Power Begets Power

Marcy Wheeler has the gory details of today's markup for the renewal of the Patriot Act. Basically, the Obama Administration and friendly Democrats in Congress - mainly DiFi and Pat Leahy - have used the Mohammed Zazi investigation to reauthorize provisions of the Patriot Act, some of which have never been used, some of which represent deep intrusions into our civil liberties.

So the Obama administration has its first allegedly big Terrorism case, and they can hardly contain themselves as they exploit it to justify a continuation of the very Patriot Act and FISA powers which Democrats (and, in the case of FISA, Obama himself) long claimed to oppose. Indeed, key Obama ally Dianne Feinstein has worked diligently in the Senate not just to block Patriot Act reforms, but to make the law even worse, and has repeatedly cited the Zazi case to justify that.

Absolutely none of the methods used in the Zazi investigation would have commenced without Zazi being tied directly to Al Qaeda. But Feinstein and the White House doesn't want to have this burden of proof. They want the ability to engage in fishing expeditions, to use roving wiretaps or "sneak and peek" searches or the use of business records without having to prove that the subject is suspected of terrorist activity. It's pretty clear that this is leading toward tracking the records of anyone who bought large quantities of hydrogen peroxide. So look out, women who dye their hair and like to stock up!

This has come in conjunction with major pronouncements by Administration officials about how very dangerous the Zazi case was and how it proves that law enforcement needs these tools. I rebutted that earlier - they need tools, but not OPEN-ENDED ones. It also makes a mockery of Administration boasts that they're not politicizing terror - the juxtaposition of these press events and the Patriot Act markup is pretty obvious.

But that's apparently what they're getting. Russ Feingold is upset. Only him, Dick Durbin and Arlen Specter (!) managed to vote against the final bill from the perspective of civil liberties.

Before I get into the specific provisions that concern me, I want to say how disappointed I was in the debate in the committee. Today particularly, I started to feel as if too many members of the committee from both parties are willing to accept uncritically whatever the executive branch says about even the most reasonable proposed changes in the law. Of course we should consider the perspective of the FBI and the Justice Department. Keeping Americans safe is everyone’s priority. But we also need to consider a full range of perspectives and come to our own conclusions about how best to protect the American people and preserve their freedoms. Protecting the rights of innocent people should be a part of that equation. It's not the Prosecutors’ Committee; it's the Judiciary Committee. And whether the executive branch powers are overbroad is something we have to decide. The only people we should be deferring to are the American people, as we try to protect them from terrorism without infringing on their freedoms [...]

Specifically, the bill reported out of the Committee today on an 11-8 vote (five Republicans and only three Democrats voted No) fell short in a few key areas. Perhaps the most important was the failure to include the reasonable 3-part standard for issuing a FISA business records order under Section 215 of the PATRIOT Act. This standard was in a bill unanimously reported by the Committee, under Republican control, in 2005, and it was in Sen. Leahy’s original bill this year. Last week, Senator Durbin offered an amendment to put the standard back in the bill. It would have ensured that these secret authorities can only be directed at individuals who have some connection to terrorism or espionage. The standard is broad and flexible, but it places some limits on this otherwise very sweeping authority. Unfortunately, Senator Durbin’s amendment failed. When it did, I hoped the Committee would instead consider at least adopting that same standard for issuing National Security Letters, which are not approved by any court, and which were seriously abused by the FBI. Today, that, too, was rejected.

The bill that passed out of committee did include some positive changes. I was pleased my amendment to reform invasive "sneak and peek" searches was included, as well as my amendment to require the executive branch to issue minimization procedures for NSLs. But these improvements did not make up for the bill’s shortcomings, and I was unable to support it on the final vote.

I only wish that Julian Sanchez could make another rebuttal video and we'd be done with this, but Fox News is hardly the problem. We've morphed pretty solidly into a surveillance state, a factor of being a state at permanent war.

