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Home > The Secrecy File > Archives > 2007 > November
November 2007
Leahy takes next step toward holding White House in contempt
If you thought that Senate Judiciary Committee Chairman Patrick Leahy planned to abort his panel’s investigation into the firing of nine U.S. attorneys last year—now that former Attorney General Alberto Gonzales has left office—think again.
As chairman, Leahy ruled today that White House claims ofexecutive privilege and immunity are “overbroad, unsubstantiated and not legally valid” to block current and former White House officials from answering the committee’s subpoenas.
Leahy directed them to comply “immediately” with the subpoenas that the panel issued some six months ago. This is the next step toward holding current and former White House officials in contempt of Congress.
The Senate and House Judiciary Committees are investigating whether the top prosecutors were fired for failing to hasten investigations into Democrats shortly before last year’s congressional elections or aggressively pursuing Republicans on public corruption charges.
We are calling the White House for comment.
Here’s the background on the subpoean squabble:
The committee issued subpoenas for documents and testimony to White House Chief of Staff Joshua Bolten and former White House political director Sara M. Taylor on June 13, 2007. The committee issued subpoenas to former White House Deputy Chief of Staff Karl Rove and White House deputy political director J. Scott Jennings on July 26, 2007.
To date, Bolten has failed to produce any of the documents requested by the subpoena. Rove failed to appear before the committee to testify as required by subpoena after the White House asserted that he should not be forced to testify.
Taylor and Jennings appeared, but both failed to answer the most important questions surrounding the firings of the prosecutors, citing executive privilege.
“I have given the White House’s claims of executive privilege and immunity careful consideration,” wrote Leahy. “I hereby rule that those claims are not legally valid to excuse current and former White House employees from appearing, testifying and producing documents related to this investigation. Accordingly, I direct Mr. Bolten, Mr. Rove, Ms. Taylor and Mr. Jennings to comply immediately with the committee’s subpoenas by producing documents and testifying or face possible contempt citations.”
The Senate Judiciary Committee has held a series of hearings to investigate the alleged politicization of the Justice Department.
Leahy moved to issue the subpoenas after the White House rejected efforts to work out an accommodation to provide the materials needed for the committee’s investigation.
The House Judiciary Committee has already approved contempt citations for Bolten and former White House Counsel Harriet Miers in connection with the U.S. Attorneys scandal.
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EFF wins fast-track release of telecom lobbying records
Looks like the federal government will have to cough up all those records detailing the telecom industry’s lobbying efforts to win legal protection for participating in President Bush’s secret terrorist surveillance programhttp://www.fas.org/irp/agency/doj/fisa/ without a court warrant.
U.S. District Judge Susan Illston didn’t bother to wait till Friday’s scheduled hearing in San Francisco to weigh the motion to compel brought by San Francisco-based Electronic Frontier Foundation.
Illston canceled the hearing and ordered the Office of the Director of National Intelligence to turn over the documents sought under the Freedom of Information Act.
The timing could not be worse for the government. Congress is scheduled to vote on overhauling the 1978 Foreign Intelligence Surveillance Act when it returns and the leading bill includes an immunity provision for the telecom industry. The records could help the foundation persuade lawmakers to vote against the measure.
“We are pleased Judge Illston recognized that time was running out for these documents to make a difference in the legislative debate,” said David Sobel, senior counsel at the foundation.
The judge agreed that the administration “is dragging its feet in making relevant information available and stressed that the public has a right to full disclosure before Congress acts on the pending telecom amnesty proposals,” Sobel said.
The foundation has a vested interest in opposing imunity. Its lawyers represent AT&T customers in a class action lawsuit alleging that their privacy rights were violated when the company participated in the program outside the confines of the FISA law.
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EFF demands disclosure on telecom effort to stop lawsuits
The Electronic Frontier Foundation plans to ask a federal judge Friday to hasten the release of records it believes will reveal that the telecom industry conducted a secret lobbying effort to win legal protection from lawsuits for participating in President Bush’s terrorist surveillance program.
Timing is of the essence for the San-Francisco-based foundation. The Senate plans to amend the 1978 Foreign Intelligence Surveillance Act when it returns next week.
And the leading bill under consideration, approved by the
The foundation represents AT&T customers in a class action lawsuit alleging that the company violated their rights by not obtaining a warrant before turning over records to the NSA as is required by federal law.
But the Office of the Director of National Intelligence is “dragging its feet” on a Freedom of Information Act request seeking information about the telecom’s lobbying effort.
