Home > The Secrecy File > Archives > 2007 > October
October 2007
House Judiciary goes ballistic on Tanner
House Judiciary Committee Democrats criticized the head of the Justice Department’s voting rights section today for saying that “our society is such that minorities don’t become elderly the way white people do-they die first.”
John Tanner, the head of the section that was created after the Voting Rights Act of 1965, tried to apologize for the remarks.
“My explanation of the data came across in a hurtful way, which I deeply regret,” Tanner said.
But Rep. Artur Davis, D-Ala., said that was no excuse. He accused him of using faulty statistics to support a faulty stereotype.
Rep. John Lewis, D-Ga., the civil rights leader who helped press for the Voting Rights Act of 1965, said he was “appalled” by what Tanner has done to voting rights section at the Justice Department.
Since 2001, the Justice Department has brought two cases alleging voter discrimination against African Americans. Neither case was in the South, according to Julie Fernandes, senior policy analyst at the Leadership Conference for Civil Rights.
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The heat is on the White House
The National Security Archive wants a federal judge to speed up discovery in its lawsuit against the White House seeking what happened to some 5 million missing e-mails.
The archive, a public research library based at George Washington University, filed a lawsuit against the executive office of President Bush on Sept. 5 seeking to recover the lost e-mails documenting convesations of top White House officials.
The White House has declined to comment about case, citing pending litigation.
The e-mails are important because they provide a historical record of the inner workings President Bush’s top aides. Federal law requires White House records be preserved for historians.
“The pressing need for the information arises out of troubling representations by the EOP (executive office of the president) and its components about its document preservation obligations and the location of its backup tapes,” said Meredith Fuchs, general counsel at the archive. “We need information so we can take steps to preserve all possible sources of e-mails deleted from the White House servers.”
A similar motion was filed Friday in an identical lawsuit filed by the watchdog group Citizens for Responsibility and Ethics in Washington.
The White House has failed to provide assurances that backups and copies of the missing e-mail would be preserved throughout the litigation, according to both the archive and CREW.
CREW has responded by filing a motion for a temporary restraining order against the White House defendants in its case.
A magistrate judge has advised the federal judge hearing the case to grant a temporary restraining order.
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ACLU fights immunity deal with net
The American Civil Liberties Union is teaming up with other public interest groups to defeat legislation that would give telecoms protection from lawsuits for participating in President Bush’s secret eavesdropping program to detect terrorists.
The ACLU, Electronic Frontier Foundation, Act for Change, Working Assets and MoveOn created a new website to demand that lawmakers oppose legislation that would expand surveillance powers in America and overseas without a court warrant.
The ACLU wants the proposed electronic surveillance legislation to require individual warrants before the government is allowed to access information about calls made in America.
“The tide is turning on telecom immunity,” said Caroline Fredrickson, director of the ACLU’s Washington legislative office. “The American people did not send members of Congress to Washington to allow companies to get away with breaking the law.”
Fredrickson singled out senators who have pledged to block any legislation that give telecoms immunity from lawsuits.
Those who have pledged to stand against immunity are: Sens. Joseph Biden, D-Del., Christopher Dodd, D-Ct., Russell Feingold, D-Wis., Edward Kennedy D-Mass., and Barack Obama, D-Ill.
Congress expressed outrage when the New York Times revealed in December 2005 that the National Security Agency had been secretly eavesdropping on phone calls and emails of people living in America with ties to terorists since the Sept. 11, 2001 terrorist attacks.
“Now it is poised to essentially make warrantless wiretapping legal,” Fredrickson said.
“We need to turn the Senate and the House around so that they will uphold civil liberties and not just rubber stamp this administration’s blatant and continued attempts to undermine individual freedoms,” she said.
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Transparent Presidents
Open government groups want the presidential contenders to sign an oath that they will reverse the tide of government secrecy.
The Reason Foundation is spearheading an effort involving more that three dozen public interest groups to get presidential candidates to sign the Oath of Presidential Transparency.
The oath commits the candidates to running the “most transparent administration in American history.” It also asks them to pledge that they will implement the Federal Funding Accountability and Transparency Act of 2006, a searchable database of federal spending.
To date, three candidates have signed the pledge: Sen. Sam Brownback R-Kan., Sen. Barack Obama, D-Ill., and Rep. Ron Paul R-Texas. Brownback just dropped out of the race.
Transparency appears to be on the minds of voters too.
In the 10Questions Presidential Forum, sponsored by MSNBC and bloggers in cooperation with the New York Times, transparency has become a top issue.
