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On PATRIOTs and JUSTICE: Leahy’s PATRIOT Renewal

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The House and Senate had hearings on the reauthorization of the PATRIOT Act last week while I was traipsing around the Big City. You can access links to watch the Senate hearing here and the House hearing here. In addition, four Senators (including Feingold, Dodd, Leahy and Merkley) have introduced a bill to repeal telecom immunity, and Senators Feingold and Durbin introduced a JUSTICE bill to further roll back the PATRIOT Act as well as parts of FISA.

I’m going to try to do a blizzard of posts between now and Thursday, when the Senate Judiciary Hearing will be marking up its version of the bill. For now though, let me review what Leahy’s reauthorization bill–S.1692–does. As described by Leahy in his testimony, the PATRIOT reauthorization extends the sunset for some PATRIOT provisions to 2013, but adds in additional oversight as follows.

I introduced a bill with Senators Cardin and Kaufman that aims to strike the kind of balance the administration urges. It will extend the authorization of the three expiring provisions with new sunsets. It adds checks and balances by increasing judicial review of Government powers that capture information on U.S. citizens. It expands congressional oversight and public reporting on the use of intrusive surveillance measures.

[snip]

In response to these concerns, our bill would impose higher standards on the issuance of NSLs and improve judicial oversight of their use. The bill also addresses the constitutional deficiency recently identified by the Second Circuit Court of Appeals, which found that the nondisclosure, or "gag orders," issued under NSLs infringe constitutional rights, as I have long maintained. The bill establishes a procedure giving the recipient of an NSL greater ability to challenge a gag order, eliminates presumptions that allow the Government to ensure itself of victory in defending such orders, and imposes a renewable one-year time limit on these orders.

[snip]

The power of the Government to collect records for tangible things under Section 215 of the original Patriot Act, commonly referred to as the "library records" provision, is another authority that I fought hard to reform during the last reauthorization. The Leahy-Cardin-Kaufman bill adopts the appropriate constitutional standard that I supported in 2006. The standard we propose eliminates the presumption in favor of the Government and, instead, requires the Government to show the connection between the items sought and a suspected terrorist or spy.

This bill would also establish more meaningful judicial review of Section 215 orders and the gag orders covering them. Read more →

“New” State Secrets Policy “Smoke and Mirrors”

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That’s what a spokesperson for the Center for Constitutional Rights had to say about Eric Holder’s new State Secrets policy: that it’s just "smoke and mirrors."

The ACLU is similarly unimpressed. Ben Wizner, of the ACLU’s National Security Project, says,

On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ‘state secrets,’ and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of ‘national security. 

Congressman Nadler welcomes some of the changes but promises to continue pushing a State Secrets bill through Congress.

These new requirements, particularly the requirement for the Attorney General to approve any state secrets claim only after reviewing information and determining whether the disclosure of such information would cause significant harm to national security, are significant steps toward improving the use of the state secrets privilege. I also applaud the Attorney General’s positive declaration that the state secrets privilege cannot be used to conceal unlawful conduct by the federal government or to prevent the exposure of embarrassing details. Another important change is the mandatory referral to the Inspector General of any case in which assertion of the state secrets privilege raises credible concerns.

These are all critical steps toward transparency and increased due process, and I believe that the Obama Administration has undertaken them in good faith, with both national security and justice in mind. Nevertheless, these reforms fall short of what is necessary. There is still no prohibition against dismissing entire cases from the outset, before the courts and parties have an opportunity to determine whether the information at issue is subject to the privilege and, if so, whether a case can proceed regardless.

We must not understate the extent to which the abuse of the state secrets privilege poses a major threat to our system of justice. Read more →

Holder SJC Oversight Hearing Liveblog

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Leahy talking about the things that Holder has accomplished: improvements in civil rights, recovery funds to law enforcement. Talks about the things that need to improve: state secrets, press, healthcare fraud, hate crimes. Troubled about continuation of Bush Administration’s practice of invoking state secrets to shut down wrong-doing. Access to courts is important. Safely and effectively closing Gitmo. Reviewing the bad terrorists that we have held: Timothy McVeigh, Sheikh Adbul Rahman, Zacarias Moussaoui.

