Congress Gets Results on Corexit

At yesterday’s hearing on the BP Disaster, Peter DeFazio and Jerrold Nadler hammered BP America President Lamar McKay on the relative toxicity and efficacy of the dispersant Corexit as compared to some other dispersants. They pointed out that Corexit is one of the most toxic of the approved dispersants and is not as effective as others. Here’s a chart of the relative toxicity and efficacy from the EPA (click to enlarge).

In addition, on Monday, Edward Markey wrote EPA Administration Lisa Jackson asking why BP was using Corexit rather than a less toxic dispersant. Among other questions Markey asked were:

It is my understanding that the main dispersants applied so far are from a product line called Corexit, some of which had their approval rescinded in Britain more than a decade ago, because laboratory tests found them harmful to sea life that inhabits rocky shores.

a. How did EPA ensure that this dispersant’s toxicity to aquatic life was evaluated?

b. Was its toxicity to mollusks and other sea life that inhabit the Gulf of Mexico evaluated, and if so, what were the results? If not, why not?

c. If EPA relied on toxicity studies for coastal morphologies different from that of the Gulf Coast, what was done to evaluate the applicability of those studies for the use of the dispersants in the Gulf of Mexico environment?

d. Was the toxicity to other subsurface aquatic life evaluated? If so, please provide details, and if not, why not?

Late yesterday, the EPA informed BP it’s going to have to switch to another, less toxic, dispersant within three days.

The Environmental Protection Agency informed BP officials late Wednesday that the company has 24 hours to choose a less toxic form of chemical dispersants to break up its oil spill in the Gulf of Mexico, according to government sources familiar with the decision, and must apply the new form of dispersants within 72 hours of submitting the list of alternatives.

The move is significant, because it suggests federal officials are now concerned that the unprecedented use of chemical dispersants could pose a significant threat to the Gulf of Mexico’s marine life. BP has been using two forms of dispersants, Corexit 9500A and Corexit 9527A, and so far has applied 600,000 gallons on the surface and 55,000 underwater.

I guess all these hearings aren’t entirely a waste of time.

(Updated with efficacy table.)

Update: Here’s EPA’s order to BP to use a less toxic dispersant. And here’s some data from the dispersant monitoring.

Update: According to Nadler’s office, the maker of Dispersit got an order from BP for 60,000 gallons today.

Nadler: FBI’s Not Done on Amerithrax

I know that Rush Holt has already called for further investigation in the anthrax case, but having a Sub-Committee Chair at HJC make the same call might carry different weight.

Congressman Jerrold Nadler (D-NY), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, reiterated his call for an independent investigation into the 2001 anthrax attacks which killed five people and sickened 17.  He issued the following statement:

“Despite the FBI’s assertion that the case of the anthrax attacks is closed, there are still many troubling questions.  For example, in a 2008 Judiciary Committee hearing, I asked FBI Director Robert Mueller whether Bruce Ivins was capable of producing the weaponized anthrax that was used in the attacks.  To this day, it is still far from clear that Mr. Ivins had either the know-how or access to the equipment needed to produce the material.  Because the FBI has not sufficiently answered such questions, I join Congressman Holt in urging an independent investigation of the case.”

Nadler Responds to the Fear-Mongerers on NYC Trials

There are a lot of Dems–particularly from NY–telling fearful Republicans that we can try the 9/11 murderers at the scene of the crime.

Among those is Jerry Nadler:

I thank the Department of Justice and Attorney General Eric Holder for their diligent efforts to bring to justice those who have committed acts of terrorism against the United States. In particular, I applaud the decision to bring those individuals responsible for the attack on the World Trade Center to New York to face trial in our federal courts. New York is not afraid of terrorists, we want to confront them, we want to bring them to justice, and we want to hold them accountable for their despicable actions.

It is fitting that they be tried in New York, where the attack took place. On that day almost 3,000 innocent men, women, and children were murdered, and New York has waited far too long for the opportunity to hold these terrorists responsible. We have handled terrorist trials before, and we welcome this opportunity to do so again. Any suggestion that our prosecutors and our law enforcement personnel are not up to the task of safely holding and successfully prosecuting terrorists on American soil is insulting and untrue. I invite any of my colleagues who say that they are afraid to bring detainees into the United States to face trial to come to New York and see how we handle them.

Trying these alleged terrorists in New York also will allow family members of 9/11 victims to see these trials and confront these defendants in open court. These families deserve that opportunity, and I thank the Department of Justice for providing it.