An alliance of 36 diverse groups is advocating the presidential accountability oath. The following groups are part of the coalition: American Association of Physicians and Surgeons, American Association of Small Property Owners, Americans for Tax Reform, Budget Watch Nevada, Capital Research Center, Center for Financial Privacy and Human Rights, Center for Individual Freedom, Citizen Outreach Project, Citizens Against Government Waste, Doctors for Open Government, Electronic Frontier Foundation, Evergreen Freedom Foundation, FreedomWorks, Grassroot Institute of Hawaii, Iowa Public Policy Institute, Liberty Coalition, Mackinac Center for Public Policy, Minnesota Free Market Institute, Mississippi Center for Public Policy, National Taxpayers Union, Nevada Policy Research Institute, Reason Foundation, Republican Liberty Caucus, Research Accountability Project, Rio Grande Foundation, Taxpayers League of Minnesota, Texans for Fiscal Responsibility, The Harbor League, The Performance Institute, The Project on Government Oversight, The Pullins Report, The Rutherford Institute, US Bill of Rights Foundation, Velvet Revolution, Virginia Institute for Public Policy, and Washington Policy Center.
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Senate Judiciary Committee to hear concerns about surveillance bill
The Senate Judiciary Committee plans to hold a hearing next Wednesday to air concerns about proposed legislation that essentially authorizes President Bush’s secret terrorist surveillance program—a program that allows intelligence agencies to eavesdrop in America and overseas without warrants.
But even before the first witness has testified, a number of Democratic senators —including three presidential hopefuls—are making it clear they will not endorse giving the administration more surveillance power if it includes liability protection for telecommunications companies that secretly participated in the president’s program before it became public.
The American Civil Liberties Union is keeping a list of lawmakers who have pledged to support Sen. Chris Dodd, D-Conn., in his effort to filibuster the bill or indefinitely delay it with a parliamentary maneuver called a “hold.”
Here’s the list:
Sen. Joe Biden, D-Delaware
Sen. Ben Cardin, D-Maryland
Sen. Russ Feingold, D-Wisconsin
Sen. Ted Kennedy, D-Massachusetts
Sen. Barack Obama, D-Illinois
Telecommunications companies like AT&T and Verizon have put on a full court lobbying effort to win immunity from lawsuits. The companies participated in the secret National Security Agency program under a directive from former attorney generals who deemed the program legal. They want to avoid paying heavy damages in more than three dozen class action lawsuits filed against them for participating in the program and they don’t want to be forced to stop helping intelligence agencies track down terrorists.
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Senate Judiciary Chair urges passage of media shield now
With the House recently clearing a media shield by a veto-proof majority of 398 to 21, all eyes are turning to the Senate for action.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., wants to waste no time. He wants the full Senate to take up a measure that passed out of his committee on Oct. 4 or pass the House version now.
Like the House bill, the Senate measure would provide qualified protection for reporters’ confidential sources in most cases.
“I strongly support the enactment of a federal shield law for journalists, and I urge the Senate to promptly consider federal shield legislation,” Leahy said.
At Leahy’s request, the House bill has been placed directly on the Senate calendar to expedite its consideration by the full Senate, alongside the bill approved by the Senate Judiciary Committee.
“All of us have an interest in enacting a balanced and meaningful first amendment privilege,” Leahy said. “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. This is a dangerous trend that can have a chilling effect on the press and the public’s right to know.”
Dozens of media organizations across the country support the Senate’s legislation, including the Associated Press, the American Society of Newspaper Editors, The New York Times Company, and The Washington Post.
The media shield legislation would:
*Establish a federal qualified reporters’ privilege to protect and encourage the free flow of information between journalists and sources;
*Reconcile a reporter’s need to maintain confidentiality-in order to ensure that sources will speak openly and freely-with the public’s right to effective law enforcement and fair trials.
*Balance the public interest in combating crime and protecting national security and the public interest in ensuring a free and vibrant press by providing that a federal court can only force a journalist to reveal confidential source information when the information is truly essential or crucial to a case or investigation;
*Provide exceptions to the privilege for those situations where information sharing is critical.
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House Judiciary investigates Charles Walker case
The House Judiciary Committee is now investigating whether the Justice Department selectively prosecuted former Georgia State Sen. Charles Walker.
Walker was sentenced to 10 years in prison after being found guilty of stealing from a charity he set up, bilking his newspaper’s advertisers, forcing Atlanta’s Grady Memorial Hospital into using his personnel services business and misrepresenting ownership in companies doing business with the Medical College of Georgia in Augusta.
Rep. Hank Johnson, D-Ga., a member of the panel, said the Walker case “bears investigation” because of the long litany of charges he faced.
“I wondered about his innocence before I even became a congressman,” Johnson said, during a break in a hearing today about selective proseuctions across the country.
The hearing is part of a wide-ranging probe into whether the Justice Department has become a political arm of the Bush administration during the tenure of former Attorney General Alberto Gonzales.
The allegations of selective prosection on Alabama, Wisconsin, Georgia and Mississippie surfaced during the inquiry into whether nine U.S. attorneys were dismissed for failing to hasten investigations into Democrats and cracking down on Republicans before the last year’s congressioinal elections.
