Two-Fronted War in Defense of the Constitution in the House

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The AP reported on Steven Bradbury’s tortured logic about water-boarding.

”The set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding,” Steven G. Bradbury, acting head of the Justice Department’s Office of Legal Counsel, says in remarks prepared for his appearance Thursday before the House Judiciary Constitution subcommittee.

”There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law,” he said.

That is, waterboarding is not legal today, but it could be tomorrow if Bradbury made it so at the bidding of David Addington.

That tortured logic is part of Bradbury’s prepared statements for an appearance before HJC’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties (click here to follow along).

Meanwhile, Chairman Conyers is appearing before the Rules Committee (on CSPAN1) supporting his contempt resolution, describing the importance of the contempt resolution to the balance of powers.

Some have said we risk more if we lose this fight. If we countenance a process where our subpoenas can be readily ignored, where a witness doesn’t even have to bother to show up or tell us that they’re not coming, then we’ve already lost. This is not a matter of vindicating the Judiciary Committee.

Republicans are playing nasty–interrupting the Lantos memorial for stupid parliamentary tricks. Lamar Smith thinks we shouldn’t pass this rule because we won’t also allow the government broad powers to wiretap us.

And Bradbury is assuring "the committee that every opinion I sign represents my best judgment regardless of political currents."

I’ll try to follow both hearings.

Nadler: Is waterboarding a violation of the Federal torture statute?

Bradbury: I think it was reasonable to say that it didn’t violate the Federal torture statute. Your description of the procedure is not accurate description of procedure used by CIA.

Nadler: My description is one given to us by former interrogators.

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Conyers Has Gotten Cranky

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Just a quick post (I promise, I’ll catch up tomorrow) to observe that Conyers seems to be getting fed up. Yesterday he was handing long "to do" lists to Fred Fielding. Today, it’s taking the next step in ratcheting the pressure on the Bush Adminsitration.

Recommending that the House cite someone for contempt of Congress is a step that the Committee, and I as Chairman, take with great reluctance. Unfortunately, it is a step that is clearly necessary to preserve the role and constitutional prerogatives of Congress as an institution, in addition to getting to the bottom of the U.S. Attorney controversy.

The Judiciary Committee voted on July 25 to recommend the contempt resolution because, despite months of effort to secure voluntary compliance, the White House has refused to provide access to crucial information requested by the Committee. In fact, as of today, I have written nine letters over more than eight months trying to resolve this matter. But despite duly issued subpoenas, the White House has determined that it has the unilateral authority to prevent Mr. Bolten from providing us with a single piece of paper and to prevent Ms. Miers from even showing up at a Committee hearing.

If the executive branch can disregard Congressional subpoenas in this way, we no longer have a system of checks and balances. That is the cornerstone of our democracy, and it is our bipartisan responsibility to protect it. As our former colleague, Republican Mickey Edwards, has explained, taking action is crucial in order to defend Congress "as a separate, independent, and completely equal branch of government."

Because the White House has refused to reconsider its confrontational position, I believe we have no choice but to bring this contempt resolution to the floor promptly and to ask that this Committee adopt a rule to facilitate doing so. [my emphasis]

I’m particularly interested in the degree of specificity in Conyers’ letter:

Along with the contempt resolution, .I ask the Committee to include in its rule the appropriate process for consideration of H. Res. 980, a privileged resolution authorizing the Judiciary Committee to initiate or intervene in civil litigation to enforce these two subpoenas. The need for this resolution became clear just last week, when the Attorney General unfortunately testified before our Committee that he is inclined to follow the White House’s view and forbid enforcement of the contempt resolution.

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FISA: On to the House

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Sorry I missed all the misery on FISA votes today. Though I can’t say I’m sorry to have missed the Senate committing collective hari kari again.

Which, of course, sends FISA back to the House. The Blue Dogs are no doubt ready to bend over for Bush. Again. But John Conyers isn’t going to go quietly. He sent Fred Fielding a long "to do" list, some of it relating to requests going

First, please provide access to all Members of the House Judiciary Committee those briefings and materials you have made available to 19 Members as of now. Currently, it is my understanding that the entire membership of the House Permanent Select Committee on Intelligence and the Senate Committee on the Judiciary and the Senate Select Committee on Intelligence has been permitted to be “read in” to the TSP program. The only Committee of jurisdiction that has not been offered the same access is the House Judiciary Committee. This is unacceptable and serves little purpose but to impede our Members review of the program and understanding of your request for retroactive amnesty.

Second, please provide the Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States. It is believed that this Memorandum is dated either October 17, 2001, or October 23, 2001. Based on the title of this document, and based on the contents of similar memoranda issued at roughly the same time, it appears that a substantial portion of this Memorandum provides a legal determination and analysis as to the nature and scope of the Presidential war powers to accomplish specific acts within the United States. Congress is entitled to know the executive branch’s interpretation of its constitutional powers.

Third, please provide copies of filings, correspondence or transcripts of colloquies with the Foreign Intelligence Surveillance Court about TSP or other warrantless or other electronic surveillance programs, containing legal analysis, arguments, or decisions concerning the interpretation of FISA, the Fourth Amendment to the Constitution, the Authorization for the Use of Military Force enacted on September 18, 2001, or the President’s authority under Article II of the Constitution.

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FISA Liveblog And Trash Talk Thread Tuesday 2/12/08

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Another day, another sellout. That may actually be a good question to ask to ask any Congresscritter you can get your hands on, or voice to, over the next eight months. "What was you personal price for selling out the Constitution and my privacy? As a taxpaying constituent and citizen, I am entitled to an honest answer; what was your price?" What are the odds that even one single critter gives an honest answer? About zero is my guess. Document the atrocities as you see them today, I will be in and out, as I believe Marcy will be. A good lawyer always makes a record for appeal, even when he or she is losing miserably. So, make a record; Phred demands it! Because we are certainly going to be appealing what our Senate, and Congress, is doing to us and our Constitution by their cancerous and derelict actions on FISA.

Don’t Gag Ma Bell

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I’ve been dissing my Congressman John Dingell by not pointing to the letter he, Bart Stupak (also from Michigan) and Edward Markey sent their colleagues about the FISA bill. But it raises an issue that deserves more attention. After discussing the rationales for telecom immunity, they point out,

For the past five months this Committee has asked, in a bipartisan manner, the phone companies and the Administration to explain whether they acted outside the bounds of the law and what would justify Congress telling a Federal judge to dismiss all lawsuits against the phone companies. The phone companies respond that the Administration has gagged and threatened them with prosecution if they respond to our inquiries. When the Committee requested that the Administration either remove the gag or provide the Committee with the relevant information, the Administration repeatedly refused. Surprisingly, even at this late date, the Administration has not deemed it important enough to respond to our repeated inquiries or even to brief the Committee Members in closed session.

Understand, John Dingell is a long-time friend of the telecoms (and can muster an awesome lecture to constituents on telecom history on demand). And this is the crowd in the House that legislates on telecoms more generally.

Yet the Administration won’t let Ma Bell talk to them–at least not about her overwhelming need for immunity. The Republicans claim that, unless Ma Bell gets immunity, she’ll go out of business. But they won’t let her tell that to the legislators who know the telecom business best.

So it’s not just the Administration’s justifications for their illegal spying program they’ll show to only 20 or so members of Congress in each house. They won’t even let Ma Bell make her case herself. 

I’m traveling tomorrow through Wednesday, so I won’t be glued to the teevee to liveblog the FISA votes. But I’ll try to touch base as the Senate vote develops.

Why Bush Is So Desperate to Get Bradbury Approved

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There has actually been pretty good coverage–even in the traditional press–of Bush’s intransigence over the Bradbury nomination. Here’s the AP, for example.

The nomination of Steven Bradbury for assistant attorney general is especially controversial.

In January, Bush renominated Bradbury, refusing to yield to Democrats who oppose a permanent job for the official who signed legal memos authorizing harsh interrogations for suspected terrorists. Bradbury has been serving as acting chief of the Justice Department’s Office of Legislative Counsel. Bush wants the Senate to confirm Bradbury as permanent head of the office.

Senate Democrats complain that two secret memos from Bradbury in 2005 authorized the CIA to use head slaps, freezing temperatures and waterboarding — a practice that invokes drowning fears — when questioning terrorism detainees.

And even better is this article from the LAT: 

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Working Extra Hours Is Extra-Constitutional

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I guess I shouldn’t be surprised that, according to the Tuesday-through-Thursday Republicans and the Most-Vacation-Ever President, working extra days is extra-constitutional. That’s the implication, after all, of the Administration’s little temper tantrum over the fact that the Senate stayed in session over Christmas to prevent Bush from recess appointing Steven Bradbury.

Q Tony, Reid’s quote on that was — he said he called John Bolten, who, "He called me back and said it is Bradbury or nobody. I said, you’re willing to now allow 84 of your people to get approved because of this guy? He said, yep, that’s what the President wants."

MR. FRATTO: I think what the ask of the administration was, was for the President to give up his constitutional authority to make recess appointments. The power to make recess appointments is granted to the President in the Constitution. And that’s what the President was being asked to forego.

Now, the Senate, then, went and took the extra constitutional act of — over the holidays, of engaging in speed sessions with the soul purpose of frustrating the President’s constitutional authority to make appointments.

So it’s not an offer that we make — you know, that we would find credible or appropriate. And it’s also, again, not the way this system is intended to work. The system — the way it is intended to work is the President nominates, the Senate reviews the nominee, and they can give an up or down vote on these nominees, and we can either put them in place, as the President intended, or the Senate can vote them down. That’s the power that the Constitution gives them.

Apparently somewhere between Article I and Article II of the Constitution it mandates vacations. Who knew??!

