Mukasey and Contempt

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Even more than Mukasey’s woozy answers on waterboarding, I’m disturbed by his opinions on executive privilege and contempt, partly because I suspect Mukasey would make sure no waterboarding happened going forward, and that his answers on waterboarding are designed primarily to avoid putting those who waterboarded–or signed off on it–in the past at legal risk. But Mukasey’s opinions on executive privilege appear designed to protect the White House from any consequences for the USA purge. They appear ready to shore up the firewall preventing further investigation of Rove and Bush.

When Pat Leahy asked Mukasey about executive privilege, Mukasey suggested that DOJ couldn’t prosecute Harriet or Josh Bolten or Turdblossom for contempt, because they relied on a DOJ opinion in deciding not to testify.

LEAHY: Judge, I want to go back to your last answer to me yesterday. And you and I discussed this a little bit outside.

Yousaid a U.S. attorney could only refer a contempt citation of Congressto a grand jury as required by law if he or she believed reliance onthe president’s executive privilege claim was unreasonable.

Ihave some trouble with that. I don’t think that rules on claims ofprivilege when they’re raised by — whether they’re reasonable, butwhether they’re valid — so let’s talk a little bit about this. IfCongress were to refer a contempt citation — and there is a realprobability there will be some as a result of the U.S. attorney scandal– you’re indicating that the U.S. attorney would undertake anindependent analysis, assess the claim of privilege, in determiningwhether to bring the matter before a grand jury.

Is that right?

MICHAEL MUKASEY, NOMINATED TO BE U.S. ATTORNEY GENERAL

Well, let me flesh out a little bit what I understand the process to beand to have been, and maybe put a little bit of flesh on the bones ofmy answer.

As I understand it, when the White House gets asubpoena, they refer it to the Department of Justice, as, in fact,happened here, because I was shown the letter from Paul Clementrelating to the assertion of the privilege.

If the White Housethen, relying on that letter, I mean, if the president, since he is theonly person who owns the privilege, if he, relying on the JusticeDepartment, asserts the privilege and there is, nonetheless, a contemptcitation, we’re in the position where the Department of Justice wouldhave to prosecute someone who followed the advice that originated withthe Department of Justice.

I am told that there are not one,but two, opinions of the Office of Legal Counsel, one of them from TedOlson, and the other from a man I know and whose name I can picture,and I can’t come up with it now, who served in the Clintonadministration, who I referred to yesterday. I’m sure I’ll think of itafter I leave here.

But, anyway, there are two OLC opinions, saying that that would not be appropriate and…

LEAHY: What would not be appropriate?

MUKASEY:That for the U.S. attorney to prosecute someone for a contempt, basedon reliance on an opinion letter that originated in the Department ofJustice, would not be appropriate.

So basically, Mukasey is arguing that DOJ can’t enforce contempt of Congress, because DOJ has already told the White House officials that they won’t be held in contempt. If you look at his written answer to this question, you see why–if DOJ told the White House official they could invoke executive privilege, there would be no way to prove criminal intent, and therefore no reason to call a grand jury.

Exxon Would Like to be Excused

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Back when I taught, at the beginning of the school year each year the school would hand professors a description of the incoming freshman class so the professors could understand what world their students were coming from. It usually read something like:

2007: This year’s incoming freshmen were born in 1989.

The top TV series for most of these students’ teen years was American Idol.

These students matured after the first big judgments against online file-sharing.

During these students’ freshman year of high school, the first legal gay marriages were performed in this country.

The Exxon Valdez disaster happened the year most of these freshmen were born.

I made up the whole list (though I think I’m close on most counts)–and my ignorance of current pop culture has been pretty well established. But my point was to contextualize the Exxon Valdez disaster which did, indeed, occur the year that most incoming college freshmen were born. It’s been 18 years, and the interim years have seen record-smashing profits for Exxon, not to mention two wars to ensure our access to oil in the Middle East.

But Exxon is still fighting the fines imposed on it for the disaster.

The Supreme Court today agreed to hear an appeal by Exxon Read more →

Patrick Philbin

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SJC will meet on Wednesday to take up SSCI’s FISA Amendment. We’ll get to see whether the Administration has sufficiently satisfied Scottish Haggis and Patrick Leahy to get the bill through committee with the telecom immunity still attached.

But there may be other reason to tune in, something I noticed on Selise’s weekly Congressional hearing schedule:

Panel I:

Kenneth L. Wainstein, Assistant Attorney General, NationalSecurity, Division, U.S. Department of Justice

Panel II:

Edward Black, President and CEO, Computer & CommunicationsIndustry Association, Washington, DC

Patrick F. Philbin, Partner, Kirkland & Ellis, Washington,DC

Morton H. Halperin, Director of U.S. Advocacy, Open SocietyInstitute, Washington, DC [my emphasis]

Patrick Philbin will testify. They’re bringing in the last of the major participants in the hospital confrontation, which means we may well get one more version of how the White House bypassed DOJ–and the legal means of authorizing wiretapping–and had Alberto Gonzales authorize the wiretapping program himself.

Hopefully, Philbin will also explain how David Addington intervened to make sure Philbin was not promoted, all because he upheld the rule of law. That might be a really pointed way to show that the telecoms’ participation in the wiretap program–in spite of the absence of AG authorization–did have consequences.

The Dodge on Retroactive Immunity

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Okay. This will serve as a summary of my analysis of the SSCI report on their FISA bill and to show how the SSCI managed to convince themselves to give retroactive immunity to the telecoms. Thus far, I have shown that:

Now, as I said, the SSCI pretends they have to give telecoms immunity because mean old George Bush invoked State Secrets, leaving the telecoms with no way to protect themselves against lawsuits. But they use one more dodge to rationalize giving the telecoms immunity.

As SSCI points out, the telecoms would be immune from prosecution if they had been authorized to conduct wiretaps under 18 U.S.C. §2511(2)(a)(ii).

Under the existing statutory scheme, wire or electroniccommunication providers are authorized to provide information andassistance to persons with authority to conduct electronic surveillanceif the providers have been provided with (1) a court order directingthe assistance, or (2) a certification in writing signed by theAttorney General or certain other officers that ―no warrant or courtorder is required by law, that all statutory requirements have beenmet, and that the specific assistance is required.‖ See 18 U.S.C. §2511(2)(a)(ii).

I’ve bolded those words, "or certain other officers," to emphasize that Jello Jay and the Republicans didn’t actually specify what the law says. So let’s look at the law, shall we?

Minimization, the Whitehouse Way

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Back from my pancake and sausage-inducted coma! Mmm pancakes. I’ve got just two more points about this SSCI report, then I’ll let it drop and go clean the house.

A lot of people have been asking why Sheldon Whitehouse voted for the SSCI bill on FISA, even though it offers the telecoms retroactive immunity. While I can’t answer that, I do suspect Whitehouse (who, after all, is the only rookie on the SSCI team) is picking his battles. And Whitehouse is fighting a battle that matters going forward: minimization. Minimization is the process by which the government makes sure that any information on non-targeted US persons collected in the course of wiretapping someone else gets hidden and, eventually, destroyed. Minimization is actually something Republicans at least say they back. But it’s one of the big things that Mike McConnell found intolerable in the House version of FISA back in August.

What McConnell found intolerable in August basically amounted to giving the FISC the power to review the government’s compliance with its own minimization requirements. Rather than having court review, the Administration insisted on a bill that had minimization requirements, but no way to enforce them. The current bill is better–it requires the Inspectors General of DOJ and any relevant Intelligence Community agencies to review their own compliance with minimization requirements.

The Inspectors General of the Department of Justice and of any element of the intelligence community authorized to collect foreign intelligence under subsection (a)–

(A) are authorized to review the compliance of their agency or element  with the targeting and minimization procedures as required by (e) and (f)

And then, presumably using those reviews, the Director of National Intelligence and the Attorney General report semi-annually on that compliance to the FISC and Congress. That’s better than what we’ve got.

