A Lack Of Party Discipline

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Several commenters over the last few weeks have opined that Democratic leadership should flex its muscle and exercise party discipline by punishing recalcitrant moderates who break ranks and vote with the Republicans to filibuster (deny cloture) on healthcare bill on the floor of the Senate. You are not alone, more than 79,000 people have signed a Progressive Change Campaign Committee petition urging Democratic Senate leadership to strip the chairmanship of any Democratic who votes to filibuster health care reform.

Personally, I have been saying for quite some time that Nancy Pelosi needed to make good on her promise made when first elected Speaker to clean up the ethics in the House and put teeth in ethics enforcement. A disciplined party should possess the courage and fortitude to investigate and discipline ethically dubious members, even of their own party. Especially of their own party in order to set a standard; it looks fraudulent to go after the other party’s violators when you will not do the same with your own.

Alas, neither form of party discipline is in the offing by our Democrats. From The Politico:

Some of the progressives who helped put Nancy Pelosi and Harry Reid in power are demanding that they come down hard on House Ways and Means Committee Chairman Charles Rangel and any Senate committee chairmen who stray from the flock on health care reform.

Don’t hold your breath.

While three Democratic insiders say leaders have privately discussed the possibility of ousting Rangel or asking him to step aside, there has been no move to approach the New York Democrat — and aides to Pelosi have made it clear that she won’t do anything about him until the House Ethics Committee finishes its probe.

Pelosi’s lack of real determination to crack down on ethics should have been evident from her immediate support of Murtha for Majority Leader, not to mention her history of kowtowing to the Democratic Black Caucus on withholding action against William Jefferson (and Rangel).

And as to discipline of the recalcitrant caucus members who would vote with the republicans on a filibuster of healthcare:
Read more →

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Two Data Points on Section 215 and Bush’s Illegal Program

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I’ve been working on adding some of the dates from this FOIA to my warrantless wiretap FOIA, and I wanted to elaborate on two coincidences of timing I pointed out in this post. Mind you, I think we have to assume they’re just coincidences at this point, not causally related. But they do show that they show how Section 215 authority paralleled the events following the hospital confrontation.

First, as I had suggested earlier, the first Section 215 was granted just as the legal issues surrounding Bush’s illegal program came to a resolution following the hospital confrontation. In fact, the first 215 Order was granted the day after a big CYA document from Ashcroft, and 15 days after the new OLC memo for the program.

May 6, 2004, OLC memo from Jack Goldsmith for John Ashcroft: OLC 54 which consists of six copies, some with handwritten comments and marginalia, of a 108-page memorandum, dated May 6, 2004, from the Assistant Attorney General for OLC to the Attorney General, as well as four electronic files, one with highlighting, prepared in response to a request from the Attorney General that OLC perform a legal review of classified foreign intelligence activities. According to the IG Report, much of this was replicated in the January 6, 2006 White Paper.

May 20, 2004: Ashcroft writes memo stating it was not until Philbin and later Goldsmith explained to him that aspects of the NSA’s Other Intelligence Activities were not accurately described in the prior Authorizations that he realized that he had been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.

May 21, 2004: FBI gets its first business record in response to Section 215 of the PATRIOT Act.

The other coincidence is earlier–and while almost certainly a coincidence, much more intriguing. Read more →

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Torture Memos

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Today at 5 pm EST and 2 pm PST/FDL time, I will be hosting Professor David Cole at FDL for a Book Salon discussion of his new compilation of the Bush Administration torture memos. Here is the quick blurb on the book:

On April 16, 2009, the Justice Department released never-before-seen secret memos describing, in graphic detail, the brutal interrogation techniques used by the CIA under the Bush administration’s “war on terror.” Now, for the first time, the key documents are compiled in one remarkable volume, showing that the United States government’s top attorneys were instrumental in rationalizing acts of torture and cruelty, employing chillingly twisted logic and Orwellian reasoning to authorize what the law absolutely forbids.

This collection gives readers an unfiltered look at the tactics approved for use in the CIA’s secret overseas prisons–including forcing detainees to stay awake for eleven days straight, slamming them against walls, stripping them naked, locking them in a small box with insects to manipulate their fears, and, of course, waterboarding–and at the incredible arguments advanced to give them a green light.

Originally issued in secret by the Office of Legal Counsel between 2002 and 2005, the documents collected here have been edited only to eliminate repetition. They reflect, in their own words, the analysis that guided the legal architects of the Bush administration’s interrogation policies.

Renowned legal scholar David Cole’s introductory essay tells the story behind the memos, and presents a compelling case that instead of demanding that the CIA conform its conduct to the law, the nation’s top lawyers contorted the law to conform to the CIA’s abusive and patently illegal conduct. He argues eloquently that official accountability for these legal wrongs is essential if the United States is to restore fidelity to the rule of law.

David Cole is a professor of law at Georgetown University, legal affairs correspondent for The Nation, a frequent contributor to the New York Review of Books, and author of the American Book Award-winning Enemy Aliens. He lives in Washington, D.C. (Amazon.com)

I hope all of you will join me, there will be a full two hours we have with Professor Cole and it will be a fantastic forum for discussion. So be thinking of your questions and discussion points. If you cannot attend, use this thread to leave questions and I and/or another regular here will try to get them portaged over to book salon and asked.

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Obama’s Other Sessions Amendments

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In my last post, I described how the Obama Administration had gotten Jefferson Beauregard Sessions III to introduce an amendment to the PATRIOT Act essentially gutting minimization in the case of pen registers and trap and trace devices. This means they can bulk collect your communication information, find out who you communicate with and for how long, keep that information, and distribute that information, unless a judge “in extraordinary circumstances” tells the government they can’t do so. If you haven’t read that post go do so.

Since that was such a stinker, I figured I ought to figure out what else the Obama Administration had snuck in under cover of the loathsome Sessions’ skirts.

There are basically two other amendments. As I explained, DiFi’s substitute for the PATRIOT renewal made Section 215 worse by requiring an applicant to show only some cockamamie theory on how the records are relevant to international intelligence; the judge doesn’t get to determine whether that theory makes sense or not. But DiFi (with the help of Pat Leahy) put in an exception for librarians, because librarians have a way of getting pissy when the government starts conducting fishing expeditions. One of Sessions’ amendments limits that exception to circulation records and patron data, presumably making it clear that the government can do the same kind of data mining on library computers as they do on every other computer.

The other amendment–which apparently was submitted in two amendments that are virtually identical (one, two)–plays a nice trick with NSL gag orders. As a reminder, NSLs are subpoenas that require no judicial review. The Special Agent in Charge of an FBI office can approve them, based on a statement that shows an agent’s cockamamie theory relating the desired records to an international intelligence investigation. With that subpoena, the agent can get certain kinds of financial records under a gag order.

Now, you may recall that courts around the country have found that gag order to be unconstitutional. So, presumably to fix a Constitutional deficiency, DiFi added language that would have required the FBI to tell financial institutions when the gag order was no longer necessary. For each class of financial provider in question, the bill included language like this:

(4) TERMINATION.—If the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the Federal Bureau of Investigation shall promptly notify the wire or electronic service provider, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

That is, DiFi’s version of the bill basically said, “when you no longer need a gag order (either because you’ve indicted the person in question or you’ve determined the person is totally innocent, you’ve got to tell the service provider that the gag order is no longer in place, and if the service provider feels like it, they can tell their customer.” Sessions’ Obama’s amendment effectively changes that to say:

(4) TERMINATION.—In the case of any request for which a recipient has submitted a notification under paragraph (3)(B), if the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the Federal Bureau of Investigation shall promptly notify the wire or electronic service provider, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

That “submit a notification” refers to the process by which providers legally challenge gag orders. That means that the FBI only has to tell a service provider that a gag order is no longer in effect if the service provider, when they first got the request from the FBI, said, “I’d like to spend some money paying my lawyer to challenge this gag order in court.” Now, this amendment was billed as an attempt to save the FBI from some unnecessary paperwork. And I can imagine when you’re issuing NSLs at the rate that the FBI is doingl, it would be a pain in the ass to chase down every gag order once it expires.

