Froomkin’s Sins of the Village

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As you’ve heard by now, that beacon of sanity at the WaPo during the Bush years, Dan Froomkin, just got canned. I’ve been puzzling through what Dan might mean with his statement,

I’m terribly disappointed. I was told that it had been determined that my White House Watch blog wasn’t ‘working’ anymore. But from what I could tell, it was still working very well," Froomkin said. "I also thought White House Watch was a great fit with The Washington Post brand, and what its readers reasonably expect from the Post online.

I think that the future success of our business depends on journalists enthusiastically pursuing accountability and calling it like they see it. That’s what I tried to do every day," he continued. "I’m not sure at this point what I’m going to do next. I may take White House Watch elsewhere, or may try something different.

And I keep coming back to his emphasis on "pursuing accountability." So I decided to review a selection of Dan’s most recent columns to see what he might mean by that:

Spending Jitters Don’t Change the Fundamentals

The Amazing Shrinking Regulatory Overhaul

Obama’s New Road Rules May Fall Short

Consolation Prize for Gays

Push Back, Mr. President

Who’s Reading Your E-Mail?

The Foot-Dragging Continues

Baking Transparency Into Government

Good Questions From a Senator and an Activist

Bush’s Red Ink, Obama’s Problem

Too Embarrassing to Disclose?

Crunch Time for Health Care

How Cheney Bent DOJ to His Will

Renouncing Bush’s Worldview

Obama’s Big Health Care Test

Obama Getting ‘Honest’ With Israel

Cheney Watch

The Accidental CEO

And there was an interesting exchange in a live chat earlier in the week where Dan complained that "more news organizations haven’t put top reporters on [the wiretap story] (and the torture story) and told them not to let go until they’ve gotten to the bottom of everything."

Aside from Froomkin’s sheer productivity (particularly as compared to his colleague, Dana Milbank, who complains about writing 3-4 750 word columns a week), these posts reveal certain things. On some issues–torture and wiretapping–Froomkin is increasingly critical, particularly as to Obama’s "schizophrenia" regarding "transparency." On financial, health care, and foreign policy issues, Dan has been balanced–critical at times, but definitely appreciative of the complexity of Obama’s task and his successes there. And of course, he’s still beating up Bush and Cheney.

And that, apparently, is enough to get you fired from the Village rag.

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Holder Refuses to Stand By Statements Saying Violating FISA Breaks the Law

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By far the most disturbing part of the Senate Judiciary Committee oversight hearing today came when Russ Feingold asked Eric Holder whether he stands by a statement he made before the American Constitution Society last year.

In the midst of a speech that repeated "rule of law" like a Greek Chorus, after introducing this passage from his speech by saying certain steps taken by the Bush Administration "were unlawful," Holder said, "I never thought a President would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."

When Feingold asked Holder whether he stands by that statement, Holder ignored the early part of his speech where he described all of Bush’s abuses to be "unlawful," and instead tried to claim he was narrowly saying that Bush simply "contravened" FISA.

FEINGOLD: On another topic, I wrote to the president on Monday about my continued concern that the administration has not formally withdrawn certain legal opinions, including the January 2006 white paper that provided the justification for the Bush administration’s warrantless wiretapping program. At the letter was prompted in part by a recent speech that I’m sure you’re aware of by the director of national intelligence in which he asserted that the program was not illegal, but he later clarified that.

In a speech to the American Constitutional Society in June 2008, you, sir, set the following. "I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."

And the president himself also several times as a senator and during the campaign said the program was illegal. Now that you are the attorney general, is there any doubt in your mind that the warrantless wiretapping program was illegal?

HOLDER: Well, I think that the warrantless wiretapping program as it existed at that point was certainly unwise in that it was put together without the approval of Congress and as a result did not have all the protections, all the strength that it might have had behind it, as — as I think it now exists with regard to having had congressional approval of it. So I think that the concerns that I expressed in that speech no longer exist because of the action that Congress has taken in regard…

FEINGOLD: But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to be an illegal, because that’s certainly the implication of what you said in the quote I read and the explicit statement of the man who is now president of the United States.

