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Mitch McConnell and Richard Burr’s Authoritarian Power Grab Fails

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Last night, Mitch McConnell dealt himself a humiliating defeat. As I correctly predicted a month before events played out, McConnell tried to create a panic that would permit him and Richard Burr to demand changes — including iMessage retention, among other things — to USA F-ReDux. That is, in fact, what Mitch attempted to do, as is evident from the authoritarian power grab Burr released around 8:30 last night (that is, technically after the Administration had already missed the FISA Court deadline to renew the dragnet).

Contrary to a lot of absolutely horrible reporting on Burr’s bill, it does not actually resemble USA F-ReDux.

As I laid out here, it would start by gutting ECPA, such that the FBI could resume using NSLs to do the bulky Internet collection that moved to Section 215 production in 2009.

It also vastly expanded the application of the call record function (which it very explicitly applied to electronic communications providers, meaning it would include all Internet production, though that is probably what USA F-ReDux does implicitly), such that it could be used against Americans for any counterterrorism or counterintelligence (which includes leaks and cybersecurity) function, and for foreigners (which would chain onto Americans) for any foreign intelligence purpose. The chaining function includes the same vague language from USA F-ReDux which, in the absence of the limiting language in the House Judiciary Committee bill report, probably lets the government chain on session identifying information (like location and cookies, but possibly even things like address books) to do pattern analysis on providers’ data. Plus, the bill might even permit the government to do this chaining in provider data, because it doesn’t define a key “permit access” term.

Burr’s bill applies EO 12333 minimization procedures (and notice), not the stronger Section 215 ones Congress mandated in 2006; while USA F-ReDux data will already be shared far more widely than it is now, this would ensure that no defendant ever gets to challenge this collection. It imposes a 3-year data retention mandate (which would be a significant new burden on both Verizon and Apple). It appears to flip the amicus provision on its head, such that if Verizon or Apple challenged retention or any other part of the program, the FISC could provide a lawyer for the tech companies and tell that lawyer to fight for retention. And in the piece de la resistance, the bill creates its very own Espionage Act imposing 10 year prison terms for anyone who reveals precisely what’s happening in this expanded querying function at providers.

It is, in short, the forced-deputization of the nation’s communications providers to conduct EO 12333 spying on Americans within America.

Had Mitch had his way, after both USA F-ReDux and his 2-month straight reauthorization failed to get cloture, he would have asked for a week extension, during which the House would have been forced to come back to work and accept — under threat of “going dark” — some of the things demanded in Burr’s bill.

It didn’t work out.

Sure, both USA F-ReDux (57-42) and the short-term reauthorization (45-54) failed cloture votes.

But as it was, USA F-ReDux had far more support than the short-term reauthorization. Both McConnell and Rand Paul voted against both, for very different reasons. The difference in the vote results, however, was that Joe Donnelly (D), Jeff Flake (R), Ron Johnson (R), James Lankford (R), Bill Nelson (D), Tim Scott (R), and Dan Sullivan (R) voted yes to both. McConnell’s preferred option didn’t even get a majority of the vote, because he lost a chunk of his members.

Then McConnell played the hand he believed would give himself and Burr leverage. The plan — as I stated — was to get a very short term reauthorization passed and in that period force through changes with the House (never mind that permitting that to happen might have cost Boehner his Speakership, that’s what McConnell and Burr had in mind).

First, McConnell asked for unanimous consent to pass an extension to June 8. (h/t joanneleon for making the clip) But Paul, reminding that this country’s founders opposed General Warrants and demanding 2 majority vote amendments, objected. McConnell then asked for a June 5 extension, to which Ron Wyden objected. McConnell asked for an extension to June 3. Martin Heinrich objected. McConnell asked for an extension to June 2. Paul objected.

McConnell’s bid failed. And he ultimately scheduled the Senate to return on Sunday afternoon, May 31.

By far the most likely outcome at this point is that enough Senators — likely candidates are Mark Kirk, Angus King, John McCain, Joni Ernst, or Susan Collins — flip their vote on USA F-ReDux, which will then be rushed to President Obama just hours before Section 215 (and with it, Lone Wolf and Roving Wiretaps) expires on June 1. But even that (because of when McConnell scheduled it) probably requires Paul to agree to an immediate vote.

But if not, it won’t be the immediate end of the world.

