Chuck Schumer

Chuck Schumer Got Results!

Motherboard has an interesting new detail on the Silk Road investigation from a mostly refused FOIA.

The few pages released show the following timeline:

June 1, 2011: Gawker publishes this story describing Silk Road.

June 5, 2011: Chuck Schumer gives a press conference repeating details from the story and claiming,
The DEA has confirmed they are aware of the site, and while they won’t confirm or deny that an investigation is underway, from my years of experience, I’d bet my bottom dollar in this instance there is one underway,

June 6, 2011: NY Organized Crime Drug Enforcement Strike Force gets tasked with investigating Silk Road.

Screen Shot 2015-08-26 at 12.52.58 PM

June 15, 2011: DEA opened a Personal History Report for its investigation into Silk Road

Screen Shot 2015-08-26 at 12.51.21 PM


I find the Gawker to Schumer to New York law enforcement to feds very interesting given yesterday’s events.

The Danger of Someone Criticizing Political Pork Landing on the Capitol Lawn

The WaPo has a good review of how postal service worker Doug Hughes managed to fly his gyrocopter onto the Capitol lawn without being spotted by the Secret Service or other security forces.

But the best part of the story cites corporate sucklings Chuck Schumer and Ron Johnson expressing dismay that the security theater draping DC didn’t prevent Hughes from landing a harmless aircraft on their lawn.

On Capitol Hill, there was less concern Thursday about Hughes’s message than how he delivered it — flying into the heart of the nation’s capital and alighting on the Capitol lawn about 1:30 p.m. in what amounts to an airborne go-cart, powered by something like a lawn mower engine, and kept aloft by an overhead rotor and a small propeller.

“How did it happen?” Sen. Charles E. Schumer (D-N.Y.) wondered aloud. “How did the helicopter get through? Why weren’t there alarm bells that went off? Why wasn’t it intercepted? Did we know about it? How far from the Capitol grounds did we know?”

Schumer, the Senate’s third-ranking Democrat, added: “Just saying it’s a little helicopter, or it’s one person, or it was harmless, does not answer these questions. And we need to know what happened.”

Sen. Ron Johnson (R-Wis.), chairman of the Homeland Security and Governmental Affairs Committee, said in a statement: “I am deeply concerned that someone has the ability to fly for over an hour through the most restricted airspace in our country, past the White House, and land on the lawn of the Capitol.”

He added that he wants “a full accounting by all federal organizations entrusted with securing the United States from this and similar events.” That Hughes was able to pull off the stunt, Johnson said, is “a reminder that the risk to America and Americans is ever present.”

As Nancy Pelosi noted in comments yesterday (which were almost, but not quite, this shrill), there are reasons to want the Capitol to remain fairly open. And it is fairly open — easier to get into than an airport, for example. That makes it accessible to the thousands of local lobbying and school groups who want to see their Representatives’ office.

But it also makes it permeable by lobbyists.

The big money lobbyists, of course, do far more damage to this country than a gyrocopter ever could, damage that Schumer and Johnson are enthusiastic participants in.

Which is sort of Hughes’ point.

I expect more ironic symbolism from this event going forward, as a bunch of security-industry intoxicated Congressmen take as a lesson from this that they need to insulate themselves even more from the people warning about them insulating themselves form their constituents.

Eric Holder Resigns, Will Likely Go Back to Representing Banks at Covington and Burling

As we speak, Chuck Schumer is probably yelling into a phone trying to get President Obama to nominate Wall Street’s US Attorney Preet Bharara to succeed Eric Holder as Attorney General. “Barahck,” Schumer is probably yelling, “I can get Mitch to agree to push Preet through in the Lame Duck.”

That’s because Holder has just announced his resignation, pending confirmation of his successor.

The three most interesting details in Carrie Johnson’s scoop on Holder’s resignation are that he is likely to return to Covington and Burling, where — like former Criminal Division Chief Lanny Breuer before him — he will represent banks as they craft sweetheart deals with DOJ.

Friends and former colleagues say Holder has made no decisions about his next professional perch, but they say it would be no surprise if he returned to the law firm Covington & Burling, where he spent years representing corporate clients.

