Senate Leader Reid: No “Mad Rush for Immunity”

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In a meeting this morning with reporters and bloggers, Senate Majority Leader Harry Reid (D-Nev.) signaled that civil libertarians may have less to fear than expected from a surveillance bill currently being negotiated in a conference of House and Senate committees.

Reid made the remarks during a meeting with reporters in the U.S. Capitol building, in answer to my question about current negotiations between House and Senate committees on legislation governing wiretapping in terrorism investigations. The legislation would renew post-9/11 amendments to the Foreign Intelligence Surveillance Act (FISA) that expired last year. At issue between the House and Senate bills is the question of retroactive immunity from prosecution for telecom companies who provided customer data to the government, without a court order to do so.

Earlier this year, the Senate passed a version of the legislation, known as the Protect America Act, that provided immunity to the telecoms, effectively shielding from scrutiny government officials who ordered the collection of such data. Critics contend that the immunity provisions in the Senate bill ultimately protects President George W. Bush and Vice President Richard B. Cheney from prosecution for civil rights violations. The House version confers no such immunity. The Senate bill also grants, with little judicial involvement or oversight, for widespread surveillance involving Americans. The conference committee is working to reconcile the two versions.

Even though the Senate version contains the immunity language, Reid’s heart, he says, is in another place. “I personally don’t believe that the phone companies should have immunity,” he told reporters, “and I certainly don’t believe that Bush and Cheney should have immunity.”

When the House passed a version of the bill that failed to include the immunity provisions, President Bush accused House Democrats of leaving the United States vulnerable to attack by terrorists. “Everyone was in a panic,” Reid said. “If we didn’t pass FISA…the world was going to fall apart — and it didn’t.” Because of that, Reid said, “I think the mad rush for immunity is not as intense as it was.”

Critics of the bill, such as leaders of the American Civil Liberties Union (ACLU), have suggested that Sen. Jay Rockefeller, who leads the negotiations for the Senate bill, was ready to side with the administration on the matter of immunity for telecom companies. Reid appeared to suggest this is not necessarily the case.

Until the legislation is passed, wiretapping on matters concerning foreign intelligence is governed by the FISA law as it was written in 1978.

See more tagged with: FISA, harry reid, Surveillance, telecoms and warrantless wiretapping

Torture Subpoenas?

John Yoo, former Attorney General John Ashcroft, and Vice Presidential Chief of Staff David Addington have now all declined to testify before the House Judiciary committee on the White House’s torture policies. Committee Chairman John Conyers first responded to their objections, and now has threatened to issue subpoenas.

“I will have no choice,” Conyers says, “but to consider the use of compulsory process.” Stay tuned.

See more tagged with: torture

A Constitutional Conundrum

With Justice denied and Congress defied by the Bush administration, the House does the civil thing — possibly changing the shape of government power for years to come. Or not.

Overshadowed by a heated presidential election battle and daily news of a sinking economy, a law suit that could change the shape of governmental power is making its way through U.S. District Court in Washington, D.C., challenging the Bush administration’s attempt to flout contempt of Congress charges against one current and one former aide. Its outcome could limit the scope of presidential power by providing Congress the means to investigate the inner workings of the executive branch without relying on the good will of one of the executive’s most powerful agencies, the Department of Justice (DoJ).

As recent events have shown, that good will isn’t always forthcoming. Attorney General Michael Mukasey recently blocked the Justice Department from prosecuting criminal contempt of Congress citations against White House staff, pushing the House of Representatives down a path that, wherever it leads, will set a legal precedent — and could possibly make it more difficult for future presidents to defy the will of Congress. Earlier this month, the House Judiciary Committee filed a >motion (PDF file) against current and former Bush administration figures in civil court, with the limited aims of securing testimony and documents from White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers regarding the firings of nine U.S. attorneys by the Justice Department under the watch of then-Attorney General Alberto Gonzales. Both Bolten and Miers, acting on White House orders, have refused to comply with the committee’s subpoenas.

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.

Many administration critics, particularly in the blogosphere, have grown frustrated with Democrats on Capitol Hill for not resurrecting a practice known as “inherent contempt” — an arcane authority that allows Congress to prosecute contempt internally and that could, in theory, result in the arrest and incarceration of both Miers and Bolten by the House Sergeant at Arms.

“There is something of a sense that it is not productive for Congress to use its inherent contempt power,” explained Mark Agrast, a constitutional law expert and senior fellow at the Center for American Progress. “It’s just too unwieldy and too untried to be used in the modern era.”

