DiFi and Pat Leahy, Silencing the Librarians

librarian-shh.thumbnail.jpgThere’s a cynical passage in the new PATRIOT language that DiFi put forward the other night. It basically creates an exception in the worsened Section 215 language just for libraries.

‘‘(B) if the records sought pertain to libraries (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), including library records or patron lists, a statement of facts showing that there are reasonable grounds to believe that the records sought—‘‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against inter-national terrorism or clandestine intelligence activities; and ‘‘(ii)(I) pertain to a foreign power or an agent of a foreign power; ‘‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ‘‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

This language requires that before investigators demand libraries turn over records, they must first prove that the person to whom the records pertain is either an intelligence investigation suspect, or is in contact with one. So for library records, and library records only, the new language requires some showing of reasonable cause first before the investigators can request the information.

During the hearing, Ben Cardin asked why there was a special standard for libraries (at about 108:30 in the hearing). Kyl offered this explanation for the exception (one he disagrees with):

Kyl: There was such a–I would say–unwarranted and irrational, and I certainly don’t apply that word to anyone here but from some folks out in the country–concern about library records as the result of blogs and so on, it was simply easier to say, okay, cut it loose, it’s important but not that important to hold up the rest of the legislation.


In order to get rid of the political argument that was, essentially, irrelevant in almost all investigations, it was simply easier to cut that lose and have a different standard for it.

Durbin then calls Leahy and Kyl on their cynicism, arguing that the exception just for libraries proves that the underlying principle of Section 215, as written, is unsound.

Durbin: Senator Kyl raised an interesting question. Why aren’t more people complaining about this if it is such a problem? Read more

On PATRIOTs and JUSTICE: Feingold Aims for Justice

Over the last two days, I described what Patrick Leahy’s bill renewing the PATRIOT Act does and noted Russ Feingold’s complaints that, thus far, the debate on PATRIOT is happening without we citizens knowing how PATRIOT (and FISA) have been used. Today, I wanted to talk about how I think Leahy’s PATRIOT renewal (and a bill to reverse retroactive immunity) appears to be an attempt to forestall Feingold’s efforts to roll back those unrevealed uses of PATRIOT and FISA.

Before I get into what is in Feingold’s JUSTICE bill, first understand the timing. Feingold introduced his bill before Leahy (with Ed Kaufman, the Vice President’s stand-in, co-sponsoring) introduced PATRIOT renewal. Leahy explicitly integrated select aspects of Feingold’s bill into the PATRIOT renewal. And tomorrow, the Senate Judiciary Committee will mark up the PATRIOT renewal.  Since Feingold’s JUSTICE is premised on improving FISA while renewing PATRIOT, Feingold’s measures that don’t get included in tomorrow’s markup will be much more difficult to pass.

As a reminder, here was my summary of Leahy’s bill:

So to summarize, the Leahy bill (which is co-sponsored by Ben Cardin, Ed Kaufman, and Bernie Sanders) would do the following:

  • Extend the roving wiretap, Section 215 (tangible things), and “lone wolf” provisions of the PATRIOT Act to 2013
  • Mandate further audits of some of these provisions, such as the use of pen registers
  • Give the Court oversight over the minimization procedures for the use of Section 215 and pen register and trap and trace devices
  • Require that Section 215 and pen registers only be granted if authorities can show that the requested information has ties to terrorism
  • Gives recipients of NSLs and Section 215 orders greater means to appeal the gag order associated with it

In his testimony at least week’s hearing, Leahy had the following to say about Feingold’s bill:

I have consulted with Senators Feingold and Durbin, who introduced a more expansive bill last week, and, with their encouragement, borrowed a few accountability provisions from their proposal.


Requiring FISA Court approval of minimization procedures would simply bring Section 215 orders in line with other FISA authorities — such as wiretaps, physical searches, and pen register and trap and trace devices — that already require FISA court approval of minimization procedures. This is another common sense modification to the law that was drafted in consultation with Senators Feingold and Durbin. Read more

Leahy to Bybee: Why Won’t a Federal Judge Testify before Senate Judiciary Committee?