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Leahy and Specter demand access to secret surveillance documents
Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., and Sen. Arlen Specter, R-Pa., demanded today that the White House turn over documents related to President Bush’s controversial eavesdropping program.
The information is more important than ever, Leahy and Specter wrote in a letter to White House Counsel Fred Fielding (see below). The Judiciary panel is expected to debate as early as next week a bill that would give the Bush administration more latitude to conduct surveillance in America and overseas.
The bill, approved by the Senate Intelligence Committee last week, would also give the nation’s major telephone companies immunity from lawsuits for participating in the covert program without approval from special court that monitors domestic surveillance.
Leahy and Specter object to granting the telecom industry immunity without knowing more about the program.
“It is wrongheaded to ask senators to consider immunity without their being informed about the legal justifications purportedly excusing the conduct being immunized,” Leahy and Specter wrote.
The senators noted that the White House has repeatedly failed to turn over any details about the president’s terrorist surveillance program.
After months of foot dragging, the Judiciary Committee issued subpoenas on June 27 seeking the administration’s legal basis for the program that began shortly after the Sept. 11, 2001, terrorist attacks and lasted for at least five years.
To date, the White House has missed every deadline extension to provide information about the program.
The letter follows:
October 22, 2007
Mr. Fred Fielding
Counsel to the President
Office of the Counsel to the President
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Fielding: Since the existence of the President’s secret wiretapping program became public in December 2005, the Judiciary Committee has been seeking information on the legal justifications for conducting such surveillance outside the Foreign Intelligence Surveillance Act. We have done so through oral and written requests and by conducting oversight hearings. Former Attorney General Gonzales was asked about these matters. The lack of satisfaction with his responses led to further investigations, including the ongoing probe by the Justice Department’s Inspector General. In light of the Administration’s failure to respond fully, the Committee was prepared in November 2006 to consider subpoenas to telecommunication companies. Those subpoenas were not issued at that time, however.
After our repeated requests did not yield the information the Committee requested, the Committee proceeded in June to authorize subpoenas for documents related to the legal justification for the Administration’s warrantless wiretapping program and to serve those subpoenas upon the Administration.
You have now had more than ample time to collect and process the relevant documents. Responsive information to those subpoenas is long overdue. You have made commitments to provide responsive information over the last several months and even recently, but no such information has yet been provided.
Instead, we read that a White House spokesperson has now conditioned the production of information on prior Senate agreement to provide retroactive immunity from liability for communications carriers. That is unacceptable and would turn the legislative process upside down. If the Administration wants our support for immunity, it should comply with the subpoenas, provide the information, and justify its request. As we have both said, it is wrongheaded to ask Senators to consider immunity without their being informed about the legal justifications purportedly excusing the conduct being immunized. Although the two of us have been briefed on certain aspects of the President’s program, this cannot substitute for access to the documents and legal analysis needed to inform the legislative decisions of the Committee as a whole.
By letter dated October 5, 2007, your office committed to assembling the documents responsive to our subpoenas by today’s date. We expect the commitments of your office to take priority over any White House comments to the media. Accordingly, we urge your compliance with the Committee subpoenas and other information requests without further delay. We can discuss precise arrangements for the production of and access to the documents, but they should be provided in a manner that permits them to be reviewed and considered by all Members of the Committee and appropriate Committee staff.
Sincerely,
PATRICK LEAHY ARLEN SPECTER
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Judge recommends TRO for White House
U.S. Magistrate Judge John M. Facciola recommended today that the White House receive a temporary restraining order to stop officials in the office of administration from destroying back-up copies of millions of missing e-mails that historians say are vital to preserving a public record of White House activities.
“Without such an order, destruction of the backup media would be without consequence,” Facciola wrote in a six-page recommendation to U.S. District Court Judge Henry Kennedy in Washington.
The Washington-based watchdog group Citizens for Responsibility and Ethics in Washington sought the restraining order earlier this month to protect back-up copies of an estimated 5 million emails that had been inexplicably deleted from White House servers between March 2003 and October 2005.
The court declined to accept an offer from the White House to provide a declaration that they would not destroy the documents. The White House has not returned a call seeking comment.
“While the government insists that a declaration would eliminate any concern that backup media will be recycled and destroyed while this matter is pending, a declaration does not have the force of an order,” Facciola wrote. “Unlike a court order, a declaration is not punishable by contempt.”
The White House now has 10 days to file an objection to this recommendation. Kennedy is expected to issue the restraining order since he asked for the recommendation from Facciola.
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EFF demands telecom lobbying records from director of national intelligence
The Electronic Frontier Foundation demands that the nation’s spy chief turn over records revealing the telecom industry’s massive lobbying effort to win legal protection from lawsuits for participating in President Bush’s secret eavesdropping program.
