Holder Refuses to Stand By Statements Saying Violating FISA Breaks the Law
By far the most disturbing part of the Senate Judiciary Committee oversight hearing today came when Russ Feingold asked Eric Holder whether he stands by a statement he made before the American Constitution Society last year.
In the midst of a speech that repeated "rule of law" like a Greek Chorus, after introducing this passage from his speech by saying certain steps taken by the Bush Administration "were unlawful," Holder said, "I never thought a President would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."
When Feingold asked Holder whether he stands by that statement, Holder ignored the early part of his speech where he described all of Bush’s abuses to be "unlawful," and instead tried to claim he was narrowly saying that Bush simply "contravened" FISA.
FEINGOLD: On another topic, I wrote to the president on Monday about my continued concern that the administration has not formally withdrawn certain legal opinions, including the January 2006 white paper that provided the justification for the Bush administration’s warrantless wiretapping program. At the letter was prompted in part by a recent speech that I’m sure you’re aware of by the director of national intelligence in which he asserted that the program was not illegal, but he later clarified that.
In a speech to the American Constitutional Society in June 2008, you, sir, set the following. "I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."
And the president himself also several times as a senator and during the campaign said the program was illegal. Now that you are the attorney general, is there any doubt in your mind that the warrantless wiretapping program was illegal?
HOLDER: Well, I think that the warrantless wiretapping program as it existed at that point was certainly unwise in that it was put together without the approval of Congress and as a result did not have all the protections, all the strength that it might have had behind it, as — as I think it now exists with regard to having had congressional approval of it. So I think that the concerns that I expressed in that speech no longer exist because of the action that Congress has taken in regard…
FEINGOLD: But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to be an illegal, because that’s certainly the implication of what you said in the quote I read and the explicit statement of the man who is now president of the United States.
HOLDER: Yes, well what I was saying in that speech was that I thought the action that the administration had taken was inconsistent with the dictates of — of FISA, and I think I used the word "contravention," and as a result I thought that the policy was an unwise one. And I think that the concerns that I expressed then have really been remedied by the fact that Congress has now authorized the program.
FEINGOLD: But did you think it was illegal?
HOLDER: Well, I thought that, as I said, it was inconsistent with — with the FISA statute and unwise as a matter of policy.
FEINGOLD: Has something happened that’s changed your opinion since your June 2008 statement that would make it hard for you to just simply say what the president said, that it’s illegal?
HOLDER: No, I don’t think so. And I don’t think what I’m saying now is necessarily inconsistent with what I said at the — at the ACS convention or speech that I gave.
FEINGOLD: Well, it sounds awfully mild compared to some very clear statements and a very important principle here, which is not only that this has to do with the scope of the FISA law, but the underlying constitutional issue that people like mean and many people believe that is his statute is — is that explicit under the third test, under Justice Jackson’s test, that it is in fact unconstitutional for the president and illegal, of course, for the president to override the expressed will of — of the Congress.
HOLDER: Yes. Well, as I said, I think I said "contravention of," "inconsistent with." I’m not sure I’d use the term "illegal," and I would adhere to — I’d adhere to what I said then. I think what I’m saying now is consistent with what I said in the — in the speech.
FEINGOLD: Well, that may well be, but I would hope that you would use the word "illegal" now, then. And I request in a letter I sent to the president on Monday and also in a letter dated April 29th, that the administration withdraw the January 2006 white paper and other classified OLC memos providing legal justification of the program. I know you have initiated a review of the Bush era OLC memos. And, of course, certain memos that authorize torture have been withdrawn. Apparently, you discussed this a bit already today with Senator Feinstein. What is — what is the status of your review of the memos concerning the warrantless wiretapping program?
HOLDER: Well, I asked the Office of Legal Counsel to review these prior opinions, including those that deal with surveillance, with the goal of making as many of these opinions public as we can, consistent with our national security interests and also consistent with ensuring that robust debate can happen within the executive branch. It is my hope that that process, which is ongoing, will lead to the release of several opinions in a relatively short period of time.
FEINGOLD: I just want to reiterate how important it is for the legal justification for this program to be withdrawn concerning these memos that make unsupportable claims of executive power that will come back to haunt us if they remain in effect. And if you believe, as I — I think the president has indicated in the past, that the program was illegal, they — they cannot stand.
