Not Seeing Storm Troopers, Not Scratching My Head

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David Kravets suggests that everyone talking about the Cheneyesque brief DOJ submitted in the al-Haramain suit last Friday has been scratching their heads.

Legal scholars, the blogopshere and the twitterati have been scratching their heads for a week following the Obama administration’s assertion that it might "withdraw" (.pdf) classified documents at the center of a closely watched spy case.

Some are wondering whether the feds will use storm-trooper-like tactics to remove the data from the case. 

Just for the record, I am not scratching my head. Nor am I, for that matter, seeing storm troopers.

As a reminder (I’ve already laid this out here for the head scratchers), here is what happened.

  1. The Ninth Circuit refused the Administration appeal of Judge Walker’s ruling that he should review the wiretap log to see if it shows al-Haramain has standing (meaning that Bush broke the law). This set up the next step, which is that Walker would review the document, which is where we’re at now.
  2. Faced with the prospect of a judge looking at the representations the Bush Administration made about the program three years ago, DOJ first said, "please don’t disclose anything without checking with us first." (Okay, admittedly they said this using Cheneyesque language.)
  3. Then, they confessed that Bush had lied submitted inaccurate information  and presumably (in the form of four declarations, three of them from the people who first described this program to the Court) corrected that inaccuracy.

Now, keep a  few things in mind. First, with the declarations submitted on Friday, there is presumably a somewhat detailed and maybe even accurate description of the warrantless wiretap program (as well as a description of how Bush lied submitted inaccurate information) in the hands of Judge Walker.

Second, DOJ has claimed (though not proven the case) that al-Haramain has ties to terrorist organizations. I don’t know whether this is true or not, whether they believe this or not, or whether this is just residual fear-mongering left over from the Bush Administration, but for the sake of argument, let’s pretend that at least some of the people involved believe that al-Haramain has ties to al Qaeda.

DOJ is now faced with the prospect that because someone fucked up by handing al-Haramain something they didn’t mean it to have, they are about to enter into legal proceedings that might result in al-Haramain’s lawyers, almost alone of anyone in the US, seeing the details of the warrentless wiretap program. Read more →

The Secret State Continues to Crumble

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In yet another sign that the counter-terrorist state built on executive secrets continues to crumble, the DC Circuit Court just ruled that judges–and not the government–will get to determine whether classified information would be helpful to detainee habeas corpus petitions. (h/t scribe) And if that information is helpful, then the detainee lawyers will get that information.

In a ruling that may give lawyers for Guantanamo Bay detainees expanded opportunities to challenge the government’s reasons for keeping them confined, the D.C. Circuit Court on Friday spelled out new rules on when the prisoners’ lawyers get to see secret information in government files.   The ruling in Al Odah v. U.S. (05-5117) and consolidated cases can be found here.

Of particular importance, the Circuit Court said that merely because the government contends that secret data will not bolster the detainees’ challenges does not control when a federal judge must provide access to that information for the detainees’ lawyers.  Those lawyers, the Court indicated, may be allowed by a judge to get the withheld information itself — or a substitute that reveals the substance without showing how the government collected it — if the judge finds it would be helpful to the detainees’ challenge.  That is the judge’s job, not the government’s, the panel ruled.

While the Court has given the Administration an opportunity to ask for a review from the full Court, this is yet another example of an Article III Court telling Article II that the Executive cannot deprive litigants access to the Courts simply by saying the material at issue is too secret for the Courts.

As scribe pointed out in email, this ruling is no doubt going to be of interest to Judge Walker, if he does end up ruling that al-Haramain is an aggrieved party. As I reported last week, the Obama Administration has threatened to take its secrets and go home if Walker rules that al-Haramain’s lawyers get to see some of the material in the case. 

Because, for the moment at least, the DC Appeals Court says the Obama Administration can’t take its secrets and go home.

The FISA Dance in the Wake of 9/11

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Looseheadprop asks some good questions about the September 25, 2001 opinion on FISA David Kris requested from OLC.

