SJC Mukasey Hearing

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

Leahy

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."

ARGH!!

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 →

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For Fear Of Fear – Part One

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It has been an exciting and fascinating two days, yesterday and today. It has been the best, and worst, of American democracy in action. The thrill of victory; the agony of a weak defeat, snatched from the strong jaws of victory. Yesterday we were giddy with the knowledge that the Democratic Senate Leadership had actually stood up, not just to the Bush/Cheney/Republican cabal of maximum everything in wiretapping and privacy invasion, but in the name or the Constitution and righteousness. Today, reality came crashing back down to earth for those of us in the reality based community.

Yesterday, the Senate led by Harry Reid and the Democrats fought off cloture and a vote on the contemptible Jello Jay Rockefeller crafted SSCI FISA Update Bill that, in addition to other ills, provided immunity to Dick Cheney, George Bush, other Administration malefactors and, as somewhat of an afterthought, participating telcos. That was a good thing. There were already whispers and scuttlebutt of a "brief extension" of the truly contemptible Protect America Act. As I have argued for some time now, there are inherent problems with such a "routine brief extension".

I repeat what I said yesterday on this “brief extension” nonsense. It is nothing but sheer political posturing that brings us down to the level of the Repuglicans AND weakens our case at the same time. Take a stand for the proper principles, and stand behind them as opposed to injecting harmful BS for the sole sake of cornering your opponent; which is a fine and appropriate tactic, if it doesn’t undercut your core principle in the process. Here, it will weaken the core principle and argument in it’s favor and should NOT be considered; especially since it is not necessary “to protect us” in the least, and blindly saying that it is so necessary is ridiculous.

NO EXTENSION! There is no need whatsoever for an extension, because A) The Administration can order any comprehensive program, or programs, they want prior to the lapse of the PAA and that program(s) will stay in effect for one full year “to protect us”; and B) the original FISA law is reinstated. Furthermore, passage of any extension is a wolf in sheep’s clothing because is equitably removes and/or weakens many arguments and defenses that opponents, like us, to the PAA had from it’s original passage in August 2007. At the Read more →

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Bush Would Forgo New FISA Programs to Make Sure Dick Gets Immunity

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Bush says he wants a new FISA bill, and he wants it now. 

The White House told Democratic congressional leaders Saturday that President Bush opposes a 30-day extension of an expiring eavesdropping law and instead wants an expanded version to be passed by Friday.

“The president would veto a 30-day extension,” a senior administration official said. “They’re just kicking the can down the road. They need the heat of the current law lapsing to get this done.” 

To which Reid appropriately pinned any blame on Bush.

Senate Majority Leader Harry Reid (D-Nev.) called the veto threat "shamefully irresponsible" and "simply posturing in advance of Monday’s State of the Union address."

"There will be no terrorism intelligence collection gap," Reid said. "But if there is any problem, the blame will clearly and unequivocally fall where it belongs: on President Bush and his allies in Congress."

Reid’s response is useful. But he needs to say one more thing. If Bush vetos a 30-day extension, he will be doing so for one reason and one reason only: because the existing legislationg, PAA, doesn’t offer immunity to telecoms–and with it, to Dick Cheney and everyone else in this Administration who pushed the telecoms to continue their spying even after the acting AG, Jim Comey, refused to certify the program for a period in 2004.

Bush is willing to forgo implementing new FISA programs (all the existing ones will continue for at least six months) all because he wants Dick to get his immunity … now. This is about Bush putting Dick’s interests–and his own–above the security of the country.

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How to Lead: Chris Dodd Edition

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While Hillary and Obama were leaving the work of legislating to others, Chris Dodd stepped up to lay out the stakes for the FISA debate.

Senators are not entitled to see their amendments pass. But they are entitled to this: a good-faith debate, honest criticism, and, ultimately, a vote.

Last night, they didn’t get it. Our Republican colleagues, assuming that they would lose those votes, effectively shut down the work of the Senate. They’ve taken their ball and run home.

They won’t debate us on the merits. On the merits, they conceded, Republicans have lost.

And I don’t think I’m far off base, Mr. President, in seeing in this egregious shutdown a parallel to retroactive immunity itself. Both attitudes privilege power over deliberation, over consensus, over honest argument.