But the real effect of this is to make it highly unlikely that these gag orders will be lifted, in practice. Frankly, it was already unlikely that a bunch of banks and ISPs would willingly offer up to their customers that they had cooperated with the FBI in spying on them. Now, it’s saying that only those banks and ISPs that are willing to fight this legally will ever even know when those gag orders expire, meaning just a teeny fraction of businesses getting NSLs will be telling their customers they helped the FBI to spy on them.

Which has the net effect–I’m sure the Obama Administration hopes–of fixing the Constitutional problems with gag orders while, effectively, keeping those gag orders in place. And, at the same time, preventing a bunch of innocent Americans from learning that in the age of Obama, the government can spy on a wide range of innocent people.

Update: From my liveblog I now see what the duplicate amendments (or one of them) is supposed to do. It’s supposed to make sure that Article III Judges have absolutely no discretion at all to overrule the FBI’s self-certification that something merits a gag order.

I’m sure that won’t be abused.

Here’s all five of the Amendments Sessions introduced with what they do.

091008 Sessions Library HEN09A06: Limits the exception for libraries on Section 215 orders

091008 Sessions NSL Notice HEN09A04, 091008 Sessions NSL Notice HEN09A13: Limit the circumstances in which the FBI has to tell businesses it has issued a National Security Letter to that a gag order is no longer necessary.

091008 Sessions Pen Register HEN09A10, 091008 Sessions known to concern HEN09999: Gut minimization with pen registers.

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Yes, They Are Tracking Hydrogen Peroxide and Acetone

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Remember how last week I used the hypothetical example of using Section 215 of the PATRIOT Act to get records on people who had bought hydrogen peroxide and acetone?

I’m going to make a wildarsed guess and suggest that the Federal Government is doing a nationwide search to find out everyone who is buying large amounts of certain kinds of beauty products. And those people are likely now under investigation as potential terrorism suspects. 

Well, two different Senators used, essentially, the same hypothetical today (albeit in context of National Security Letters).

Cardin: Review tools. Someone buys cleaning products that could be used to make explosive device.

Hey!! That was my suggestion.

Cardin: You don’t want to use NSLs on everyone who buys cleaning supplies in the country. Relevant to investigation. Feinstein pointed out specific and articulable facts. Not going to be second guessed on getting information. Gives us oppty in oversight to make sure not using it for everyone buying cleaning supplies in country.

DiFi: listening to debate. These are given out by many thousand. Specific facts prior to certification. Kyl is right about art-kyoo-la-bull (problem saying that). Would you be amenable to dropping that? Specific is the issue.

Kyl: Good question.

Kyl: If we say that we want to know about Joe Blow buying hydogen peroxide.

I’m not certain, but I think they’d have to use Section 215 rather than NSLs for this purpose.

So while Kyl assures us that they’re not searching everyone in the country buying hydrogen peroxide, it appears very very very likely they are searching some subset of the country for their beauty, home improvement, and cleaning supplies. 

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Rahm’s Placeholder, Forrest Claypool?

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Remember how, in December and January, there were hints that Rahm Emanuel had been trying (in November) to get Rod Blagojevich to help set up a placeholder in his seat, so he could serve as Chief of Staff for two years and then return to the House and run for Speaker?

Well, Blago has repeated and elaborated on that story in a book and the Sun-Times has investigated Blago’s claims in a fascinating article. The Sun-Times reports that Blago claims Rahm asked Blago to appoint Cook County Commissioner Forrest Claypool to his seat; Blago further claims that Rahm told Claypool he could have a Cabinet appointment when he stepped aside to reopen Rahm’s seat for him after two or four years.