Nice to know a guy can still profit off of 6 years of overlooking rampant bank crime.

Johnson also reported that Holder plans to push through racial profiling guidelines that will protect African Americans but not Muslims.

Long-awaited racial profiling guidelines for federal agents will be released soon, too. Those guidelines will make clear that sexual orientation, ethnicity and religion are not legitimate bases for law enforcement suspicion, but controversial mapping of certain communities — including Muslim Americans — would still be allowed for national security investigations, one of the sources said.

That will soil the one real bright spot of Holder’s tenure at DOJ, his fight for civil rights.

Finally, Johnson reported that Don Verrilli — the guy who seemed to, but did not quite — lose the ObamaCare fight is the leading candidate to replace Holder.

The sources say a leading candidate for that job is Solicitor General Don Verrilli, the administration’s top representative to the Supreme Court and a lawyer whose judgment and discretion are prized in both DOJ and the White House.

By “judgement and discretion,” I wonder whether Johnson’s sources are referring to Verrilli’s stubbornness in not correcting the lies he told SCOTUS (wittingly or unwittingly) about DOJ’s implementation of FISA Amendments Act in the Amnesty v. Clapper case. By claiming, falsely, that DOJ gives defendants notice that they’ve been caught using Section 702, Verrilli successfully beat back the Justices’ concerns that no one would ever have standing to challenge these laws.

For what it’s worth, I think people are vastly overestimating the time it will take to replace Holder. After all, Republicans are on the record that they believe Holder to be contemptuous of Congress. While the House GOP that is suing him don’t actually get a vote on his replacement, surely they’ll convince their proxy Ted Cruz to represent their contempt.

Thus, for the right candidate, I suspect confirmation will happen quickly, just as Caroline Krass got confirmed in a landslide when the costs of leaving Robert Eatinger — who referred CIA’s overseers to DOJ for investigation — in place as Acting CIA General Counsel became clear.

I’m just not convinced Verrilli is that guy. And while Preet did lead the investigation into Alberto Gonzales’ politicization of the US Attorneys when he worked for Schumer, surely the GOP cares more about his diligent efforts to not investigate the banks in the interim.

Every Senator Who Supports USA Freedom May Be Affirmatively Ratifying a Financial Dragnet

Now that I’ve finally got around to reading the so-called transparency provisions in Patrick Leahy’s USA Freedom Act, I understand that one purpose of the bill, from James Clapper’s perspective, is to get Congress to ratify some kind of financial dragnet conducted under Section 215.

As I’ve laid out in detail before, there’s absolutely no reason to believe USA Freedom Act does anything to affect non-communications collection programs.

That’s because the definition of “specific selection term” permits (corporate) persons to be used as a selector, so long as they aren’t communications companies. So Visa, Western Union, and Bank of America could all be used as the selector; Amazon could be for anything not cloud or communications-related. Even if the government obtained all the records from these companies — as reports say it does with Western Union, at least — that would not be considered “bulk” because the government defines “bulk” as collection without a selector. Here, the selector would be the company.

And as I just figured out yesterday, the bill requires absolutely no individualized reporting on traditional Section 215 orders that don’t obtain communications. Here’s what the bill requires DNI to report on traditional 215 collection.

(D) the total number of orders issued pursuant to applications made under section 501(b)(2)(B) and a good faith estimate of—
(i) the number of targets of such orders;
(ii) the number of individuals whose communications were collected pursuant to such orders; and
(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection;

The bill defines “individuals whose communications were collected” this way:

(3) INDIVIDUAL WHOSE COMMUNICATIONS WERE COLLECTED.—The term ‘individual whose communications were collected’ means any individual—
(A) who was a party to an electronic communication or a wire communication the contents or noncontents of which was collected; or
(B)(i) who was a subscriber or customer of an electronic communication service or remote computing service; and
(ii) whose records, as described in subparagraph (A), (B), (D), (E), or (F) of section 2703(c)(2) of title 18, United States Code, were collected.

Thus, the 215 reporting only requires the DNI to provide individualized reporting on communications related orders. It requires no individualized reporting at all on actual tangible things (in the tangible things provision!). A dragnet order collecting every American’s Visa bill would be reported as 1 order targeting the 4 or so terrorist groups specifically named in the primary order. It would not show that the order produced the records of 310 million Americans.