In fact, in the motion currently before the district court, the Judiciary Committee dispensed with that option, contending that if it invoked its inherent power, the House would ultimately find itself arguing the contempt issue before the same court, but at a much later date, after the expected petitioning of the court by the defendants for habeas corpus.

The well-publicized, and apparently political, firings of nine federal prosecutors set off a firestorm of controversy in early 2007, and prompted months-long investigations by both congressional bodies — investigations the White House has done its best to thwart. In June, when the House Judiciary Committee issued subpoenas for documents and testimony from Bolten and Miers, the White House claimed a sweeping executive privilege over the information and barred the two from complying. The House responded in kind, voting on February 14 of this year to pursue criminal contempt charges against the aides — a move that White House spokesperson Dana Perino termed “a partisan, futile act”, and one, she said, that the Justice Department would not enforce.

In this, at least, the administration was true to its word: Jeffrey Taylor, U.S. Attorney for the District of Columbia, acted on the orders of the very White House that appointed him and refused to take up the case.

“This is a surprising obstruction of the process by [the administration],” said Jonathan Turley, an authority on constitutional criminal procedure and a law professor at George Washington University. “Many constitutional experts, including myself, have concluded that the Congress clearly has the better position. The White House has clearly overextended the scope of executive privilege.”

The Judiciary Committee is seeking a fairly narrow ruling from Judge Bates — one that would compel Miers to attend hearings before the committee, and order both Miers and Bolten to divulge the nature (though perhaps not the contents) of a bundle of undisclosed documents over which the White House is claiming executive privilege. But the civil filing is a legal maneuver without precedent, and therein lies the possibility exists that the White House could prevail despite experts’ view of its weak legal standing. Last year, as the contempt proceedings were just kicking off, the nonpartisan Congressional Research Service (CRS) released a report that assessed the legal landscape on which a civil suit by a congressional committee would play. “[T]here is a likelihood that a reviewing court will find no legal impediment to seeking civil enforcement of subpoenas or other committee orders,” the CRS found.

“The problem with going to court is that you risk a negative precedent,” explained Turley. And it’s a risk for both sides: On one level, Bates could simply decide that Congress has no standing to pursue the enforcement of contempt citations in a civil court, setting a precedent that could close the civil court avenue to Congress permanently. But if he doesn’t throw the case out altogether, and instead issues a ruling on the merits of the case, his decision will almost certainly be appealed by the losing side to the Circuit Court for the District of Columbia by the losing side, a process that could take the case to the Supreme Court.

Were the Judiciary Committee to be rebuffed, it would likely pursue as fast-moving an appeal as possible. The White House, by contrast, would be inclined to slow things down. “If the court agrees [with Congress], I suspect the White House will file an appeal…[based] on the calendar — not the issue,” said Turley. “I doubt Mukasey and the DoJ believe they have a case, but [the administration will be] simply trying to run out the clock.” Judge Bates has scheduled arguments to begin in the case on June 23.

If appeals have not been exhausted when this session of Congress ends in December, the defendants could plausibly contend that the subpoenas have expired, and that the matter should be closed, or at least readdressed from the start when the new Congress is seated (and a new White House has been staffed) in January, 2009. Not only would that let the Bush administration largely off the hook; it would leave the question of the legitimate scope of executive privilege unresolved.

See more tagged with: contempt citation, house judiciary and Rep. John Conyers

Preserving White House Emails… Eventually

The missing White House email scandal raises one very obvious set of questions. Namely: Where’d they go and what did they say? Those questions will hopefully be addressed as Congress investigates the controversy, but the inquiries won’t answer another, perhaps equally important question: How can this be prevented from happening again?

The solution may lie in a new piece of House legislation, a summary of which was circulated at an unexpectedly pre-empted Oversight hearing that had been scheduled for today. Rep. William Lacy Clay (D-MO), chair of the Information Policy, Census, and National Archives subcommittee has sponsored the Electronic Communications Preservation Act, which modernizes the Presidential Records Act and the Federal Records Act and “directs the Archivist [of the United States] to issue regulations requiring agencies to preserve electronic communication in an electronic format.”

The bill comes on the heels of two recent reports–one by the Government Accountability Office and another by the non-profit government watchdog organization Citizens for Responsibility and Ethics in Washington–each of which found that federal agencies, lacking uniform guidelines for preserving electronic records, have regularly resorted to “print and file” systems, resulting in significant losses of official documents.

The hearing itself was postponed at the last minute because of a series of votes on the House floor, but in prepared testimony (which remains unofficial and subject to change until the rescheduled hearing is conducted) one open-government advocate suggests that the bill doesn’t go far enough. Addressing the portion of the bill which updates the Federal Records Act, Patrice McDermott, director of openthegovernment.org noted that the National Archives and Record Administration “has been talking since at least 1996 about working ‘with agencies on the design of recordkeeping systems for creating and maintaining records of values.’”

