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Ten Years Ago, Anthrax Attacks–and Judy Miller–Had Huge Effect on Passage of Patriot Act

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Ten years ago today, George W. Bush signed the Patriot Act into law. (US National Archives photo)

Ten years ago today, George W. Bush signed the Patriot Act into law in what many consider to be the single biggest blow to civil liberties our country has seen.  I will leave it to others to detail the damage done to our rights, but a quick list of that damage can be seen here on the History Commons website.  Instead, what I want to focus on is the prominent role played by the anthrax attacks in the passage of the Patriot Act.

Although most would say that the Patriot Act was a direct result of the 9/11 attacks, timeline analysis shows that key events in the anthrax attacks took place during the critical days leading up to passage of the act.  The timeline I have assembled here draws on data in timelines prepared by Marcy Wheeler, History Commons (anthrax), History Commons (Patriot Act) and Ed Lake, along with my own contributions.

September 4, 2001 Exactly one week before the 9/11 attacks, Judy Miller disclosed Project Bacus, in which the Defense Threat Reduction Agency demonstrated that they could construct a functional small bioweapons facility at the Dugway Proving Grounds in Utah for under $1 million.  The facility is capable of both growing and weaponizing biowarfare agents.

September 18, 2001 Letters containing anthrax mailed to the New York Post and Tom Brokaw were postmarked one week after the 9/11 attacks.  It is presumed that the letter that lead to the death of Robert Stevens of American Media in Boca Raton, Florida was also mailed around this time but the letter itself was never recovered.

September 30, 2001 Robert Stevens begins to feel ill. Read more →

SJC to Consider Re-Confirmation of Guy Who Let Major Domestic Terror Attack Go Unsolved

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At 10, the Senate Judiciary Committee will consider the extension of Robert Mueller’s term at FBI by two more years. You’ll no doubt hear Ranking Member Chuck Grassley make all sorts of complaints about FBI in his wonderful grouchy Iowa voice. You’ll hear Jim Comey recount the dramatic hospital confrontation from 2004.

But you’re unlikely to hear Chairman Patrick Leahy ask Mueller why he has let Leahy’s own attempted murder in the 2001 anthrax attack go unsolved.

Oh sure, the FBI claimed they had solved the anthrax attack last year when they closed the investigation. But as I first reported in 2008, Leahy doesn’t (or at least didn’t) believe that accused anthrax killer Bruce Ivins acted alone.

The FBI’s case against Ivins started eroding right after his death, as Ivins’ own will made it clear that the motive the FBI had attributed to him made no sense. Then it became more and more clear that FBI claims about the record and anthrax keeping standards at USAMRIID were overly optimistic, meaning their assertion that Ivins had control of a flask of anthrax couldn’t be trusted. But the real blow for the FBI’s claims about the anthrax came after–having spent three years waving the shiny object of the cool science they used to “solve” the case–the National Academy of Science poked a bunch more holes in their case. Not only were the FBI’s claims about Ivins’ flask not as certain as the FBI claimed they were, but the FBI had never answered lingering problems about the chemicals involved in the anthrax, which made the FBI’s failure to talk about how Ivins could have made the anthrax all the more problematic, not to mention made one of FBI’s most compelling pieces of evidence against Ivins–his time in his lab–meaningless.

Pretty much what the FBI is left with are a few suspicious incidents and Ivins’ weird obsession about a probably unrelated sorority, which a bunch of self-interested shrinks have helpfully sensationalized.

And the failure to really solve the anthrax case comes on top of the earlier failure in targeting Steven Hatfill for several years.

Now, I wouldn’t necessarily hold the FBI’s failure to solve the most serious terrorist attack in the US since 9/11 against Mueller–it is a tougher case to solve, after all, than 9/11 itself.

But rather than allow Congressional overseers to examine the FBI’s work to both see what went wrong and what leads they may have ignored, Mueller has been refusing such oversight. He (and the FBI generally) have stonewalled and lied when members of Congress asked questions about the weak points in the FBI case against Ivins. More galling still, to me, is that he out and out lied to Chuck Grassley in 2009, telling Grassley that an independent review of the investigation would be detrimental to ongoing litigation. What Mueller didn’t tell Grassley is that he had already secretly engaged the Shrinks-4-Hire to do their own purportedly independent review of the investigation, a report apparently designed to rebut the obvious weaknesses the NAS would find.