The foundation will ask U.S. District Court Judge Susan Illston to order the government to release the records while it could still impact the outcome of the Senate vote.
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Energy Department opens up on sensitive information
The Energy Department quietly issued a new rule that could open up government documents covered under Critical Energy Infrastructure Information, a post 9/11 secrecy category to shield sensitive information from public view, reports the Coalition of Journalists for Open Government.
The Federal Energy Regulatory Commission plans to eliminate its”non-internet public” designation, a designation that has kept some thousands of documents off the internet—confined to public reading rooms.
The department said much of the information is already available online and the marker “does not enhance security or safety.”
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Transparency improves among the states
While government secrecy rises at the federal level, a new study indicates that the states are becoming more transparent.
But the study, conducted by Washington-based Corporate Research Project of Good Jobs First, found that states are taking advantage of the internet to inform the public.
“The internet makes possible an unprecedented level of government transparency and public participation,” said Greg LeRoy, executive director of Good Jobs First. “But many states have been slow to adopt vigorous online disclosure, especially with respect to economic development subsidies.”
Check out your state here.
Some 27 states and the District of Columbia still provide no systematic online subsidy disclosure, according to the study.
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Coburn gets budget secrecy provision removed
A few days ago we broke news about a provision buried in the just released House and Senate Conference report for the Transportation-HUD spending bill that would prevent the public from accessing budget information in a timely way to protest boondoggle projects.
Sen. Tom Coburn, R-Okla., says today that he has persuaded a key House appropriator to remove that provision. Coburn said that he and Rep. John Olver, chairman of the subcommittee, reached an agreement last night to remove the provision.
“Taxpayers and elected representatives who don’t serve on the House or Senate Appropriations committees have a right to access information about how the federal government plans to spend their money,” Coburn said.
“Chairman Olver assured me that he would not allow the offending language to become law and I take him at his word,” Coburn said. “As a result of our agreement, that provision will not be enacted.”
We are calling Olver just to make sure.
Texas Republican says RESTORE Act helps terrorists
Texas Republican Rep. Lamar Smith is frustrated by last night’s House vote that would make significant changes to the nation’s surveillance laws if signed into law.
The new legislation does not address the needs outlined by the director of national intelligence, Smith said. The new legislation adds unreasonable court oversight to eavesdropping and surveillance of suspected spies and terrorist overseas.
But more importantly, it does not protect telephone companies from lawsuits for participating in President Bush’s terrorist surveillance program after the Sept. 11, 2001, terrorist attacks without a court warrant as federal law requires.
“Democrats failed to protect the American people by ignoring urgent requests from the intelligence community to update tools and modernize laws governing intelligence gathering,” said Smith, the highest ranking Republican on the House Judiciary Committee, which has jursidiction over efforts to improve the 1978 Foreign Intelligence Surveillance Act.
The so-called Restore Act actually undermines national security and increases the risk of a future attack, Smith said.
“Democrats are playing politics by claiming that this bill “restores” checks and balances,” Smith said. “This bill restores nothing but a legal loophole for terrorists and spies.”
The legislation requires inteligence agencies to obtain a court order from the secret Foreign Intelligence Surveillance Court before it conducts surveillance of targets overseas. Smith said that requirement would slow the process down and allow suspected terrorists to slip through the hands of investigators.
“The implications of this requirement alone could be catastrophic,” Smith said. “The bill gives terrorists overseas more rights under the law, than individuals inside the United States. That is simply absurd.”
There is nothing but confusion over in the Senate chamber.
The Senate Judiciary panel sent a bill to the floor that does not include the immunity provision. Now it is up to Senate Majority Leader Harry Reid, D-Nev., to decide what bill to take up.
Reid has three options: -He could call the Senate Intelligence Committee bill to the floor that includes immunity for the telecom industry. -He could call for a vote on the House measure. -He could call for a vote on the Senate Judiciary Committee’s redrafted bill, which does not include immunity
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Secrecy provision buried in appropriations bill
Buried in the just released House and Senate Conference report for the Transportation-HUD spending bill is a provision that has open government groups worried.
The provision would ban the public from having timely access to budget information for the Transportation Department, according to one open government analyst.
Here’s how: each year, the appropriations committees receive access to documents known as “budget justifications” at the same time that the president’s annual budget is released to the public.
Last year, Sen. Tom Coburn, R-Okla., worked with the Office of Management and Budget to make those documents available to the public at the same time they were made available to appropriators.