The lawsuit demands any information about telecommunications companies’ efforts to “get off the hook for their role in the government’s illegal electronic surveillance of millions of ordinary Americans,” the San Francisco privacy rights foundation said in a statement.
If the telecom industry wins liability protection from Congress, it would immediately wipe away the roughly three dozen lawsuits filed against telephone companies for participating in the president’s terrorist surveillance program without warrants obtained from the Foreign Intelligence Surveillance Court, as required by law.
“Congress is debating amnesty for the telecoms right now—amnesty that could imperil judicial review of a very controversial government program, as well as threaten class-action lawsuits that impact millions of Americans,” said Marcia Hofmann, staff attorney for the foundation.
“We deserve to know what kind of lobbying has gone on behind the scenes before lawmakers make this critical decision,” Hofmann said.
The foundation represents AT&T customers in a class action lawsuit alleging that the telecom giant violated their rights by illegally assisting the National Security Agency with its surveillance without a court warrant.
The Senate’s proposal to revamp the nation’s electronic surveillance rules includes liability protection for telephone companies that can demonstrate that they followed a legal directive from the attorney general in aiding the National Security Agency with the surveillance program.
A House measure that did not include that provision was pulled from the floor on Wednesday after it became apparent that it did not have the votes for passage.
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Rep. Lamar Smith opposes RESTORE ACT
Rep. Lamar Smith, R-Texas, opposes a Democratic effort to overhaul the nation’s electronic surveillance laws today with a floor vote.
“Why do Democrats want to make it more difficult to gather intelligence about terrorists after 9-11 than before?” Asked Smith, ranking member of the House Judiciary Committee.
Judiciary Chairman John Conyers, D-Mich., and fellow Texas Rep. Silvestre Reyes, recently introduced the measure and it cleared the House Intelligence Committee last week. The measure would require court oversight of surveillance programs that target terrorists and spies.
“Since FISA was enacted 30 years ago our terrorist-fighting agencies have been able to gather information about terrorists plans without obtaining a court order,” Smith said. “Why burden our intelligence agencies now? Why make it harder to find Osama Bin Laden? Why protect terrorists? “
Smith said the legislation would require intelligence agencies to obtain a court order to monitor a foreign person outside the United States.
“If Osama Bin Laden makes a call, and we don’t know who it’s to, a court order must be obtained. That takes time and could mean we miss an opportunity to stop an attack,” Smith said.
Smith also opposes the House measure because it does not give telephone companies protection from lawsuits for participating in President Bush’s secret eavesdropping program before it became public in December 2005.
“These companies deserve our thanks, not a flurry of frivolous lawsuits,” Smith said. “We don’t need the RESTORE Act. We do need to restore the ability of the federal government to gather information about terrorists and stop them.”
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House expected to vote on electronic surveillance
As the House gears up to vote on Democratic legislation that would overhaul electronic surveillance rules, the American Civil Liberties Union says it firmly opposes the measure because it would give the government license to spy on Americans without seeking a warrant.
The bill, called the RESTORE ACT, is “unconstitutional” because it does not require intelligence agencies to obtain individual warrants from a court, the civil liberties group asserts.
“The RESTORE Act does not live up to its name-it does not restore the Constitution,” said Caroline Fredrickson, director of the ACLU’s Washington office.
“When Americans are sitting in their living rooms making a phone call or sending an e-mail, they should be able to rest assured that the government is not monitoring their phone call or collecting that e-mail without just cause or an individual warrant,” Fredrickson said.
The bill, introduced last week by Reps. John Conyers, D-Mich., and Silvestre Reyes, D-Texas, includes broad year-long basket warrants that require only minimum court oversight to collect the maximum amount of information, Fredrickson said.
“Basket warrants, by definition, are not warrants at all,” Fredrickson said. “They do not give Americans protections that the Founding Fathers had in mind when they wrote the Fourth Amendment. The colonists rose up against King George for the same type of government overreaching.”
The legislation cleared the House Intelligence Committee last week and is expected to be voted on as early as today by the full House.
“We’ve put the FISA (Foreign Intelligence Surveillance Act) Court back in business after President Bush and Vice President Cheney secretly put it out of business six years ago,” said Reyes, chairman of the intelligence panel. “This bill gives strong tools to our intelligence professionals while upholding Constitutional protections for all Americans.”
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EFF tells Congress about hidden cost of “dragnet spying”
The National Security Agency’s domestic surveillance program is “illegal” and opens the door to privacy violations for ordinary Americans, the Electronic Frontier Foundation told Congress today.
The volume of personal information collected in government databases creates a “giant target for attackers who want to steal or expose Americans’ personal data,” said Cindy Cohn, legal director of the San Francisco-based digital rights group in written responses to questions posed by members of the House Energy and Commerce Committee.
This puts sensitive personal information from millions of people at risk, Cohn said.
“The warrantless domestic surveillance going on now isn’t just illegal-it could expose your personal information to thieves and criminals,” Cohn said.
A report from the Department of Homeland Security found 477 breaches in 2006 alone, Cohn said.
Lawmakers asked the foundation for input as part of its review of legislation passed in August that temporarily gave spy agencies more power to eavesdrop without a warrant.
The House is set to vote on a Democratic replacement bill next week as the Senate Intelligence Committee takes up its version.
The foundation provided the committee with information about its class action lawsuit against AT&T alleging that the telecommunications company violated its customers rights by illegally assisting the NSA’s domestic surveillance.
“We’re pleased that the committee is interested in obtaining answers from the leading telecommunications carriers about whether they have been following the privacy laws protecting their customers’ communications,” Cohn said. “Congressional oversight of the telecommunications companies’ activities is long overdue.”
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Qwest targeted for saying “no” to spy program?
The Bush administration retaliated against Qwest because the telecom company declined to participate in a secret eavesdropping program, according to documents published in a story in today’s Rocky Mountain News.
Documents released in Qwest CEO Joseph Nacchio’s insider trading trial reveal that National Security Agency officials met with Nacchio to discuss a classified spy program on February 27, 2001 at NSA headquarters at Forte Meade, Md.
Nacchio refused to participate in the secret $100-million program called GROUNDBREAKER, according to the documents. Nacchio claims that the contact was withdrawn when he refused to participate in the program because he believed it was illegal, according to the paper.
Nacchio wanted to use the documents to show he had been retaliated against by the government, but U.S. District Judge Edward Nottingham said it was not relevant to the insider trading charges.
The American Civil Liberties Union is now reviewing the documents to see if they might bolster its agrument that the telecom industry should not receive legal protection from lawsuits in congressional efforts to overhaul the nation’s electronic surveillance law.
The ACLU says the documents show:
- The telecoms did not help the government with the NSA’s domestic eavesdropping program for patriotic reasons after the horrific attacks on Sept. 11, 2001, because they were clearly discussing illegal spy programs six months before the attacks.
*Other lucrative non-classified contracts appear to be used as rewards for those who participated in questionable conduct.
*The government may have used the criminal justice system to punish one CEO who refused to participate in a program that some say operated outside the law.
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CREW files TRO to stop White House from destroying documents
Citizens for Responsibility and Ethics in Washington sought a temporary restraining order in federal court today to stop the White House from destroying back-up copies of millions of missing emails.
The White House’s office of administration has refused to disclose information about the estimated 5 milllion missing emails that were deleted from the White House computer system from March 2003 until this year. The emails are important because they document the inner workings of top White House aides.
CREW and the National Security Archive, a public research library at George Washington University, filed independent lawsuits seeking information about the emails, saying their destruction would violate the Presidential Records Act and the Federal Records Act.
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.
Weismann sent a letter to Alan Swendiman, director of the office of administration, seeking “immediate written assurances that the OA has taken, and will continue to take, all steps necessary to preserve the back-up tapes, which at this point are all that is left of the large volume of historically important documents deleted from the servers.”
The only response that Weismann received, after much haggling, was that the office would protect all emails from Sept. 25, 2007 forward. That is the date that the ethics watchdog filed their lawsuit. There was no mention, despite a follow-up request, about the missing emails prior to that date, raising red flags at the ethics watchdog group.
“It’s imperative that they be under a legal obligation to preserve them,” Weismann said. “I don’t think anyone has any confidence that these historical records are in good hands. Millions of emails are missing and they have refused to restore them.”
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Bunning places hold on presidential records act
Kentucky Republican Sen. Jim Bunning makes no bones about it.
He is indeed the senator who is blocking legislation that would rescind President Bush’s executive order giving presidents and former presidents broad authority to delay the release of their White House records.
The problem is no one knows why.
It’s pretty hard to “fix” a bill without knowing what’s wrong with it, says Tara J. Olivero, assistant director of government relations at the American Library Association, the nation’s oldest and largest association of libraries.
The association is one of some 60 open government groups concerned about the executive order because it severely undercuts academic research of presidents. The bill that is being held up is “a good government bill, has bi-partisan support, and promotes open government that is vital to a healthy and progressive democracy,” Olivero said.
The bill in question cleared the House by wide margins last March (333-93). The measure, authored by Rep. Henry A. Waxman, D-Calif., chairman of the House Government Oversight Committee, would establish a firm 40-day deadline for reviewing records for release after a president has left office for a period of 12 years.
Under Bush’s executive order, the archivist at the National Archives must wait for both the current and former president to approve the release—a review that historians say can continue indefinitely.
“The records of the highest elected public office in the country, the president of the United States, belong to the people and are official evidence of government activities and should be made available to the public in a most expedient manner,” Olivero said.