Keep in mind, as you watch Pat Leahy complain that Jay Bybee declined, through his lawyer, to testify before the Senate Judiciary Committee what Sheldon Whitehouse said about yesterday’s hearing: it was preparation for the release of the Office of Public Responsibility report on Bybee, Yoo, and Bradbury, due out in the next several weeks. 

Since he has declined through his lawyers to testify before the Committee, I assume he has no exonerating information to provide. I wish he would testify before us to help complete the record, and [inaudible] it is appropriate because in this case he has done anything but maintain silence about it. He has made a number of statements that sort of give his side, I’d like to hear it all. He’s talked to friends and employees, he’s communicated to the press, he’s communicated through his lawyers to the Justice Department regarding the Office of Professional Responsibility’s review of his actions, while as a government employee in the Office of Legal Counsel. Apparently the only people he has not explained his actions to are the people who granted him a lifetime appointment to the Federal Bench, and the American people through their elected representatives in the Senate.  

Whitehouse and Leahy have both promised follow-up hearings after the report comes out; it’s likely that Bybee will get himself another invitation after the report–one with some legal force behind it.

But, as Scott Horton suggests, Leahy’s invitation and Bybee’s refusal to show establishes–even before the OPR report comes out–that Bybee doesn’t have anything to say for himself, that a sitting Judge and federal employee won’t explain his role in authorizing torture to the Committee that oversees the Judiciary (and approved his nomination). 

This invite, too, was about laying a foundation for what comes next. 

Anthrax: Nobody Buys the FBI Story

During the DNCC, I asked Pat Leahy whether he believed the FBI’s claim that Bruce Ivins was the one and only anthrax attack culprit. Today, Lichtblau and Shane have an article showing that Pat Leahy isn’t the only one who doesn’t believe the FBI’s tale.

A month after the F.B.I. declared that an Army scientist was the anthrax killer, leading members of Congress are demanding more information about the seven-year investigation, saying they do not think the bureau has proved its case. 

In a letter sent Friday to Robert S. Mueller III, the director of the Federal Bureau of Investigation, Democratic leaders of the House Judiciary Committee said that “important and lingering questions remain that are crucial for you to address, especially since there will never be a trial to examine the facts of the case.”


“My conclusion at this point is that it’s very much an open matter,” Senator Arlen Specter of Pennsylvania, the top Republican on the Senate committee, said of the strength of the case against Dr. Ivins, a microbiologist at the Army’s biodefense laboratory who worked on anthrax vaccines. “There are some very serious questions that have yet to be answered and need to be made public.”


But in interviews last week, two dozen bioterrorism experts, veteran investigators and members of Congress expressed doubts about the bureau’s conclusions. Some called for an independent review of the case to reassure the public and assess policies on the handling of dangerous pathogens like anthrax.


Senator Charles E. Grassley, an Iowa Republican and frequent critic of the bureau, said he was frustrated by the delay in closing the case and answering questions.

“If the case is solved, why isn’t it solved?” Mr. Grassley asked. “It’s all very suspicious, and you wonder whether or not the F.B.I. doesn’t have something to cover up and that they don’t want to come clean.”


“They took their shot,” said Representative Rush D. Holt, a Democrat who holds a doctorate in physics and has followed the case closely because the letters were mailed in his New Jersey district. “They hoped and maybe believed that the case they laid out would persuade everyone. I think they’re probably surprised by the level of skepticism.”

Read more

SJC Liveblog

Christy is starting a liveblog for those watching FISA, this will focus on SJC now.

Leahy back in SJC: Talking about elections and early poll closures.

Leahy: Snooping in passport files. Matter from State to IG in Criminal Div high profile Americans searched 4100 times. Widespread abuse of electronic records. What steps are you taking to make sure this stops.

Mukasey: We will do everything we can to charge someone.

