DiFi’s Amendment

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I raised DiFi’s rather interesting amendment to the FISA bill in this post. Now that the transcripts are up from yesterday’s debate, I’d like to fine tune what I said about the amendment.

First, I was mistaken when I told a few people that Leahy and Jello Jay were co-sponsors of DiFi’s amendment. They are co-sponsors of her exclusivity amendment, but only Bill Nelson is co-sponsor of her immunity amendment.

I ask unanimous consent that Senator Nelson of Florida be added as a cosponsor of the FISA Court evaluation on the immunity question amendment.

Second, here’s what DiFi says about her reluctance to vote for the bill with immunity that doesn’t include her amendment.

I voted for telecom immunity in the committee. I am not inclined to vote for it, to be candid with you, unless this amendment is adopted.

Not an absolute commitment, particularly coming from DiFi. But a start, at least.

Now here’s her description of what her amendment says. She starts with a characterization of the immunity included in the SSCI bill:

So let me begin by talking about the immunity provision of the bill. It is not as expansive as some would make it sound. The language would only cover cases where the Attorney General certifies that the defendant companies received written requests or directives from top levels of the Government for their assistance.

In other words, the Government, in writing, I stress in writing, assured those companies that the program was legal, the President had authorized the program, and that its legality has been approved by the Attorney General.

DiFi’s first paragraph is curious. It describes immunity broadly, including "written requests" or "directives"–I can’t tell whether the "directives" here, given the context, are written or not. She further says it would cover those who got these written and possibly non-written requests from "top levels of Government," but doesn’t specify that, by law, the immunity should be restricted to those who received written requests from the AG.

That said, I’m not sure what her following paragraph means. Is it conditional, implying that companies would only get immunity if they had something in writing. Or does DiFi’s, "I stress, in writing," mean the companies did, in fact, get something in writing? Also, her second paragraph seems to imply that only those who got authorization beforehand from the AG would qualify for immunity, which is different from what her first paragraph says. Read more →

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Dick versus Scottish Haggis: The Grudge Match

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Arlen "Scottish Haggis" Specter took the opportunity yesterday to enter a letter exchange he had with Dick Cheney into the Congressional Record. Here’s that exchange (see below the letters for my analysis; h/t for Selise to alerting me the transcripts were up):

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC, June 7, 2006.
Hon. Richard B. Cheney,
The Vice President,
Washington, DC.

Dear Mr. Vice President: I am taking this unusual step in writing to you to establish a public record. It is neither pleasant nor easy to raise these issues with the Administration of my own party, but I do so because of their importance,

No one has been more supportive of a strong national defense and tough action against terrorism than I. However, the Administration’s continuing position on the NSA electronic surveillance program rejects the historical constitutional practice of judicial approval of warrants before wiretapping and denigrates the constitutional authority and responsibility of the Congress and specifically the Judiciary Committee to conduct oversight on constitutional issues.

On March 16, 2006, I introduced legislation to authorize the Foreign Intelligence Surveillance Court to rule on the constitutionality of the Administration’s electronic surveillance program. Expert witnesses, including four former judges of the FISA Court, supported the legislation as an effective way to preserve the secrecy of the program and protect civil rights. The FISA Court has an unblemished record for keeping secrets and it has the obvious expertise to rule on the issue. The FISA Court judges and other experts concluded that the legislation satisfied the case-in-controversy requirement and was not a prohibited advisory opinion. Notwithstanding my repeated efforts to get the Administration’s position on this legislation, I have been unable to get any response, including a “no”. Read more →

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The Torture Debate

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Dan Eggen and Walter Pincus have an interesting article describing the debate between CIA and FBI over whether waterboarding worked with Abu Zubaydah. If the timeline they describe is accurate, then it means that Abu Zubaydah may have given up his most important intelligence before they started torturing him (save, perhaps, fingering Ramzi bin al-Shibh). As to the information he gave up under torture, the CIA and FBI dispute whether it was useful or not. The article suggests the possibility that the CIA may have destroyed the torture tapes to hide the fact that the water-boarding was ineffective (which also might explain why Kiriakou so far hasn’t gotten scolded for telling the world that the United States tortures, since he claims it was effective).

The article explains that Abu Zubaydah was first detained on March 28, 2002 and describes him undergoing traditional interrogation methods from April and August. And apparently, using those traditional methods, they were able to get two of the most public pieces of information from Abu Zubaydah.

There is little dispute, according to officials from both agencies, that Abu Zubaida provided some valuable intelligence before CIA interrogators began to rough him up, including information that helped identify Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11 attacks, and al-Qaeda operative Jose Padilla.

[snip]

Other officials, including Bush, have said that during those early weeks — before the interrogation turned harsh — Abu Zubaida confirmed that Mohammed’s role as the mastermind of the Sept. 11 attacks.

But then, the CIA and Bush wanted more, so they started water-boarding Abu Zubaydah, apparently in August (at least according to the CIA).

Whether harsh tactics were used on Abu Zubaida prior to official legal authorization by the Justice Department is unclear. Officials at the CIA say all its tactics were lawful. An Aug. 1 Justice document later known as the "torture memo" narrowly defined what constituted illegal abuse. It was accompanied by another memo that laid out a list of allowable tactics for the CIA, including waterboarding, according to numerous officials.

Note, there appears to be some debate about this detail. But the assertion by the CIA that it started in August implies that they didn’t start waterboarding Abu Zubaydah until the Bybee memo authorized it. And that the intelligence used to arrest Padilla was gathered without using torture. Of course, the CIA has a big big incentive to say that they didn’t start torturing Zubaydah until they were authorized to, so take that detail with motivation in mind. Read more →

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Why Did Reid Pull the Bill?

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This rather snotty article from the WaPo says that Reid didn’t pull the FISA bill yesterday because of Dodd’s efforts.

Reid spokesman Jim Manley said the decision had nothing to do with the efforts of Dodd and his allies. Indeed, for most of yesterday, Dodd appeared to be fighting a losing battle. His initial filibuster effort was steamrolled when the Senate voted 76 to 10 to take up the measure at noon.

Manley is, of course, full of shit. At the very least, Reid did the math to see that Dodd could filibuster this issue until the Christmas break, and since Reid intended to get funding done before the break, he was faced with postponing the break or punting the appropriations bills to the next year. So whatever else caused Reid to pull the bill, Dodd’s demonstration that he was willing to hold the Senate floor was one factor (apparently, Dodd only left the floor once during yesterday’s debate).

Snotty article also points to the amendments as one of the reasons Reid pulled the bill.

But in the face of more than a dozen amendments to the bill and guerrilla tactics from its opponents, Reid surprised his colleagues when he announced there would not be enough time to finish the job.

Now, best as I can count, I think I know of at least five amendments:

  1. Dodd’s amendment to pull immunity from the bill
  2. DiFi’s amendment to declare FISA the exclusive means of electronic tapping
  3. DiFi’s amendment to have the FISA Court review the authorizations the telecoms got before they received immunity
  4. [I think] A Whitehouse amendment to prohibit wiretapping of US Persons abroad
  5. [I think] A Whitehouse amendment to provide oversight of minimization
  6. Update: Beth Meacham says Leahy’s amendment–to substitute the SJC bill–came up just before Reid pulled the bill (thanks Beth).

I’ll try to clarify these later today. In addition, I’m sure there were going to be Republican amendments seeking to allow Bush to wiretap each and every Dirty Fucking Hippie and similar authoritarian fun.

Read more →

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WHORM and WAVES

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Amid the excitement yesterday, you may have missed the news that the White House visitor logs are public documents.

A U.S. judge ordered the Secret Service on Monday to disclose records of visits by nine prominent conservative Christian leaders to the White House and Vice President Dick Cheney’s residence.

The ruling, in response to a legal watchdog group’s suit, could shed light on the influence leaders like James Dobson of Focus on the Family have had on President George W. Bush’s administration. It may also affect legal efforts to force the release of visiting records of convicted lobbyist Jack Abramoff and other similar cases.

I’m sure this will be in the Courts for another year and a half–at which point Dick will invite Scalia to go quail hunting again, and we’ll never get the records.

But for now, look at the oozing skepticism of Judge Royce Lamberth. He describes the fluid nature of Secret Service records.

The Secret Service’s past retention practices for WAVES and ACR records have proven to be pliant and evolving. Paul Morrissey, the Deputy Assistant Director of the Office of Protective Operations, declares that every 30 to 60 days the Secret Service will copy the WAVES records stored on the Secret Service’s “servers” to a compact disc (CD-ROM). 3d Morrissey Decl. at ¶ 18. After making a copy of the records, the Secret Service transfers the CD-ROM containing the WAVES records to the White House Office of Records Management (WHORM). Id. at ¶ 18. A WHORM employee “typically signs a form acknowledging receipt of the records.” Id. After delivering the CD-ROM to the WHORM, the Secret Service erases the WAVES records “from its computer
system.” Id. The Secret Service’s practice of purging and overwriting WAVES records that are “older than 60 days” occurred from “at least 2001” until “November 2004.”[my emphasis]

And then elaborates on that in a footnote. Read more →

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Leadership

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As you’ve likely heard, Senator Reid has pulled the FISA bill. We win–for today, at least.

Here’s Nico PitneyThe HuffPo’s write-up.

The Dead Tree Media is a little behind. At 9:16, the headlines read:

Telecom Immunity Bill Advances

Telecom Industry Wins a Round on Eavesdropping

Um, no they didn’t.

A statement of thanks from Senator Dodd:

Today we have scored a victory for American civil liberties and sent a message to President Bush that we will not tolerate his abuse of power and veil of secrecy. The President should not be above the rule of law, nor should the telecom companies who supported his quest to spy on American citizens. I want to thank the thousands of Americans throughout the country that stood with me to get this done for our country.

And if you’d like to return the favor, this might be a good place to start.

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Sheldon Whitehouse’s Speech

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Whitehouse used his time to accuse AG Mukasey and DNI McConnell of being disingenuous in their public statements on FISA. As Whitehouse points out, the key issue (for him, in that he is alright with immunity) is how the government will be permitted to spy on Americans. Here’s his speech.

Just recently, the Attorney General of the United States published an opinion piece in the Los Angeles Times on our ongoing work to improve the Foreign Intelligence Surveillance Act (FISA). This follows closely on a similar opinion piece by Director of National Intelligence Mike McConnell in the New York Times. I ask unanimous consent that each of these be entered into the Record.

Both go on at some length about the importance of new legislation on foreign surveillance activities. They devote paragraph after paragraph to this. But the two leaders of America’s law enforcement and intelligence communities completely ignore – never once mention – the issue that is actually in dispute here: on what terms will we allow this administration to spy on Americans?

The heart of our debate today is the question of spying on Americans, 1. when they are outside the country, or 2. when they are incidentally intercepted by surveillance targeted at someone else.

This – wiretapping of Americans – has been the entire subject of our work on surveillance – and Judge Mukasey and Admiral McConnell never once even mention the topic.

There are really only two possibilities here, and each is regrettable. One is that these two gentlemen simply don’t know what is going on. That seems unlikely, because Director McConnell at least has participated in hearings on the subject, where we’ve discussed in detail our concerns about wiretapping Americans, and members of my staff are working through the details of the issue on a nearly daily basis with lawyers from the Office of the Director of National Intelligence and the Department of Justice. Read more →

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Senator Dodd Tries to Save the Constitution

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Senator Dodd is on the Senate floor, explaining why, later today, he will filibuster immunity for the telecoms. Via email, here he is knocking down the claim that AT&T will go out of business if the suits go forward.

"State secrets," "patriotic duty"—those, as weak as they are, are the arguments the president’s allies use when they’re feeling high-minded! When their thoughts turn baser, they make their arguments in dollar signs.
 
Here’s how Mike McConnell put it:
 
"If you play out the suits at the value they’re claimed, it would bankrupt these companies. So…we have to provide liability protection to these private sector entities."
 
Mike McConnell is quickly becoming an accidental truth-teller! Notice how the president’s own Director of National Intelligence concedes that if the cases went to trial, the telecoms would lose. I don’t know if that’s true, Mr. President—but we can thank Adm. McConnell for telling us how he really feels.
 
Of course, it’s an exaggeration to claim that that these companies would surely go bankrupt, even if they did lose. Read more →

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Isikoff to Congress: Make Sure You Ask for the Negroponte Memo

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For all his faults, Michael Isikoff is certainly a reliable journalist through whom people can launder leaks. Take his story (with Hosenball) today (h/t bmaz). Note the grammar of these first two paragraphs:

In the summer of 2005, then CIA director Porter Goss met with then national intelligence director John Negroponte to discuss a highly sensitive matter: what to do about the existence of videotapes documenting the use of controversial interrogation methods, apparently includ­ing waterboarding, on two key Al Qaeda suspects. The tapes were eventually de­stroyed, and congressional investigators are now trying to piece together an extensive paper trail documenting how and why it happened.

One crucial document they’ll surely want to examine: a memo written after the meeting between Goss and Negroponte, which records that Negroponte strongly advised against destroying the tapes, according to two people close to the investigation, who asked for anonymity when discussing a sensitive matter. The memo is so far the only known documentation that a senior intel official warned that the tapes should not be destroyed. Spokespeople for the CIA and the intel czar’s office declined to comment, citing ongoing investigations. [my emphasis]

This article is framed in terms of what Congressional investigators want, not in terms of what the DOJ investigation is finding. Indeed, the leak about the Negroponte memo appears to come from two people involved in the investigation in some manner–whatever that investigation may be–who want to make sure news of this memo comes out and who seem to have little faith that news of Negroponte’s clear instructions to Goss will come out otherwise.

Also, note the curious no comment in this paragraph. "Spokespeople for the CIA and the intel czar’s office." You might assume, forgetting the last year of jostling within the Bush Administration, that it means that Isikoff called Negroponte’s office and got a no comment. But while Negroponte was "intel czar" when he wrote this memo, he’s not now; he’s at State running things for Condi. So unless Isikoff forgot all these details, I’d suggest this article only appears to record a "no comment" from Negroponte, and it certainly doesn’t exclude a pretty big comment from him. As in, "Mikey, I’d like you to write about this memo I wrote to Porter, because I’m afraid it’s getting buried in the DOJ investigation." Read more →

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Did Nacchio Lie, or Just Misunderstand?

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The Rocky Mountain News has a good summary of the issues the Tenth Circuit will consider this week in Joseph Nacchio’s appeal. It’s worth reading the whole thing to get an idea of all the issues. But I’m most interested in the representation the RMN makes of the government’s claim regarding Nacchio’s claim that he lost business because he refused to wiretap Americans.

The judge should have let Nacchio present his classified, national security defense. Previous filings indicate Nottingham ruled the defense was irrelevant.

Defense argument

The CEO was optimistic about Qwest in early 2001 because he knew the company was in line to receive top-secret government contracts. Redacted court documents suggest Nacchio planned to argue that Qwest didn’t get the contracts because he refused to participate in a phone spying program.

Prosecution argument

Nacchio’s version of events was "a lie," said First Assistant U.S. Attorney Cliff Stricklin, lead prosecutor on the case, while speaking at a Denver luncheon in October. He said prosecutors were ready to discredit the defense if Nacchio presented it.

Now compare that to what a government source told the NYT for last night’s article.

A government official said the N.S.A. intended to single out only foreigners on Qwest’s network, and added that the agency believed Joseph Nacchio, then the chief executive of Qwest, and other company officials misunderstood the agency’s proposal. Bob Toevs, a Qwest spokesman, said the company did not comment on matters of national security.

One source is saying Nacchio’s lying, the other is saying Nacchio just misunderstood the ask. Read more →

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