On this issue, too, the reporting has been horrible, even to almost universal misrepresentation of what Jim Comey said about the importance of expiring provisions — I’ve laid out what he really said and what it means here. Comey cares first and foremost about the other Section 215 uses, almost surely the bulky Internet collection that moved there in 2009. But those orders, because they’re tied to existing investigations (of presumably more focused subject than the standing counterterrorism investigation to justify the phone dragnet), they will be grand-fathered at least until whatever expiration date they have hits, if not longer. So FBI will be anxious to restore that authority (or move it back to NSLs as Burr’s bill would do), especially since unlike the phone dragnet, there aren’t other ways to get the data. But there’s some time left to do that.

Comey also said the Roving Wiretap is critical. I’m guessing that’s because they use it to target things like Tor relays. But if that’s the primary secretly redefined function, they likely have learned enough about the Tor relays they’re parked on to get individual warrants. And here, too, the FBI likely won’t have to detask until expiration days on these FISA orders come due.

As for the phone dragnet and the Lone Wolf? Those are less urgent, according to Comey.

Now, that might help the Republicans who want to jam through some of Burr’s demands, since most moderate reformers assume the phone dragnet is the most important function that expires. Except that McConnell and others have spent so long pretending that this is about a phone dragnet that in truth doesn’t really work, that skittish Republicans are likely to want to appear to do all they can to keep the phone dragnet afloat.

As I said, the most likely outcome is that a number of people flip their vote and help pass USA F-ReDux.

But as with last night’s “debate,” no one really knows for sure.

The Paul Filibuster

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As some of you were live-commenting yesterday, Rand Paul conducted a 10.5 hour filibuster of the USA F-ReDux last night.

A lot of journalists are calling it meaningless. But it may not be. As Sunlight Foundation explains, by occupying the floor for the balance of yesterday, Paul may have prevented Mitch McConnell from invoking cloture on his short-term reauthorization, leaving only USA F-ReDux as the only legislation that might possibly get through the Senate before House members start leaving for recess tonight.

What does the currently ongoing filibuster have to do with this? It’s not just that it stalls the vote in the Senate and wedges it up closer to Section 215’s expiration. If Paul and his allies get to midnight tonight, as far as we can tell, it stops the Senate from considering any bill other than the House-passed USA FREEDOM Act, or, by default, sunset before Saturday. Without this filibuster, McConnell could have moved today to proceed on from the trade vote to USA FREEDOM or the 2-month reauthorization (though the Senate will have a cloture vote on trade tomorrow no matter what), and in turn begun the cloture process, which would have matured Friday. While the House is supposed to be out on Friday, keeping the House for another day, versus through the weekend and into Memorial Day, is a bit different.

Tomorrow, two things start to kick in: NSA has to start detasking from collection, and the deadline to apply for a new FISC order passes (the latter of which I first noted months ago).

All that said, I suspect there was an underlying deal here.

That’s true because the 9 or so people who supported Paul in this filibuster were all USA F-ReDux supporters (and of them, only Ron Wyden has called for significant amendment process, which is what Paul said he was fighting for with his filibuster).

More telling, Paul stopped 11 minutes short of midnight. And McConnell seemed to expect that — he had Bill Cassidy come on the floor to submit the highways bill for cloture.

In other words, McConnell could have, but didn’t, file cloture on his short-term reauthorization last night.

It’s quite possible that the Senators from KY made an agreement to get themselves out of holes they had created for themselves, Paul, in pushing against the bill, and McConnell, in leveraging such that sunset of Section 215 became a real possibility. By appearing to be left with no choice but USAF, McConnell could then whip it, and ensure it passes, to be quickly sent to Obama for signature. If McConnell really whipped it, Paul could even cast a symbolic vote against it.

If that ends up happening, Paul’s filibuster will not be a waste. It would have prevented — or been the tactic that allowed all sides to accept the prevention — of the bill getting worse in the Senate, which was always a real possibility.

But no one should be breaking out tequila to celebrate a PATRIOT Sunset yet.

Update: McConnell apparently just filed cloture on his short-term reauthorization. That would put the vote on Saturday, with the House having to come back to deal with it.

Only Remaining Senator Personally Targeted by Terrorist Attack Still Believes in Constitution

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The Senate just voted down cloture on the USA Freedom Act, 58-42. Even while we disagreed on the bill, I extend sincere condolences to civil liberties allies who worked hard to pass this in good faith. I know you all have worked hard in good faith to pass something viable.

