Tag: eric holder

Eric Holder Files Another Baseless Voting Rights Lawsuit

Eric Holder has been busy playing his racial games. Not only did his Justice Department issue a joint guidance with the Education Department on how best to ignore the Supreme Court’s recent affirmative action ruling, but yesterday the attorney general announced a new lawsuit challenging North Carolina’s new election laws, which include voter-identification requirements. This action follows on the heels of lawsuits already filed against the Tarheel State by such groups as the ACLU and NAACP.

Never mind that the Supreme Court approved the constitutionality of voter-ID as recently as 2008 in the case of Crawford v. Marion County (Indiana) Election Board – in a 6-3 opinion written by the liberal Justice John Paul Stevens – but just last year Holder had to back off a similar suit in South Carolina. The formula for valid voter-ID laws is clear: don’t put obstacles (be they monetary or geographical) in the way of someone’s ability to get an approved form of identification and you’ll sail through the courts.

These regulations simply shouldn’t be a partisan issue. Requirements to show proof of identity before voting have been around for decades in all parts of the country. There’s no constitutional right to early voting – many states, including blue ones like New York, don’t have it at all – and North Carolina kept total hours constant anyway, just reducing the number of days of early voting. 

And forget partisan divides; the DOJ’s argument that voter-ID laws and other attempts at orderly election administration disproportionately hurt minorities – on top of being offensive – don’t even seem to make sense to those they purport to support. For example, a Washington Post poll last year found that 65 percent of blacks and 64 percent of Latinos support voter-ID.

Rand Paul and Jim Webb on Congress’s Abdication of Foreign Policy Power

John Brennan’s confirmation as CIA director displayed Congress’s disinterest in checking the president’s runaway security powers. Two months ago, when I wrote an article with the unwieldy title, “Will Obama’s Brennan Pick Shed Some Much Needed Light on Drones?” I wouldn’t have guessed that the answer would be yes; it will bestir Congress to finally force the administration to say clearly that it does not reserve the right to kill Americans at home with drone strikes, insofar as they are not engaged in combat. That statement came only thanks to whomever leaked the Justice Department’s summary memo on the topic, Brennan and Attorney General Eric Holder’s impolitic reluctance to articulate limits on the president’s power to kill Americans by calling them terrorists, and, of course, Sen. Rand Paul’s (R-Ky.) resulting filibuster. The Senate predictably left Brennan’s other sins against civil liberties mostly unexamined. 

Paul’s hard-won “toehold of constitutionality” isn’t much to cheer about, even if we add to the spoils the administration’s vague agreement to be more open about its legal rationale for placing people on kill lists. This minimal defense of civil liberties and congressional privilege is what got Republican senators like Marco Rubio of Florida and Ted Cruz, Jr. of Texas, who seem to support unfettered executive discretion to kill in the name of counterterrorism outside the United States, to support the filibuster. 

Even that was too much restraint for the neoconservative right. Sen. John McCain (R-Ariz.) read on the Senate floor a Wall Street Journal editorial calling Paul’s effort a stunt meant to “fire up impressionable libertarian kids” and assuring us that those targeted by drones here or abroad will be “enemy combatants.” McCain and the Journal spectacularly miss Paul’s point: the issue is whether the president should make that designation, chucking due process rights, without being checked by another branch of government. 

As McCain amigo Sen. Lindsay Graham (R-S.C.) noted, the Republican caucus’ flirtation with civil libertarianism seems a situational consequence of partisanship. The same goes for Democrats. Were it President McCain doing what Obama is, far more than two Democratic senators (Jeff Merkley of Oregon and Pat Leahy of Vermont) would have voted against Brennan. During his filibuster, Paul asked what happened to the Senator Obama of 2007, who opposed torture and war by executive fiat. Paul suggests that those views were products of Obama’s then circumstance: not being president. Even that may be too generous. As I wrote in a recent book review concerning Obama’s counterterrorism record, “even when he took office, there was ample evidence that his dovish positions would not outlast their political convenience.” 