Now that the Obama Administration has released this opinion (as well as others–see more FDL coverage from Christy and emptywheel), the first thing that strikes me is: How did he get this researched and written so fast (especially during a period when many people where spending lots of work hours reconnecting with friends and family and chewing over every scrap of information coming out of the attack sites)? Or had he started work on it earlier? And if so, why?

The question Kris asked, 

You have asked for our opinion on the constitutionality of amending the Foreign Intelligence Surveillance Act. . . so a search may be approved when the collection of foreign intelligence is "a purpose" of the search. In its current form, FISA requires that "the purpose" of the search be the collection of foreign intelligence.

… presents a ready answer for the timing. After all, Congress made almost precisely this change when it amended FISA as part of the PATRIOT Act, which got rushed through Congress from October 23 to October 26, 2001 ("the purpose" became "a significant purpose").

Change in certification requirement for electronic surveillance and physical searches under FISA from “the purpose” being gathering of foreign intelligence information to “a significant purpose” being gathering of foreign intelligence information.

Under Section 218, Sec. 104(a)(7)(B) and Sec. 303(a)(7)(B) of FISA, 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B) respectively, are amended to strike “the purpose” and to replace it with “a significant purpose.” As amended, under Sec. 104(a)(7)(B), in an application for a FISA court order authorizing electronic surveillance, a national security official must certify that “a significant purpose” of the surveillance is to gather foreign intelligence information. Similarly, in an application for an order authorizing a physical search under FISA, a national security official must certify, under the amended Sec. 303(a)(7)(B), that “a significant purpose” of the search is to gather foreign intelligence information. This has been interpreted to mean that the primary purpose of the electronic surveillance or physical search may be criminal investigation, as long as a significant purpose of the surveillance or search is to gather foreign intelligence information.

And the admission in the memo that "most courts have adopted the test that the ‘primary purpose’ of a FISA search is to gather foreign intelligence" may be the reason the PATRIOT Act ultimately included the modifer "significant" on "purpose." Thus, it seems that Kris was using this memo to prepare more general changes to FISA to make it easier to use intelligence information in criminal prosecutions (as LHP points out).

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Spanking Spak and Spec

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Arlen "Scottish Haggis" Specter–whose political obituary was written yesterday in the form of a dismal poll result and a renewed threat from Pat Toomey—says we don’t need a truth commission because all the details on Bush era crimes are contained in some file cabinets that we need only waltz up to and empty out.

And in case you were wondering, Lee Harvey Oswald acted alone.

Presumably because he believes we need only waltz up to those file cabinets and take out the Cheney indictment, the sole contribution Scottish Haggis made in today’s Truth Commission Hearing was to enter this Hans von Spakovsky column into the record. Given that Hans von Spak accused Leahy of pitching a House Un-American Activities Commission, I can only interpret Haggis’ action as a profoundly cowardly attempt to get back in the good graces of the Club for Growth. 

The column itself shows the depths to which the Heritage Foundation has stooped in these, the declining years of the Conservative Movement. Even setting aside the horrible optics of having someone under investigation for abridging minority civil rights for political gain squawking about "political prosecutions," the column is just of pathetically bad quality.

Hans von Spak begins by exactly repeating (the Heritage Foundation, defender of private property, apparently doesn’t even require original work anymore) an error the WSJ made in January, claiming that nothing resulted from Carl Levin’s 18 month investigation into torture in DOD.

Moreover, Sen. Carl Levin (D-Mich.) held hearings, under oath, over a 2½- year period looking into many of the same issues. His report, though predictably partisan, found no criminal violations.

Aside from this apparent inability to even count (18? 30? no difference to today’s conservative), Hans von Spak apparently believes that the Committee’s findings–that Bush’s dismissal of Article Three and Rummy’s approval of aggressive technique were the "direct cause of detainee abuse" in Gitmo–doesn’t amount to a criminal violation.