I tend to side with Anonymous Liberal that at least Obama isn't asserting the divine right to break the law just by dint of being the unitary executive. That theory is on the dustbin of history, I hope. But if he's gathering the same powers, that's a distinction without a difference.

The Beauty Product Hunt

Marcy Wheeler notes some disturbing language in the reauthorization of the Patriot Act put in by DiFi:

I'm going to make a wildarsed guess and suggest that the Federal Government is doing a nationwide search to find out everyone who is buying large amounts of certain kinds of beauty products. And those people are likely now under investigation as potential terrorism suspects [...]

First, at the start of the hearing, DiFi claimed that the investigation of Najibullah Zazi is the largest terrorism investigation since 9/11. Whether that's hyperbole or not, she's claiming that the FBI is doing more in the wake of the Zazi arrest than it did after all those false scares stemming from Bush's illegal wiretap program, all those false scares arising out of torturing Abu Zubaydah, and all the scares hyped up around election time. She's claiming this thing is huge.

Second, DiFi and Pat Leahy went through Leahy's proposed renewal to the PATRIOT Act and made some changes--to make sure that current investigations are not hampered by any changes proposed. Significantly, she appears to have taken out this language (I haven't been able to get a hold of the substitute amendment yet) which would have required investigators to have some connection between a person and a suspected terrorist before they could collect "tangible information" on them [...] So if this investigation is as big as DiFi says it is, and if it does rely on Section 215 as currently written...

Then all they would have to do is assert that anyone buying this particular cocktail of chemicals (or products containing those chemicals) could be presumptively related to activities of a foreign power. That is, if you buy these chemicals it may be safe to assume (or the FBI might be claiming it is safe to assume) you're doing so to build an al Qaeda-related bomb.

These are the kind of fishing expeditions put together by panicked lawmakers that make people feel their civil liberties are under attack by their government. The system appeared to work in the Zazi case, but to expand that out and make anyone who buys hair care products a potential terror suspect seems completely excessive. And these kind of broad nets to capture individuals have proven ineffective, because the mass of information being searched inevitably makes it harder to find the good stuff.

It's pure paranoia, reflected in legislation. Not good.

If You Want Your Country Back, Start With This

Senate Democrats have introduced legislation to scale back some of the worst abuses of both the Patriot Act and the FISA legislation from last year. Obama Administration officials were noncommital.

At hearings in the House and Senate, the officials repeatedly said they had no position yet on legislation that Democrats have introduced that would tighten standards and oversight of surveillance tools authorized under laws including the USA Patriot Act.

"We are trying to figure out whether the provisions that are suggested there will work for us as is, or perhaps with modifications," David S. Kris, assistant attorney general for national security, said at a Senate Judiciary Committee hearing Wednesday on whether to renew a trio of Patriot Act powers set to expire Dec. 31.

Those provisions allow investigators to use "roving wiretaps" to monitor suspects who may be trying to escape detection by switching cellphone numbers; obtain from third parties the business records of national security targets; and track "lone wolf" suspects who may not belong to a terrorist group but may be planning attacks.

I'm surprised they've even gone to the level of noncommital. Executives generally want to retain the power handed to them.

But it took a non-lawyer Senator named Al Franken to explain in plain English why the roving wiretap statute offends the conscience.

Franken, who opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either, said he’d also done research on the Patriot Act and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap a an unnamed target and his or her various and changing cell phones, computers and other communication devices.

Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part: “no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question. “I would defer to the other branch of government,” he said, referring to the courts, prompting Franken to interject: “I know what that is.”

Yes, it is "surreal" that some politician would dare look to the Founding documents for guidance when determining whether the roving wiretaps statute violates civil liberties. I'm no originalist, but I don't think there's a ton of wiggle room in "the persons or things to be seized."

