Credit Where Due: Keith Olbermann Edition

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I watch Keith Olbermann, and his Countdown show on MSNBC, pretty much daily, but I have been critical of him in the past, most notably in his unflinching willingness to blindly support Barack Obama’s adoption of Bush/Cheney policies on civil liberties/surveillance and torture/detention. A prime example of this was my response to Olbermann and John Dean when they conjured up a ridiculous explanation to cover for Obama’s about face on FISA retroactive immunity last summer prior to the election. In The Obama & Olbermann Master Plan For Criminal FISA Prosecutions, I said:

Okay, the words "Master Plan" in the title are a joke. So is the idea of criminal prosecutions, by a future Obama Administration, for Bush era FISA violations that has been hawked, to the point of near belligerence, by Keith Olbermann both on his show and in a running flame war with Glen Greenwald. The instant article will attempt to relate some of the glaring reasons, from a practical criminal justice perspective, that the Obama/Olbermann master plan is naive, almost to the point of being comical. Comical that is if we were not literally discussing the life and spirit of the Fourth Amendment and the health and well being of the Constitutional rule of law in this country.

Well that was then, this is now. That was the right thing to say then, but now it is time to give Keith Olbermann some very deserved credit. The last two nights, Countdown has dedicated substantial time to the depressing and maddening adoption by the Obama Administration of the tricks and artifices of the Bush/Cheney regime. For a review of Keith’s work in this regard Monday night with guest Jonathan Turley, see Glenn Greenwald at Salon who, in writing this, I have discovered had the same urge to give credit where due that I feel here.

Tonight, Keith had on Kevin Bankston of the EFF, who has been on the front line of the consolidated suits pending in front of Judge Vaughn Walker from the outset, and is lead on the new hot button case of Jewel v. NSA described here by Marcy. As the EFF press release states about Jewel:

The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and Read more →

The Latest State Secrets Claim

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Yes, I know, I’ve been so preoccupied trying to save my state from JP Morgan Chase that I have not yet commented on the Obama Administration’s latest Cheneyesque invocation of state secrets, in the EFF/Jewel case. Of course, that means some smart lawyers have already beat up the filing on legal grounds. So I thought I’d focus my attention on tactical issues.

Three Interlocking Cases

Before I do that though, let’s review what this suit is and what else is going on. As Glenn pointed out, EFF filed this suit after Jello Jay Rockefeller, the patron saint of the awful FISA Amendment Act last year (and a big Obama backer), claimed during deliberations on that bill that,

…lawsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House’s year-long push for blanket immunity covering government officials.

Now, I don’t believe for a millisecond that Jello Jay actually intended for lawsuits to go forward–he was, instead, trying to dismiss opposition to immunity–but nevertheless, the legislative record on FISA now reflects that the bill’s sponsor thinks citizens should be able to sue those who illegally wiretapped.

Meanwhile, of course, there are two decisions still pending (as far as we know) before the judge in this case, Vaughn Walker. The first is the al-Haramain suit, in which the 9th Circuit already decided the warrantless wiretap program was a properly invoked state secret, but in which al-Haramain’s suit will probably go forward because Walker ruled the charity had proved it was an aggrieved party without the materials over which Bush invoked state secrets. Now (again, as far as we know), Walker is looking at the wiretap log and the other classified briefs submitted in the case, and deciding whether al-Haramain has standing (and therefore, whether the Bush Administration violated FISA). If and when Walker rules that the Bush Administration did violate FISA, there will be a giant fight over whether he, or the Administration, gets to decide which documents in that case will be made public and/or available to al-Haramain’s lawyers. (Contrary to almost all the reporting in the case, Walker has not yet decided whether or not he would require the government to hand over the wiretap logs and other briefs decribing the warrantless wiretap program.)

Read more →

Cheney’s Stay Behind

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By now, you’ve heard Sy Hersh’s explanation for why he hasn’t yet gotten the flood of revelations about the Bush Administration he had expected.

HERSH: I’ll make it worse. I think he’s put people left. He’s put people back. They call it a stay behind. It’s sort of an intelligence term of art. When you leave a country and, you know, you’ve driven out the, you know, you’ve lost the war. You leave people behind. It’s a stay behind that you can continue to contacts with, to do sabotage, whatever you want to do. Cheney’s left a stay behind. He’s got people in a lot of agencies that still tell him what’s going on. Particularly in defense, obviously. Also in the NSA, there’s still people that talk to him. He still knows what’s going on. Can he still control policy up to a point? Probably up to a point, a minor point. But he’s still there. He’s still a presence. [my emphasis]

This is not remotely surprising. We discussed the likelihood this was happening just days after Obama took over, as dead-enders tried to spike Obama’s promise to withdraw from Iraq. And there has been a ton of reporting on the burrowing of loyal appointees that Cheney accomplished before leaving.

But Hersh’s report that such stay behind includes NSA is of particular concern.

Not only does this raise concerns about the warrantless wiretap program and its use (particularly given reports that the NSA was segregating contacts with journalists, like Hersh, who has lots of contacts in the Middle East). But it raises concerns about whether or not Cheney sustains the practice–publicized during the John Bolton confirmation hearings–of getting the US person end of NSA intercepts (I have no idea whether Cheney would do this through dead-enders, whether he’s getting that much more directly, or whether he’s getting help from Israelis involved in our wiretap programs). A number of people suspected that Bolton had used NSA intercepts to undermine North Korean diplomacy (among other things). Such a practice obviously fits Cheney’s MO.

Yet more reason we need to reassess our use of electronic wiretapping  within the US.

What the Scope of the IG Report on Warrantless Wiretapping Tells Us

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Remember how when Congress passed the FISA Amendment Act last year, they required that the Inspectors General of the various agencies involved in the warrantless wiretapping produce a report on the program? They did an interim report–basically describing the scope of the report–last September (and produced in unclassified form last November). It took Secrecy News pulling teeth to get this released (six months after the fact), but here is the interim report.

General Scope

I’m going to show you the whole scope-related section, then unpack it line by line.

The DoJ IG is completing work on a broadly-scoped review of the Program, which the DoJ IG has been conducting over the past 18 months. In accord with its normal procedures and consistent with classification requirements, the DoJ IG will release its report when completed. The DoJ IG’s review examines the involvement of the DoJ and the Federal Bureau of Investigation (FBI) in the Program, including the use of and control over Program information; compliance with relevant authorities governing the Program as these authorities changed over time; and the impact and effectiveness of Program information on DoJ’s and FBI’s counterterrorism efforts. The review also describes various legal assessments of the Program, legal and operational changes to the Program, any use of Program information in the FISA process, and the transition to Foreign Intelligence Surveillance Court orders related to the Program.

The NSA IG’s review will examine the evolution of the Presidential authorization as it affected NSA, the technical operation of the Program, the preparation and dissemination of the product of the Program, and communications with and representations made to private sector entities. The review will address access by NSA to legal reviews and information concerning the Program and will also examine NSA’s interaction with the Foreign Intelligence Surveillance Court and the transition of Program activities to operations under court orders. The review will also include a description of NSA’s oversight of the Program. To conduct the review of the Program, the NSA IG will both initiate new work and draw upon a substantial body of completed evaluations.

The DoD IG will examine the involvement of the Office of the Secretary of Defense in the establishment and implementation of the Program.

The ODNI IG will examine the involvement of DNI senior leadership in the Program and DNI communication with private-sector entities concerning the Program. Read more →

Durbin and Whitehouse: Why Did Mukasey Give OLC a Peek at the Yoo/Bradbury Results?

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Dick Durbin and Sheldon Whitehouse want to know why the Office of Professional Responsibility gave OLC a chance to review their report on John Yoo’s and Steven Bradbury’s torture memos.

Just last week, they got a response from DOJ on the process the OPR review has gone through, revealing that the report already integrated comments from Mukasey and "OLC" (whose acting head was Steven Bradbury), and was giving Bradbury, Yoo, and Jay Bybee an opportunity to comment, as well. It will take "substantial time" before this review process is done, DOJ says.

OPR has completed its investigation of this matter and in late December 2008, provided the draft report to Attorney General Mukasey and invited comment. Attorney General Mukasey shared the report with Deputy Attorney General Filip and OLC. Thereafter, Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments, and OPR revised the draft report to the extent it deemed appropriate based on those comments.

In addition, during the course of the investigation, counsel for the former Department attorneys asked OPR for an opportunity to review and comment on the report prior to any disclosure of its results to Congress or the public. Attorney General Mukasey and Deputy Attorney General Filip likewise requested that OPR provide the former Department attorneys with such an opportunity. For these reasons, OPR is now in the process of sharing the revised draft report with them. When the review and comment period is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the Department will determine what disclosures should be made. Due to the complexity and classification level of the draft report, the review process described above likely will require substantial time and effort.

Which of course raises a whole slew of questions, some of which Durbin and Whitehouse have now posed to DOJ. Such as whether OLC’s review of the document influenced Steven Bradbury’s January 15 OLC memo withdrawing certain earlier opinions. 

Your letter does not indicate whether Steven Bradbury was recused from reviewing and providing comments on the draft report.  Mr. Bradbury, who was then the Principal Deputy Assistant Attorney General of OLC, is reportedly a subject of the OPR investigation. Read more →

“Reasonable grounds to conclude”

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In honor of what appears to be warrantless wiretap day here at emptywheel, I’ve got myself lost in some hopeless weeds. Among other things, I decided to compare the unclassified declarations DNI and NSA submitted in the ACLU case on May 27, 2006 (I’m not positive, but I think they submitted identical declarations in the other pending warrantless wiretap cases) with those submitted in the al-Haramain case on June 21, 2006. (Note, in both cases, classified filings were submitted at the same time, but we don’t get to see those.)

Here they are:

ACLU: DNI John Negroponte declaration, Major General Richard Quirk (NSA) declaration

al-Haramain: DNI John Negroponte declaration, Lieutenant General Keith Alexander (NSA) declaration

As you’ll see, these declarations are almost the same in many respects, though subtly different particularly in how they discuss the warrantless wiretap program and whether or not they can disclose that someone has been wiretapped.

For the moment, I’m most interested in how they describe the warrantless wiretap program.

In the ACLU case (and the CCR case), the government claimed,

… President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain "one-end foreign" communications where one party is associated with the al Qaeda terrorist organization …

In the al-Haramain case a month later, the government said,

… President of United States authorized the NSA to utilize its SIGINT capabilities to collect certain international communications originating or terminating in the United States where there was reasonable grounds to conclude that one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. 

In a case where no one had proof they’d been tapped, NSA and DNI claimed that they were only using the program where "one party is associated with" al Qaeda. But in a case where the plaintiff knew they had been tapped, the government weakened their claim to "reasonable grounds to conclude … one party is a member or agent of al Qaeda or an affiliated terrorist organization."

How much, in the month longer it took them to invoke state secrets in al-Haramain, do you think they pondered the possibility that a judge would demand proof that al-Haramain "is associated with" al Qaeda?

And yes, I’m waiting for William Ockham and MadDog to explain what they make of the switch from "one-end foreign" to "international communications originating or terminating in the United States." Read more →

Declining Justice: DOJ Lets Statute Run On Bush Criminality

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graphic by politicalbase

graphic by politicalbase

On March 10, 2009 Emptywheel noted that the five year statute of limitation on the initial criminal wiretapping acts by the Bush/Cheney Administration were expiring.

…the statute of limitations on the potentially criminal March 11 wiretaps of Belew expire today. By all appearances, that means the statute will expire without George Bush being punished for illegally wiretapping an American citizen, even though clear evidence of that criminal wiretapping almost certainly exists.