And of course, Hans von Spak, like the WSJ, basically endorsed Levin’s approach while ignoring his call for "an outside commission appointed to take this out of politics, that … would have the clear subpoena authority to get to the parts of this which are not yet clear, and that is the role of the CIA." Hans von Spak and WSJ try to fight the idea of a Truth Commission by pointing to the good work of someone effectively supporting a Truth Commission.

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Sheldon Whitehouse Destroys David Rivkin’s “Gallery of Horribles”

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As I liveblogged here, the Republican response to Pat Leahy’s proposal to have a Truth Commission on Bush era crimes is to establish a set of straw men and then shoot them down, without ever addressing the problem that a number of high level Administration officials broke the law.

This exchange between Sheldon Whitehouse and designated Republican shill David Rivkin gets to the key aspects of tactic. Rivkin repeatedly introduced his own assumptions into what the Commission would do, all so he point to the constitutional challenges that only his imagined committee would have. And repeatedly during the hearing, Rivkin claimed the whole point of the commission was to select 12 to 13 high level officials and lay out the evidence of their criminal culpability.

I’m curious, though. If Rivkin has such an exact number of Bush Administration officials who broke the law, why hasn’t he called them out himself as prosecution targets? Or has he simply put his Republican affiliation before our Constitution? 

And isn’t it charming that Rivkin is so concerned about the civil liberties of those who in 37 pages claimed to eliminate both the First and Fourth Amendment?

Here’s my liveblogged transcript (with all the errors that implies):

Whitehouse: Rivkin. You raise the gallery of horribles that might go wrong. If you assume that the purpose is advisory in policy only. If you assume that criminal law enforcement is properly cabined in Exec as it should be. If you assume coordination on issues like immunity. And if it is set up not as private entity but as delegated Congressional oversight authority. Still oppose, even in the absence of parade of horribles.

Rivkin: This assumes too much. To me law enforcement function has variety of aspects. Ultimate decision to proceed with prosecution. 

Whitehouse: no one is suggesting otherwise. 

Rivkin: Deciding as threshold determination whom to investigate.

Whitehouse: We do that in COngress every moment.

Rivkin: RIght in Congress.

Whitehouse: Right to delegate.

Rivkin: I do not beleve it is readily delegable.

Whitehouse: Now you use another hedge word. Properly appointed commission.

Rivkin: Appointments clause? If you could configure commission that makes it an extension of Article I branch. I don’t see how you can delegate oversight responsibility. If it walks like a duck and talks like a duck. WE’ve heard today about criminal investigation, PIN does, on 12 or 14 people, then passes the buck to PIN in public spotlight. If this were contemplated in different context, every law professor would be screaming about it.

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Senate Judiciary Hearing on Truth Commission Liveblog

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Will be on CSPAN3 and the Committee stream.

Meteor Blades has a great roundup of today’s witnesses (actually, his entire post is worth a read, as always with him).

They are:

Thomas-Pickering-140_23908t.jpgThomas Pickering is a career diplomat who served as U.S. ambassador to Jordan (1974–1978), Nigeria (1981–1983), El Salvador (1983–1985), Israel (1985–1988), the United Nations (1989-1992), India (1992–1993) and Russia (1993–1996). He is now vice chairman of Hills & Company, and is co-chair of the 14-year-old International Crisis Group. Three weeks ago Pickering signed a letter  to President Obama seeking a commission to look into the detention, treatment, and transfer of captives after September 11.

gunn.jpgVice Admiral Lee Gunn (Ret.), who served in the final three years of his 35-year military career as Inspector General of the Department of the Navy, is now president of the Institute of Public Research at the CNA Corporation, and president of the 2-year-old American Security Project, which sees its mission as "promoting debate about the appropriate use of American power, and cultivating strategic responses to 21st century challenges."