“[T]he agencies,” she wrote, “have done nothing. NARA and the agencies don’t need another 18 months to ‘establish mandatory minimum functional requirements…’ Nor do the agencies need three more years–beyond the 18 months–to comply with a requirement to implement the regulations and an electronic records management system.” The bill summary notes that the Archivist will have “18 months to promulgate the regulations,” and that agencies “will have no more than four years following the enactment of the Act to comply.”

See more tagged with: executive privilege

Yoo To Testify?

John Conyers sends John Yoo a gentle invitation to testify before his House Judiciary committee in early May(with a quiet threat at the bottom to “compel”–read: subpoena–his appearance if Yoo refuses).

I’m not quite sure why he’s convinced Yoo will demur. It’s not like former and current Bush administration officials have a tendency to blow off congressional oversight! More seriously, Yoo, who penned the famed (and discredited) DOJ legal justifications for torture (and, apparently, another memo suspending the fourth amendment for domestic military operations) hasn’t been all that averse to discussing his time in Washington and his role in the torture fiasco. Just last week, he spoke to Esquire magazine and The Washington Post about the release of the March 2003 memo (which the ACLU recently acquired after a lengthy battle with the administration). And, as Glenn Greenwald notes, John Yoo will be appearing live and unplugged on April 14 at the Bancroft Hotel (just across the street from his offices at UC Berkeley’s Boalt Hall school of law) as part of a conversation about “the intersection between privacy and national security law.”

If Yoo declines Conyers’ invitation before that date, Congressional staffers know where to find him.

See more tagged with: john conyers, john yoo and torture

Probing Mukasey?

Last week, speaking in San Francisco, Attorney General Michael Mukasey said that government agents:

“shouldn’t need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States because that’s the call that we may really want to know about. And before 9/11, that’s the call that we didn’t know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went….We’ve got three thousand people who went to work that day and didn’t come home to show for that.”

There are just a couple major problems with this. For one, FISA–as it existed before the terrorist attacks, as it exists now, and as it would exist under the House’s latest amendments bill–doesn’t require a warrant for the sort of phone call Mukasey’s referring to. Relatedly, if the White House knew such calls were taking place it was obligated to listen in. Its failure to do so is an indictment of itself, not of FISA (which Mukasey suggests led to the attacks and the deaths of 3000 Americans).

So either the government screwed up big time, or Mukasey–the nation’s chief law enforcer–just told a whopper (perhaps with the hope that it would be repeated in the press) as part of his ongoing efforts to help the White House get its way in the FISA fight. Either way, somebody’s got some ’splainin to do. And, as such, John Conyers, chairman of the House Judiciary committee, has begun asking questions.

The Honorable Michael Mukasey

Attorney General of the United States

U.S. Department of Justice

950 Pennsylvania Ave., NW

Washington, DC 20530

Dear Mr. Attorney General:

We are writing about two disturbing recent revelations concerning the actions and inactions by the Department of Justice and the federal government to combat terrorism. These include a public statement by you that appears to suggest a fundamental misunderstanding of the federal government’s existing surveillance authority to combat terrorism, as well as possible malfeasance by the government prior to 9/11, and the partial disclosure of the contents of a secret Department memorandum concerning Executive Branch authority to combat terrorism, which has been previously requested to be provided to Congress. We ask that you promptly provide that memorandum and that you clarify your public statement in accordance with the questions below.

First, according to press reports, in response to questions at a March 27 speech, you defended Administration wiretapping programs and proposals to change the Foreign Intelligence Surveillance Act (FISA) by referring to a pre-9/11 incident. Before the 9/11 terrorist attacks, you stated, “we knew that there had been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went. You’ve got 3,000 people who went to work that day, and didn’t come home, to show for that.”1

This statement is very disturbing for several reasons. Initially, despite extensive inquiries after 9/11, I am aware of no previous reference, in the 9/11 Commission report or elsewhere, to a call from a known terrorist safe house in Afghanistan to the United States which, if it had been intercepted, could have helped prevent the 9/11 attacks. In addition, if the Administration had known of such communications from suspected terrorists, they could and should have been intercepted based on existing FISA law. For example, even assuming that a FISA warrant was required to intercept such calls, as of 9/11 FISA specifically authorized such surveillance on an emergency basis without a warrant for a 48 hour period.2 If such calls were known about and not intercepted, serious additional concerns would be raised about the government’s failure to take appropriate action before 9/11.