“Presidential records, preserved and made accessible by the National Archives, document the decisions and operation of the executive branch, contribute to cultural and historical understanding, and strengthen our government by the people,” Olivero said. President Clinton recently questioned Bush’s executive order, telling reporters that the “current administration has slowed down the opening of my own records.”
And it looks like the judicial branch supports Clinton’s view.
U.S. District Judge Colleen Kollar-Kotelly rejected part of President Bush’s 2001 executive order last week in a civil lawsuit filed by the American Historical Association.
The group argued that Bush’s executive order was an “impermissible exercise of the executive power.”
At the time, the White House said it was reviewing its options.
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House to vote next week on reporter shield law
Looks like efforts to create the first media shield law are gaining traction.
The House is expected to take up its version of a bill that would provide limited protection for reporters’ confidential sources and notes. The Senate Judiciary Committee approved its own version by a 15 to 2 margin last week.
The Bush administration has not lifted its opposition, but open government advocates see the first chance of passage in 37 years.
They are planning to mount a vigorous offense.
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Lamar Smith disappointed by FISA Fix
A key Republican is sharply critical of a new Democratic bill that would overhaul the Foreign Intelligence Surveillance Act.
Rep. Lamar Smith, R-Texas, the ranking member of the House Judiciary Committee, said he is disappointed with the bill from Reps. John Conyers, D-Mich., and Silvestre Reyes, D-Texas.
“I’m disappointed with the Democrats’ decision to ignore the requests of the director of National Intelligence with regard to FISA modernization,” Smith said. “Rather than responding to the urgent needs of our intelligence community, Democrats are giving unprecedented constitutional protections to terrorists, spies and other enemies overseas.”
The bill “ignores well-established practices governing the collection of foreign intelligence information and will enhance our enemies’ ability to carry out deadly plots,” Smith said.
The measure is another example of how Democrats are unwilling to enact “smart, bipartisan legislation that strengthens national security,” Smith said.
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FISA fix from House Democrats
Leading House Democrats believe they have crafted a way to give intelligence agencies more surveillance powers without stepping all over civil liberties.
House Judiciary Committee Chairman John Conyers, D-Mich., and House Intelligence Committee Chairman Silvestre Reyes, D-Texas., introduced a new bill today that would restore oversight of domestic wiretapping by the Foreign Intelligence Surveillance Court.
The bill seeks to appease the Bush administration by granting the attorney general or the director of national intelligence the authority to apply to the secret court to conduct surveillance of foreign targets or groups of targets for up to one year.
“This bill provides what the director of national intelligence and assistant attorney general for National Security told us they needed—a means to acquire information from telecommunications companies about physical threats to the nation in which the target is overseas,” Conyers said. “They testified that they do not want warrantless access to spy on American businesses, hospitals and libraries, so we are taking them at their word and making it crystal clear that a FISA court order is required to access Americans’ communications.”
But wait just a second, says Caroline Fredrickson, director of the American Civil Liberties Union’ s Washington Office.
As drafted, the Conyers-Reyes bill would still allow for the federal government to collect phone calls and e-mails from Americans without an “individual warrant,” Fredrickson said.
And that, Fredrickson said, goes smack against the Fourth Amendment, which requires individual warrants if Americans are involved.
So called “program warrants’ are equivalent to the “21st century version of King George’s heavy-handed intrusions on individual privacy,” Fredrickson said.
“We would not tolerate allowing government agents to sit in our living rooms recording our personal conversations,” Fredrickson said. “We should not permit it simply because the government now has the capacity to monitor remotely and without our knowledge.”
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Reporter shield law: making sense of supreme court rule
The palpable tension between a journalist’s desire to protect confidential sources and the Justice Department’s authority to demand their identity is examined in a story by the New York Times today.
Reporter Adam Liptak, takes a look at the controversial 1972 Supreme Court decision that said reporters are not protected by the First Amendment against grand jury subpoenas.
Justice Lewis F. Powell Jr., who joined the majority in the 5-4 decision, wrote a separate opinion at the time calling on judges to strike the “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.”
Media lawyers have used those words to successfully convince lower courts that Powell meant that the media should not be forced to divulge sources.
Over the last four years, a growing number of reporters have been ordered to turn over their notes or divulge their sources in federal court. That has prompted the media industry to fight back with an unprecedented lobbying blitz.
It looks like a bill to give reporters a qualified privilege to protect their sources is gaining bipartisan momentum. The Senate Judiciary Committee overwhelmingly supported a bill from Sens. Arlen Specter, R-Pa., and Charles Schumer, D-N.Y., to the floor with a 15-2 vote last week.
The bill would give reporters limited protection from disclosing their sources and notes in most cases.
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EFF hires Washington pros to fight telecom immunity
The Electronic Frontier Foundation is taking on Washington with Washington.
