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Leahy: Congress Will Do Truth Commission with or without POTUS

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As you may have seen last night, one of the more challenging questions for Obama came from the HuffPo’s Sam Stein, who asked Obama if he supported a Truth Commission.

Sam’s still busy with this story, today reporting that Leahy says Congress will go forward even without the support of Obama.

Senate Judiciary Chairman Patrick Leahy and White House Chief Counsel Greg Craig discussed on Tuesday the Senator’s proposal to set up a truth and reconciliation commission to investigate potential crimes of the Bush administration.

"I went over some of the parameters of it and they were well aware at the White House of what I’m talking about," Leahy told the Huffington Post. "And we just agreed to talk further."

[snip]

Leahy did add an important ripple to the story in the interview with the Huffington Post: Congress will likely proceed with investigations regardless of whether Obama is on board.

"Oh yeah," Leahy said when asked if he would go forward without Obama’s endorsement. "I think the Senate and the Congress as whole has an oversight responsibility that has to be carried out here anyway. Now it is much easier with the cooperation of the administration. A lot of things with the subpoenas I issued the past few years, we got a lot of information but a lot of it was held back."

[snip]

"What I would much rather see is to see us working together," said Leahy. "We have a common interest, both the Congress and the administration to get this thing worked out … In this instance, this is so important that our common interest is to get the truth out."

And in related news, Russ Feingold has joined the 22 other Members of Congress who have voiced their support for such a Commission.

I applaud Senator Leahy’s leadership in proposing the establishment of a truth and reconciliation commission. Getting all the facts out about what happened over the last eight years is a crucial part of restoring the rule of law. As President Obama and Attorney General Holder have said, nobody is above the law. There needs to be accountability for wrongdoing by the Bush Administration, including the illegal warrantless wiretapping and interrogation programs. We cannot simply sweep these assaults on the rule of law under the rug. [my emphasis]

I’m guessing Russ will not only support this Commission, but he’ll be one of the first reminding AG Read more →

Holder on State Secrets

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The Senate debate on Eric Holder’s nomination is on CSPAN2 right now. Tom Coburn is on the floor now pretending that Holder is going to bring back the Fairness Doctrine and take away your guns.

But Holder’s nomination is bound to pass, with large margins, when they vote this evening. So it’ll be interesting to see how Holder implements these highly parsed views, written in response to questions from Russ Feingold, courtesy of Secrecy News.

3. I’m concerned that the outgoing administration may have used the "state secrets privilege" to avoid accountability for potentially unlawful activities, including warrantless wiretapping and rendition. Courts tend to be very deferential to these privilege claims, so there’s certainly room for abuse. Will you commit to reviewing all pending cases in which DOJ has invoked the state secrets privilege to make sure the privilege was properly invoked, and withdraw any claims of privilege that are not necessary to preserve national security?

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

4. One reason that the state secrets privilege is so vulnerable to abuse is that courts don’t always use the tools that are at their disposal to review privilege claims, such as in camera review of the privileged evidence. I cosponsored the State Secrets Protection Act (S. 2533 in the 110th Congress), with Sen. Kennedy and Sen. Specter, to require courts to engage in meaningful review of these claims. Would you support enactment of this bill?

I appreciate the Committee’s concern about potential abuses of the state secrets privilege and will work to ensure that assertions of the privilege are made only when legally and factually appropriate. I will consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment on whether to support this or other particular legislation.

"I will review significant pending cases." That would, presumably, include the al-Haramain case. Of course, that says only that he would review the cases.

Feingold Sez: No More Clusterfuck Senate Appointment Processes

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Talk about a good way to capture the sentiment of a lot of fed up people:

Feingold to Introduce Constitutional Amendment Ending Gubernatorial Appointments to Senate Vacancies 

Washington, D.C. – U.S. Senator Russ Feingold, Chairman of the Senate Judiciary Subcommittee on the Constitution, issued the following statement today on plans to introduce an amendment to the U.S. Constitution to end appointments to the Senate by state governors and require special elections in the event of a Senate seat vacancy.

The controversies surrounding some of the recent gubernatorial appointments to vacant Senate seats make it painfully clear that such appointments are an anachronism that must end.  In 1913, the Seventeenth Amendment to the Constitution gave the citizens of this country the power to finally elect their senators.  They should have the same power in the case of unexpected mid term vacancies, so that the Senate is as responsive as possible to the will of the people.  I plan to introduce a constitutional amendment this week to require special elections when a Senate seat is vacant, as the Constitution mandates for the House, and as my own state of Wisconsin already requires by statute.  As the Chairman of the Constitution Subcommittee, I will hold a hearing on this important topic soon.

