September 07, 2007

Will White House Appeal Judge's Patriot Act Ruling?

Andrew Cohen of the Washington Post's Bench Conference blog thinks so. But a DOJ appeal may actually not be worth it.

U.S. District Court Judge Victor Marrero's ruling [PDF] yesterday strikes a provision in the revised 2005 Patriot Act that allows the government to compel data and records from businesses. The FBI was permitted to forbid those businesses -- Internet service providers, phone companies, etc. -- to object to, or talk about in any way, orders to surrender records. (Judicial review was permitted, but Marrero concludes that the bar for reversal was set unreasonably high.)

That meant those companies had no way of alerting customers that their records were being seized by the feds, nor could they resist handing the records over in the name of protecting customers' privacy. ISPs in particular have vocally objected to this provision; the one that brought the lawsuit is listed as "John Doe."

Marrero found that the gag order violated the businesses' First Amendment rights. That's a fairly easy legislative fix. Congress agrees with DOJ that in some cases, particularly those related to terrorism investigations, it may be necessary to demand records from vendors and order them to keep quiet about it. But lawmakers could rewrite the provision and expand judicial review over this process, placing additional burden on the FBI to show a compelling reason why a gag order is necessary. It's hard to think of a good reason why DOJ would object to that.

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Posted at 11:59 AM
Posted to: Alberto Gonzales, Bush Administration, Constitution, Robert Mueller, Terrorism
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August 22, 2007

Known Knowns And Unknown Unknowns Of The New Wiretap Program

Ever since December 2005, when the White House admitted it conducted surveillance on Americans without obtaining a warrant, lawmakers have been wondering about the scope and extent to which the federal government was spying on its own citizens. When one of the judges on the Foreign Intelligence Surveillance Court, James Robertson, quickly resigned in protest, many Americans became acquainted with the top-secret FISA court for the very first time.

It's nearly two years later, and details are still slow in coming. Some things we think we know: The Bush administration admits the National Security Agency bypassed FISA's provisions protecting Americans from wanton Fourth Amendment violations, but as an afterthought. The target was overseas electronic communications -- of any kind, even without reasonable certainty that the target had ties to terrorism. If an American just happened to be on the other end of the line, so be it.

Some civil libertarians, of course, view the NSA program as President Bush giving himself license to listen in on every Tom, Dick and Mary squawking into a cell phone. That's possible, but it's also doubtful. Counterterrorism is the point (and no, saying so does not justify what may very well be unconstitutional domestic surveillance).

And that presents ever more obstacles for administration critics clamoring to know what the government has been up to. The White House has made arguments implying that it is circumventing the law (see all those signing statements), but refuses, even under congressional subpoena, to describe how and in what circumstances it is doing so. Keeping secrets in the name of national security has generally been deemed a legitimate and necessary function of government. The problem is this president and this administration. The executive branch has a tremendous amount of flexibility in deciding what falls under the category of "national security." For those who don't trust Bush or Dick Cheney, that is incredibly frightening.

Continue reading "Known Knowns And Unknown Unknowns Of The New Wiretap Program"

Posted at 8:00 PM
Posted to: Bush Administration, Congress, Constitution, James Comey, President Bush, Robert Mueller, Terrorism
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August 16, 2007

Ashcroft Was 'In No Condition' For Gonzales, Card Visit

Newly released notes from FBI Director Robert Mueller indicate two White House aides ignored the health concerns of then-Attorney General John Ashcroft as they tried to pressure the AG to sign off on President Bush's secret, possibly unconstitutional domestic spying program.

In the notes [PDF], obtained by the House Judiciary Committee and released today, Mueller seems to have been angered by then-White House Chief of Staff Andy Card and former counsel Alberto Gonzales, who insisted on seeing Ashcroft in his hospital room while the AG was recovering from gall bladder surgery and acute pancreatitis. Mueller says he was tipped off to the visit by then-Deputy AG James Comey, who assumed acting AG powers during his boss' illness.

Having reached Mueller while he was dining with his wife and daughter, Comey said that Ashcroft was "in no condition to see them, much less make decision [sic] to authorize continuation of the program." As is consistent with their sworn testimony, Comey requested Mueller's presence at the hospital to "witness" Ashcroft's condition.

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Posted at 6:41 PM
Posted to: Alberto Gonzales, Attorney Scandal, Bush Administration, Congress, Constitution, Dick Cheney, Homeland Security, James Comey, John Ashcroft, President Bush, Robert Mueller
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July 31, 2007

House Dems Push Gonzales Impeachment; Specter Unhappy With WH Response

UPDATED.

Democratic Rep. Jay Inslee today laid out a case for forcibly removing Attorney General Alberto Gonzales from office, after filing a resolution [PDF] that would kick off preliminary impeachment proceedings.

"Americans of all stripes believe that we deserve an attorney general who will not allow the politicization of the judicial system," said the former prosecutor, flanked by other former officers of the law turned legislators. The attorney general should "respect the laws of privacy" and "be forthright with the American people and U.S. Congress," Inslee added.

If the resolution receives a simple majority, the House Judiciary Committee will conduct an investigation into whether Gonzales has committed any impeachable offenses, such as perjury.

The months-long investigation into the politically tinged firings of U.S. attorneys last year, and a related one into a secret surveillance program considered by many in DOJ to be illegal, has cast Gonzales in an unflattering light. He was elevated to the job from White House counsel in February 2005.

Democrats and Republicans alike have pushed for Gonzales to be fired or resign, but both the attorney general and President Bush, a longtime friend and career benefactor, have refused to give in. The White House has also ignored congressional subpoenas in the ongoing investigations.

Calling impeachment a "last resort," Inslee said that Congress' and the public's loss of faith in Gonzales was harmful to the judicial system and therefore to democracy. "Accordingly, I am here today with a number of colleagues to call on the Judiciary Committee in the House of Representatives to conduct a thorough investigation to determine whether articles of impeachment are appropriately lodged against the attorney general," the Washington lawmaker said.

Continue reading "House Dems Push Gonzales Impeachment; Specter Unhappy With WH Response"

Posted at 6:52 PM
Posted to: Alberto Gonzales, Arlen Specter, Attorney Scandal, Bush Administration, Congress, House, James Comey, John Ashcroft, Patrick Leahy, President Bush, Robert Mueller, Senate
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July 27, 2007

Mueller Contradicts Gonzales Over Spy Program

FBI Director Robert Mueller, in testimony yesterday before the House Judiciary Committee, contradicted statements by Attorney General Alberto Gonzales that there was no internal dispute within the administration about the legality of a warrantless eavedropping program.

The dispute revolves around a late-night visit in 2004 that Gonzales, as a White House counsel, and former White House Chief of Staff Andrew Card made to then-Attorney General John Ashcroft's hospital room, supposedly in an attempt to persuade Ashcroft to sign off on the terrorist surveillance program. The ailing Ashcroft refused because of concerns about its legality, according to testimony by former Deputy Attorney General James Comey.

Gonzales told the Senate Judiciary Committee this week that the visit was not related to the wiretapping program and there was no disagreement within the administration about it.

Mueller strongly suggested otherwise when asked about the meeting by Rep. Sheila Jackson Lee, D-Texas.

Continue reading "Mueller Contradicts Gonzales Over Spy Program"

Posted at 10:29 AM
Posted to: Alberto Gonzales, Bush Administration, James Comey, John Ashcroft, Robert Mueller, Senate
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