Mueller was fine to do an “independent” review, apparently, so long as the FBI could game the outcome.

Mind you, Mueller’s refusal to accept any real oversight on this case has been assisted by President Obama, who used a veto threat to discourage a true congressional inquiry.

In short, under Mueller’s leadership, the FBI badly fucked up the anthrax investigation. And rather than review why the FBI fucked up so badly, Mueller has been obfuscating to prevent any real review of the that fuck up.

Mueller’s single biggest job as FBI Director in the last decade has been to make sure the FBI is able to investigate terrorism. And yet his FBI has badly screwed up the second biggest terrorist attack in the US–and he doesn’t think Congress should know why.

And yet SJC will no doubt vote to reconfirm Robert Mueller for another two years today.

Why Didn’t FBI Investigate AFIP’s Role in Starting the Iraq-Anthrax Rumors?

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I’ve been reading the National Academy of Sciences Anthrax Report and noted something odd in follow-up to the McClatchy report of the other day describing unexplained tin and silicon in one of the anthrax samples. (Here’s Jim White’s post on the report.) As McClatchy reported, there’s some weird data about silicon and tin in some of the samples.

The lab data, contained in more than 9,000 pages of files that emerged a year after the Justice Department closed its inquiry and condemned the late Army microbiologist Bruce Ivins as the perpetrator, shows unusual levels of silicon and tin in anthrax powder from two of the five letters.

[snip]

To arrive at that position, however, the FBI had to discount its own bulk testing results showing that silicon composed an extraordinary 10.8 percent of a sample from a mailing to the New York Post and as much as 1.8 percent of the anthrax from a letter sent to Democratic Sen. Patrick Leahy of Vermont, far more than the occasional trace contamination. Tin — not usually seen in anthrax powder at all — was measured at 0.65 percent and 0.2 percent, respectively, in those letters.

But it turns out that the weirdest data–showing the 10.8 silicon in the NY Post sample–didn’t come from FBI. As NAS explained, that data came from the Armed Forces Institute of Pathology.

Early in the investigation, AFIP performed [scanning electron microscopy-energy-dispersive X-ray] SEM-EDX analysis of a New York Post letter sample and found regions in the sample having high silicon content but no oxygen, suggesting the presence of silicon-rich material that was not related to nanoparticulate silica. While this observation could have led to an explanation for the difference between the bulk and individual spore measurements, follow-up experiments apparently were not performed.

A release from AFIP describing their analysis of the Daschle letter (not the NY Post letter) is one of the most cited sources of the claim that the anthrax was weaponized in a uniquely Iraqi fashion.

“Ft Detrick sought our assistance to determine the specific components of the anthrax found in the Daschle letter,” said Florabel G. Mullick, MD, ScD, SES, AFIP Principal Deputy Director and department chair. AFIP experts utilized an energy dispersive X-ray spectrometer (an instrument used to detect the presence of otherwise-unseen chemicals through characteristic wavelengths of X-ray light) to confirm the previously unidentifiable substance as silica. “This was a key component,” Mullick said. “Silica prevents the anthrax from aggregating, making it easier to aerosolize. Significantly, we noted the absence of aluminum with the silica. This combination had previously been found in anthrax produced by Iraq.”

This was the analysis that a USAMRID scientist used to declare that the anthrax was weaponized–which said scientist retracted after later Sandia analysis was done (from the NAS report).

An initial finding by the Armed Forces Institute of Pathology (AFIP) found, upon gross examination, that the spores exhibited a silicon signal and sometimes exhibited an oxygen signal. Subsequent studies conducted by Sandia National Laboratories (as described in Chapter 4 of this report) determined that the silicon was localized to the spore coat within the exosporium—that is, it was incorporated into the cell as a natural part of the cell formation process. The USAMRIID scientist who first reviewed the AFIP results and made statements regarding the presence of silicon and possible weaponization retracted those earlier statements.

So some of this was known before–that AFIP served a key role in early rumors that the anthrax was weaponized in a way that pointed to Iraq. But the NAS report seems to confirm that the Iraq rumors originated at least in part from AFIP.

That’s all very interesting for several reasons. First, because FBI claims to have gotten data on AFIP’s SEM-EDX tests just last year.

The committee notes that this information was not made available to it or to the FBI until spring 2010.