Change Pixie Dust We Can Believe In

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Apparently, Greg Craig (who IMHO thus far is batting about 0-3 in his tenure as White House Counsel, counting his erroneous response on FISA, his juvenile cover-up of Rahm’s calls, and his response to the botched Oath) believes in Pixie Dust.

A day before Obama signed executive orders closing Guantánamo Bay and banning torture, the White House’s top lawyer privately indicated to Congress that the new president reserved the right to ignore his own (and any other president’s) executive orders. In a closed-door appearance before the Senate intelligence committee, White House counsel Gregory Craig was asked whether the president was required by law to follow executive orders. According to people familiar with his remarks, who asked for anonymity when discussing a private meeting, Craig answered that the administration did not believe he was. The implication: in a national-security crisis, Obama could deviate from his own rules. A White House official said that Craig’s remarks were being "mischaracterized." [my emphasis]

Note Craig said this in response to a question–presumably from one of the Senators. As a reminder, both Sheldon Whitehouse and Russ Feingold sit on the SSCI. They’re the two guys trying to legislate away this kind of Pixie Dust, the claim that the President can just ignore his own executive orders. Whitehouse, of course, is the guy who first pointed out the way Bush had used Pixie Dust to wish away Saint Ronnie’s prohibitions on spying on Americans. And Whitehouse asked this very question of Michael Mukasey before he was confirmed, only to have Mukasey flip-flop on it as Attorney General. 

So I’m guessing that the question, at least, was asked by Whitehouse with Feingold the second most probable.

Someone ought to tell Mr. Greg "0-4" Craig, though, that once you espouse Pixie Dust you’ve lost all credibility to claim your remarks were "mischaracterized." 

FISA + EO 12333 + [redacted] procedures = No Fourth Amendment

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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yesterday, I showed that the government claims it doesn’t have a database of incidentally collected data from non-targeted US persons; and then I showed why that claim is not credible. Today, I’ll point to another big loophole in the government’s wiretapping program revealed by the FISCR opinion: the use of three or more different methods of getting around Fourth Amendment requirements of probable cause and particularity.

The opinion describes what it seems to present as abundant protections involved in the wiretapping at issue–noting that these protections are included not just in Protect America Act, but also Executive Order 12333 and certain classified procedures.

Beginning in [redacted] 2007, the government issued directives to the petitioner commanding it to assist in warrantless surveillance [redacted, redacted footnote]. These directives were issued pursuant to certifications that purported to contain all the information required by PAA.

The certifications require certain protections above and beyond those specified by the PAA. For example, they require the AG and the National Security Agency (NSA) to follow the procedures set out under Executive Order 12333 2.5 …, before any surveillance is undertaken. Moreover, affidavits supporting the certifications spell out additional safeguards to be employed in effecting the acquisitions. This last set of classified procedures has not been included in the information transmitted to the petitioner. In essence, as implemented, the certifications permit surveillance conducted to obtain foreign intelligence for national security purposes when those surveillances are directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States. [my emphasis]

Much later, when the Court is testing the government’s claim that certifications in question qualify as “reasonable,” it again lists these several “safeguards.”

The government rejoins that the PAA, as applied here, constitutes reasonable government action. It emphasizes both the protections spelled out in PAA itself and those mandated under the certifications and directives. This matrix of safeguards comprises at least five components: targeting procedures, minimization procedures, a procedure to ensure that a significant purpose of a surveillance is to obtain foreign intelligence information, procedures incorporated through Executive Order 12333 2.5, and [redacted] procedures [redacted] outlined in an affidavit supporting the certifications. [my emphasis]

Understand–this opinion is not about whether PAA (or, more generally, a Congressionally-sanctioned wiretap program) by itself authorizes under the Fourth Amendment the actions the government required the plaintiff to take. It is about whether PAA + EO 12333 (the Reagan Executive Order laying out our intelligence program, plus the amendments to that EO) + redacted procedures submitted in conjuction with, but not mandated by, PAA fulfill Fourth Amendment requirements. PAA, by itself, does not fulfill Fourth Amendment requirements.

Read more →

The Government Sez: We Don’t Have a Database of All Your Communication

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I’m going to try to do a series of posts on the FISA Appeals Court ruling before football starts tomorrow. In this post, I just want to point to a passage that deserves more scrutiny:

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26)

To translate, if the government collects information from a US citizen (here or abroad), a legal permanent US resident, a predominantly US organization, or a US corporation in the course of collecting information on someone it is specifically targeting, it it claims it does not keep that in a database (I’ll come back and parse this in a second). In other words, if the government has a tap on your local falafel joint because suspected terrorists live off their falafels, and you happen to call in a take out order, it does not that have in a database.