Durbin: In the remaining 6 months. Moving forward, you can let Bush off, or initiate investigations. Allegation that indicates possibility of criminal activity. We have had reports, Taguba, had this to say: "The CIC authorized a systematic regime of torture. There is no longer any doubt as to whether the current Admin committed war crimes. Question whether those who authorized torture will be held responsible." I have written several letters asking if you were going to investigate any criminal wrong-doing by members of this administration. Responses have not been satisfying. No one who relied on department’s advice should be subject to investigation. Investigate and explore whether waterboarding authorized. What is OPR doing? February, pending investigation to be released, depending on your approval of its release. Will you follow AG Ashcroft’s standard? Authorize this report? Will you step away from things in the past?

Mukasey: Variety of statements. Many investigations. Court martial of people involved in that activity. IG investigation recommended no criminal referrals. FBI’s report positive one.


Shorter Mukasey: the grunts went to jail, so we’ve done what we can.

Durbin: Those who authorized the torture?

Mukasey: Same thing–depended on OLC.

Durbin: WHo is ultimately in charge?

Durbin: reading from OLC letter: Because of public interest, with AG approval, we recommend public summary.

Mukasey: If OPR wants released, we’ll release.

Biden: Steps to implement Boumediene decision?

Biden: When regime to implement decision.

Mukasey: We’re in discussions with court and opposing counsel.

Biden: Aid to local law enforcement. 81% cut under this administration. A cut of $500 million from last year’s budget.

Muaksey: Don’t count juvenile justice and violence against women.

Biden: I’m comparing apples to apples.

Mukasey: COPS never permanent support.

Biden: Wrong. I wrote the COPS program with my own little paw. Kickstart community policing. If it worked, reauthorize. It wasn’t–and look at language when I wrote it, that if it worked, intention was that it would be reauthorized.

Mukasey: I take your correction, you wrote the legislation.

Read more

Omnibus Liveblog

Two things going on today: the FISA debate, viewable on CSPAN2, and an oversight hearing, on CSPAN3 or the Committee feed.

And I’m gonna do my best to cover them both (that is, until Christy can pick up one of them).

Here’s the UC for today on the FISA debate–final votes will be around 11:30.

On Wednesday, July 9, 2008, after the Senate convenes at 9:30am, it will resume consideration of the FISA Amendments Act of 2008 (H.R. 6304). There will be one hour and forty-five minutes of debate, with 30 minutes under the control of Senator Feingold; 15 minutes under the control of Senator Dodd; 10 minutes under the control of Senator Bingaman; 10 minutes under the control of Senator Leahy; 10 minutes under the control of the Majority Leader; and 30 under the control of the Republican Leader or his designee.

Upon the use or yielding back of this time, the Senate will proceed to roll-call votes in relation to the pending amendments. Upon disposition of these amendments, the Senate will proceed to a roll -call vote on the motion to invoke cloture on H.R. 6304, as amended if amended.

If cloture is invoked on H.R. 6304, all post-cloture time will be yielded back, and the Senate will proceed to a roll-call vote on passage of H.R. 6304, as amended if amended.

Right now, Leahy is talking at SJC about how this Administration is more politicized than Watergate. And Mitch McConnell is speaking on the Senate floor–so I’ll stick with Leahy for now.

Leahy is reminding Mukasey that he promised to review the OLC opinions. "We look forward to obtaining these memos. We look forward to learning which aspects of the OLC memos have been modified or withdrawn by AG."

Specter (in SJC) talks about FISA as an unchecked expansion of executive authority.

Specter discussing attorney-client privilege–has a bill pending on this. He’s complaining about corporations being asked to waive privilege. (Apparently, he’s okay with the DOJ practice of spying on defense attorneys for people accused of terrorism.)

Now Specter complaining that Judy Miller went to jail when Richard Armitage was the source of the leaks. Apparently he just slept through all the dark clouds hanging over Cheney’s head.

A leak in the investigation of Curt Weldon. A very distinguished Congressman, led directly to his defeat. Never mind that he’s now an arms dealer.