Watch Holder squirm as he tries to suggest that the President could violate FISA and yet not break the law.
Now, Feingold asks this question to support his insistence that the opinions authorizing the warrantless wiretap program must be withdrawn. But I suspect Holder squirmed so wildly as much because of the cases before Vaughn Walker as he did because they’re still relying on those opinions to authorize domestic surveillance. After all, if Holder admitted that violating FISA was tantamount to breaking the law, then it would simplify Judge Walker’s task significantly. If the Attorney General admits that the former President violated FISA, then it makes it a lot easier for Walker to rule that he did.
But instead Holder squirmed and equivocated.
It’s bad enough that Holder’s trying to weasel out of statements he made a year ago. But I just saw the Attorney General all but suggest that contravening a law does not constitute breaking it.
Update: Here’s Feingold’s statement from after the hearing:
I was disappointed by Attorney General Holder’s unwillingness to repeat what both he and President Obama had stated in the past – that President Bush’s warrantless wiretapping program was illegal. For an administration that has repeatedly stated its intention to restore the rule of law, this episode was a step backward. While the Attorney General restated his belief that the program was inconsistent with the FISA statute, his testimony today, and the administration’s delay in withdrawing the Bush Administration’s legal justifications for the program, are troubling.
That’s because Holder has spent the last several months singing the UE chorus: if the President does it, it’s not illegal. Given the fact that the AG is “independent” of the President, I’m sure it is just a coincidence and merely a reflection of the fact that Holder likes the tune, not that Obama is singing loudly in his ear.
Geez, did BushCo leave a stash of Kool Aid at DoJ?
Boxturtle (And how much of that crap did Holder guzzle?)
that’s got to be the explanation
Is there anyway of figuring out the extent to which, if any, Holder and Obama are being held hostage by the dreaded “stay behinds”?
I’m certainly willing to suppose that they want the power, but I also want to know whether they are being “allowed” to show some moderation of those desires.
I’m haunted by Melville’s Benito Cereno, where the captain only seems to command the ship.
I don’t think they’re being held hostage at all. Obama has been very consistant about not wanting to prosecute BushCo and Holder is doing exactly what his boss wants.
Our only hope for prosecutions is political pressure so intense that it endangers Obamas re-election. Which is why he’s trying to keep that wiretapping and other such evidence buried.
If the courts make him release the info, it could be a new ballgame.
Boxturtle (Obama is very happy with Holder)
They are not being held hostage by stay behinds.
They do have political costs to their decisions, something that Obama knew during his campaign (and yet promised anyway and invoked rule of law anyway) and something Holder knew during his nomination process and prior speeches when he was acting as an Obama surrogate.
Now they don’t want to pay those costs.
It’s that simple.
The sad fact is the only costs to be paid are when Republicans and Blue Dogs get mad. When progressives get mad, Obama neither notices nor cares. Without progressives in Congress posing a threat to Obama, he will never feel the need to address our concerns. Sadly, the progressive caucus is a joke. Witness 32 votes against the supplemental.
I remain a big fan of the courts. That appears to be our only real avenue for change.
These guys are not progressive. Never were. They used it as an invisibility cloak so that those of us with ideals would be blinded. BO attacked progressives from the right during the campaign(s). It was obvious to most anyone not deluded because of the Bush travesties that he was only half assed at best.
The Dems don’t like the left either. They think they are a center right party anyway. The don’t mind kicking the gays and progressives to the curb. The think they get the independents and mild rethugs to replace us and they are happy.
Holder is showing his true colors as a first-rate weasel. Scary as hell. Very disappointing that Obama is deep-sixing Feingold’s plea for to withdraw the 2006 white paper and OLC memos rationalizing abuses of presidential power.
“a first-rate weasel”
Nah: As a weasel, even Mukasey took a back seat to AGAG. Wherever Holder rates, it’s gotta be below those two; so: unrated? “rate” without the superfluity of the “e”? This guy openly throws down a banana peel, points to it, invites you to step on it, and acts like he’s entitled to official deference. Me, I actually prefer my weasel with a higher rating, the quicker to raise impeachment.
All in all, it’s enough to make you want to side with Comey on Ashcroft: Johnny, you Jesus-babbling clown – we hardly knew ye!
I will remind you all that bmaz had Holder’s number right from the get go.
Most of us had his number. But remember, he’s just a finger on Obama’s hand doing the brains bidding. And remember as well, Obama is a Chicago politician and not a Savior.
Boxturtle (yes, of course I mean the middle finger)
It was fucking pathetic. But then I thought Holder was blowing poo back at the ACS, so I can’t say I am shocked.
It is no coincidence that OLC is reviewing these memos without Dawn Johnsen at the helm. The slow walk of her nomination appears to deliberate so as to keep her out of the review process. I wonder if Holder does not want her on board?
I’ve said that for a long time and completely agree. They never intended to get her in quickly, like they did Kris. They want to cut their deals and entrench the WHite House, DOJ, CIA etc. in legal positions that can’t be undone, then “lose” on her or bring her in well after she has ability to impact anything.
It’s become so crystal clear now that she really needs to re-think whether she wants the gig. Pulling out publically and saying it is based on positions that are being taken that seem incompatible with the rule of law would be the kind of smack that everyone deserves and would make it clear that the only nomination that is going to get a quickie confirmation is someone who doesn’t care about the law and doesn’t see any separate duty to the law and the courts for lawyers at DOJ.
Can I hear an amen from the congregation to that?
Amen.
Amen. Oh, gosh — I would love to see Johnsen do that.
Amen.
Amen. I leave messages for Holder on the DOJ Contact email, and occasionally phone his office. Seems to make no difference. But it’s worth it if even to plant a smidgeon of doubt in a staffer.
I’d say that’s crystal clear. Johnsen’s nomination is a dream Mr. Obama is not trying very hard to make a reality. Which means it’s not his dream, but an aide’s nightmare. Keeping her in limbo is of a piece with “look forward, not back”. Appointing her and engaging her competence would threaten dozens of top and current administration officials. That’s much too partisan for our “centrist” president.
I agree with the suggestion that she “resign in protest,” and articulate her reasons clearly. I suspect the same applies with Harold Koh.
Regardless of what she says, the Right will say it’s proof she didn’t deserve the post or was “unconfirmable”. The “center” will claim disappointment that she didn’t have more patience or judgment, while it reasserts that Obama has “a plan in the works”. The Left will wonder whether America will ever see the rule of law again applied equally in- and outside the Beltway.
A-A-A Men, A-A-A-Men, Amen,Amen,Amen. All together now…..
Great image. I hope the TV news would carry the footage, though.
I wonder how it works financially. Did Johnsen, upon accepting Obama’s nomination, have to drop any other career plans to wait in limbo for what has turned into this marathon charade of Congress ‘investigating her worthiness’ ?
How does Johnsen get by month to month, while waiting for her job at OLC to start?
How do we shame Obama into showing respect for his nominee and acknowledging the negative impact on Johnsen’s professional life Obama’s lack of leadership is wreaking here?
To what end would a very public withdrawal affect Obama’s and Holder’s selective application of the law? On the contrary, it would free Obama to nominate someone more
loyalbipartisan to appease Republican’s who are terrified of the law. I would rather see a more public effort, ala FDL’s whip count on the supplemental, to clear Johnsen’s nomination. As a constituent of Sen. Leahy, I would be quite happy to spearhead communication with him.I think you can grassroots whip all you want on that one, but it won’t make a difference until Obama and Holder want it to be a fait accompli, if that ever happens.
Right now, OLC IS unitary executive, pro-torture, pro-unconstitutional surveillance etc, so Obama doesn’t have to be “freed” to accomplish that, rather, he IS free on tha front. And yet, despite his abuse of OLC he can point to Johnsen as his bone to rule of law constituency. At some point, you either go along with the game or opt out of it and if you keep going along with it, you lose your own integrity. That’s the “to what end” of Johnsen withdrawing – it would be one person refusing to lose their integrity.
Right now, a voice that had been a strong and effective voice of Bush criticism sits mum and muzzled on the sidelines, waiting for Obama and Holder to remember to pat her on the head now and then. She need to be unmuzzled IMO, but YMMV. Somehow, mine seem to keep being the same ol miles, over and over.
Your last point bears repeating. While Johnsen’s nomination is pending, her mouth is wired shut. One of the Bush DoJ’s most vocal, articulate and credible critics is kept silent so as not to prejudice the odds of her approval by the Senate at precisely the point in time when her criticism would be most useful to those who actually wanted change, and most inconvenient to those who are staying the course.
That’s a tidy outcome for Obama. At some point, that will no longer suit his needs and her name will be withdrawn, the appointment will fail (owing to a lack of will from the White House), or she will get through, only to find the most important issues she expected to have a voice in have already been decided by a clique inside the White House. A game plan of Rovian smarminess that one would expect from Mr. Obama’s predecessor.
If that reading is correct, it would behoove Ms. Johnsen to keep her tenure, if she has it, and pursue her vocation without the political shackles Holder, Rahm & Co., would place on her. Then she’ll be a credible critic of the current administration, too, though it will have still shackled her with the “kiss of death” beloved of all employers: the status of a disgruntled former (or would be) employee.
I think that reading is correct and you have more clearly and emphatically stated a very central issue.
It’s certainly clear that Mr. Obama and his lieutenants dislike genuine, informed criticism only slight less than Mr. Cheney admired the contributions to the public dialogue sparked by Mr. Joe Wilson.
If she were consistent with her past performance, Ms. Johnsen could not but “inflame” the discussions within and outside the administration. Greg Craig would not appreciate such a voice at the OLC, nor would Rahm, as he attempts to stage manage Congress’ agenda, nor Mr. Holder, trying to pretend that he didn’t inherit the mare’s nest he must find on his desk every morning.
With the lump under the administration’s front parlor carpet higher than the davenport, what with everything shoved under it, Eric the Homemaker doesn’t want a new maid coming to work and rolling up the carpets to air things out, not with bipartisan in-laws coming to tea every afternoon.
DiFi throws her two cents in.
“The newspaper article quoted Rep. Rush Holt, D-N.J., who chairs the House Select Intelligence Oversight Panel, as being very concerned about the extent that conversations were over collected.”
That’s “over collected” like its a GOOD thing:
Just to be sure, we washed your car twice!
You can be fully confident in a job done right, because we double-bolt each chassis to each frame, then we do it one more time just in case!
Worried about coverage if you’re hit by a government vehicle? No need! Our policy is limit your all your future health care and other costs — by running over you repeatedly!
Brought to you by the good folks who spell ‘torture’ with an “e”, and an “i”, and a “t”.
Rep. Holt was actually putting some fire to the asses of the DOJ and NSA in his role as chairman of the House Select Intelligence Oversight Panel.
Maybe I wasn’t clear. There’s no indication that “over collected” was the Congressman’s term; if in fact he’d used it, we’d expect it to appear in quotation marks, like a quote or something. Rather this was Teh Times superimposing it’s thesaurus on whatever it was that Rep. Holt actually said, like in words he intended or something.
Understood. Sorry if my reply sounded snippy. I just wanted to point out that Holt is one of the few (incl. Feingold) who are trying to do something about the lawlessness.
And you are right, “overcollected” was the NYT’s paraphrase of Holt’s sentiments, not his own usage. I went back and looked at the original article from this morning’s paper:
No offence taken. And thanks for showing how consistently NYT has been in casting the government’s flaunting of the 4th amendment as “overcollection”; it kinda adds to both our points.
Thanks.
This morning the NYT further muddies the record:
As we both know, yesterday the NYT didn’t say that the word “overcollection” was a quote from a government spokesman.
Curious.
And this is just plain wrong:
The NYT didn’t expose the program in “late 2004″, it discovered it in 2004 and then covered it up until Dec. 2005. (After the 2004 election).
Clueless. Unfortunately I live in her jurisdiction.
Will something please happen that I can be proud of. ‘Cause this stuff ain’t it.
He will anyway, after he putzes about three or four more months without her and then claims the GOP’s position made her unconfirmable. It’s one thing for her to lose in a fair fight, quite another to be bet against by her manager before she gets in the ring.
I just listened to the vid and there is really no word I can think of to describe the weak whineyness of Holders “yeah” after Feingold’s
Poor Feingold, he’s like the one guy fighting Big Brother’s new “dictionary” where illegal just doesn’t mean what it used to mean anymore.
I sure hope Feingold, Durbin and Whitehouse have a private chat with Holder & his Boss.
If Feingold had asked Holder whether Sammy Sosa had violated the law by lying to Congress, I bet Holder’s answer would have been more firm.
Time for some more self- righteous bloviating by Congress … USA ! USA ! USA !
Not so sure, he might give Sammy a pass.
Holder’s frim represened the Rocket and he has recused himself…
http://sports.espn.go.com/espn…..id=3969443
A-AMEN .. a-amen ..a-amen ..amen ..amen ..
Is there a reason why Feingold focused on the word “illegal,” when Holder appears to have used the word “Unlawful?”
Wouldn’t Feingold have been wise to get Holder to admit to the EXACT word (unlawful), and then gotten him to define that word as meaning the same thing as “illegal?”
“Is there a reason why Feingold focused on the word “illegal,” when Holder appears to have used the word “Unlawful?”
Wouldn’t Feingold have been wise to get Holder to admit to the EXACT word (unlawful), and then gotten him to define that word as meaning the same thing as ‘illegal?’”
What is the difference between “illegal” and “unlawful?” For that matter, Holder made a point of saying he had said the spying was in “contravention” of or “inconsistent” with the law. If one “contravenes” the law one has broken it; if one acts in a manner “inconsistent” with the law, one has broken it.
One has acted…wait for it…”illegally.”
Holder’s used-car-dealer slipperiness was appalling to behold, and places him firmly in the ranks with Mukasey and Gonzalez as being nothing but whores who serve their pimp, the President of the United States.
There’s no avoiding the reality that Obama is a fraud, a cheap hack who serves the interests of the oligarchy, while presenting himself–and possibly actually seeing himslf–as some sort of paragon. Of course, this was apparent in his pre-election betrayal in voting FOR the revised FISA law. That act of servility to power guaranteed I would never vote for Obama.
Oh…is this where everybody is hangin’ out?
I’m still techno-nerding back on EW’s Dennis Blair’s Spokesperson: The Domestic Surveillance Program Violates the Fourth Amendment post.
Give us techno-nerds some email and we get punch-drunk! *g*
Really? Who knew!
Heh! And Captain Renault would be shocked. *g*
Someone has Obama’s number — either that or…
“….without the approval of Congress….”
The executive does not write the law or interpret the law. Congress makes law, establishes its purpose and intent and the Courts interpret law within constitutional parameters Mr. Holder. They broke the law Mr AG
The executive interprets the law in great measure as it writes regulations, makes decisions, determines which rules to defend in court, and so on. Only as you go further out the parabolic curve do cases get to court and result in more articulate, public interpretation.
Little late to for me to reply I understood your point. But in this instance, correct me if I’m wrong? “Was not FISA a “Congressional Response” to abuses of power, by the Executive?” Therefore considering the purpose and intent of the FISA legislation, to act outside FISA’s parameters, how can it not be a violation? How can the executive interpret a law clearly earmarked to rein it’s power? Thanks…
I agree with your point. FISA is a specific congressional response to perceived criminal acts by a former president, designed to prevent similar excesses by all executives in future. Bush and Cheney unlawfully ignored its requirements and destroyed evidence that it did so.
Since the 1970’s, when FISA was originally passed, the executive has accumulated more power generally. But only during the Bush II regime has the executive treated the Congress as if it were not a branch created in the Constitution’s first article, ahead of the executive. It did that in part by a faulty reading of its own powers.
In the American constitutional system, unlike the British, it is possible for the legislature to pass laws that the judiciary deems are unconstitutional and which are therefore void, in whole or in part.
If the executive determines legislation to be unconstitutional, ordinarily it works with the legislature to revise the legislation or it interprets it in a constitutional manner. As a last resort, it would take the matter to a federal court – over a specific “case or controversy” (US courts cannot issue advisory opinions) – so as to get the court to declare the law unconstitutional. That’s the expectation outside the Beltway.