There are reasons to doubt this claim. First of all, because we know of huge new data storage facilities, and they’ve got to be filling those facilities with something. Of course, they might just store US person communications on servers, but not in a formal database, and thereby be able to claim they’ve not got your falafel order in a database proper.

But we also know that when Russ Feingold proposed several measures to protect this kind of incidental data during last year’s FISA debate, Mike McConnell and Michael Mukasey started issuing veto threats. For example, when Feingold proposed adding this amendment to the new FISA changes,

At such time as the Government can reasonably determine that a communication acquired under this title (including a communication acquired under subsection (a)(2)) is to or from a person reasonably believed to be located in the United States, such communication shall be segregated or specifically designated and no person shall access such a communication, except in accordance with title I or this section.

Mukasey and McConnell threw out a bunch of vague alarmist objections.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence Read more →

Whitehouse and Feingold Strike Back at Pixie Dust

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Pixie Dust, as I’ve explained it, is the process by which the Bush White House has relied upon an OLC opinion stating that the President doesn’t have to rewrite his Executive Orders before he violates it. If he acts contrary to an Executive Order, that constitutes "modifying" the order, even if he never publicly changes the order. Hell, apparently in this White House, the VP could make up his own interpretations of Executive Orders, even if the White House Counsel told him he was wrong.

Uh huh.

Sheldon Whitehouse and Russ Feingold think that whole concept is as ridiculous as we think it is–and they’ve just sponsored a bill to end the practice.

U.S. Senators Russ Feingold (D-WI) and Sheldon Whitehouse (D-RI) have introduced legislation to prohibit the President from relying on one form of “secret law.” The Feingold-Whitehouse bill would require public notice when the President modifies, revokes, waives, or suspends a published executive order or similar Presidential directive that carries the force of law and binds the Executive Branch. The legislation responds to a legal opinion of the Department of Justice’s Office of Legal Counsel which concludes that a President can modify or waive an executive order without public notice, simply by not following it. This legal conclusion by OLC was made public in December 2007 through the efforts of Whitehouse and examined at an April 30th hearing of the Senate Judiciary Committee Constitution Subcommittee on the subject of “Secret Law” chaired by Feingold.

“No one disputes a President’s ability to withdraw or revise an Executive Order,” Feingold said. “But modifying or even throwing out a published Executive Order without any public notice is a way of secretly changing the law. And since the Executive Order stays on the books, Congress and the public are misled about what the real law is. This bill is an important step toward stemming the growth of secret law in the executive branch.”

“The Bush Administration’s relentless efforts to conduct government in secret have undermined the rule of law and too often betrayed the trust of the American people,” said Whitehouse, a former Rhode Island U.S. Attorney and Attorney General who first made OLC’s conclusion public. “This measure will help restore the rule of law, disciplined by the balance of power established under the Constitution.”

The bill, called the Executive Order Integrity Act, would require notice to be published in the Federal Register 30 days after the Read more →

Confirmed: Final FISA Votes on July 8

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As I understand it, Dodd and Feingold have signed off on a unanimous consent agreement to hold debate on three amendments (one of them immunity) on July 8, and then hold the vote then.

Here’s Feingold’s short statement on the delay.

I’m pleased we were able to delay a vote on FISA until after the July 4th holiday instead of having it jammed through. I hope that over the July 4th holiday, Senators will take a closer look at this deeply flawed legislation and understand how it threatens the civil liberties of the American people. It is possible to defend this country from terrorists while also protecting the rights and freedoms that define our nation.

And here’s Dodd’s statement on it.

I’m pleased that consideration of the FISA Amendments Act has been delayed until after the 4th of July recess. I urge my colleagues to take this time to listen to their constituents and consider the dangerous precedent that would be set by granting retroactive immunity to the telecommunications companies that may have engaged in President Bush’s illegal wiretapping program.

When and if FISA does come back to the Senate floor, I will offer my amendment to strip the retroactive immunity provision out of the bill. I implore my colleagues to support the rule of law and join me in voting against retroactive immunity.

So we’ve got 12 days to convince our Senators to stop channeling the barnacle and protect our Constitution.

Update: Here’s what’s going to happen on the 8th.

This evening Senator Reid filed cloture on H.R. 6304. Under the agreement at a time to be determined on Tuesday, July 8, the Senate will proceed to Calendar #827, H.R. 6304, FISA. The following amendments are the only amendments in order:

Dodd-Feingold-Leahy amendment to strike immunity;

Specter amendment which is relevant; (60-vote threshold); and

Bingaman amendment re: staying court cases against telecom companies (60-vote threshold).

