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All reports by Brian Beutler

How to Save the Constitution, and a Few Other Things

by Brian Beutler, The Media Consortium: Fri., Jul 11, 2008
Filed under: Congressional Oversight

WASHINGTON, D.C. — Often touted as presidential timber, Sen. Russell Feingold of Wisconsin last year abandoned the playing field of the presidential contest to continue his mission as one of the Senate’s most outspoken defenders of civil liberties. Yesterday, the Senate passed into law the Protect America Act, a bill that expands executive power to spy on Americans and grants retroactive immunity from lawsuits to telecom companies who provide customers’ private records to the government. On June 26, just as senators were preparing for final debates on the bill, which eliminates many of the civil liberties protections of the Foreign Intelligence Surveillance Act, Feingold talked to Brian Beutler about civil liberties, John McCain, the worst thing President Bush has done — and what a President Obama should say in his inaugural address.

BRIAN BEUTLER: So starting on FISA (and the Protect America Act), a lot of people were impressed with the House Democrats’ performance back in February when they Senate bill (that extended the warrantless wiretapping program). In the interim, what happened? Where was the pressure coming from within the Democratic party to revisit this issue and not wait at least until there was a new administration in place?

SEN. RUSSELL FEINGOLD: This is just really amazing to me, because there’s always the pressure on this. There’s a very interesting thing that happens with these where people get fired up and people really have good instincts about civil liberties and would really prefer to be on this side. I think that’s what they really believe in. So you get kind of a head of steam, which I noticed happened with the blocking of the reauthorization of the Patriot Act for a while, until people caved. And it happened for a while even in the Senate on the PAA. But what was a surprise was what the House did. I mean that was really impressive that a group of people, including Steny Hoyer and others, stood up and said, “No, we’re not gonna do this.”

But the problem is that there’s this fear, that sort of grows over time, that somehow Democrats are gonna get hit over the head by claims that they’re soft on terrorism. And it always rears its head, especially when we’re heading into a recess period or an election period. What’s happening right now is that they claim that the problem is that the. We were able to make the argument early in the year that the orders were lasting for a year. So even if the law expired, the orders allowing the surveillance were still in place. Until August. Well, we’re coming up to August.

Now the truth is that we could simply extend the bill for a year, sunset it. We could extend the orders. But as you get closer to these deadlines, the administration uses these intimidation tactics, and far too many Democrats fall for it. They think that somehow the administration’s gonna win this argument. I don’t think that’s true. I think the Democrats did great the last few months when the House stood up to them. But there is this sort of inertia — if that’s the right word — that leads to ultimately the caving of very large numbers of Democrats, even voting for an awful piece of legislation like this. That’s the only way I know how to describe it. I don’t know, the day-to-day pressure — it’s like this constantly pulsating fear of being accused of being soft on terrorism.

BB: Following up on that, then. How, politically, does one change that mindset — that being tough on national security means that the Democratic party has to support wars and the erosion of civil liberties?

RF: I think you show people that those who stand firm on this do just fine politically. I like to think of myself as an example of that. There are many people like that. The truth is that if you properly articulate that you want to balance national security and make sure we protect civil liberties at the same time. And take the time to go through the arguments — which are very frankly easy to win — these are not hard arguments. When anybody really listens to it, they just kinda shake their head. Then you can prevail and show people that you don’t need to buckle at the knees on this. But it requires a little patience. It requires a little faith in peoples’ willingness to listen. And that’s how in the long run you prevail. And I’m hoping that a lot of people who run this time, unlike a lot of people who ran in 2006, are held accountable.

I’m sure many of our candidates are gonna say, you know, I was against immunity and I don’t like this bill. Well, they need to be held accountable when they get here. And that hasn’t really happened. We have a lot of Democrats, even some who voted to get us out of iraq, who aren’t voting properly on this, in a way that is, you know frankly, very damaging to our efforts to improve the bill.

BB: I understand. So you don’t think that (in the next administration) an Attorney General Feingold or a Director of National Intelligence Feingold would be crucial?

RF: I certainly don’t think it’s crucial, and I think that the place I am right now — where I sit on the intelligence committee, the foreign relations committee and the judiciary committee — gives me a really unique angle on this. I think I may be the only person that has that combination of committees that relates to all of these issues.

BB: That’s why I requested the interview.

RF: I think it gives me a rather unique opportunity to pursue these issues. In the Senate. So I think that might be the best place for it.

BB: Assuming this passes the Senate, what’s the fix? Is there one? And when?

RF: Hopefully, under President Obama he will acknowledge, as he has in the past, not only how outrageous this immunity is — although that’s gonna be very hard to deal with because the horse may already be out of the barn — but I think, even more importantly, he will have an opportunity to review these very expanded powers that are given to the government to surveil our international communications. And to say, look, we need legislation that has some sort of court review and mechanisms for control of this, because it’s completely lawless. Now, if he doesn’t do it it’ll be very sad. And, in fact, my feeling, of course, is: let’s not let this go through now. It’s much harder to pass something and change it after the fact. But you know, I’m hoping we’ll have both houses (of Congress) and I’m hoping Obama will understand how important this is. And that will be a golden opportunity for him to correct one of many things that needs to be corrected from this administration. So I’m hoping it starts as early as January 20th.

