07/16/2013 archive

Snowden’s surveillance leaks open way for challenges to programs’ constitutionality

By Jerry Markon, Washington Post

Published: July 15

(T)he legal landscape may be shifting, lawyers say, because the revelations by Edward Snowden, a former National Security Agency contractor and the principal source of the leaks, forced the government to acknowledge the programs and discuss them. That, they say, could help plaintiffs overcome government arguments that they lack the legal standing to sue or that cases should be thrown out because the programs are state secrets. A federal judge in California last week rejected the government’s argument that an earlier lawsuit over NSA surveillance should be dismissed on secrecy grounds.

“There is one critical difference from the Bush era. We now have indisputable physical evidence that the conduct being challenged is actually taking place,” said Stephen Vladeck, an expert on national security law at American University law school. He said Snowden’s disclosures make it “more likely” that cases will at least be allowed to go forward in court, leading to a years-long legal battle over surveillance and privacy.

…

Steven G. Bradbury, a Washington lawyer and senior Justice Department official in that administration, expressed skepticism that the new lawsuits would turn out better than previous ones.

He said the plaintiffs would have difficulty showing that they specifically were harmed by the programs, because the data collection was so vast, and that judges could rule that government officials are immune from such suits. And even though Obama administration officials have discussed the programs, Bradbury said the government could still get cases thrown out under what is known as the state secrets privilege.

Created in the 1950s and rarely used until after the attacks of Sept. 11, 2001, it allows officials to urge courts to dismiss cases on the grounds of potential damage to national security or foreign policy. “The further details of these programs are still state secrets,” Bradbury said.

Cindy Cohn, legal director at the Electronic Frontier Foundation, a digital rights group, said the state secrets argument doesn’t apply in cases involving electronic surveillance. She pointed to last week’s decision by a federal judge in California that rejected the government’s efforts to throw out on state secret grounds a 2008 lawsuit, brought by EFF, that includes earlier incarnations of the NSA’s surveillance programs, as well as current ones. The lawsuit is now proceeding.

Although other courts are not bound by the decision, Cohn said it could be a “tremendous boon” to plaintiffs in cases filed in the past month. “It’s tremendous, because anything that allows these cases to proceed is important,” she said.

She added that her organization plans to file a lawsuit this week stemming from Snowden’s recent revelations and that she has heard about at least two additional suits in the pipeline. Sen. Rand Paul (R-Ky.) also has vowed to bring legal action against the government over its broad surveillance efforts; a spokeswoman for Paul said he is evaluating his options.

And lo it came to pass.

Electronic Frontier Foundation Sues NSA Over Surveillance

By Karen Gullo, Bloomberg News

Jul 16, 2013 1:58 PM ET

The lawsuit, filed today in federal court in San Francisco, focuses on warrantless collection of U.S. communications under an intelligence program partly disclosed by ex-government security contractor Edward Snowden and later acknowledged by the administration. The EFF sued on behalf of groups including Human Rights Watch, Greenpeace and Council on American-Islamic Relations.

“Any judicial, executive or executive authorization” of the “Associational Tracking Program or the acquisition and retention of the communications information of plaintiffs, their members, and their staffs is unlawful and invalid,” EFF legal director Cindy Cohn said in the complaint.

Harry and the Democrats have once again backed off fixing the unconstitutional filibuster rule in the Senate that has allowed the minority party to stall everything from nominees to offices, the bench and passing legislation this session.

A tentative agreement to avert reforming filibuster on presidential nominees to administrative positions was reached during the night on an unusual private session between the two caucuses.

The deal, which was negotiated primarily between Senate Majority Leader Harry Reid (D-Nev.) and Sen. John McCain (R-Ariz.), was described by a Senate Democratic aide as one in which the Republican Party will allow votes to confirm the seven executive nominees, provided that Obama replaces his two nominees to the National Labor Relations Board with two other names. Those nominees would have a commitment “in writing” from GOP leadership to get a vote, the Democratic aide said.  [..]

Getting replacements for the NLRB nominees is, more or less, a face-saving measure for the GOP leadership. Republicans had argued that the nominees, Sharon Block and Richard Griffin, were irrevocably tainted because Obama elevated them as recess appointments, which were ruled unconstitutional by the U.S. Court of Appeals for the D.C. Circuit. Democrats countered that such taint would have been wiped away had Block and Griffin received a clean vote by the Senate. [..]

Under the proposed deal between the two parties, which the Democratic aide cautioned was “not final yet” as of 11:00 a.m., Reid would also retain the right to consider rules reform in the future. There are “no conditions or restrictions on future action whatsoever,” the aide said. Another aide confirmed that position.

According news reports from aids, Reid had stopped talking to minority leader Sen. Mitch McConnell, choosing instead to broker a deal through McCain.

