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Did Holder Promise No Prosecutions?

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As I posted, both Sheldon Whitehouse and Pat Leahy suggest that–even though John Cornyn and others made an inappropriate demand that Holder promise not to prosecute any Bushies–Holder did not make that promise.

But right as that came out, the Moonie Times came out with a Kit Bond interview claiming that Holder had made such promises. (h/t Wigwam)

President Obama’s choice to run the Justice Department has assured senior Republican senators that he won’t prosecute intelligence officers or political appointees who were involved in the Bush administration’s policy of "enhanced interrogations."

Sen. Christopher "Kit" Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.’s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama’s Justice Department will not prosecute former Bush officials involved in the interrogations program.

Mr. Holder’s promise apparently was key to moving his nomination forward. Today, the Senate Judiciary Committee voted 17-2 to favorably recommend Holder for the post. He is likely to be confirmed by the Senate soon.

Sen. Bond also said that Mr. Holder told him in a private meeting Tuesday that he will not strip the telecommunications companies that cooperated with the National Security Agency after the Sept. 11, 2001, attacks of retroactive legal immunity from civil lawsuits–removing another potential sticking point among GOP senators.

In the interview Wednesday, Mr. Bond said, "I made it clear that trying to prosecute political leaders would generate a political firestorm the Obama administration doesn’t need."[my empahsis]

Mind you, I’m not holding my breath for any big prosecutions from the Obama Administration, given his repeated calls to move forward.

That said, I suspect Kit Bond is spinning Holder’s clear statements with regards to those who implemented Bush’s policies into statements about those who crafted Bush’s policies.

Note how Holder answered this question in written RFQs:

Mr. Holder indicated that he would not prosecute any intelligence officers who participated in the interrogation program and who had followed Justice Department guidance.

Prosecutorial and investigative judgments must depend on the facts and no one is above the law, Mr. Holder wrote. Read more →

Three Auto State Senators “Said in a Statement”

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For an example of just how crappy the reporting on a potential auto bridge is, check out this NYT article. Its title announces "Republicans Divided on Aid to Automakers." Yet the part of the article that purportedly tells that story consists solely of statements of the four most invested Republican Senators on the issue.

Kit Bond (who co-sponsored past efforts with Carl Levin):

“I’m glad the Democratic leadership has embraced the principles of the Bond-Levin bill to hold auto companies accountable, protect taxpayers and save millions of American jobs as we head into the holiday season,” Mr. Bond said in a statement.

Bob Corker: 

“Based on the outline we’ve seen so far, we are disappointed,” Mr. Corker said in a statement. He reiterated his demands that the automakers make aggressive efforts to cut labor costs and reduce their overall debt obligations before receiving any aid.

“These are the same types of conditions a bankruptcy judge might require to ensure that these companies become viable and sustainable into the future,” Mr. Corker said. “And if they will agree to these terms, then we have something to talk about.”

Mitch McConnell:

“I look forward to reviewing the legislation being drafted to address the difficulties in our auto markets,” Mr. McConnell said in a statement. “As we consider this legislation, our first priority must be to protect the hard-earned money of the American taxpayer.”

And a gratuitous inclusion of Richard Shelby, though he apparently hasn’t issued any new statement, but somehow gets included, based on no apparently new reporting:

The senior Republican on the banking committee, Senator Richard C. Shelby of Alabama, has said he will oppose any taxpayer-financed bailout for the auto industry, and other fiscal hawks are likely to join him in opposing the measure.

This is what counts as reporting these days for the NYT. Three official statements probably gleaned from press releases, thereby letting those most invested in this debate stand in for those who will determine its outcome.

In spite of the fact that every single Republican listed (along with Carl Levin) is an auto state Senator of one sort or another, David Herszenhorn doesn’t apparently consider that information to be noteworthy (indeed, he attributes Shelby’s opposition to any bailout to fiscal conservatism, not anti-union ideology and home state self-interest). Read more →

FISA Liveblog: Kit “I think red ties look great with pink shirts” Bond

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CSPAN’s stream is being a bit cranky, but I’ve got Kit Bond on the old style teevee, and boy I’m not a fashion maven, but I wouldn’t wear a red tie with a pink shirt.

Boy, Kit Bond must be really tired of having to manage a debate against the very much smarter Russ Feingold. He just tried to refute Feingold’s point that 70 people shouldn’t vote for immunity when they don’t know what they’re voting immunity for. He said, "that’s okay, that’s why SSCI is there." Ah, but Mr. Red Tie, if SSCI can’t award immunity on their own (as if Congress can, but nevermind), then I guess it’s not enough, huh?

Bond just said Judge Walker’s opinion doesn’t stand up.

Shorter Kit "Mr. Red Tie": I realize a judge has said Cheney’s whole notion of inherent authority is bunk. But I disagree. And while I’m happy to let Article II boss me around, I’ll be damned if I let Article III boss me around.