Several things about the vote were predictable (in fact, I predicted them in June). Just as one example, I noted to allies that if Jeff Flake — who had a great record on civil liberties while he was still in the House — did not support the effort, it would fail. Four Senators — cosponsors Mike Lee, Ted Cruz, and Dean Heller, plus Lisa Murkowski voted for cloture; Rand Paul did not. Bill Nelson voted against cloture as well (there are reports he is claiming it was a mistake, but given how closely this bill was whipped that would be … telling).

Equally predictable was the fear-mongering. GOP Senator after GOP Senator got up and insisted if the phone dragnet ended, ISIL would attack the country. None noted, of course, that the phone dragnet had never succeeded in preventing a terrorist attack. Pat Leahy made that point but it’s one opponents of the dragnet need to make in more concerted fashion.

Then there was a piece of news that neither side — supporter or opponent — seemed to want to mention. Dianne Feinstein revealed that at first 2 of 4 providers (presumably the fourth is T-Mobile though it could even be Microsoft, given that Skype is a more important phone carrier for international traffic) had refused to keep phone records, but that they had voluntarily agreed to do so for a full two years (this is at least a 6 month extension for Verizon, though may be significantly longer for cell calls).

The most dramatic part of the debate came after everyone left, when a frustrated Pat Leahy made the case for defending the Constitution. He recalled the anthrax letter addressed to him, on September 18, 2001, that killed a postal worker who processed it (another letter killed a Tom Daschle aide see Meryl Nass’ correction). “13 years ago this week, a letter was sent to me, addressed to me. It was so deadly, with the antrax in it that one person who touched the envelope–addressed to me, that I was supposed to open–They died!” Leahy reminded that the FBI had still not caught all the culprits for the attack. (That he believes that was first reported here in 2008; I believe FBI has, in fact, caught none of the culprits.) That attack targeting him personally, Leahy noted, did not convince him he had to abrogate the Constitution. “This nation should not let our liberties to be set aside by passing fears.” Leahy said. “If we do not protect our Constitution we do not deserve to be in this body.”

Senators like Marco Rubio got up and screamed about terrorists. But unless I’m mistaken, Pat Leahy is the only one remaining in the Senate who was personally targeted by a terrorist.

Maybe we ought to highlight that point?

Updated w/additions from Leahy’s comments.

The Flake Effect

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As you no doubt know, Democrats got shellacked yesterday. Not only did they lose the Senate in spectacular fashion, but Jim and I are stuck with our shitty Republican governors. Locally, the GOP succeeded in term-limiting our Mayor who wins with 80% of the vote.

Steve Vladeck has a post considering how this will affect national security politics. I agree with his ultimate conclusion:

Thus, the real question that I think yesterday’s results raise for national security policy in the 114th Congress is not what this “genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism” will look like, but rather whether the absence of such a debate (which seems increasingly likely) will indeed provoke courts to play the more aggressive role to which Justice Kennedy alluded.

But along the way, Vladeck makes a grave category error by suggesting that Ted Cruz is a libertarian.

Although the realignment thesis requires decent support from the wings of both parties, the consequences of yesterday’s results are to put the focus squarely on how libertarian Republicans approach national security policy–since theirs is the party in power in both chambers. With that in mind, consider Senator Ted Cruz’s fairly remarkable unwillingness to openly endorse Senator Mitch McConnell as majority leader. Whatever that portends with respect to the leadership race, it suggests at the very least that, on some issues, the more libertarian wing of the Republican party may not exactly fall into lockstep with the party’s more moderate elements. And while that was an intriguing enough phenomenon when Republicans only controlled the House, how that plays out when Republicans control both sides of the Capitol will be very interesting to watch.

Ted Cruz is a dangerous narcissistic authoritarian piggybacking on Tea Party popularity and amorphousness to advance his own career. He is not a libertarian.

There are, to be sure, some libertarian senators. Along with Mike Lee and Dean Heller, who get little notice, Rand Paul has learned how better to use Senate procedure to advance libertarian aims. (One piece of evidence that Cruz is not a libertarian is that both he and Paul appear to be running for President, making it clear they don’t have the same agenda.)

That said, one of the most interesting aspects of this election is that Paul did some real campaigning for authoritarian hack Pat Roberts, lending him his Tea Party cred.

Ted Cruz, however, was not out campaigning. Update: According to this, Cruz also campaigned for Roberts.

But the question of how having Cory Gardner and Joni Ernst in the Senate has little to do with their politics, in my opinion.

They have a lot more to do with the difference between Mitch McConnell and John Boehner.

John Boehner is an ineffective leader whose attempt to discipline his party ended up creating leaders who had little to lose.

Mitch McConnell is not an ineffective leader. He has long been able to demand discipline.

Perhaps the best indicator of that is what happened when Jeff Flake, who was superb on civil liberties in the House, moved to the Senate. He’s terrible on those issues now. Pretty much runs and hides in a corner, whimpering, when such issues come up. I’m not sure how Mitch did it, but he managed to neutralize someone who challenged GOP authoritarianism. Completely. I expect the same of Cory Gardner (though will be happy to be proven wrong).

In any case, I would be shocked if Mitch made the error of putting someone like Gardner (or Paul) in one of the at least 3 new Republican slots that will open up on the Intelligence Committee.

The story of the next two years will be about what Mitch — and his heavy discipline — wants to accomplish in the Senate, not about what a few libertarians or pseudo-libertarians want.

Rand Paul and I Told You So

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At least according to this snippet from WaPo, Jane Harman reported out after discussing war over “d’anjou pear salad and Chilean sea bass” that the President thinks he can rely on both his epistolary War Power Resolution letters and … the Iraq AUMF to wage war against ISIS. (h/t Lemon Slayer)

The president “thinks he has the legal authority he needs” to increase U.S. military engagement in both Iraq and Syria, said Jane Harman, president of the Woodrow Wilson International Center for Scholars, who attended the dinner with Obama. The White House’s belief that it has authority to act is based on the reports Obama has filed with Congress under the War Powers Act and the earlier congressional authorization for the war in Iraq. [my emphasis]

Back in 2011, Rand Paul had the batshit crazy idea that, since we were ending the war in Iraq, we ought to repeal the AUMF that authorized the war. You never know, after all, when someone might pull that cobwebby AUMF out of a drawer and start using it again.

Not many of Paul’s colleagues agreed with him about this basic matter of AUMF hygiene.

From time to time over the last several years, I’ve reminded people about that dusty old AUMF lying around like Chekhov’s gun.

In 2012, when Obama officially told Congress the, “responsible withdrawal … in accordance with the 2008 Agreement Between the United States of America and the Republic of Iraq on the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq,” had been completed, I suggested maybe that marked a good time to repeal that AUMF.

When, last year, Obama said — referring exclusively to the 2001 Afghanistan AUMF —

–mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.”

[snip]

I intend to engage Congress … in efforts to refine, and ultimately repeal, the AUMF’s mandate. 

I suggested maybe we could do a twofer and actually repeal both the Afghan and Iraq AUMFs at once.

Earlier this year, people started catching on, and Caitlin Hayden even claimed to Yahoo that they wanted to repeal the Iraq War.

It looked, for a brief period, like Obama might prove Paul and I wrong.

Nope.

Chekhov knew a fair bit about narrative. And you just can’t leave a loaded AUMF lying around before some tragic person picks it up and shoots it.

The Administration’s Non-Appeal Appeal on the Awlaki Memo

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The Administration has informed the 2nd Circuit it won’t appeal its order to release the Anwar al-Awlaki memo. (h/t Mike Scarcella)

But it is going to ask nicely that the Circuit reconsider some of its instructions on redactions.

Granted, we knew they were going to try to hide that CIA conducts the drone killing, and some other details (perhaps even that the drone killing happened in Yemen).

But they insist on doing this ex parte.

The government does not intend to seek further review of the Court’s ruling that the OLC-DOD Memorandum may not be withheld in full under the Freedom of Information Act (“FOIA”). The government does intend, however, to seek panel rehearing, and alternatively, rehearing en banc, with respect to certain parts of the Court’s opinion and its proposed redactions.

[snip]

The government intends to seek rehearing to protect certain information in the Court’s opinion, the Court-redacted version of the OLC-DOD Memorandum, and the OLC classified Vaughn index ordered disclosed by the Court. In the government’s view, that information is properly classified, protected from disclosure by statute, and/or privileged, and therefore exempt under FOIA Exemptions 1, 3, and/or 5, 5 U.S.C. § 552(b)(1), (3), and/or (5), even if the OLC-DOD Memorandum cannot be withheld in its entirety under FOIA. Some of the information appears to have been ordered disclosed based on inadvertence or mistake, or is subject to distinct exemption claims or other legal protections that have never been judicially considered.

Of course, the Administration got David Barron confirmed before this was resolved (that was naive response from Mark Udall and Ron Wyden, in my opinion — I wouldn’t trust the Administration’s word after this!).

And now they’re going to make a secret bid to keep the jist of the report (likely everything that hasn’t already been published in the white paper) secret.

Obama to Release OLC Memo after Only 24 Congressional Requests from 31 Members of Congress

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Congratulations to Rand Paul, who, having made request number 24, has finally gotten the Administration to agree to publicly release the OLC memo authorizing the drone killing of Anwar al-Awlaki.

Here, for posterity, is a record of the at least 24 requests from at least 31 members of Congress for this memo.

 

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1) 

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4) 

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6) 

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.

December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)

January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)

February 6, 2013: John McCain asks Brennan a number of questions about targeted killing, including whether he would make sure the memos are provided to Congress. (14)

February 7, 2013: Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (15)

February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (16)

February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.

February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (17)

February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.

February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (18, 19, 20)

February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.

February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (21)

March 11, 2013: Barbara Lee and 7 other progressives ask Obama to release “in an unclassified form, the full legal basis of executive branch claims” about targeted killing, as well as the “architecture” of the drone program generally. (22)

April 10, 2013: Bob Goodlatte and John Conyers send Obama a letter threatening a subpoena if they don’t get to see the drone killing memos. (23)

March 27, 2014: Alan Grayson holds hearing with drone victim, calls for more transparency over decision making.

April 21, 2014: 2nd Circuit orders Administration to release redacted version of OLC memo to ACLU and NYT.

May 5, 2014: Rand Paul issues veto threat for David Barron’s confirmation unless Administration releases OLC memo (already ordered for release by 2nd Circuit). (24)

May 20, 2014: The Most Transparent Administration Evah™ announces it will release (what is certain to be a highly redacted version of) the OLC memo.

Members of Congress who requested the memo:

  1. Ron Wyden
  2. Dianne Feinstein
  3. Saxby Chambliss
  4. Chuck Grassley
  5. Pat Leahy
  6. Tom Graves
  7. Jerry Nadler
  8. John Conyers
  9. Bobby Scott
  10. Ted Poe
  11. Trey Gowdy
  12. Rand Paul
  13. Mark Udall
  14. Dick Durbin
  15. Tom Udall
  16. Jeff Merkley
  17. Mike Lee
  18. Al Franken
  19. Mark Begich
  20. Susan Collins
  21. John McCain
  22. Bob Goodlatte
  23. Trent Franks
  24. James Sensenbrenner
  25. Barbara Lee
  26. Keith Ellison
  27. Raul Grijalva
  28. Donna Edwards
  29. Mike Honda
  30. Rush Holt
  31. James McGovern

Why Should Someone Who Authorized Due Process Free Executions Be A Judge Anyway?

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Yesterday, Rand Paul announced he would filibuster the nomination of First Circuit nominee David Baron until the Administration released the OLC memo authorizing the killing of Anwar al-Awlaki, as ordered by the Second Circuit last month.

As I wrote in a piece at The Week, I think this move is far more serious a political move than Paul’s earlier filibuster of John Brennan (and since you all know how I fell about Brennan, that’s saying something).

Four years ago, David Barron opened a Pandora’s box, giving presidents an inadequately limited authority to kill Americans outside all normal judicial process. As Paul notes in his letter, it would simply be “irresponsible” for the Senate to confirm his nomination without discovering what the memo could reveal about his views on due process, civil liberties, and international law. In a letter to all 100 senators, the ACLU echoed this language, recalling the precedent of Jay Bybee. “No senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.”

The Senate took such an irresponsible step in 2003 with Jay Bybee. It can avoid that mistake here.

Apparently, I’m not alone. Senators Udall and Wyden have both said they would not vote to advance Barron’s nomination without more transparency on that memo  (and remember — they’ve seen it).

Given that makes almost enough people (the GOP plus potentially 6 Democrats under the new filibuster rules) to hold up Barron’s nomination, Obama is making yet another limited hangout, permitting Senators to go read the drone-killing memo in a SCIF.

On Tuesday, the White House offered the senators a concession. It offered all senators to a chance to look at the legal opinion. However, Obama has still not acceded to the Paul and Udall’s call for public disclosure of the memo.