Farmer.jpgJohn J. Farmer Jr., the former attorney general of New Jersey was Senior Counsel to the 9/11 Commission. He is a partner at Arsenault, Whipple, Farmer, Fasset and Azzarello, L.L.P. and an adjunct professor at Rutgers School of Law-Newark. He wrote "The Rule of Law in an Age of Terror" for the Rutgers University Law Review (2005).

schwarz.jpgFrederick A. O. Schwarz, Jr. Chief Counsel at the Brennan Center for Justice and chief counsel for  Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activity (1975-1976), widely known as the Church Committee for its chairman, Idaho Senator Frank Church. His latest book, written with Aziz Z. Huq, is Unchecked and Unbalanced: Presidential Power in a Time of Terror

Photo_06c45eaa5e2d481dbf2a4cf3513a6.jpgDavid B. Rivkin, Jr. is a partner with Baker & Hostetler, L.L.P. He was chief counsel of the President’s Council on Competitiveness at the White House under George H.W. Bush, where he was in charge of a review of government regulations. He later coordinated the development and implementation of the first Bush’s deregulation efforts. He has argued that the United States has not violated the Geneva Conventions with its captured prisoner policy and that it was a few "bad apples" and not policy that was responsible for what happened at Abu Ghraib and elsewhere, and opposed appointment of a special prosecutor in the Lewis "Scooter" Libby affair.

rabkin.jpgJeremy Rabkin, a renowned scholar of internationalaw, is a professor at George Mason University School of Law in Arlington, Va. A member of the board of directors of the United States Institute of Peace and author, most recently, of the Law without Nations?: Why Constitutional Government Requires Sovereign States. He has argued that all Presidents stretch the law in times of war, but that the U.S. always regains its balance afterward.

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Correcting the Confused al-Haramain Reporting

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I’ve gotten so many links to really confused reporting on what happened in the al-Haramain case on Friday (see here, here, and here, for starters), that I’m going to take the trouble of trying to correct it.

But before I do that, to those perpetuating these confused reports, let me say this:

You guys have all totally missed the plot!!

You have gotten completely distracted by utterly predictable squabbling about how this will move forward.

You have missed the fact that DOJ just admitted that Bush lied provided “inaccurate” information to the Courts, and that DOJ has just submitted new material that presumably corrects that lie “inaccurate” information.

Shew. Sorry about that.

Now the confusion in question stems from the way Judge Walker wrote his January 5 order, which basically said two things. It:

  1. Ruled that he–Judge Walker–would read the secret material in question and decide whether al-Haramain was an aggrieved party (and therefore whether Bush broke the law).
  2. Ruled that the government should take the first steps (doing a classification review and getting al-Haramain’s lawyers a security clearance) of addressing how to move forward with this case given the classified nature of the information involved.

I wish Walker hadn’t written his ruling like that, because it caused the opportunity for this confusion, but since I’m not a federal judge, I can’t do much about that.

But note: Walker did not rule that the government had to give al-Haramain any classified information.

Unfortunately, the two sides focused their briefing on the confusing, second, aspect of Walker’s ruling. Al-Haramain, for some very good tactical reasons, said,

Judge Walker can order you to give us this classified information.

Judge Walker can decide we have the “need to know” and as a result grant us security clearances.

And DOJ, for some very good tactical but ethically suspect reasons, then pretended that Judge Walker had said what, in fact, only al-Haramain had said.

Judge Walker did order us to give al-Haramain this classified information.

Judge Walker did order that he can decide that al-Haramain has the “need to know.”

Now, as it turns out, DOJ had a secret.

Back on (probably) May 12, 2006, when the government told Garr King (the judge who had this before Walker) what they had been doing with al-Haramain, they provided “inaccurate” information. I suspect they only told King about part of what they were doing to al-Haramain, probably leaving out details about data mining and earlier wiretapping and laundering poison fruit to get warrants. And during this whole back-and-forth in the last two months, DOJ knew that. Read more →

OLC Restores 4th Amendment after Hounding from Congress

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In her post on Steven Bradbury’s October 6, 2008 OLC opinion withdrawing the October 23, 2001 OLC memo eviscerating the 4th Amendment, Christy asks some important questions.