Kit Bond: IGs will not determine whether the illegal program was legal or not.

House and Senate Intelligence Committees are all the oversight you need, little boys and girls. Never mind the Courts!

Specter: A member’s constitutional duty cannot be delegated to another member. The full body has to act. The question for the Senator with the red tie is, how can 70 members of the US Senate expect to grant retroactive immunity in light of the clear cut rule that we cannot delegate our Constitutional responsibilities.

[Is this the day Haggis returns to US law?!?!?!?!]

Bond: well, SSCI predates me.

Specter: Uh, yeah, I know. I used to chair it, remember?

Specter: SSCI hasn’t even all been briefed on the stuff they’re supposed to be briefed on. Judge Walker with his 56 page opinion that bears on the telephone case. Have the telecoms had problems with their reputation? Perhaps. They can recover from that.

Specter: Does the Senator from Missora know of any case involving constitutional rights where Congress has stepped in and taken it away from the Courts where there’s no other way of getting a judgment on the constitutionality of it?

Mr. Red Tie: What Specter fails to understand, it’s not a question of carriers being held liable, what they would do is disclose the most secretive methods used by our intelligence community. Read more →

FISA Debate and Votes

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Sounds like we’ve got two votes coming up–two roll call and two voice votes.

Feingold: Use limit. Gives FISC option to limit use of data collected illegally.

Bond: Recommend veto, reading from Mukasey/McConnell letter directly.

Jello Jay: This amendment would prevent dissemination of any US person data. No need to add another penalty. Amendment gives statute court whether non-disclosure is required. I oppose this amendment strongly.

Reid: Resume Feingold amendments, and time until 5:25 be for debate, and then vote.

Bond: Four minutes each for next vote.

Feingold: Respond to burden bc require govt to identify info about US persons. Kick in only if govt proposes to disseminate information, in which case minimization already requires govt to identify US person information. My amendment imposes no addition burden.

Bond: Makes no sense to exclude information simply becase [it was illegally gathered]. Calls for roll call.

DiFi hanging out with Jello Jay by the table. Read more →

Arlen “Scottish Haggis” Specter Enumerates Bush’s Law-Breaking

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(Thanks to Selise for the YouTube)

Yesterday, Scottish Haggis went even further than he did the other day the other day in asserting that Bush broke the law when he instituted his illegal wiretapping program. He asserted flatly that Bush had violated two statutes (FISA and the National Security Act).

I believe it is vital that the courts remain open. I say that because on our delicate constitutional balance of separation of powers, the Congress has been totally ineffective on oversight and on restraining the expansion of executive authority. But the courts have the capacity, the will, and the effectiveness to maintain a balance.

But we find that the President has asserted his constitutional authority under article II to disregard statutes, the law of the land passed by Congress and signed by the President.

I start with the Foreign Intelligence Surveillance Act, which provides that the only way to wiretap is to have a court order. The Executive Branch initiated the Terrorist Surveillance Program in flat violation of that statute. Now, the President argues that he has constitutional authority which supersedes the statute. And if he does, the statute cannot modify the Constitution. Only a constitutional amendment can. But that program, initiated in 2001, is still being litigated in the courts. So we do not know on the balancing test whether the Executive has the asserted constitutional authority.

But if you foreclose a judicial decision, the courts are cut off. Then the executive branch has violated the National Security Act of 1947, which mandates that the Intelligence Committees of both the House and the Senate be informed of matters like the Terrorist Surveillance Program. I served as chairman of the Judiciary Committee in the 109th Congress. The chairman and the ranking member, under protocol and practice, ought to be notified about a program like that. But I was surprised to read about it in the newspapers one day, on the final day of argument on the PATRIOT Act Re-authorization. It was a long time, with a lot of pressure–really to get the confirmation of General Hayden as CIA Director–before the executive branch finally complied with the statute to notify the full Intelligence Committees.

Read more →

Feingold Slaps Down Bond’s, Mukasey’s, and McConnell’s “Tired Accusations”

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Senator Feingold noticed the same thing I noticed today: Republican opponents of his amendments are mischaracterizing his amendments.

[Bond] referred to our concerns that somehow the rights and privacy could be affected by this bill as "tired accusations." I object to that characterization. I think that this is clearly the kind of thing we should be worried about and debating, but I’ll tell you what is a "tired accusation"–the notion that somehow our amendment would affect the ability of the government to listen in on Osama bin Laden–that is a tired and false accusation. The Senator from Missouri said that if Osama bin Laden or his number three man–whoever that is today, after the last number three man in al Qaeda was just wiped out–calls somebody in the United States, we can’t listen in on that communication unless we have an independent means of verifying that it has some impact on threats to our security from a terrorist threat. That’s what he claims. That’s what he claims, that we wouldn’t be able to listen in on that kind of conversation. That is absolutely false.