I’m guessing this is not a mistake, which is why I’m so certain there’s a financial dragnet the government is trying to hide.

Under the bill, of course, Visa and Western Union could decide they wanted to issue a privacy report. But I’m guessing if it would show 310 million to 310,000,500 of its customers’ privacy was being compromised, they would be unlikely to do that.

So the bill would permit the collection of all of Visa’s records (assuming the government could or has convinced the FISC to rubber stamp that, of course), and it would hide the extent of that collection because DNI is not required to report individualized collection numbers.

But it’s not just the language in the bill that amounts to ratification of such a dragnet.

As the government has argued over and over and over, every time Congress passes Section 215’s “relevant to” language unchanged, it serves as a ratification of the FISA Court’s crazy interpretation of it to mean “all.” That argument was pretty dodgy for reauthorizations that happened before Edward Snowden came along (though its dodginess did not prevent Clare Eagan, Mary McLaughlin, and William Pauley from buying it). But it is not dodgy now: Senators need to know that after they pass this bill, the government will argue to courts that it ratifies the legal interpretations publicly known about the program.

While the bill changes a great deal of language in Section 215, it still includes the “relevant to” language that now means “all.” So every Senator who votes for USAF will make it clear to judges that it is the intent of Congress for “relevant to” to mean “all.”

And it’s not just that! In voting for USAF, Senators would be ratifying all the other legal interpretations about dragnets that have been publicly released since Snowden’s leaks started.

That includes the horrible John Bates opinion from February 19, 2013 that authorized the government to use Section 215 to investigate Americans for their First Amendment protected activities so long as the larger investigation is targeted at people whose activities aren’t protected under the First Amendment. So Senators would be making it clear to judges their intent is to allow the government to conduct investigations into Americans for their speech or politics or religion in some cases (which cases those are is not entirely clear).

That also includes the John Bates opinion from November 23, 2010 that concluded that, “the Right to Financial Privacy Act, … does not preclude the issuance of an order requiring the production of financial records to the Federal Bureau of Investigation (FBI) pursuant to the FISA business records provision.” Given that Senators know (or should — and certainly have the ability to — know) about this before they support USAF, judges would be correct in concluding that it was the intent of Congress to permit the government to collect financial records under Section 215.

So Senators supporting this bill must realize that supporting the bill means they are supporting the following:

  • The interpretation of “relevant to” to permit the government to collect all of a given kind of record in the name of a standing FBI terrorism investigation.
  • The use of non-communication company corporate person names, like Visa or Western Union, as the selector “limiting” collection.
  • The use of Section 215 to collect financial records.
  • Not requiring the government to report how many Americans get sucked up in any financial (or any non-communications) dragnet.

That is, Senators supporting this bill are not only supporting a possible financial dragnet, but they are helping the government hide the existence of it.

I can’t tell you what the dragnet entails. Perhaps it’s “only” the Western Union tracking reported by both the NYT and WSJ. Perhaps James Cole’s two discussions of being able to collect credit card records under this provision means they are. Though when Leahy asked him if they could collect credit card records to track fertilizer purchases, Cole suggested they might not need everyone’s credit cards to do that.

Leahy: But if our phone records are relevant, why wouldn’t our credit card records? Wouldn’t you like to know if somebody’s buying, um, what is the fertilizer used in bombs?

Cole: I may not need to collect everybody’s credit card records in order to do that.


If somebody’s buying things that could be used to make bombs of course we would like to know that but we may not need to do it in this fashion.

We don’t know what the financial dragnet is. But we know that it is permitted — and deliberately hidden — under this bill.

Below the rule I’ve put the names of the 18 Senators who have thus far co-sponsored this bill. If one happens to be your Senator, it might be a good time to urge them to reconsider that support.

