Botching the Bailout

The Bush administration is squandering hundreds of billions of dollars on incompetence, again.

In a House Domestic Policy Subcommittee hearing on Friday, Rep. Dennis Kucinich, D-Ohio, took Interim Assistant Treasury Secretary for Fianancial Stability Neel Kashkari (read: bailout chief) to task over the Treasury’s decision to spend every cent of the first $350 billion in bailout funds buying up preferred stock in Wall Street icons and other banks, while allowing troubled borrowers to fend for themselves.

Kashkari did his best to deflect the outrage, but his task would have been easier had the Treasury’s position been defensible. In a Senate Banking Committee hearing the day before, both consumer-protection advocates and banking executives endorsed an anti-foreclosure initiative devised by FDIC Chairman Sheila Bair that would create strong incentives for the private sector to cut borrowers some slack. Despite the plan’s broad appeal, both Paulson and Kashkari refused to devote any Treasury funds to the program, making the bailout chief sound like, well, a chump, when he insisted that Treasury is doing everything in its power to keep people in their homes.

The whole thing is beginning to look a little too much like Iraq. Bush administration officials steamroll both chambers of Congress with warnings of a dire emergency and are rewarded for their efforts with unprecedented authority and funding. Shortly afterwards, it becomes clear that the initiative has been squandered on meaningless giveaways to huge corporations without any corresponding social benefits. Naomi Klein of The Nation details the corruption parallels in an illuminating piece for Rolling Stone.

Laissez-faire lunacy

Most depressing is the bailout’s complete impotence with regard to providing broader economic support. Paulson and Kashkari have succeeded in keeping the U.S. financial sector afloat for the time being, but despite an enormous injection of taxpayer funds, banks are not lending money out into the broader economy. One part of the problem is the fact that President Bush & Co. took years to acknowledge that the country was in fact facing disaster (remember Paulson’s 2007 talking point that the subprime mortgage crisis was “contained”?). Now that the Treasury is finally taking action, it is doing so in an environment where there simply are not many good loans to be made. The other roadblock is Paulson’s refusal to require banks who accept public money to put it to use for the public good, as Joshua Holland explains for Alternet.

That desperate attempt to adhere to some kind of free-market principle—not forcing companies to do anything with billions of dollars allocated to partially nationalize them—was on display Friday at a speech Bush gave in New York. It sounds like a sick joke. After demanding $700 billion to save Wall Street, Bush is still warning against the evils of government intervention, claiming that free-market systems have a monopoly on “social justice and human dignity.”

“The greater threat to economic prosperity is not too little government involvement in the market,” he said. “It is too much government involvement in the market.”

Matthew Rothschild skewers this absurdity over at The Progressive.

“You can’t have social justice and human dignity with mass unemployment, rampant foreclosures, high rates of poverty and food insecurity, and a health care system that leaves almost 50 million people uninsured,” Rothschild writes.
Bush did make a few nods to sanity during his speech, arguing that markets need to be “more transparent,” but the claim was a little perplexing amid reports that the Federal Reserve is refusing to disclose who it is granting about $2 trillion in emergency loans.

“Where is the ridicule?” Dean Baker asks in a blog for the American Prospect, arguing that Paulson and Bernanke are looking more like “crony capitalists” every day.

Going green, going global

Bush’s speech was designed to frame the debate surrounding the meeting of leaders from the world’s 20 largest economies to address problems in the global financial architecture. Fortunately, President Bush does not have final authority to sign an agreement for the U.S., that task will be left to Barack Obama in April of next year. Over at oneworld.net, Gary Gardner and Michael Renner note the opportunity not just for a New Deal to refashion the U.S. economy, but to ink a Green Deal that does away with global dependence on fossil fuels and provides for a fairer distribution of wealth across the globe.

At the moment, U.S. economic policy remains dominated by how to handle the bailout. How Democrats seek to proceed with lashing Detroit automakers to that $700 billion debacle will say a great deal about the majority party’s governing intentions heading into the next Congress.

