State Secrets Bill Passes House Judiciary, 18-12

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The House Judiciary just passed Jerry Nadler’s bill reining in state secrets abuse by a vote of 18-12, with Adam Schiff as the sole Democrat voting against the bill. One thing Nadler has added to his bill since it was first introduced are measures to prevent the government from refusing to give plaintiff lawyers clearance to litigate the case (if the govt refuses the first and second choice lawyers for plaintiffs, the govt must give a list of possible lawyers to litigate the case). This would prevent a tactic the government tried to use in both the Horn and the al-Haramain suits.

In addition, the House Judiciary passed its version of PATRIOT Reauthorization. It’s a better bill than the Senate bill.

While both of these bills have a long way to go before they get signed into law (and at some point, I would expect the Obama Administration to reveal their opposition–and their support for unfettered executive power). But on the state secrets bill, especially, we have taken a very small step toward reining in the abuse of power of both Bush and Obama.

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19 replies
  2. powwow says:

    If it please the court: “reining in” [in place of “reigning” in], on the first line of the post and the last line of the post.

    First, I just have to say for the record, having closely watched the two days of this HJC markup: John Conyers is the epitome of corrupt power. He’s no friend of democratic process or representative democracy.

    Jerry Nadler is clearly doing the lion’s share of the work for Conyers on these important bills – while still having to pretend to pay homage to Conyers, The Big Man – though with precious little public back-up from others on the committee. But as to back-up today, though Bill Delahunt very unfortunately made himself scarce for almost the whole markup, he did manage to show up at a crucial juncture, and admirably assisted Nadler with a clear and compelling argument that helped Nadler defeat Adam Schiff’s attempt to keep the scales tilted in favor of the Executive Branch on state secrets.

    In this case – on Nadler’s new State Secrets legislation – Schiff wants to keep the scales tilted toward an Executive Branch as defendant in civil cases that effectively gets to control release of information about its own activities. Schiff certainly gave clear signs today of being a dangerous addition to the House Intelligence Committee, because of his inability to appreciate the threat of unchecked Executive power – unchecked power wielded by the same branch that classifies information and gets to choose whether or not to enforce (or obey) the law, absent strict and unavoidable oversight and checking from the other two branches.

    Thanks in large part to Nadler and Delahunt, the end of this markup provided a brief, intense, and meaningful debate on the separation of powers (providing good legislative history), and a good outcome against a fellow Democrat’s ill-advised amendment. So it ended on a positive note, after very desultory engagement for much of the earlier debate.

    But apparently Bobby Scott – while filling in for Conyers – did declare passed an amendment that he had just argued, on principle, against – without he or anyone else asking for a roll call vote. I don’t know if that was intentional by Scott (doubtless he was reading from somebody else’s position paper, not his own), but the Republicans certainly jumped on it. After a recess, the committee proceeded, prompted by Issa, and based on that amendment’s seemingly-inadvertent passage, to undo the markup’s earlier good work against a similar amendment that had failed, by passing (what seems to be, from the scarce debate) its cousin, uncontested, under John Conyers’s nose and with his blessing, with no opposing argument. [These were both ultimately-successful efforts by the Republicans to undo a slight judicial check on the exponential expansion – to which Congress seems oblivious or indifferent – of the pen register and trap and trace (“PRTT”) powers that has resulted from the explosion of digital communications since phone-number PRTT powers were blessed as outside the Fourth Amendment’s probable cause jurisdiction by the Supreme Court eons ago, technologically, in the 1980s, as I noted in today’s first live blog thread. PRTTs now extend to the websites you visit and the email addresses with which you communicate (never mind the storage and computerized-analysis capacity for such collected details that we know the government is using), while Congress innocently assures itself that nothing important has changed in the use of PRTTs since 1986…]

    • Arbusto says:

      I guess the modern Congress, by and large, just wants to collect its pay, gratuities and PAC payoffs and leave governance to the courts. Viva the Imperial Executive.

    • emptywheel says:

      Jeebus. It DOES please the court. I saw that “reign” thing earlier today, objected to it, but apparently picked it up.

      I think what happened with pen registers is that Rooney was pushing the cops line (I have to say, Smith did a good job of giving his rookies an oppty to sponsor law and order amendments and then go on to play with the teabaggers). And Schiff was kind of the broker for all this (not surprisingly, he, like DiFi, is an Intell/Judiciary joint) recognized the reason the Dems are pushing audits of local PRTTs, even while recognizing that line cops don’t want the headache.