“I can confirm that the administration is working to ensure that any remaining questions member of the Senate have about Mr. Barron’s legal work at the Department of Justice are addressed, including making available in a classified setting a copy of the Al-Awlaki opinion to any senator who wishes to review it, prior to Mr. Barron’s confirmation,” White House Press Seceretary Jay Carney said at a daily briefing for reporters.

“It should be noted that last year members of the Senate Judiciary Committee had access to the memo and in his committee vote Mr. Barron received unanimous Democratic support,” Carney said, referring to a January panel vote in which all Republicans opposed the nominee. “We are confident that David Barron wil be confirmed to the 1st Circuit Court of Appeals and that he will serve with distinction.”

So Senators will get to see it. But not the public (even though a court has ordered its release!).

The President of the United States, of the purported most Transparent Administration Evah™, thinks it appropriate to have the Senate vote on a lifetime appointed Circuit Court judge without the public seeing one of that nominees’ most momentous legal arguments ever.

The President thinks it appropriate to control access to information about a nominee who vastly expanded Executive Power.

And ultimately, it’s time this discussion moved to whether the opinion is itself disqualifying.

In a comment to NYT, Wyden put it this way.

Mr. Wyden added that he was also not committed to voting yes.

“Certainly the opinion would not be something I would have written. The question is: Is it disqualifying,” he said, adding that the administration should start the process of releasing the memos. “It needs to be addressed before a vote.”

Frankly, I don’t care how nice or how liberal Barron is. I feel about him like I feel about Jay Bybee. Someone who gets nominated after having rubber stamped such awful executive authorities should not be rewarded with a lifetime seat interpreting the law, because he has already been compromised.

FISA Court Finally Discovers a Limit to the Word “Relevant”

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A few weeks back I laughed that, in a probable attempt to score political points against those challenging the phone dragnet by asking to retain the phone dragnet longer than 5 years, DOJ had shown a rather unusual concern for defendant’s rights.

Judge Reggie Walton has just denied DOJ’s motion. In doing so he has found limits to the word “relevant” that otherwise seem unheard of at the FISC in recent memory.

For its part, the government makes no attempt to explain why it believes the records that are subject to destruction are relevant to the civil cases. The government merely notes that “‘[r]elevant’ in this context means relevant for purposes of discovery, … including information that relates to the claims or defenses of any party, as well as information that is reasonably calculated to lead to the discovery of admissible evidence.” Motion at 6. Similarly, the government asserts that “[b]ased on the issues raised by Plaintiffs,” the information must be retained, but it fails to identify what those issues are and how the records might shed light on them. Id. at 7. Finally, the motion asserts, without any explanation, that “[b]ased on the claims raised and the relief sought, a more limited retention of the BR metadata is not possible as there is no way for the Government to know in advance and then segregate and retain only the BR metadata specifically relevant to the identified lawsuits.” Id. Of course, questions of relevance are ultimately matters for the courts entertaining the civil litigation to resolve. But the government now requests this Court to afford substantial weight to the purported interests of the civil litigants in retaining the BR metadata relative to the primary interests of the United States persons whose information the government seeks to retain. The government’s motion provides scant basis for doing so.

Shew. Given the way FISC has been defining the word “relevant” since 2004 to mean “virtually all,” I had thought the word had become utterly meaningless.

At least we know the word “relevant” has some limits at FISC, even if they’re unbelievably broad.

Mind you, I’m not sure whether FISC or the government is right in this case, as I do have concerns about the data from the troubled period during 2009 aging off.

But I will at least take some Friday afternoon amusement that the FISC just scolded the government about the word “relevant.”

NSA’s Newfound Concern about Defendants’ Rights under FISA

/3 Comments/in , /by

As WSJ reported it was going to do, NSA has requested that the FISA Court permit it to retain call data beyond the 5 year age-off date because of all the lawsuits it faces.

[T]he Government requests that Section (3)E of the Court’s Primary Order be amended to authorize the preservation and/or storage of certain call detail records or “telephony metadata” (hereinafter “BR metadata”) beyond five years (60 months) after its initial collection under strict conditions and for the limited purpose of allowing the Government to comply with its preservation obligations, described below, arising as a result of the filing of several civil lawsuits challenging the legality of the National Security Agency (NSA) Section 215 bulk telephony metadata collection program.

It provides this introduction to a list of the suits in question.

The following matters, currently pending either before a United States District Court, or United States Court of Appeals, are among those in which a challenge to the lawfulness of the Section 215 program have been raised:

And lists:

  • ACLU v. Clapper
  • Klayman v. Obama
  • Smith v. Obama, an Idaho case
  • First Unitarian Church of LA, the EFF related case
  • Paul v. Obama
  • Perez v. Clapper, a Bivens suit out of West Texas I hadn’t known about before

It goes on to say,

The duty to preserve typically arises from the common-law duty to avoid spoilation of relevant evidence for use at trial;

[snip]

A party may be exposed to a range of sanctions not only for violating a preservation order,3 but also for failing to produce relevant evidence when ordered to do so because it destroyed information that it had a duty to preserve.

3 To date, no District Court or Court of Appeals has entered a specific preservation order in any of the civil lawsuits referenced in paragraph 4 but a party’s duty to preserve arises apart from any specific court order.

[snip]

When preservation of information is required, the duty to preserve supersedes statutory or regulatory requirements or records-management policies that would otherwise result in the destruction of the information.

[snip]

Based upon the claims raised and the relief sought, a more limited retention of the BR metadata is not possible as there is no way for the Government to know in advance and then segregate and retain only that BR metadata specifically relevant to the identified lawsuits.

[snip]

Congress did not intend FISA or the minimization procedures adopted pursuant to section 1801(h) to abrogate the rights afforded to defendants in criminal proceedings.4 For example, in discussing section 1806, Congress stated,

[a]t the outset, the committee recognizes that nothing in these subsections abrogates the rights afforded a criminal defendant under Brady v. Maryland, and the Jencks Act. These legal principles inhere in any such proceeding and are wholly consistent with the procedures detailed here.

[snip]

Although the legislative history discussed above focuses on the use of evidence against a person in criminal proceedings, the Government respectfully submits that the preservation of evidence in civil proceedings is likewise consistent with FISA.

4 By extension, this should also apply to section 1861(g) which, with respect to retention is entirely consistent with section 1801(h).

Now, if you’re not already peeing your pants in laughter, consider the following.

First, as EFF’s Cindy Cohn pointed out to the WSJ, Judge Vaughn Walker issued a retention order in EFF’s 2008 suit against the dragnet.

Ms. Cohn also questioned why the government was only now considering this move, even though the EFF filed a lawsuit over NSA data collection in 2008.

In that case, a judge ordered evidence preserved related to claims brought by AT&T customers. What the government is considering now is far broader.

So, at least in her interpretation, it should already be retaining it.

Then, consider DOJ’s very serious citation of Congress’ intention that FISA not impair any defendant’s criminal rights. It basically says that that principle, laid out during debates about traditional FISA in 1978, should apply to other parts of FISA like the phone dragnet.

Of course, it was only 24 hours ago when DOJ was last caught violating that principle in Section 702, abrogating a defendant’s right to know where the evidence against him came from. And there are a whole slew of criminal defendants — most now imprisoned — whose 702 notice DOJ is still sitting on, whose rights DOJ felt perfectly entitled to similarly abrogate (we know this because back in June FBI was bragging about how many of them there were). So I am … surprised to hear DOJ suggest it gives a goddamn about criminal defendants’ rights, because for at least the last 7 years it has been shirking precisely that duty as it pertains to FISA.

Also, did you notice what pending case pertaining to the legality of the phone dragnet DOJ didn’t mention? Basaaly Moalin’s appeal of his conviction based off evidence collected pursuant to Section 215. What do you want to bet that NSA hasn’t retained the original phone records that busted him, which would have aged off NSA’s servers back in October 2012, well before DOJ told Moalin it had used Section 215 to nab him. That’s relevant because, according to recent reporting, NSA should not have been able to find Moalin’s call records given claims about limits on collection; if they did, they probably only did because AT&T was turning over other providers phone records. Moreover, we know that NSA was in violation of the dragnet minimization requirements in a slew of different ways at the time. Notably, that includes queries using selectors that had not been RAS-approved, as required, and dissemination using EO 12333’s weaker dissemination rules. Now that we know of these problems, a court might need that original data to determine whether the search that netted Moalin was proper (I presume NSA has the original query results and finished intelligence reports on it, but it’s not clear that would explain precisely how NSA obtained that data). Significantly, it was not until after 2009 that NSA even marked incoming data to show where it had been obtained.

So show us (or rather, Moalin’s lawyers) the data, NSA.

Ah well. If nothing else, this laughable motion should prove useful for defendants challenging their conviction because DOJ abrogated their rights!