But Whitehouse believes (and I agree) that’s not good enough. Whitehouse aims to amend this bill in SJC to give FISC–not the IGs of the respective agencies–the review authority.

Why Do They Need to Spy on Americans Overseas without a Warrant?

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Mr. emptywheel has started on the pancakes, finally, but I’ve got time for one more post.

According to public reports, Bush has threatened to veto SSCI’s FISA bill as written. That’s because of an amendment submitted by Ron Wyden which requires the Administration to obtain a FISA warrant if they want to wiretap an American overseas. The additional views in the SSCI report on the bill reveals some of what we can expect as we go forward with this debate.

In his description of the amendment, Wyden (writing with Russ Feingold) makes it clear that the Attorney General should not be able to determine, by himself, that someone is an agent of a foreign power.

One amendment, which we offered along with Senator Whitehouse, ensures that whenever the government wants to target an American overseas, the FISA Court – and not just the Attorney General – must determine that there is probable cause that the American is an agent of a foreign power. Americans’ rights should not diminish when they cross the border, nor should the extent of those rights be subject to the whim of the executive branch without the checks and balances provided by the court.

Sheldon Whitehouse, in his longer description of the amendment, also emphasizes judicial review of who is an agent of a foreign power.

I cosponsored and strongly supported an amendment, proposed by Senator Wyden, and approved by the Committee, that requires the Government to obtain a traditional warrant from the Foreign Intelligence Surveillance Court (FISC) if the Government wants to collect, from a source within the United States, against an American overseas. The amendment also requires that, in order to collect surveillance overseas on a U.S. citizen traveling or living overseas, the Government obtain a determination from the FISC that the targeted U.S. citizen is a foreign power or the agent of a foreign power. Furthermore, the FISC must issue an ex parte order approving this surveillance. These changes are critical to ensuring that the new warrantless surveillance authority enacted under the Protect America Act does not allow the Government to intrude inappropriately upon the privacy of U.S. citizens. Nonetheless, the Administration has already signaled that this amendment may create certain challenges that need to be resolved. If the Administration intends to propose an alternative, it must preserve the Court’s role in determining whether there is probable cause to believe the U.S. citizen is a foreign power or an agent of a foreign power. U.S. citizens do not, and should not be expected to, leave their privacy rights behind every time they leave the United States.

But that judicial review is apparently a problem for Republicans (or at least Bond, Hatch, Chambliss, and Warner), who think we should just trust in the good intentions of the intelligence community and the Attorney General.

Shorter SSCI: The Immunity Is Really for Qwest

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Nope. Mr. emptywheel hasn’t made me my pancakes yet.

SSCI’s report on the FISA Amendment uses remarkable logic for their justification for retroactive immunity.
It argues that, because the Administration has invoked State Secrets in all the suits against the telecoms, the poor telecoms cannot mount any kind of defense–cannot even prove their innocence, in the case of companies that refused to participate in the warrantless wiretap program. And so, they must be granted retroactive immunity.

Under the existing statutory scheme, wire or electroniccommunication providers are authorized to provide information andassistance to persons with authority to conduct electronic surveillanceif the providers have been provided with (1) a court order directingthe assistance, or (2) a certification in writing signed by theAttorney General or certain other officers that ―no warrant or courtorder is required by law, that all statutory requirements have beenmet, and that the specific assistance is required.‖ See 18 U.S.C. §2511(2)(a)(ii). Current law therefore envisions that wire andelectronic communication service providers will play a lawful role inthe Government’s conduct of electronic surveillance.

Section 2511(2)(a)(ii) protects these providers from suit as long astheir actions are consistent with statutory authorizations. Onceelectronic communication service providers have a court order orcertification, ―no cause of action shall Read more →

They’re Using AUMF in Their Justification for Warrantless Wiretapping

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I’m going to have a whole slew of posts on this SSCI report on their FISA bill(you’ll all be hoping mr. emptywheel gets up and distracts me withpancakes, no doubt). In this post, I want to show the language thereport uses to privilege the Authorization to Use Military Force. In it’s description of the basis for the program, the report depicts the warrantless wiretapping program as distinctly military.

TheNSA program was described by the Department of Justice in January 2006as ―an early warning system…to detect and prevent the next terroristattack…a program with a military nature that requires speed and agility.

It then invokes the AUMF explicitly–though it doesn’t quite say that the AUMF authorized the program.

After the attacks of September 11, 2001, Congress passed a jointresolution on September 14, 2001, declaring that the attacks ―continueto pose an unusual and extraordinary threat to the country and callingon the President ―to use all necessary and appropriate force againstthose nations, organizations, or persons he determines planned,authorized, committed, or aided the terrorist attacks that occurred onSeptember 11, 2001, or harbored such organizations or persons, in orderto prevent any further acts of international terrorism against theUnited States . . . . Authorization for Use of Military Force, Read more →

About that Need for a Whistleblower Law…

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I believe it was just the other day when I was saying it was more urgent to implement whistleblower protection than to write a new journalist shield law. This doesn’t change my opinion in that regard.

This summer the House Judiciary Committee launched an effortto collect tips from would-be whistleblowers in the Justice Department.The U.S. attorney firings scandal had shown that much was amiss in theDepartment, and with the danger of retaliation very real, the committeehad set up a formon the committee’s website for people to blow the whistle privatelyabout abuses there. Although the panel said it would not acceptanonymous tips, it assured those who came forward that their identitywould be held in the "strictest confidence."

But in an email sent out today, the committee inadvertently sent theemail addresses of all the would-be whistleblowers to everyone who hadwritten in to the tipline. The committee email was sent to tipsters whohad used the website form, including presumably whistleblowersthemselves, and all of the recipients of the email were accidentallyincluded in the "to:" field — instead of concealing those addresseswith a so-called blind carbon copy or "bcc:".

See, if we didn’t force our whistleblowers to sneak around so much, this wouldn’t be the monumental fuck Read more →

Hot and Cold Running Classification

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According to the NYT, the White House has very generously allowed the entire SJC to view the documents justifying the domestic wiretapping program–at least that’s what Tony Fratto says.

The White House on Thursday offered to share secret documents on the National Security Agency’sdomestic surveillance program with the Senate Judiciary Committee, astep toward possible compromise on eavesdropping legislation.      

Fred F. Fielding, the White House counsel, offered to show the documents to Senator Patrick J. Leahy, Democrat of Vermont, the committee’s chairman; Senator Arlen Specterof Pennsylvania, the ranking Republican on the committee; and staffmembers with the necessary security clearances, said Tony Fratto, aWhite House spokesman.

Mr. Fratto said that if Mr. Leahy and Mr.Specter so wished, other committee members would be granted clearancesfor the N.S.A. program and permitted to see the documents. Aspokeswoman for Mr. Leahy, Erica Chabot, said he would make sure theentire committee had access. [my emphasis]

If Chris Dodd’s stance on FISA has succeeded in one thing, it has been to ratchet up the pressure on the Administration to negotiate … or at least as close as it comes to negotiating. But that negotiation does not extend to the House, which won’t get to see the family jewels until it agrees to negotiate on retroactive immunity.

Neither the House Intelligence Committee nor the House JudiciaryCommittee has been shown the documents. Mr. Fratto noted that a billpending in the House contained no provision for immunity from lawsuitsand suggested that unless that changed, the House committees would notsee the documents.

“If the committees say they have no interestin legislating on the issue of liability protection, we have no reasonto accommodate them,” he said.

Now, this is particularly troubling, since those on HPSCI do have clearances to see lots of secret stuff, and since before the August 4 debacle of a FISA amendment, the House side was getting all the briefings, whereas SJC received none, as a committee. As Marty Lederman notes, this is proof–as if you needed any after Dick Cheney declared himself Fourth Branch–that this Administration is playing big fat games with classification.