      Schiff isn’t new this year, I don’t think. he just played second fiddle in the past to the even more conservative Artur Davis, who has now moved onto more lucrative pastures in anticipation of his gubernatorial bid. So Schiff is the designated Admin guy.

      But it could’ve been worse. I expected DWS (bc she’s in caucus leadership) and Sexy Wexy to join in doing the Admin’s bidding, and they didn’t. And, as you observed earlier, Quigley seemed to be motivated out of desire to do what he was told. THough he did vote for the SS bill itself.

  3. MadDog says:

    If it please the court: “reining in” [in place of “reigning” in], on the first line of the post and the last line of the post…

    I don’t know how many times I mistyped that myself. *g*

    • bobschacht says:

      The verb “to rein”, a metaphor borrowed from managing a horse, is appropriate. IMHO the verb “reign”, having to do with the tenure of a king, is not as appropriate.

      Bob in AZ

      • valletta says:

        Well, maybe we’re all thinking back to that most famous of scribbles from Dubya to Condi after hearing about some victory or other in Iraq: “Let freedom REIGN!”, in black Sharpie.
        We’ve been infected.

  4. ART45 says:

    State secrets.

    I’m sure the guys who stormed the beaches at Tarawa and Normandy fought to ensure state secrets.

    Give me another country.

  5. Jeff Kaye says:

    Thanks for all the coverage on this, EW, and the great contributions of your commenters.

    On the PATRIOT legislation, if Conyers was willing to bend a certain amount to the Obama administration’s weakening of the PATRIOT reforms, what in god’s name will happen in the House Intel Committee?

    Hopefully, the Nadler state secrets bill will stay intact and go on to passage. Wonder if Obama would veto that, and if a Democratic Congress would override… but that’s probably getting way too ahead of things. Can’t imagine similar legislation passing the Senate, at least as strong as the Nadler bill appears to be.

  6. readerOfTeaLeaves says:

    OT, but perhaps of interest to a number of eWheelies?

    The American energy giant ExxonMobil today won the right to develop one of the world’s most prized untapped oil reserves, in a $50bn (£30bn) deal that will entrench the company as one of the largest players in postwar Iraq.

    On 20 October, iraqoilreport had this item:

    ISTANBUL – A half dozen major international oil companies are close to deals with Iraq, on the heels of BP and the Chinese National Petroleum Corp., which are one step away from receiving the first new oil contract issued by Baghdad – for the largest oil field in the country.

    The deals are part of the Iraqi Oil Ministry effort to bring foreign capital, expertise and technology to dramatically boost production in the underachieving yet third largest oil reserves in the world. Iraq holds 115 billion barrels of proven reserves but produces just around 2.4 million barrels per day (bpd).

    Iraq’s prime minister and oil minister are in Washington, D.C., right now courting investment at an investment conference organized by Iraq’s National Investment Commission, the U.S. Embassy in Baghdad and the U.S. Chamber of Commerce.

    So the earlier reporting has born fruit.
    And what parts of oil negotiations might be construed as ‘state secrets’ and therefore hidden? Is it any different before this bill than after?

    • eCAHNomics says:

      Rereading Ghost Wars but Steve Coll. Interesting description of Clinton’s foreign policy, i.e., there wasn’t one except for promotion of U.S. business overseas. (Remember: It’s the Economy, Stupid?) Thus, the only hint of an Afghan policy Clinton has was buying Stingers back, and the Unocal pipeline.

      W not so much different, and I suspect so is Obama.

    • bobschacht says:

      Is this of a piece with Cheney’s still-secret meeting(s) with energy companies BEFORE the war, at the beginning of the Bush (mal-)Administration?

      Bob in AZ

  7. eCAHNomics says:

    Ft. Hood presser up. Finally. Only 1 hour 45 minutes later.

    Shooter is not dead. In custody, stable condition.

  9. Hmmm says:

    OT/Ft. Hood — NYT sez:

    The Federal Bureau of Investigation earlier became aware of Internet postings by a man calling himself Nidal Hasan, a law enforcement official said. The postings discussed suicide bombings favorably, but the investigators were not clear whether the writer was Major Hasan.

    In one posting on the Web site Scribd, a man named Nidal Hasan compared the heroism of a soldier who throws himself on a grenade to protect fellow soldiers to suicide bombers who sacrifice themselves to protect Muslims.

    “If one suicide bomber can kill 100 enemy soldiers because they were caught off guard that would be considered a strategic victory,” the man wrote. It could not be confirmed, however, that the writer was Major Hasan.

    Not that they’re monitoring absolutely everything that happens online and keepin’ it all in the icebox for moments such as this, or nuthin’…

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