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Dennis Blair’s Spokesperson: The Domestic Surveillance Program Violates the Fourth Amendment

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I’ve already posted on the general contents of Lichtblau and Risen’s seemingly quarterly report that illegal wiretapping is still going on–including the eye-popping news that Bill Clinton’s emails were illegally accessed. But I wanted to focus on one really critical passage of the story.

The N.S.A. declined to comment for this article. Wendy Morigi, a spokeswoman for Dennis C. Blair, the national intelligence director, said that because of the complex nature of surveillance and the need to adhere to the rules of the Foreign Intelligence Surveillance Court, the secret panel that oversees surveillance operation, and “other relevant laws and procedures, technical or inadvertent errors can occur.”

“When such errors are identified,” Ms. Morigi said, “they are reported to the appropriate officials, and corrective measures are taken.” [my emphasis]

The DNI is basically blaming its "technical or inadvertent errors" [no word about Clinton’s emails, which can’t be inadvertent] on "the need to adhere to the rules of FISC and other relevant laws and procedures."

Not only does this not make sense, but it completely undercuts any claim that this program is legal under the Fourth Amendment. 

In one of the most important posts of mine that few people ever read, I explained why. I showed that the FISA Court of Review understood the Protect America Act (and I believe the same holds true for the FISA Amendment Act program) does not, by itself, comply with the Fourth Amendment. Rather, the FISCR explicitly said that the wiretap program only complied with the Fourth Amendment’s probable cause requirement through the application of a provision in Executive Order 12333 that requires only that the Attorney General "determine" that surveillance is directed against an agent of a foreign power. And the PAA program (and, I assume, the FAA program) only complies with the Fourth Amendment’s requirement for particularity through a set of procedures not mandated by PAA or FAA, and not shared with the telecoms handing over their customer data.

The FISCR explained:

The petitioner’s arguments about particularity and prior judicial review are defeated by the way in which the statute has been applied. When combined with the PAA’s other protections, the [redacted] procedures and the procedures incorporated through the Executive Order are constitutionally sufficient compensation for any encroachments.

The [redacted] procedures [redacted] are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. [redacted] Although the PAA itself does not mandate a showing of particularity, see 50 USC 1805b(b), this pre-surveillance procedure strikes us as analogous to and in conformity with the particularity showing contemplated by Sealed Case. [my emphasis]

These are precisely the procedures, I suspect, that the DNI’s office is now blaming for the "inadvertent" review of US person emails.

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Illegal Wiretapping … Still; Bill Clinton’s Email Accessed

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Lichtblau and Risen are back with what feels like a quarterly update reporting that Americans are still being illegally surveilled.

Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

Both the former analyst’s account and the rising concern among some members of Congress about the N.S.A.’s recent operation are raising fresh questions about the spy agency.

[snip]

He said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

These reports feel so familiar. What is new, though, is that people like Rush Holt (who was quoted extensively in the article) are getting pissed enough that they’re giving more details about the abuses in the program. Read more →

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Russ Feingold Throws Vaughn Walker a Softball

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With this letter:

I am writing to reiterate my request for you to formally and promptly renounce the assertions of executive authority made by the Bush Administration with regard to warrantless wiretapping.  As a United States Senator, you stated clearly and correctly that the warrantless wiretapping program was illegal.  Your Attorney General expressed the same view, both as a private citizen and at his confirmation hearing.

It is my hope that you will formally confirm this position as president, which is why I sent you a letter on April 29, 2009, urging your administration to withdraw the unclassified and highly flawed January 19, 2006, Department of Justice Legal Authorities Supporting the Activities of the National Security Agency Described by the President (“NSA Legal Authorities White Paper”), as well as to withdraw and declassify any other memoranda providing legal justifications for the program.  Particularly in light of two recent events, I am concerned that failure to take these steps may be construed by those who work for you as an indication that these justifications were and remain valid. 

On June 8, Director of National Intelligence Blair asserted in a speech and in response to a question from a reporter that the warrantless wiretapping program “wasn’t illegal.” His office subsequently clarified that he did not intend to make a legal judgment and that he had meant to convey only that the program was authorized by the president and the Department of Justice.  Nonetheless, Director Blair’s remarks – which directly contravene your earlier position, as well as the position of Attorney General Holder – risk conveying to the Intelligence Community, whose job it is to explore legally available surveillance options, that not complying with the Foreign Intelligence Surveillance Act may be such an option.  Moreover, his “clarification” highlights the need to formally renounce the legal justification that the “White Paper” provides. 

In addition, I asked your nominee to be General Counsel for the Director of National Intelligence, whether, based on the “White Paper” and other public sources, he believed that the warrantless wiretapping program was legal.  His written response to my question, which was presumably vetted by your administration, indicated that, because the program was classified, he could not offer an opinion.  Should he be confirmed, this position, too, risks conveying to the Intelligence Community that there may be classified justifications for not complying with FISA.  As a member of the Senate Intelligence Committee who has seen all of the legal justifications, classified and unclassified, that were offered in defense of the warrantless wiretapping program, I strongly disagree with this implication. 

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A Funny Thing Happened On The Way To al-Haramain Justice

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As you will recall, there was an important hearing in the Northern District of California District Court (NDCA), Judge Vaughn Walker presiding, on June 3. There were significant briefs from both the plaintiffs al-Haramain and the defendant government filed a few days before the hearing. As MadDog pointed out, Judge Walker has subsequently issued a briefing order on June 5 making more specific the lay of the land.

The reports from the hearing were that it was one for the ages and there were calls for a transcript. I now have one in my hot little hands. I am sorry, but I cannot post the entire transcript; they are the proprietary product of the individual court reporters, and the preparation of transcripts is a source of income to them. Court reporters have a difficult job and they are entitled to this protection, and I will respect it.

The foregoing having been said, this hearing was a rare thing; an amazing blend of seriousness and comedy presided over by a Judge both firmly in control of difficult proceedings and wielding a fine and dry sense of humor. In the passages that follow, the following will be the pertinent abbreviations: JW is Judge Vaughn Walker, JE is al-Haramain attorney Jon Eisenberg and TC is DOJ/Government’s attorney Anthony Coppolino.

[JW] Well, Counsel, I’ve read your papers and now have a much better sense of that old expression about ships passing in the night.

And this really is true, but it is not just the parties’ ships that are crossing in the night, the government is sailing blindly and willfully by the court too. Coppolino could literally have just held up a paddle every time he was to speak, like those golf course marshals, with the words "Same Old Shit Judge!" printed on it. He really is a broken record and is willing to do anything, including insulting the court’s intelligence, to get a ruling he can appeal immediately. Here is a prime example:

[TC] I think, you know, you talk about two ships passing in the night, and I certainly think that’s an apt description, I think we now have ships passing, again, in different directions, because the issue — the issue of standing and whether there is a genuine issue of fact and whether we could dispute their allegations of standing, of course, would turn on information we have, Read more →

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Vaughn Walker’s Chess Game: Sue the Telecoms Part One

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In two earlier posts I laid out where Vaughn Walker seems to be going with the warrantless wiretapping cases. In this post, I’m going to consider his suggestion–made in his ruling rejecting a challenge to retroactive immunity–that the plaintiffs could sue the telecoms for activities after January 17, 2007 (note, Walker said January 7, but it’s almost certain he meant January 17).

Because, however, section 802’s immunity provision may only be invoked with regard to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007, the dismissal is without prejudice. On May 15, 2009, plaintiffs submitted a “notice of new factual authorities in support of
plaintiffs’ opposition to motion of the United States” to dismiss. Doc #627. In the notice, plaintiffs cite news articles published in 2009 reporting post-FISAAA warrantless electronic surveillance activities by the NSA. Plaintiffs argue that these articles constitute “proof that the certification of former Attorney General Michael Mukasey that is the sole basis for the government’s pending motion to dismiss is not supported by ‘substantial evidence.’” Doc #627 at 3. The court disagrees. The court believes that the Attorney General has adequately and properly invoked section 802’s immunity to the extent that the allegations of the master
consolidated complaints turn on actions authorized by the president between September 11, 2001 and January 7, 2007. The court also believes, however, that plaintiffs are entitled to an opportunity to amend their complaints if they are able, under the ever-morestringent pleading standards applicable in federal courts (see, e g, Ashcroft v Iqbal, ___ US ___, 129 S Ct 1937 (2009)), to allege causes of action not affected by the Attorney General’s successful invocation of section 802’s immunity.