"The idea that we cannot find a place to house 250 detainees is not rational." 

Leahy calling on hate crimes bill. 

Sessions: Starts by talking about details of Sotomayor’s confirmation hearings. Disappointed–put Constitution and rule of law above politics. I don’t think the actions we’ve seen so far are consistent. I find myself reading about political appointees who have overruled career attorneys. Rejected OLC that Congress’ recent legislation on DC voting was unconstitutional. [Well, Sessions, if you would approve Dawn Johnsen, then maybe Holder would listen to OLC?] Pressure from the left when you allowed DOJ to release OLC opinions on torture. 

[blah blah blah: Sessions demagoguing.]

[career attorneys career attorneys career attorneys–Sessions is pretending that these people weren’t burrowed in by Rove and Cheney]

[pre-9/11 pre-9/11 pre-9/11 pre-9/11]

Jeff Sessions pronounces it "Fo-Toes."

Holder: Highest priority to protect against acts of terrorism. Close Gitmo. Southwest threat–drug cartels. Civil Rights. Foreclosure scams. Finance fraud. Healthcare fraud.

Leahy: Black Panther. I understand a career employee made the final decision of which people to charge. I thought I’d point that out–want to have the facts here. Injunction against person who was intimidating on decisions. [huh?] President’s nominee in Civil Rights. [Don’t know if he said OLC too] Holocaust shooting. Open and classified filings, number of hate crimes and positions more vile. 

Holder: If any doubt about need for legislation, wiped out by Holocaust and other hate crimes. 10 years ago I testified in favor of this bill. Expands scope of federal hate crimes to include gender, disability, sexual orientation. 

Leahy: NYT’s latest story on wiretapping. I don’t know how we justify continuing these expansive authorities, even expanded authorities being abused.

Holder: Work closely to ensure that national security conducted consistent with legal authorities. Framework that we always try to follow. Congress establishes safeguards. "really strict guidelines."

Leahy: The more we find out, not from the intelligence agencies, not from government, but NYT, we get it quicker, more detail, and we get the crossword puzzle. I don’t know how Read more →

Senate Judiciary Hearing on Torture

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 Here’s the committee stream.

Whitehouse: [link] Winston Churchill, truth always attended by bodyguard of lies. Sordid truth of torture accompanies by bodyguard of lies. Lies are legion. Bush told us America does not torture. Cheney agreed that waterboarding a dunk in the water. Former CIA said waterboarding once. Waterboarding determined to be legal, but not told how badly law ignored and bastardized, how furiously lawyers rejected OLC opinions. Couldn’t second-guess CIA officers, now told led by contractors with a profit motive. [Enters Hayden statement on experience of torturers into record] I believe Judge Mukasey and General Hayden owe experienced interrogators an apology. Example of Zubaydah is false, as information given before torture. No accounting of wild goose chases. Legislators can’t declassify. Though many of us in Congress knew lies were false, we could not reply. You criminalize conduct by making it illegal. Prosecution does not criminalize conduct, it vindicates it. First of series of hearings. I hope we’ll soon be provided the OPR report, and hold more thorough hearings. How sad it is that there should be an OPR investigation into OLC. Thank Leahy for holding this hearing. Thank Feinstein, leading detailed investigation into Bush’s interrogation program. Ali Soufan. Interviewed al Qaeda terrorists, threats have been documented, avoid photographing his face.

Graham: Nobility of the law or political stunt. I guess if we’re going to talk about evil, we’re going to have to talk about more than just the last Administrations efforts to fight evil. Would we have this hearing if we were attacked this afternoon? Or would we focus on repairing damage and staying ahead of enemy. We need to find out who was told and when. I’m calling for any memos that show information gathered from EIT be made available to the Committee so we can see what worked. Many years after 9/11. The people we’re judging woke up one morning and said, "oh my god, what’s coming next." I’ve been a prosecutor most of my life, I know the difference between political disagreement and a crime. The idea that you’d consult your political opponents with a crime.  As to Army Field Manual, to say that is the only way to interrogate is just not right. Let’s bring CIA director into this hearing, he has already testify he would ask for techniques not in army field manual. Read more →

Call for the Senate to Vote for Process at OLC–and Dawn Johnsen

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Update: Predictably, Arlen "Scottish Haggis" Specter put a one-week hold on Dawn Johnsen. Call Specter at (202) 224-4254 and tell him to stop obstructing Obama’s nominees. It’s time we cleaned up OLC and Specter’s just ensuring the Cheneyesque abuse of power will continue for a few more weeks.