I’m interested in this story partly for the way it would fill out the timeline of Rahm’s and Blago’s contacts. Here’s the chronology the Sun-Times describes.

According to Blagojevich’s recently released book, The Governor, Blagojevich and Emanuel spoke Nov. 7 and 8. They discussed Blagojevich appointing a "placeholder," for the congressional seat, according to the book.

[snip]

Claypool’s announcement that he would not seek Emanuel’s seat came Nov. 12, just days after the discussion between Emanuel and Blagojevich.

On the same day as Claypool’s announcement, Jarrett publicly pulled herself out of contention for the Senate seat. She is now a top adviser to the president.

And here’s how that makes the timeline look (I’ve underlined the new information):

November 6: Rahm Emanuel accepts Chief of Staff position; Blago gives a leak to Michael Sneed designed "to send a message to the [Obama] people" that Madigan might get the Senate seat over Jarrett

November 6-8: Louanner Peters called Eric Whitaker to ask who spoke for Obama regarding his preferences for his replacement; Obama told Whitaker no one had that authority, which Whitaker "relayed" this to Peters

November 6-8: Rahm has "one or two" conversations with Blago, about his own seat, as well as Senate seat [note, Blago says one happened on November 7 and one happened on November 8]; Rahm has four conversations with John Harris about the Senate seat

November 7: Rahm and Blago talk about the Senate seat and about appointing a placeholder; Blago tells Advisor A he’s willing to "trade" the Senate seat for Secretary of HHS; Blago discusses HHS with Harris and Advisor B and talks about 3-way deal with SEIU; Read more →

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Vote Fraud in Clay County and the Hanged Census Worker

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By now, you’ve probably heard the horrible story about the census worker and teacher found hanged in Clay County, KY with the word "fed" written on his chest.

Before we assume that this apparent homicide was a response solely to the attacks Michele Bachmann and others have made on the census, it’s worth recalling how Clay County made news earlier this year, when a bunch of local officials were indicted for vote fraud.

The United States Attorney’s Office and the Federal Bureau of Investigation jointly announced today that five Manchester, Ky. officials, including the circuit court judge, the county clerk, and election officers were arrested pursuant to a federal indictment that accused them of using corrupt tactics to obtain political power and personal gain.

The 10-count indictment, unsealed today, accused the defendants of a conspiracy from March 2002 until November 2006 that violated the Racketeering Influenced and Corrupt Organizations Act (RICO). RICO is a federal statute that prosecutors use to combat organized crime. The defendants were also indicted for extortion, mail fraud, obstruction of justice, conspiracy to injure voters’ rights and conspiracy to commit voter fraud.

According to the indictment, these alleged criminal actions affected the outcome of federal, local, and state primary and general elections in 2002, 2004, and 2006. The indictment accused the defendants of the following criminal actions.

Those indicted include a Circuit Court Judge, the school superintendent, the County Clerk, and an election officer (as well as other locals). That trial is currently set for early next year, though they’re in the middle of discovery right now, with the defendants trying to get the grand jury testimony.

In other words, in Clay County, the federal government is in the middle of prosecuting a number of top county officials for completely corrupting the voting system.

While there’s no more reason to believe Sparkman’s death is connected to this case than that it is connected to Bachmann’s inflammatory statements, it should at least caution us against leaping to conclusions. There may well be very localized reasons why people in Clay County don’t want the federal government going door-to-door.

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Travel Week

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I’m off to the big city this week. As I previously noted, on Wednesday I will do a Nation event with Dan Rather and Jane Mayer.

The Nation presents a conversation on the future of news, featuring legendary newscaster Dan Rather, investigative reporter and best-selling author Jane Mayer, pioneering blogger Marcy Wheeler, and longtime editor and publisher–now publisher emeritus–of The Nation, Victor Navasky. Hosted by Katrina vanden Heuvel.

What will the media look like in five years? The discussion will explore the shape and consequences of fundamental shifts in the media landscape. There will also be ample time for audience questions. A cocktail reception with food will follow the discussion. Take this opportunity to hear from and meet some of the most influential journalists of our time.

Wed, Sep 23 at 7 pm
Leonard Nimoy Thalia
$200; Members $150; Day of Show $250

If you want to go, buy tickets in advance and use this code: RAC102 for half off the ticket price.

The rest of the week, I’m going to be in and out of the Clinton Global Initiative. I should get to see both Clinton and Obama speak, as well as that guy who won the most votes in 2000. 

And, if I can find CSPAN tomorrow and Wednesday, I’ll try to check in on the PATRIOT hearings (11AM Tuesday for HJC; 10AM Wednesday for SJC).

If nothing else, I’ll try to post pictures of all the muckety mucks in NYC this week.

Otherwise, you know the drill: bmaz will be raiding the liquor cabinet, you’ll all trash the place, but by the time I get back you’ll have managed to shampoo the carpets so I can pretend I don’t notice a thing.

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No Investigation of Chris Christie for His Rove Chats

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The Office of Special Counsel has announced that it will not investigate Chris Christie’s campaign discussions with Karl Rove since it couldn’t punish Christie even if it found wrong-doing (it’s only available punishment is termination).

The Office of Special Counsel says it won’t investigate because it has no authority to discipline Christie even if a violation were found. Christie resigned last year to run for governor.

I have asked CREW, though, whether they mentioned this little admission from Christie–that he has talked to still-serving AUSAs about working for him once he becomes Governor (presuming he wins).

You know, we’re going to ferret out waste and fraud and abuse in the government. I think you know I’ll do that better than anybody. I’ve got a group of assistant U.S. attorneys sitting down in Newark still doing their job. But let me tell you, they are watching the newspapers. And after we win this election, I’m going to take a whole group of them to Trenton with me and put them in every one of the departments because they saw a lot of waste and abuse being investigated while we were in the U.S. Attorney’s office that didn’t rise to the level of a crime. So I told them, the good news is, when we get to Trenton we don’t have to worry about beyond a reasonable doubt anymore.

It seems to me OSC ought to at least ask which AUSAs Christie spoke about this with–and whether those AUSAs are currently still employed at the US Attorney’s office.

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No One Saw the Bybee One Memo, Either

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One last detail from last years’ torture hearings before HJC. At the hearing with Daniel Levin, Keith Ellison asked whether, if someone relied on the Bybee One memo (the "organ failure" one), whether they could be prosecuted. 

Mr. ELLISON. Do you believe that the earlier memo gave license to people following its direction to engage in illegal techniques, interrogation techniques?

Mr. LEVIN. Well, it included a definition of torture that I frankly disagreed with and which would have, I think, allowed techniques that I would have concluded violated the statute. And it included this discussion of ways that you could overcome the statute, even if it applied and otherwise would have been violated.

Mr. ELLISON. So if somebody were to rely on that memo, the earlier memo, they would have been violating the law intentionally?

Mr. LEVIN. If somebody relied on the first part of that memo and went up to the limits of what it allowed, in my view they would be violating the law.

Now, again, maybe I am wrong and the earlier memo is correct. If somebody relied on the other constitutional overrides of these defenses, in my view they might well have been violating the law. It obviously would depend on the circumstances.

Mr. ELLISON. Did that ever happen?

Mr. LEVIN. I don’t know. I don’t know. I know there have been lots of investigations into sort of how things ended up happening and who was relying on what. My understanding was that that memo was very—was not broadly circulated. And so I don’t know whether people who were engaging in any conduct were even aware of the memo, let alone relying on it. [my emphasis]

Levin reports–about the Bybee One memo–something similar to what we’ve heard about the Bybee Two memo: that not many of the torturers had seen the document.

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

So if both these reports are correct, then the torturers can’t claim to be relying on the Bybee One memo, nor can they claim to be relying on the Bybee Two memo. 

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