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Sheldon Whitehouse Confirms FISA Amendments Act Permits Unwarranted Access to US Person Content

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In the Senate Judiciary Committee’s markup of the FISA Amendments Act, Mike Lee, Dick Durbin, and Chris Chris Coons just tried, unsuccessfully, to require the government to get a warrant before it searched US person communications collected via the targeting of non-US person under the FISA Amendments Act. It was, as Dianne Feinstein said, not dissimilar from an amendment Ron Wyden and Mark Udall had tried to pass when FAA was marked up before the Senate Intelligence Committee.

The debate revealed new confirmation that the government is wiretapping American citizens in the guise of foreign surveillance.

DiFi argued that the amendment would have impeded the government to pursue Nidal Hassan by delaying the time when they could have reviewed his communication (presumably with Anwar al-Awlaki). Of course, the amendment included an emergency provision that would have permitted such a search after the effect.

More telling, though, was Whitehouse’s response. He referred back to his time using warrants as a US Attorney, and said that requiring a warrant to access the US person communication would “kill this program,” and that to think warrants “fundamentally misapprehends the way in which this program operates.”

Now, I’d be more sympathetic to Whitehouse here if, back when this bill was originally argued, his amendments requiring FISC oversight of minimization after the fact had passed. They didn’t. To make things worse, though Leahy repeatedly talked about Inspector General reporting overdue on this program, Congress is not going to wait for these reports before they extend the program for another three years, at least. So Whitehouse’s assurances that we can trust minimization to protect US person privacy seems badly misplaced.

In any case, this represents an admission, as strong as any we’ve seen, that this program is entirely about collecting the US person communication of those who communicate with people (DiFi used the term “person of interest,” which I had not heard before) overseas.

Update: Updated to explain this came in a markup hearing. Thanks to Peterr for pointing out my oversight on that point.

Overview of the Pat Fitz Resignation Press Conference

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Patrick Fitzgerald just finished his resignation press conference (the blockquotes are my notes).

In his own statements, he focused on comments to the people he works for, and those he works with. That was largely a tribute to the 300 people who work in the office, making it clear that the work he often gets thanked for publicly is done by those 300 people. He emphasized that those people would still be here working, doing good work.

I say that not just to make myself to feel less bad. Want citizens to appreciate what a treasure the people I work with are. The other part is that come June 30, that 300 plus team that is really hard working rolls on, and will keep rolling on. Fight against corruption, what we really need is public to keep coming forward.

Both in his opening statements and in later questions, Fitz seemed to want to encourage people to come forward to report corruption. He also talked about the problem of policing so aggressively that people being to fear the authorities.

We’d prefer to learn about corruption from people coming forward, not from a bug.

[snip]

When you start to see people being afraid of us, when citizens fear being shaken down, that’s a bad thing.

Jumping ahead, an emphasis on the continuity of the office is largely how he answered my question about MF Global. I asked whether DOJ had yet decided whether this office or SDNY would have the lead in that case. He refused to comment, but said anyone working in this office would continue to do good work. (Note, he said “this office,” not DOJ generally.) (I asked Randall Samborn later whether the decision on who had the lead in the MF Global case had been made and he would not say either.)

Fitz largely explained his departure in terms of a natural time to leave.

Not an easy decision. Am I rushing out in 11th year of my term. People have terms for a reason. Won’t be here until I’m 65. Comes a time when me and my family have to figure out what we do next. For the office it’s important that there be change.

I think it’s healthy after a certain point that there be change at the top. Always a matter of when, not if, I think you sort of know when it’s time.

As for what next, I don’t know, and that’s sincere. I’m going to run as fast as I can for 30 days that I have left.

When asked about whether he felt bad about the people he had jailed, he described the empty feeling he got after his first jury verdict on Valentines Day in 1989. As part of that, he emphasized that imprisonment is always a waste, not just in the case of white collar cases.

Feb 14 1989, first jury verdict day. Defendant convicted of drug offense. Taken into custody that day.