The conference report language, which was not included in either the House or Senate versions of the bill, prohibits the public release of that information until several months after appropriators have received it.
The result is that many spending bills may be marked up before the public ever has a chance to examine an agency’s detailed justifications and descriptions of its budget requests, according to one concerned open government advocate.
“The public has a right-and a need-to know not only what the administration is proposing in its budget but what agencies have proposed and their arguments for doing so,” said Patrice McDermott, executive director of OpenTheGovernment.org, a coalition of conservative and liberal groups concerned about government secrecy.
Knowing about proposed budget requests helps the public hold Congress and the White House accountable, McDermott said.
“It is the only way that the public can engage in an informed discussion of the budget priorities of both the executive and legislative branches,” McDermott said.
Senator secretly holds effort to combat identity theft
Look out. Here comes another senatorial smoke out. Some mysterious senator has placed a secret hold on legislation that would crack down on identity thieves.
The legislation, introduced by Sens. Patrick Leahy, D-Vt., and Arlen Specter, R-Pa., would give identity theft victims a chance to seek restitution in federal court for the loss of time and money spent restoring their credit. It would address lax data security and inadequate breach notification.
Leahy was so incensed that a fellow senator had invoked a parliamentary measure to indefinitely delay passage of the bill that he went to the floor today to get the culprit to surface or at least say why he or she is opposed to a bill with wide bipartisan support.
“I am disappointed that some senator is preventing the Senate from taking an important step forward to combat identity theft and to protect the privacy rights of all Americans by passing the Leahy-Specter Identity Theft Enforcement and Restitution Act of 2007,” Leahy said.
All of the Democrats have cleared the measure for passage, Leahy said, so which Republican is holding it up?
The bipartisan measure, supported by the Justice Department, would provide new tools to federal prosecutors to combat identity theft and other computer crimes.
The bill would expand the scope of the federal identity theft statute so that the law keeps up with the ingenuity identity thieves, Leahy said.
The measure adds three new crimes—passing counterfeit securities, mail theft, and tax fraud - to the list of offenses for aggravated identity theft. And the measure increases the criminal penalties.
“The dangers of identity theft and other cyber crimes continue to increase as our nation becomes more dependent on high technology,” Leahy said.
This bill has strong bipartisan support.
And the measure is upported by a broad coalition of business, high tech and consumer groups, including Microsoft, Consumers Union, the Cyber Security Industry Alliance, the Business Software Alliance, AARP and the Chamber of Commerce.
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Judge slaps White House with restraining order
U.S. District Judge Henry H. Kennedy Jr. issued a temporary restraining order today against the White House, ordering its executive office to preserve all records and back-up copies of millions of missing e-mails.
“Defendants shall preserve media, no matter how described, presently in their possession or under their custody or control, that were created with the intention of preserving data in the event of its inadvertent destruction,” wrote Kennedy in a Nov. 12 opinion in the U.S. District Court for the District of Columbia.
The order was sought by the National Security Archive, a public interest library at George Washington University, and the Washington-based watchdog group Citizens for Responsibility and Ethics in Washington.
The groups alleged in separate, but now combined, complaints, that the preservation of more than 5 million missing e-mails is vital to the preservation of history as they reveal the inner thinking of President Bush’s top aides between 2002 and 2007.
“The judge’s order shows that the loss of the e-mail records is a serious problem,” said Meredith Fuchs, general counsel at the archive.
The time span of the missing e-mails covers major events such as the war in Iraq; Hurricane Katrina; the dismissal of nine U.S. attorneys and the reauthorization of the Patriot Act.
“A lot of times, the government says “trust us, we will do the right thing,’” Fuchs said. “Judge Kennedey’s order shows he won’t just take their word for it. He will direct them to do the right thing.”
Anne Weismann, general counsel at CREW, said a temporary restraining order is necessary because the White House has repeatedly failed to assure the public that it would preserve back-up copies of the missing emails.
The administration tried to argue that a restraining order is not necessary.
Blair C. Jones, a White House spokesperson, said Monday the White House’s office of administration has been taking steps to preserve and maintain the back-up tapes for the administration’s e-mail system and will study the court’s order.
“We have provided assurances to the plaintiffs and to the court that these steps were being taken,” Jones said. “We will continue preserving the tapes in compliance with the court’s order.”
The White House has admitted that the e-mails in question may not have been archived as they should have been.