Arlen “Scottish Haggis” Specter Enumerates Bush’s Law-Breaking

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(Thanks to Selise for the YouTube)

Yesterday, Scottish Haggis went even further than he did the other day the other day in asserting that Bush broke the law when he instituted his illegal wiretapping program. He asserted flatly that Bush had violated two statutes (FISA and the National Security Act).

I believe it is vital that the courts remain open. I say that because on our delicate constitutional balance of separation of powers, the Congress has been totally ineffective on oversight and on restraining the expansion of executive authority. But the courts have the capacity, the will, and the effectiveness to maintain a balance.

But we find that the President has asserted his constitutional authority under article II to disregard statutes, the law of the land passed by Congress and signed by the President.

I start with the Foreign Intelligence Surveillance Act, which provides that the only way to wiretap is to have a court order. The Executive Branch initiated the Terrorist Surveillance Program in flat violation of that statute. Now, the President argues that he has constitutional authority which supersedes the statute. And if he does, the statute cannot modify the Constitution. Only a constitutional amendment can. But that program, initiated in 2001, is still being litigated in the courts. So we do not know on the balancing test whether the Executive has the asserted constitutional authority.

But if you foreclose a judicial decision, the courts are cut off. Then the executive branch has violated the National Security Act of 1947, which mandates that the Intelligence Committees of both the House and the Senate be informed of matters like the Terrorist Surveillance Program. I served as chairman of the Judiciary Committee in the 109th Congress. The chairman and the ranking member, under protocol and practice, ought to be notified about a program like that. But I was surprised to read about it in the newspapers one day, on the final day of argument on the PATRIOT Act Re-authorization. It was a long time, with a lot of pressure–really to get the confirmation of General Hayden as CIA Director–before the executive branch finally complied with the statute to notify the full Intelligence Committees.

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Jello Jay Advocates Illegal Spying on Americans

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Thanks to Selise for making this YouTube.

The most eye-popping moment from yesterday’s FISA debate came when Jello Jay spoke against a Feingold amendment designed to ensure the government does not use US person information collected after the FISA Court has judged that that particular collection program does not adequately protect US persons from being spied on.

Feingold’s amendment is modeled on one in the existing FISA law, which prohibits the government from using information gathered during an emergency 72-hour period of collection if the FISA Court later finds that there was not probable cause to justify the warrant itself. Feingold simply transfers that concept onto the collection programs of the new FISA bill, with the logic that, if the FISA Court rules that a program does not sufficiently protect Americans, then the government should not be able to use that information on Americans even after the Court has given the government 30 days to fix it.

Barring this amendment, the government can continue to use information collected on US persons, even if it gathered that information in defiance of a FISA Court ruling. Without this amendment, there is nothing preventing the government from simply ignoring one after another of the FISA Court’s rulings. Which says that, without this amendment, there is nothing preventing the government from spying on Americans, because they will be able to disseminate information on Americans even if that information was improperly collected.

But Jello Jay doesn’t think we should put those kind of restrictions on the government. Read more →

FISA Fight Reconvenes at 2

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The Senate will take up the FISA fight again today at 2:00, now missing not just the three presidential candidates, but possibly others campaigning for their colleagues. Among the many ways last week’s compromise on FISA really hurt our cause, scheduling the vote for the day before Super Tuesday is at the top of the list. [Update: there will not be a FISA related vote today, we’ll have debate. But I still doubt we’re going to hold off the votes until Wednesday, when everyone will be back from Super Tuesday.]

cboldt has a slightly updated post on what the Senate will be voting on here. By far his most important update is this:

The Senate has formally signaled that it will not request a conference with the House, to resolve differences. At this point of the process on the FISA bill, a conference request is premature because the House has yet to weigh in on the Senate’s proposed legislation. While the two bills are different, the formality of disagreement is presently absent. See Riddicks – Conferences and Conference Reports, in particular pp 467-8, which describe the interaction between both chambers.

For those of you hoping we’ll restore some of the protections from the House Bill (sorry, no pun intended) during conference, I take this to mean that we may well never get to conference, and therefore may never get to improve on the Senate bill once the Senate passes it.

So it behooves us to call our Senators and lobby for them to improve this bill now, in the Senate. When you call, I suggest you tell them to:

  • Oppose telecom immunity. While it’s unlikely that we’ll get the 51 majority vote to pass Dodd and Feingold’s amendment, pushing hard against immunity may convince them to support one or both of the compromise immunity amendments (I just learned this one requires majority vote of those voting, not 51).
  • Support court review of minimization procedures. Right now, the Administration is obligated to tell the FISA Court how they intend to make sure your data and mine isn’t rounded up in un-related searches and then used. But they don’t have to prove to the Court that they’re doing what they say they’ll be doing. Encourage your Senators to support Whitehouse’s amendment giving the FISA Court review of whether the Administration is doing what they say they’re doing. As we know, more often than not, they’re NOT doing what they say. Minimization is one of the things that Republicans consistently say they support, so if your Senator(s) is a Republican, remind him or her that this is really about protecting Americans’ civil liberties and privacy. Read more →