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Holder Refuses to Stand By Statements Saying Violating FISA Breaks the Law

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By far the most disturbing part of the Senate Judiciary Committee oversight hearing today came when Russ Feingold asked Eric Holder whether he stands by a statement he made before the American Constitution Society last year.

In the midst of a speech that repeated "rule of law" like a Greek Chorus, after introducing this passage from his speech by saying certain steps taken by the Bush Administration "were unlawful," Holder said, "I never thought a President would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."

When Feingold asked Holder whether he stands by that statement, Holder ignored the early part of his speech where he described all of Bush’s abuses to be "unlawful," and instead tried to claim he was narrowly saying that Bush simply "contravened" FISA.

FEINGOLD: On another topic, I wrote to the president on Monday about my continued concern that the administration has not formally withdrawn certain legal opinions, including the January 2006 white paper that provided the justification for the Bush administration’s warrantless wiretapping program. At the letter was prompted in part by a recent speech that I’m sure you’re aware of by the director of national intelligence in which he asserted that the program was not illegal, but he later clarified that.

In a speech to the American Constitutional Society in June 2008, you, sir, set the following. "I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."

And the president himself also several times as a senator and during the campaign said the program was illegal. Now that you are the attorney general, is there any doubt in your mind that the warrantless wiretapping program was illegal?

HOLDER: Well, I think that the warrantless wiretapping program as it existed at that point was certainly unwise in that it was put together without the approval of Congress and as a result did not have all the protections, all the strength that it might have had behind it, as — as I think it now exists with regard to having had congressional approval of it. So I think that the concerns that I expressed in that speech no longer exist because of the action that Congress has taken in regard…

FEINGOLD: But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to be an illegal, because that’s certainly the implication of what you said in the quote I read and the explicit statement of the man who is now president of the United States.

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Russ Feingold Throws Vaughn Walker a Softball

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With this letter:

I am writing to reiterate my request for you to formally and promptly renounce the assertions of executive authority made by the Bush Administration with regard to warrantless wiretapping.  As a United States Senator, you stated clearly and correctly that the warrantless wiretapping program was illegal.  Your Attorney General expressed the same view, both as a private citizen and at his confirmation hearing.

It is my hope that you will formally confirm this position as president, which is why I sent you a letter on April 29, 2009, urging your administration to withdraw the unclassified and highly flawed January 19, 2006, Department of Justice Legal Authorities Supporting the Activities of the National Security Agency Described by the President (“NSA Legal Authorities White Paper”), as well as to withdraw and declassify any other memoranda providing legal justifications for the program.  Particularly in light of two recent events, I am concerned that failure to take these steps may be construed by those who work for you as an indication that these justifications were and remain valid. 

On June 8, Director of National Intelligence Blair asserted in a speech and in response to a question from a reporter that the warrantless wiretapping program “wasn’t illegal.” His office subsequently clarified that he did not intend to make a legal judgment and that he had meant to convey only that the program was authorized by the president and the Department of Justice.  Nonetheless, Director Blair’s remarks – which directly contravene your earlier position, as well as the position of Attorney General Holder – risk conveying to the Intelligence Community, whose job it is to explore legally available surveillance options, that not complying with the Foreign Intelligence Surveillance Act may be such an option.  Moreover, his “clarification” highlights the need to formally renounce the legal justification that the “White Paper” provides. 

In addition, I asked your nominee to be General Counsel for the Director of National Intelligence, whether, based on the “White Paper” and other public sources, he believed that the warrantless wiretapping program was legal.  His written response to my question, which was presumably vetted by your administration, indicated that, because the program was classified, he could not offer an opinion.  Should he be confirmed, this position, too, risks conveying to the Intelligence Community that there may be classified justifications for not complying with FISA.  As a member of the Senate Intelligence Committee who has seen all of the legal justifications, classified and unclassified, that were offered in defense of the warrantless wiretapping program, I strongly disagree with this implication. 

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Sheldon Whitehouse: “No Further Actionable Intelligence Was Obtained” from Abu Zubaydah by Waterboarding

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Sheldon Whitehouse gave a barnburner of a speech last night, in which he described how egregious Dick Cheney’s lies about torture have been.

The speech goes further than President Obama’s and Russ Feingold’s and Carl Levin’s calls on Cheney’s lies in two ways. First, those other calls focused on whether the documents Cheney wants declassified actually say what he claims they say; Whitehouse focused on whether Cheney’s more basic claims about torture are true. And second, Whitehouse here focuses not on whether we needed waterboarding to get intelligence (Obama, for example, said, "the public reports and the public justifications for these techniques — which is that we got information from these individuals that were subjected to these techniques — doesn’t answer the core question, which is:  Could we have gotten that same information without resorting to these techniques?), but whether we actually got any useful intelligence from the methods at all. 

Whitehouse says that no further actionable intelligence was gained through the torture used on Abu Zubaydah after he was turned over to the CIA contractors for good. [Note: this transcript is my own–I found the Congressional Record copy after I did this. I’ve edited in response to Andersonblogs’ comment to take out ellipses and put in emphasis.]

So for a third time he was returned to the FBI and CIA agents, again for professional interrogation, but by now he had been so compromised by the techniques that were applied to him that even they were unsuccessful in getting further information. And as best as I have been able to determine, for the remaining sessions of 83 waterboardings that have been disclosed as being associated with his interrogation, no further actionable intelligence was obtained. And yet the story has been exactly the opposite. The story over and over has been that once you get these guys out of the hands of the FBI and military "amateurs" and into the hands of these "trained CIA professionals" who can use these tougher techniques, that’s when you get the information. In this case at least, the exact opposite was the truth. And this was a case cited by the Vice President by name. 

From that, Whitehouse makes appeals to his colleagues not to believe they’ve been told, just as Bob Graham appealed to his colleagues not to believe what they’d been told about the Iraq intelligence.

I want my colleagues and the American public to know that, measured against the information I’ve been able to gain access to, the story-line that we have been led to believe, the story-line about waterboarding that we have been sold, is false in every one of its dimensions, and I ask that my colleagues be patient and be prepared to listen to the evidence when all is said and done before they wrap themselves in that storyline.

One more point about this. Read more →

Carl Levin to Cheney: You’ve Got Nothing

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Carl Levin better watch out for Liz "BabyDick" Cheney and her cries of "libel!" Because he just called her Daddy a liar, using words like "false statements" and "colossal misrepresentation."

Now, Levin is actually the second person who has seen those documents who says they don’t say what PapaDick says they do.  A couple of weeks ago, Russ Feingold accused PapaDick of lying using somewhat more gentle language.

Nothing I have seen – including the two documents to which former Vice President Cheney has repeatedly referred – indicates that the torture techniques authorized by the last administration were necessary, or that they were the best way to get information out of detainees. The former vice president is misleading the American people when he says otherwise.

But I’m specifically interested in Levin’s statements for the very specific way he rebuts PapaDick’s claims (note, I’ve got nothing on my senior Senator in my appreciation for weeds). 

But those classified documents say nothing about numbers of lives saved, nor do the documents connect acquisition of valuable intelligence to the use of abusive techniques.

I’m interested in those specific details for the way they flesh out the details from the May 30, 2005 Bradbury memo which appears to have details from two documents related to those Cheney is seeking. As I suggested in April, it appears Cheney may be seeking one of the documents, and a version of another, that Bradbury used to rebut the CIA IG report’s conclusion that the torture was not all that useful. 

Here’s what the three documents cited by Bradbury for his "efficacy" argument say. I’ve left off all reference to the IG Report; my discussion of Bradbury’s use of that is in this post and this post. And I’ve noted which claims–really, the most critical ones–he offers no citation for. I bring it back to Levin below.

CIA Directorate of Intelligence, Khalid Shaykh Muhammed: Preeminent Source on Al-Qa’ida (July 13, 2004) ["Preeminent Source"]

After the September 11 attacks, KSM assumed "the role of operations chief for al-Qa’ida around the world." [citation omitted] KSM also planned additional attacks within the United States both before and after September 11.

[snip]

And, indeed, we understand that since the use of enhanced techniques, "KSM and Abu Zubaydah have been pivotal sources because of their ability and willingness to provide their analysis and speculation about the capabilities, methodologies, and mindsets of terrorists."

Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from [redacted], DCI Counterterrorist Center, Re: Effectiveness of the CIA Counterintelligence Interrogation Techniques (March 2, 2005) ["Effectiveness Memo"]

Your office has informed us that the CIA believes that "the intelligence acquired from these interrogations has been a key reason why al-Qa’ida has failed to launch a spectacular attack in the West since 11 September 2001." [citation omitted] Read more →

Feingold’s Opposition to Indefinite Detention

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Man, I love Russ Feingold. Here’s the letter he sent Obama to lay out his opposition to the notion of indefinite detention. (h/t dday)

He perfectly explains why indefinite would be a dangerous precedent.

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional. While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional Read more →

Russ Feingold: Repeated Assertion of State Secrets “Reminiscent of Bush Administration”

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picture-100.thumbnail.pngRuss Feingold just had a conference call to announce his release of a report card grading Obama’s first 100 days in office. (The report card gives Obama a "some good, some bad, some too early to tell" grade.)

