FISA: The Coming Battle

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As I am minding the store while mom is away tilting kilts, I was party to a group discussion among several notable powers that be in the blogosphere early this afternoon, and the various blogs, all of which you are intimately familiar with, will be rolling out over the next few days somewhat of a battle plan on FISA/immunity. Nothing particularly new or shocking really, just a reminder to folks of the stakes involved and where the pressure points are that we need to address.

I wish I could say that there is some new brilliant, sexy and effective tact that we have lit upon to wipe this all away; but that, alas, is not the case. It will be back to the grindstone of calling, faxing and otherwise communicating with the key representatives etc. One thing I think will be critical is to offer plenty of carrots, with gentle reminders of the sticks. As you will recall, we got a surprisingly good response, and result, from the House Democrats in the last go round. We want to build, grow and reinforce that effort and result. The gathering proximity of the election is a double edged sword however. It is a chance for us to remind them of how favorably we view the last effort, but it is clearly also another opportunity for the Bushies to roll out the fear/security card and threaten the weak, and weakly situated, elements (read mostly Blue Dogs) of the Democratic coalition. It is going to be critical for those of us that actually live in districts represented by one of these souls to work them hard.

I have some things that will divide most of my attention for a few hours; although I will check in periodically as I can. In the meantime, use this space to discuss anything you feel important, but please start putting all the collective talent together to suggest ways and means for fighting the next stage of the FISA battle. My post from yesterday morning pretty much gives the lay of the land as it is understood at this moment; there are no real new baseline facts since then. Thanks.

Jello Jay And Hoyer Slither Back Into The FISA Limelight

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Crikey, this is getting old. You may have seen by now that rumors of a new push on passage of FISA, and, of course, full retroactive immunity, are bubbling to the surface in the last 24 hours. Here is Jane. Here is Digby. Here is McJoan. From Jane at FDL:

According to the ACLU, there is rumor of a backroom deal being brokered by Jay Rockefeller on FISA that will include retroactive immunity. I’ve heard from several sources that Steny Hoyer is doing the dirty work on the House side, and some say it will be attached to the new supplemental.

A few more facts and circumstances are available now than were in the earlier stories. For one, we apparently see the "urgency lever" being pressed this time around (there always seems to be one in these plays, it’s a feature). From Alexander Bolton at The Hill:

The topic has reached a critical point because surveillance orders granted by the director of national intelligence and the attorney general under the authority of the Protect America Act begin to expire in August.

If Congress does not approve an overhaul of the Foreign Intelligence Surveillance Act (FISA) by Memorial Day, intelligence community officials will have to prepare dozens of individual surveillance warrants, a cumbersome alternative to the broader wiretapping authority granted by the Protect America Act, say congressional officials familiar with the issue.

Maybe, but if so, then the situation is intentionally so from a designated plan by the Administration to have some of their programs start running out while they are still in office and can use the "urgency" to fuel their desperate push for immunity. The reason, if you will recall, is the little provision placed in the Protect America Act (PAA) allowing any surveillance order (i.e entire general program, not just individual warrants) existing at the sunset of the PAA, which occurred on February 17, 2008, to continue until expiration, which means that there was NO necessity that any program that the government wished to pursue expire anytime during the current Administration. I have reminded folks of this repeatedly, but here is a wonderful synopsis from Cindy Cohn of EFF:

The PAA provides that any currently ongoing surveillance continues until the "date of expiration of such order," even if PAA expires. "Orders" are what the PAA calls the demand for surveillance by the Attorney General or Director of National Intelligence (there’s no court involved). These surveillance orders can be Read more →

Two Days, Two Resignations

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And today’s (well, yesterday’s, but I was otherwise occupied) resignation is … DOJ Criminal Division Chief Alice Fisher:

Alice S. Fisher, chief of the Justice Department’s criminal division, said yesterday that she will leave government service at the end of the month after nearly three years overseeing major public corruption and corporate fraud cases.