The truth is that, for all the pretty talk about exigent circumstances and "the war on terror" and the need to conduct investigations in secret, almost all Patriot Act "sneak and peek" requests, where warrants could be obtained to conduct secret searches without telling the subjects, had nothing at all to do with terrorism, but standard-issue federal drug cases. The mission creep here is obvious, and it's true on national security letters and roving wiretaps as well.

I'd be willing to overlook the regular-grade racism and general ugliness of the tea party crowd if they'd actually take a look at these examples of government overreach, and work with civil libertarians on the left to roll them back. The combination could be potent. Of course, the teabaggers aren't libertarians, they're glibertarians, who adored this kind of stuff in the Bush years when they were fighting "terrism."

Disappointment On Civil Liberties

I think I was too soon in my tempered praise for Obama's decision on Bagram Air Force Base. Yes, prisoners there will have an opportunity to challenge their detention, but basically using the same process found unconstitutional when tried at Guantanamo. This still denies prisoners basic habeas rights in a court of law and allows the government to abduct anyone and send them to Bagram indefinitely, where they cannot challenge their detention properly. In fact, since the action was in response to a court order to allow non-Afghan prisoners a right to plead their case, the detainees will probably have no opportunity to act on this until years of litigation over whether this system can pass Constitutional muster. As one of the representatives for Gitmo detainees said yesterday, "It’s another stall. And one I would have expected from the Bush administration but not the Obama administration."

Boy, how many times have we heard that? In addition to turning Bagram into Guantanamo East and seemingly stocking prisoners there outside any review process, this Administration wants to create a legal process for preventive detention, enabling them to hold anyone without charges indefinitely, which Russ Feingold has called "a hallmark of abusive systems that we have historically criticized around the world." Obama's CIA continue to use the state secrets privilege to get out of a host of different accountability measures. And just yesterday, the Administration announced that they support renewing all sections of the Patriot Act.

The Obama administration has for the first time set out its views on the controversial USA Patriot Act, telling lawmakers this week that legal approval of government surveillance methods scheduled to expire in December should be renewed, but leaving room to tweak the law to protect Americans' privacy.

In a letter from Justice Department officials to key members of the Senate Judiciary Committee, the administration recommended that Congress move swiftly with legislation that would protect the government's ability to collect a variety of business and credit card records and to monitor terrorism suspects with roving wiretaps.

But Assistant Attorney General Ronald Weich also told Democrats that the administration is "willing to consider" additional privacy safeguards advocated by lawmakers, so long as the provisions do not "undermine the effectiveness of these important authorities."

The three provisions set to expire Dec. 31 allow investigators to monitor through roving wiretaps suspects who may be trying to escape detection by switching cellphone numbers, obtain business records of national security targets, and track "lone wolves" who may be acting alone on behalf of foreign powers or terrorist groups. The government has not employed the lone wolf provision, but department officials want to ensure they can do so in the future.

Well, that's nice, they're "willing to consider" privacy safeguards. It's not like we've had multiple reports of the FBI violating privacy through unauthorized national security letters or wiretaps that capture the information of individual Americans. With Russ Feingold and Dick Durbin working on a bill including these safeguards, some advocacy groups are optimistic, but given the Administration record on civil liberties to this point, I'm not sure why.

The President, a Constitutional scholar, is doing what executives in the executive branch typically do - aggrandize their power in the manner of the previous occupant of the office. The courts and Congress need to do what's necessary to stop them. But when the previous President so flagrantly abused the privacy protections and civil rights of American citizens and violated the country's laws, you'd think that the new man on campus would trim his sails a little bit.

If You've Done Nothing Wrong, You Have Nothing To Worry About

Last week, the Department of Homeland Security released a report on right-wing extremism, being fueled by the recession and the disturbing increase in activity from white supremacy groups after the election of the nation's first black President. Basically, fear and economic uncertainty breed a certain strain of anger that could morph into violence. And in particular, the targets here are anti-government hate groups, who may recruit and radicalize American citizens, including veterans.