Accordingly, we ask that you promptly answer the following questions:

1. Were you referring to an actual pre-9/11 incident in the portion of your statement quoted above? If not, what were you referring to?

2. Do you believe that a FISA warrant would have been required to intercept a telephone call from a known terrorist safe house in Afghanistan to the United States in 2001? If so, please explain.

3. Even assuming that such a warrant would have been required, do you agree that even before 9/11, FISA authorized emergency interception without a warrant for a 48-hour period of phone calls from a known terrorist safe house in Afghanistan to the United States?

4. Assuming that you were referring to an actual pre-9/11 incident in your statement, please explain why such phone calls were not intercepted and appropriately utilized by federal government authorities in seeking to prevent terrorist attacks.

See more tagged with: FISA, house judiciary and michael mukasey

The Optional Constitution

Smarter people have already commented on the release of the Yoo memos, and frankly I don’t have much to add. What I can say is that I’d been tracking Congress’ movement on those memos for some time. A long while back, at an event at the Georgetown Law Center, I asked Patrick Leahy whether, as chairman of the Judiciary Committee, he’d use his subpoena power to make them public and he said it might come to that. What followed, of course, was a series of very angry-sounding letters and public statements from various corners of Capitol Hill, until finally the ACLU had to step in where public servants had either failed, middled, or ignored the issue entirely.

Now we learn of the existence of yet another memo, still unreleased, which, for the 16-or-more months the administration honored it, effectively “concluded that the Fourth Amendment had no application to domestic military operations.” The Fourth Amendment, you’ll recall, is that annoying little cockroach in the bill of rights which protects people like you from things such as warrantless wiretapping and other means of internal espionage.

So, by my count, the White House has, at various times, concluded that the First, Fourth, Fifth, Sixth, and Eighth Amendments are unacceptable impediments to its violation of the First, Fourth, Fifth, Sixth, and Eighth Amendments, and, as such, chose to wish them out of existence as if they were minor headaches like congressional subpoenas or the national debt. Half of the bill of rights. Pretty neat trick, no?

See more tagged with: Congress, torture and wiretapping

FISA Movement

Wall Street Journal says:

The White House, seeking to break a months-long standoff, has signaled to Democratic lawmakers it is open to negotiation over a proposal to expand government spy powers, according to officials familiar with the conversations.

House leadership confirms:

House Majority Leader Steny H. Hoyer , D-Md., said Tuesday he has received indications the Bush administration is interested in negotiating a compromise extension of stalled electronic surveillance legislation.

Of course, the White House will have to be willing to specifically negotiate the matter of immunity. In recent weeks, they have rejected all Democratic offers of limited immunity–proposals that would, for instance, limit damages while keeping lawsuits against telecommunications companies alive. If this olive branch is really an olive branch, that will have to change.

See more tagged with: FISA

Pasdar’s Allegations

The good people at the whistleblower protection outfit Government Accountability Project have released some documents about Babak Pasdar’s FISA allegations. They can be accessed here and here. The second one, crucially, is a Pasdar-signed affidavit describing the illegal surveillance. Of particular interest from the second document:

The scope of uncontrolled “Quantico Circuit” access allowed the third party to obtain significant information about any mobile phone subscribers, including –

• listening in and recording all conversations en-mass;
• collecting and recording mobile phone data use en-mass;
• obtaining the data they accessed from their mobile phone (Internet access, e-mail, web);
• trending their calling patterns and other call behavior;
• identifying inbound and outbound callers;
• tracking all in and outbound calls
• tracing the user’s physical location

See more tagged with: FISA and Whistleblower

A New FISA Whistleblower

Some powerful congressmen are raising new questions about telecom immunity based upon the allegations of a new industry whistleblower. In a letter released yesterday, three senior members of the House Energy and Commerce committee, including its chairman, John Dingell (D-Mich.) highlight the case of Babak Pasdar, who has charged “at least one major wireless telecommunications giant” of giving “a Governmental entity access to every communication coming through that company’s infrastructure, including every e-mail, Internet use, document transmission, video, and text message, as well as the ability to listen in on any phone call.”

Pasdar has been known to the committee for some time, but he has come forward publicly now because the Bush administration has blocked every effort to investigate his charges privately.

His allegations mirror those of retired AT&T technician Mark Klein, who came forward accusing his company of providing the government access to, well, just about everything. Dingell, (along with subcommittee chairmen Edward Markey and Bart Stupak) write “Members should be given adequate time to properly evaluate the separate question of retroactive immunity.”

At least. The letter can be accessed here.

See more tagged with: FISA and telecoms