Finally, I am disappointed that the Attorney General has decided to pursue cases against other Guantanamo detainees in military commissions. While Congress has reformed some aspects of that system, the military commissions are no substitute for trials in our federal courts or through courts-martial. We must ensure that these commissions are not simply used as a lesser vehicle for cases in which the evidence is not sufficient. [my empahsis]

Why is it that Republicans are such scardey-cats?

DOJ Circumvents Judge Walker; Attempts To Further Correct Previous Falsities

In what can only be described as a curious filing, the US Government, through the DOJ has submitted a pleading to the 9th Circuit Court of Appeals in the previously terminated al-Haramain appeal originally filed in 2006. In this appeal, on November 16, 2007, the 9th generally upheld the government’s state secrets assertion, but remanded the case to Judge Walker “to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” (Walker has so ruled and those proceedings are indeed ongoing and awaiting the Court’s decision of Plaintiffs’ Motion For Summary Judgment). The 9th Circuit’s mandate issued on January 16, 2008.

The new submission filed in the 9th Circuit is nothing short of a brazen attempt to subvert Judge Walker’s trial court authority and jurisdiction by an end run, and is entitled “NOTICE OF LODGING OF IN CAMERA, EX PARTE DECLARATION OF DIRECTOR OF NATIONAL INTELLIGENCE”

The Government hereby respectfully notifies the Court and counsel that it is lodging today with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of the Director of National Intelligence, Dennis C. Blair.

We are making the lodging because an issue arose regarding an inaccuracy in an earlier Government submission in the district court that was part of the record before this Court in an interlocutory appeal in this matter bearing the above caption. The case has been remanded to the district court and an appeal is no longer pending before this Court. The lodging does not call for any action by this Court but is intended to ensure that this Court is informed of the earlier inaccuracy and has available to it classified details with respect to the issue. The Government has informed the district court of the issue, has offered to make available to that court additional classified details in camera, ex parte, and is informing that court that the Government is making the lodging in this Court.

Here is the document. Now the government had just submitted an unclassified declaration of ODNI Blair to the trial court in September, and references said declaration in their new little filing, but does not seem to attach it. Instead, they submit a new classified ex parte declaration from Blair.

Because the inaccuracy was in an earlier Government submission that was part of the record when the case came before this Court on interlocutory appeal, we are today lodging with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of Director of National Intelligence Blair. That declaration provides additional classified information regarding the matter. As noted, the lodging ensures that this Court is informed of the issue and has available to it classified details concerning the issue.

Well now, it would seem that Jon Eisenberg has struck a raw nerve with his putative entry into the Horn v. Huddle case as an amicicus urging Royce Lamberth to leave his opinions in place and in force. After having been blistered by Read more

State Secrets Bill Passes House Judiciary, 18-12

The House Judiciary just passed Jerry Nadler’s bill reining in state secrets abuse by a vote of 18-12, with Adam Schiff as the sole Democrat voting against the bill. One thing Nadler has added to his bill since it was first introduced are measures to prevent the government from refusing to give plaintiff lawyers clearance to litigate the case (if the govt refuses the first and second choice lawyers for plaintiffs, the govt must give a list of possible lawyers to litigate the case). This would prevent a tactic the government tried to use in both the Horn and the al-Haramain suits.

In addition, the House Judiciary passed its version of PATRIOT Reauthorization. It’s a better bill than the Senate bill.

While both of these bills have a long way to go before they get signed into law (and at some point, I would expect the Obama Administration to reveal their opposition–and their support for unfettered executive power). But on the state secrets bill, especially, we have taken a very small step toward reining in the abuse of power of both Bush and Obama.

PATRIOT and State Secrets Mark-Up, Day Two

Here’s Jerry Nadler, in yesterday’s hearing, explaining how the PATRIOT reauthorization attempts to balance privacy and national security.

Follow along today’s hearing here.

Oops, I had some technical issues. Started up late. Apparently Lamar Smith is attempting to keep Lone Wolf.

Conyers now explaining that Suzanne Spaulding says govt could always seek criminal warrant for a Lone Wolf. Lone Wolf provision not in original PATRIOT, nor the one that got substituted in middle of the night in rules committee, got added for reasons not remembered by me now. Govt already uses criminal warrants with domestic terrorists, comparable to Timothy McVeigh. Tom Evans says Lone Wolf not constitutional.