We can hope, I suppose, that Paul’s stance will increase Congress’s willingness to assert its constitutional war powers. Although he did not, as far as I know, propose specific restrictions on the use of military force outside of the United States, Paul did complain that the 2001 Authorization of Military Force against the perpetrators of the September 11 attacks and those that harbored them has become a permanent warrant for almost limitless executive war powers, a kind of escape hatch from the Constitution opened by presidential utterance of the word “terrorist.”

NSA Spying and the Illusion of Oversight

Last week, the House Judiciary Committee hurtled toward reauthorization of a controversial spying law with a loud-and-clear declaration: not only do we have no idea how many American citizens are caught in the NSA’s warrantless surveillance dragnet, we don’t care—so please don’t tell us! By a 20–11 majority, the panel rejected an amendment that would have required the agency’s inspector general to produce an estimate of the number of Americans whose calls and e-mails were vacuumed up pursuant to broad “authorizations” under the FISA Amendments Act.

The agency’s Inspector General has apparently claimed that producing such an estimate would be “beyond the capacity of his office” and (wait for it) “would itself violate the privacy of U.S. persons.” This is hard to swallow on its face: there might plausibly be difficulties identifying the parties to intercepted e-mail communications, but at least for traditional phone calls, it should be trivial to tally up the number of distinct phone lines with U.S. area codes that have been subject to interception.

If the claim is even partly accurate, however, this should in itself be quite troubling. In theory, the FAA is designed to permit algorithmic surveillance of overseas terror suspects—even when they communicate with Americans. (Traditionally, FISA left surveillance of wholly foreign communications unregulated, but required a warrant when at least one end of a wire communication was in the United States.) But FAA surveillance programs must be designed to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States”—a feature the law’s supporters tout to reassure us they haven’t opened the door to warrantless surveillance of purely domestic communications. The wording leaves a substantial loophole, though. “Persons” as defined under FISA covers groups and other corporate entities, so an interception algorithm could easily “target persons” abroad but still flag purely domestic communications—a concern pointedly raised by the former head of the Justice Department’s National Security Division. The “prevent the intentional acquisition” language is meant to prevent that. Attorney General Eric Holder has made it explicit that the point of the FAA is precisely to allow eavesdropping on broad “Categories” of surveillance targets, defined by general search criteria, without having to identify individual targets. But, of course, if the NSA routinely sweeps up communications in bulk without any way of knowing where the endpoints are located, then it never has to worry about violating the “known at the time of acquisition” clause. Indeed, we already know that “overcollection” of purely domestic communications occurred on a large scale, almost immediately after the law came into effect.

If we care about the spirit as well as the letter of that constraint being respected, it ought to be a little disturbing that the NSA has admitted it doesn’t have any systematic mechanism for identifying communications with U.S. endpoints. Similar considerations apply to the “minimization procedures” which are supposed to limit the retention and dissemination of information about U.S. persons: How meaningfully can these be applied if there’s no systematic effort to detect when a U.S. person is party to a communication? If this is done, even if only for the subset of communications reviewed by human analysts, why can’t that sample be used to generate a ballpark estimate for the broader pool of intercepted messages? How can the Senate report on the FAA extension seriously tout “extensive” oversight of the law’s implementation when it lacks even these elementary figures? If it is truly impossible to generate those figures, isn’t that a tacit admission that meaningful oversight of these incredible powers is also impossible?

Here’s a slightly cynical suggestion: Congress isn’t interested in demanding the data here because it might make it harder to maintain the pretense that the FAA is all about “foreign” surveillance, and therefore needn’t provoke any concern about domestic civil liberties. A cold hard figure confirming that large numbers of Americans are being spied on under the program would make such assurances harder to deliver with a straight face. The “overcollection” of domestic traffic by NSA reported in 2009 may have encompassed “millions” of communications, and still constituted only a small fraction of the total—which suggests that we could be dealing with a truly massive number.