Patrick Leahy (202) 224-4242

Mike Lee (202) 224-5444

Dick Durbin (202) 224-2152

Dean Heller (202) 224-6244

Al Franken (202) 224-5641

Ted Cruz (202) 224-5922

Richard Blumenthal (202) 224-2823

Tom Udall (202) 224-6621

Chris Coons (202) 224-5042

Martin Heinrich (202) 224-5521

Ed Markey (202) 224-2742

Mazie Hirono (202) 224-6361

Amy Klobuchar (202) 224-3244

Sheldon Whitehouse (202) 224-2921

Chuck Schumer (202) 224-6542

Bernie Sanders (202) 224-5141

Cory Booker (202) 224-3224

Bob Menendez (202) 224-4744

Sherrod Brown (202) 224-2315



DOJ’s Cake-Eating on Journalists Will Build Support for Faulty Journalist Shield

As many people have reported, SCOTUS today declined to take Jim Risen’s appeal of the Fourth Circuit’s decision requiring him to testify in Jeff Sterling’s trial. As I noted at the time of the decision, this effectively guts any reporter’s privilege in the circuit that matters: the Fourth Circuit governs the CIA and JSOC.

Now, Risen’s team is calling on DOJ to uphold Eric Holder’s promise of last week, that no journalist engaged in journalism will be prosecuted on his watch.

“As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”

As Kevin Gosztola has noted on Twitter, however, there’s a difference between prosecution and jailing under contempt. So that promise is likely meaningless.

And not only does that put Holder where he wants to be: with the courts on his side, exercising the discretion to jail a journalist or not as he can convince the court.

Furthermore, consider how it creates pressure for Chuck Schumer’s (Administration-backed) badly flawed press shield bill. The bill wouldn’t cover me. It wouldn’t cover Glenn Greenwald. And it would leave James Risen precisely where he is now, subject to a judges ruling on the significance of the information he has.

There was already a lot of support for this bill. But now that the Executive Branch has gained all the leverage where it matters, I imagine there’ll be a greater push to Do Something — even if that just codifies an official press that gets privilege.

On the same day NYT’s Adam Liptak reported this decision, he also did a profile of SCOTUSBlog’s Thomas Goldstein, who — because he doesn’t fit the official model of journalist, in spite of the number of people who rely on his journalism — still can’t get press SCOTUS press credentials. In spite of near universal acknowledgment of the important role SCOTUSBlog plays, the traditional press hasn’t budged, which has helped SCOTUS punt on the issue too.

The closer the press gets to official sanction, the worse the reporting we’ll get.

Chuck Schumer Must Want All American Brown Youth Stop and Frisked

I thought Chuck Todd was speculating in that beltway fashion when he said he had heard people suggest Ray Kelly should replace Janet Napolitano as Department of Homeland Security Secretary.

But apparently, Chuck Schumer actually thinks it’s a good idea.

It’s leader needs to be someone who knows law enforcement, understands anti-terrorism efforts, and is a top-notch administrator, and at the NYPD, Ray Kelly has proven that he excels in all three.  As a former head of the Customs and Border patrol, he has top-level federal management experience. There is no doubt Ray Kelly would be a great DHS Secretary, and I have urged the White House to very seriously consider his candidacy.

Not only is this a batshit crazy idea because of all the authoritarian things Ray Kelly has done in NYC, from harassing hundreds of thousands of African American and Latino youths to spying on Muslims.

But note how Schumer doesn’t mention the other, equally important part of Homeland Security: keeping the country safe from things like Chinese hackers and natural disasters.

How’d Kelly do at organizing a response to Hurricane Sandy? Maybe we should ask Occupy Sandy about that?

When the Preet Promotion Industry Speaks, the Nation Gets Nervous

In an article with the URL “when-preet-bharara-speaks-the-shady-get-nervous,” the WaPo repeats a now familiar formula for stories boosting US Attorney Preet Bharara’s fortune: lots of quotes from political powerful allies…

“If [Bharara] smells corruption, he’ll go after it and figure out a way to corral it,” [Chuck] Schumer said. “But he will not make up cases for the sake of making up cases.”

Lots of celebration of recent headlines (I mean, cmon, as I understand it, indicting corrupt NY officials has become the prosecutorial equivalent of shooting fish in a barrel)…

“For the second time in three days, we unseal criminal charges against a sitting member of our state legislature,” Bharara, 44, said during the Thursday afternoon news conference in downtown Manhattan. This time, the U.S. attorney accused a Bronx assemblyman of accepting bribes as part of a scheme to aid developers, which Bharara called “a fairly neat trick” that amounted to “a legislator selling legislation.”