Like immunity, pulling these amendments shows a contempt for honest debate and a willingness to settle issues in the dark, in back rooms—rather than in the open, where the law lives, where the American people can see it.

President Bush wants to shut down courts whose rulings he doesn’t like; last night, Senate Republicans showed that when they don’t like the outcome of a debate, they’ll shut that down, too.

It’s one thing for a president to express that kind of contempt for the process of legislation. It’s another for the members legislative branch to express it themselves.

Mr. President, I’ve spoken repeatedly about the rule of law. The rule of law isn’t some abstract idea. It’s here with us—it’s what makes this body run.

It means we hear each other out, we do it in the open, and while the minority gets its voice, gets its right to strenuously object, the majority ultimately rules.

And standing for the rule of law anywhere means standing for it everywhere: in our courts, and in our Senate. The circumstances are different, of course; but the heart of the matter is the same. Last night, I believe, the Republican party forfeited its claim to good faith on this issue. They’re left to stake their case on fear. Whether that will be enough, the next few days will tell. [my emphasis]

Well, thank god someone’s in DC standing up for the rule of law.

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Anti-Immunity Porn

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Senators Dodd and Feingold aren’t waiting for Monday to keep fighting the good fight on FISA. Feingold has issued the following statement:

The conduct of Senate Republicans yesterday was shameless. After weeks of insisting that it is absolutely critical to finish the FISA legislation by February 1, even going so far as to object to a one-month extension of the Protect America Act, they obstructed all efforts to actually work on the bill. Now they want to simply ram the deeply flawed Intelligence Committee bill through the Senate. They refused to allow amendments to be offered or voted on, including my straight-forward amendment to require that the government provide copies of FISA Court orders and pleadings for review in a classified setting, so that Members of Congress can understand how FISA has been interpreted and is being applied. If the Republicans succeed in cutting off debate on Monday, the Senate won’t even get to vote on the amendment Senator Dodd and I want to offer to deny retroactive immunity to telecom companies that allegedly cooperated with the administration’s illegal wiretapping program.

Democrats should not allow the Republicans to ram this bill through the Senate without amendments. Monday’s cloture vote will be a test of whether the majority is willing to stand up to the administration and stand up for our rights. [my empahsis]

And Dodd just finished kicking some serious ass on the floor of the Senate. He has called those who claim the telecoms will go out of business "amateur economists" and pointed to AT&Ts huge profits. He explained, "the point of immunity is to challenge Bush’s assertion that he is the law." And he accused the telecoms of using the Nuremberg defense. Finally, after listing all the abuses of power that can’t be undone–including the destruction of the torture tapes and AGAG’s lies before Congress, he described immunity as one thread that we can use to combat the Administration’s abuses. "We can grab hold of the one thread left to use here and pull on it until the whole garment unravels."

Update: Whitehouse just finished speaking. Two of his best lines were, the Administration "couldn’t be troubled to get a court order, to protect these companies they’re so concerned about now" and if we pass telecom immunity, "we are taking away real rights of real Americans that are being litigated in courts right now. I don’t know if Congress Read more →

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Reid: The President and the Republicans Want Failure

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One of the things we’re fighting for now on FISA is to make sure the Republicans get pinned as the obstructionists here. Here was Reid’s first shot at doing so (a rough transcript of his speech, via email):

We want, if necessary, within the confines of the law, to do wiretapping of these bad people. But, Mr. President, Having said that we want to do it within the confines of our Law and our constitution. We want to make sure that this wire tapping does not include innocent Americans who just happen to be part of what they’re collecting. That’s what the American People expect us to do.

So I again say Mr. President, no one can question our patriotism, our willingness to keep our homeland safe. We have tried to move forward on this legislation. We have tried in many different ways. What we have been doing today and yesterday is moving forward on this legislation just as the distinguished Senator from California said. There are amendments that will make this legislation better. Now that’s in the eye of the beholder. We all understand that. But shouldn’t the Senate have the ability to vote on those amendments?

No matter what we do as a Senate it has to have a conference with the house. They have already passed their legislation. But we have been stalled every step of the way. Read more →

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What Ever Happened to “Upperdown Votes”?