We think about prison in white collar cases, but we often don’t think about it on the violent side.

He also, in response to a question about being “overzealous” suggested it’s an injustice to bust the low guy on the totem pole without going after the top of the pyramid.

Someone asked whether there were any cases Fitz regretted not having charged. I called out, “Karl Rove.” He answered the question generally, without acknowledging my question. Harumph.

Fitz was asked whether he thought he could be a Defense Attorney.

I respect what defense attorneys do, but I don’t know what I’ll do next. There are some things I’m not comfortable with.

In response to a question whether he’d be interested in public service–possibly the FBI Director job–he said he had not been approached about the FBI job, but that if he was offered a public service job, he would certainly consider it, though he would balance the needs of his family.

Public service is in my blood. If a phone rings down the future and ID says public service, I answer the phone. I would consider if I can make an impact?

Finally, I asked if he had any reflection on our counterterrorism efforts so many years after he first indicted al Qaeda (note, I fucked up my question and said it had been 14 years; it has been 24 since the 1998 indictments). He said that they’ve made great progress against core al Qaeda. While affiliates remain a threat, core al Qaeda has largely been wrapped up.

We’ve made incredible progress. Core Al Qaeda has largely been rolled up. Remarkable progress in core al Qaeda.

He also emphasized the continuing, under-appreciated effort of FBI agents still chasing down leads.

Still dangerous threat out there we shouldn’t under-estimate. Remarkable job. People don’t appreciate people overseas,squads of FBI agents.

I did much better at this whole press scrum thing than I usually do, but as proof I’m not an expert yet, I failed to follow-up on what he thought about efforts to force terrorism trials into Military Commissions.

Finally, the funniest detail from the press conference. Apparently, when he called Dick Durbin to tell him he was resigning yesterday, the phone wasn’t working. He claims he may have missed most of the conversation.

When I spoke to Durbin yesterday phone was malfunctioning ,I missed a lot of call, may have had conversation in which I have no idea what he said.

There’s more in my Twitter stream. Plus, a plethora of questions about whether or not, as a Mets fan, he really could be baseball commissioner.

Glad I made it to the presser to at least ask a few serious questions. And make sure Karl Rove got mentioned as the single biggest person (Jon Corzine potentially aside) whom he didn’t prosecute.

What Went Into the FBI Intelligence That Will Be in NCTC’s Database for Five Years?

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Last year, after Spencer Ackerman exposed some of the Islamophobic materials the FBI was using to train its counterterrorism agents, the FBI conducted a review of its training materials to weed out such counterproductive materials.

Unsurprisingly, as Spencer reports today, they found additional offensive and just downright stupid materials.

A sample of that possibly harmful training comes from a document on “Establishing Relationships,” which instructed: “Never attempt to shake hands with an Asian. Never stare at an Asian. Never try to speak to an Arab female prior to approaching the Arab male first.”

Another document, titled “Control and Temper,” contrasted the “Western Mind” with that of the “Arab World.” The “Western” mind possessed an “even keel” and “outbursts” of emotion were “exceptional.” In the “Arab World,” by contrast, “Outburst and Loss of Control [is] Expected.” A bullet point below asked, “What’s wrong with frequent Jekyll & Hyde temper tantrums?”

But now, they’re trying to just bury it–they’re withdrawing it, sure, but they’re not doing anything to counteract the damage this may have done in training agents.

Which makes this detail exposed in the FBI’s own review all the more troubling:

One FBI PowerPoint — disclosed in a letter Durbin sent to FBI Director Robert Mueller on Tuesday and shared with Danger Room — stated: “Under certain circumstances, the FBI has the ability to bend or suspend the law to impinge on the freedom of others.”

Among the things FBI refuses to do in response to this report is to review intelligence reports collected subsequent to being trained that–among other things–sometimes it’s okay to “suspend the law to impinge on the freedom of others.”

For example, was any of the “intelligence” gathered during Muslim outreach activities in the San Francisco Bay Area collected by such Agents? As the ACLU reported yesterday, here are some of “intelligence collection” activities done in the guise of outreach.

The FBI visited the Seaside Mosque five times in 2005 for “mosque outreach,” and documented congregants’ innocuous discussions regarding frustrations over delays in airline travel, a property purchase of a new mosque, where men and women would pray at the new mosque, and even the sale of date fruits after services. It also documented the subject of a particular sermon, raising First Amendment concerns. Despite an apparent lack of information related to crime or terrorism, the FBI’s records of discussions with mosque leaders and congregants were all classified as “secret,” marked “positive intelligence,” and disseminated outside the FBI.
Read more →

Senate Passes Defense Authorization

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The final vote was 86-13. No votes were Lee, Paul, DeMint, Risch, Crapo, and Coburn (the last three not on civil liberties grounds), and Cardin, Wyden, Sanders, Durbin, Franken, Harkin, and Merkley.

I’m sure Obama will sign this in time for us all to be indefinitely detained this weekend.

Update: Senator Franken sent out a statement explaining his no vote. It ends, “Today is the anniversary of the ratification of the Bill of Rights, and this wasn’t the way to mark its birthday.”

Is Mark Warner the Designated Social Security Killer?

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The propaganda the Administration has put out to spin the debt capitulation as a win–“victory!” “bipartisan!” “compromise!”–would be amusing if the deal weren’t so dangerous. In addition to all the language claiming that cutting expenditures during a Depression–described here as “remov[ing] the cloud of uncertainty– will help the economy, there are these two bullets:

  • Establishes a bipartisan process to seek a balanced approach to larger deficit reduction through entitlement and tax reform;
  • Deploys an enforcement mechanism that gives all sides an incentive to reach bipartisan compromise on historic deficit reduction, while protecting Social Security, Medicare beneficiaries and low-income programs;

Bulllet 3 says this deal establishes a process to bring about entitlement reform. Bullet 4 claims the deal protected Social Security and Medicare. Both of these bullets can’t be true.

Which has set off a discussion about whether SuperCongress is only possibly going to cut Medicare and Social Security, or will almost certainly do so.

I wanted to look at how the membership of the predecessor committees to SuperCongress–the Catfood Commission and the Gang of Six–to suggest which is more likely.

As you recall, the Catfood Commission members voted 11-7 in favor of passing the Commission’s recommendations, which included raising the retirement age. The members of Congress on the Commission voted this way:

  • Tom Coburn: Yes
  • Judd Gregg: Yes*
  • Mike Crapo: Yes
  • Kent Conrad: Yes
  • Dick Durbin: Yes
  • Max Baucus: No
  • Paul Ryan: No
  • Jeb Hensarling: No
  • Dave Camp: No
  • Jan Schakowsky: No
  • Xavier Becerra: No
  • John Spratt: Yes*

Assuming for the sake of argument that the members who are still in Congress would be part of SuperCongress, that would make for a stalemate–though Republican opposition focused on Obama’s healthcare reform, not on the package of entitlement cuts and tax breaks for the rich that the commission recommended.

Both Judd Gregg and John Spratt are gone. Rather than replace Judd Gregg, the former Ranking Member of the Budget Committee with his functional equivalent, Jeff Sessions, Mitch McConnell will likely put Saxby Chambliss on SuperCongress, as Chambliss has been involved in the Gang of Six discussing a deficit reduction plan. John Spratt’s functional equivalent would be Chris Van Hollen, a not horrible addition for liberals. (Update: Or maybe he’s just like Durbin, a so-called liberal who will support this crap.)

But it’s not safe to assume Harry Reid will just pick the Senators who served on the Catfood Commission for SuperCongress. After Max Baucus voted no on the Catfood Commission, saying, “we cannot cut the deficit at the expense of veterans, seniors, ranchers, farmers and hard-working families,” he was replaced on the Gang of Six. Joe Biden and Harry Reid replaced him with Mark Warner, a man worth more than $200 million who has spent much of the tenure of the Gang of Six insisting that working Americans with whom he shares little in common won’t mind so much if they have to work another two years before they can retire.