Chaffetz: My understanding is that DOJ is in favor of keeping this in place.

Smith: I agree with President of US and DOJ and FBI that this needs to be reauthorized. Let me address again those who argue that we can substitute criminal wiretaps. Wiretaps that the evidence will be turned over to defendant. In case of this provision, dangerous to turn over, bc it might reveal sources and methods. Second reason, criminal wiretaps require live minimization. Translating foreign language, live minimization impossible. I don’t know if gentleman from CA would like for me to yield to him?

[Interesting, this is where Adam Schiff pushes right.]

Nadler: Only heard one of Mr. Smith’s two points, that if you use lone wolf, if you use Title III, that is done with view toward using evidence in court, if evidence collected that was secret, bring CIPA into play. Not a valid reason for having new section of law. Fundamental reason for not extending it, if you don’t show connection to foreign power, no justification for going beyond Fourth Amendment. Fourth Amendment is a protection in criminal law, when you have lone wolf, who by definition is not foreign intell, then it makes this whole thing unconstitutional.

Smith: It does add to burden.

Nadler: SCOTUS has made it clear that Fourth Amendment applies to all persons in US.

Smith: Live minimization. Speaking foreign language.

Sensenbrenner: Support amendment of gentleman from TX. Lone Wolf plugged the hole. Maybe bc the hole is plugged, not necessary to use it, but if we create the hole again, we create a gap that terrorists will exploit. Prosecution required to disclose in open court, phone conversations disclosed in court, result indicated that we weren’t able to use that surveillance method day after it became used in trial.

[The Republicans keep arguing that any hole in PATRIOT will be used by AQ, even while arguing that parallel holes in civil liberties protections won’t be used by investigators. I guess some human beings are either shrewder or less human than others.]

[Sensenbrenner is arguing that al Qaeda was successful on 9/11 bc of the earlier World Trade Center trial.]

Conyers: Lone wolf never came before judiciary committee.

Read more

Conyers to Holder: Give Us the 215 Info

I guess I’m not the only one who noticed that DOJ is trying to reauthorize Section 215 without leveling with the American people how they’re using it. John Conyers, Jerrold Nadler, and Bobby Scott have written Eric Holder, requesting that he make more information on the way Section 215 is used public.

In order to meaningfully consider whether and how to extend the "business records" section of the Act, however, we ask that the Department work to provide additional public information on the use of that provision.

Specifically, at the September 22 hearing, Deputy Assistant Attorney General Hinnen testified that orders under Section 215 of the Act, which authorizes compulsory production of "business records," have been used to obtain "transactional information" to support "important and highly sensitive intelligence collection." He explained that some members of the Subcommittee and cleared staff have received some briefings on this topic, and that additional information could be made available to them "in a classified setting."

We have appreciated the information that has been provided, and fully understand the importance of safeguarding our country’s national security secrets. Too often in 2007 and 2008, however, crucial information remained unknown to the public and many members of Congress when Congress voted on important surveillance legislation affecting the interests of all Americans. As has also been requested in the Senate, we ask that the Department work to make publicly available additional basic information on the use of Section 215, so that Congress can more openly and thoroughly consider the future of this authority while fully protecting our national security secrets.

I’m hoping they have more leverage than Russ Feingold, who I believe made this request in the Senate, since nothing is going to pass through HJC without these three gentlemen’s involvement.

Further Comments from Jerrold Nadler on the “New” State Secrets Policy

Given that Congressman Jerrold Nadler was one of the members of Congress who responded to DOJ’s "new" state secrets policy by reiterating the need for legislation reforming state secrets, I asked his office for more information of where they think the "new" policy leaves efforts for legislation. A spokesperson provided the answers below.

I was curious, first of all, whether the "new" policy was a result of negotiations that have been going on for several months with Congress. It was not. Rather, it was the result of the DOJ review of the outstanding state secrets claims made by the Bush Administration.

This policy came out of the order from Attorney General Holder that the Department of Justice review all pending cases where the state secret privilege had been asserted and was not the result of negotiations with Congress. However, we have met in the past several months with various members of the review team and have shared with them our concerns regarding overbroad use of the privilege, including our dismay regarding the continued assertion of the privilege in an effort to seek premature dismissal of cases at the initial pleading stages, and the Administration’s continued resistance to independent court review of state secret assertions. Some of those issues still need to be addressed, which highlights the fact that voluntary executive branch reform – while welcome – is not sufficient. 

Of course the policy seems to have caused the Senate, at least, to back off efforts for reform of state secrets. Nadler’s spokesperson reinforced that impression–noting that a number of members of Congress who had been supporting reform now think it is less urgent.

We are continuing to work with colleagues to build support for Congressman Nadler’s bill (H.R. 984). Some Members may now feel that legislative reform is less important because of the Department of Justice’s new policy, and we likely will need to do some work to explain that – even if the voluntary internal policy were perfect – executive branch assertion of the privilege is just one part of the equation. The other part of the equation – how courts handle state secret claims – cannot be addressed any other way except through legislative action. Right now, courts are struggling to apply existing case law and they vary greatly in treatment of privilege claims, with some courts simply deferring to assertions of harm made by agency officials and other courts undertaking a more rigorous review of those claims. Read more

“New” State Secrets Policy “Smoke and Mirrors”

That’s what a spokesperson for the Center for Constitutional Rights had to say about Eric Holder’s new State Secrets policy: that it’s just "smoke and mirrors."

The ACLU is similarly unimpressed. Ben Wizner, of the ACLU’s National Security Project, says,

On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ‘state secrets,’ and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of ‘national security. 

Congressman Nadler welcomes some of the changes but promises to continue pushing a State Secrets bill through Congress.

These new requirements, particularly the requirement for the Attorney General to approve any state secrets claim only after reviewing information and determining whether the disclosure of such information would cause significant harm to national security, are significant steps toward improving the use of the state secrets privilege. I also applaud the Attorney General’s positive declaration that the state secrets privilege cannot be used to conceal unlawful conduct by the federal government or to prevent the exposure of embarrassing details. Another important change is the mandatory referral to the Inspector General of any case in which assertion of the state secrets privilege raises credible concerns.

These are all critical steps toward transparency and increased due process, and I believe that the Obama Administration has undertaken them in good faith, with both national security and justice in mind. Nevertheless, these reforms fall short of what is necessary. There is still no prohibition against dismissing entire cases from the outset, before the courts and parties have an opportunity to determine whether the information at issue is subject to the privilege and, if so, whether a case can proceed regardless.

We must not understate the extent to which the abuse of the state secrets privilege poses a major threat to our system of justice. Read more

House Judiciary State Secrets Hearing Open Thread

I’m a little late to the the House Judiciary State Secrets Hearing (committee stream here).

Here are the witnesses:

Hon. Patricia M. Wald
Retired Chief Judge
U.S. Court of Appeals for the District of Columbia
Washington, DC
Hon. Asa Hutchinson
Senior Partner
Asa Hutchinson Law Group
Washington, DC
Andrew Grossman
Senior Partner
The Heritage Foundation
Washington, DC
Ben Wizner
National Security Project Staff Attorney
American Civil Liberties Union
Washington, DC

[Also, though it’s related more generally to the two bills on this than this hearing, Secrecy News just made a recent Congressional Research Service paper on State Secrets available.]

Jerrold Nadler has had his opening statement–the big news in that was that Holder refused to make a witness available for this hearing. Jim Sensenbrenner is up noting that Obama has adopted Bush’s approach on State Secrets.


And if I’m not mistaken, Sensenbrenner accidentally called Hillary VP, not Biden. 

Conyers: The President’s running away from a lot of things, that doesn’t make this different. We’ve been here before, Ladies and Gentlemen. I’m for State Secrets. There are some secrets we’ve got to keep away from citizens and congresspeople and bloggers. But which ones. We didn’t say "abolish state secrets." 

[Man, something has made Conyers cranky.]

Conyers: [Now listing the cases in which Obama has invoked State Secrets.] It is unacceptable that the Department declined to come to this non-secret hearing. They could not provide a witness, why? There’s a review pending, and until it is solved, they don’t want to come before this co-equal branch of government. They could have sent someone here to say we can’t talk with you guys.

Patricia Wald: Use of privilege to cut off relief. Unnecessary, produces rank injustice. US v Reynolds, ultimately it is a judge who must decide whether privilege applies. There is a consensus it’s time to regularize the privilege. Nothing that I can find in this bill would make govt turn over information. Not much doubt Congress has power to regulate evidentiary rules. In al-Haramain, judge decided that FISA pre-empted state secret’s privilege. Federal judges handle classified information every day. Incoporates proven techniques, good thing to have these techniques recognized in the law. Jeppesen, to me they did a very good thing in distinguishing using State Read more