BB: ….If the (telecom) immunity provision (to the Protect America Act) does go through, the way I see it there are two possibilities for discovery of what exactly the Bush administration was doing with the Terrorist Surveillance Program (the administration’s name for its warrantless surveillance of Americans and others). One is with the inspector general reports that the bill authorizes. I know a lot of people make fun of the idea of the administration investigating itself. But Glenn Fine (inspector general for the Department of Justice) is an interesting character…

RF: Yeah, he’s been very independent and very credible. You can expect something very good from that in terms of credibility, I agree with that. There’s no question there, that you know that’s one small positive piece here.

BB: Can the Bush administration just ignore that or signing-statement it out of existence, and if the IG (inspector general) process doesn’t work, would you believe that a (President) Obama would reveal to the Congress or the country just what was happening back in the TSP days?

RF: I don’t know what he’d reveal. I do believe he’d take the IG provisions seriously if, for some reason, this administration does not. I do think he’d take any conclusions they’d come to seriously. So that’s the good news, is that I really do think that he would. And he would have no reason not to. It’s not his administration. He’s a person that has been very associated with the rule of law in his career. So a President Obama to me would be somebody who, if there is a failure to follow through on this, who may well help us have follow up on this.

BB: Would a McCain presidency mean the continuation of these sorts of–

RF: –You know, I think McCain would be better on this than the current administration, to be candid with you. There’ve been some remarks that he’s made about — even though he’s pulled back some on telecom immunity — he’s said that he would do no signing statements. I think he knows and his people know that this administration is just out of control and is just really, lawless. But the difference between Obama and McCain on the specifics would be significant. I think that Obama would be far more likely to insist on some court review and some protections against things like bulk collection of information, reverse targeting of Americans. There’s no question he would understand that and I would hope we’d have a much better shot at him trying to correct those problems than Senator McCain.

BB: And what about for the state of the broader national security state and civil liberties state? What would a McCain presidency mean beyond FISA? So, national security letters, torture, REAL ID –

RF: I think he’d be much better than the current administration, because he has sensitivity to issues like torture. He’s shown some sensitivity — not so much in his voting but in his comments — about some of the other issues. But again, Obama’s far more likely to take the viewpoint that I take across the board, which is that the range of these power grabs in this administration have to be pulled back. And I would urge him to make that very statement in the inaugural address.

I’ve written an op-ed that was published in the Milwaukee Journal Sentinel this Sunday — this past Sunday — which says look, this new president, whoever it is, has to renounce these extreme powers, or its gonna start getting locked into our constitutional history. Right now the position of this administration is an outlier in the terms of our constitutional history. If this new president doesn’t renounce it and say, look we’ve gotta get this back in balance, then we will have altered the nature of our very Constitution. So this is a critical turning point in the constitutional history of America. All right. I’m running out of time.

BB: Do you have two more minutes?

RF: Okay.

BB: Okay…off the top of my head I counted several examples of the civil liberties and national securities state run amok. There was FISA, torture, national security letters, REAL ID, the border fence — it goes on and on.

RF: There’s a lot.

BB: There’s a lot. I mean obviously there’s a mindset in play here. But assuming that the mindset doesn’t change, what’s been the most egregious thing that’s occurred in the last seven years and what’s the most important to scale back.

RF: It would be, I think, the overall assertion that, under Article II of the Constitution, the president can look at a clear statute that’s been signed into law and ignore it because of his so-called commander-in-chief powers. Whether that means a justification for warrantless wiretapping, whether that means saying, look, I can do whatever I want on torture. That overall assertion is the thing that underlies many of the specifics, and that’s the one that needs to be pushed back to the Youngstown Steel case test articulated by Justice Jackson.

BB: Assuming that doesn’t happen, which is the most odious piece of legislation of the last seven years or the–

RF: –The legislation isn’t as much the problem as, for example, the warrantless wiretapping program…I would say the illegal warrantless wiretapping program (which was instituted by executive order).

BB: And the last question is a sort of procedural one. It’s about the filibuster (by Sen. Christopher Dodd, D-Conn.) that you supported back in December. Why haven’t we seen more of that on certain issues, when controversial legislation has gotten to the floor…

RF: Actually I’ve been doing that consistently on issues for years and years, including this issue. I started working on this issue in December 2005. And I was out there trying to slow down the Patriot Act in the first place. I was the principle person using procedural techniques to prevent the reauthorization of the Patriot Act. I was equal partner with Sen. Dodd on the filibuster on this. I have tried to use it. Other senators are not as excited about it. But you know I have very strong views on these issues. And they do know that, at least with regard to my approach, they have to go through a fair amount of procedural stuff (such as being made to debate, as they did this week, the amendment Feingold offered with Dodd to the Protect America Act) if it’s something this bad. It should probably be done more, because, in the Senate, if you show that you’re gonna inflict a little pain in terms of time, sometimes you can, you know, get somewhere. Like we’re doing here. Well, this thing will still go through, but we’re making them realize that it’s not going to be easy, and that’s very important.

