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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

Holder SJC Oversight Hearing Liveblog

Leahy talking about the things that Holder has accomplished: improvements in civil rights, recovery funds to law enforcement. Talks about the things that need to improve: state secrets, press, healthcare fraud, hate crimes. Troubled about continuation of Bush Administration’s practice of invoking state secrets to shut down wrong-doing. Access to courts is important. Safely and effectively closing Gitmo. Reviewing the bad terrorists that we have held: Timothy McVeigh, Sheikh Adbul Rahman, Zacarias Moussaoui.

"The idea that we cannot find a place to house 250 detainees is not rational." 

Leahy calling on hate crimes bill. 

Sessions: Starts by talking about details of Sotomayor’s confirmation hearings. Disappointed–put Constitution and rule of law above politics. I don’t think the actions we’ve seen so far are consistent. I find myself reading about political appointees who have overruled career attorneys. Rejected OLC that Congress’ recent legislation on DC voting was unconstitutional. [Well, Sessions, if you would approve Dawn Johnsen, then maybe Holder would listen to OLC?] Pressure from the left when you allowed DOJ to release OLC opinions on torture. 

[blah blah blah: Sessions demagoguing.]

[career attorneys career attorneys career attorneys–Sessions is pretending that these people weren’t burrowed in by Rove and Cheney]

[pre-9/11 pre-9/11 pre-9/11 pre-9/11]

Jeff Sessions pronounces it "Fo-Toes."

Holder: Highest priority to protect against acts of terrorism. Close Gitmo. Southwest threat–drug cartels. Civil Rights. Foreclosure scams. Finance fraud. Healthcare fraud.

Leahy: Black Panther. I understand a career employee made the final decision of which people to charge. I thought I’d point that out–want to have the facts here. Injunction against person who was intimidating on decisions. [huh?] President’s nominee in Civil Rights. [Don’t know if he said OLC too] Holocaust shooting. Open and classified filings, number of hate crimes and positions more vile. 

Holder: If any doubt about need for legislation, wiped out by Holocaust and other hate crimes. 10 years ago I testified in favor of this bill. Expands scope of federal hate crimes to include gender, disability, sexual orientation. 

Leahy: NYT’s latest story on wiretapping. I don’t know how we justify continuing these expansive authorities, even expanded authorities being abused.

Holder: Work closely to ensure that national security conducted consistent with legal authorities. Framework that we always try to follow. Congress establishes safeguards. "really strict guidelines."

Leahy: The more we find out, not from the intelligence agencies, not from government, but NYT, we get it quicker, more detail, and we get the crossword puzzle. I don’t know how Read more

Call for the Senate to Vote for Process at OLC–and Dawn Johnsen

Update: Predictably, Arlen "Scottish Haggis" Specter put a one-week hold on Dawn Johnsen. Call Specter at (202) 224-4254 and tell him to stop obstructing Obama’s nominees. It’s time we cleaned up OLC and Specter’s just ensuring the Cheneyesque abuse of power will continue for a few more weeks.

In short time, the Office of Professional Responsibility will release a report on the abuses of John Yoo at OLC. The report will describe a process which Yoo used to "analyze" law that looks something like this:

  1. David Addington calls Yoo and tells him what program Cheney wants to do–or has already started doing
  2. An official request for a memo comes from Alberto Gonzales or Jim Haynes, presenting that desired program as a hypothetical–"what if we wanted to do X"–rather than the fait accompli Addington presented it as over phone or email
  3. Yoo drafts a memo authorizing that program
  4. Yoo eliminates or otherwise frivolously dismisses references to key precedents like Youngstown or Milligan
  5. Yoo scours obscure documents–like insurance legislation or TV series–to find standards for torture and domestic surveillance that allows him to stretch the limits of legality well beyond belief
  6. Yoo finalizes draft and sends it to Addington
  7. Addington corrects it with a big red pen
  8. Yoo makes Addington’s final changes and distributes memo to about 3 people
  9. All 3 people receiving the memo put it into a drawer, a briefcase, or a man-sized safe, to make sure those implementing this program will never see it
  10. When Congress or the ACLU or some other do-gooder asks for a copy, tell them it’s unclassified, but they still can’t have it "so there"

Today, the Senate Judiciary Committee will finally consider Dawn Johnsen’s nomination to head up OLC (it should be on the committee stream at 10–though she’s the last thing on the agenda). You’ll hear a lot of Republicans–Arlen "Scottish Haggis" Specter and Tom Coburn, among others–claiming that Dawn Johnsen is a radical who eats babies and loves terrorists.

But compare how Dawn Johnsen–that soon to be accused-baby eater–has promised to craft OLC memos to how we know Yoo did (what Johnsen calls the advocacy model).

1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

2. OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government—the courts and Congress—and constitutional limits on the exercise of governmental power.

Read more

FISA Debate Liveblog

Jello Jay on bulk collection (time from opponents, this is a Feingold amendment).

Feingold argues amendment will prevent bulk collection by requiring govt to have some foreign intell interest in bulk info.

I believe will interfere with legitimate intelligence activities. I do not believe it provides additional protections. There important classified reasons underlying that concern.

Why it’s unnecessary: Bulk collection would be unreasonable by Fourth Amendment. Bill provides that collections have to be in accordance with 4th Amendment. Minimization. Cannot primarily target a US person.