In truth, the “foreign targeting” argument was profoundly misleading. FISA has never regulated surveillance of wholly foreign communications: if all you’re doing is listening in on calls between foreigners in Pakistan and Yemen, you don’t even need the broad authority provided by the FAA. FISA and the FAA only need to come into play when one end of the parties to the communication is a U.S. person—and perhaps for e-mails stored in the U.S. whose ultimate destination is unknown. Just as importantly, when you’re talking about large scale, algorithm-based surveillance, it’s a mistake to put too much weight on “targeting” in the initial broad acquisition stage. If the first stage of your acquisition algorithm says “intercept all calls and e-mails between New York and Pakistan,” that will be kosher for FAA purposes provided the nominal target is the Pakistan side, but will entail spying on just as many Americans as foreigners in practice. If we knew just how many Americans, the FAA might not enjoy such a quick, quiet ride to reauthorization.

Congress vs. Obama/Holder on Fast & Furious

The House Government Oversight Committe has voted, on party lines, to hold Attorney General Eric Holder in contempt for failing to turn over documents related to the bizarre “Fast and Furious” gun sting operation (which program/issues Dave Kopel helpfully summarizes).  The committee, headed by Rep. Darrell Issa (R-CA), took this action despite President Obama’s assertion of executive privilege over the documents.

Now, I haven’t been following the Fast and Furious scandal that closely – seems like a dumb idea to give guns to criminal gangs, but what do I know about law enforcement? – but this latest development, raising the Holder-Issa impasse to a constitutional battle between the executive and legislative branches, is worth noting.  I can’t add much to the excellent and concise analysis provided by the Heritage Foundation’s Todd Gaziano (a member of the U.S. Commission on Civil Rights who formerly served in the DOJ’s Office of Legal Counsel and also as chief counsel to the House Oversight Committee), but I will highlight three points:

  1. Executive privilege is a qualified, not absolute, doctrine that is meant for certain circumscribed purposes – such as to allow the president to receive candid advice from his advisers – not a blanket protection of anything in the executive branch the president wants not to be disclosed.  (And it certainly can’t be invoked to shield wrongdoing.)   Because it is qualified, the president must identify the documents not disclosed and provide a description of the privilege asserted, what attorneys call a “privilege log.”  This has not been done here.
  2. For executive privilege to apply here, the documents at issue have to be related to something the president is involved in, most likely in this context communications to/from the president regarding the Fast & Furious policy.  If Obama knew nothing about F & F, I have trouble seeing the basis for the privilege. 
  3. If the president did know something, let alone have a hand in the decision making, Congress is entitled to learn at least something about it.  Even when there’s a sound basis for invoking executive privilege, the American people’s need for information often outweighs whatever presidential interest is at issue.  As Todd puts it, “the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executive–congressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency.”  (The mention of Watergate is doubly fitting because this past Sunday marked 40 years since the break-in that ultimately brought down the Nixon presidency.)

I doubt that President Obama’s assertion of privilege in this episode has yet risen to Nixonian standards of contempt for the rule of law, but it is a dangerous bit of political gamesmanship designed to delay and push back on the Oversight Committee/Congress’s demand for documents.  As the committee showed in its vote today, however, both sides are ready to play this high-stakes game of chicken. 

Holder’s contempt citation now goes to the floor of the House, where I’m sure many Republican members are salivating at the chance to score political points against an unpopular president and attorney general.   (Recall that the House found former White House counsel Harriett Miers and Chief of Staff Josh Bolten in contempt of Congress for failing to answer questions regarding the firing of U.S. attorneys during the Bush administration.)  We may also see a lawsuit regarding the executive privilege claim, and even, if no agreement on document-production is reached, articles of impeachment drawn up against the attorney general.

Suffice it to say, what began as a head-scratchingly bad policy that cost many lives (including border patrol agent Brian Terry) has now become a large stonewalling and possibly coverup operation.  As with Watergate, Iran-Contra, the Clinton-Lewinsky affair, and so many other presidential scandals, the obstructive aftermath seems to be eclipsing the initial wrongdoing in legal and political importance.

Obama and Military Tribunals

Yesterday, Obama’s attorney general, Eric Holder, held a press conference and announced that Khalid Shaik Mohammed (KSM) would be prosecuted for war crimes before a military tribunal.   It’s probably fair to say, as some newspapers have noted, that the idea of bringing KSM to New York City to be tried in civilian court for the 9/11 atrocity was Holder’s “signature” decision since becoming attorney general–and that that idea is now dead.    However, Obama and Holder conceded a place for tribunals more than a year ago and they could never really offer a good explanation as to why some persons would go to civilian court and why others would go before tribunals.  Like Bush, Cheney, and Rumsfeld, Obama and his people would just sorta decide case-by-case.

Conservatives are chortling over Obama’s apparent embrace of Bush policies, such as keeping Guantanamo open and reviving trials before tribunals.  Like the escalation of the war in Afghanistan, however, Obama has not stumbled on to the correct path.  He has instead shown exceptionally poor judgment yet again.  Two questions are now looming on the horizon.  First, prosecutors are anxious to have a lengthy 9/11 trial, but what if KSM calls the tribunal a farce and decides to skip the trial,  plead guilty, and then demands to be executed so he can become a martyr?  The tribunal might grant the wish, but the legitimacy of the military system may be called into question again–especially in the Muslim world.  Second, the Pentagon has made it pretty clear that anyone acquitted by a tribunal will remain a prisoner at Guantanamo (pdf).  There may be a legal rationale for that, but, again, how is that going to be perceived by the world?   As a start, one might consider how we would react if an American were acquitted by a court abroad, but was nonetheless returned to his prison cell to be detained indefinitely. 

There is no need to go there.  Obama should close Gitmo and transfer the prisoners to Bagram and hold them there, but with full transparency.  The Bush policies of secret prisons, secret interrogation methods, and secret trials before special military courts were wrongheaded and remain so.

For additional background, go here.

Good News and Bad on PATRIOT Reform

Late last week, Attorney General Eric Holder sent a letter to Senate Judiciary Committee Chair Patrick Leahy (D-VT) in which he agreed to implement an array of policies designed to check abuse of USA PATRIOT Act powers. These include more thorough record keeping and more disclosures to Congress, prompt notification of telecommunications companies when gag orders have expired, and updated retention and dissemination procedures to govern the vast quantities of information obtained using National Security Letters.

In itself, this is all to the good. But civil libertarians should pause before popping the champagne corks. Last year, the fight over the reauthorization of several expiring PATRIOT provisions opened the door to the comprehensive reform that sweeping legislation sorely needs to better balance the legitimate needs of intelligence and law enforcement against the privacy and freedom of Americans. Despite serious abuses of PATRIOT powers uncovered by the Justice Department’s Office of the Inspector General, no such major changes were made. Instead, Congress opted for a shorter-term renewal that will require another reauthorization this February—in theory allowing for the question of broader reform to be revisited in the coming months.

Many of the milder reforms proposed during the last reauthorization debate now appear to have been voluntarily adopted by Holder. Unfortunately, this may make it politically easier for legislators to push ahead with a straight reauthorization that avoids locking in those reforms via binding statutory language—and entirely bypasses the vital discussion we should be having about a more comprehensive overhaul. If that happens, it will serve to confirm the thesis of Chris Mooney’s 2004 piece in Legal Affairs, which persuasively argued that “sunset” provisions, far from serving as an effective check on expansion of government power, often make radical “temporary” measures more politically palatable, only to create a kind of policy inertia that makes it highly unlikely those measures will ever be allowed to expire.