In fact, it reads like a thinly veiled, but ever-so-politely worded, call of “bullshit.”

It’s laugh out loud funny.  Or would be if it weren’t for the fact that it took more than 7 years to issue it — during which time the government was still operating under the craptastic legal assumptions, one presumes.

Why was this kept hidden?

I’ve got a pretty good answer why Bradbury’s opinion was kept hidden.

In the exchange between DiFI and Michael Mukasey above–which took place on April 10, 2008–Mukasey equivocated, badly, about whether or not that October 23, 2001 opinion remained in force.

DiFi: Is this memo in force? That the Fourth Amendment does not apply in domestic military.

Mukasey: The principle that the Fourth Amendment does not apply in wartime is not in force.

DiFi: No. The principle that I asked you about? Does it apply to domestic military operations? Is the Fourth Amendment, today, applicable to domestic military operations?

Mukasey: [unclear] don’t know of domestic military operations being carried out today.

DiFi: I’m asking you a question. That’s not the answer. The question is, does it apply?

Mukasey: I’m unaware of any domestic military operations being carried out today.

[back and forth]

Mukasey:  The Fourth Amendment applies across the board regardless of whether we’re in wartime or in peacetime.

[snip]

Mukasey: In my understanding it is not operative.

Well, it turns out it took another six months for Bradbury to withdraw the opinion.

Given Mukasey’s equivocations, I’d say there’s a very good reason they hid the memo (and, by association, the evidence that it had not been withdrawn when Mukasey equivocated wildly). I’d also suggest that, Mukasey knew well of a domestic military operation–DOD’s NSA wiretapping Americans domestically–that was ongoing at the time. And which, until the passage of the FISA Amendment Act, may well have been relying on Yoo’s October 2001 memo for legal cover.

Breaking: Previously Unreleased OLC Opinions Now Released

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A bunch of DOD-related OLC opinions just got released (h/t Spencer)

Of note, the one eviscerating the 4th Amendment has been released, and a key one on FISA that I believe Steven Bradbury didn’t include in his FOIA response on opinions relating to FISA.

Consider this a working thread.

January 15, 2009: Steven Bradbury attempts to partially roll back previous bogus claims

It appears that, just before Bush went out and Obama came in, Steven Bradbury attempted to partially roll back the most egregious opinions of the Bush Administration. Make no mistake, though. Much of this represents just a partial roll back. So rather than saying Bush had no business conducting his illegal wiretapping, Bradbury instead refers to the January 2006 DOJ White Paper which claimed (Tom Daschle’s objections notwithstanding) that the AUMF authorized illegal wiretapping. Similarly, while Bradbury admits that Congress has some authority to make law, that’s a limited admission. 

Retroactive Immunity for the Banksters, Too?

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On October 18, 2007, the Senate Intelligence Committee passed the first version of a bill that would grant corporations retroactive immunity for helping Bush spy on Americans.

The Senate intelligence committee yesterday produced a new bipartisan bill governing foreign intelligence surveillance conducted inside the United States, but objections by several Democratic lawmakers to some of its provisions raised questions about how quickly it might gain passage.

[snip]

It would further give some telecommunications companies immunity from about 40 pending lawsuits that charge them with violating Americans’ privacy and constitutional rights by aiding a Bush administration’s warrantless surveillance program instituted after September 2001. That provision is a key concession to the administration and companies, which lobbied heavily for the provision. 

On October 22, 2007, right in the middle of the larger debate about retroactive immunity, FBI Deputy Director John Pistole gave a pep talk at a money laundering conference, cheering the work bankers had done to help pursue terrorists. He described the pattern analysis FBI was doing on financial transactions.

We established a specialized section in our Counterterrorism Division called the Terrorism Financing Operations Section, or TFOS. 

The mission of our agents and analysts in TFOS is to trace transactions and track patterns.  This painstaking work helps us identify, disrupt, and prosecute terrorists, their associates, their leaders, and their assets. 

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