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Say what you will about Senator Reid. But right now, he’s in a giant showdown with Mitch McConnell (and, disgustingly, Jello Jay Rockefeller), and I guarantee you’d rather have Reid win than McConnell.

The Republicans have refused to allow an "upperdown" vote on any amendment since the Leahy substitution amendment went through. They’ve called for a cloture vote to vote on the SSCI bill, with just one minor amendment. Which means, if cloture passes, we’ll get screwed by Jello Jay, and Bush will get his wet dream of a spying bill.

Reid, on the other hand, wants a fair hearing for the amendments being offered–including immunity, but also things like oversight on minimization and restrictions on wiretaps of Americans overseas. He basically wants the Senate to have a chance to improve on the work of the SSCI. And though he’s not saying it, several of these amendments, though they propose something the Administration has said would be okay, would really cause Bush to veto the bill.

The idea is cloture allows Bush to conduct his spying as he wants to, with Congressional approval. Whereas Reid wants to deliver what Bush has said he needs, rather than what he really wants but won’t admit to.

The cloture vote is scheduled for 4:30 on Monday. We’ve got three and a half days to get at least three of the following people to flip their votes from the vote on the Leahy substitution:

Bayh (202) 224-5623
Carper (202) 224-2441
Inouye (202) 224-3934
Johnson (202) 224-5842
Landrieu (202)224-5824
McCaskill (202) 224-6154
Mikulski (202) 224-4654
Nelson (FL) (202) 224-5274
Nelson (NE) (202) 224-6551
Pryor (202) 224-2353
Salazar (202) 224-5852
Specter (202) 224-4254 (What the hell–he had an amendment ignored today, too)

And to convince those Senators who want to be President that this is a vote they need to be present for. (This assumes Rockefeller won’t flip, since he’s co-sponsoring the bill with Bond.) It’s probably also a good idea to touch base with Senators DiFi (202-224-3841) and Whitehouse (202-224-2921) to make sure they remain on the side of the good.

Several years ago, when they were on the wrong side of a close Senate, Republicans insisted on the sanctity of an "upperdown vote." But now, they want to refuse that right to any legislative action save the one Bush supports.

We can win this one. And boy, Read more →

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Did Bush Re-Nominate Bradbury to Control Mukasey?

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Mind you, I’m sure Bush re-nominated Steven Bradbury, the second incarnation of John Yoo, because Bradbury has dutifully shredded the Constitution on demand, and Bush would like to reward him. But the National Journal’s coverage of the Bradbury re-nomination raises an interesting point. It notes, as does everyone else, that Bradbury’s nomination is a big "Cheney yourself" to the Democrats who have refused to approve Bradbury’s nomination in the past.

In the latest example of the continuing partisan rifts over CIA interrogation techniques, Bush renominated lawyer Steven Bradbury to a senior post at the Department of Justice yesterday, despite years of Democratic resistance to his nomination.

[snip]

Bush’s previous attempts to install Bradbury permanently as head of the OLC stalled during the confirmation process, when the DOJ refused to provide senators with copies of Bradbury’s legal opinions on terrorism issues. His previous nominations have expired, and last year Democrats pressed Bush to withdraw Bradbury’s candidacy for the post. But the administration refuses to yield, claiming that Bradbury’s opinions on interrogation techniques do not contradict the law.

But then it points out that Mukasey promised to review the existing OLC opinions to make sure they don’t shred the Constitution.

During his own confirmation hearings last fall, Attorney General Michael Mukasey pledged to review the controversial OLC opinions and "change them" if need be.

Now, I have no idea whether Bush re-appointed Bradbury with Mukasey’s approval; John Ashcroft was able to scuttle John Yoo’s appointment to the OLC, which led to the appointment of Jack Goldsmith. But I imagine Bush (and more importantly, Cheney) wasn’t too happy with the way that worked out.

Certainly, when Mukasey visits the Senate Judciary next week, they ought to ask him whether Bush consulted with him before he re-appointed Bradbury.

Whether Mukasey approved that re-appointment or not, though, the re-appointment guarantees that Bradbury can continue to act as OLC head through the end of Bush’s term. It ensures that Dick and Addington have their stool (in both senses of the word, I suspect) in the heart of DOJ, preventing any real roll-back of Dick’s Constitutional atrocities.

No matter what Mukasey’s intentions, it seems, Bush and Dick now have their insurance that Mukasey can only do so much to fix this Administration’s shredding of the Constitution.

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Dick Wants His Immunity, and He Wants It Now

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What wizard of political strategy decided that Dick Cheney was the appropriate person to harangue Congress about approving immunity for himself and all the other Admin folks who pushed illegal wiretapping the telecoms?

The unfortunate aspect of the Protect America Act is a sunset provision, which makes the law expire on the first of February –- just 10 days from now. That leaves Congress only nine days in which to act to keep the intelligence gap closed. And with the day of reckoning so close at hand, we’re reminding Congress that they must act now to modernize FISA.

First, our administration feels strongly that an updated FISA law should be made permanent, not merely extended again with another sunset provision. We can always revisit a law that’s on the books –- that’s part of the job of the elected branches of government. But there is no sound reason to pass critical legislation like the Protect American Act and slap an expiration date on it. Fighting the war on terror is a long-term enterprise that requires long-term, institutional changes. The challenge to the country has not expired over the last six months. It won’t expire any time soon –- and we should not write laws that pretend otherwise.

Second, the law should uphold an important principle: that those who assist the government in tracking terrorists should not be punished with lawsuits. We’re asking Congress to update FISA and especially to extend this protection to communications providers alleged to have given such assistance any time after September 11th, 2001. This is an important consideration, because some providers are facing dozens of lawsuits right now. Why? Because they are believed to have aided the U.S. government in the effort to intercept international communications of al Qaeda-related individuals.

We’re dealing here with matters of the utmost sensitivity. It’s not even proper to confirm whether any given company provided assistance. But we can speak in general terms. The fact is, the intelligence community doesn’t have the facilities to carry out the kind of international surveillance needed to defend this country since 9/11. In some situations there is no alternative to seeking assistance from the private sector. This is entirely appropriate. Indeed, the Protect America Act and other laws allow directives to be issued to private parties for intelligence-gathering purposes.

[snip]

Actions by Congress sometimes have unexpected consequences. But a failure to enact a permanent FISA update with liability protectionswould Read more →

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Two Reminders: Not an Agency and Search Terms

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We’ve had a bit of discussion whether the White House has lost all its email because of some nefariousness–or because of rank incompetence. I’m still not claiming to know the answer to that question. But there are two data points I want to remind everyone of.

First, remember that the White House all of a sudden decided that the Office of Administration was no longer an agency at precisely the time when CREW started asking questions about the disappearing emails.

The Justice Department said Tuesday that records about missing White House e-mails are not subject to public disclosure, the latest effort by the Bush administration to expand the boundaries of government secrecy.

Administration lawyers detailed the legal position in a lawsuit trying to force the White House Office of Administration to reveal what it knows about the disappearance of White House e-mails.

They did so to support a claim that OA was not subject to FOIA, and therefore they could tell CREW to go Cheney itself. This, in spite of the fact that OA had FOIA materials on its website and responded to over 60 FOIA requests the previous year! (They tried to fix that little problem by throwing their website down the memory hole, though they have since recanted grudgingly, still claiming that they’re not subject to FOIA, but retaining the proof that they’re subject to FOIA on their website to comply with the Presidential Records Act.)

The argument is reminiscent of Cheney’s Pixie Dust argument, in which rewrote an Executive Order after the fact, also claiming he was not an agency, so as to claim he didn’t have to tell anyone about his classification and declassification activities. Dick also apparently used this logic to explain how he insta-declassified a CIA spy’s identity so he could out that spy to Judy Miller.

You see, this Administration does use such arguments for nefarious purposes.

The other data point to keep in mind, regarding the White House use of emails, is the RNC’s attempts to hide damaging emails by use of rather silly search terms.

… the RNC counsel has proposed to limit the Committee’s request by using narrow "search terms" to identify e-mails relevant to the Committee’s investigation. On Monday, RNC counsel proposed eight search terms, such as ‘political briefing," "Hatch Act," and "2008." While the "search term" approach was offered in good faith by the RNC counsel, it presents some serious problems. Read more →

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