That would mean FBI didn’t get (or ask for?) the information until after it had closed the investigation (they closed the investigation in February 2010)!

It would also suggest–rather incredibly–that FBI didn’t hunt down this information when they were stonewalling Jerry Nadler about it (as McClatchy reminds).

New York Democratic Rep. Jerrold Nadler asked FBI Director Robert Mueller how much silicon was in the Post and Leahy letters at a hearing before the House Judiciary Committee in September 2008. The Justice Department responded seven months later that silicon made up 1.4 percent of the Leahy powder (without disclosing the 1.8 percent reading) and that “a reliable quantitative measurement was not possible” for the Post letter.

More interesting still, NAS can’t explain what relationship existed between FBI and AFIP.

The committee also reviewed reports of work carried out in parallel at the AFIP although it is not clear how closely AFIP and the FBI investigative and scientific teams worked together or coordinated their efforts.

I’m also confused about when AFIP did these tests. In its list of official tests, NAS describes the AFIP SEM-EDX tests as having taken place in November 2001.

But somewhere along the way, perhaps along with information about the investigation of a claimed al Qaeda anthrax site explored in 2004, NAS got additional materials from AFIP dating to October 2001.

AFIP Materials related to USAMRIID Specimens October 2001 (41 pages)

And still more interesting is the reference to documents provided to NAS in December 2010–at the time when FBI was trying to stall the release of this document–showing AFIP, along with USAMRID, purportedly conducted anthrax studies on the remains of the Flight 93 9/11 hijackers.

Finally, in the new materials provided to the committee it is noted that [polymerase chain reaction] PCR analysis was performed on human remains from United flight 93 on 9/11/2001 that were identified as those of the hijackers (B3D1). Analysis was performed at USAMRIID and at AFIP for sequences diagnostic of B. anthracis. One assay at USAMRIID gave positive results, but these results were believed by the FBI to be due to laboratory contamination. All other results were negative. As the committee learned at the January 2011 meeting, there were no tests done on remains from any of the other September 11, 2001 hijackers. [my emphasis]

So let’s see. At some point during the anthrax attacks in 2001, USAMRID and AFIP decided to do anthrax tests on material from Flight 93. They purportedly  found the hijackers tested positive for anthrax! But on second thought, FBI tells us, that positive result came from “lab contamination.” And then, presumably just after those tests, USAMRID and AFIP, perhaps working outside the chain of the official FBI investigation of anthrax, discover evidence implicating Iraq in the anthrax attacks. Results that, once again, further testing suggested was inaccurate.

Another example of lab contamination, I guess. Funny how that happens.

And the FBI wants us to believe that over the course of a 9 year investigation, they never decided to investigate the circumstances surrounding this partnership that somehow always resulted in convenient propaganda?

FBI’s Shrinks-4-Hire: Stalkers Are Likely Bioterrorists

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The FBI has linked to a redacted executive summary of the report some shrink contractors did on Bruce Ivins. While it is just the executive summary and even that is partly redacted, the report basically paints Bruce Ivins was a stalker which therefore makes him a possible bioterrorist.

Unfortunately for the shrinks who did the report, they start by endorsing the FBI’s now questionable anthrax theory.

Dr. Ivins acknowledged that he was the sole custodian of the “RMR-1029” flask that held the anthrax used in the attacks, and had unrestricted and unobserved access to the “hot suites” where work with anthrax could be conducted anytime day or night. From his own laboratory writings we know that the quality and spore concentration of the anthrax he produced matched that contained in the letters. In addition, he had the equipment necessary to produce the non-weaponized dried spores found in the letters.

The National Academy of Science had this to say about the source of the anthrax:

The flask designated RMR-1029 was not the immediate, most proximate source of the letter material. If the letter material did in fact derive from RMR-1029, then one or more separate growth steps, using seed material from RMR-1029 followed by purification, would have been necessary. Furthermore, the evidentiary material in the New York letters had physical properties that were distinct from those of the material in the Washington, D.C. letters.

And this to say about whether or not anyone could comment on how the anthrax was prepared.

The committee finds no scientific basis on which to accurately estimate the amount of time or the specific skill set needed to prepare the spore material contained in the letters. The time might vary from as little as 2 to 3 days to as much as several months. Given uncertainty about the methods used for preparation of the spore material, the committee could reach no significant conclusions regarding the skill set of the perpetrator.