In short time, the Office of Professional Responsibility will release a report on the abuses of John Yoo at OLC. The report will describe a process which Yoo used to "analyze" law that looks something like this:

  1. David Addington calls Yoo and tells him what program Cheney wants to do–or has already started doing
  2. An official request for a memo comes from Alberto Gonzales or Jim Haynes, presenting that desired program as a hypothetical–"what if we wanted to do X"–rather than the fait accompli Addington presented it as over phone or email
  3. Yoo drafts a memo authorizing that program
  4. Yoo eliminates or otherwise frivolously dismisses references to key precedents like Youngstown or Milligan
  5. Yoo scours obscure documents–like insurance legislation or TV series–to find standards for torture and domestic surveillance that allows him to stretch the limits of legality well beyond belief
  6. Yoo finalizes draft and sends it to Addington
  7. Addington corrects it with a big red pen
  8. Yoo makes Addington’s final changes and distributes memo to about 3 people
  9. All 3 people receiving the memo put it into a drawer, a briefcase, or a man-sized safe, to make sure those implementing this program will never see it
  10. When Congress or the ACLU or some other do-gooder asks for a copy, tell them it’s unclassified, but they still can’t have it "so there"

Today, the Senate Judiciary Committee will finally consider Dawn Johnsen’s nomination to head up OLC (it should be on the committee stream at 10–though she’s the last thing on the agenda). You’ll hear a lot of Republicans–Arlen "Scottish Haggis" Specter and Tom Coburn, among others–claiming that Dawn Johnsen is a radical who eats babies and loves terrorists.

But compare how Dawn Johnsen–that soon to be accused-baby eater–has promised to craft OLC memos to how we know Yoo did (what Johnsen calls the advocacy model).

1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

2. OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government—the courts and Congress—and constitutional limits on the exercise of governmental power.

Read more →

Spanking Spak and Spec

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Arlen "Scottish Haggis" Specter–whose political obituary was written yesterday in the form of a dismal poll result and a renewed threat from Pat Toomey—says we don’t need a truth commission because all the details on Bush era crimes are contained in some file cabinets that we need only waltz up to and empty out.

And in case you were wondering, Lee Harvey Oswald acted alone.

Presumably because he believes we need only waltz up to those file cabinets and take out the Cheney indictment, the sole contribution Scottish Haggis made in today’s Truth Commission Hearing was to enter this Hans von Spakovsky column into the record. Given that Hans von Spak accused Leahy of pitching a House Un-American Activities Commission, I can only interpret Haggis’ action as a profoundly cowardly attempt to get back in the good graces of the Club for Growth. 

The column itself shows the depths to which the Heritage Foundation has stooped in these, the declining years of the Conservative Movement. Even setting aside the horrible optics of having someone under investigation for abridging minority civil rights for political gain squawking about "political prosecutions," the column is just of pathetically bad quality.

Hans von Spak begins by exactly repeating (the Heritage Foundation, defender of private property, apparently doesn’t even require original work anymore) an error the WSJ made in January, claiming that nothing resulted from Carl Levin’s 18 month investigation into torture in DOD.

Moreover, Sen. Carl Levin (D-Mich.) held hearings, under oath, over a 2½- year period looking into many of the same issues. His report, though predictably partisan, found no criminal violations.

Aside from this apparent inability to even count (18? 30? no difference to today’s conservative), Hans von Spak apparently believes that the Committee’s findings–that Bush’s dismissal of Article Three and Rummy’s approval of aggressive technique were the "direct cause of detainee abuse" in Gitmo–doesn’t amount to a criminal violation.