That is, the San Francisco-based digital rights group is hiring two of the Capitol city’s best known lobbyists to convince lawmakers that the telecommunications industry should not be given legal protection from future lawsuits for participating in President Bush’s secret terrorist surveillance program.
Thomas J. Downey, a former 8-term Democratic congressman from New York, and Adam M. Eisgrau, both veterans of the Byzantine world of Washington, have been retained by the foundation “to work to block amnesty for companies who break the law,” the foundation stated in an announcement.
At issue is a program authorized by President Bush soon after the Sept. 11, 2001, terrorist attacks that permitted the National Security Agency to bypass the Foreign Intelligence Surveillance court to eavesdrop on suspected terrorists in America and abroad without a warrant.
Congress is now considering making that program permanent despite the uproar when the New York Times broke the story in December 2005. Lawmakers were upset that the executive branch ignored a law passed by Congress in 1978 that requires ntelligence agencies to get a warrant from the secret court before conducting surveillance in America.
“While EFF generally does not engage in Washington-style lobbying, we need to make Congress understand the importance of letting our case against AT&T go forward,” said Shari Steele, executive director of the foundation.
“By releasing the telecoms from liability, Congress would be permitting the widespread flouting of our laws by private companies entrusted with our most personal communications,” Steele said.
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Cornyn key player on proposed media shield law
The Senate Judiciary Committee is expected to vote on a bill tomorrow that for the first time would give journalists limited protection from revealing their sources in federal courts.
Open government advocates say the chances are strong that the bill will pass and head to the floor for a vote.
“I think that most of the Judiciary Committee members recognize that freedom of the press is a hollow concept without the strong protection of newsgathering that requires shielding reporters from being forced to identify confidential sources except in very rare circumstances,” said Kevin M. Goldberg, legal counsel to the American Society of Newspaper Editors.
But objections from Sen. Jon Kyl, R-Ariz., and the Justice Department could stall the bill. Kyl believes the bill would jeopardize national security.
Texas Republican Sen. John Cornyn is at the center of the debate over the bill.
Cornyn is widely viewed as a strong supporter of the media’s role informing the public about governmental malfeasance as the co-author of a bill that would make the Freedom of Information Act more responsive. Yet, Cornyn has not signaled how he will vote on the media shield bill.
Below is a Q & A with Cornyn.
Question: Former New York Times reporter Judith Miller spent 85 days in jail to protect a source for a story that was never published. More and more journalists are being ordered to expose their sources in federal court. Open government advocates say this may have a “chilling effect” on reporters’ ability to tell stories that dig deep and reveal malfeasance in government. Will you support the bill? What do you think about it?
Cornyn: The debate on S. 2035, the “Free Flow of Information Act of 2007,” is still ongoing. There was a lengthy discussion during last week’s Judiciary Committee executive business meeting, and I expect that discussion to continue this week. Many amendments have been proposed, Senators Specter and Schumer have agreed to make some changes, and there will be amendments attempting to make additional changes before we vote on final passage of the bill. Until I know how the final text reads, I do not know how I will vote.
Question: In the past, you have appeared reticent to embrace a media shield bill. Can you explain why?
Cornyn: I believe that when information can be made public, it should be made public. I oppose the government subpoenaing reporters to provide information that criminal investigators could obtain using traditional investigative means. However, I also recognize the critical importance of balancing openness with national security, which is why I do not believe reporters are entitled to an absolute privilege. It is critical that any media shield law provide exceptions for certain situations, such as a potential terrorist threat or when someone’s safety is in jeopardy. It would be imprudent to shield confidential sources at the expense of our ability to defend ourselves or investigate and prosecute serious crimes and national security risks.
In my opinion, the media shield bills that have been proposed in the Senate in the past have failed to reach an appropriate balance between maintaining the free flow of information and protecting national security. As a leading advocate of open government, I support the premise behind such legislation, which is providing a limited privilege to journalists in order to protect the public interest in news gathering and the free flow of information. I can only support a media shield bill that achieves the necessary balance between safeguarding the freedom of the press and protecting national security.
Question: You are known on the Hill for being an advocate of open government. You are the co-author with Sen. Patrick Leahy, D-Vt., of a bill that would overhaul the much beleaguered Freedom of Information Act. Why have you been so supportive of one open government initiative and yet reluctant to support another? Don’t they aim to achieve the same thing: show the public how government works?
Cornyn: I am an advocate of open government because open government provides the American people with information they need to understand how the government operates on their behalf. A robust and fair media fulfills the public’s right to know by disseminating what the government does to the people. A media shield bill achieves this goal by showing the public how government works. However, it is important to carefully consider the text of any such bill as there are numerous factors that must be considered before enacting the proposed bill, and the public interest in maintaining the free flow of information is certainly one of them. However, this legislation also affects national security interests, the prosecution and investigation of serious crimes, the ability of civil litigants to retrieve unlawfully disclosed information such as trade secrets, unlawful leaks of classified information, and the government’s ability to respond to terrorist threats. We must ensure that the media shield bill we send to the Senate floor is carefully drafted to address each of these issues.