The cloture vote on Richard Cordray to head the Consumer Financial Protection Bureau was taken late this morning, passing 79 – 29 thus ending the filibuster on his nomination. Final confirmation will take place later today.

There are some Democrats not satisfied with the tentative deal over Block and Gross:

Republicans have balked as the question to whether their recess appointments are constitutional awaits a Supreme Court decision this fall. Instead, Republicans are hoping to slot in two new Democratic-chosen NLRB members in place of Block and Griffin, a move sure to rile up the liberal wing of the party.

Democrats tried to come up with some potential replacement for Block and Griffin over the weekend, but have been unsuccessful up to this point. [..]

Some veteran Democrats, however, are standing by Block and Griffin, and are urging Reid and the White House not to cave to GOP pressure, as are labor leaders.

“If it’s a deal that somehow carves out Sharon Block and Richard Griffin from going on the NLRB, then I am going to be standing up. Because I think it would be grossly unfair to throw them out simply to make a deal,” declared Sen. Tom Harkin (D-Iowa). “Until the Supreme Court decides it, they have every right to be where they are.”

The Democratic leadership is concerned with threats made by Republicans that if they win the Senate in 2014, they would change the Senate rules in such a way as to completely block any presidential nominees and enable them to push though their agenda. The question is what is to stop them from doing this anyway? Does anyone really believe that a Republican led senate would tolerate a Democratic minority obstructing their agenda? Republicans have already threatened random acts of obstruction should Democrats exercise the option. But, truthfully, how much more obstructive can they get?

If the Democrats expect to get anything done or anyone confirmed to the bench before they lose their majority, they needed to do it now.  

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

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New York Times Editorial Board: A Step to Majority Rule in the Senate

After years of growing Republican obstruction – legislation blocked, judicial candidates forced to withdraw, presidential nominations left to languish, government agencies rendered powerless by denying them leaders – Senate Democrats say they are finally ready to take action. Barring a last-minute deal, Harry Reid, the majority leader, said he would move to change the Senate rules on Tuesday to ban the filibuster for executive appointments.

This is a relatively modest step toward returning basic governance to the chamber. It does not change the 60-vote requirement that Republicans have made routine for virtually all legislation, perverting the majoritarian vision of the Constitution. It does not ban the filibuster for judicial nominees, though we wish it did because Republicans are still holding up too many federal court candidates.

William K. Black: What If Bernanke Had the Character to Be Candid?

David Wessel has just published a fantasy piece in the Wall Street Journal that asks the question, “What if Bernanke could be blunt” in his Congressional testimony later this week? Here are the first two things that Wessel envisions a blunt Bernanke as telling Congress:

   One. [T]he U.S. is doing a heck of a lot better than the rest of the developed world.

and

   Two. You in Congress are hurting the economy now by allowing the sequester to stick and hurting the economy in the future by refusing to deal with long-term deficits. The Fed is trying to offset this, but there’s only so much we can do.

Wessel’s column has prompted me to ask a more important question: What would Bernanke tell Congress if he had the character to be candid? Many witnesses have been blunt with Congress. The problem is that one can be a blunt and dead wrong. It takes character for a Fed Chairman to tell Congress that the economy is screwed up because the Fed screwed up on his watch. That candor is what the nation needs and the character that produces such candor has been sadly lacking among Fed chairmen.

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

Click on images to enlarge

July 16 is the 197th day of the year (198th in leap years) in the Gregorian calendar. There are 168 days remaining until the end of the year.

On this day in 1945, at 5:29:45 a.m., the Manhattan Project comes to an explosive end as the first atom bomb is successfully tested in Alamogordo, New Mexico.

If the radiance of a thousand suns were to burst at once into the sky, that would be like the splendor of the mighty one…

“Now I am become Death, the destroyer of worlds.”

Bhagavad Gita

J. Robert Oppenheimer

Plans for the creation of a uranium bomb by the Allies were established as early as 1939, when Italian emigre physicist Enrico Fermi met with U.S. Navy department officials at Columbia University to discuss the use of fissionable materials for military purposes. That same year, Albert Einstein wrote to President Franklin Roosevelt supporting the theory that an uncontrolled nuclear chain reaction had great potential as a basis for a weapon of mass destruction. In February 1940, the federal government granted a total of $6,000 for research. But in early 1942, with the United States now at war with the Axis powers, and fear mounting that Germany was working on its own uranium bomb, the War Department took a more active interest, and limits on resources for the project were removed.

