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McConnell and Mukasey Tell Half Truths

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One benefit of the process the Senate is using to develop a FISA bill is that, by rejecting the SJC bill then considering amendment after amendment that had been part of the SJC bill, we begin to learn what the government really plans to do with its wiretapping program, as distinct from what it has said it was doing (see Ryan Singel making the same point).

Recall that the administration has claimed, repeatedly, that its only goal with amending FISA is to make sure it can continue to wiretap overseas, even if that communication passed through the US. We always knew that claim was a lie, but the letter from McConnell and Mukasey finally makes that clear. Even still, they’re rebutting Feingold’s amendments–which they say “undermine significantly the core authorities” of the bill–with a bunch of misrepresentations about them, to avoid telling two basic truths (which Whitehouse and Feingold have said repeatedly, but which the Administration refuses to admit).

  • They’re spying on Americans and refuse to stop
  • They intend to keep spying on Americans even if the FISA Court tells them they’re doing so improperly

As I explained, the letter includes a list of amendments that, if they were passed, would spark a veto. Those include three Feingold amendments:

  • 3979: segregating information collected on US persons
  • 3913: prohibiting reverse targeting
  • 3915: prohibiting the use of information collected improperly

All three of these amendments share one overall purpose–they limit the way the government uses this “foreign surveillance” to spy on Americans.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence (one exception to the segregation requirement in the amendment is for “concerns international terrorist activities directed against the United States, or activities in preparation therefor”), even while they claim it would “diminish our ability swiftly to monitor a communication from a foreign terrorist overseas to a person in the United States.” In other words, the complain that one of the only exceptions is for communications relating terrorism, but then say this will prevent them from getting communications pertaining to terrorism.

Then it launches into a tirade that lacks any specifics:

It would have a devastating impact on foreign intelligence surveillance operations; it is unsound as a matter of policy; its provisions would be inordinately difficult to implement; and thus it is unacceptable.

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White House Writes Pre-Emptive Signing Statement on Exclusivity

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(Thanks to Selise for the YouTube)

Feingold: The DNI envisions a government where, if it were technologically feasible, would listen in on every, every international phone call made by its citizens. And read every, every international email. Now that’s a police state, Mr. President, not the United States of America.

The letter from Mukasey and McConnell to Congressional leaders is basically a laundry list of FISA amendments with the Administration’s opinion on those amendments. Here’s the quick summary.

Amendments that would merit a veto:

  • [no number] no communication collected if the govt knows beforehand that it is to or from a person believed to be in the US
  • 3913: Significant Purpose test
  • 3912: Specific Individual Target test
  • 3915: Limits disseminating foreign intelligence information
  • 3907: Straight immunity
  • 3927: Substitution of govt for defendants
  • 3919: FISC review on immunity

Amendments it doesn’t like but that wouldn’t merit a veto:

  • 3930: 4-year sunset
  • 3920: Court review of compliance with minimization

Amendments it very much likes (surprise! They’re both Bond amendments)

  • 3941: Expedited FISA review
  • 3938: Add language on WMD

A pre-emptive signing statement on exclusivity

We understand that the amendment relating to the exclusive means provision in S.2248 is undergoing additional revision. As a result, we are withholding comment on this amendment and its text at this time. We note, however, that we support the provision currently contained in S. 2248 and to support its modification, we would have to conclude that the amendment provides for sufficient flexibility to permit the President to protect the Nation adequately in times of national emergency.

My takeaway? If the Administration says it would accept a minimization review, I say we make it a priority; it would vastly improve the bill. I would love to see the “significant purpose” amendment pass, and have it serve as a poison pill. This Administration won’t even commit that their wiretapping really relates to foreign intelligence! Hell, they might as well say that a minor purpose of wiretapping Democrats is foreign intelligence, because Democrats have different foreign policy goals than Republicans. Also, there are a few of Feingold’s important amendments that don’t appear here. If BushCo don’t oppose them, then by all means let’s have more protection and oversight.

AG Claims Clear Evidence of Legal Liability Does Not Constitute a Basis for Investigation

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In two striking exchanges yesterday, Sheldon Whitehouse tried to get AG Mukasey to explain why DOJ was not conducting an investigation into the activities portrayed on the torture tapes. Whitehouse wondered whether DOJ had refrained from investigating the underlying conduct because those who engaged in the torture had authorization to use it. That amounts to the Nuremberg Defense, Whitehouse insisted correctly. In response, Mukasey suggested there simply was no reason to do an investigation. DOJ had never seen any facts, Mukasey claimed, that would warrant an investigation.