This is because the one period of time that it is crystal clear that the Bush/Cheney surveillance program was operating without legal sanction was subsequent to the hospital incident:

On March 11, 2004, remember, the warrantless wiretap program was operating without the approval of the Acting Attorney General. After Jim Comey refused to recertify the program on March 9, after Andy Card and Alberto Gonzales tried to get John Ashcroft to overrule Comey from his ICU bed on March 10, Bush reauthorized the program using only the legal sanction of then-White House Counsel Alberto Gonzales on March 11.

Thus, even if the rest of the program were somehow deemed legal (which it wouldn’t be, because it violated FISA, which is the question at hand), it would be not be deemed legal on March 11, 2004, because the program didn’t have sanction from the Attorney General.

There are, or were at least, three critical dates on which the lawyers for the al-Haramain organization knew themselves to be wiretapped that occurred during the period in which criminality would undoubtedly attach, March 10, 11 and 25 of 2004. It is believed that the program was reinstated under formal footing (as opposed to being run on Alberto Gonzales’ worthless signature as was the case in the days after the hospital incident) in early April, 2004. So, while Emptywheel gave the obituary on the expiration of the first two dates of known criminal culpability, I am here to give the post mortem on the last. It died at 12 pm Eastern time last night.

Now the one entity that has, and has had all along, the proof of the Bush/Cheney criminality in its hot little hands is the United States Department of Justice. You would think that the national press would be swimming with articles about the DOJ declining to pursue Executive Branch crimes in the biggest conspiracy against American citizens in the history of the country. But nary a peep. Read more →

Again on the al-Haramain Stuff

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The WaPo has a front page article blaring about Obama’s horrible record on state secrets.

I agree with the article that Obama’s record on state secrets has been disappointing. But I’m really tired of reporting that misses key facts about the case.  Here’s the theme of the WaPo article.

The first signs [that Obama is "forsaking" campaign rhetoric about openness] have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama’s Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but also escalated the standoff — proposing that government lawyers might take classified documents from the court’s custody to keep the charity’s representatives from reviewing them. 

The article says that there is a "standoff" that Obama’s DOJ has "escalated" that pertains to state secrets.

No.

As a reminder, the question that Vaughn Walker answered on January 5 was whether or not FISA pre-empted state secrets. Ultimately, Walker said it did, and he ruled that he would review the documents submitted in the case to determine whether al-Haramain was an aggrieved party that could sue the government for violating FISA. The Bush Administration appealed that decision–basically arguing that state secrets trumps FISA–and the Obama Administration supported that appeal.

They lost that appeal.

Now, if it were true that Obama were "escalating" a "standoff" about state secrets, then he would have appealed the 9th Circuit decision–I’m not a lawyer, but unless I’m wildly mistaken, that’s how one "escalates" a legal matter. But Obama did not appeal that decision, meaning that Walker’s decision that FISA trumps state secrets stands. With the 9th Circuit decision, this case moved onto the next stage of the proceedings, where Walker would look at the classified filings and made a decision about al-Haramain’s standing. And, as far as the unclassified record in the case shows, that’s where the case stands now (it’s possible Walker has ruled and is allowing the Administration to do a classification review of his ruling, but my gut feel is that Walker hasn’t decided yet).

And there’s another hint that Obama is not "escalating" this "standoff"–one that we here at emptywheel appear to be the only people in creation that are remotely interested in. First, Obama admitted that some of the information submitted earlier in this suit was "inaccurate." And Obama’s DOJ submitted four new filings that corrected this inaccuracy.

The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.

Read more →

Obama Becomes Bush As We Wait For Walker’s Ruling

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graphic by politicalbase

graphic by politicalbase

As you may recall, since February 27, we have been waiting for a decision, of some sort, from Vaughn Walker in the al-Haramain and Consolidated Cases litigation in NDCA. The decision is not in yet; however, there is a new filing in the Consolidated Cases further ingraining the oneness of Obama with Bush in the litigation.