“I think that the fact that the judge didn’t agree with that is pretty remarkable,” Weismann said. “Who knows how many of the missing e-mails are accessible or if they are gone?”
“I think that the fact that the judge didn’t agree with that is pretty remarkable,” Weismann said. “Who knows how many of the missing emails are accessible or if they are gone.”
Kennedy said he based his ruling on the recommendation of U.S. Magistrate Judge John M. Facciola, who recommended a restraining order last month.
“Without such an order, destruction of the backup media would be without consequence,” Facciola wrote in a six-page recommendation.
Leahy urges swift passage of media shield law
Sen. Patrick Leahy, D-Vt., is urging swift passage of legislation that would protect reporters’ confidential sources from disclosure in most cases.
Leahy is asking his colleagues why a bill that won wide bipartisan support in the Senate Judiciary Committee has failed to move.
The House approved similar legislation earlier this year by a veto-proof margin of 398 to 21. Leahy has even requested that the House bill be placed on the Senate’s executive calendar to accelerate its consideration. Passage of either bill would please Leahy.
“Both of these bipartisan bills are available and waiting for Senate action, and I believe that there are well over 60 votes in favor of passing a shield bill in the Senate,” Leahy said on the floor. “I strongly support the enactment of a federal shield law for journalists”
There has never been a more pressing time to protect reporters’ sources, Leahy said.
A recent study conducted by Privacy International, a privacy, civil liberties and human rights watchdog, found that some 100 countries have adopted laws that protect journalists from being forced to reveal confidential sources.
The United States is just one of a few established democracies that does not have one, noted Leahy.
“Sadly, the press has become the first stop, rather than the last resort, for our government and private litigants when it comes to seeking information,” Leahy said. “This is a dangerous trend that can have a chilling effect on the press and the public’s right to know.”
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Watchdogs fight secrecy with database
Look out all you government bureaucrats who deny or delay Freedom of Information Act requests.
Here comes Citizens for Responsibility and Ethics in Washington and a coalition of other Washington watchdogs with a new database of FOIA documents that citizens can access.
In short, they are bypassing government to bring the documents to the people.
And the best part of it? There are no formal FOIA letters to write, no follow-up demands citing the public’s right to know, no costly court battles to get the government documents stored in this repository.
There is simply a compuer database filled with documents, 36,000 at launch and growing each day, for the public to search and use at it wants.
There is lots of “good stuff ” on the database already: Hurricane Katrina; global warming; Neil Bush; Jack Abramoff; secret service records.
The documents were obtained by CREW, Project on Government Oversight, Public Citizen, Electronic Frontier Foundation and the Sunlight Foundation—groups that are committed to government transparency and exposing corruption in Washington.
“There are no other databases out there like this—this is a true collaboration among all these groups,” said Naomi Seligman, deputy director of CREW. “We hope it will become a community project.”
In the past, the watchdog groups have posted documents on their websites but they have been unsearchable PDFs or they have highlighted several pages to bolster a findings.
This limits the public’s access and minimizes the opportunities for use by researchers, journalists and citizen reviewers for further research and disclosures, Seligman said.
“Sunlight is proud to have funded CREW’s government docs site,” said Ellen Miller, executive director of the Sunlight Foundation, which supported the creation of the site as part of its mission to use technology to bring more transparency to government.
“The innovative tool they have developed is pioneering in its use of Web 2.0 technology to give citizens the power to review once obscure FOIA documents,” Miller said.
Cornyn and Leahy go after counterfeits
Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, have forged partnerships in the past to pry open federal government.
Now the senators are teaming up to pass legislation that would strengthen efforts to fight copyright infringement and counterfeiting here and overseas.
Leahy and Cornyn introduced legislation today that would give the Justice Department more power and resources to hunt copyright thieves and prosecute them. Look out all you Kate Spade imitators.
“This bill takes important steps to protect American innovators and consumers,” Cornyn said. “By working together in a bipartisan manner, we’ve made significant strides to strengthen and safeguard intellectual property rights in Texas and throughout America.”
Copyright infringement “silently drains” America’s economy and undermines its talent, creativity and initiative,” said Leahy, chairman of the Senate Judiciary Committee.
The bill would give civil copyright enforcement powers to the attorney general and it would authorize additional funding to investigate and prosecute intellectual property crimes involving computers and the Internet.
The bill would also require the FBI to assign a minimum of 10 agents to work on intellectual property crimes.