Whitehouse: Process question. In terms of advisory responsibilities, not going to investigate. You’ve disclosed waterboarding not part of CIA interrogation regime. Still leaves open torture statute whether there are concrete facts or circumstances, given that that evaporates, whatever it is it is. I’m trying to determine if that is taking place (the analysis), if you’re waiting for Durham’s investigation to look more into what happened. Or if there has been a policy determination made, that bc there has been a claim of authority, there will be no investigation. What is the process for coming to this decision.

MM: Facts come to the attention to the Department that warrant investigation.

But that’s not true, of course. We know DOJ received the results of the IG’s report on the CIA’s interrogation techniques.

OIG notified DOJ and other relevant oversight authorities of the review’s findings.

And we know that that report stated that the conduct depicted on the tapes amounted to cruel and inhuman treatment.

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say. Read more →

SJC Mukasey Hearing, Four

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Cardin: Sorry I’m late, Junior Senator from VT was babbling on.

[That’s okay, Bernie gets all the time he wants.]

Cardin: thanks for communicating. Waterboarding cannot be justified. If we try to justify it, it’ll be hard to defend American interests. I believe clarity is needed. It’s very difficult for us on Helsinki commission to explain what we’re doing.

Cardin: Immunity, I’d urge you to the precedent of giving retroactive immunity of further abuses, whether it would have a permanent damage on role of courts in protecting civil liberties of American people. We need to preserve the rights of our courts. I’d urge you to take a look at this to see if accommodation.

Cardin: Third point, sunset, you’re urging against. The Senate has a six year sunset, House two year, I have an amendment for four year sunset, I believe next administration needs to have a position on this.

Cardin: It’s important to keep Congress engaged in this to give whoever is engaged in FISA more cover.

Cardin: Election issues and Civil Rights, not enough attention. If 2006 is any indication, there will be efforts made to suppress minority voting. We’ve seen in past elections fraudulent material to intimidate minority voting. How will you make sure such things do not go unchallenged. We have a bill that would strengthen DOJ role. I would hope you’d give fair warning that such tactics will be challenged.

MM: Monitors to make sure there is access to ballots. Also a memo indicating that their sensitivities have to be heightened, and also bringing prosecutions that might be perceived as a prosecution to affect an election. Want to make sure it’s based ONLY on the facts of the investigation, not the timing of the election.

[Are you saying it was done in the past, Mike?] Read more →

SJC Mukasey Hearing, Part Three

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Leahy: Updates people in the stimulus package, and 15-day extension. So that’s why not everyone is here right now.

"Box Turtle" Cornyn: Office of Government Information Services, FOIA reform. Concerns about moving that office to DOJ, or somewhere else. I wanted to let you know I have reservations. My opinion is that the legislation forecloses moving the office.

"Box Turtle": FISA reform. 15-day extension is kicking the can down the road. Let me just talk about this in human terms. Talked to the father of soldiers who had been kidnapped by Al Qaeda. And his father says if we had an easy FISA law, his son might be alive. Do you think we need to make it easier for people to go through FISA?

[Shorter Box Turtle: I’m going to pretend, once again, that FISA forced a delay of wiretapping, when in fact it was just DOJ disorganization.]

MM: You put a human face on the problem we’re trying to prevent from recurring. We want to lower the burden on the govt in all its presentations to FISA just to make sure that what gets approved are procedures. I hope that DOJ acted with all the speed it could act.

[Interesting dodge by Mukasey, not agreeing that DOJ moved as fast as it could.]

"Box Turtle": I’m okay with a relative basis for torture.

MM: There are clearly circumstances where waterboarding is illegal. I’m not going to get into an abstract discussion of when it’d be legal. Nor am I going to call into question what people do or have done, when it’s not necessary to do so.

Whitehouse: In your analytical stance in your letter, you have assumed the role of a corporate counsel to the Executive Branch. You have taken steps to make sure nothing illegal has happened, but you are unwilling to look back and dredge up anything that may be a problem. That’s not a proper stance, you are also a prosecutor, Prosecutors do look back, dredge up the past, in order to do justice. It’s the mission statement of the DOJ to seek just punishment of those guilty of illegal behavior. Duty of USG, whose interest is that justice shall be done. The president has said we will investigate all acts of torture, you have said if someone is guilty of violating the law. [Cites code on torture] You are the sole prosecuting authority for that statute, the DOJ. Read more →

SJC Mukasey Hearing, Part Two

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DiFi: I’ve been reading your letter. For the first time you disclose that waterboarding is not part of the approved methods. You disclose the method by which a new method is approved. Was this the case in the past?