With the loss of Sen. Russ Feingold (D-WI), who whatever his other faults has been the Senate’s most vocal opponent of our metastasizing surveillance state, the prospects for placing more than cosmetic limits on the sweeping powers granted since 2001 appear to have dimmed. If there’s any cause for optimism, it’s that the recent fuss over intrusive TSA screening procedures appear to have reminded some conservatives that they used to believe in limits on government power even when that power was deployed in the name of fighting terrorism.

A Response to Intel Abuses at Last?

As I explain in yesterday’s BloggingHeads dialogue with Eli Lake, I’m chary of relying too much on legislative “sunset” provisions to check abuse of power, especially in the shadowy world of intelligence. (For the fleshed-out version of the argument, see Chris Mooney’s 2004 piece in Legal Affairs.) After all, in January, the Office of the Inspector General had released an absolutely damning report showing that for years, FBI agents systematically manipulated their incredibly broad National Security Letter authorities to get information about Americans telephone usage without following any legitimate legal process at all. To cover those abuses, officials compounded their crimes by lying to federal courts and refusing to use an auditable computer system for their information requests.  The report was released amid debate over what reforms should be included in the reauthorization of several controversial Patriot Act provisions, with proposed changes to the NSL statutes front and center—not least because several courts had found constitutional problems with the gag orders accompanying NSLs. Yet just a month later, Congress consented to an extension of those Patriot provisions without implementing any of the various rather mild changes that had won approval in the House or Senate Judiciary Committees. If a sunset-inspired review didn’t yield any real consequences then, I thought, what would it take?

Today, however, I see a there are glimmers of interest in something more closely resembling serious oversight. In a letter to Attorney General Eric Holder, sent last month but released yesterday, Senate Judiciary Committee Chair Patrick Leahy (D-VT) urges DOJ to implement many of the reforms in the SJC’s bill voluntarily—above all procedures to guarantee a detailed record of the grounds on which various types of information sought, and to govern the retention, use, and distribution of information obtained. Leahy also signals his intent to ask department watchdogs to conduct audits of the use of Patriot authorities, as the Senate’s bill had stipulated. These are all, needless to say, good ideas—provided we don’t accept voluntary and mutable internal guidelines as a substitute for statutory limits with teeth.

Meanwhile, Rep. Jerry Nadler (D-NY) is holding Wednesday morning hearings on the abuses detailed in the Inspector General’s report. FBI General Counsel Valerie Caproni and IG Glenn Fine are slated to testify. (There are links to their prepared testimony already, though the documents themselves aren’t there yet as I write.) Extrapolating from past performances, I predict Caproni will allow that the abuses described were Very Serious Indeed (though, really, perhaps not quite as serious as all that…) but all cleaned up now. Nobody should be satisfied with this, and if Fine doesn’t broach the subject himself, somebody really ought to ask Caproni about some minimization procedures for the 25,000–50,000 National Security Letters the department issues annually. As Fine noted in recent testimony, the Bureau has been promising this for years now:

In August 2007, the NSL Working Group sent the Attorney General its report and proposed minimization procedures. However, we had several concerns with the findings and recommendations of the Working Group’s report, which we discussed in our March 2008 NSL report. In particular, we disagreed with the Working Group about the sufficiency of existing privacy safeguards and measures for minimizing the retention of NSL-derived information. We disagreed because the controls the Working Group cited as providing safeguards predated our NSL reviews, yet we found serious abuses of the NSL authorities.

As a result, the Acting Privacy Officer decided to reconsider the recommendations and withdrew them. The Working Group has subsequently developed new recommendations for NSL minimization procedures, which are still being considered within the Department and have not yet been issued. We believe that the Department should promptly consider the Working Group’s proposal and issue final minimization procedures for NSLs that address the collection of information through NSLs, how the FBI can upload NSL information in FBI databases, the dissemination of NSL information, the appropriate tagging and tracking of NSL derived information in FBI databases and files, and the time period for retention of NSL obtained information. At this point, more than 2 years have elapsed since after our first report was issued, and final guidance is needed and overdue.

Way, way overdue—much like some kind of serious congressional response to the Bureau’s NSL Calvinball.

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