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Civil Liberties groups turn up heat over telecom immunity
The American Civil Liberties Union is pressing lawmakers to reject giving the telecom industry liability protection for participating in President Bush’s secret eavesdropping program without a court warrant.
The civil liberties group is hitting the Hill with its “just say no” campaign. The telecom industry is responding with its own lobbying effort.
Both sides face off tomorrow when the Senate Judiciary Committee debates a bill that the Senate Intelligence Committee passed last month. That bill grants the administration more surveillance powers and gives telecom giants like AT&T immunity from lawsuits for participating in the secret surveillance program after the Sept. 11, 2001.
Here is the heart of the ACLU’s lobbying campaign (we are trying to get the same from the telecom industry):
*The bill (S. 2248) would grant the attorney general the power to prevent any court or public utility commission from reviewing whether state and federal laws were broken by the administration’s warrantless surveillance after 9/11.
*The bill would allow the attorneygeneral “kill any court review of warrantless surveillance.” The bill would give the attorney general the sole discretion to decide whether current cases against telecommunications carriers will proceed.
*The bill would allow the attorney general gag judges. After forcing the courts to dismiss the cases they are hearing, it then prevents the court from declaring whether the dismissal was based on the telecoms alleged nonparticipation or whether they actually spied on their customers but had a pass from the president.
*The bill would prevent states from enforcing their own privacy laws. A number of states have begun investigating whether their own states’ privacy laws were violated by the warrantless wiretapping and release of consumer records after the 9/11 attacks. The bill would allow the attorney general to intervene in these state cases and “prevent the states from protecting their own citizens and enforce their own laws.”
*The bill would prevent citizens from enforcing their rights and it would hide government wrongdoing.
*The bill would create a disincentive to follow the law in the future. By letting the telecoms off the hook without any consequence, it sends the wrong message to those who have access to the public’s private conversations and records. When the government asks them to break the law in the future, they will have precedent that Congress “will cover their tracks.”
Yet, another torture memo?
More trouble for former Attorney General Alberto Gonzales?
Legal documents filed in federal court in New York today reveal that the Justice Department’s Office of Legal Counsel issued three secret memos in May 2005 related to the use of torture to interrogate detainees in CIA custody.
Until now, the public knew about two memos disclosing excessive interrogation methods. The memos were not publicly released but referred to in government filings as part of a lawsuit filed by the American Civil Liberties Union seeking records under the Freedom of Information Act.
“These torture memos should never have been written, and it is utterly unacceptable that the administration continues to suppress them while at the same time declaring publicly that it abhors torture,” said Jameel Jaffer, director of the ACLU’s national security project.
Bush administration officials worked in concert “to evade and violate the laws that prohibit cruelty and torture,” Jaffer said. “Some degree of accountability is long overdue.”
The White House did not have an immediate response.
On Oct. 4, 2007, The New York Times published a front-page article disclosing that Justice officials had authored two memos in 2005 about interrogation methods used by the CIA.
The Times reported that the first was issued “soon after” Gonzales assumed the post of attorney general. The memo explicitly authorized interrogators to use combinations of psychological “enhanced” interrogation practices, including waterboarding, head slapping and stress positions.
The second memo, according to The Times, was dated later that same year. It stated that none of the CIA’s interrogation methods violated a law being considered by Congress that outlawed “cruel, inhuman and degrading” treatment.
The memos should have been identified and processed for the ACLU as part of its Freedom of Information Act lawsuit requesting information on the treatment and interrogation of detainees in U.S. custody.
In response to legal papers filed by the ACLU on Oct. 24 objecting to that omission and requesting the release of the two memos, the government filed papers Monday stating:
“OLC (Office of Legal Counsel) has reviewed its opinions from that time frame and has determined that there were in fact three opinions issued to CIA relating to the interrogation of detainees in CIA custody; Two of the opinions were issued on May 10, 2005…The third was issued on May 30, 2005… OLC has not located any legal opinions issued to CIA from January 31, 2005 through May 9, 2005 that relate to the interrogation of detainees in CIA custody.” “The Justice Department’s failure to identify and disclose these memos is yet another example of its efforts to thwart public inquiry into its authorization of illegal interrogation methods,” said Amrit Singh, a staff attorney with the ACLU’s immigrants’ rights project. “The memos must immediately be disclosed, and high ranking officials must be held accountable for authorizing torture.”
A hearing regarding the ACLU’s request for the release of OLC torture memos is scheduled for Nov. 13.