In other words, one change we’ve already seen happen between the Catfood Commission and the Gang of Six is the replacement of Max Baucus, who proved unwilling to push through the $4 trillion deficit plan Obama has been chasing, with Mark Warner, who is all too willing to champion entitlement cuts for poor people.

If his newly central role in these discussions stands, we can be pretty sure we’ll see cuts to Social Security. And heck, if he won’t do the deed, then alleged liberal, Dick Durbin, and Kent Conrad seem prepared to do the work themselves.

Lindsey Graham Predicts Successful Terrorist Attack Followed by Harsh Resolution of Gitmo

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Josh Gerstein provides Lindsey Graham a soap box to complain that his efforts to craft a grand compromise with the Administration on Gitmo stalled in May.

“I thought we were close to getting a deal,” Graham told POLITICO last week. “I had some meetings where I walked out of the White House and said, ‘This is great.’ These were better meetings than I ever had with the Bush administration.”

But sometime around May, according to Graham, the line of communication with the White House shut down.

“It went completely dead,” Graham said. “Like it got hit by a Predator drone.”

The article as a whole suggests that Administration was fairly close to a deal, though even that deal was threatened by Graham’s inability to bring a number of Republicans along on the compromise as a whole, rather than a series of solutions. Efforts to craft a deal intensified following the Faisal Shahzad attempted Times Square bombing. Gerstein suggests that Eric Holder’s big appearance on the Sunday shows on May 9–to entertain thoughts of a Miranda compromise–was a sign of how close the Administration and Graham were to a deal.

“We had a great discussion on Miranda warning reform,” Graham recalled about an evening session with Bauer and Sen. Dick Durbin (D-Ill.). “I spent three hours down at the White House — it was probably the best meeting I’ve ever been in — where we game-planned this. … I left the meeting thinking we’re going to get a statute.”

Indeed, on May 9, Attorney General Eric Holder publicly embraced the idea on NBC’s “Meet the Press.” Calling Miranda-related legislation a “new priority,” he declared: “This is a proposal that we’re going to be making.”

And then the efforts to craft a compromise died (and, as a result, Miranda remains intact). Gerstein suggests Graham’s flip-flopping on other key legislation made it clear that Graham was not an honest broker.

Graham also may have lost credibility with the administration after he lashed out at the White House in disputes over the health care bill, climate legislation and immigration reform.

The timing certainly makes sense. During the last week of April, Graham threatened to kill the climate change bill he was crafting with the Administration as a way of keeping immigration reform from coming to a vote. By early June, he was promising to vote against any energy or climate bill. So the collapse of the grand “bargain” on Gitmo may have as much to do with Graham’s apparently successful effort to prevent Democrats from focusing on the legislative goals of a key constituency. And that may be why the electoral calendar is cited for killing the compromise as much as anything else: Graham’s yoking of immigration and climate change to Gitmo.

But I also wonder whether the Administration got a sense of just how bad Graham’s “compromise” really was. Negotiations on the grand compromise seem to have been at their height just as DOD was kicking four reporters out of Gitmo for making clear what was already in the public domain: that the interrogator who threatened a child with rape and possibly death in US prisons is the same guy who was convicted in relation to the death of another detainee. Since then (in July), Omar Khadr fired the lawyers who were crafting a plea deal, thus closing off one of the most palatable ways for the Administration to avoid making Khadr the poster child for America’s continued abuse of power at Gitmo.

I also suspect the nomination of Elena Kagan on May 10 may have played a part in the timing, not least because no Republicans would be willing to make a deal against the background of a SCOTUS nomination.

As it is, Graham seems to be using Gerstein’s article to issue two threats: first, that he will push for his own legislation in the next Congress, presumably with the votes of a few teabaggers to help him. And, his implicit threat that there will be another terrorist attack after which any decisions on Gitmo will be far worse than the policies being discussed now.

