FISA

John Yoo: Still Lying

The blog The Anonymous Liberal does a fantastic job picking apart John Yoo's op-ed in today's Wall Street Journal defending himself against the findings of the recently released Inspector General's report.

In this morning's Wall Street Journal, John Yoo has an op-ed defending himself from the malpractice charges set forth in the recent Inspecter General's report. As with the opinions themselves, the op-ed is deeply disingenuous and misstates the law repeatedly.

Not surprisingly, Yoo begins the op-ed with a collosal straw man. He points out how important it is to intercept al Qaeda communications and writes: "Evidently, none of the inspectors general of the five leading national security agencies would approve." Of course, the issue is not whether intercepting communications is a good idea, but whether the program violated the law. Yoo was not a policy maker. He was a lawyer. His job was to state what the law was, not what it should be.

Yoo eventually gets around to addressing FISA, but quickly dismisses any notion that FISA might constrain the president...

Read the full post here.

PFAW

Obama Administration Raises the Bar on Wiretap Secrecy

Two of the most damaging legacies of the Bush Administration - the gutting of FISA through warrantless wiretapping, and the assertion of the almost monarchical "unitary executive" theory of executive branch authority - returned to center stage late last week, as the government responded to the suit brought by the EFF in Jewel v. NSA.

Glenn Greenwald writes in a post yesterday the disappointing direction Obama's DOJ has taken in regards to the warrantless wiretapping lawsuit the Electronic Frontier Foundation brought against the Bush Administration in October. On Friday the DOJ offered up its first response to the court. Greenwald:

[T]he Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

Greenwald's post involves a lot of legal heavy lifting, but it's very accessible and worth reading.

This development is scary, but sadly not the first time Obama's DOJ has taken cues from its predecessor. In February we noted with disappointment the continued use of the "state secrets" privilege in the extraordinary rendition case Mohamed et al. v. Jeppesen.

One of the much lauded compromises of the FISA amendments last year was the fact that while telecom corporations were immune from suit, government officials could still be brought to court for illegal wiretapping. So while the new FISA now allows for longer periods of warrantless wiretapping (7 days, up from 48 hours) and permits the destruction of wiretap records, the DOJ now aims to snatch away the single bone thrown to civil libertarians.

You can read the EFF's press release here.

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Mark Gitenstein for Office of Legal Policy

I’ve seen some concerns expressed about the possible nomination of Mark Gitenstein to head the Justice Department’s Office of Legal Policy, including questions about whether he’s sufficiently committed to protecting the rule of law to serve in the position at Justice involved in selecting and vetting potential federal judicial nominees. I want to weigh in on this conversation because I know Mark well.

I worked very closely with him when he was serving as Senator Biden’s Chief Counsel on the Senate Judiciary Committee and I was counsel to Senator Howard Metzenbaum. If you’re looking for someone committed to the rule of law, no need to look further. Mark can claim a lifetime of service to advancing the cause of civil rights and civil liberties in this country. As chief counsel to Senator Biden, Mark fought against the confirmation of federal judicial nominees who were not committed to protecting the civil rights and individual liberties of all Americans. He worked tirelessly in his position with Senator Biden to help protect the Civil Rights Commission and to extend the Voting Rights Act.

As counsel on the Senate Intelligence Committee he played a leadership role in the oversight investigation of the FBI abuses in the illegal surveillance and intimidation of Dr. Martin Luther King, Jr. and other civil rights and anti-war activists. He played a key role in the development of FISA, which grew out of that investigation.

As an advisor to Senator and presidential candidate Biden, Mark helped focus on the plight of the shrinking middle class advancing measures such as reforming health care to permit middle class and disadvantaged families to buy into the same health care insurance program available to members of Congress and expanding the availability of health insurance for children and expanding employer based retirement programs.

Mark has the smarts, integrity and values that we need in someone heading this critical office.

PFAW