11/21/2013 archive

In March 2004, the Justice Department under Ashcroft ruled that the Stellar Wind domestic intelligence program was illegal. The day after the ruling, Ashcroft became critically ill with acute pancreatitis. President Bush sent his White House Counsel Alberto Gonzales and Chief of Staff Andrew Card Jr. to Ashcroft’s hospital bed. They wanted him to sign a document reversing the Justice Department’s ruling. But the semi-conscious Ashcroft refused to sign; Acting Attorney General James Comey and Jack Goldsmith, head of the Office of Legal Counsel for DOJ, were there to back him up. Bush reauthorized the operation by executive decision, over formal Justice Department objections.

Also there was FBI Director Robert Mueller.  None of them, neither Ashcroft nor Comey nor Goldsmith nor Mueller was any sort of hero.  The program continues to this day, it’s merely been renamed.

8 Years Later, NSA Still Using Same PR Strategy to Hide Illegal Wiretap Program

by emptywheel

Posted on November 21, 2013

Between these two posts (one, two), I’ve shown that the Executive Branch never stopped illegally wiretapping Americans, even after the worst part of it got “shut down” after the March 2004 hospital confrontation. Instead, they got FISC to approve collection with certain rules, then violated the rules consistently. When that scheme was exposed with the transition between the Bush and Obama Administrations, the Executive adopted two new strategies to hide the illegal wiretapping. First, simply not counting how many Americans they were illegally wiretapping, thus avoiding explicit violation of 50 USC 1809(a)(2). And, starting just as the Executive was confessing to its illegal wiretapping, moving – and expanding it – overseas. Given that they’re collecting content, that is a violation in spirit, at least, of Section 704 of FISA Amendments Act, which requires a warrant for wiretapping an American overseas (the government probably says this doesn’t apply because GCHQ does much of the wiretapping).

One big discovery the Snowden leaks have shown us, then, is that the government has never really stopped Bush’s illegal wiretapping program.

…

When WSJ reported that the NSA has access to 75% of the Internet traffic in the US, I Con released a misleading rebuttal. When, in the wake of a NYT report that NSA and GCHQ were using vastly expanded contact chaining (which we now know was initiated just as the illegal domestic program was being revealed) to produce dossiers on people, even inattentive members of Congress started asking about upstream collection and EO 12333 violations, top officials first distorted the questions then refused to answer them. When various outlets in Europe revealed how much spying NSA and GCHQ were doing on Europeans, the I Con unleashed their secret weapon, the “conjunction,” which succeeded in getting most National Security journalists to forget about GCHQ’s known, voracious collection.

Then there’s the response to WaPo’s report that NSA had returned to its old ways of stealing data from Google and Yahoo. At first, I thought they were just engaging in their typical old non-denial denials. They were doing that, sure, but as Bart Gellman revealed during his debate with Michael Hayden (just after 44:00), they also tried to undermine WaPo’s report by refusing to engage at all.

…

In response to this treatment, the WaPo did a remarkable fisking of Administration pushback claims and – in the process – released more sensitive documents to prove they were right. Ha!

Almost 8 years ago, when NYT revealed the illegal wiretap program, the Bush Administration largely succeeded in hiding the biggest legal problems with the program by focusing attention on just a small fraction of the program, which they dubbed the “TSP,” while hiding the rest. Remarkably, the I Con is still using precisely the same strategy to hide what remains structurally the same illegal wiretap program that has, however, ballooned in size.

After months of Republican obstruction, the Senate Democrats voted to end the need for 60 votes to bring the name of a executive or judicial nominee to the floor for approval. The vote to end filibuster passes 52 to 48 with three Democrats voting against the change, Senator Carl Levin (MI), Joe Manchin (WV) and Mark Pryor (AR).

With the rare presence of all 100 senators seated and Sen. Pat Leahy (D-VT) presiding as the president pro tempore, the change began when Majority Leader Harry Reid (D-NV) called up the nomination of Patricia Millett to the D.C. Circuit Court of Appeals for another vote. Senate Minority Leader Mitch McConnell (R-Ky.) then called for a five hour recess for time to find a resolution to void the rules change. That motion failed 46 – 54.

Reid opened debate in the morning by saying that it has become “so, so very obvious” that the Senate is broken and in need of rules reform. He rolled through a series of statistics intended to demonstrate that the level of obstruction under President Barack Obama outpaced any historical precedent.

Half the nominees filibustered in the history of the United States were blocked by Republicans during the Obama administration; of 23 district court nominees filibustered in U.S. history, 20 were Obama’s nominees, and even judges that have broad bipartisan support have had to wait nearly 100 days longer, on average, than President George W. Bush’s nominees.

“It’s time to change before this institution becomes obsolete,” he said, citing scripture — “One must not break his word” — in accusing Minority Leader McConnell (R-Ky.) of breaking his promise to work in a more bipartisan fashion.

McConnell responded to Reid by changing the subject to the Affordable Care Act and accusing Democrats of trying to distract Americans from the law’s troubled rollout. Getting around to fidelity, McConnell noted that Reid had said in July that “we’re not touching judges,” yet he was now choosing to do so. Reid casually brushed off his suit coat and sat down.

The Senate has finally put a partial end to a stupid rule that was originally intended to extend debate not block it. Now that the Democrats have shown some spine, the next move is to end the 60 vote threshold altogether.

Reid, Democrats trigger ‘nuclear’ option; eliminate most filibusters on nominees

By Paul Kane, Washington Post

Updated: Thursday, November 21, 1:11 PM

The partisan battles that have paralyzed Washington in recent years took a historic turn on Thursday, when Senate Democrats eliminated filibusters for most presidential nominations, severely curtailing the political leverage of the Republican minority in the Senate and assuring an escalation of partisan warfare.

The rule change means federal judge nominees and executive-office appointments can be confirmed by a simple majority of senators, rather than the 60-vote super majority that has been required for more than two centuries.

The change does not apply to Supreme Court nominations. But the vote, mostly along party lines, reverses nearly 225 years of precedent and dramatically alters the landscape for both Democratic and Republican presidents, especially if their own political party holds a majority of, but fewer than 60, Senate seats.

…

The vote to change the rule passed 52-48. Three Democrats – Sens. Carl Levin (D-Mich.), Joe Manchin (D-W.Va.) and Mark Pryor (D-Ark.) – joined with 45 Republicans in opposing the measure. Levin is a longtime senator who remembers well the years when Democratic filibusters blocked nominees of Republican presidents; Manchin and Pryor come from Republican-leaning states.

…

(T)he impact of the move is be more far-reaching. The means for executing this rules change – a simple-majority vote, rather than the long-standing two-thirds majority required to change the chamber’s standing rules – is more controversial than the actual move itself.

Many Senate majorities have thought about using this technical maneuver to get around centuries of parliamentary precedent, but none has done so in a unilateral move on a major change of rules or precedents. This simple-majority vote has been executed in the past to change relatively minor precedents involving how to handle amendments; for example, one such change short-circuited the number of filibusters that the minority party could deploy on nominations.

“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”.

Follow us on Twitter @StarsHollowGzt

Gail Collins: The Public Needs a Nap

One of the many problems with the Senate filibuster rule is that it requires us to think about the Senate filibuster rule.  The American public has other things to do! The American public is extremely busy! The holidays are coming up, and the American public’s workload is somewhat larger than, say, that of the House of Representatives, which is planning to show up for four full days in the month of December.

So give the American public a break. [..]

And the bottom line is that it’s a good thing to give the minority party some muscle to stop bad or extremist nominees from getting lifetime judicial appointments. But we have crossed the line to crazy when the minority party can announce that the woman who argued 32 cases before the Supreme Court can’t be on the D.C. District Circuit Court of Appeals because it’s too expensive.

Change the rules.

Glen Ford: Obama and Holder Let Gangsters Pay Fine, Continue Business As Usual

Imagine if Charles “Lucky” Luciano and his “Commission” representing the five reigning New York Mafia families plus the Chicago mob had been immune from law enforcement meddling in their activities, from the establishment of the “Syndicate” in 1931 to the present day. By now, Luciano’s gangster heirs would be the unchallenged rulers of economic and political life in the United States and, by imperial extension, the entire capitalist world. [..]

The latest Obama administration “settlement” of JP Morgan’s ongoing criminal enterprise amounts to a $13 billion fine, a mere speed bump in the unbroken spree of lawlessness that “helped create a financial storm that devastated millions of Americans,” in the words of Associate Attorney General Tony West. Although it is “the largest penalty in history,” Dimon and his fellow banksters are also the richest criminals in history – the most powerful cartel of all time – who can easily afford the levy. The bursting of their housing securities bubble may have wrecked much of the global economy in 2008, but Dimon and his boys made out like pure bandits in the aftermath, consolidating their positions at the center of a dying system. JP Morgan emerged as the biggest U.S. bank in terms of assets, a gleaming tower standing amid the ruins it created. Such is the logic of late stage finance capitalism: catastrophe becomes “creative destruction,” which begets greater economic monopoly, resulting in unchallengeable political supremacy, which makes Dimon too big to jail, whether he’s actually a friend of Obama, or not.