And lots of hints that scream “Pick Preet! Promote Preet!”

It is now highly unlikely that the White House would forget about Bharara, as administration officials somehow did in 2009, when they failed to invite the Indian American powerhouse to the Indian state dinner.


Such concerns are unlikely to slow down Bharara. Considered politically astute by observers in Washington and New York, Bharara made a point of not taking sides in the 2008 Democratic presidential primary that pitted then-senators Barack Obama and Hillary Rodham Clinton. He has been rumored as a possible successor to his boss, Attorney General Eric H. Holder Jr., either in the current administration or the next Democratic one.

But not one word about his failure to hold anyone accountable for the 2008 financial crash (aside from citing last year’s Time magazine story that falsely claimed “This Man Is Busting Wall Street”).

But Chuck Schumer and Preet’s other boosters appear to believe that’s the formula that will get Preet nominated to replace Eric Holder.

Sadly, they’re probably right.

Mitt’s Election Would Just Mean Cofer Black Would Get His Kill List Back

Amidst all the partying and pandering, some actual journalism did take place in Charlotte. Gawker’s John Cook asked the following people about whether Americans could trust Mitt Romney to decide which American citizens to assassinate with drones (definitely click through for the video):

  • Kay Hagen, Armed Services Subcommittee Chair on Emerging Threats
  • Carl Levin, Armed Services Committee Chair and ex officio member of Senate Intelligence Committee
  • Cary Booker, Newark Mayor
  • Lanny Davis, Asshole
  • Brad Woodhouse, DNC Spokesperson
  • Chuck Schumer, Judiciary Committee Member
  • Gloria Allred, bane of bmaz’ existence
  • Bill Press, lefty radio personality
  • Unnamed Arizona delegate

Only Bill Press gives an answer that even recognizes the gravity of the answer.

It’s an interesting question, though, for another reason.

If Mitt were elected, then the Kill List’s rightful owner, Cofer Black, might well get it back. The Kill List–like so much else–goes back to the September 17, 2001 “Gloves Come Off” Memorandum of Notification that Black threw together as a wish list of expansive counterterrorism approaches. (Also on there, btw, was partnering with Libya on torture, which Human Rights Watch further exposed the other day and I plan to return to.) And remarkably, when Cofer Black was in charge of the Kill List, it was used more judiciously than Obama has used it (Black had moved out of the Counterterrorism role at CIA before Kamal Derwish became the first American killed in a drone strike on November 5, 2002). And who knows? If Black took responsibility for the Kill List back, he might choose to focus on torture like he did before.

Don’t get me wrong–I don’t want Cofer Black back in any official capacity. But it’s worth remembering that Obama’s Kill List is really just a hand me down from the guy who, along with the Kill List, also instituted torture and partnership with Moammar Qaddafi.

What If the Biggest Risk ISN’T Khalid Sheikh Mohammed Giving Speeches?

The guy who covered up CIA’s torture, Jose Rodriguez, worries that Khalid Sheikh Mohammed might give a speech during the course of his military commission.

Although he acted defiantly in court, Rodriguez said KSM would like nothing more than a forum to preach radical Islam.

“This is a process that will continue for a long time,” Rodriguez said. “I have heard he may plead not guilty, and if he does, he’ll use the [legal] process as his platform . . . to talk about his jihadist beliefs.”


“It seemed to us that he was looking for a platform from which he could spout his hatred for all things American, and a trial would certainly present that opportunity,” Rodriguez writes. “It strikes me as more than a little ironic that several years later, Attorney General Eric Holder almost granted KSM his wish.”

Ironically, Rupert’s rag decided to plug these Rodriguez fears the day after KSM and his co-defendants tied up the military commission in knots not by speaking, but by remaining silent.

Judge [James] Pohl turns to Mohammed’s attorneys and his right to counsel. Mr. Mohammed, he says, pursuant to the Manual for Military Commissions, you are today represented by two military lawyers, Derek Poteet and Jason Wright, your detailed counsel. Do you understand this?

There’s a pause – the first of many, as we’ll soon see – as the court and counsel wait for the defendant’s responds.  KSM doesn’t give one, and Judge Pohl notes as much. Very well, he continues, detailed counsel will be provided to you.

No response.

Continue reading

The King/Schumer Christie/Booker Smackdown

I confess I’m enjoying the spat developing between New York and New Jersey’s top politicians over the NYPD’s spying on New Jersey Muslims. First Christie dared to call Kelly arrogant.

“He’s Ray Kelly, so what’re you gonna do? I mean, he’s all-knowing, all-seeing,” Christie said.

“And I don’t know all the details yet, but my concern is, you know, why can’t you be, you know, communicating with the people here in New Jersey, with law enforcement here in New Jersey. Are we somehow not trustworthy?” said Christie.


“This is New York Police Department. I know they think their jurisdiction is the world. Their jurisdiction is New York City. So if they’re going to leave their jurisdiction and go to investigate a case in another jurisdiction, it could be dangerous,” Christie said. “This is the way law enforcement people get hurt or killed, is when they’re not cooperating with each other, not communicating with each other.”

“I’m not saying they don’t belong in New Jersey, but tell us! Share it with the appropriate law enforcement agency,” Christie said. “My concern is this kind of obsession that the NYPD seems to have that they’re the masters of the universe.”

Then there’s the spectacle of King defending Ray Kelly as if the latter is a shrinking violet, with neither access to the press nor taste for a fight himself.

Rep. Peter King, chairman of the House Homeland Security Committee, said Gov. Chris Christie crossed a line when he mocked Police Commissioner Ray Kelly as “all-knowing, all-seeing” and said the NYPD’s intelligence operation in Newark may have been “born out of arrogance.”


“I just found it a real disappointment the way he was conducting himself, the way he was taking cheap shots at Ray Kelly,” King said.

Sure, aside from Booker, who seems genuinely concerned either with his actual constituents or appearing that way, this is a giant pissing contest between men defending their turf.

Part of me wonders why most of these men have reacted so strongly. Christie, after all, must have close ties to Newark’s FBI officers from his time as US Attorney. That seems to be what this dig is about:

“His main objection seems to be that he wasn’t … brought in. But the fact is that he wasn’t governor. He was U.S. attorney. And I’m not aware of any major terror plots that he ever uncovered while he was U.S. attorney in New Jersey.”

(King forgets, of course, that the NYPD didn’t find any of the major terrorist attacks since 9/11–street vendors and the FBI did.)

Part of me wonders whether Kelly, channeling J. Edgar Hoover as he increasingly seems to be doing, has some dirt on King and Schumer to make cow them like this.

But the real sick part of my personality can’t help but visualize this ending in a giant wrestling match pitting King and Schumer against Christie and Booker. In fact, I’m even thinking of taking bets.

Sorry about the abundance of brain bleach posts this morning folks–it must be the weather.

Emptywheel Twitterverse
bmaz @MikeFreddoso @Popehat @deviantollam My rule of thumb is: You can ask for too little in a notice of claim, but you can't ask for too much.
bmaz @MikeFreddoso @Popehat @deviantollam Oh, there is a legitimate claim, and a significant one. How much exactly does that mean? Who knows?
bmaz Thanksgiving Moonrise In The Cactus Patch
emptywheel @blogdiva Look for the pic of her greeting the pope. She's taller than he is.
emptywheel @antagonismorg Here's my bacon on turkey instructions as if it weren't self-evident. @astepanovich
emptywheel @antagonismorg It's an old family trick, some grandmother of mine gets credit, I think @astepanovich
emptywheel @grisuy More NYT Food writing fail. I'm thinking of making this a downright obsession.
bmaz Fair is fair. @CNN earlier put up Gilliam who clearly has no clue on real use of force law. But @JeffreyToobin + @SunnyHostin were excellent
emptywheel RT @jbarro: All the stages of the GOP establishment's grief over Donald Trump will be funny except Acceptance.
emptywheel Also, Donald recommends NYT do away with standard punctuation--especially use of apostrophes, bc those are annoying.
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