[snip]

Her deputy, Barry M. Sabin, a former federal prosecutor in Miami, is serving in an acting capacity, and her chief of staff left for private practice earlier this year.

Justice Department officials said they are not ready to announce who will replace Fisher, who previously worked for several years at the law firm Latham & Watkins.

Fisher’s signature initiatives include a crackdown on corporate bribes and a new strategy to attack international organized crime.

No word yet on why Fisher is out, but JohnLopresti notes:

Reportedly, Robert Coughlin, who is former DoJ criminal division deputy chief of staff for Alice Fisher, last week filed and Judge Ellen Huvelle accepted, a guilty plea to conflict of interest charges for his work gifting and fundraising with Abramoff. As both DOJ’s public integrity section and the WA-DC US atty have recused, Baltimore Deputy US atty Stuart Goldberg is managing the case against Coughlin. The linked article says DoJ is mum about the process it used to select the Baltimore USAtty’s office to sub for the recused DC USAtty and the PublicIntegrity section, but sugggests associates involved in the matter may be at DoJ yet.

I don’t know whether I buy Lopresti’s suggestion (though it is a good suggestion). After all, if Fisher were about to be implicated in the Abramoff scandal, she probably would quit effectively immediately, not in three weeks.

But note how prominently Carrie Johnson highlights Fisher’s ties to corporate bribery–I wonder if that’s intentional? Corporate bribery … corporate bribery. Who is coming under threat because of DOJ’s investigation of corporate bribery???

I know! Bush’s "brother," Bandar bin Sultan. Read more →

Reggie Steps To The Plate And Stirs The Drink

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In baseball, one of the most charismatic players ever was Reggie Jackson; he was a great talent, bold and his own man. Always. Jackson was known as "Mr. October" for his ability to always come through in the clutch during playoffs and the World Series. Reggie was also a bit of a self promoter, and once referred to his place on the Yankee team by saying "I’m the straw that stirs the drink".

Well, here at this blog, we have our own favorite Reggie, Judge Reggie Walton of the DC District Court who presided over the Libby trial. While Reggie Walton is by no means a self promoter, quite the polar opposite actually, he is an immensely talented judge, is bold and is his own man. And, yesterday, he stirred things up a bit. In Milwaukee to give a speech on the importance of literacy and education, reporter John Diedrich of the Journal-Sentinel caught up with Walton for a few questions.

"The president has that authority and exercised it, and that has to be respected,"
….
"The downside is there are a lot of people in America who think that justice is determined to a large degree by who you are and that what you have plays a large role in what kind of justice you receive. . . . It is crucial that the American public respect the rule of law, or people won’t follow it."
….
Walton, who said he and his family were threatened after he handed down the sentence, said the time he gave Libby was at the low end of federal sentencing guidelines.

"I believe firmly you apply the law and apply it strictly," Walton said from his chambers in Washington. "I don’t give white-collar criminals a pass."

In so many words, Judge Walton is saying that President Bush directly undermined the rule of law in this country when he erased all responsibility and accountability for Libby from his criminal conduct. Judge Walton is absolutely right. And the worst part is, that by doing so, Bush was shamelessly covering up his, and Vice-President Cheney’s, own crimes. It is important that people not be allowed to forget this concept in the whirlwind of all the other Bush/Cheney blights on our society. Judge Walton has my thanks for making these statements, give him yours.

“It’s Not that Yoo Engaged in Really Bad Lawyering, Really It’s Not”

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I’m fascinated by this op-ed by David Rivkind and Lee Casey, arguing that we’re all beating up on poor little John Yoo because we believe international law should trump US law.

In truth, the critics’ fundamental complaint is that the Bush administration’s lawyers measured international law against the U.S. Constitution and domestic statutes. They interpreted the Geneva Conventions, the U.N. Convention forbidding torture, and customary international law, in ways that were often at odds with the prevailing view of international law professors and various activist groups. In doing so, however, they did no more than assert the right of this nation – as is the right of any sovereign nation – to interpret its own international obligations.