In other words, because the shrinks based their entire report on the claim that Ivins had the “means and opportunity” to commit the attack based on the scientific claims about the anthrax, they pretty much undermine their entire argument from the start (and undermine their claim that they had “no predispositions regarding Ivins’ guilt or innocence”).

But what I’m even more intrigued by is their apparently shoddy explanation for one of the FBI’s claims that has been subsequently debunked.

In its report on the investigation, the FBI claimed that Ivins targeted Senators Leahy and Daschle because they were pro-choice Catholics.

In 2001, members of the Catholic pro-life movement were known to be highly critical of Catholic Congressional members who voted pro-choice in opposition to the beliefs of the Catholic Church. Two of the more prominent members of Congress who fell in this category were Senator Tom Daschle, then Senator Majority Leader; and Senator Patrick Leahy, Chairman of the Senate Judiciary Committee, both recipients of the 2001 anthrax mailings.

But the claim was primarily based on his wife’s beliefs (the wife who, we now know, Ivins was trying to cheat on at every opportunity). More importantly, Ivins figured out a way to foil his wife’s beliefs after his death by mandating that if he were not cremated, then $50,000 of his estate would be donated to Planned Parenthood. In other words, the notion that Ivins targeted the two guys standing in the way of unquestioning passage of the PATRIOT Act because they are pro choice Catholics never really added up.

The shrinks, however, boldly assert they have identified the real themes that motivated Ivins.

As the Analysis section of this report explains in greater detail, Dr. Ivins had multiple motives in launching what he later called [redacted] through the mail. The key themes were revenge, a desperate need for personal validation, career preservation and professional redemption, and loss. These themes guided him not only in making the attacks, but in choosing his targets and shaping his methods.

The attacks above all enabled Dr. Ivins to gain retribution against his various perceived enemies. Some of those enemies, like Senators Daschle and Leahy, had directly incurred his wrath; others, like the New York Post, which to him represented the media and New York City, appeared to have been symbolic stand-ins for broader targets.

They explain (sort of) why Ivins might view Daschle as an enemy.

In June 2001, Senator Daschle, the Senate majority leader, sent a letter to the Department of Defense that heightened concerns about the vaccine.

But nowhere does the report provide an explanation for why Leahy would be a target. Nor why Ivins would target the other newspapers. And as all the crappy explanations for this crime do, the report apparently ignores the question of why Judy Miller received a fake version of the anthrax; particularly for conservatives, you’d think the NYT, not the Post, would be the symbol of evil decadent New York.

Now maybe the explanation of why Pat Leahy is such an evil man that Bruce Ivins allegedly tried to kill him appears in the redacted section. But at least in this summary, it appears the shrinks’ report doesn’t answer some of the most basic questions raised about the attack.

Update: Pro choice/life error fixed thanks to WO.

New Standard for Justice: Innocent Until a Secret Shrink Study Proves You Guilty after Your Death

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Our country apparently has a new standard for justice: innocent until a secret study–headed by a guy who may have had some responsibility for screwing up an earlier investigation and conducted entirely after your death–finds you were psychologically capable of committing a crime.

The LAT reports on a just such a report conducted on Bruce Ivins. It was initiated in late 2009 (remember, Ivins died in July 2008), at the suggestion of Dr. Gregory Saathoff, a psychiatrist who consulted on the investigation itself. And it was completed on August 23, 2010. Among the details the report apparently found that should have disqualified Bruce Ivins from having the security clearance he did is the fact that he put question marks next to some questions on a form he filled out in 1987 (those question marks should have raised eyebrows, definitely, but it’s funny they’re looking at them in this context now).

Mostly, though, LAT writer David Willman seems to suggest (and I’m not sure how much of this is speculation, off the record reporting, or reading the report itself) that the redacted parts of the report show that Ivins’ obsession with the KKG sorority in the 1980s should have disqualified him from getting clearance.

Some of the “disqualifying” behaviors that the panel said should have prompted Army officials to reconsider Ivins’ fitness to work in a secure biodefense facility were redacted from the report by Justice Department lawyers because of privacy concerns. However, based on investigative documents made public more than a year ago by the FBI and on remarks by Ivins’ acquaintances, this much is known:

Ivins became obsessed with Kappa Kappa Gamma in the 1960s, when a member of the sorority turned him down for a date. In the late 1970s and early 1980s, Ivins twice burglarized houses affiliated with the sorority.