Many here consider the Bush II regime to have acted unlawfully by failing to act in good faith in determining the constitutionality of legislation and in its interpretation the reach of its own constitutional powers, including the power to ignore federal laws inconsistent with its own sense of power.
The administration went to enormous lengths to avoid testing its assertions via the judicial process, deeming itself beyond the need to do that – because we were in DANGER!!! Or so it said. If the torture memos are examples of the substance behind its claims, the administration avoided the courts because it knew its claims would wilt the moment they were understood outside the West Wing.
You also raise an important point, in that all of this is well known inside the Beltway and on Capitol Hill. It suits their collective purposes to ignore it. Congress has thereby ceded, hopefully temporarily, a considerable portion of its power. The courts are only beginning to speak on this subject, which is why it matters so much what Ms. Sotomayor’s views are on executive power. As the saying goes, power is not given, it’s taken.
HIs testimony today is reason enough to call for his resignation. He is emulating Abu in so many ways. Obama is surrounded by either the best brains, hard at work, or he is not in charge. Which might best answer that one?
Hmmm..best brains? I don’t think so. The country’s going deeper into the ditch. They are *smart* in the sense of knowing how to break/bend the laws and keep the natives in line, while pursuing their nefarious ends.
Early in the “horse-race,” I pegged him as a puppet; a smooth, calming front man who could make the millions swoon with his soaring oratory and rhetoric that had everyone believing that he had actually just said something. He even claimed he was the empty screen on which people projected their hopes and dreams. So he knows the impact he has on Obamabots.
It took a lots of $ to bring down the Clintons. I don’t think the small donations were a big part of it.
IOW, I think he’s fronting the MIC. Furthermore, (here comes some TFH), I think there may have been a quid pro quo…Obama gets elected, bushco goes free.
One important addition to EW’s fine post here and to her excellent liveblog of AG Holder’s SJC appearance that’s worth our attention – via The Washington Independent:
(My Bold)
What the hell?
[that’s all I got…]
I would really appreciate it if they released statements on this topic that didn’t make me feel like we lost the last election.
I voted for government transparency, equal rights for all, not bombing Iran, an economic recovery plan that actually helped average Americans, withdrawing from Iraq, and a multitude of other issues that this administration isn’t even batting .500 on.
Where is this “most liberal Senator ever” the GOP was telling us about? ‘Cause I haven’t seen him since the campaign trail, and his appointments aren’t faring much better either.
Could our government be hiding something so odious that these “progressive” Democrats feel like they have their hands tied? It makes no sense to me.
I share your interest in the “why” behind the “what”. Why continue to stonewall?
Holder.
Huh.
No one saw that coming.
Oh, wait.
If this were just one case or a hand of instances but there is a steady drumbeat of weaselry coming out of this Administraton and this Congress. Definitely the weasel exemplifies this Presidency. Maybe they could use a picture of one in place of the Presidential seal.
OT and I’m in EPU land, but remember the whole NRCC embezzlement thing?
from TPM comments
http://tpmdc.talkingpointsmemo…..nt-3500767
Cynthia Hampton is the employee that Ensign was stepping out with. She was apparently the assistant treasurer prior to Ward getting fired.
slake your curiosity for the Why behind the What over at:
http://powerofnarrative.blogsp…..-baby.html
go where few Firepups dare to tread!
plenty of great essays over there, enjoy!
Your link doesn’t work.
Trudeau has not yet selected an icon for Obama. An icon of a weasel is too easy. Maybe a snake. Or something with a quisical look, as in clueless. Take note, Obama.
It gets worse by the day. I’m so fucking pissed at Obama I could spit.
The Cheney blackmail machine rolls on…
Very few politicians in D.C. seem to be un-compromised. Feingold is one of the few heroes in the senate. I give Holder about 8 months and he’s out. If he isn’t, or hasn’t changed his tune, Obama will be a one-termer and we can say hi to Jeb.
I am fast losing faith in Obama and his team: it’s like they don’t understand what is going on; or if they do, they are doing a truly horrible job justifying and explaining themselves to those voted them into office.
I know it’s only been a few months in office, but gaff after gaff after gaff and you start to think its intentional.