“There’s going to be an attack. That’s going to be the impetus. That’s going to be what it takes to get Congress and the administration talking; we have to get hit again,” the senator said, suggesting that passing a bill before that happens might be more reasonable than what would come afterward.

“If there is a successful attack, there is going to be a real violent reaction in the Congress, where we will react more emotionally than thoughtfully,” Graham said.

Let it be remembered–for the day when we’ve completely capitulated to those who want to use the threat of terrorism to establish a police state–that Lindsey Graham planned for it to happen.

Republicans Prepare to Kill Jobs; Democrats Angle for Majority Leader

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Brian Beutler reports that the Republicans are prepping to make sure no additional support for jobs gets passed next week.

Senate Democrats want to vote on the first installment of a jobs package as early as Monday, amping up the pressure on Republicans to get aboard. But for the moment, they’re not biting.

“We’ll have a vote on a jobs bill on Monday,” Senate Majority Leader Harry Reid said at a press conference today.

There’s just one wrinkle: According to the Senate’s top vote counter, there is currently no Republican support for the proposal Democrats are putting forth–and with Scott Brown to be seated today as the 41st Republican Senator, they’ll need at least one member of the minority to come aboard.

“You need two to tango. And you need Republicans for bipartisanship,” said Senate Majority Whip Dick Durbin (D-IL).

Now, there’s an interesting subplot to this.

Current Majority Leader (and very endangered incumbent) Harry Reid says no Republicans currently support the bill.

Majority Whip and second-most senior Democratic Senator Dick Durbin suggests there are no Republicans supporting the bill.

Meanwhile, Vice Chairman and third-most senior Democratic Senator Chuck Schumer has been working on a deal–at least for tax credits for businesses that create jobs–with Republican Orrin Hatch.

Sens. Chuck Schumer (D-N.Y.) and Orrin Hatch (R-Utah) released a plan Wednesday to give tax breaks to companies that add new workers, a proposal that is likely to become a key component of the jobs bill Senate Democratic leaders are hoping to unveil this week.President Obama has called for employers to receive a $5,000 tax credit for each new employee they hire, while other lawmakers have floated different proposals for a job tax credit. The Schumer-Hatch plan, which would allow companies to avoid paying Social Security taxes for the duration of 2010 on each unemployed worker they hire, appears to have the most momentum in the Senate.

“Our payroll tax cut is a simple, cost-effective and bipartisan solution. It will help put more Americans to work right away,” Schumer said in a press release. Hatch added: “While Senator Schumer and I disagree on most issues, we’ve been able to come together on an affordable, effective and targeted proposal to get the American people back to work.”

Democratic leaders emphasize that they haven’t yet settled on an exact combination of items that will go in the Senate’s jobs package, but Senate Majority Leader Harry Reid (D-Nev.) suggested Wednesday that he was taking a close look at the Schumer-Hatch bill.

Mind you, the Schumer-Hatch deal only deals with one aspect of the deal, not with things like COBRA subsidy extension. And I’ve got concerns about any plan that defunds social security.

Nevertheless, it seems that the drama over whether Democrats will squabble themselves into irrelevance–and/or whether Republicans will sacrifice the interests of their constituents for partisan gain is playing out large on the jobs front.

Whatever is happening, it is preventing Americans from getting back to work.

OPR Report Timeline

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In response to the news that David Margolis spiked the misconduct conclusion in the OPR Report on OLC justifications for torture, I wanted to put together a timeline of its construction. Two things stick out. First, the role of Mary Patrice Brown–who replaced Marshall Jarrett at a time when OPR was backing off its offer of transparency–deserves further scrutiny in this report. When she presented the report to Holder in August, she apparently recommended that he reopen investigations into torture.

Also, I still think the timing suggests DOJ delayed its release to protect Yoo in the Padilla suit.

January 4, 2008: Padilla sues Yoo.