And of course, Hans von Spak, like the WSJ, basically endorsed Levin’s approach while ignoring his call for "an outside commission appointed to take this out of politics, that … would have the clear subpoena authority to get to the parts of this which are not yet clear, and that is the role of the CIA." Hans von Spak and WSJ try to fight the idea of a Truth Commission by pointing to the good work of someone effectively supporting a Truth Commission.

Read more →

Senate Judiciary Hearing on Truth Commission Liveblog

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Will be on CSPAN3 and the Committee stream.

Meteor Blades has a great roundup of today’s witnesses (actually, his entire post is worth a read, as always with him).

They are:

Thomas-Pickering-140_23908t.jpgThomas Pickering is a career diplomat who served as U.S. ambassador to Jordan (1974–1978), Nigeria (1981–1983), El Salvador (1983–1985), Israel (1985–1988), the United Nations (1989-1992), India (1992–1993) and Russia (1993–1996). He is now vice chairman of Hills & Company, and is co-chair of the 14-year-old International Crisis Group. Three weeks ago Pickering signed a letter  to President Obama seeking a commission to look into the detention, treatment, and transfer of captives after September 11.

gunn.jpgVice Admiral Lee Gunn (Ret.), who served in the final three years of his 35-year military career as Inspector General of the Department of the Navy, is now president of the Institute of Public Research at the CNA Corporation, and president of the 2-year-old American Security Project, which sees its mission as "promoting debate about the appropriate use of American power, and cultivating strategic responses to 21st century challenges."

Farmer.jpgJohn J. Farmer Jr., the former attorney general of New Jersey was Senior Counsel to the 9/11 Commission. He is a partner at Arsenault, Whipple, Farmer, Fasset and Azzarello, L.L.P. and an adjunct professor at Rutgers School of Law-Newark. He wrote "The Rule of Law in an Age of Terror" for the Rutgers University Law Review (2005).

schwarz.jpgFrederick A. O. Schwarz, Jr. Chief Counsel at the Brennan Center for Justice and chief counsel for  Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activity (1975-1976), widely known as the Church Committee for its chairman, Idaho Senator Frank Church. His latest book, written with Aziz Z. Huq, is Unchecked and Unbalanced: Presidential Power in a Time of Terror

Photo_06c45eaa5e2d481dbf2a4cf3513a6.jpgDavid B. Rivkin, Jr. is a partner with Baker & Hostetler, L.L.P. He was chief counsel of the President’s Council on Competitiveness at the White House under George H.W. Bush, where he was in charge of a review of government regulations. He later coordinated the development and implementation of the first Bush’s deregulation efforts. He has argued that the United States has not violated the Geneva Conventions with its captured prisoner policy and that it was a few "bad apples" and not policy that was responsible for what happened at Abu Ghraib and elsewhere, and opposed appointment of a special prosecutor in the Lewis "Scooter" Libby affair.

rabkin.jpgJeremy Rabkin, a renowned scholar of internationalaw, is a professor at George Mason University School of Law in Arlington, Va. A member of the board of directors of the United States Institute of Peace and author, most recently, of the Law without Nations?: Why Constitutional Government Requires Sovereign States. He has argued that all Presidents stretch the law in times of war, but that the U.S. always regains its balance afterward.

Read more →

DiFi’s Whitewash

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Last week, when I put you all to work (while I was on vacation–sorry) to find out whether your members of Congress supported some kind of investigation into Bush Administration crimes, fatster reported back DiFi’s ambivalence about any such investigation.

According to the Washington staffer who answered my call just now, DIFI has not yet commented on what her position will be. Imagine that.

DiFi’s support or not is critically important since–as the new Chair of the Senate Intelligence Committee–she’ll have significant say about whether or not we investigate what the Intelligence Community did under Bush.

Well, today the largest paper in DiFi’s state reports what appears to be DiFi’s slowly evolving response: an investigation that the American people don’t get to see. Otherwise known as a whitewash.

The Senate Intelligence Committee is preparing to launch an investigation of the CIA’s detention and interrogation programs under President George W. Bush, setting the stage for a sweeping examination of some of most secretive and controversial operations in recent agency history.