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Reporters Committee: first amendment at stake
The Reporters Committee for Freedom of the Press urged a federal court of appeals in Boston to rule that FBI agents violated the media’s rights by “intimidating and harassing them” last year as they covered a law enforcement raid on a political activist.
Lawyers for the Virginia-based non-profit organization assert in a legal brief filed today that reporters were assaulted when an FBI agent pointed a rifle at them as they reported on the February 2006 raid in Puerto Rico.
The U.S. District Court in Puerto Rico held such acts were protected state action and did not violate the journalists’ First Amendment Rights.
But Lucy Dalglish, the executive director of the Reporters Committee believes otherwise.
“The video of the attacks by law enforcement officials on the Puerto Rican journalists is shocking,” Dalglish said. It was clear the FBI’s search of the premises was over when the media came onto the property at the invitation of one of the residents, she said.
“There was no justification whatsoever for the attack on the reporters and photographers.” Dalglish said.
In a friend-of-the-court brief supporting the journalists’ appeal to the First Circuit, the committee’s legal team argued that such disregard for the long-recognized right to report news under the First Amendment should not stand.
“When journalists pose no threat to the investigation of a state actor and are merely present to observe and report on public events, such aggressive conduct by a state actor is surely unwarranted and cannot be tolerated,” the lawyers for the committee wrote.
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AT&T whistleblower: say no to telecom immunity
A telecommunications technician who says he witnessed the telecom giant AT&T secretly help the government with its eavesdropping program plans to tell all at a news conference tomorrow on Capitol Hill.
Mark Klein wants the Senate Judiciary committee to reject legislation that offers telecommuncations companies legal protection for participating in President Bush’s surveillance program without a court warrant. The Senate Intelligence Committee recently cleared such legislation. On Thursday, the Senate Judiciary Committee will evaluate the measure.
Klein is a witness in a class-action lawsuit brought against AT&T by the Electronic Frontier Foundation, a digital rights group based in San Francisco. The foundation alleges that the telcom company aided the government in illegally spying on Americans outside the Foreign Intelligence Surveillance Act.
“My job required me to enable the physical connections between AT&T customers’ internet communications and the National Security Agency’s illegal, wholesale copying machine for domestic emails, internet phone conversations, web surfing and all other Internet traffic,” Klein said in a statement.
“I have first-hand knowledge of the clandestine collaboration between one giant telecommunications company, AT&T, and the NSA to facilitate the most comprehensive illegal domestic spying program in history,”Klein said.
Klein said AT&T built technology to help the government’s domestic warrantless wiretapping program at its main switching facility in San Francisco.
Klein was responsible for connecting high-speed fiber optic cables to sophisticated equipment that intercepted communications from AT&T customers and then copied and routed every single one to a room run by the National Security Agency.
Leahy upset about Mukasey nomination
Senate Judiciary Chairman Patrick Leahy, D-Vt., presides today over the presidential nomination of Michael Mukasey to become the next attorney general of the troubled Justice Department.
He clearly is not happy that two Democrats — Sens. Chuck Schumer of New York and Dianne Feinstein of California — plan to join ranks with Republicans to approve the president’s pick for the top Justice Department job.
“Taking a cue from the editorial page of the Wall Street Journal, some have sought to find comfort in Judge Mukasey’s personal assurance that he would enforce a future, new law against waterboarding if this Congress were to pass one. Unsaid, of course, is the fact that any such prohibition would have to be enacted over the veto of this president,” Leahy plans to say in his statement obtained by Cox Newspapers in advance of today’s hearing.
“But the real damage of this argument is not its futility,” Leahy said. “The real harm is that it presupposes that we do not already have laws and treaty obligations against waterboarding. In fact, we do. No senator should abet and pamper this administration’s legalistic obfuscations by those such as Alberto Gonzales, John Yoo and David Addington by agreeing that the laws on the books do not already make waterboarding illegal. We have been prosecuting water torture for more than 100 years.”
Leahy went to express his dismay that a top State Department official could not say that waterboarding is torture.
When asked at a recent public appearance whether he could imagine any circumstance in which waterboarding could be justified on an American national by a foreign intelligence service, John Bellinger of the State Department said, “one would have to apply the facts to the law” and when pressed he said that he was not willing to include it or exclude it and that he did not want to “get involved in abstract discussions.”
“That is so wrong that it is chilling,” Leahy said.
“When it comes to our core values-the things that make our country great and that define America’s place in the world-it does not depend on the circumstances,” Leahy said.