Brigadier-General Leslie R. Groves, himself an engineer, was now in complete charge of a project to assemble the greatest minds in science and discover how to harness the power of the atom as a means of bringing the war to a decisive end. The Manhattan Project (so-called because of where the research began) would wind its way through many locations during the early period of theoretical exploration, most importantly, the University of Chicago, where Enrico Fermi successfully set off the first fission chain reaction. But the Project took final form in the desert of New Mexico, where, in 1943, Robert J. Oppenheimer began directing Project Y at a laboratory at Los Alamos, along with such minds as Hans Bethe, Edward Teller, and Fermi. Here theory and practice came together, as the problems of achieving critical mass-a nuclear explosion-and the construction of a deliverable bomb were worked out.

Last week Sen Elizabeth Warren (D-MA), along with Senators John McCain (R-Ariz.),  Sens. Maria Cantwell (D-Wash.) and Angus King (I-Maine), introduced legislation that rein in the excesses of the Too Big Too Fail banks. The bill would require banks that accept federally insured deposits to focus on traditional lending and would bar them from engaging in risky securities trading. It would also bar banks that accept insured deposits from dealing swaps or operating hedge funds and private equity enterprises.

The legislation introduced today would separate traditional banks that have savings and checking accounts and are insured by the Federal Deposit Insurance Corporation from riskier financial institutions that offer services such as investment banking, insurance, swaps dealing, and hedge fund and private equity activities. This bill would clarify regulatory interpretations of banking law provisions that undermined the protections under the original Glass-Steagall and would make “Too Big to Fail” institutions smaller and safer, minimizing the likelihood of a government bailout.

“Since core provisions of the Glass-Steagall Act were repealed in 1999, shattering the wall dividing commercial banks and investment banks, a culture of dangerous greed and excessive risk-taking has taken root in the banking world,” said Senator John McCain. “Big Wall Street institutions should be free to engage in transactions with significant risk, but not with federally insured deposits. If enacted, the 21st Century Glass-Steagall Act would not end Too-Big-to-Fail.  But, it would rebuild the wall between commercial and investment banking that was in place for over 60 years, restore confidence in the system, and reduce risk for the American taxpayer.”

“Despite the progress we’ve made since 2008, the biggest banks continue to threaten the economy,” said Senator Elizabeth Warren.  “The four biggest banks are now 30% larger than they were just five years ago, and they have continued to engage in dangerous, high-risk practices that could once again put our economy at risk.  The 21st Century Glass-Steagall Act will reestablish a wall between commercial and investment banking, make our financial system more stable and secure, and protect American families.”

Five Facts About the New Glass-Steagall

by Simon Johnson, Bloomberg The Ticker

Naturally, Wall Street will respond with a huge disinformation campaign, saying that the bill would cause the sky to fall. As the debate intensifies, keep in mind the following five points.

1) The bill would actually help small banks, because it would force the taxpayer-subsidized megabanks and related financial companies to break up. [..]

2) The simplifying intent of the 21st century Glass-Steagall Act is complementary to other serious reform efforts underway, including plans for the “resolution,” or managed liquidation, of any financial firm that fails. [..]

3) Proponents of big banks will claim that the breakdown of the original Glass-Steagall Act (which separated commercial and investment banking) did not contribute to the crisis of 2007-08. [..]

4) As the preamble to the 21st century Glass-Steagall Act points out, it represents a convergence with European reform thinking, as seen in the Vickers Report (for the U.K.) and the Liikanen Report (for Europe more broadly). [..]

5) The Treasury Department is not going to welcome the legislation — in fact, it may assist in mobilizing opposition. At this stage, this is an advantage, not a problem. Treasury has a severe case of reform fatigue. It’s time for someone else to carry the ball.

Remember Citigroup

by Simon Johnson, Huffington Post

The strangest argument against the Act is that it would not have prevented the financial crisis of 2007-08. This completely ignores the central role played by Citigroup.

It is always a mistake to suggest there is any panacea that would prevent crises — either in the past or in the future. And none of the senators — Maria Cantwell of Washington, Angus King of Maine, John McCain of Arizona, and Elizabeth Warren of Massachusetts — proposing the legislation have made such an argument. But banking crises can be more or less severe, depending on the nature of the firms that become most troubled, including their size relative to the financial system and relative to the economy, the extent to which they provide critical functions, and how far the damage would spread around the world if they were to fall.

Executives at the helm of Citigroup argued long and hard, over decades, for the ability to expand the scope of their business — breaking down the barriers between conventional commercial banking and all of forms of financial transactions, including the most risky. In effect, the decline of the restrictions established by the original Glass-Steagall — at first gradual but ultimately dramatic — allowed Citigroup to increase the scale and complexity of gambles that it could take backed by deposits and ultimately backed by the government.

What are the chances of this bill getting passed? Probably not all that good considering the Wall St. cronies like Sen. Chuck Schumer (D-NY) who most certainly oppose it. Even if it makes it through the Senate relatively intact in intent, the wild children in the House will most certainly kill it. We need more Liz Warrens in both houses of congress.