How to Think about Immunity

by Brian Beutler, The Media Consortium: Tue., Jul 1, 2008
Filed under: Congressional Oversight

As has been widely reported, the House’s new FISA bill probably won’t be up for a vote in the Senate until after the July 4th holiday. But the bill continues to be subjected to a great deal of criticism on the left for its telecom immunity and surveillance provisions.

And for good reason! The bill allows for bulk collection of data on American citizens without warrants or oversight of almost any kind, and, for all intents and purposes, it requires civil lawsuits against the telecommunications companies that participated in President Bush’s warrantless wiretapping program to be thrown out of court. This, many would like us to believe, is some sort of compromise.

But there’s still the matter of the Inspector General reviews. The bill, as it stands right now, requires the IGs of all agencies involved in the wiretapping program to conduct reviews of a number of important things including:

(A) all of the facts necessary to describe the establishment, implementation, product, and use of the product of the Program;

(B) access to legal reviews of the Program and access to information about the Program;

(C) communications with, and participation of, individuals and entities in the private sector related to the Program;

(D) interaction with the Foreign Intelligence Surveillance Court and transition to court orders related to the Program; and

(E) any other matters identified by any such Inspector General that would enable that Inspector General to complete a review of the Program, with respect to such Department or element.

The way the law is written, the inspectors general of all the relevant agencies will convene shortly after the law is signed and name a Senate-confirmed designee to head the review process. (Senate-confirmed inspectors general are, at least in theory, more independent than politically appointed inspectors.) Over the course of the next year, each individual inspector general will examine his own agency’s role in the warrantless wiretapping program. At the end that term, the reviews will be turned into a comprehensive report and submitted to the relevant congressional committees in both classified and unclassified forms. Though the law lists no penalties for non-compliance (and so it’s hard to say why the administration wouldn’t just ignore these provisions) it does require the administration to expedite the process, and refrain from obstructing it (by, for example, dragging their feet on providing investigators with security clearances) in its own ways.

Now, that doesn’t necessarily mean that All Will Be Revealed to the public. But it’s not nothing, either. People often scoff at the notion of the administration investigating itself and tend to regard calls for inspector general reports as inherently corrupt… until, of course, some inspector general releases some damning report detailing yet more corruption in the White House. A number of those reports have been written by Glenn Fine–who heads the IG office at the Department of Justice–and, if the bill passes, he will be one of the officials looking into the wiretapping program, and perhaps be in the lead.

This isn’t to carry water for congressional Democrats. But it is useful to look at what this provision and the immunity provision, taken together, mean as the bill’s written right now. For instance:

  • If the fight over immunity is important to you because you want the telecommunications companies to pay for their crimes, or because you worry about the precedent the government is setting by providing amnesty to corporate criminals, then you’re basically out of luck.
  • If the fight over immunity is important to you because you want the ins and outs of the illegal wiretapping program to be revealed in as much detail as possible, though, then all is not lost.

Obviously, it would be foolish to assume that Bush administration officials plan to cooperate with the inspectors general full stop. (You may have already noticed, but they have this tendency is to lie and obfuscate and stall when confronted with any sort of oversight, even oversight from within.) But in this instance they’re up against a deadline–and therefore some unusual incentives. If the FISA bill passes, say, a week from now, the White House will have about six months left in office, after which all of these agencies will undergo huge staff changes–particularly huge if Obama wins: no more Michael Mukasey, no more Robert Gates.

And it’s precisely for this reason that Bush et al may want to be a bit less intransigent with the inspectors general than they’d normally be, and get the reports out of the way while they’re still in office. Because if they do what they normally do and stand athwart the investigation, then a new administration will come in and the whole game changes, potentially drastically. One can imagine John McCain taking a page from Gerald Ford and continuing the obfuscation. But if Barack Obama wins the presidency (obviously still a big if) one can imagine a pretty thoroughgoing investigation and report. So in that sense, the administration might be inclined to be more helpful to the inspectors general than it normally is.

Some Capitol Hill Democrats are a bit more optimistic still. They think that no matter what approach Bush takes with the IG requirements, the reviews will take so long that they’ll bleed into a new (hopefully Democratic) administration no matter what.

But many still worry about a white wash. Or that the administration will provide the IGs with juuust enough information that the report will be completed quickly, but with the bare-minimum of disclosure. Possible, and unfortunate. But they might be at least somewhat chastened by the introduction of a new amendment from Sen. Jeff Bingaman (D-N.M.) If it passes (yet another big, big “if”) it will delay the provision of immunity until 90 days after the IG reports are submitted to Congress.

There are a couple ideas here. The first is that by making telecom immunity contingent upon the submission of the IG reports, Bingaman’s basically offering a guarantee that the IG reviews will be complete, and (at least in some cases) reported with some measure of credibility. The comprehensive report might not be a white wash after all. And if it’s extremely damning, the (new, more Democratic) Congress could–but probably wouldn’t–act in the intervening 90 days to amend the law and strip it of its immunity provision. Likewise, if the IG report does turn out to be weak, Congress could press for more.