“What we need most right now is an attorney general who believes and understands that there must be limitations on Executive power,” Leahy said. “America needs to be certain of the bedrock principles in our laws and our values that no president and no American can be authorized to violate.”
Coming to a theater near you: White House contempt vote
The House Judiciary Committee took its first step today toward persuading the full House to vote on a contempt citation against the Bush administration for failing to turn over documents and testimony in its on-going investigation into whether politics improperly played a role in the dismissal of nine U.S. attorneys last year.
Chairman John Conyers, D-Mich., filed contempt of Congress report with the clerk of the House at 2:45 p.m.
The word on the Hill is that the Democratic leadership is now counting votes to see if there are enough to hold the Bush administration in contempt.
The White House responded by saying the Judiciary Committee is wasting time and money.
“House Democrats have no record of accomplishment on issues that actually matter to Americans,” said Tony Fratto, White House spokesperson. “Now they want to waste time on another diversion.”
Fratto noted that the Democratic-controlled Congress has failed to send a single appropriations bill to the president, yet has plenty of time for investigations.
“This Congress is proving to be the all-time champion of investigations,” Fratto said. “This is a futile approach. As we have said all along, if the Judiciary Committee really wanted facts instead of headlines, they should have accepted the president’s offer of accommodation to interview current and former advisors. As they continue to make clear, they’re not interested in facts.”
Conyers begs to differ.
Conyers offered White House Counsel Fred Fielding a chance this morning to try again to negotiate terms for interviews and documents from Joshua Bolten, chief of staff to Bush, and Harriet Miers,former White House counsel. It was his ninth attempt at reaching an agreeement.
“I have written to you on eight previous occasions attempting to reach agreement on this matter,” Conyers wrote. “As we submit the Committee’s contempt report to the full House, I am writing one more time to seek to resolve this issue on a cooperative basis.”
Specifically, Conyers requested:
*The White House provide the committee with copies of documents reflecting communications between White House staff and persons outside the White House relating to the U.S. attorney terminations.
*The White House make available for confidential staff review the remaining, internal White House documents relating to the dismissals. At that point, the committee would likely identify a smaller number of documents for production.
*The committee and White House tap present and former White House staffers for interviews but not require those persons to be under oath.
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Is waterboarding torture?
Is waterboarding really torture?
Four retired military generals sure think so. They recently sent Judiciary Committee Chairman Patrick Leahy, D-Vt., a letter saying as the panel prepares to vote on former federal judge Michael Mukasey to become the next attorney general.
The letter was written by Brigadier General David M. Brahms, United States Marine Corps; Major General John L. Fugh, United States Army; Rear Admiral Donald J. Guter, United States Navy; and Rear Admiral John D. Hutson, United States Navy.
“We write because this issue above all demands clarity: Waterboarding is inhumane, it is torture, and it is illegal,” the generals wrote.
“This is a critically important issue-but it is not, and never has been, a complex issue,” the generals wrote. “All U.S. government agencies and personnel, and not just America’s military forces must abide by both the spirit and letter of the controlling provisions of inernational law.”
And those laws are simple and direct: “Cruelty and torture-no less than wanton killing-is neither justificed nor legal in any circumstance,” the generals wrote.
Mukasey’s nomination was in jeopardy last week because he refused to say that waterboarding-using wet towels and dripping water to simulate drowning-is torture.
But Democratic Sens. Chuck Schumer of New York and Dianne Feinstein of California rode to Mukasey’s rescue when they announced they would side with Republicans on the committee to approve President Bush’s pick.
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Secrecy in Farm Bill
You might think that the massive farm bill now on the table has nothing to do with government secrecy, but it does.
OpenTheGovernment.org, an umbrella organization of conservative and liberal organizations, discovered a provision in the measure that would create an exemption to the Freedom of Information Act for all records related to the Agriculture Department’s animal identification system.
The National Animal Identification System tracks sick animals through the system, among other things. It includes cows with Bovine Spongiform Encephalopathy, commonly known as “mad cow,” disease.
Patrice McDermott, director of OpenTheGovernment.org, is lobbying against the provision because it would “create an unnecessary bar” to finding out about the condition of animals in the nation’s food supply and how they are handled in the system.
“With food safety concerns on the rise, it doesn’t make sense that the public can’t find out if an animal is sick,” McDermott said.
McDermott is sending the letter below to 70 groups in the hopes of delivering it to the Hill tomorrow.
The provision makes it illegal to release information about animals monitored by the system. This violates the Open Government Act, legislation sponsored by Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt., that strengthens the Freedom of Information Act.
In that measure, the Senate said all new exemptions to FOIA must be marked in legislation.
Under the exemption, only the Agriculture Department secretary would be allowed to disclose NAIS information.
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Leahy opposes Mukasey nomination for AG
Senate Judiciary Committe Chairman Patrick Leahy says he will oppose Michael Mukasey, the presidential nominee to become the next attorney general, on Tuesday because of his refusal to say that waterboarding is a form of illegal torture.
“There are fundamental issues that require moral and legal clarity, and the willingness to act on our convictions-and this is one of them,” said Leahy about President Bush’s nominee.
“If an American was captured and waterboarded, would we consider it torture and want to raise bloody hell about it? Of course we would,” Leahy said.
“The United States does not torture. The United Statesdoes not inflict cruel, inhuman, and degrading treatment,” Leahy said. “This is part of the moral fiber of our country and our historical place as a world leader on human rights, and it has long been fixed in our laws, our constitution, and our values.”
Leahy joins Sens. Ted Kennedy of Massachusetts, Joe Biden of Delaware, Dick Durbin of Illinois and Sheldon Whitehouse of Rhode Island in opposing Mukasey, casting doubt on whether there will be enough votes to confirm the former federal judge.
But Republican remain supportive of Mukasey.
Texas Republican Sen. John Cornyn, a member of the Judiciary committee, said Mukasey is a victim of political shennanigans.
“This is again part of the gamemanship in Washington,” said Cornyn, noting that politics has undercut the appropriations process and the legislative effort to provide health insurance to poor children.
“Now we see it in something as important as restoring the leadership to the department of justice, which has been floundering,” Cornyn said.
The Democrats are misinterpreting what Mukasey said about torture, Cornyn said.
In written responses to questions posed by the Judiciary committee, Mukasey has made it “very clear that U.S. law prohibits torture and he would never sanction or approve anything that involved the violation of our international laws or domestic laws involving torture,” Cornyn said.
There may be interrogation techniques that require close examination and extensive briefings, Leahy said. But Waterboarding is not among them.
“No American should need a classified briefing to determine whether waterboarding is torture,” Mukasey said. “Waterboarding was used at least as long ago as the Spanish Inquisition. We prosecuted Japanese war criminals for waterboarding after World War II.”
Leahy, who has overseen the disintegration of the Justice Department over the past year, said he is eager to restore strong leadership and independence to the department.
He said he wanted to support Mukasey, but his answers about torture preclude that.
“America needs to be certain and confident of the bedrock principle-deeply embedded in our laws and our values-that no one, not even the President, is above the law,” Leahy said.
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FEC issues historic fine against big bucks contributor
Political contenders beware of the sad tale of defense contractor Mitchell Wade.
The Federal Election Commission just slapped Wade and his defense firm MZM, Inc., with one of its largest fines ever— a $1,000,000 civil penalty for “knowingly and willfully” trying to funnel illegal contributions into congressional campaigns.
The commission’s inquiry into Wade was sparked by a complaint filed by the Citizens for Responsibility and Ethics in Washington, alleging that Wade violated federal fundraising rules by using corporate funds to reimburse employees for contriubutions made to members of Congress.
Wade believed the contributions to a political action committee would help his defense firm win contracts, according to the watchdog group. Wade’s dealings were first exposed by the San Diego Tribune as part of its investigation into the now imprisoned former Republican Rep. Randy “Duke” Cunningham (photo shown). Cunningham was convicted of taking bribes for contracts.
Wade has accepted a conciliation agreement where he “admits to knowingly and willfully violating the Federal Election Campaign Act by funneling $78,000 in corporate contributions” to Rep. Virgil Goode, R-Va., and former Rep. Katherine Harris, R-Fla., and agreeing to pay $1 million to settle the matter.
“There are serious consequences for those who knowingly and willfully try to funnel illegal contributions into federal election campaigns,” said Robert Lenhard, chairman of the commission. “The historic civil penalty collected in this case shows that the FEC has a strong and vigorous enforcement program in place.”
Melanie Sloan, executive director of CREW, said she was gratified by the commission’s decision.
“As the presidential campaign season progresses, a fine of this magnitude should serve as a warning to all political donors that violating federal campaign finance laws has serious consequences,” Sloan said.
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