[snip]

That is why these administration attorneys have become the particular subjects of attack.

The central thrust of the op-ed is, of course, one giant shiny object. The role of international law has absolutely nothing to do with calls for Yoo to be held liable for his egregious opinions authorizing torture and warrantless wiretap. As I have pointed out, Looseheadprop has pointed out, and apparently Jack Goldsmith and other lawyers have pointed out, the problem was rather that Yoo ignored the key precedent in US law when he formulated his opinions. From Lichtblau’s book:

When Goldsmith and other Justice Department lawyers dusted off the early legal opinions on the NSA program, they were shocked to find that Yoo had not even factored into his legal analysis a seminal Supreme Court precedent on presidential power: the Youngstown steel case.

If I, a non-lawyer, can poke giant holes in Yoo’s legal opinions with a 30 second PDF search, then those opinions should clearly not be relied upon as valid. The question, though, is why the opinions were so shoddy: deliberate intent or incompetence? Using Rivkin and Casey’s assertion that Yoo is one of "the country’s finest legal minds," I have to conclude that the opinions are so shitty because Yoo could only authorize the things he did by ignoring US law–and that his effort to sidestep US law was indeed, an ethically and perhaps legally problematic act. The fact that Jack Goldsmith agrees with me about the shoddiness of these opinions–someone who fully agrees with Yoo about the appropriate role of international law in the US–proves that our complaints have nothing to do with international law.

So Rivkind and Casey are clearly trying to misrepresent to the WSJ’s readers what’s at issue here. Read more →

Kyl Agrees to IG Reform–but Sustains DOJ Lawyer’s Protection

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POGO has a review of the Senate bill passed Wednesday that will strengthen the independence of the nation’s Inspectors Generals. As it describes, John Kyl was able to water down some of the key provisions of the bill, but it does make some improvements. As someone who has struggled to find IG reports buried in DHS’ and DOD’s websites, for example, I’m particularly fond of this one:

All IG websites must be clearly and directly accessible from their agencies’ home pages, and IG reports must be posted within 3 working days of release.

No longer can agencies hide bad news by making the IG reports inaccessible.

I’m particularly intrigued, however, by one of the provisions that Kyl struck from the bill–a move to give DOJ’s IG authority to investigate the lawyers at DOJ.

Finally, Kyl’s amendment did away with Justice Department Inspector General Glenn Fine’s most cherished desire: that he be granted authority to investigate Justice lawyers accused of engaging in professional misconduct. Such allegations–as distinct from questions of fraud or abuse–are currently handled by the DOJ Office of Professional Responsibility (OPR), and Kyl, in a masterpiece of faint praise, announced that "there is no evidence that this Office’s reviews are anything less than adequate."

I’ve done posts on this here and here. The issue is important because, when Alberto Gonzales was attempting to spike any real investigation into the OLC authorization of the warrantless wiretap program and of the USA purge, he attempted to give OPR–and not OIG–the exclusive investigative authority. Recently, too, OIG had to refuse to investigate Yoo’s torture memos because it doesn’t have the mandate to conduct such investigations. As Glenn Fine explained the problem in testimony before the Senate:

Unlike all other OIGs throughout the federal government who can investigate misconduct within their entire agencies, the DOJ OIG does not have complete jurisdiction throughout the DOJ. Rather, the DOJ OIG can investigate misconduct throughout DOJ with one notable exception: the OIG does not have the authority to investigate allegations against DOJ attorneys acting in their capacity as lawyers – litigating, investigating, and providing legal advice – including such allegations against the Attorney General, Deputy Attorney General, and other senior Department lawyers. Instead, the DOJ Office of Professional Responsibility (OPR) has been assigned jurisdiction to investigate such allegations.

Read more →

Article I v. State Secrets

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Well, if nothing else, this al-Haramain case in CA looks like it’ll focus the issue of States Secrets just as the Senate attempts to curb it.

An Islamic charity group is challenging the Bush administration’s record use of the so-called state secrets privilege, dubbed a "killer bullet" to the group’s case over warrantless wiretapping.

Lawyers for the Oregon-based U.S. arm of the Al-Haramain Islamic Foundation on Wednesday urged a federal judge to toss out the government’s use of the privilege and let their lawsuit proceed.

The SF Chronicle captures the government argument in all its Kafkaesque glory.

A Bush administration lawyer resisted a San Francisco federal judge’s attempts Wednesday to get him to say whether Congress can limit the president’s wiretap authority in terrorism and espionage cases, calling the question simplistic.

"You can’t possibly make that judgment on the public record" without knowing the still-secret details of the electronic surveillance program that President Bush approved in 2001, Justice Department attorney Anthony Coppolino said at a crucial hearing in a wiretapping lawsuit.

[snip]

But Walker, in an extensive exchange with Coppolino, said Congress had spoken clearly in a 1978 law that required the government to obtain a warrant from a secret court before it could conduct electronic surveillance of suspected foreign terrorists or spies.

"The president is obliged to follow what Congress has mandated," Walker said.

Coppolino replied that Congress has also authorized the president to protect the nation and its military secrets.

[snip]

Walker pressed him on a more basic issue: whether Congress acted constitutionally when it required court approval for such wiretaps in the 1978 Foreign Intelligence Surveillance Act.

"I think it’s a bit of a simplistic question," Coppolino said.

"One might call it a fundamental question," the judge replied.

The government lawyer said that Congress "sought to intrude on the president’s authority to authorize surveillance" when it enacted the law, and that Bush, acting under his constitutional powers, had determined that its provisions were not sufficient to allow law enforcement authorities to thwart terrorists’ attack plans.

But Coppolino said the constitutionality of the law, and the related question of whether it is binding on the president, can’t be resolved without delving into operational details whose exposure would damage national security.

It looks like Coppolino’s argument will be worth reviewing in detail–to either laugh … or cry. Read more →

CIA And Bushco Have A Rather Large Criminal Obstruction Problem: The Torture Tapes Come Home To Roost

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By now, the story of the CIA’s destruction of the "torture tapes" is well known. Although the problems with the CIA, and every other portion of the Bush Administration, maintaining custody and control of evidentiary video and audio tapes is literally almost a running bad joke, the capstone revelation came with a December 6, 2007 New York Times article by Mark Mazzetti. Mazzetti’s article detailed the willful destruction by the CIA of videotapes directly exhibiting the use by US Agents of "extreme interrogation techniques" on detainees Abu Zubaydah and Abd al-Rahim al-Nashiri.

To refresh your recollection of the entire sequence of events on the Torture Tapes, here is a remarkably complete timeline. For the instant consideration, the critical event is the evidence supplied to date by the Bush Administration, and most significantly the CIA, on their rationale for the destruction of the Zubaydah and al-Nashiri tapes. The initial statement of the position and defense of the CIA is contained in CIA Director Michael Hayden’s message to the body of his agency, which indicates:

…CIA videotaped interrogations, and destroyed the tapes in 2005. I understand that the Agency did so only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative, or judicial inquiries–including the trial of Zacarias Moussaoui.

The official position has been further refined by testimony of CIA Acting General Counsel John Rizzo and the pseudo-proffer of Jose Rodriquez via his attorney Bob Bennett. We also know that, at a minimum, four White House lawyers were involved in discussion of the proposed destruction of the tapes. The most recent evidence of the government’s position is contained in sworn statements by CIA officials made in mid-April in the Rashid Abdullah case, again positing nothing but good faith and lack of knowledge of any compelling reason to preserve the tapes.