Clearly, there are ifs, built on top of ifs, built on top of top of maybes here. But consider an alternative. If both the IG provisions and the immunity provision were to be removed from the FISA legislation in the Senate, and the lawsuits allowed to proceed during the Bush administration, it would set a better legal precedent, but there’d remain the risk that a great deal of information about the illegal wiretapping program would never make it out of the court house. No great victory for those interested in the discovery process. If, on the other hand, the IG and immunity provisions remain, and the Bingaman amendment fails (the most likely scenario), it’s a loss for the rule of law, but there’s still some chance that at least some of the details of the wiretapping program will be unearthed and made public.

Obviously, the ideal bill would allow the lawsuits to proceed and would require an IG report and would respect the Constitution, but our representatives–both Republicans and Democrats–foreclosed on that option.

Several months ago, the immunity battle was both an important moral fight and an effective way to derail a different extremely bad bill–one that lacked an IG provision altogether. At this point, with a different bad bill on its way to passage, immunity is pretty clearly not the grounds on which this bill is going to be stopped–if those grounds exist at all. In other words it might be time to learn to stop worrying about immunity and start pressuring Congress not to settle for a bleached IG process. And then to start thinking about how to undo all the other odious aspects of this legislation down the line.

John Yoo’s Attempt to Discredit a Critic

by Brian Beutler, The Media Consortium: Mon., Jun 30, 2008
Filed under: House Judiciary Committee Reports

Last week’s House Judiciary subcommittee hearing, which featured special guests John Yoo and David Addington, drew a lot of attention for its rhetorical bombshells (Chairman Conyers: Could the president order a suspect buried alive?) and the tense back and forth between the witnesses and Democrats on the bench. But Addington and Yoo are both long-time lawyers–lawyers for politicians, no less–and as such their testimony revealed much, much less about the Bush administration’s torture regime than many hoped it would.

However, there was this peculiar exchange between Yoo and Rep. Steve King (R-Iowa), on the subject of author Philippe Sands’ new book, Torture Team which contains a number of startling revelations about the administration’s abandonment of the eighth amendment.

Yoo: Sir, I haven’t read the book. I did read Mr. Sands’ testimony before this committee, and I noticed in the testimony he said that he had interviewed me for the book. And I can say that he did not interview me for the book. He asked me for an interview and I declined. So I didn’t quite understand why he would tell the committee that he had actually interviewed me.

King: And with that answer, Professor Yoo then, I’m going to interpret that to mean that at least with regard to that statement that he had interviewed you, you find that to be a false statement, and that would perhaps reflect on the veracity of the balance of the book.

Yoo: I can’t tell what else is in the book, but I don’t understand why he would say that he interviewed me for the book. I can tell the committee that he contacted me once. He wanted to interview me for the book and I said I don’t want to talk to you. I wrote my own book, you can look at my own book. Everything I have to say is in my book. And then he told the committee that he’d interviewed me.

The idea, of course, is that someone who hates America so much that he’s willing to fabricate all sorts of untrue allegations about Yoo (and, perhaps, other administration veterans) is not to be believed. When I heard this interchange, though, I emailed Sands and asked him to clear the air. He was fairly unambiguous: “I never claimed to have interviewed him! As set out in my book: we debated. ” So who’s telling the truth?

Well, Yoo’s right about approximately one thing: Sands did testify before the very same House panel, on May 6 of this year. But that’s about the extent of it. In his prepared remarks, Sands submits that, “[o]ver hundreds of hours I conversed or debated with many of those most deeply involved. They included… the Deputy Assistant Attorney General at DoJ (Mr Yoo).” [Emphasis mine.]

You can read, as Yoo did, for yourself. Or you can watch, starting about 2 min 45 sec into the video.
And, indeed, Yoo and Sands did debate each other in October 2005. You can listen to that debate in full if you follow this link. One hesitates to throw the word perjury around (maybe Yoo… misread… Sands’ testimony). But it is safe to say that the goal here was to discredit a critic who’s brought to light a great deal of damning information about the Bush administration and its allies.

The Torture Taint

by Brian Beutler, The Media Consortium: Thu., Jun 26, 2008
Filed under: War Making and OversightCongressional Oversight

Even as they worked out the details of how interrogation techniques widely regarded as torture would be used on detainees held at Guantanamo Bay, Pentagon officials sought to keep the blood off Defense Department hands.

WASHINGTON, D.C. — Before the Pentagon’s detainee interrogation policy was finalized in 2002, military officials — both supporters and opponents of the controversial techniques it condoned — concerned themselves primarily with protecting their organizations from scrutiny rather than with preventing the techniques from being instituted in the first place. One senior Pentagon official even recommended removing detainees from the U.S. detention facility in Guantanamo Bay, Cuba, so that techniques that appeared to violate the U.S. Code of Military Justice could not be attributed to his agency.

On November 4, 2002, Sam McCahon, chief legal adviser to the Defense Department’s Criminal Investigation Task Force, raised objections to a legal opinion authored by Lieutenant Colonel Diane Beaver of the Army’s Judge Advocate General Corps that greenlighted a number of controversial interrogation tactics. In a memo to CITF Commander Brittain Mallow, McCahon wrote: “Any policy decision to use [techniques that could violate the Constitution’s prohibition on cruel and unusual punishment] will be contrary to my recommendation.”

McCahon was particularly concerned about the harshest techniques outlined in the Beaver memo, including waterboarding, cold weather or water exposure, “the use of non-injurious physical contact,” or “scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family”.

“Nonetheless,” McCahon went on, “if the application of the requested measures is approved, I recommend the following actions to mitigate the adverse impact on the CITF.”

McCahon suggested first that detainees subjected to harsh treatment be interrogated at a facility other than Guantanamo. In addition, though, he recommended that those selected for harsh interrogations “not be a (sic) considered for referral to the Military Commission” in order to “reduce the risk that the more aggressive techniques used against a few detainees [will] be revealed.” His last request was that “CITF personnel should not participate in aggressive techniques… [to] preserve the integrity of our investigations [and] insulate CITF personnel from potential administrative or criminal liability.”

The goal, in other words, was to keep blood off CITF’s hands.

McCahon wasn’t alone in this thinking. On October 2, 2002, just one month before he sent off his own memo, military and government attorneys — including Beaver — met in Cuba with the official purpose of discussing what they called “counter resistance strategy” with Guantanamo officials. In reality, though, they negotiated the implementation and legality of a series of controversial detainee interrogation tactics that would soon become the official policy of the Department of Defense.

“We may need to curb the harsher operations while ICRC is around,” Beaver told the group, according to minutes of the meeting. “It is better not to expose them to any controversial techniques…. They will be in and out, scrutinizing our operations, unless they are displeased and decide to protest and leave. This would draw a lot of negative attention.”

The ICRC refers to the International Committee of the Red Cross, which monitors the conditions in which detainees at Guantanamo are kept.

Although Beaver, now retired from the military, was strongly of the opinion that the techniques under discussion were legally permissible, her advice echoed concern over the potential for a public relations disaster expressed by military and law enforcement officials who opposed the use of harsh interrogation techniques.

Bernard Barrett, spokesperson for the ICRC in Washington, DC, said leaders of his organization knew that the military was not providing the group access to all prisoners when they began meeting with detainees at Guantanamo Bay in January, 2002.

To maintain access to the detainees and a working relationship with the government, he said, the ICRC doesn’t divulge to reporters its findings or deliberations with officials. But, he added, “any attempt [on the part of the government] to mislead us is not conducive” to maintaining a cooperative relationship. He also said the ICRC is confident that the situation was rectified in September 2004 — almost two years after the harsh interrogation regime was first approved by the Pentagon.

Guantanamo officials weren’t the only ones hoping to distance themselves and their organizations from the so-called coercive techniques. A May 2008 Department of Justice inspector general audit found that senior officials at the Federal Bureau of Investigation had raised concerns about detainee treatment as early as 2002, instructing FBI agents not to participate in questioning sessions alongside military or CIA interrogators using controversial techniques.

However, the FBI did not require agents to report incidents of abuse until the Abu Ghraib scandal broke in 2004. The IG report showed “a failure of leadership on the part of senior FBI officials,” according to Jameel Jaffer, national security director of the American Civil Liberties Union.

Dodd and Feingold on FISA

by Brian Beutler, The Media Consortium: Wed., Jun 25, 2008
Filed under: Congressional Oversight

Last night, Chris Dodd took to the floor of the Senate and made an impassioned plea to his colleagues not to support the House FISA legislation. The video, and text are available here.

Earlier today, Russell Feingold followed suit, in words that echoed his remarks in response to my question at a New America Foundation event on Monday. Here’s a snippet:

This legislation has been billed as a compromise between Republicans and Democrats. We are asked to support it because it is a supposedly reasonable accommodation of opposing views. Let me respond as clearly as possible: This bill is not a compromise. It is a capitulation. This bill will effectively and unjustifiably grant immunity to companies that allegedly participated in an illegal wiretapping program — a program that more than 70 members of this body still know virtually nothing about. And this bill will grant the Bush administration — the same administration that developed and operated this illegal program for more than five years — expansive new authorities to spy on Americans’ international communications. If you don’t believe me, here is what Sen. Bond had to say about the bill: “I think the White House got a better deal than even they had hoped to get.” And House Minority Whip Roy Blunt said this: “The lawsuits will be dismissed.” There is simply no question that Democrats who had previously stood strong against immunity and in support of civil liberties were on the losing end of this backroom deal.

I think it’s safe to say that even many who voted for the Protect America Act last year came to believe it was a mistake to pass that legislation. And while the House deserves credit for refusing to pass the Senate bill in February, and for securing the changes that are in this new bill, this bill is also a serious mistake…Mr. President, the immunity provision is a key reason for that. It is a key reason for my opposition to this legislation and for that of so many of my colleagues and so many Americans. No one should be fooled about the effect of this bill. Under its terms, the companies that allegedly participated in the illegal wiretapping program will walk away from these lawsuits with immunity. There is simply no question about it, and anyone who says that this bill preserves a meaningful role for the courts to play in deciding these cases is wrong…But I’m concerned that the focus on immunity has diverted attention away from the other very important issues at stake in this legislation. In the long run, I don’t believe this will be remembered as the ‘immunity’ bill. This legislation is going to be remembered as the legislation in which Congress granted the executive branch the power to sweep up all of our international communications with very few controls or oversight.