The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed — including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.

Officials said the inquiry was not designed to determine whether CIA officials broke laws. "The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future," said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public.

[snip]

The senior aide said that the committee had no short-term plans to hold public hearings, and that it was not clear whether the panel would release its final report to the public.

[snip]

Senate aides declined to say whether the committee would seek new testimony from former CIA Director George J. Tenet or other former top officials who were involved in the creation and management of the programs.

The Senate investigation will examine whether the detention and interrogation operations were carried out in ways that were consistent with the authorities and instructions issued in the aftermath of the Sept. 11 attacks, officials said.

The panel will also look at whether lawmakers were kept fully informed. Read more →

Are Your Members of Congress Supporting an Investigation into Bush Crimes?

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As many of you have noted, at least 62% of Americans support some investigation into Bush Administration crimes (whether a criminal investigation or a truth commission). Do your members of Congress agree with the majority of Americans who refuse to ignore the past?

Here’s a list of those members of Congress who have voiced some support for an investigation. If your members of Congress aren’t on here, call them (1-877-851-6437, 1-800-828-0498, or 1-800-614-2803). Ask if they support one of the efforts to investigate the Bush Administration. If they’re not sure, urge them to do so. Please leave a comment so we can track what they say.

Senators

Barbara Boxer
Russ Feingold
Pat Leahy
Carl Levin
Jack Reed
Harry Reid (?)
Sheldon Whitehouse

Congressmen

(Unless otherwise noted, these are co-sponsors of John Conyers’ bill, HR.104, calling for an independent commission.)

Tammy Baldwin
Rick Boucher
Steve Cohen
John Conyers
Elijah Cummings
Peter DeFazio
William Delahunt
Keith Ellison
Bob Filner
Barney Frank
Raul Gijalva
Luis Gutierrez
Maruice Hinchey
Sheila Jackson-Lee
Hank Johnson
Walter Jones
Barbara Lee
Carolyn Maloney
Jerrold Nadler
Ed Pastor
Nancy Pelosi
Linda Sanchez
Jan Schakowsky
Bobby Scott
Debbie Wasserman Schultz
David Wu

The Senate State Secrets Bill

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I linked earlier to the House version of the State Secrets Bill. Here’s Leahy’s announcement about the Senate version.

Leading members of the Senate Judiciary Committee have joined together to introduce the State Secrets Protection Act, a bill that provides guidance to federal courts considering cases in which the government has asserted the state secrets privilege. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), Ranking Member Arlen Specter (R-Pa.), and Committee Member Russ Feingold (D-Wis.) joined with former Committee Chairman and Member Edward Kennedy (D-Ma.) to introduce the bill Wednesday.

The legislation was initially proposed in the 110th Congress in response to the government’s assertions of the state secrets privilege in cases challenging the constitutionally of several of the Bush administration’s national security programs, including the warrantless wiretapping, rendition and interrogation programs.

Leahy said, "The State Secrets Protection Act will help guide the courts to balance the government’s interests in secrecy with accountability and the rights of citizens to seek judicial redress. The bill does not restrict the Government’s ability to assert the privilege in appropriate cases. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation. I hope all Senators will join us in supporting this bill."

Specter said, "While national security must be protected, there must also be meaningful oversight by the courts and Congress to ensure the Executive branch does not misuse the privilege," Senator Specter said. "This bipartisan legislation provides guidance to the federal courts in handling assertions of the privilege. It is designed to protect state secrets from disclosure, while preventing misuse of the privilege and enabling litigants to achieve justice in court, regardless of which party occupies the White House."

Feingold said, "A country where the government need not answer to allegations of wrongdoing is a country that has strayed dangerously far from the rule of law. We must ensure that the state secrets privilege does not become a license for the government to evade the laws that we pass. This bill accomplishes that goal, while simultaneously providing the strongest of protections to those items of evidence that truly qualify as state secrets."

Senator Sheldon Whitehouse (D-R.I.) and Senator Claire McCaskill (D-Mo.) are also cosponsors of the legislation. The Leahy-Specter-Feingold-Kennedy legislation would: