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McCain Has One Way to Prevent Torture under Trump — Oppose Pompeo and Sessions

The Saturday before Thanksgiving, John McCain made some strong statements about whether President Trump will be able to resume torture.

Republican Sen. John McCain issued a fiery warning to President-elect Donald Trump on the subject of torture Saturday.

“I don’t give a damn what the president of the United States wants to do. We will not waterboard,” McCain told an audience at the annual Halifax International Security Forum. “We will not torture people … It doesn’t work.”

McCain’s comments have gotten quite a lot of approving press since.

But that approving press is misplaced.

After all, tough words will not prevent Trump from resuming torture — no matter what NYT’s rather bizarre story claiming there are obstacles to doing so claims. As I laid out weeks ago, the bureaucratic work-arounds are already in place.

No. The single most effective way for Senator McCain to prevent Trump from resuming torture is to ensure the people he appoints are actually opposed to it.

Already, Trump has named two pro-torture Republicans to top positions: Trump’s Attorney General pick, Jeff Sessions, voted against the anti-torture amendment McCain wrote to try to codify the law. In response to the release of the Torture Report, Trump’s CIA Director pick, Mike Pompeo, declared the torturers “are not torturers, they are patriots.”

McCain — whose comment on torture came the day after Trump named these appointees — has not committed to opposing their nomination. Instead, he just wants to make strong statements that will do little to prevent Trump from ordering Pompeo to resuming the torture.

Maybe that’s why McCain is getting so touchy about the President-elect.

Today, he told two different reporters he didn’t want to answer questions about Trump. Here’s what he said to HuffPo’s Laura Barron-Lopez:

I will not discuss President-elect Donald Trump, ok? And that is my right as a Senator. I do not have an obligation ma’am to answer any question I don’t feel like answering. I’m responsible for the people of Arizona and they just [re-elected] me overwhelmingly.

He said something similar to CNN’s Manu Raju.

Cranky-as-fuck John McCain is ratcheting it up!

But he’s going to need to crank it up even more. McCain, with just two of his colleagues, has the power and moral authority to oppose pro-torture appointees. That would require confronting the leader of his party. But it is also one of the only real ways to prevent the US from resuming torture.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Sessions Nomination and the “Emergency Exception”

Donald Trump will nominate Jefferson Beauregard Sessions III to be Attorney General.

Most of the uproar over the appointment has, justifiably, focused on the fact that Sessions is such a racist he was denied confirmation to be a District Court Judge in the 1980s. We will also learn, going forward, about how deeply embedded in Alabama’s unique kind of corruption Sessions is.

But something more recent is as alarming, albeit for different reasons.

In June, Sessions proposed an amendment to ECPA reform that would mandate providers turn over communications content if a government official declared that it was an emergency.

(1) IN GENERAL.—A provider of electronic communication service or remote computing service shall disclose to a governmental entity a wire or electronic communication (including the contents of the communication) and a record or other information pertaining to a subscriber or customer if a representative of the governmental entity reasonably certifies under penalty of perjury that an emergency involving the danger of death or serious physical injury requires disclosure without delay.

As Al Gidari explained in a post on this provision, providers already can, at their discretion, turn over such communications in case of an emergency.

For the last 15 years, providers have routinely assisted law enforcement in emergency cases by voluntarily disclosing stored content and transactional information as permitted by section 2702 (b)(8) and (c)(4) of Title 18. Providers recently began including data about emergency disclosures in their transparency reports and the data is illuminating. For example, for the period January to June 2015, Google reports that it received 236 requests affecting 351 user accounts and that it produced data in 69% of the cases. For July to December 2015, Microsoft reports that it received 146 requests affecting 226 users and that it produced content in 8% of the cases, transactional information in 54% of the cases and that it rejected about 20% of the requests. For the same period, Facebook reports that it received 855 requests affecting 1223 users and that it produced some data in response in 74% of the cases. Traditional residential and wireless phone companies receive orders of magnitude more emergency requests. AT&T, for example, reports receiving 56,359 requests affecting 62,829 users. Verizon reports getting approximately 50,000 requests from law enforcement each year.

This amendment would have eliminated that discretionary review, which — as Gidari went on to explain — often serves to weed out requests for which there isn’t really an emergency or in which authorities are just fishing to further an investigation.

Remember, in an emergency, there is no court oversight or legal process in advance of the disclosure. For over 15 years, Congress correctly has relied on providers to make a good faith determination that there is an emergency that requires disclosure before legal process can be obtained. Providers have procedures and trained personnel to winnow out the non-emergency cases and to deal with some law enforcement agencies for whom the term “emergency” is an elastic concept and its definition expansive.

Part of the problem, and the temptation, is that there is no nunc pro tunc court order or oversight for emergency requests or disclosures. Law enforcement does not have to show a court after the fact that the disclosure was warranted at the time; indeed, no one may ever know about the request or disclosure at all if it doesn’t result in a criminal proceeding where the evidence is introduced at trial. In wiretaps and pen register emergencies, the law requires providers to cut off continued disclosure if law enforcement hasn’t applied for an order within 48 hours.  But if disclosure were mandatory for stored content, all of a user’s content would be out the door and no court would ever be the wiser. At least today, under the voluntary disclosure rules, providers stand in the way of excessive or non-emergency disclosures.

A very common experience among providers when the factual basis of an emergency request is questioned is that the requesting agency simply withdraws the request, never to be heard from again. This suggests that to some, emergency requests are viewed as shortcuts or pretexts for expediting an investigation. In other cases when questioned, agents withdraw the emergency request and return with proper legal process in hand shortly thereafter, which suggests it was no emergency at all but rather an inconvenience to procure process. In still other cases, some agents refuse to reveal the circumstances giving rise to the putative emergency.

In other words, if this amendment had passed, it would have created a black hole of surveillance, in which authorities could obtain content simply by declaring an emergency (remember, from 2002 until 2006, there was a highly abusive FBI phone metadata program that worked by invoking an emergency).

I raise this not to minimize the biggest reason Sessions is unsuitable to be AG: his racism and his regressive ideas on immigration.

Rather, I raise it to point out that in addition to selectively pursuing people of color (and delegitmizing those who defend their due process), Sessions would undoubtedly seek tools that would make it easier to do so without any oversight.

All Trump’s named nominees thus far save Reince Preibus couch their racism in terms of claims of “emergency.” Those claims, tied to Sessions’ views on legal process, would make for an unchecked executive.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Why Is the Government Poison-Pilling ECPA Reform?

Back in 2009, the Obama Administration had Jeff Sessions gut an effort by Dianne Feinstein to gut an effort by Patrick Leahy to gut an effort by Russ Feingold to halt the phone and Internet dragnet programs (as well as, probably, some Post Cut Through Dialed Digit collections we don’t yet know about).

See what Jeff Sesssions–I mean Barack Obama–did in complete secrecy and behind the cover of Jeff Sessions’ skirts the other night?

They absolutely gutted the minimization procedures tied to pen registers! Pen registers are almost certainly the means by which the government is conducting the data mining of American people (using the meta-data from their calls and emails to decide whether to tap them fully). And Jeff Sesssions–I mean Barack Obama–simply gutted any requirement that the government get rid of all this meta-data when they’re done with it. They gutted any prohibitions against sharing this information widely. In fact, they’ve specified that judges should only require minimization procedures in extraordinary circumstances. Otherwise, there is very little limiting what they can do with your data and mine once they’ve collected it. [no idea why I was spelling Sessions with 3 ses]

At each stage of this gutting process, Feingold’s effort to end bulk collection got watered down until, with Sessons’ amendments, the Internet dragnet was permitted to operate as it had been. Almost the very same time this happened, NSA’s General Counsel finally admitted that every single record the agency had collected under the dragnet program had violated the category restrictions set back in 2004. Probably 20 days later, Reggie Walton would shut down the dragnet until at least July 2010.

But before that happened, the Administration made what appears to be — now knowing all that we know now — an effort to legalize the illegal Internet dragnet that had replaced the prior illegal Internet dragnet.

I think that past history provides an instructive lens with which to review what may happen to ECPA reform on Thursday. A version of the bill, which would require the government to obtain a warrant for any data held on the cloud, passed the House unanimously. But several amendments have been added to the bill in the Senate Judiciary Committee that I think are designed to serve as poison pills to kill the bill.

The first is language that would let the FBI resume obtaining Electronic Communication Transaction Records with just a National Security Letter (similar language got added to the Intelligence Authorization; I’ll return to this issue, which I think has been curiously reported).

The second is language that would provide a vast emergency exception to the new warrant requirement, as described by Jennifer Daskal in this post.

[T]here has been relatively little attention to an equally, if not more, troubling emergency authorization provision being offered by Sen. Jeff Sessions. (An excellent post by Al Gidari and op-ed by a retired DC homicide detective are two examples to the contrary.)

The amendment would allow the government to bypass the warrant requirement in times of claimed emergency. Specifically, it would mandate that providers turn over sought-after data in response to a claimed emergency from federal, state, or local law enforcement officials. Under current law, companies are permitted, but not required, to comply with such emergency — and warrantless — requests for data.

There are two huge problems with this proposal. First, it appears to be responding to a problem that doesn’t exist. Companies already have discretion to make emergency disclosures to governmental officials, and proponents of the legislation have failed to identify a single instance in which providers failed to disclose sought-after information in response to an actual, life-threatening emergency. To the contrary, the data suggest that providers do in fact regularly cooperate in response to emergency requests. (See the discussion here.)

Second, and of particular concern, the emergency disclosure mandate operates with no judicial backstop. None. Whatsoever. This is in direct contrast with the provisions in both the Wiretap Act and Foreign Intelligence Surveillance Act (FISA) that require companies to comply with emergency disclosure orders, but then also require subsequent post-hoc review by a court. Under the Wiretap Act, an emergency order has to be followed up with an application for a court authorization within 48 hours (see 18 U.S.C. § 2518(7)). And under FISA, an emergency order has to be followed with an application to the court within 7 days (see 50 U.S.C. § 1805(5)). If the order isn’t filed or the court application denied, the collection has to cease.

The proposed Sessions amendment, by contrast, allows the government to claim emergency and compel production of emails, without any back-end review.

Albert Gidari notes that providers are already getting a ton of emergency requests, and a good number of them turn out to be unfounded.

For the last 15 years, providers have routinely assisted law enforcement in emergency cases by voluntarily disclosing stored content and transactional information as permitted by section 2702 (b)(8) and (c)(4) of Title 18. Providers recently began including data about emergency disclosures in their transparency reports and the data is illuminating. For example, for the period January to June 2015, Google reports that it received 236 requests affecting 351 user accounts and that it produced data in 69% of the cases. For July to December 2015, Microsoft reports that it received 146 requests affecting 226 users and that it produced content in 8% of the cases, transactional information in 54% of the cases and that it rejected about 20% of the requests. For the same period, Facebook reports that it received 855 requests affecting 1223 users and that it produced some data in response in 74% of the cases. Traditional residential and wireless phone companies receive orders of magnitude more emergency requests. AT&T, for example, reports receiving 56,359 requests affecting 62,829 users. Verizon reports getting approximately 50,000 requests from law enforcement each year.

[snip]

Remember, in an emergency, there is no court oversight or legal process in advance of the disclosure. For over 15 years, Congress correctly has relied on providers to make a good faith determination that there is an emergency that requires disclosure before legal process can be obtained. Providers have procedures and trained personnel to winnow out the non-emergency cases and to deal with some law enforcement agencies for whom the term “emergency” is an elastic concept and its definition expansive.

Part of the problem, and the temptation, is that there is no nunc pro tunc court order or oversight for emergency requests or disclosures. Law enforcement does not have to show a court after the fact that the disclosure was warranted at the time; indeed, no one may ever know about the request or disclosure at all if it doesn’t result in a criminal proceeding where the evidence is introduced at trial. In wiretaps and pen register emergencies, the law requires providers to cut off continued disclosure if law enforcement hasn’t applied for an order within 48 hours.  But if disclosure were mandatory for stored content, all of a user’s content would be out the door and no court would ever be the wiser. At least today, under the voluntary disclosure rules, providers stand in the way of excessive or non-emergency disclosures.

[snip]

A very common experience among providers when the factual basis of an emergency request is questioned is that the requesting agency simply withdraws the request, never to be heard from again. This suggests that to some, emergency requests are viewed as shortcuts or pretexts for expediting an investigation. In other cases when questioned, agents withdraw the emergency request and return with proper legal process in hand shortly thereafter, which suggests it was no emergency at all but rather an inconvenience to procure process. In still other cases, some agents refuse to reveal the circumstances giving rise to the putative emergency. This is why some providers require written certification of an emergency and a short statement of the facts so as to create a record of events — putting it in writing goes a long way to ensuring an emergency exists that requires disclosure. But when all is in place, providers respond promptly, often within an hour because most have a professional, well-trained team available 7×24.

In other words, what seems to happen now, is law enforcement use emergency requests to go on fishing expeditions, some of which are thwarted by provider gatekeeping. Jeff Sessions — the guy who 7 years ago helped the Obama Administration preserve the dragnets — now wants to make it so these fishing expeditions will have no oversight at all, a move that would make ECPA reform meaningless.

The effort to lard up ECPA reform with things that make surveillance worse (not to mention the government’s disinterest in reforming ECPA since 2007, when it first started identifying language it wanted to reform) has my spidey sense tingling. The FBI has claimed, repeatedly, in sworn testimony, that since the 2010 Warshak decision in the Sixth Circuit, it has adopted that ruling everywhere (meaning that it has obtained a warrant for stored email). If that’s true, it should have no objection to ECPA reform. And yet … it does.

I’m guessing these emergency requests are why. I suspect, too, that there are some providers that we haven’t even thought of that are even more permissive when turning over “emergency” content than the telecoms.

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The 2009 Last Ditch Attempt to Undercut the FISA Court

As I laid out in this timeline, sometime in fall 2009, the NSA submitted an end-to-end report describing the Internet dragnet. Then, weeks later, David Kris wrote Reggie Walton, admitting that the had been collecting data outside the categories approved by Colleen Kollar-Kotelly in 2004 — that is, admitting that the rosy picture NSA had painted in its end-to-end report was entirely false. Sometime shortly thereafter, DOJ decided not to submit its Internet dragnet reauthorization application, effectively shutting down the Internet dragnet on or around October 30, 2009 until John “Bates-Stamp” Bates reauthorized it sometime around July 2010.

Which is why I find the discussion of the PATRIOT reauthorization during precisely that time period so interesting.

On October 1 the Senate Judiciary Committee had its first open hearing on PATRIOT reauthorization.  At that point, an effort to require Section 215 have particular ties to terrorism got shut down in an action we now know served to preserve the phone dragnet. The discussion around it created the interest for a classified briefing. On October 7, they got that briefing. Also on October 7, the Obama Administration gave Jeff Sessions a bunch of changes they wanted off of what the bill had been on October 1.

On October 8, the Senate Judiciary Committee had another open hearing on PATRIOT reauthorization. The committee adopted Sessions changes over DiFi’s already watered down version of what Pat Leahy had originally pushed on October 1 (this is what elicited Russ Feingold’s concerns about SJC acting as the Prosecutors Committee). The changes limited Section 215 protections for libraries, fixed the gag order problem with NSLs with a non-fix that is similar to one included in USA Freedom Act. Most significantly, they watered down what would have been new minimization procedures for the PRTT authority (which were ultimately stripped in any case), making clear minimization procedures should only be adopted in exceptional circumstances. As I guessed correctly at the time, this was probably done to protect the PRTT dragnet that was collecting vast amounts of Internet metadata (as well as, contrary to Jeff Sessons’ claims in the hearing, content).

They absolutely gutted the minimization procedures tied to pen registers! Pen registers are almost certainly the means by which the government is conducting the data mining of American people (using the meta-data from their calls and emails to decide whether to tap them fully). And Jeff Sesssions–I mean Barack Obama–simply gutted any requirement that the government get rid of all this meta-data when they’re done with it. They gutted any prohibitions against sharing this information widely. In fact, they’ve specified that judges should only require minimization procedures in extraordinary circumstances. Otherwise, there is very little limiting what they can do with your data and mine once they’ve collected it.

By asserting it had the authority to impose minimization procedures on the Internet dragnet, the FISC tried, utterly unsuccessfully, to prevent the NSA from illegally wiretapping Americans. When the FISC again asserted its authority to impose minimization procedures, NSA just took its toys and went overseas, where it didn’t have that meanie rubber stamp FISC to contend with.

I raise this not only because it suggests DOJ was making legislative efforts to undercut the FISC just as they discovered a huge problem with their Internet dragnet. But also because, in my opinion, the USA Freedom Act makes a similar effort to withdraw any claim the court might make to be able to impose and review compliance with minimization procedures. I don’t think it’s an Internet dragnet this time — as I’ll write later, I think it’s either location (which is fairly banal) or more interesting flow analyses. But I think Congress — with the support of civil liberties NGOs, this time — is still trying to undercut the way that FISC has best been able to impose some controls on the government’s spying.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

On the Refusal to Exercise Oversight over Vast Surveillance Programs, Episode 117

The Joint IG Report on the illegal wiretap program left out all discussion of what happened to the Internet and (to a lesser extent) phone metadata collection that got moved into Pen Register/Trap&Trace and Section 215 collection, respectively, as described by the NSA Draft IG Report (see page 39 ff).

The transition of certain PSP-authorized activities to FISC orders is described in detail in Section 5 of the classified report and Chapter Five of the DOJ OIG Report. Further details regarding this transition are classified and therefore cannot be addressed in this unclassified report.

But the report did make it clear that Glenn Fine, then DOJ’s Inspector General, had recommended DOJ and other Intelligence Committee agencies track whether these programs were useful in their new form.

As noted above, certain activities that were originally authorized as part of the PSP have subsequently been authorized under orders issued by the FISC. The DOJ OIG believes that DOJ and other IC agencies should continue to assess the value of information derived from such activities to the government’s counterterrorism efforts.

[snip]

Finally, the collection activities pursued under the PSP, and under FISA following the PSP’s transition to that authority, involved unprecedented collection activities. We believe the retention and use by IC organizations of information collected under the PSP and FISA should be carefully monitored.

The Joint IG Report came out in July 2009. The debate over extending the PATRIOT Act started in earnest in September 2009.

Yet not only wasn’t that review baked into the extension, but when Patrick Leahy tried to include additional oversight that would include, among other things,

  • Mandate further audits of some of these provisions, such as the use of pen registers
  • Give the Court oversight over the minimization procedures for the use of Section 215 and pen register and trap and trace devices
  • Require that Section 215 and pen registers only be granted if authorities can show that the requested information has ties to terrorism

Dianne Feinstein got Leahy to take much of that out in a substitute bill, and then Jeff Sessions, seemingly working on behalf of the Administration, gutted things further in the Senate markup. It was fairly clear then that the IC — if not the Administration personally — wanted to make sure this oversight did not get added to the PATRIOT Act.

And it didn’t.

The next year, Glenn Fine — who, of course, was the guy who recommended increased oversight in the first place — said he’d do the reviews anyway.

We intend to initiate another review examining the FBI’s use of NSLs and Section 215 orders for business records. Among other issues, our review will assess the FBI’s progress in responding to the OIG’s recommendations in the prior reports. In addition, we intend to examine the number of NSLs issued by the FBI from 2007 through 2009, and we will closely examine the automated system to generate and track NSLs that the FBI implemented to address the deficiencies identified in the OIG reports.

In addition, our review will cover the FBI’s use of Section 215 orders for business records. It will examine the number of Section 215 applications filed from 2007 through 2009, how the FBI is using the tool today, and describe any reported improper or illegal uses of the authority. Our review will also examine the progress the FBI has made in addressing recommendations contained our prior reports that the FBI draft and implement minimization procedures specifically for information collected under Section 215 authority.

We also intend to conduct a programmatic review of the FBI’s use of its pen register and trap and trace authority under the FISA. That part of the review will examine issues such as how the FBI uses the authority to collect information, what the FBI does with the information it collects, and whether there have been any improper or illegal uses of the authority either reported by the FBI or identified by the OIG. [my emphasis]

Writing in 2010, when both metadata collection programs were still ongoing under these authorities, this basically laid out a plan to review all the secret metadata collection hidden inside these authorities.

Fine wrote that in June; in November of that year, he announced his resignation, saying he wanted to pursue new professional challenges.

Read more

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Holder Testifies Before Senate Judiciary Committee

The Committee feed is screwy right now, but cspan.org is carrying it. Pat Leahy will not be there today; he’s at a funeral. I don’t know if Herb Kohl (who will act as Chair) had an opening statement or not. But Jefferson Beauregard Sessions is up now whining about civilian trials.

(Incidentally, at 10, the House Judiciary Commitee will have Glenn Fine and Valerie Caproni talking about the Exigent Letter IG Report. I’ll do my best to keep my eye on that too.)

Sessions apparently doesn’t know there was a hearing last week in a military commission, which basically consisted of everyone looking at each other and admitting that MCs have no rules right now.

Here’s Holder’s statement.

Holder: 19 USA nominees and 17 Marshal nominees pending.

Holder now listing all the terrorists prosecuted in civilian courts.

Use every tool available. Includes both civilian and military commissions. Referred 6 cases to military commissions. It would seriously weaken national security not to have civilian trials.

9/11 Commission trial. No decision yet.

Kohl: Review of 240 detainees. In your testimony did not mention if and when you plan to close Gitmo. Update?

Holder: Still intention to close Gitmo. Once was bipartisan support for closing it. Both men who ran for President last year supported closing Gitmo. Will close as soon as we can.

Holder basically says they intend to use Thompson to hold people indefinitely.

Kohl raises Holder’s comment about reading Miranda rights to Osama bin Laden.

Kohl: Do you still believe civilian trials are better? When can this decision be made.

Holder: Reviewing decision. NY is not off the table. Have to take into consideration concerns raised by local community. Expect to be able to make determination in a number of weeks.

Read more

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Jeff Sessions: George Bush Waited 7 Years to Set Up Military Commissions

Jeff Sessions has already seized on yesterday’s release of DOJ’s list of 390 terrorist convictions and twisted it to sustain his claim that we need to try Khalid Sheikh Mohammed in a military commission. Much of his response consists of making non-specific claims about individuals on the list in an attempt to minimize the applicability of all these convictions.

The great majority of the terrorism cases cited by the Attorney General are in no way comparable to KSM’s case. Most of the convictions in this list are for far lesser offenses, such as document fraud and immigration violations, while only a small handful concern conduct even remotely similar to a mass-casualty terrorist attack. And none are on the level of KSM, who masterminded 9/11.

Among the cases cited is that of Zaccarias Moussaoui, which was fraught with procedural problems, delays, appeals, risks to classified evidence, and even a lone holdout juror who spared the 20th hijacker the death penalty. Due to gaps in federal law, many of the problems prosecutors encountered in the Moussaoui trial will be experienced in future terrorism trials.

[snip]

The figures released today also contradict the Attorney General’s claims on the Christmas Day Bomber: two of the terrorists on this list were placed in military custody precisely because the criminal justice system severely limits our ability to gather intelligence. [my emphasis]

But by far the most amusing attack on this list is Jeff Sessions’ explanation–after pointing to the procedural problems and delays in the Moussaoui trial–that most of these 390 convictions happened before military commissions were operational, which he dates to 2008.

Moreover, the overwhelming bulk of these cases are for acts committed by U.S. citizens—which KSM and the Christmas Bomber are not—and occurred before military commissions became fully operational in 2008. [my emphasis]

Someone better tell George Bush, who claims to have set up military commissions on November 13, 2001. And someone better tell Salim Hamdan, who was first charged in a military commission in 2004, and whose appeal of the terms of the military commissions lasted two years, after which there was another two year delay until his trial began.

In other words, Jeff Sessions deals with precisely the kind of delay we can expect for any future military commissions–one of the biggest reasons not to use them–by simply ignoring the delays that have already happened.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The 390 Terrorists Convicted in Civilian Courts

The Department of Justice has just sent a letter to the Senate Judiciary Committee answering early questions about how many terrorists have been convicted or plead guilty in civilian courts. Between those convicted of terrorism-related crimes (150) and individuals with ties to international terrorism convicted of other crimes (like obstruction or perjury–the total here is 240), 390 people have been sent to prison using our civilian courts.

As you might recall, there has been some debate over what the “real” number of terrorists convicted in civilian courts is. After the Obama Administration used the same number the Bush Administration had–a number which combines terrorist charges with non-terrorist charges–Republicans squawked.

But as DOJ points out, having other charges available is one of the advantages to the civilian courts:

The second category includes a variety of other statutes (like fraud, firearms offenses, false statements, or obstruction of justice) where the investigation involved an identified link to international terrorism. There have been more than 240 individuals charged in such cases since September 11, 2001. Examples of the international terrorism nexus identified in some of these cases have also been provided for your review.Prosecuting terror-related targets using these latter offenses is often an effective method—and sometimes the only available method—of deterring and disrupting potential terrorist planning and support activities. Indeed, one of the great strengths of the criminal justice system is the broad range of offenses that are available to arrest and convict individuals believed to be linked to terrorism, even if a terrorism offense cannot be established. Of course, an aggressive and wide-ranging terrorism investigation will net individuals with varying degrees of culpability and involvement in terrorist activity, as the NSD chart reflects. Arresting and convicting both major and minor operatives, supporters, and facilitators can have crippling effects on terrorists’ ability to carry out their plans. [my emphasis]

This is a point David Kris made in Congressional testimony last year–there are actually charges you can’t use in a military commission but which you can use in a civilian court (though the Obama Administration appears prepared to press the limits of MCs anyway).

The list of terrorists convicted itself is interesting in its own right. Among other things, it demonstrates the degree to which terrorism is still largely–though not exclusively–targeted at Muslims (though in the first page itself there are individuals tied to the Tamil Tigers and one woman from FARC who was quietly rounded up last year after the Ingrid Betancourt rescue).

Not on this list? Right-wing American terrorists like Scott Roeder.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Whose Non-Disclosure Was Worse: Bybee’s or Holder’s?

John Kyl has officially announced he intends to waste an oversight hearing on March 23 beating up Eric Holder because he did not disclose an amicus brief opposing unlimited Presidential power.

Kyl told members of the committee that panel Republicans will question the Attorney General about his 2004 amicus brief that recommended the Supreme Court stop the Bush administration’s efforts to try Jose Padilla as an enemy combatant.

[snip]

Kyl called the non-disclosure of the brief “rather distressing.”

“Are we expected to believe that then-nominee Holder…forgot about his role in one of this country’s most politicized terrorism cases?” Kyl asked.

And the other Republicans on the Senate Judiciary Committee are practicing their pout-rage, as well.

Senator Jeff Sessions of Alabama, the ranking Republican on the committee, said he was “deeply concerned” by Mr. Holder’s failure to disclose the brief during his confirmation.

“Not only was the Attorney General required to provide the brief as part of his confirmation, but the opinions expressed in it go to the heart of his responsibilities in matters of national security,” Mr. Sessions said in a statement. “This is an extremely serious matter and the Attorney general will have to address it.”

Now, as I said earlier, Holder clearly should have disclosed this brief–though his views were already well known.

But he’s not the first nominee to go before SJC who failed to disclose key legal writings. After all, Jay Bybee secured a lifetime appointment as an Appeals Court Judge without disclosing the fact that he rubber stamped legal sanction for torture. And unlike Holder, Bybee’s actions were totally unknown at the time. At the time, just one Democrat, Jane Harman, had even been briefed that CIA was doing the torture (though Pelosi had been briefed that they were considering torture), the memos specifically had not even been revealed to her, and even if she knew about it, she would not have been permitted to share it with SJC.

And yet, barring Bybee’s resignation or prosecution in some international court, Bybee will be serving on the 9th Circuit long after Holder has moved on as Attorney General.

So whose non-disclosure is more of a problem? Jay Bybee, who failed to hint that he had authorized torture? Or Eric Holder, whose views were well-known and tested during his confirmation hearing?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

The Next Attack: Holder’s Amicus Curiae Brief Against Unlimited Presidential Power

As Jake Tapper reports, the next attack the McCarthyites have planned is on Eric Holder, for once saying in an amicus curiae brief that it’s possible following the Constitution will make it harder to detain potential terrorists.

In 2004 Attorney General Eric Holder was one of four former Clinton administration officials offering an amicus brief questioning President Bush’s assertion that he had the inherent authority to indefinitely detain as “enemy combatants” American citizens captured in the US.

The brief, offered in the case Donald Rumsfeld v Jose Padilla, can be read HERE.  Holder’s co-authors include former Attorney General Janet Reno, former deputy Attorney General Philip Heymann, and the former counsel for the CIA Jeffrey Smith.

A Republican official on the Senate Judiciary Committee tells ABC News that Holder did not disclose this amicus brief before his confirmation hearings.

The brief is actually refreshing in its simplicity. It recites all the means the executive branch has to combat terrorism, then says the President doesn’t also need the power to detain Americans without any judicial oversight. I can see why and how the Republicans will make a stink of it, but that doesn’t mean they are right.

But there’s a part of the brief that deserves particularly close attention–because it raises the implicit question of why the Bush Administration didn’t just charge Jose Padilla, if they could back up the claims they made about him.

When Padilla was arrested pursuant to the material witness warrant, his terrorist plans were thwarted. He was then available to be questioned to the same extent as any other citizen suspected of criminal activity. Moreover, the facts set forth in the President’s findings, and the facts presented to the District Court, are more than sufficient to support criminal charges against Padilla, including providing material support to designated terrorist organizations, 18 U.S.C. § 2339B; providing material support to terrorists, id. § 2339A; conspiracy to use a weapon of mass destruction, 18 U.S.C. § 2332a; and attempted use of a weapon of mass destruction, id. § 2332a(a)(1).36 Read more

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.