I am a supporter of a vibrant and free press and believe that a properly written reporter privilege will facilitate the reporting of important news events. This bill is a significant improvement over previous versions, but it still has flaws that must be worked out if the Senate is going to properly balance the need to give journalists protection with both the personal and business privacy concerns implicated by this privilege and national security interests.
I am concerned that the definitions of a “covered person” and “journalism” in this bill extend the privilege to an extremely broad class of individuals and entities. Factors such as occupation, profession, nationality, or affiliation are given no consideration, and anyone, including a blogger or a social networking website, who publicly disseminates any news or information that he has regularly written or gathered on any matter of public interest constitutes a “covered person.” This expansive definition could result in significant obstacles to law enforcement and the investigation of serious crimes, and for that reason I believe it should be more narrowly tailored.
I am dedicated to promoting open government and maintaining our country’s time-honored tradition of the free flow of information. I am equally dedicated to making sure the legislation we pass does not have unintended and far reaching consequences that could harm our national security.
Question: Where does the Open Government bill stand? Do you think it will be signed into law this year?
Cornyn: As you know, the Open Government Act passed the Senate just before the August recess. I have talked to Congressman Smith, one of the lead co-sponsors in the House, and have encouraged him to work to persuade the democratic leadership to take it up and pass it. I understand there are additional changes some in the House would like to make, however, given the Senate rules that allow any member to stall or kill legislation, making those changes and sending them back to the Senate expecting Senate floor time jeopardizes passage in this Congress. My hope is that the House will pass the Senate bill and then we can work for additional FOIA changes going forward.
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ACLU tells congress to “get with it”
With the departure of Alberto Gonzales, there have been few developments in the congressional investigation into whether nine U.S. attorneys were improperly fired last year for failing to hasten investigations into Democrats or aggressively pursuing Republicans.
Same is true for the congressional investigations into the legal justification for the Bush administration to bypass the Foreign Intelligence Surveillance Act and wiretap suspected terrorists in America without a warrant.
But wait no further. The American Civil Liberties Union is pressing Congress to move forward with contempt proceedings against White House officials who have steadfastly refused to cooperate with subpoenas seeking testimony and records related to the investigation.
The ACLU is also reminding Congress about the limits of executive privilege and its role in holding the White House accountable.
“Many presidents have overreached by claiming executive privilege to hide documents and witnesses from public oversight, and each time Congress has slapped their hands,” said Caroline Fredrickson, director of the ACLU’s legislative office. ”Today’s Congress must do the same if it wishes to operate as a meaningful and equal branch of government.”
Ouch, Congress.
The courts have long held that executive privilege is not absolute, and even where it applies it can be overcome if the other branches of government can show they need the information. Congress has significant legislative and oversight interests in the warrantless wiretapping program because it is currently considering legislation to make the president’s surveillance program permanent in a fix to the 1978 Foreign Intelligence Act.
“The federal courts have long held that Congress has the authority not only to pass laws, but investigate their implementation,” Fredrickson said. “Congress is facing a historic moment where it can either fight for its rightful place in our constitutional system of government or accept the president’s continued and sweeping claims of supremacy. It’s do or die time for the separation of powers.”
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Stealth campaign to protect telecom from lawsuits?
The Electronic Frontier Foundation is demanding in federal court that the Justice Department turn over records about a lobbying campaign waged by the nation’s telecommunications companies to protect the industry from lawsuits for secretly helping the Bush administration with its terrorist surveillance program.
The lawsuit comes as Congress considers giving the industry liability protection as part of its effort to overhaul the 1978 Foreign Intelligence Surveillance Act that requires spy agencies to obtain a warrant before they can wiretap phones or read e-mails of suspected spies and terrorists living in America.
The California-based foundation represents AT&T customers in a class-action lawsuit alleging that the the telecom company violated their rights by helping the National Security Agency conduct domestic surveillance without court approval from the Foreign Intelligence Surveillance Court.
The foundation filed the lawsuit because the Justice Department has refused to respond to multiple requests for information about the lobby campaign filed under the Freedom of Information Act.
“The White House is publicly calling for immunity for the telecoms, while a recent Newsweek article detailed a “secretive lobbying campaign” to block the lawsuits,” said Marcia Hofmann, staff counsel at the foundation. “If there are backroom deals going on at the Department of Justice, then Americans need to know about them now, before Congress passes any law that gets the telecom companies off the hook.”
The lawsuit asks for the immediate disclosure of the telecom industry’s lobbying records, including any documents concerning briefings, discussions, or other contacts Justice Department officials have had with representatives of telecommunications companies. The suit also asks for records of contact between the Justice Department and members of Congress about giving the telecom industry immunity.
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