Debate on the amendments is limited to the times listed below with the time equally divided and controlled:

Dodd- 2 hours, with Senator Leahy controlling 10 minutes;

Specter- 2 hours; and

Bingaman- 60 minutes.

Upon the use or yielding back of time, the Senate will proceed to vote on the amendments.

Prior to the cloture vote, there will be up to 60 minutes for debate equally divided and controlled between the Leaders or their designees, with Senator Leahy controlling 10 minutes. Senator Feingold will control an additional 30 minutes and Senator Read more →

Immunity Provision Invites Phone Companies to Cooperate with Illegal Government Programs

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Senator Feingold made an important argument in the Senate today. He explains how the FISA immunity provision invites telecoms to cooperate with illegal government programs.

For starters, current law already provides immunity from lawsuits for companies that cooperate with the government’s request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. But if requests are not properly documented, FISA instructs the telephone companies to refuse the government’s request, and subjects them to liability if they instead decide to cooperate. This framework, which has been in place for 30 years, protects companies that act at the request of the government while also protecting the privacy of Americans’ communications.

Some supporters of retroactively expanding this already existing immunity provision argue that the telephone companies should not be penalized if they relied on a high-level government assurance that the requested assistance was lawful. Mr. President, as superficially appealing as that argument may sound, it utterly ignores the history of FISA.

Telephone companies have a long history of receiving requests for assistance from the government. That’s because telephone companies have access to a wealth of private information about Americans – information that can be a very useful tool for law enforcement. But that very same access to private communications means that telephone companies are in a unique position of responsibility and public trust. And yet, before FISA, there were basically no rules to help the phone companies resolve the tension between the government’s requests for assistance in foreign intelligence investigations and the companies’ responsibilities to their customers.

This legal vacuum resulted in serious governmental abuse and overreaching. The abuses that took place are well documented and quite shocking. With the willing cooperation of the telephone companies, the FBI conducted surveillance of peaceful anti-war protesters, journalists, steel company executives – and even Martin Luther King Jr.

Congress decided to take action. Based on the history of, and potential for, government abuses, Congress decided that it was not appropriate for telephone companies to simply assume that any government request for assistance to conduct electronic surveillance was legal. Let me repeat that: a primary purpose of FISA was to make clear, once and for all, that the telephone companies should not blindly cooperate with government requests for assistance.

Read more →

About Reid’s Potential Delay

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Folks are seeing a glimmer of hope in the FISA battle based on Harry Reid’s suggestion that we might not get FISA done before the July 4 recess.

Before I look closely at what Reid said, let me lay out a few points:

  • Unless something remarkable happens, FISA will eventually pass the Senate with about a 72-25 margin. The bad SSCI bill passed in February with a 68-29 margin, and Steny’s capitulation was tailor-made to pick up the votes of people like DiFi and Amy Klobuchar–not to mention Obama. So there’s absolutely no reason to think a filibuster would be successful or to think that the bill won’t pass.
  • The Senate is close to passing a Housing bill that–though imperfect–would do some concrete things to help Americans stay in their homes and help communities devastated by foreclosures. If Bush signs it. If Bush doesn’t, then the Republicans will have their refusal to do something about the foreclosure crisis to contend with this fall, along with everything else they’re dealing with.
  • The Senate is close to passing the equally imperfect funding supplemental which includes Webb’s GI bill and an extension to unemployment benefits.

As you look at Reid’s comments, remember that Reid is dealing with all three of these playing pieces, not just the one we’re most focused on, FISA. And to the average American, the other two pieces are way more important than the FISA piece. As well-versed as I’ve become in FISA, frankly, I can’t imagine telling my neighbors facing foreclosure that defeating immunity is more important than them keeping their house.

I’m just making an outtamyarse guess, but I’m guessing that Reid’s delay comment last night may be tailored to get action on the housing bill, by holding the two things the Administration wants–FISA and the supplemental–hostage until a hold-out Republican and Bush agree to the housing compromise.

Reid starts by clearly pressuring one Senator on the housing bill–basically saying that if this one Senator doesn’t flip, then the Senate will stay through the weekend and get some housing bill passed.

I know of only one holdup on our being able to complete the housing legislation. If we can’t get that Senator to sign off on this, then we only have one alternative and that is we’ll file cloture tomorrow on another arm of this housing legislation. We will have cloture on that two legislative days later and then we still have one more to do. Now, that would mean we would have to be here over the weekend. Read more →