Read more

Republican No Shows on FISA Negotiation

Let’s hope getting stood up teaches Jello Jay about Republican priorities:

In what should have been a bipartisan, bicameral meeting, staff members of the House and Senate Judiciary and Intelligence Committees met today to work in good faith to reach a compromise on FISA reform. As we have said, we are using this week to work on a compromise that strengthens our national security and protects Americans’ privacy. Unfortunately, we understand our Republican counterparts instructed their staffs not to attend this working meeting, therefore not allowing progress to be made in a bipartisan, bicameral way. While we are disappointed that today’s meeting could not reflect a bipartisan effort, we will continue to work and hope Republicans will join us to put our nation’s security first.

I guess immunity and all that isn’t so important after all…

SJC Mukasey Hearing, Four

Cardin: Sorry I’m late, Junior Senator from VT was babbling on.

[That’s okay, Bernie gets all the time he wants.]

Cardin: thanks for communicating. Waterboarding cannot be justified. If we try to justify it, it’ll be hard to defend American interests. I believe clarity is needed. It’s very difficult for us on Helsinki commission to explain what we’re doing.

Cardin: Immunity, I’d urge you to the precedent of giving retroactive immunity of further abuses, whether it would have a permanent damage on role of courts in protecting civil liberties of American people. We need to preserve the rights of our courts. I’d urge you to take a look at this to see if accommodation.

Cardin: Third point, sunset, you’re urging against. The Senate has a six year sunset, House two year, I have an amendment for four year sunset, I believe next administration needs to have a position on this.

Cardin: It’s important to keep Congress engaged in this to give whoever is engaged in FISA more cover.

Cardin: Election issues and Civil Rights, not enough attention. If 2006 is any indication, there will be efforts made to suppress minority voting. We’ve seen in past elections fraudulent material to intimidate minority voting. How will you make sure such things do not go unchallenged. We have a bill that would strengthen DOJ role. I would hope you’d give fair warning that such tactics will be challenged.

MM: Monitors to make sure there is access to ballots. Also a memo indicating that their sensitivities have to be heightened, and also bringing prosecutions that might be perceived as a prosecution to affect an election. Want to make sure it’s based ONLY on the facts of the investigation, not the timing of the election.

[Are you saying it was done in the past, Mike?] Read more

SJC Mukasey Hearing, Part Three

Leahy: Updates people in the stimulus package, and 15-day extension. So that’s why not everyone is here right now.

"Box Turtle" Cornyn: Office of Government Information Services, FOIA reform. Concerns about moving that office to DOJ, or somewhere else. I wanted to let you know I have reservations. My opinion is that the legislation forecloses moving the office.

"Box Turtle": FISA reform. 15-day extension is kicking the can down the road. Let me just talk about this in human terms. Talked to the father of soldiers who had been kidnapped by Al Qaeda. And his father says if we had an easy FISA law, his son might be alive. Do you think we need to make it easier for people to go through FISA?

[Shorter Box Turtle: I’m going to pretend, once again, that FISA forced a delay of wiretapping, when in fact it was just DOJ disorganization.]

MM: You put a human face on the problem we’re trying to prevent from recurring. We want to lower the burden on the govt in all its presentations to FISA just to make sure that what gets approved are procedures. I hope that DOJ acted with all the speed it could act.

[Interesting dodge by Mukasey, not agreeing that DOJ moved as fast as it could.]

"Box Turtle": I’m okay with a relative basis for torture.

MM: There are clearly circumstances where waterboarding is illegal. I’m not going to get into an abstract discussion of when it’d be legal. Nor am I going to call into question what people do or have done, when it’s not necessary to do so.

Whitehouse: In your analytical stance in your letter, you have assumed the role of a corporate counsel to the Executive Branch. You have taken steps to make sure nothing illegal has happened, but you are unwilling to look back and dredge up anything that may be a problem. That’s not a proper stance, you are also a prosecutor, Prosecutors do look back, dredge up the past, in order to do justice. It’s the mission statement of the DOJ to seek just punishment of those guilty of illegal behavior. Duty of USG, whose interest is that justice shall be done. The president has said we will investigate all acts of torture, you have said if someone is guilty of violating the law. [Cites code on torture] You are the sole prosecuting authority for that statute, the DOJ. Read more

SJC Mukasey Hearing

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


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."


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