February 12, 2008: Senators Durbin and Whitehouse request that OPR investigate torture authorizations

February 18, 2008: Marshall Jarrett informs Durbin and Whitehouse that torture authorizations included in OPR investigation of OLC, agrees to share report with them and–possibly–release an unclassified public version

Late December 2008: Draft of OPR submitted, Michael Mukasey and Mark Filip demand that Yoo, Bybee, and Bradbury get to respond

February 14, 2009: Isikoff reports that OPR report came to harsh conclusions of OLC lawyers’ work; reports Mukasey and Filip allowance for lawyer response

February 16, 2009: Whitehouse and Durbin inquire about process used with OPR report

March 6, 2009: Hearing in Padilla-Yoo law suit

March 25, 2009: OPR response (signed by M. Faith Burton, Acting AAG) to Whitehouse and Durbin states Mukasey/Filip comments already integrated, OLC lawyer counsel in process of reviewing report; it doesn’t mention “career prosecutor” review:

When the review and comment [from Yoo, Bybee, and Bradbury’s lawyers] is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the department will determine what disclosures should be made.

The letter backs off Jarrett’s earlier promise to release the report:

In determining appropriate disclosures, we will be mindful of the considerable interest that Congress has previously expressed in connection with this matter and will seek to accommodate the information needs of our oversight committees in response to requests from their chairmen. While we appreciate your request for a disclosure commitment, we can only fully evaluate the scope of appropriate disclosures once the review process is completed. We trust you understand that those decisions depend in part on the content and conclusions of the OPR final report and the outcome of any further Departmental review.

March 31, 2009: Durbin and Whitehouse reply to OPR letter

April 8, 2009: Holder names Mary Patrice Brown to replace former OPR head, Marshall Jarrett

April 29, 2009: Leahy invites Bybee to testify to Senate Judiciary Committee; Bybee panics in response

May 4, 2009: According to AAG Ronald Welch, deadline for Yoo, Bybee, and Bradbury response to OPR report; on that day, Welch responds to Durbin and Whitehouse laying out the following as “normal” process for OPR reports:

In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office. A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else. Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made. This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process. While the Department has previously released public summaries of OPR reports under some circumstances, public release of the reports themselves has occurred only rarely. In the past, the release of a public summary occurred only after the subjects were afforded an opportunity to appeal any adverse findings.

The May 4 letter also informed the Senators of the CIA review.

May 6, 2009: WaPo reports OPR report still recommends sanctions against Yoo and Bybee

June 12, 2009: Judge rules Padilla suit can move forward

June 17, 2009: Whitehouse reveals that CIA conducting “substantive comment and classification review”

July 9, 2009: Yoo appeals decision on Padilla suit–and DOJ stops representing Yoo; Miguel Estrada would take on that role

July 12, 2009: Scott Horton reports that reading OPR Report was one thing that convinced Eric Holder to launch criminal review of torture

Prior to August 24, 2009: OPR submits report to Holder, recommends reopening criminal investigation into torture

August 24, 2009: Holder announces criminal investigation, citing (among other things) OPR report

November 16, 2009: Yoo submits opening brief in Padilla suit appeal

November 18, 2009: Holder announces OPR report due out “this month;” Court grants government extension to December 3 to submit amicus brief

November 20, 2009: Padilla requests extension–because of delay in government brief–until January 15

December: Margolis, purportedly reviewing OPR report, out sick (though reports say Yoo’s lawyer making last appeal for changes)

December 3, 2009: DOJ submits amicus brief claiming that OPR can address Padilla’s concerns

December 29, 2009: Yoo starts book publicity

January 18, 2010: Padilla submits response to appeal

January 29, 2010: Klaidman and Isikoff report OPR conclusions have been altered

Feingold, Durbin, and Wyden Demand the OLC Opinion on Exigent Letters

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As I reported yesterday, the Dawn Johnsen-less OLC wrote an opinion on January 8 retroactively authorizing the FBI’s inappropriate use of the exigent letters to snoop on Americans’ telecomm records.

Now, Senators Feingold, Durbin, and Wyden, have demanded that opinion from Eric Holder. Of note, they tie their demand into DOJ IG Glenn Fine’s comment that DOJ should notify Congress of the opinion and this use of exigent letters so it can consider legislation on that count.

We write specifically because we believe the Department should immediately provide to Congress a copy of the January 8, 2010, Office of Legal Counsel (OLC) opinion that is referenced in the OIG report and that apparently interprets the FBI’s authority to obtain phone records. Although much of the information about the OLC opinion is redacted in the public version of the OIG report, the opinion appears to have important implications for the rights of Americans. The report states that “the OLC agreed with the FBI that under certain circumstances [REDACTED] allows the FBI to ask for and obtain these [phone] records on a voluntary basis from the providers, without legal process or a qualifying emergency.” (p. 264) It further states that “we believe the FBI’s potential use of [REDACTED] to obtain records has significant policy implications that need to be considered by the FBI, the Department, and the Congress.” (p. 265) And finally, it states that the OIG recommends “that the Department notify Congress of this issue and of the OLC opinion interpreting the scope of the FBI’s authority under it, so that Congress can consider [REDACTED] and the implications of its potential use.” (p. 268)

In light of the OIG’s recommendation, please provide Congress with the January 8 OLC opinion immediately.

Remember, as members of the Senate Judiciary Committee, Feingold and Durbin (and probably Senate Intelligence Committee member Wyden) have seen the unredacted report, including a description of the OLC’s agreement of the FBI’s use of the letters. And now they’re demanding the opinion itself.

Though, you’d think that, given Fine’s recommendation that DOJ “notify Congress … of the OLC opinion,” the Senate wouldn’t have had to ask.

Why We Can’t Fix Wall Street

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There are two articles out that provide the beginning of an explanation of why even good progressives like Dick Durbin and Barney Frank can’t fix our finance system.

Trade Organizations as a Wing of the Republican Party

First, there’s the smoking gun proof that–at a moment when big banks were preparing to negotiate with Dick Durbin on cramdown legislation–banking’s trade organization was attacking that cooperation in conjunction with Republicans. HuffPo’s Sam Stein has posted the email from Tanya Wheeless, president & CEO of Arizona Bankers Association.

Subject: Cramdown Update

Hi All–

Just a quick update in case you were not aware. I’m sorry to say that Chase, Wells, and B of A have been working with Durbin on a cramdown compromise since last week. So far, none of the national trades are at the table. I’ve been told that ICBA is working on a press release to admonish them for trying to cut a deal. The good news is, they aren’t there yet. Apparently, they gave Durbin a wish list awhile back and in his desperation to get something, he’s given on most everything. Reid told Durbin he had until the end of recess to get something done, but it looks like Reid may be willing to wait a little longer if they’re at the table.

I have contacted the market presidents for each of the three banks and explained that in my humble opinion it’s a big mistake to cut a deal with Durbin and alienate our (in Arizona) Senator. I also told them that I thought this would drive a wedge in our industry. Kyl has pointedly told them not to make a deal with Durbin and then come looking to Republicans when they need help on something like regulatory restructuring or systemic risk regulation.I know the [sic] every state association will have to do what’s best for its members, but I have told my largest three members that if they cut this deal, AzBA will fight them on it. They may be willing to alienate Republican leadership, but I’m not quite there yet.

This is the President of a trade association, bullying her largest members, to serve the command of John Kyl. (Arizona, of course, is one of the leading states for foreclosure rates, so Kyl is basically working directly against the interest of his constituents.) And, voila, we still don’t have cramdown. Or, for that matter, regulatory reform (yet).

Hiding the Banks behind the Airplanes

Meanwhile, this Michael Hirsh article explaining how Barney Frank failed to close some loopholes in derivatives legislation describes Main Street companies fronting the lobbyist efforts of the banks–so basically Main Street appears to be fighting to keep the customized derivatives that their bankers charge them extra for.

According to insiders and industry e-mails obtained by NEWSWEEK, the banks have sought to stay in the background and put their corporate customers—a who’s who of American business, including Apple, Whirlpool, and John Deere—out in front of the campaign. Read more →