While he applauded the efforts the Obama Administration has made to end torture and to restore a presumption of release under FOIA, there were two areas where Feingold had particular complaints: State Secrets and the disclosure of information to the intelligence committee.

Of State Secrets, he said the Administration’s repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program.

His second major complaint, while less specific (for obvious reasons), was more revealing. He said there was not yet enough disclosure to members and staffers on the intelligence committees. While he said the Obama Administration is clearly more open than the Bush Administration, he suggested the intelligence community was still "stonewalling and roadblocking" information to the committees. He did note, however, that he can’t assess whether the Obama Administration is using the Gang of Eight process properly as he’s not part of the Gang of Eight. He did argue, though, that there are few things that shouldn’t be briefed to the entire intelligence committees. It seems that’s not currently happening.

In a related point, he said the Administration has an opportunity–one it hasn’t taken yet–to fix overclassification problems. He suggested the Administration could–but hadn’t–return to policies practice on classification under the Clinton Administration.

A Milwaukee reporter–who seemed to reflect a divided local response on the release of the torture memos–asked about what he thought of the release. Feingold said the Administration got "real [high?] marks for having the courage to release these memos." He specified, however, that the Administration still should release the 2006 and 2007 memos on torture that we haven’t yet seen.

It sounds like those memos may be just as appalling as what we’ve seen so far.

He also made clear that the memos authorizing the warrantless wiretap program have not been released and remain in effect. I guess we shouldn’t be surprised, then, that the NSA continues to follow the same domestic wiretapping practices it did under the Bush Administration.

The 6-Month Review

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In Lichtblau and Risen’s piece on the ongoing warrantless wiretap problems, they report that the problems were identified in preparation of a semiannual review of the warrantless wiretap program.

The overcollection problems appear to have been uncovered as part of a twice-annual certification that the Justice Department and the director of national intelligence are required to give to the Foreign Intelligence Surveillance Court on the protocols that the N.S.A. is using in wiretapping. That review, officials said, began in the waning days of the Bush administration and was continued by the Obama administration. It led intelligence officials to realize that the N.S.A. was improperly capturing information involving significant amounts of American traffic.

Best as I can tell, this is the semiannual assessment in question.

‘‘(1) SEMIANNUAL ASSESSMENT.—Not less frequently than once every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f) and shall submit each assessment to—

‘‘(A) the Foreign Intelligence Surveillance Court; and

‘‘(B) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution—

‘‘(i) the congressional intelligence committees; and

‘‘(ii) the Committees on the Judiciary of the House of Representatives and the Senate.

So, basically, every six months, the DNI and AG need to look at the program and see whether the NSA is complying with the targeting and minimization requirements of the law.

The targeting language basically says NSA cannot intentionally target US persons.

‘‘(b) LIMITATIONS.—An acquisition authorized under subsection (a)—

‘‘(1) may not intentionally target any person known at the time of acquisition to be located in the United States;

‘‘(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

‘‘(3) may not intentionally target a United States person reasonably believed to be located outside the United States;

‘‘(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

‘‘(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

And the minimization requirements require that incidentally collected US person data must not be circulated improperly and must be destroyed.

(h) “Minimization procedures”, with respect to electronic surveillance, means—

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Feingold (and ACLU): I Told Congress So

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I’ll have more on this shortly. But if I were Feingold, my statement about the abuse of the warrantless wiretapping program would have been even stronger.

Since 2001, I have spent a lot of time in the Intelligence Committee, the Judiciary Committee, and on the floor of the Senate bringing attention to both the possible and actual effects of legislation that has dangerously expanded the power of the executive branch to spy on innocent Americans.  Despite these efforts, Congress insisted on enacting several measures including the USA PATRIOT Act, the Protect America Act, and the FISA Amendments Act, embarking on a tragic retreat from the principles that had governed the sensitive area of government surveillance for the previous three decades.  Congress must get to work fixing these laws that have eroded the privacy and civil liberties of law-abiding citizens. In addition, the administration should declassify certain aspects of how these authorities have been used so that the American people can better understand their scope and impact. [my emphasis]

Update: Caroline Fredrickson of the ACLU engages in some well-earned "I told you so" speech, too.

“Congress was repeatedly warned that this type of abuse would be the obvious outcome of passing the FISA Amendments Act,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Congressional leadership promised after this law’s passage that it would be reexamined along with the Patriot Act. It’s time to fulfill that promise and restore the checks and balances of our surveillance system. Warrantless surveillance has no place in an America we can be proud of. These revelations make it clear that Congress must now make a commitment to rein in government surveillance.”

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.

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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: