The Next Hurrah

Mukasey and Contempt

by emptywheel

Even more than Mukasey's woozy answers on waterboarding, I'm disturbed by his opinions on executive privilege and contempt, partly because I suspect Mukasey would make sure no waterboarding happened going forward, and that his answers on waterboarding are designed primarily to avoid putting those who waterboarded--or signed off on it--in the past at legal risk. But Mukasey's opinions on executive privilege appear designed to protect the White House from any consequences for the USA purge. They appear ready to shore up the firewall preventing further investigation of Rove and Bush.

When Pat Leahy asked Mukasey about executive privilege, Mukasey suggested that DOJ couldn't prosecute Harriet or Josh Bolten or Turdblossom for contempt, because they relied on a DOJ opinion in deciding not to testify.

LEAHY: Judge, I want to go back to your last answer to me yesterday. And you and I discussed this a little bit outside.

You said a U.S. attorney could only refer a contempt citation of Congress to a grand jury as required by law if he or she believed reliance on the president's executive privilege claim was unreasonable.

I have some trouble with that. I don't think that rules on claims of privilege when they're raised by -- whether they're reasonable, but whether they're valid -- so let's talk a little bit about this. If Congress were to refer a contempt citation -- and there is a real probability there will be some as a result of the U.S. attorney scandal -- you're indicating that the U.S. attorney would undertake an independent analysis, assess the claim of privilege, in determining whether to bring the matter before a grand jury.

Is that right?

MICHAEL MUKASEY, NOMINATED TO BE U.S. ATTORNEY GENERAL

Well, let me flesh out a little bit what I understand the process to be and to have been, and maybe put a little bit of flesh on the bones of my answer.

As I understand it, when the White House gets a subpoena, they refer it to the Department of Justice, as, in fact, happened here, because I was shown the letter from Paul Clement relating to the assertion of the privilege.

If the White House then, relying on that letter, I mean, if the president, since he is the only person who owns the privilege, if he, relying on the Justice Department, asserts the privilege and there is, nonetheless, a contempt citation, we're in the position where the Department of Justice would have to prosecute someone who followed the advice that originated with the Department of Justice.

I am told that there are not one, but two, opinions of the Office of Legal Counsel, one of them from Ted Olson, and the other from a man I know and whose name I can picture, and I can't come up with it now, who served in the Clinton administration, who I referred to yesterday. I'm sure I'll think of it after I leave here.

But, anyway, there are two OLC opinions, saying that that would not be appropriate and...

LEAHY: What would not be appropriate?

MUKASEY: That for the U.S. attorney to prosecute someone for a contempt, based on reliance on an opinion letter that originated in the Department of Justice, would not be appropriate.

So basically, Mukasey is arguing that DOJ can't enforce contempt of Congress, because DOJ has already told the White House officials that they won't be held in contempt. If you look at his written answer to this question, you see why--if DOJ told the White House official they could invoke executive privilege, there would be no way to prove criminal intent, and therefore no reason to call a grand jury.

Exxon Would Like to be Excused

by emptywheel

Back when I taught, at the beginning of the school year each year the school would hand professors a description of the incoming freshman class so the professors could understand what world their students were coming from. It usually read something like:

2007: This year's incoming freshmen were born in 1989.

The top TV series for most of these students' teen years was American Idol.

These students matured after the first big judgments against online file-sharing.

During these students' freshman year of high school, the first legal gay marriages were performed in this country.

The Exxon Valdez disaster happened the year most of these freshmen were born.

I made up the whole list (though I think I'm close on most counts)--and my ignorance of current pop culture has been pretty well established. But my point was to contextualize the Exxon Valdez disaster which did, indeed, occur the year that most incoming college freshmen were born. It's been 18 years, and the interim years have seen record-smashing profits for Exxon, not to mention two wars to ensure our access to oil in the Middle East.

But Exxon is still fighting the fines imposed on it for the disaster.

The Supreme Court today agreed to hear an appeal by Exxon Mobil Corp. that seeks to overturn $2.5 billion in punitive damages a federal court ordered the company to pay for the 1989 Exxon Valdez oil spill off Alaska.

Stepping into the long-running dispute between the world's largest publicly traded oil company and more than 30,000 class-action plaintiffs, the court separately rejected the plaintiffs' appeal to reinstate the trial jury's original award of $5 billion in punitive damages. The 1994 award ultimately was cut in half during an appeals process that reached the U.S. Court of Appeals for the 9th Circuit, which issued its ruling in December.

Exxon Mobil argues that the $2.5 billion punitive award violates federal maritime law, and the Supreme Court agreed to take the case to settle that question. The justices declined to consider an argument that the award was so large that it violates the Constitution.

Now, setting aside the legal merits (or not) of Exxon's appeal (and note, Alito recused himself, so at least it'll be a relatively fair 4-4 fight), consider what this means for the externalities of business behavior and the environment. Exxon's negligence devastated the environment in Valdez for some time. But the only costs Exxon thinks it should pay are clean-up costs. And eighteen years after it caused that damage, our society (the same one funding wars that benefit Exxon) still haven't gotten the fine imposed on Exxon for its negligence.

 

Once again, nobody for Attorney General.

by Kagro X

One by one, Senators are coming out to express their reservations about the nomination of Michael Mukasey for Attorney General. From John McCain and Lindsey Graham (both of whom, to be frank, everyone should expect to roll over in the end), to John Kerry, to Bernie Sanders, Senators have expressed puzzlement and astonishment at Mukasey's inability to take a clear position on whether or not waterboarding is torture.

Still worse, if that's possible, is the fact that Mukasey remains unwilling to say definitively whether or not the President of the United States is bound by statutory law of any kind.

In a NYT op-ed published last week, Prof. Jeb Rubenfeld of Yale Law School identified an answer given by Mukasey that should prove far more troubling than the horrifying but considerably narrower answer he gave to the torture question:

AT his confirmation hearings last week, Michael B. Mukasey, President Bush’s nominee for attorney general, was asked whether the president is required to obey federal statutes. Judge Mukasey replied, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”

Patrick Philbin

by emptywheel

SJC will meet on Wednesday to take up SSCI's FISA Amendment. We'll get to see whether the Administration has sufficiently satisfied Scottish Haggis and Patrick Leahy to get the bill through committee with the telecom immunity still attached.

But there may be other reason to tune in, something I noticed on Selise's weekly Congressional hearing schedule:

Panel I:

Kenneth L. Wainstein, Assistant Attorney General, National Security, Division, U.S. Department of Justice

Panel II:

Edward Black, President and CEO, Computer & Communications Industry Association, Washington, DC

Patrick F. Philbin, Partner, Kirkland & Ellis, Washington, DC

Morton H. Halperin, Director of U.S. Advocacy, Open Society Institute, Washington, DC [my emphasis]

Patrick Philbin will testify. They're bringing in the last of the major participants in the hospital confrontation, which means we may well get one more version of how the White House bypassed DOJ--and the legal means of authorizing wiretapping--and had Alberto Gonzales authorize the wiretapping program himself.

Hopefully, Philbin will also explain how David Addington intervened to make sure Philbin was not promoted, all because he upheld the rule of law. That might be a really pointed way to show that the telecoms' participation in the wiretap program--in spite of the absence of AG authorization--did have consequences.

The Dodge on Retroactive Immunity

by emptywheel

Okay. This will serve as a summary of my analysis of the SSCI report on their FISA bill and to show how the SSCI managed to convince themselves to give retroactive immunity to the telecoms. Thus far, I have shown that:

• This report suggests that the Authorization to Use Military Force was central to the enactment of Bush's illegal warrantless wiretap program.
• The report claims they need to give telecoms immunity because, since the Administration invoked State Secrets, the telecoms have no effective means to defend themselves against lawsuits, even if they're innocent.
• The Republicans (backed by Bush's veto threat) want to retain the ability for the Attorney General to declare someone an agent of a foreign power and wiretap them overseas, with no court review.
• The current bill still does not provide court review of whether the government adheres to its own minimization procedures.

Now, as I said, the SSCI pretends they have to give telecoms immunity because mean old George Bush invoked State Secrets, leaving the telecoms with no way to protect themselves against lawsuits. But they use one more dodge to rationalize giving the telecoms immunity.

As SSCI points out, the telecoms would be immune from prosecution if they had been authorized to conduct wiretaps under 18 U.S.C. § 2511(2)(a)(ii).

Under the existing statutory scheme, wire or electronic communication providers are authorized to provide information and assistance to persons with authority to conduct electronic surveillance if the providers have been provided with (1) a court order directing the assistance, or (2) a certification in writing signed by the Attorney General or certain other officers that ―no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required.‖ See 18 U.S.C. § 2511(2)(a)(ii).

I've bolded those words, "or certain other officers," to emphasize that Jello Jay and the Republicans didn't actually specify what the law says. So let's look at the law, shall we?