On the other hand, moments ago Diane Feinstein just announced that she’s read the Department of Justice’s legal memos, the written requests from the White House to the telecommunications firms, and met with representatives from those firms, and after contemplating that balanced body of information, has decided to support the legislation.

FISA, Feingold, and a Filibuster?

by Brian Beutler, The Media Consortium: Mon., Jun 23, 2008
Filed under: Congressional Oversight

Watch video, courtesy of the New America Foundation, in which Sen. Russell Feingold fields a question from The Media Consortium’s Brian Beutler.

In the wake of the House of Representatives’ passage of a bill last week that grants the White House wide latitude to spy on American citizens, and that effectively forces courts to throw out lawsuits against lawbreaking telecommunications companies, Sen. Russell Feingold, D-Wisc., predicted today that the Senate would likely follow suit, despite strong protests from civil liberties groups and a majority of Democratic party members.”I’m very worried we’re not going to be able to prevail,” Feingold said.Feingold was the featured guest at a New America Foundation event where he discussed systemic gaps in the country’s collection of foreign intelligence. But during a question and answer session, he fielded several questions about the controversial wiretapping law.The Wisconsin Democrat voiced considerable frustration with members of his own party, who, he says, have enabled the sweeping new legislation. “Sen. Dodd and I and Sen. Leahy are going to do everything we can to stop this mistake,” Feingold noted, referring to fellow opponents of the bill. “But I’m extremely concerned that not only virtually every Republican… but far too many Democrats will vote the wrong way.”"We met with Sen. Reid on Friday morning,” said Feingold, speaking of himself and Sen. Chris Dodd, D-Conn., “and we indicated our desire that this thing not just be jammed through, we’ll be requiring key procedural votes and we’ll also be taking some time on the floor this week to indicate the problems with this legislation.”This won’t be the first time the duo has tried to stall the enactment of broad surveillance powers by using procedural tactics. Last December, amid the uproar over the possibility that the government would retroactively immunize telecommunications companies who participated in the Bush administration’s warrantless wiretapping program, Dodd spearheaded a filibuster of a similar set of FISA amendments — a move that ultimately prompted Senate Majority Leader Harry Reid, D-Nev., to pull the bill from the floor.

Progressive activists and civil libertarians hailed the filibuster, and the Democratic party’s greater decision not to cave in to White House demands on a national security issue. Nonetheless, several senior Democrats spent the intervening months trying to accommodate the Republicans. And despite containing less than a handful of narrow improvements over the previous amendments, the new legislation has much wider support among Democratic leaders. Many of them claim the bill represents a worthy compromise.

“That’s a farce and it’s political cover,” Feingold said. “Anybody who claims this is an okay bill, I really question if they’ve even read it. ”

“Democrats enabled [this],” Feingold went on. “Some of the rank-and-file Democrats in the Senate who were elected on this reform platform unfortunately voted with Kit Bond, who’s just giggling, he’s so happy with what he got. We caved in.”

Sen. Kit Bond, R-Mo., is the ranking member of the Senate Select Committee on Intelligence, and has been the Bush administration’s chief congressional point man in its attempt to secure both retroactive immunity for telephone companies and much wider authority to conduct surveillance on both foreign and domestic targets.

Feingold also described critics’ chief concern with the provision of immunity — specifically that it will mean the eventual dismissal of a number of lawsuits that might otherwise have shed some light on the president’s legally dubious Terrorist Surveillance Program. “It doesn’t simply have the impact of potentially allowing telephone companies to break the law,” Feingold said. “It may well prevent us from getting to the core issue, that I’ve challenged since December 2005, which is the president ran an illegal program I think that was essentially an impeachable offense.”

Immunity, though, may ultimately constitute a distraction from an even larger spectacle. “Frankly, the tremendous and legitimate focus on the immunity has covered up and sat on top of this issue,” Feingold said. “I think the big story is ultimately not going to be that the telephone companies got immunity… it’s that our personal conversations are now in a giant database somewhere over which we have no control.”

Holding up his BlackBerry, Feingold warned, “Every time you e-mail my daughter or text-message her in England, anybody contacts their son or daughter in Iraq, anybody has kids [spending] junior year abroad, anybody that has a business associate anywhere around the world, all of that is now sucked up into a database over which there is essentially no control for the first time in American history.” All of this has happened to you, and your communications, in a way that you never would have thought was possible in this country…. we’re going to fall over on this.”

The Senate will most likely take up FISA later this week, and one source of disappointment for activists and civil libertarians alike has been presumptive Democratic presidential nominee Barack Obama’s position on the issue.

“I don’t know for sure what Sen. Obama’s going to do,” Feingold said.

In October, the Illinois Senator promised to support a filibuster of any bill that grants amnesty to telecommunications providers. In a statement last week, though, Obama indicated he would support the House bill.

House Passes FISA

by Brian Beutler, The Media Consortium: Fri., Jun 20, 2008
Filed under: Congressional Oversight

The FISA Amendments Act of 2008 passed moments ago in the House by a vote of 293-129.

Joining the significant majority were House Speaker Nancy Pelosi, House Majority Leader Steny Hoyer, and House Intelligence Committee Chairman Silveste Reyes. An angry John Conyers, chairman of the House Judiciary Committee, opposed it.

The bill will in practice provide legal immunity to telecommunications companies that participated in the President Bush’s Terrorist Surveillance Program (TSP) through a provision that will result in the dismissal of lawsuits that might have shined some light on the particulars of the administration’s warrantless wiretapping activities. It does mandate an inspector general report on the particulars of TSP, but whether that mandate survives the president’s signing-statement pen remains to be seen.

During the floor debate, most of Democrats who supported the legislation pointed to a provision that makes FISA the exclusive arbiter of the nation’s wiretapping activities — a provision that will allow the supporters of the bill to express their shock and disappointment when this or any future president decides to ignore the law anyhow.

Now the bill moves over to the Senate where all of these, and other provisions will be debated further.

FISA Update

by Brian Beutler, The Media Consortium: Thu., Jun 19, 2008
Filed under: Congressional Oversight

House Speaker Nancy Pelosi held a press conference a few moments ago where she endorsed the new FISA language. It will be up for debate (and possibly a vote) on the floor of the House tomorrow.

FISA, Compromised

by Brian Beutler, The Media Consortium: Thu., Jun 19, 2008
Filed under: Congressional Oversight

After Democrats stood their ground and refused to pass a series of draconian FISA amendments in February, negotiations over the wiretapping law went behind closed doors. In the months since then, news reports have occasionally suggested that another Democratic party sell-out was imminent, only to be superseded by other reports indicating that negotiations were ongoing. Until today.

A few moments ago, House Majority Leader Steny Hoyer released what he refers to as a “bipartisan” “compromise” bill: The FISA Amendment Act of 2008, which he authored along with Jay Rockefeller, Kit Bond, and Roy Blunt (respectively, the chairman and ranking member of the Senate Intelligence committee, and the House Minority whip). The word “bipartisan” is technically indisputable. The word “compromise”, by contrast, is a total farce.

The most controversial elements of the February legislation were provisions that would have allowed the White House to wiretap American citizens without a warrant, and that would have immunized telecommunications companies from participating in the NSA’s warrantless wiretapping program back in the halcyon days when warrantless wiretapping was unquestionably illegal.

Here’s how the new bill deals with the immunity question.

Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that…the assistance alleged to have been provided by the electronic communication service provider was in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007.

That’s the game. Non-profit groups like the ACLU and the Electronic Frontier Foundation can sue the telecoms if they want, but if Attorney General Michael Mukasey says “presto”, the lawsuits must be dismissed.

As for the nitty gritty of surveillance powers the bill authorizes, here’s what the ACLU says: “This bill allows for mass and untargeted surveillance of Americans’ communications…. The process by which this deal has come about has been as secretive as the warrantless wiretapping program it is seeking to legitimize.” And the media blackout over the last few months is testament to that. None of Congress’ civil liberties stalwarts partook in these negotiations. Neither John Conyers, nor Patrick Leahy–chairmen of the House and Senate Judiciary Committees respectively–got a say. Nor did Sens. Chris Dodd or Russel Feingold. Nor did House Speaker Nancy Pelosi.

Leahy says “the legislation unveiled today… is not a bill I can support.”

Nonetheless, it looks very much as if Pelosi–who has substantial power to control what does and does not appear on the floor of the House–will allow this to come to a vote.

I’ll keep my eye on the comings and goings.

“If the Detainee Dies, You’re Doing it Wrong”

by Brian Beutler, The Media Consortium: Wed., Jun 18, 2008
Filed under: War Making and Oversight

When former Defense Secretary Donald Rumsfeld approved the use of harsh techniques, he did so over the objections of senior military attorneys from all branches of the armed services. Before the Senate Armed Services Committee, key players in the drama that led to the use of torture in Guantanamo answered questions.

Over the objections of senior lawyers across the military, former Secretary of Defense Donald Rumsfeld, acting on the advice of Department of Defense General Counsel William “Jim” Haynes, approved the use of 15 harsh interrogation techniques requested by officials at the U.S. detention center at Guantanamo Bay, Cuba, to be used on alleged “enemy combatants.”

Rumsfeld’s December 2, 2002, decision has been widely reported, but the fact that the techniques he approved were heavily questioned just one month earlier — including by senior military officials in the Army, Navy, Air Force, and Marines — was revealed at a Tuesday hearing before the Senate Armed Services committee.

“While it has been known for some time that military lawyers voiced strong objections to interrogation techniques in early 2003,” said committee Chairman Carl Levin, D-Mich., “these November 2002 warnings from the military services — expressed before the Secretary of Defense authorized the use of aggressive techniques — were not publicly known before now.”

At the hearing, former defense officials, including Haynes and Richard Shiffrin, former deputy general counsel for intelligence, as well as retired Lieutenant Colonel Daniel Baumgartner, faced tough questioning from Democratic members of the panel about their roles in institutionalizing those very techniques. According to documents distributed by the committee, Shiffrin, acting on Haynes’ behalf in 2002, called upon Baumgartner to provide defense attorneys with a list of harsh interrogation methods — specifically, methods deployed against American soldiers during training to prepare them for the possibility that they may one day be captured by a torturing regime. Both Shiffrin and Baumgartner denied knowing that the information they provided to Haynes would be used as the basis for detainee interrogations in three countries. Haynes said he could not recall the details of his role in the process.

Also testifying on Tuesday was retired Lieutenant Colonel Diane Beaver, who in October 2002 penned a legal opinion in which she “concluded that certain aggressive interrogation techniques…were lawful.” “I have been vilified by some because of it,” she told the panel, “and discounted and forgotten by many others.”

Under questioning from Sen. Lindsey Graham, R-S.C., about the legal soundness of her memo, Beaver, whose writings greenlighted the use of techniques like waterboarding and sleep deprivation, demurred. “If I asked you if the UCMJ [Uniform Code of Military Justice] prohibited waterboarding, what would you say?” asked Graham, a former attorney for the Judge Advocate General of the Air Force. “It’s difficult to say,” Beaver responded.

In that memo, though, Beaver writes that, in order to circumvent various legal prohibitions to techniques like waterboarding, “[i]t would be advisable to have permission or immunity in advance from the convening authority, for military members utilizing these methods.” Nonetheless, her opinion, which panelist and former Navy General Counsel Alberto Mora described as “an inadequate treatment of very serious and sensitive issues,” met almost no opposition from civilian and military officials and, for a short time, became the legal basis for the DOD’s use of harsh interrogation tactics. In his testimony before the committee, Mora referred to the techniques as “cruel,” saying they “could easily rise to the level of torture.”

During a brief recess, I asked Mora how the U.S. government can mitigate the harm done to the country by these policies, and how best to hold the architects accountable for their actions. Mora suggested that the government leaders need to “create a common language with our allies that goes beyond the protections of Geneva,” referring to the United Nations Agreements on Human Rights known as the Geneva Conventions. How to hold former public officials accountable for implementing these methods, he added, “is a difficult question. Politically speaking, achieving an agreed-upon framework with our allies going forward may require forgiving past transgressions. And that’s a concern. That’s a problem.”

In his opening statement — an unusually long and thorough statement for a congressional hearing — Levin provided an exhaustive history of the origins of the government’s program of torturing prisoners at Guantanamo Bay — a program that later spread to Afghanistan, and finally to Iraq.

In 2002, senior Pentagon officials, including Shiffrin, sought and received information from the Defense Department’s Joint Personnel Recovery Agency about techniques used in the military’s Survival Evasion Resistance and Escape training schools, or SERE. At those facilities, members of the military are subjected to mock interrogations, to prepare them for the possibility that they’ll one day be captured and detained by governments that do not adhere to the Geneva Conventions.

The schools’ training guidelines — which, at some facilities, include waterboarding — quickly became the practical basis for the department’s own methods of interrogating prisoners at Guantanamo Bay. Under questioning from Sen. Joe Lieberman, I-Conn., Shiffrin admitted that “there was probably some discussion at some point about ‘reverse engineering’ SERE techniques.” And, indeed, on December 30, 2002, two Navy SERE instructors arrived in Cuba to teach approximately two dozen interrogation personnel how to question detainees. Some of those trained by the SERE teachers were later instructed by their own superiors not to use those methods. Others were not.

Once greenlighted for use in Guantanamo, the SERE techniques were forwarded to U.S. military officials in Afghanistan and shown to interrogators in January 2003, just one month after Rumsfeld approved them. Several weeks later, after the Iraq war had begun, the techniques became standard operating procedure for all U.S. forces there, including those stationed at Abu Ghraib.

A month after he approved them, Rumsfeld rescinded his approval of the 15 techniques, at least in part because of objections Mora brought to Haynes. But, just as quickly, Rumsfeld established a “working group” to examine interrogation techniques and erect a legal framework that would protect military and defense officials from reprisals in the event that their conduct was later deemed to be torture. Shortly after the working group completed its report, Rumsfeld authorized another set of techniques — 24 in all– and this time he included some wiggle room: “If, in your view,” the secretary wrote, “you require additional interrogation techniques for a particular detainee, you should provide me… a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee.”

It’s difficult, therefore, to know precisely what limits governed DOD-approved interrogation for months thereafter. But if the DOD took the advice of the Central Intelligence Agency, there may have been very few. On October 2, 2002, senior CIA attorney Jonathan Fredman met with staff at Guantanamo Bay to discuss harsh interrogation. “It’s basically subject to perception,” Fredman said, according to minutes of the meeting. “If the detainee dies, you’re doing it wrong.”