chose to contest.

    4) I really think the only way we’ll get BushCo to justice is at The Hague and I sure hope our next president puts some priority to getting a World Court agreement.

    Boxturtle (I might arrange an air charter for all firepups to The Hague to watch the perp walk)

      • BoxTurtle says:

        Female!?! Not only will I support her, but now that I know she’s a she and divorced…..

        Hey LHP! Can I buy you dinner? I can be in NYC Saturday evening if I leave now.

        Boxturtle (Could make it Friday, but don’t want to seem too eager)

          • BoxTurtle says:

            No, I got a TransAm GT and absolutely NO respect for speed limits.

            Boxturtle (They’re only advisory…I consider them bad advice from a government I don’t much trust anyway)

            • bmaz says:

              You need to mothball that classic American iron and git yerself a sturm and drang, holy roller from the Porsche family. There is no substitute! (Unless, of course, you take the next step up to a machine from Maranello).

                • bmaz says:

                  Then return Porsche to F1 and prove it. But I am not going to argue too strongly in light of the fact that I have had three different 911s, but not any Ferraris (although I have driven many).

    • Anna says:

      The whole group of Bush psychopaths to the “Hague”. Hope and faith would be restored

  23. klynn says:

    Anyone having problems with the tubes today? I got a wordpress message and an access denied when I tried to read a post by Christy. Anyone offer advice about what is going on? MadDog?

    • bobschacht says:

      Anyone having problems with the tubes today? I got a wordpress message and an access denied when I tried to read a post by Christy. Anyone offer advice about what is going on? MadDog?

      Yeah, I was in the middle of trying to post a comment when the curtain came down. Ka-boom. No more EW. Then, no more FDL. Glad we’re all back together!

      Bob in HI

    • MadDog says:

      I’m guessing the WordPress thingie is a result of changes being made to accomodate new FDL features including Cliff Schecter’s arrival.

    • Petrocelli says:

      Loo Hoo and I can help plan your wardrobe … something Hillary has done extremely well to dominate the Power Suits …

  24. katiejacob says:

    Hi Marcy,
    I just came back from Scotland too. Did you go to the whiskey museum in Edinborough(or however you spell it)? That was fun.
    I had a fund raiser at my home for Gary Peters in March,and Steny was the guest speaker. I talked to him about FISA and he indicated to me that he didn’t think that what the telecoms did should be the big concern.

Comments are closed.