MM: I’m not authorized to say what happened in the past.

DiFi: It is widely alleged that at least three people were waterboarded. Did the President approve that?

MM: I can’t speak to that.

DiFi: Both MCA and Detainee Treatment act, loophole is CIA. I proposed amendment that would put the entire govt under Field Manual. Accepted by House and Senate. If it comes to floor and remains in bill, once and for all, waterboarding be prohibited by govt.

MM: CIA director becomes aware, however he becomes aware of a technique, describes circumstances by which it’ll be done, to me, I consult with whomever I have to consult with, then it goes to President.

DiFi: I know how they say it works, I don’t know if it’s legal or not.

DiFi: What about contractors?

MM: I don’t know?

DiFi: I’d like to know if it’s legal to contract out enhanced techniques to a contractor.

DiFi: Why hasn’t DOJ responded to Scott Bloch?

MM: There are investigations going on by OPR and OIG into those subjects. A response has gone out to Mr. Bloch is in process.

DiFi: After receiving no cooperation for four months, Mr. Bradbury reiterates the request that we step down. I assume there is some conflict with this.

[So this is coming from OLC? Wow]

MM: Bloch is in an office that is not within the department. I will see to it that he gets a response.

DiFi: Will you copy us on that?

Kyl: Thanks for writing us a letter. Can you send up a list of all vacant slots that this committee needs to act on? [plus lots of stuff about putting brown people in jail]

Leahy: In addition to the list of empty spots, will you also send a list of those spots for which we have not nominee, and a list of letters to which DOJ has not yet responded.

Feingold: Thanks for call regarding treatment of GLBT employees at department. You appear to be embracing the Administration’s position without judgment. You say you don’t want to say whether waterboarding is torture, bc it would tip off our enemies. We have a system of public laws. Your statement suggests you’d not prosecute a govt official for violating such laws. Read more →

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 →

Mukasey, Orwell, and Bradbury

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Keith Olbermann notes, with great dismay, that Michael Mukasey chose to hang a portrait of George Orwell in his office (the other portrait is Chief Justice Robert Jackson, which makes me quite happy).

This would be the original Reuters story. The operative part would seem to be the AG’s insistence that he esteems Eric Blair, AKA Orwell, for the clarity, not the subject, of his writing.

I’m still not sure I haven’t gotten a very specific "Your Worst Fear Suddenly Materializes In Real Life As A Matter-Of-Fact Wire Story" moment going on here. Or maybe it’s some sort of "You’ve Been A Good Boy: Here Is Six Weeks Worth Of Jokes, No Lifting Involved" thing.

For the record, I’m willing to take Mukasey at his word–that he esteems Orwell for the clarity of his prose and, just as importantly, for his understanding of the way politics demeans language.

In our time, political speech and writing are largely the defense of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism., question-begging and sheer cloudy vagueness. Defenseless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.

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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.

Boston’s Chief Judge: OPR Isn’t Doing Its Job

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The Chief Judge in Boston just sent Michael Mukasey a letter suggesting DOJ’s process for investigating and responding to misconduct from government prosecutors isn’t working.

The chief federal judge in Boston has urged the new US attorney general to crack down on prosecutors who commit misconduct and to force Justice Department lawyers to be truthful in court.

Chief Judge Mark L. Wolf, in an extraordinary letter to Attorney General Michael B. Mukasey, skewered the Justice Department’s mild and secret discipline of Assistant US Attorney Jeffrey Auerhahn in 2006 for misconduct that Wolf said required him to order the "release from prison of a capo and associate of the Patriarca family of La Cosa Nostra."

After a closed disciplinary hearing, US Attorney Michael J. Sullivan gave Auerhahn a letter of reprimand for withholding evidence while handling a racketeering case in the 1990s against members of the New England Mafia.

"The [Justice] Department’s performance in the Auerhahn matter raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors," wrote Wolf, who last July, after expressing frustration with his punishment, took the unusual step of asking the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against Auerhahn.

Wolf also wrote that "the department’s failure to be candid and consistent with the court has become disturbingly common in the District of Massachusetts." Read more →