There really wasn’t much doubt about the oneness with the exception of the nuance Marcy noted as to Obama shifting slightly away from privilege in favor of the merits. Slightly is the key word there; the overall tenor of the Obama position in the consolidated wiretapping cases is disgustingly identical to the duplicitous and wrongheaded state secrets policy of Bush/Cheney.

The new filing is by the government, by and through the Obama DOJ, and is a motion to dismiss in a recently consolidated case, McMurray v. Verizon Communications. Interestingly, McMurray was already a plaintiff from the start in the Consolidated Cases, but attempted to file a separate action in July of 2008 in the Southern District of New York challenging the application of Section 802 to their original action that had already been consolidated. Section 802 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C.§ 1885a(a) provides that a civil action “may not lie or be maintained” against electronic communication services providers alleged to have provided assistance to an element of the intelligence community, and “shall be promptly dismissed” if the Attorney General of the United States certifies that one of several circumstances exist with respect to the alleged assistance.

Now you may ask yourself why did McMurray file this challenge in SDNY instead of in Vaughn Walker’s court where his case, and all the others, already was lodged? Excellent question, and one I have no answer for since it was bound to be transferred out to Walker’s court with the rest of the Consolidated Cases including, notably, McMurray’s. Of course, the better question is how did all the cases ever get consolidated in the 9th to start with, and I will get back to that later.

Now, with respect to the motion to dismiss filed Friday the 13th, there is one new wrinkle regarding a takings clause claim, mostly, however, it is notable for the fact that it continues the same crappy and duplicitous pleading style that was so prevalent under Bush. It is yet one more (as if more was needed at this point) indication that Barack Obama has completely morphed into George Bush and Dick Cheney in terms of craven support for government intrusion into the privacy of the citizenry, and the ability to conceal the Constitutionally infirm activity through the unitary and unreviewable imposition of state secrets doctrine.

These counts largely repeat claims plaintiffs, including the McMurray plaintiffs, made in response to the Government’s prior dispositive motion, and fail for the reasons set forth at length in the Government’s brief, which are incorporated in full by reference herein.

Same old song, same old dance. Barack Obama avowed he was a man that believed in the sanctity of the Constitution, the rights of citizens and in transparency of the Executive. Obama would be the agent of change from Bush/Cheney. Except, now that he has taken office, that is all no longer operative. As Glenn Geenwald has noted, the Obama Administration has proven itself just as cravenly addicted to secrecy, imperial executive power and willingness to strip its citizens of their rights under the Constitution, and its Bill of Rights, as Bush and Cheney.

As to the Takings Clause violation allegation that the government claims is newfangled, I believe that is new only to McMurray, other plaintiffs in the Consolidated Cases have at least noticed the claim in their pleadings to the best of my knowledge, but this is a decent opportunity to discuss it a little. I first mentioned the theory well over a year ago in the indemnification post:

In addition to the foregoing, there is an extremely good case to be made that the granting of retroactive immunity to the telcos would comprise an improper and unjust taking of the existing plaintiffs’ right to compensation under the Fifth Amendment and would, therefore, be in direct violation of the Constitution. I don’t want to belabor this thought; just put it out there so that it is considered in the mix. Hey, "Teh Google" is a most marvelous thing; here is an absolutely outstanding discussion of this issue by Professor Anthony J. Sebok of the Cardozo School of Law.

In a nutshell, the takings clause is contained in the Fifth Amendment

…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

and is what protects citizens from having their property interests seized by the government without due process and just compensation. It is what lies at the root of eminent domain cases like the notorious Kelo v. City of New London decision. There is some intellectual merit to the Takings Clause argument, but not a lot of practical hope for success on it. There are far too many ways around the Constitutional provision, several of which the government picked up on in their motion to dismiss. If you are interested in a general primer in how the Takings Clause could theoretically apply to the FISA situation, see the Sebok article referenced in the quote above.