EFF had submitted the recent Lichtblau and Risen article in support of their argument that they could sue for past abuses, and in response, Walker said, "Well, why don’t you sue for more recent abuses?" 

Is Walker serious? Does he really think there is means to do that?

The Recent History of the Wiretap Program and the Immunities

Let’s start by looking at the recent history of the mass wiretap program along with the immunities offered by Congress in 2007 and 2008.

January 10, 2007: FISA Court issues first order covering the program

January 17, 2007: Alberto Gonzales informs Congress FISA Court will now approve wiretap program

May 2007: FISA Court judge rejects Administration’s order for a basket warrant

May 15, 2007, 10 AM: Jim Comey testifies before Senate Judiciary Committee, describes Hospital confrontation

May 15, 2007, 10 AM: US Intelligence meets to discuss collecting more intelligence in case of kidnapped soldiers in Iraq

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Cheney’s and Gonzales’ CYA Libraries

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On March 12 or 13, 2004, after Jim Comey threatened to quit because George Bush had reauthorized warrantless wiretapping over Comey’s objections, Bush ordered Alberto Gonzales to write up notes of his March 10, 2004 meeting with members of Congress; the congressional meeting would serve as Gonzales’ excuse for having visited John Ashcroft in the ICU ward. Gonzales would go on to carry those notes around with him in a briefcase, thereby violating rules on treating classified information. After moving to DOJ in 2005, Gonzales did not feel safe leaving the documents in one of the DOJ safes accessible by–among others–Jim Comey (there was also one in the AG office that woudl presumably not be accessible to Comey).

On June 1, 2005, the day after Alberto Gonzales claims to have passed on Jim Comey’s warning to the NSC Principals Committee of the fallout that would come from their continuing to approve torture, the CIA produced a document that purported to tell the benefits of the torture program. That is one of two documents Cheney requested from the National Archives earlier this year to prove that torture worked. It is a document Cheney kept in his "immediate office files" in a file called "detainees."

And if that doesn’t make you suspect Cheney and Gonzales got worried enough to start building up their own little CYA libraries to protect themselves from the torture (and wiretap) fallout, consider some of the other document included in Alberto Gonzales’ briefcase of highly classified documents.

The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders about the NSA surveillance program when Gonzales was the White House Counsel; draft and final Office of Legal Counsel opinions about both the NSA surveillance program and a detainee interrogation program;

[snip]

The envelope containing the documents relating to a detainee interrogation program bore classification markings related to that program. Each document inside the envelopes had a cover sheet and header-footer markings indicating the document was TS/SCI. The documents related to the NSA surveillance program discussed in Gonzales’s handwritten notes as well as to a detainee interrogation program. The documents included Office of Legal Counsel opinions that discuss the legal bases for various aspects of the compartmented programs, memoranda summarizing the operational details of the programs, [my emphasis]

Now, as I understand it, only the 2005 memos–and not the 2002 or 2003 memos authorizing torture–bear the markings of the compartment of that program (the middle redacted phrase, as I understand it, would be the compartment). Read more →

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Vaughn Walker’s Chess Game: The New Rules

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The other day, I did a post that summarized where we are on the interlocking warrantless wiretap claims. I summarized the state of affairs as follows:

  • Al-Haramain’s briefing on summary judgment due in late summer with a hearing September 1
  • The retroactive immunity challenge headed to the 9th for appeal, plus a possible refiling for telecom actions (probably) after January 7, 2007
  • The hearing in Jewel scheduled for July 15
  • The state cases dismissed pretty definitively
  • The Jeppesen ruling and its potential effect on the government’s invocation of state secrets in Jewell
  • Any discovery action in the Seda case
  • The legally required IG report on warrantless wiretapping due (ha!) next month

Since the beginning of the year, Walker has been proceeding very deliberately (read, slowly) with the cases under his control (indeed, the September 1 hearing date for al-Haramain may suggest he continues to do so), during which time a number of issues in these cases have solidified. In some cases, this holds true just for his courtroom; in others, it holds true at the 9th Circuit. Most haven’t been tested in SCOTUS yet. This deliberation sucks, insofar as the criminal statute of limitations on the primary illegal wiretapping that occurred in March 2004 has expired. But I think Walker allowed everything to mature such that–on Thursday–he felt he could move three of them forward at once. In this post, I’ll explain what I think has matured in these cases, and look at how it affects the Jewel suit against the government. In a follow-up post I’m going to look at what it might mean for post-January 7, 2007 surveillance.

