Archive for category: emptywheel

Remember this photo? This particular version is from Stephen Crowley of the New York Times–it’s part of a slideshow they’ve got up to commemorate the demise of Turdblossom. Go look through the slideshow and tell me whether you think they’re emphasizing the centrality of scandal to Rove’s tenure (there’s a hot picture of Rove and Luskin in there, for example, walking out of Prettyman).

In addition to Crowley’s, there are a number of other versions of this photo. I’ve always wondered whether the photo (all versions of it) wasn’t intended as a key to the secrets of the Administration, one the insider journalists all know the meaning of but won’t share it with us.

Indulge me, for the moment, and pretend that it is such a key. Let’s review the status of the people involved:

Scottie McClellan: Will go down in history as the least credible shill since Ron Zeigler,  Scottie had the unenviable role of telling the press that he had talked to Rove and Libby and they had assured Scottie they had nothing to do with the Plame leak. Scottie left the White House in April 20, at the same time Rove lost his policy portfolio, and just days before Read more →

I’m still working through AGAG’s answers to a bunch of questions the Senate Judiciary Committee asked him last year (he only answered early this year). There’s an exchange involving Russ Feingold that is, I think, very instructive for understanding the recent FISA amendment.

You indicated at the hearing that the Administration has agreed to “submit” the program to the FISA court to rule on it if Congress passes the bill the Administration agreed to. If the FISA court were to review the program, would it do so in secret, and with only the government participating? Who would argue the case on the other side?

The Government is the only party to the ex parte proceedings for electronic surveillance orders under FISA (as is the case with respect to wiretap orders in criminal investigations under Title III and generally in proceedings to secure search warrants). Proceedings before the FISA Court are held in secret because of the nature and sensitivity of the information presented to the Court.

Feingold is talking about a different bill (Specter’s proposed bill from last year), but I think the answer is instructive. Not because it tells us anything we don’t know–yes, FISC’s proceedings are secret, yes, in a review before FISC, there will be no antagonist to the government arguing in favor of civil liberties.

But I think Feingold gets to the heart of issues that are also true for the amended FISA program. The review we’re talking about is inadequate because it doesn’t allow the public, or even another lawyer, to challenge the government’s program.

Both the WaPo and the NYT have stories today explaining how the crisis in the warrantless wiretap program got so bad that Congress got punked into passing a shitty bill. The story is simple, on its face. The FISC rejected a government subpoena in March, another in May, and those two rulings resulted in the government losing the ability to wiretap a great deal of foreign communication. Voila! The President gets to tell Congress it can’t take vacation.

But something’s missing from this process: the appeals process.

Like most legal decisions, FISA allows for a review process. If the FISC rejects a subpoena, the government can appeal that decision to the Foreign Intelligence Surveillance Review Court (FISRC). And if they uphold the rejection, the government can appeal to SCOTUS. Here’s how it works:

If [FISC] judge so designated denies an application for an orderauthorizing electronic surveillance under this chapter, such judgeshall provide immediately for the record a written statement of eachreason of his decision and, on motion of the United States, the recordshall be transmitted, under seal, to the court of review established insubsection (b) of this section.

[snip]

If [FISCR] determines that the application was properly denied, thecourt shall immediately provide for the record Read more →

You know how Thomas Friedman’s six months always seem to end up being indefinite forevers? Well, the reverse seems to be going on with Republican accusations that:

For months, congressional Democrats ignored warnings from Director ofNational Intelligence Michael McConnell that FISA’s antiquatedprovisions were tying the hands of U.S. intelligence agencies fromcollecting against terrorist communications.

In fact, it appears that Director of National Intelligence Mike McConnell actually sat on the information for months, from February or March until July, before leveling with Congress (if that’s what he did). The NYT reports:

At a closed-door briefing in mid-July, senior intelligence officialsstartled lawmakers with some troubling news. American eavesdropperswere collecting just 25 percent of the foreign-based communicationsthey had been receiving a few months earlier.

Congress needed to act quickly, intelligence officials said, to repair a dangerous situation.

That mid-July briefing came at least four months after a FISA Court judge denied (in February or March) a warrant on communications that the Administration could not verify took place outside of the United States. The Administration had first explained the problems to Congress in April, but held off describing the scope of the problem for three more months.

Intelligence Committee members acknowledged that they learned in Maythat the secret court ruling Read more →

Josh marvels at the (big surprise) latest galling corruption from a member of the Alaska delegation: Don Young snuck an earmark into a 2005 bill after it had been passed by both houses of Congress, but before Bush signed it.

The ‘Coconut Road’ earmark wasn’t in the bill passed by the Houseand Senate. I don’t mean it wasn’t in the original bills before theywent to conference (where the separate bills from the House and theSenate are reconciled into a single bill). It wasn’t in the final,reconciled piece of legislation passed by both houses of Congress after conference. 

But it is there now. 

So here’s what happened. Apparently Young added the text afterCongress had already passed it but before the president signed it. AsLaura McGann explainsin this post, this must have occurred during the process called "billenrollment" when revisions of grammar and technical but not substantivechanges are permitted to be made.

The president did sign the bill. But the portion apparentlyadded by Young, if I understand anything about our system ofgovernment, was never passed by Congress. So it means nothing.

He goes on to ask how common it is.

The details aren’t entirely clear from Laura McGann’s reporting on this. But the scheme may, in fact, be legal (or at least have legal precedent) based on a ruling issued by John Bates last year. At issue was a fiscal bill from the previous year, which passed in slightly different form in the House and the Senate. It included some politically controversial items (and passed only with typical Republican arm-twisting). So rather than pass the bill for real, BushCo just picked one and signed it into law.