Minimization, the Whitehouse Way

by emptywheel

Back from my pancake and sausage-inducted coma! Mmm pancakes. I've got just two more points about this SSCI report, then I'll let it drop and go clean the house.

A lot of people have been asking why Sheldon Whitehouse voted for the SSCI bill on FISA, even though it offers the telecoms retroactive immunity. While I can't answer that, I do suspect Whitehouse (who, after all, is the only rookie on the SSCI team) is picking his battles. And Whitehouse is fighting a battle that matters going forward: minimization. Minimization is the process by which the government makes sure that any information on non-targeted US persons collected in the course of wiretapping someone else gets hidden and, eventually, destroyed. Minimization is actually something Republicans at least say they back. But it's one of the big things that Mike McConnell found intolerable in the House version of FISA back in August.

What McConnell found intolerable in August basically amounted to giving the FISC the power to review the government's compliance with its own minimization requirements. Rather than having court review, the Administration insisted on a bill that had minimization requirements, but no way to enforce them. The current bill is better--it requires the Inspectors General of DOJ and any relevant Intelligence Community agencies to review their own compliance with minimization requirements.

The Inspectors General of the Department of Justice and of any element of the intelligence community authorized to collect foreign intelligence under subsection (a)--

(A) are authorized to review the compliance of their agency or element  with the targeting and minimization procedures as required by (e) and (f)

And then, presumably using those reviews, the Director of National Intelligence and the Attorney General report semi-annually on that compliance to the FISC and Congress. That's better than what we've got.

But Whitehouse believes (and I agree) that's not good enough. Whitehouse aims to amend this bill in SJC to give FISC--not the IGs of the respective agencies--the review authority.

Why Do They Need to Spy on Americans Overseas without a Warrant?

by emptywheel

Mr. emptywheel has started on the pancakes, finally, but I've got time for one more post.

According to public reports, Bush has threatened to veto SSCI's FISA bill as written. That's because of an amendment submitted by Ron Wyden which requires the Administration to obtain a FISA warrant if they want to wiretap an American overseas. The additional views in the SSCI report on the bill reveals some of what we can expect as we go forward with this debate.

In his description of the amendment, Wyden (writing with Russ Feingold) makes it clear that the Attorney General should not be able to determine, by himself, that someone is an agent of a foreign power.

One amendment, which we offered along with Senator Whitehouse, ensures that whenever the government wants to target an American overseas, the FISA Court – and not just the Attorney General – must determine that there is probable cause that the American is an agent of a foreign power. Americans’ rights should not diminish when they cross the border, nor should the extent of those rights be subject to the whim of the executive branch without the checks and balances provided by the court.

Sheldon Whitehouse, in his longer description of the amendment, also emphasizes judicial review of who is an agent of a foreign power.

I cosponsored and strongly supported an amendment, proposed by Senator Wyden, and approved by the Committee, that requires the Government to obtain a traditional warrant from the Foreign Intelligence Surveillance Court (FISC) if the Government wants to collect, from a source within the United States, against an American overseas. The amendment also requires that, in order to collect surveillance overseas on a U.S. citizen traveling or living overseas, the Government obtain a determination from the FISC that the targeted U.S. citizen is a foreign power or the agent of a foreign power. Furthermore, the FISC must issue an ex parte order approving this surveillance. These changes are critical to ensuring that the new warrantless surveillance authority enacted under the Protect America Act does not allow the Government to intrude inappropriately upon the privacy of U.S. citizens. Nonetheless, the Administration has already signaled that this amendment may create certain challenges that need to be resolved. If the Administration intends to propose an alternative, it must preserve the Court’s role in determining whether there is probable cause to believe the U.S. citizen is a foreign power or an agent of a foreign power. U.S. citizens do not, and should not be expected to, leave their privacy rights behind every time they leave the United States.

But that judicial review is apparently a problem for Republicans (or at least Bond, Hatch, Chambliss, and Warner), who think we should just trust in the good intentions of the intelligence community and the Attorney General.

Shorter SSCI: The Immunity Is Really for Qwest

by emptywheel

Nope. Mr. emptywheel hasn't made me my pancakes yet.

SSCI's report on the FISA Amendment uses remarkable logic for their justification for retroactive immunity.
It argues that, because the Administration has invoked State Secrets in all the suits against the telecoms, the poor telecoms cannot mount any kind of defense--cannot even prove their innocence, in the case of companies that refused to participate in the warrantless wiretap program. And so, they must be granted retroactive immunity.

Under the existing statutory scheme, wire or electronic communication providers are authorized to provide information and assistance to persons with authority to conduct electronic surveillance if the providers have been provided with (1) a court order directing the assistance, or (2) a certification in writing signed by the Attorney General or certain other officers that ―no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required.‖ See 18 U.S.C. § 2511(2)(a)(ii). Current law therefore envisions that wire and electronic communication service providers will play a lawful role in the Government’s conduct of electronic surveillance.

Section 2511(2)(a)(ii) protects these providers from suit as long as their actions are consistent with statutory authorizations. Once electronic communication service providers have a court order or certification, ―no cause of action shall lie in any court against any provider of wire or electronic communication service . . . for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter. Id. The Protect America Act and Title I of this bill provide similar protections from suit for providing information or assistance in accordance with statutory directives. All of these immunity provisions are designed to ensure that wire and electronic communication service providers assist the Government with electronic surveillance activities when necessary, and recognize the good faith of those providers who assist the Government in accordance with the statutory scheme.

To the extent that any existing immunity provisions are applicable, however, providers have not been able to benefit from the provisions in the civil cases that are currently pending. Because the Government has claimed the state secrets privilege over the question of whether any particular provider furnished assistance to the Government, an electronic communication service provider who cooperated with the Government pursuant to a valid court order or certification cannot prove it is entitled to immunity under section 2511(2)(a)(ii) without disclosing the information deemed privileged by the Executive branch. Thus, electronic communication providers are prohibited from seeking immunity under section 2511(2)(a)(ii) for any assistance they may have provided to the intelligence community, with the approval of the FISA Court, after January 17, 2007.

By addressing the situation in which an entity is prohibited from taking advantage of existing immunity provisions because of Government restrictions on disclosure of the information, Section 203 seeks to ensure that existing immunity provisions have their intended effect. The Committee also intends to reassure providers that as long as their assistance to the Government is conducted in accordance with statutory requirements, they will be protected from civil liability and the burden of further litigation.

[snip]

Providers who did not assist the Government are similarly unable to extract themselves from ongoing litigation, because the assertion of the state secrets privilege makes it impossible for them to demonstrate their lack of involvement. [my emphasis]

See, it's not that the telecoms broke the law. It's just that they're unwitting victims of the Administration's invocation of State Secrets. It's clever (however specious) when you think about it--because this rationale allows SSCI to claim they're actually providing for a kind of judicial review that wasn't there previously.

The procedure in section 203 allows a court to review a certification as to whether an individual either assisted the Government pursuant to a lawful statutory requirement or did not assist the Government, even when public disclosure of such facts would harm the national security. Because an assertion of state secrets over the same facts would likely prevent all judicial review over whether, and under what authorities, an individual assisted the Government, this provision serves to expand judicial review to an area that may have been previously non-justiciable. In addition, the statute explicitly allows the court to review for abuse of discretion the Attorney General’s certification that a person either did not assist the Government or cooperated with the Government pursuant to statutory requirements.

I'm curious. Did Jello Jay Rockefeller get some kind of assurances from the Administration that all of a sudden courts could review this stuff? Because if a court were to determine that the telecoms had not acted in good faith, then they could only rule by breaking revealing State Secrets.

More importantly, think about the underlying logic of this rationale. It accepts the Administration's invocation of State Secrets as a fait accompli, and legislates based on that. In doing so, it takes any review of the Administration's invocation of State Secrets away from the Courts.

But that's okay. I trust this Administration not to invoke State Secrets just to hide its own lawbreaking. Really I do.

They're Using AUMF in Their Justification for Warrantless Wiretapping

by emptywheel

I'm going to have a whole slew of posts on this SSCI report on their FISA bill (you'll all be hoping mr. emptywheel gets up and distracts me with pancakes, no doubt). In this post, I want to show the language the report uses to privilege the Authorization to Use Military Force. In it's description of the basis for the program, the report depicts the warrantless wiretapping program as distinctly military.

The NSA program was described by the Department of Justice in January 2006 as ―an early warning system…to detect and prevent the next terrorist attack…a program with a military nature that requires speed and agility.

It then invokes the AUMF explicitly--though it doesn't quite say that the AUMF authorized the program.

After the attacks of September 11, 2001, Congress passed a joint resolution on September 14, 2001, declaring that the attacks ―continue to pose an unusual and extraordinary threat to the country and calling on the President ―to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any further acts of international terrorism against the United States . . . . Authorization for Use of Military Force, Pub. L. No. 107-40, section 2(a), 115 Stat. 224 (2001). The President also declared a national emergency on September 14, 2001, stating that there was ―a continuing and immediate threat of further attacks on the United States. The intelligence community assessed in October 2001 that additional waves of al Qaeda attacks were imminent. This assessment was manifested in the mobilization of 35,000 reservists and National Guard troops for homeland defense; actions by the Attorney General putting all federal and state law enforcement officials and the U.S. business community on the ―highest level of alert; and the formal announcement of the FBI that the Government had reason to believe that new terrorist attacks might be launched in the United States over the next several days. It was during this period that the President first authorized the program. [my emphasis]

This is troublesome because--as the blogospheres best lawyers have shown--the rationale for this program changed over its life. As far as we know, it was initially authorized based on the theory of the unitary executive, a theory which collapsed in light of SCOTUS rulings on executive power. After that theory collapsed, the Administration then claimed that the AUMF had authorized the program, even though it had done no such thing and Democrats describe explicitly refusing such authorization. Which is why it's disturbing that a report coming out of a Democrat-led committee (albeit one chaired by a bowl of jello) would include this in the report, even if it doesn't make the connection explicit. Once again, Jello Jay got rolled by Kit Bond.

I'm not the only one who seems to see this as a problem. Senators DiFi, Snowe, and Hagel make it clear in their additional views that they do not believe the AUMF authorized the warrantless wiretap program.

This intent, and FISA practice for more than 20 years, was cast in doubt after September 11, 2001. At that time, the Executive Branch concluded that it was not bound by FISA’s procedures, and proceeded with the Terrorist Surveillance Program (TSP) without requesting amendments to FISA.

As explained in the Department of Justice’s 2006 White Paper on the legality of the TSP, the Administration cited the Authorization for the Use of Military Force (AUMF) against al Qaeda and its supporters as an alternative authority. The Department pointed to language in FISA that it was exclusive except as authorized by other statute.

Congress intended for the ―other statute to be the laws governing criminal wiretaps, not a broad and undefined exception.

We do not believe that the AUMF provided this authorization. We have seen no evidence that Congress intended the AUMF to authorize a widespread effort to collect the content of Americans’ phone and email communications, nor does the AUMF refer to the subject.

Furthermore, FISA already contained a provision that clearly governed surveillance actions in a wartime situation – a 15-day authorization for warrantless surveillance following a declaration of war. So this was not an uncontemplated question following September 11 and the passage of the AUMF.

All of which begs the question--if two Republicans and our Republican-lite DiFi all believe strongly that AUMF didn't authorize the warrantless wiretap program, why is it so prominently featured in the description of the context of the program?

About that Need for a Whistleblower Law...

by emptywheel

I believe it was just the other day when I was saying it was more urgent to implement whistleblower protection than to write a new journalist shield law. This doesn't change my opinion in that regard.

This summer the House Judiciary Committee launched an effort to collect tips from would-be whistleblowers in the Justice Department. The U.S. attorney firings scandal had shown that much was amiss in the Department, and with the danger of retaliation very real, the committee had set up a form on the committee's website for people to blow the whistle privately about abuses there. Although the panel said it would not accept anonymous tips, it assured those who came forward that their identity would be held in the "strictest confidence."

But in an email sent out today, the committee inadvertently sent the email addresses of all the would-be whistleblowers to everyone who had written in to the tipline. The committee email was sent to tipsters who had used the website form, including presumably whistleblowers themselves, and all of the recipients of the email were accidentally included in the "to:" field -- instead of concealing those addresses with a so-called blind carbon copy or "bcc:".

See, if we didn't force our whistleblowers to sneak around so much, this wouldn't be the monumental fuck up it is. As it is though, this is likely to discourage a more whistleblowers from coming forward.

That say, I will at least entertain (for the moment) that this was deliberate. The Republicans have always hated this tip line--they've been trying to shut it down since Conyers started this. And the email explained that the tip line has now been shut down.

This message is to inform you that the Committee is now ending the tip line and has voted to approve procedures governing the confidentiality of the e-mails received.

So this email included the emails of everyone who has--or will--submit a tip to the tip line. And that entire list was carbon copied to Cheney's office.

Some of the email addresses appear to be transparently fake, but there's also, much more troubling, a vice_president@whitehouse.gov carbon copied on the email, which is the public email address for Vice President Dick Cheney.

In other words, it would be very smart poker if some disloyal Democratic staffer or a Republican staffer to "accidentally" send Cheney the list of all those who were revealing secrets about DOJ. There have been some Republican leaks of damaging testimony in the past. What would it take for someone to "accidentally" make this tip line backfire--to make it serve the intelligence purposes of those trying to avoid responsibility for politicizing DOJ, rather than the opposite?