However, yesterday, an insufficiently noticed page A-16 story by Dan Eggen in the Washington Post, appears to put the lie to the defenses the Administration has posited to date and raise serious issues in relation to intentional, malicious destruction of evidence and obstruction of justice. The Post article relates information gleaned from recent CIA/Administration filings in a Freedom of Information Act lawsuit filed last June. From the Post:

The CIA concluded that criminal, administrative or civil investigations stemming from harsh interrogation tactics were "virtually inevitable," leading the agency to seek legal support from the Justice Department, according to a CIA official’s statement in court documents filed yesterday.

The CIA said it had identified more than 7,000 pages of classified Read more →

The Pentagon’s Media Analyst Domestic Psy-Ops Program: Is It Legal?

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By now you have probably heard that the New York Times has an in-depth piece by David Barstow out for Sunday’s edition on the use by the Pentagon of media "military experts" as propaganda conduits.

It would be nice to be able to say that the revelations in Barstow’s article are shocking, but they are not. Spin and propaganda have, from the outset, been more important to the Bush Administration than efficient and effective performance and truth. This already looks to be a big deal around the blogosphere, everybody will be discussing the general parameters of the story. Dave Neiwert serves up a dissection at FDL (and do click through his links here and here to his earlier pieces at Orcinus in 2004 on Bush Administration psy-op propaganda, they are excellent).

Beyond the face value of the NYT article, however, lurk some more interesting issues. Marcy has, as usual, immediately found one in relation to the spotty history of the NYT on Bushco propaganda, most notably in regard to Judith Miller and the case for the Iraq War (can you say "Sweet Judy Blew Lies"? I can). Here is mine; we know this Pentagon propaganda scheme is crass and loathsome, but is it legal?

Arguably, the answer is no, it is not legal; of course, as we have seen time and again, that is never an impediment to the Bush Administration. And, as with so many other Bushco ills, we have a template for analysis because they have made a pattern and practice of crossing the line of propriety in Read more →

Lyglenson Lemorin and the Liberty Seven

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As a number of you have pointed out, the judge in the second (!) Liberty Seven trial just declared another mistrial. The government’s second failure to convince a jury that these "aspirational terrorists" were a legitimate terror threat has elicited increasingly critical comments:

University of Miami law professor Bruce Winick:

But Bruce Winick, a law professor at the University of Miami, said the second jury stalemate “tells a story. The jury doesn’t trust the government’s credibility here. It’s a trumped-up, overblown case.

”We’re paying the freight for prosecutors, defense lawyers, judges, jurors — everyone,” he added. “Don’t we have better things to do with our criminal justice system than to make the defendants run the gantlet over and over again?”

Former USA Matthew Orwig:

"There’s no way to spin this other than to say this is another stunning defeat for the government," said Matthew Orwig, former U.S. attorney in Texas who served on a Justice Department terrorism and national security panel.

Stanford law professor Jenny Martinez:

“In a lot of these cases, the government has really oversold what it’s got,” said Jenny Martinez, an associate professor of law at Stanford who was involved in the Jose Padilla terrorism case. “They’ve held these huge press conferences at the beginning that set up these expectations that the government cannot fulfill.”

Yet, in spite of the increasing criticism of the government’s case, it appears that one man has already served several months of time for this case. The defendant who was acquitted in the first trial, Lyglenson Lemorin, was rounded by Immigration and Customs Enforcement, and is (as far as I can tell) still in custody awaiting possible deportation.

Lemorin was spirited away from FDC, Miami and transferred to the Stewart Detention Center in Lumpkin, GA, by unknown government agents in the dead of night under secretive circumstances.

Apparently, the government has put Lemorin into deportation proceedings and has asserted in public documents, submitted after the gag order, that "Lemorin has liability in uncharged criminal conduct." That claim presumably makes Lemorin subject to a PATRIOT Act provision that provides the government broad leeway in deporting those with terrorist ties.

Lemorin is a legal US resident who grew up in the US, is married, and has two kids.

Read more →