Reich: How Unequal Can America Get?

Inequality for All

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.

November 21 is the 325th day of the year (326th in leap years) in the Gregorian calendar. There are 40 days remaining until the end of the year.

On this day in 1934, Ella Fitzgerald wins Amateur Night at Harlem’s Apollo Theater. A young and gangly would-be dancer took to the stage of Harlem’s Apollo Theater to participate in a harrowing tradition known as Amateur Night. Finding herself onstage as a result of pure chance after her name was drawn out of a hat, the aspiring dancer spontaneously decided to turn singer instead-a change of heart that would prove momentous not only for herself personally, but also for the future course of American popular music. The performer in question was a teenaged Ella Fitzgerald, whose decision to sing rather than dance on this day in 1934 set her on a course toward becoming a musical legend. It also led her to victory at Amateur Night at the Apollo, a weekly event that was then just a little more than a year old but still thrives today

Ella Jane Fitzgerald (April 25, 1917 – June 15, 1996), also known as the “First Lady of Song” and “Lady Ella,” was an American jazz and song vocalist. With a vocal range spanning three octaves (Db3 to Db6), she was noted for her purity of tone, impeccable diction, phrasing and intonation, and a “horn-like” improvisational ability, particularly in her scat singing.

She is considered to be a notable interpreter of the Great American Songbook. Over a recording career that lasted 59 years, she was the winner of 14 Grammy Awards and was awarded the National Medal of Art by Ronald Reagan and the Presidential Medal of Freedom by George H. W. Bush.

Yes, I know. It deja vu all over again, as Yogi would say. Lucy will snatch the football away again and whatever cliche that fits. Only this time the Republicans have boxed themselves in with their arguments over their blocking of President Barack Obama’s last three judicial appointments to the vacancies on the DC Circuit Court of Appeals. This is Greg Sargent’s assessment after the last filibuster of nominee Robert Wilkins, who is currently a U.S. District Court judge in Washington.

Senator Harry Reid appears set to go nuclear – before Thanksgiving. [..]

Reid has concluded Senate Republicans have no plausible way of retreating from the position they’ve adopted in this latest Senate rules standoff, the aide says. Republicans have argued that in pushing nominations, Obama is “packing” the court, and have insisted that Obama is trying to tilt the court’s ideological balance in a Democratic direction – which is to say that the Republican objection isn’t to the nominees Obama has chosen, but to the fact that he’s trying to nominate anyone at all.

Reid believes that, having defined their position this way, Republicans have no plausible route out of the standoff other than total capitulation on the core principle they have articulated, which would be a “pretty dramatic reversal,” the aide continues.

“They’ve boxed themselves in – their position allows them no leeway,” the aide says, in characterizing Reid’s thinking. “This is not a trumped up argument about the qualification of a nominee. They are saying, `we don’t want any nominees.'”

The aide says Reid believes he now has 51 Dem Senators behind a rules change, if it comes down to it. The Huffington Post reports that some Dem Senators who have previously opposed changing the rules – such as Barbara Boxer and Dianne Feinstein – are now open to it. “I believe that we are there,” the aide tells me.

With Boxer, Feinstein and Pat Leahy (D-VT) aboard, even if Senators Max Baucus (D-MT) and Claire McCaskill (D-MO) are noncommittal and Sen. Carl Levin (D-MI) firmly opposed, Reid ]may well have the 51 votes to reform. Reid met Wednesday with the advocates of reform and an invitation went out from Reid for a meeting on Thursday to discuss the rules change.

In an interview with The Huffington Post on Wednesday, Sen. Jeff Merkley (D-Ore.), one of the loudest champions of narrowing the filibuster, insisted that this wouldn’t be yet another instance of the football being placed invitingly in front of Charlie Brown’s foot. After a showdown this January resulted in a toothless set of procedural changes and another standoff this summer resulted in a fleeting pact between the parties, Democrats are beyond frustrated, the Oregon Democrat said. [..]

Aides on the Hill are equally adamant that this isn’t some big bluff on Reid’s part. One top aide told The Huffington Post that even if Republicans simply allowed for up-and-down votes on the president’s three nominees to the U.S. Court of Appeals for the District of Columbia Circuit (the nexus of this current filibuster fight) it wouldn’t dramatically alter the party’s thinking.

Chris Hayes, host of MSNBC’s All In, discussed why Harry Reid should use the nuclear option with Senator Jeff Merkley Dahlia Lithwick and Alan Frumin.

Reid is expected to move on reform before Thanksgiving. It could come as early as Friday. I am not holding my breath.