“It’s time to think big,” Andrew Leonard writes for Salon.com. “A Manhattan Project-scale plan to move the U.S. into an energy-sustainable future should start with a complete restructuring of the automotive industry,” according to Leonard.

The sagas of the financial and automobile industries have more in common than meets the eye. Both have lobbied heavily against new regulations for decades, and the lax oversight has left both in dire straits. While conservatives are quick to point to labor union contracts that make workforces at GM, Ford and Chrysler pricier than for foreign manufacturers, the fact is that the Big Three have drastically lost market share in recent years by failing to make cars people actually want to buy. In a video produced for American News Project, Garland McLaurin details how Detroit spent millions lobbying Congress against raising fuel economy standards while failing to develop cars that achieve high gas mileage.

Millions of people could be out of a job if the Big Three go under, but if Democrats hurl money at the companies with no strings attached, they’re no better than the current administration’s set of bailouteers.

This post features links to the best independent, progressive reporting about the economy. Visit economy.newsladder.net for a complete list of articles on the economy. And for the best progressive reporting on critical immigration and healthcare issues, check out Immigration.NewsLadder.net and Healthcare.NewsLadder.net.

This is a project of The Media Consortium, a network of 50 leading independent media outlets, and created by NewsLadder.

See more tagged with: Congress, dennis kucinich, global warming, government accountability, media consortium, mortgage crisis, Mother Jones, NewsLadder, renewable energy, the economy and Truthdig

Judge Rules Miers Must Testify
(But What About Rove?)

According to one legal scholar, it may be time to dust off that jail cell in the House of Representatives — perhaps even for Karl Rove, who yesterday earned the recommendation of the House Judiciary Committee for a contempt of Congress citation. (Rove decided to take a little vacation outside the U.S. of A. on the day he was scheduled, by subpoena, to testify before the committee.)

Today a federal judge ruled that there is no legal basis for the Bush administration’s refusal to allow Joshua Bolten, the president’s chief of staff, and Harriet Miers, former White House counsel and deputy chief of staff, to comply with a subpoena from a congressional committee demanding documents and testimony. The reasoning in Bates’ decision would seem to apply to Rove, as well.

Judge John Bates, who ruled in the administration’s favor in the Valerie Plame matter, wrote that there is no legal basis for the administration’s claim of executive privilege in withholding documents and testimony sought by subpoena by the House Judiciary Committee in the controversial firings of nine U.S. attorneys. He ruled that both Miers and Bolten must turn over the subpoenaed documents, and that Miers must appear before the committee.

As my colleague Brian Beutler reported in April, the unprecedented civil court case generating Bates’s ruling stemmed from the refusal of Attorney General Michael Mukasey to enforce contempt of Congress citations against Bolten and Miers when they defied the committee’s subpoena:

Attorney General Michael Mukasey recently blocked the Department of Justice from prosecuting criminal contempt of Congress citations against White House staff…Generally speaking, when the full House votes to issue statutory contempt citations against individuals who impede congressional investigations, the criminal charges are referred to, and prosecuted by, the Justice Department. But the DOJ, like all executive branch agencies, is ultimately controlled by the president and his appointees, and this time around, with current and former federal officials under the microscope, the White House is refusing to abide by the game’s traditional rules. The attempt by the House Judiciary Committee to have its case heard in civil court — which does not require action by DOJ — marks a departure from past practice, but one that, if decided by Judge John D. Bates of the U.S. District Court, would provide Congress with a new recourse in any future attempt by the executive branch to stymie congressional oversight prerogatives.

Today, I went back to Jonathan Turley, law professor and constitutional scholar to George Washington University Law School — one of the experts Beutler talked to in initial story on the case.

“First of all,” Turley said, “the decision from Judge Bates puts into sharp relief the contempt by the Bush administration of legitimate legislative authority. It most clearly contradicts the views of Attorney General Mukasey. Many of us were astounded by Mukasey’s refusal to let a grand jury see the evidence of criminal contempt by administration officials.”