What I find interesting (with a little prodding by Marcy) is that John Yoo and the Bush/Cheney regime planned on being confronted with Takings Clause complaints by citizens when they declared war on the Constitution. Yoo blithely dispensed with the applicability of the takings clause, indeed the entire Bill of Rights effectively, to the President’s military program (and remember the wiretapping was run militarily through the NSA) via a footnote in his infamous March 2003 Torture Memo. As Greenwald described Yoo’s execrable arguments:

The President’s power to use military force domestically in violation of the Bill of Rights applies equally even if the actions are ordered against American citizens on U.S. soil ….. The President, when using military force against American citizens on U.S. soil, is "free from the constraints" not only of the Fourth Amendment, but also of other core guarantees of the Bill of Rights — including First Amendment liberties, Due Process rights, and the takings clause ….. If this isn’t the unadorned face of warped authoritarian extremism, what is?

No kidding. The galling part is to compare and contrast what Yoo tried to do in his sweeping blithe evisceration of the Constitution and Bill of Rights, substantially via a freaking footnote, with a detailed lawyerly dissertation on specific case precedence and statutory history; the merits if you will. See, the Takings Clause can be worked around through proper legal argument, or at least a proper argument therefore made; that is proved by the government’s response in the March 13, 2009 motion to dismiss. But Yoo, Bush and Cheney wanted none of the legal niceties, they wanted to seize supreme unadulterated power and went about doing so in blanket fashion. Now they are using the bludgeon of state secrets to cover the power grab, even under the supposedly enlightened Obama. Different name, but the same totalitarian bludgeon for the same unitary executive power grab.

Oh yes, back to the interesting point about why the cases may have been consolidated in the 9th Circuit in the first place. It always has perplexed me as to how, and why, in the world the government ever allowed all these critical FISA/Fourth Amendment cases to be consolidated in the 9th, the most liberal and rebel appellate circuit of all. If there is any circuit you would think the government would not want to be stuck in, it is the 9th. Yet there they all are, consolidated in Vaughn Walker’s San Francisco courtroom and subject to appeals to panels of the notorious Ninth.

Marcy previously discussed the September Read more →

The Statute of Limitations on Bush’s March 11, 2004 Illegal Wiretapping Expires Today

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Five years ago today, Andy Card and Alberto Gonzales rushed to John Ashcroft’s ICU room to try to trick him into signing the re-authorization for George Bush’s illegal wiretap program over Jim Comey’s objections. Jim Comey arrived at the hospital in time to prevent Card and Gonzales from succeeding.

Five years ago tomorrow, George Bush re-authorized his illegal wiretap program with only the signature of Alberto Gonzales–then White House Counsel–to give it legal sanction.

Five years ago today and tomorrow, attorney Wendell Belew spoke to al-Haramain Director Soliman al-Buthi by telephone. Belew has reason to believe–and once had clear evidence that may have proved–those calls were wiretapped under Bush’s illegal wiretap program.

As bmaz explained last year, in March 2004, FISA had a standard 5-year statute of limitation.

The first question any criminal defense attorney is going to ask is "Gee, is this crime within the statute of limitations"? FISA is subject to the Federal general statute of limitation contained in 18 USC 3282, which is five years. And, remember, the statute starts to run when the crime is committed and/or when the government becomes aware of the conduct; in this case the Department of Justice knew about the conduct as, or before, it was being committed. When we, as citizens learned about it is not the relevant test.

That means that the statute of limitations on the potentially criminal March 11 wiretaps of Belew expire today. By all appearances, that means the statute will expire without George Bush being punished for illegally wiretapping an American citizen, even though clear evidence of that criminal wiretapping almost certainly exists.

Now, as it happens, a District Court Judge may have or may be about to judge whether or not that wiretapping was illegal. I’m referring, of course, to the al-Haramain suit currently before Vaughn Walker. The last known development in that suit came eleven days ago, when the 9th Circuit ruled that Walker should review the wiretap log to determine whether it shows that al-Haramain is an aggrieved party (meaning they were wiretapped illegally), and when the Obama Administration corrected "inaccurate" information on the wiretap program probably submitted three years ago. Since then, nothing has appeared in the docket for the case.

The absence of any activity in the docket could mean one of two things. Read more →

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