Read more →

FISA Debate Liveblog

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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 →

FISA Debate Liveblog

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Three amendments up, no votes today. The first two Feingold amendments prohibit bulk collection and reverse targeting. The third, with Dodd, is immunity.

Feingold on Reverse Targeting

Director of Intelligence has testified that reverse targeting is violation of 4th amendment.

Notes Senator from GA has said reverse targeting is possible.

[Placing declassified documents in record]

This confirms that when FBI has interest in American, up to FBI whether to seek a warrant.

A recent DOJ IG report says surveillance disrupted bc telephone bill not paid on time.

Of course, FBI might choose not to seek a warrant because it doesn’t really have a case against that American. I’m afraid to say, the answer appears to be yes. Once FBI gets US identity, the FBI can choose whether or not to follow up.

Even as Administration brought broad new authorities the Administration refused to figure out whether they were violating the Constitution.

I hope my colleagues will support this amendment, it appears there’s no opposition to it (no Republicans present). Read more →

FISA Liveblog

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Reid is on the floor talking about what votes we’ll have tomorrow:

Immunity
Substitution
Exclusivity

Argh. This means we won’t have 60 there for exclusivity.

Reid and Mitch McConnell had some back and forth on the stimulus package.

Kit Bond:

Thank colleagues for agreeing to a way forward on this bill. Hehehe, it would do no good to pass a good that is good for politics, but does not do what those who protect our country need. With these fixes we’ll have a bill the President will sign.

Shorter Kit: this is very very technical and so we’ve decided to just do away with Congressional review and, while we’re at it, privacy. What Mike McConnell wants, Mike McConnell gets.

Whitehouse:

In this debate about revising FISA and cleaning up the damage done by the President’s warrantless wiretap program, the Administration expends all its rhetorical focus on what we agree on.

On what terms will this Administration spy on Americans?

The privacy of Americans from government surveillance.

Both Chairmen–Leahy and Rockefeller–have given it their blessing.

As former AG and USA, I oversaw wiretaps, and I learned that with any electronic surveillance, information about Americans is intercepted incidentally.

In domestic law enforcement, clear ways to minimize information about Americans. Prospect of judicial review is an important part of protecting Americans. Bond and Rockefeller have already put into the bill that the authority to review the minimization if the target is an American inside the US. But as will often be the case, the target will often be outside the US. An American could just as easily be intercepted in these situations. This protection (review of minimization) should apply when the intercepted It makes no sense to strip a court based on the identity of the target. It may be that if there’s litigation that a court will decide that it is implied. The mere prospect of judicial review has a salutary effect. The opposite is true as well, when executive officials are ensured that a Court is forbidden to police enforcement, then they are more apt to ignore compliance. Both here, where the FISA bill creates an unheard of limit on Court powers, and in the immunity debate, where we intercede to choose winners and losers. Bad precedent for separation of powers. Those of you who are Federalist Society members should be concerned about this absence of separation of powers. Read more →

FISA Update

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Apparently, Reid has brokered a Unanimous Consent agreement that everyone, from Feingold and Dodd to Jeff "Mutual Defense" Sessions, have bought off on.

cboldt’s description is, not surprisingly, the best description of what we’re looking at. What the UC sets up is the following:

  • Four uncontroversial amendments that will pass with the UC. These cover getting the FISC rulings for the past five years, emphasizing prohibitions on domestic targeting, and eliminating a 7-day deadline.
  • Two Bond amendments that will receive very little debate (20 minutes) and will pass–and I do believe they will pass–with a 50 vote margin. One of these permits wiretapping those proliferating in WMDs without a warrant. From CQ:

One by the vice-chairman of the Intelligence panel, Christopher S. Bond, R-Mo., would change definitions in the law to allow surveillance without a warrant in cases that involve the proliferation of weapons of mass destruction. Its adoption would require a simple majority vote.

  • Three Feingold amendments that shouldn’t be controversial–basically two just raising the bar on whether nor not the government is really after foreign intelligence or not, and another allowing FISC to require the government to stop wiretapping if their application sucks (though via a Bond amendment, they still get to tap for 90 days). I assume they’re accorded a 50 vote margin because the Republicans don’t find them controversial.
  • Two of the three immunity provisions–both the one striking immunity altogether, and the one substituting the government for the telecoms. I assume they’ve been subject to a 50 vote margin because the Republicans know they won’t win 50 votes. In other words, our chances of using the courts to learn what Bush did will almost certainly lose.
  • One Feingold/Whitehouse amendment on sequestration–probably a better guarantee on minimization than is in the bill. I’m guessing the Republicans have wagered this won’t get the votes to pass, since they’ve agreed to a 50 vote margin. Read more →