The role of the Justice Department in enforcing contempt of Congress citations, Turley explained, stems from a tacit understanding arrived at between the executive and legislative branches that Congress would suspend its use of its “inherent contempt” authority if the Justice Department “that it would be a faithful conduit for these allegations to be brought into the judicial branch.” Under inherent contempt authority, the House can summon the sergeant at arms to arrest anyone defying a congressional subpoena and hold him or her in a jail cell in the U.S. Capitol building.

In light of today’s ruling, Turley said, the first thing Congress should do is “dash off an immediate letter to Mukasey, demanding that he reconsider his past position on these contempt cases, and to further demand that he comply with the ruling of a respected and neutral judge.”

If that doesn’t work, Turley said, it might be time to put that jail cell to use. “If Mukasey refuses to act,” said Turley, “then Congress needs to seriously consider reactivating its inherent contempt authority. It currently has that authority; it needs only to use it.”

As attractive an idea as that may be, it ’s not without its perils. As Mark Agrast, a constitutional law expert and senior fellow at the Center for American Progress, explained to Beutler last April, those so arrested have the right to petition for habeas corpus, which would take a while to settle. I’m currently awaiting comment from the House Judiciary Committee.

Although today’s ruling covers only the contempt citations against Bolten and Miers, the reasoning used by the judge would seem to apply to Karl Rove, as well. Rove was subpoenaed to appear before the committee on July 10 to answer questions about his role in the prosecution of Don Siegelman, the Democratic former governor or Alabama. “Rove’s act of contempt is perhaps the most obvious and extreme,” Turley said. “He virtually fled the jurisdiction to avoid testifying.” And, Turley added, the nature of his former position in the White House — as the president’s deputy chief of staff and go-to guy for politics — made his claims “never particularly credible. ”

However encouraging Judge Bates’ ruling is to those who wish to see congressional authority restored, the administration does still have a right to appeal. As for Rove, no vote to charge him with contempt of Congress will take place on the floor of the House until at least September.

“From the beginning, it was clear that the Justice Department was relying more on the calendar than he Constitution in these cases,” Turley said. “It was clearly gaming the system to try to delay any court ruling before the end of the administration when the issue would likely be treated as moot.”

When Mukasey was nominated as the replace for Alberto Gonzales, many expected a less politicized Justice Department from a man known for his prosecution of terrorism cases in New York. “So far, his record has been virtually indistinguishable from Alberto Gonzales’ record.,” Turley said. “Indeed, in some ways, Mukasey is worse because he did not cut as much as a sycophantic image. “

See more tagged with: contempt citation, harriet miers, House Judiciary Committee, joshua bolten, karl rove, michael mukasey and Rep. John Conyers

Iraq Former P.M. Says Surge Not so Great

When it comes to Iraq, the surge is a great success, right? Well, according to Ayad Allawi, Iraq’s former prime minister, that depends on what you mean by “success”.

In a briefing before members of the House Committee on Foreign Affairs yesterday, Allawi answered questions from members of he subcommittee on international organizations, human rights, and oversight. When asked by Dana Rohrabacher, R-Calif., the subcommittee’s ranking member, for Allawi’s “assessment of of what’s come of the surge,” Allawi all but said, not much.

Reminding Rohrabacher that the original objective of the surge was to create a safe environment for a process of national reconciliation, Allawi said, “Now, militarily, the surge has achieved some of its goals. Politically, I don’t think so.”

Allawi rattled off a laundry list of perils that still confront the Iraqi people: internal displacement of large numbers of people, millions of refugees outside Iraq, security forces he described as sectarian militias dressed in national uniforms and no regime for enforcement of the national constitution, which he described as a “divisive” document.

The former prime minister, who is now a member of the Iraqi parliament, also alleged that the process known as “deBaathification” is “being used to punish people.” Originally designed to purge Saddam Hussein’s loyalists from military and security forces, Allawi said the process has become politicized and can be used against virtually anybody, since Saddam Hussein’s “Baath party ruled for 35 years, and every individual had to join…”

“So, if you measure the surge from a military point of view, it has succeeded,” Allawi said. “But I don’t think this was the [prime] objective, because soon you will have reversals. Security has not prevailed, and the key element in security is reconciliation, and building national institutions for the country. If this does not happen, then the surge will go in vain.”

Despite his role as arch-rival to current Prime Minister Nouri al-Maliki (whose party defeated Allawi’s in Iraq’s 2005 elections), Allawi seems to concur with Maliki’s call for a plan for withdrawal of U.S. troops. In his opening statement, Allawi told the subcommittee, “As we think about moving to the next stage of our relationship, it is appropriate to discuss a time frame for reduction of U.S. forces.”

He cautioned, however, against any withdrawal that would take place before non-sectarian institutions and defense forces took shape, or before a reconciliation process, which he noted as being high on Congress’s list of benchmarks, is under way in earnest.

Nonetheless, leaders of Allawi’s political party, the Iraqi National List, were among the 31 leaders in the Iraq parliament who signed a letter (PDF file) presented to Congress on May 29 for withdrawal of U.S. forces from Iraq to be part of any future agreement between the two countries. The 31 signatories signed as representatives of their political parties, collectively speaking for a majority of Iraq’s 275 members of parliament.

The Bush administration has been negotiating with the Maliki government an agreement based on a “declaration of principles“, which the two leaders signed November without the approval of their respective legislatures. This coming December, the U.N. mandate that protects U.S. forces in Iraq will expire, and the administration apparently seeks to replace it with a bilateral agreement that takes the U.N. out of the equation.

Subcommitee Chairman Bill Delahunt , D-Mass., yesterday conducted the seventh in his series of hearings on the declaration of principles. Allawi did not appear as part of that hearing, but rather in a briefing held afterwards. Rosa DeLauro, D-Conn., Delahunt’s co-sponsor on the U.N. mandate for another six months, sat in for the “conversation”, as it was called, with Allawi, commiserating over the lack of transparency by their respective executives about agreements under discussion via the declaration of principles.

“When you said you don’t know what the substance of that agreement is — that’s the same for us,” DeLauro said.

Once seen as a tool of the Bush administration (especially during the 2004 campaign against John Kerry), Allawi today is singing a different tune from the cheerful notes he once struck in favor of Bush’s Iraq policy. His eyes are clearly trained on the 2008 U.S. presidential election — and Iraq’s 2009 national elections.

See more tagged with: Ayad Allawi, Bill Delahunt, Dana Rohrabacher, Declaration of Principles, iraq and Rosa DeLauro

What Next For Guantánamo?

Now that detainees held by the U.S. at Guantánamo Bay, Cuba, have the right of habeas corpus, members of one congressional body are asking, how will that work?

While the Supreme Court, with its decision in Boumediene v. Bush, granted prisoners held as enemy combatants at Guantánamo the right to their day in court, many questions remain unanswered — including whether the Boumediene decision applies to “enemy combatant” prisoners held by the U.S. in facilities other than the famed prison camp in Cuba. The Commission on Security and Cooperation in Europe, an entity of Congress also known as the Helsinki Commission, yesterday asked the guidance of three experts in a packed hearing room.

Both Sen. Ben Cardin, D-Md., and Rep. Alcee Hastings, D-Fla., who co-chair the commission, spoke of the damage done to the U.S. image among its European allies by virtue of the fact of the Guantánamo, a place where prisoners have been subject to indefinite detentions and interrogation methods classified as torture in international law. Other commissioners spoke of “getting an earful” about U.S. detention and interrogation policies when they travel abroad on commission business.

“[I]n light of the latest defeat for the administration’s detention policies at the hands of the Supreme Court…” said Cardin, “I think it is high time to stop tinkering with a failed system and re-open entirely the question of how we handle terrorism suspects.”

“The fact that Gitmo is still open is testament to the genuine challenges we face in relocating its residents…,” Hastings said, “but it also speaks to a lack of political leadership in fixing the problems there.”

The three witnesses who appeared before the commission concurred with Hastings’ conclusion that Guantánamo should be closed. The witness list need not have been so stacked, Hastings implied, noting that the commissioners invited representatives from the Departments of Justice, Defense and State. “…in light of the vital implications of this subject for our country,” he said, “I sorely regret the absence of administration witnesses.” The commission’s membership includes representatives from Defense and State, but neither attended the hearing.

Much of the argument against granting full rights under U.S. and international law to those detained as enemy combatants centers on the possibility of that prisoner’s “return to the battlefield” if he is released. While that’s an acknowledged risk, said Jeremy Shapiro, research director for the Brookings Institution’s Center on the United States and Europe, there’s more to consider.

“The question of whether a returned detainee poses a danger needs to be weighed against the danger that the existence of Guantánamo is doing every day in creating recruits for terrorism,” said Shapiro. “It is not simply the case that you will release somebody into a static pool of terrorists. The problem of Guantánamo, the image of Guantánamo, is creating in Europe and the world is, I would argue, on a daily basis adding to our terrorism problem.”

Matthew Waxman, now a Columbia Law School professor, served as the Pentagon’s chief legal adviser on detainee issues, where he earned the ire of David Addington, the famed enforcer for Vice President Dick Cheney. Waxman’s transgression? Insisting that Pentagon guidelines on detainee treatment incorporate language from the Geneva Conventions prohibiting cruel, humiliating and degrading treatment. At yesterday’s hearing, he advised lawmakers not to seek an easy fix to a complicated problem.

“When I say that there’s no simple and ready alternative, what I’m really getting at is there’s no easy solution out there that’s gonna take care of the whole problem on its own….,” Waxman told the commission. “[R]ather than looking for a one-size-fits all solution, such as ’send them all to their home countries,’ ‘bring them all into the United States’, ‘prosecute them all,’ the solution to Guantanamo probably lies in a combination of all of those things.”

Then he added another option to add to the list, one he conceded was “controversial”: “new legislation that might create what’s sometimes called administrative detention or preventive detention authority — to hold somebody inside the United States.”

Hmmm…I’m no lawyer, but I’m not sure how that would jibe with the whole rationale for habeas.

Rounding out the panel was Gabor Rona, international legal director for Human Rights First, and former legal adviser for the International Committee of the Red Cross, which monitors the treatment of prisoners at Guantánamo. (See Brian’s coverage of how Pentagon advisers and Guantánamo officials hoped to evade ICRC detection of cruel and inhumane practices used in prisoner interrogations there.)

Rona took on the very notion of the “enemy combatant” and the standards — which sounded unconstitutional to me — of what constitutes “hostile acts” against the U.S.

“The definition of enemy combatant encompasses a huge swath of activities, many of which that have nothing to do with the battlefield — associating with terrorists, for example,” Rona explained. “So when the United States releases [an individual] and declares that they are no longer an enemy combatant, that doesn’t mean that they had made the correct decision in the first place that this person had engaged in hostilities against the United States.” In one case, Rona said, a detainee was deemed to have engaged in hostilities against the U.S. for having published an op-ed critical of “U.S. policies and practices.”

Rona also contended that no new legal architecture is needed in the face of the Supreme Court’s decision. “If we continue to look for the perfect, we will never find a solution and it will continue to be the enemy of the good,” Rona said. “The good is the federal criminal justice system.”

By the end of the two-hour hearing, the once-full room was more than half-empty. Even the two women from the anti-war group, Code Pink — one sporting a spectacular, hot-pink hair ornament — had made their exit before the closing gavel.

See more tagged with: alcee hastings, ben cardin, guantanamo, habeas corpus and helsinki commission

How to Save the Constitution, and a Few Other Things

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.

See more tagged with: feingold, FISA, senate judiciary committee, Terrorist Surveillance Program and warrantless wiretapping

Update: FISA Expansion Passes
Telecom Immunity Remedy Fails

Update: The Senate has passed, by a margin of 69-28, the Protect America Act, the bill that expands the reach of the Foreign Intelligence Surveillance Act of 1978 to protect telephone and internet service providers from legal liability when they fork over to the government private information about who you’re calling or emailing outside of the U.S. The bill also expands the range of allowable data-mining by government spymasters.

Though the bill was termed a “bipartisan compromise,” my colleague Brian Beutler explained:

The word “bipartisan” is technically indisputable. The word “compromise”, by contrast, is a total farce.

Attempts in the Senate to retool the Foreign Intelligence Surveillance Act this week featured a two-day debate on an amendment sponsored by Chris Dodd, D-Conn., and Russell Feingold, D-Wisc., that would have stripped legislation for the Protect America Act of immunity for telephone and internet providers who complied with government requests for information on consumers’ calls and e-mails in violation of privacy law. That amendment just failed, 32-66.

(My colleague, Brian Beutler, who usually covers intelligence matters, is on leave this week. Last week, he interviewed Feingold about FISA.)

In one of the last speeches before the vote, Dodd forcefully argued against the “false dichotomy” put forward by his amendment’s opponents between “security and civil liberties.” Dodd added, “It’s a false dichotomy. Previous generations have made it; we should not.”

Both Sens. Barack Obama and Hillary Clinton voted for the Dodd-Feingold amendment. (Obama, to much consternation, has indicated that he will vote for the Protect America Act even without the telecom immunity provisions, because of compromises made in other areas of the bill.)

Two senators who are often talked up as potential veep candidates on the Obama ticket — Jim Webb of Virginia and Claire McCaskill of Missouri — voted against the amendment. In other words, they voted to protect the telecoms. (Note: Webb yesterday seemed to take himself out of the contest for running-mate.)

Other Democrats voting against the amendment were Barbara Mikulski, Md.; Jay Rockefeller, W.V.; Blanche Lincoln, (Ark.); Mary Landrieu, La., and Dianne Feinstein, Calif.

Arlen Specter, the Pennsylvania Republican whom Republicans love to hate, after voting against Dodd-Feingold, offered his own, more narrowly drawn, amendment, which also failed, 37-61.

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“This Constantly Pulsating Fear”
Exclusive: Feingold Talks to Beutler

Click here to download audio of Beutler’s interview with Sen. Russell Feingold

Living up to predictions by Sen. Russell Feingold, D-Wisc., of “the caving of very large numbers of Democrats… [on] an awful piece of legislation,” the Senate remains poised to pass the Protect America Act in a form that will allow telephone companies and internet providers immunity from prosecution for forking over consumer information to government spymasters. The bill confers immunity that would be retroactive to the first days of a warrantless spying program originated by the Bush administration following the 9/11 attacks. In an interview with The Media Consortium’s Brian Beutler, Feingold attributed Democrats’ weakness to “this constantly pulsating fear of being accused of being soft on terrorism.”

Today’s debate on the Senate floor focuses on an amendment to the Protect America Act that would cancel telecom immunity from the current version of the legislation, which is being pushed by the administration as an update to the Foreign Intelligence Surveillance Act of 1978, known simply as FISA. Perhaps the most passionate advocate of the anti-immunity amendement to speak today was Feingold, whom Beutler interviewed last week about (among other things) why the Senate Democrats are likely to let the administration have its way with the spying legislation — including telecom immunity.

The immunity debate today saw a couple of strange-bedfellow pro and con tag teams arguing the anti-immunity amendment, which is offered by Sen. Chris Dodd of Connecticut. Arguing against the amendment were Jay Rockefeller, D-W.V., and Kit Bond, R-Mo.

Supporting Dodd was the team of Feingold and Arlen Specter, the Pennsylvania Republican. Specter focused on last week’s decision by a federal judge who last week ruled that the Bush administration’s warrantless spying scheme, known as the Terrorist Surveillance Program. Passing the
administration’s wish-list surveillance bill, Specter said, will amount to circumvention of the legal system. Feingold, under questioning by Specter, pleaded a constitutional case.

Here’s a bit of Brian’s interview of Feingold:

BRIAN BEUTLER: So starting on FISA, a lot of people were
impressed with the House Democrats’ performance in February when they refused to advance the Senate bill. 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 reauth of the Patriot Act for a while, until people caved. And it happened for a while even in the Senate on the PAA (Protect America Act, which is the name of the new FISA legislation). 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 an Attorney General Feingold or a DNI (Director of National Intelligence) Feingold (in the next administration) 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.

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How to Think about Immunity

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.

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The Torture Taint

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.

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Dodd and Feingold on FISA

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.

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