Over the same period, he tormented a former member of the sorority, Nancy Haigwood, by stealing her laboratory notebook, which was integral to her pursuit of a doctoral degree, and by vandalizing her residence. Ivins was a postdoctoral researcher at the University of North Carolina in the 1970s when Haigwood was a graduate student there.

“Despite criminal behavior and sabotage of his colleague’s research,” the panel said, “Dr. Ivins was hired by USAMRIID and received a security clearance, allowing him to work with potential weapons of mass destruction.”

Now, I believe the report itself had as its stated goal assessing whether Ivins should have been able to retain his clearance. Still, the fact that people are still using Ivins’ KKG obsession as “proof” that he was the anthrax killer–without offering any explanation why that obsession led him to allegedly mail anthrax from outside of a KKG office 3 hours and 25 minutes from his home rather than mailing it from the actual KKG chapters closer to his home–is just blind faith.

Willman also describes the National Academy of Sciences report on the anthrax this way, to fluff up the case against Ivins.

Last month, a committee appointed by the National Academy of Sciences at the FBI’s request concluded that the scientific evidence implicating Ivins was not definitive but “is consistent with and supports” the bureau’s finding of a genetic match between his batch of anthrax and the material in the letters.

As Jim White has pointed out, the scientific panel was not so convinced–and provided a great deal of evidence as to why Ivins probably couldn’t have made the anthrax in his lab at Ft. Detrick.

Overall, the importance of the primary conclusion of the NAS report cannot be overstated (p. 4 of the report as marked, all references will use internal page numbers, not pdf numbers from my pre-publication copy):

It is not possible to reach a definitive conclusion about the origins of the B. anthracis in the mailings based on the available scientific evidence alone.

It’s bad enough that DOJ is using what was intended to be a lessons learned study (to prevent bioterrorism in the future, even though we’re not sure Ivins committed this crime; note that DOJ closed the case during the period of this study) to try to shore up their shaky case against Ivins.

But what really pisses me off is that DOJ was off contracting secret studies at the same time as it was repeatedly refusing to accept an independent review of their work on the case. Read more →

As Vaughn Walker Moves On, There Are No Replacements

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As you have probably heard by now, Vaughn Walker, the Chief Judge for the Northern District of California, has announced his retirement:

The United States District Court for the Northern District of California announces today that Chief Judge Vaughn R. Walker will step down as chief judge effective December 31, 2010. Also, Chief Judge Walker notified President Obama by letter today that he will leave the court in February 2011.

Chief Judge Walker has been a United States District Judge since February 5, 1990 and has served as chief judge of the court since September 1, 2004. Before becoming a federal judge, Chief Judge Walker was a litigation partner at the firm now known as Pillsbury Winthrop Shaw Pittman LLP. Upon leaving the federal bench, Chief Judge Walker plans to return to the private sector.

In his letter to the President, Chief Judge Walker said: ““Concluding twenty one years of judicial service, I leave the bench with the highest respect and regard for the federal judiciary, its judges and their staff and the essential role they fulfill in our constitutional system.””

By statute, United States district chief judges are selected based on a combination of age, seniority and experience and may serve in the post for a maximum of seven years. 28 USC § 136. By application of this statute, District Judge James Ware will assume the post of chief judge of the Northern District on January 1, 2011.

That was the formal announcement I received from Walker’s chambers. For further reportage, see the always outstanding Bay area legal reporter for the San Francisco Chronicle, Bob Egelko. (I will take issue with one thing Egelko reported though, that Walker’s announcement was “unexpected”; I have heard rumors of him retiring at the end of the year for several months now.)

I started to write this post last night with a million thoughts swirling in my head on the plethora of important cases Walker has handled over the years and erudite opinions rendered thereon. There is far more to the man’s record than al-Haramain and Perry v. Schwarzenegger; he also sat on such blockbuster cases as the Hearst/ SF Chronicle Antitrust litigation, the Apple/Microsoft intellectual property battle, and the knock down drag out Oracle/Peoplesoft takeover war. And hundreds of others over the years that, from every opinion of his I have read over the last couple of decades, he treated with pretty much the same dedication and attention to detail as you see in the landmark cases you know him from now. Vaughn Walker was both driven and meticulous, they simply do not make many like that; even in the cream of the crop hallowed halls of the Federal judiciary, Vaughn Walker stands out and above.

But that part of Vaughn Walker’s career is winding down now, and in a little more than three months he will be out the door of his chambers at the Philip E. Burton Federal Courthouse for the last time. Many, if not most, Federal judges who retire after they are at least 65 years of age and have 15 or more years on the bench, go on “senior status” where they continue to receive full salary, but work only part time as needed and as they wish. Walker is not taking senior status though, instead Read more →

Glenn Fine to Investigate Government Use of PATRIOT Powers Again

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Main Justice reports that Pat Leahy and DOJ’s Inspector General Glenn Fine have been chatting about further IG review of the FBI’s use of the several PATRIOT provisions that were contentious issues in last years attempt to reauthorize the PATRIOT Act. This means that Fine is going to do what the legislation would have mandated–conduct further reviews of these authorities–on his own. But I’m also interested in the scope Fine lays out for his review in his response to Leahy.

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.

I find the scope interesting, first of all, because it would put all three of these provisions–NSLs, 215, pen registers–into one report. Given the way they’ve been used together in the past (Section 215 was used to get contact data more expansive than available under pen registers, for example), it will be interesting to see how Fine understands these provisions to work together. I could be overreading, but Fine seems to have a sense that the “what the FBI does with the information” might be interesting.

I’m also interested in his specific promise to investigation his recommendation that DOJ develop minimization procedures. I would bet money DOJ has done nothing to respond to that recommendation. If so, what we may get in the report will be a (probably redacted) discussion of how DOJ has collected a bunch of information from otherwise innocent people and kept it. Remember the probable use of Section 215 in the Najibullah Zazi case (focused on some associates who also bought acetone)? Those people appear never to have been charged, suggesting the possibility that some Muslims who bought beauty supplies remain in a DOJ database even though no connection with Zazi’s plot has been found. And then consider the suggestion that FBI is using Section 215 to collect more than just “records,” but also much more intrusive medical records (and possibly DNA). That might create some database indeed, full of information that was not minimized.

So it sounds like it might result in an interesting report.

DOJ Circumvents Judge Walker; Attempts To Further Correct Previous Falsities

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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 →

Holder Signals Approval (Preference?) for SJC Bill

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Just days after the House Judiciary Committee passed a PATRIOT Act Reauthorization bill that actually improved on PATRIOT, Eric Holder has decided to write Pat Leahy and DiFi to tell them how much he likes their bill.

Holder spends a lot of time boasting of the “provisions designed to enhance statutory protections for civil liberties and privacy, ” including provisions that the Administration gutted, courtesy of Jeff Sessions: “authorization for court-imposed minimization requirements for information obtained via pen register or trap and trace orders in exceptional cases.” Had the Committee been left to its Democratic majority, those minimization requirements would have been standard, not exceptional.

To this extent, Holder’s letter seems designed to signal his preference for the Senate bill over the House Judiciary bill.

But the Senate’s worse bill is not good enough for Holder. He makes demands for things that–apparently–they didn’t get to Jeff Sessions in time for him to submit.

While we are very please to be able to support the bill, we do have some concerns that we are working with the Committee to address before the measure reaches the floor. In particular, we are working with the Committee on provisions regarding procedures for the collection, use, and storage of information obtained through NSLs; certain public reporting and audit requirements; and provisions to ensure a smooth transition to the new law.

Which I take to mean there’s too much preventing the DOJ from creating a permanent database of material collected pursuant to NSL authority. And DOJ wants to avoid admitting how much of this data collection is actually going on, so they’re trying to limit the audits and IG reports.

So apparently, the worse Senate bill isn’t bad enough for Eric Holder yet. And it sounds like Pat Leahy continues to work to give Holder and Obama precisely the crappy bill they want.

Feingold: We’re Not the Prosecutors’ Committee, We’re the Judiciary Committee

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If you missed the thoroughly depressing PATRIOT Act hearing today, this was one of two highlights. Listen carefully at 17 seconds where someone who sounds like Pat Leahy sighs, “Oh boy.”

The rest of the hearing featured Democrat after Democrat arguing that we need to develop lists of all the potential suspects out there buying acetone and hydrogen peroxide.