Here’s my NAL understanding of what has matured in that time (as always, feel free to kick my ass on my misunderstanding of the law or any other aspect of this).

  • The Court of Appeals made it clear that the government must assert state secrets with respect to individual pieces of evidence, not information. This means the government cannot–as it has tried to–just declare the entire question of whether US person data was vacuumed up a state secret.
  • The Court of Appeals refused the government’s interlocutory appeal of Walker’s ruling that al-Haramain had sufficiently proved it had aggrieved status such that he could review the evidence to see if the charity had been wiretapped (this was also an unsuccessful attempt to appeal his ruling that FISA trumped state secrets that they had flubbed the previous summer). This means the 9th is probably going to give Walker leeway to rule on other aggrieved party statuses, if he does so.
  • Vaughn Walker got four new declarations presumably correcting an "inaccuracy" in how Bush’s DOJ had described the surveillance done on al-Haramain and probably giving him a much better idea how the surveillance worked.
  • Vaughn Walker just affirmed the government’s insistence that the legislative record holds significant sway in these proceedings, but also that under Navy v. Egan Congress can legislate restrictions on the handling of classified information. This carves out a space where a judge can assess liability for illegal surveillance, even in the face of the government’s attempt to claim this is all secret (though Walker’s affirmation of this argument hasn’t been tested yet). 
  • The Supreme Court ruled in Iqbal that a plaintiff must submit specific facts for a claim to overcome qualified immunity of a government employee in his official duties.

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Vaughn Walker’s Chess Game: The Cases

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I know we joke (and usually mock) the notion that Obama is playing 11 dimensional chess with all the active court cases of late. But I believe Vaughn Walker, the judge overseeing all the warrantless wiretapping cases, really is playing chess. All of the relevant cases have been consolidated under him (though there are two related cases, which I’ll get to), and in the process, he has gotten pretty damn fed up with the government’s attempt to game the system, and partly as a result (and mostly because it is right in terms of law), he appears to be consciously working through all the suits together with an eye toward some kind of justice in the case.

In this post, I’m going to lay out the many factors at play here–the four cases (broadly defined) before Walker, two other related cases, and the IG report. In two follow-up posts, I’ll explain where I think this will go from here. 

Al-Haramain:  The Islamic charity once had a wiretap log showing allegedly illegal wiretaps from 2004, yet the government has promised to appeal any order that it make that–or other materials–available to litigate the suit. In response, Judge Walker has directed plaintiffs to submit a motion for summary judgment, with a hearing scheduled September 1; the parties are working on a briefing schedule now.

Retroactive Immunity Challenge: Electronic Frontier Foundation and other groups challenged the constitutionality of Congress’ grant of retroactive immunity to the telecoms under FISA Amendments Act. Yesterday, Walker dismissed the challenge, finding that Congress had explicitly directed the Attorney General that he could certify the telecoms to receive immunity. Significantly, Walker invoked the legislative record of FAA to support both his ruling that the law did not violate the Constitution and his finding that "plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities." In addition, Walker recalled that Navy v. Egan allows Congress to limit the executive branch’s control of national security issues, including classification–but that it had specifically allowed the executive to keep the AG certifications secret here. The plaintiffs have said they will appeal, and given Walker’s comment that, "the lack of a charge to the Attorney General [specifically directing the Attorney General to undertake review and to submit to the court the specified certifications] remains a problem," they are sure to focus on their argument that Congress abdicated its own rule-making authority to the Attorney General.  In addition, Walker has dismissed this suit without prejudice, suggesting that if plaintiffs can amend their complaint to cover telecom wiretapping not covered by the immunity granted by FAA, they are welcome to do so; significantly, Walker reminds plaintiffs that immunity only covers wiretapping that happened between September 11, 2001 and January 7, 2007.

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