Feingold only requires that it certify that bulk intelligence has foreign intelligence interest. But it already requires that the collection is targeted at people outside of the US. Remedy does not improve upon protection in bill. I thus oppose.

Bond

A number of inaccurate statements. It’s not an understatement to say they could shut down our intelligence collection.

3979, Feingold and Webb.

Amendment says that FISA is supposed to be foreign to foreign. Focus on foreign to foreign is misplaced. We cannot tell if a foreign terrorist is going to be communicating with another terrorist in another country. It does no good to only collect foreign to foreign. Impossible burden that FISC judges told us shut down their review. [That’s news, saying that it was the review of foreign to US that overwhelmed the FISC.]

This would stop collection. One intell professional said it would devastate the collection. Targetnet versus dragnet.

Blah blah blah; I’m going to misrepresent Feingold’s bill, so I can rebut it.

[Wow. Just looked at the screen. Bond has a whole lot of lilac on. Perhaps he knows that way more people turned out last night in his state for Democrats than Republicans?]

I’m sure the FISC judges would appreciate the notion that they’re doing a bad job. [wow that was dishonest] Read more

SJC Mukasey Hearing

I haven’t liveblogged in a while, so what the heck. Watch along here or here.

Leahy

Leahy starts by highlighting civil liberties violations, naming Bradbury.

We join together to press for accountability and that led to a change in leadership. Today we continue our efforts to restore DOJ.

[Leahy mentions the torture tapes, but focuses on the CIA’s unwillingness to tell the 9/11 Commission.]

Today we will get some kind of indication whether the AG will restore checks and balances. It is not enough to say that waterboarding is not currently authorized. Torture has no place in America. Tragically, this Administration has so twisted our values that top officers are instructed by the WH not to say that torture is illegal.

[Lists the people we’ve prosecuted for waterboarding.]

That is not America.

Arlen "Scottish Haggis" Specter [incidentally, the first person I ran into when I walked into Congress on Monday was Specter, just coming off the floor having voted against cloture. I contemplated thanking him for his no vote. But then I doubted that "Scottish Haggis, I appreciate that you finally voted your conscience" would go over very well.]

Scottish Haggis agrees that Bush has pushed Article II. Discussion torture, still focusing on Article II powers.

Leahy swears Mukasey in.

Mukasey’s statement. Suggests Bush’s stonewalling just a sign of how well the Constitution works. [Remind me to tell you about Schumer’s comment on Mukasey, an attempt to justify his picking him.]

"Committed to review CIA interrogation program. Carefully reviewed limited set of methods authorized, concluded they are lawful. Aware that you address specifically address waterboarding. I have been authorized to say waterboarding is not among techniques currently used. Passing on its legality is not among the scope of what I promised to review."

ARGH!!

CIA Director would have to ask to use waterboarding, would have to outline its use, the issue would have to go the President.

Leahy: First question, brings up Ridge’s and McConnell’s comments that waterboarding is torture. Mukasey dodges, says he can’t say anything because he’s AG.

MM: I know that if I address a complex legal question without having concrete circumstances before me, yadda yadda yadda.

Leahy: I think the failure to say something puts some of our people in more danger.

Mukasey: Our military won’t be affect by what I say. They’re legal soldiers.

[Mukasey’s logic here is that we’re allowed to torture people who are illegal combatants.] Read more

The Jeff Sessions-BushCo Mutual Protection Racket

Via CREW, E&P has the news that Jeff Sessions wants to help the Administration evade the Presidential Records Act.

Recalling last year’s infamous "secret hold" that for a while prevented the U.S. Senate from voting the OPEN Government Act, another senator has put a hold on legislation to ensure the records of former presidents cannot be withheld from the public indefinitely.

This time, however, the senator is placing the hold publicly. Sen. Jeff Sessions, R.-Ala., earlier this week blocked the Senate from voting on the Presidential Records Act Amendment of 2007 (H.R. 1255), the National Coalition for History reported.

The legislation would narrow a 2001 executive order from President George W. Bush that gives broad authority for former presidents to prevent public disclosure of their administration records — and for the first time extends the power to former vice presidents.

This is not the first time Sessions has been so willing to help the Administration cover up its own wrong-doing. Documents released in the US Attorney scandal suggest Sessions was running interference when Alberto Gonzales testified before the SJC on the firings; the emails documenting that assistance remain among the very few that have not since been released.

There a very good reason why Jeff Sessions is so helpful at protecting the Administration. After all, the politicized Bush Administration made sure Sessions didn’t get tagged with the influence peddling charges that Don Siegelman got indicted with.

One of the charges against Siegelman, on which he was convicted, was that he had accepted gifts from an Alabama lobbyist. When that lobbyist testified, he made the point that he done the same thing–except in a much larger way—with Alabama Republican Senator Jefferson Sessions, without the Justice Department raising any questions about it. Now, as we have already noted, Judge Fuller owes his judgeship in part to Jefferson Sessions, moreover, he was an active supporter and campaign donor to Sessions’s senatorial campaign.

Moreover, Sessions’s deputy and successor as Alabama Attorney General was Bill Pryor, who played a key role in directing the prosecution of Siegelman. When Sessions’s name came up, the Justice Department’s Public Integrity Section lawyer objected, asking that this evidence be excluded, and Fuller complied. No charges were ever brought against Sessions, nor was any investigation ever undertaken. Yet Siegelman was convicted on this charge.

I would imagine Sessions and BushCO will continue their mutual protection racket for some time to come.