Of course, this has set off conservative media, who claim that the President is directly targeting conservatives with this report. Never mind that the report initiated with the Bush Administration, and was a companion to a similar report on left-wing groups potentially using cyber-attacks (Here's a separate report referring to left-wing groups back in 2001). Somehow conservative media groups take a look at murderous extremists like Timothy McVeigh and see themselves. Here's Dave Neiwert, an authority on the subject:

Because, you know, the report -- which in fact is perfectly accurate in every jot and tittle -- couldn't be more clear. It carefully delineates that the subject of its report is "rightwing extremists," "domestic rightwing terrorist and extremist groups," "terrorist groups or lone wolf extremists capable of carrying out violent attacks," "white supremacists," and similar very real threats described in similar language.

Nothing about conservatives. The word never appears in the report.

Because, you know, we always thought there was a difference between right-wing extremists and mainstream conservatives too. My new book, The Eliminationists: How Hate Talk Radicalized the American Right, does explain that the distance between them has in fact shrunk considerably, thanks to the help of people like Malkin [...] The report itself, in fact, is all about accurately identifying very real looming threats. And, while it's obvious Malkin hasn't been paying attention, there in fact is considerable data coming over the transom to indicate that there's a real problem looming with the far right.

Don't forget: Before he'd even been sworn into office, we had skinheads [photo above] being arrested for plotting Obama's assassination.

Those who are slightly smarter than to describe themselves in the same breath as neo-Nazis are trying to shift the issue and claim that the report attacks veterans. Some good examples of this whining are Joe Scarborough, who said the Obama Administration is "more focused on targeting veterans than on protecting our border," and Newt Gingrich, who claimed that the White House "used terrorism to describe worrying about Americans but the word has been banned for describing foreigners." To their credit, some conservatives have maintained their sanity in discussing a report targeting violent extremist groups with a stated goal and long history of committing acts of terrorism.

Now, I think there is a potential danger of government over-reaching in the name of national security when it comes to monitoring citizen groups. I've ALWAYS thought so. That's why the utter hypocrisy coming from the right on this issue is too insane to ignore.

The political faction screeching about the dangers of the DHS is the same one that spent the last eight years vastly expanding the domestic Surveillance State and federal police powers in every area. DHS -- and the still-creepy phrase "homeland security" -- became George Bush's calling card. The Republicans won the 2002 election by demonizing those who opposed its creation. All of the enabling legislation underlying this Surveillance State -- from the Patriot Act to the Military Commissions Act, from the various FISA "reforms" to massive increases in domestic "counter-Terrorism" programs -- are the spawns of the very right-wing movement that today is petrified that this is all being directed at them.

When you cheer on a Surveillance State, you have no grounds to complain when it turns its eyes on you. If you create a massive and wildly empowered domestic surveillance apparatus, it's going to monitor and investigate domestic political activity. That's its nature [...]

I was in Minneapolis and St. Paul during the 2008 GOP Convention and witnessed first-hand massive federal police raids and "preventive" arrests of peaceful, law-abiding protesters and even the violent arrests of journalists, and I don't recall any complaints from Jonah Goldberg or Michelle Malkin. I don't recall Glenn Reynolds or Mark Steyn complaining that the FBI, for virtually the entire Bush administration, was systematically abusing its new National Security Letters authorities under the Patriot Act to collect extremely invasive information, in secret, about Americans who had done nothing wrong. Russ Feingold's efforts to place limits and abuse-preventing safeguards on these Patriot Act powers in 2006 attracted a grand total of 10 votes in the Senate -- none Republican.

Indeed, thanks to the very people who are today petulantly complaining about politically-motivated federal police actions (now that they imagine it's directed at them rather than at people they dislike), the Federal Government today has the power to eavesdrop on telephone calls and read the emails of American citizens without warrants; monitor bank records without court approval; obtain all sorts of invasive personal records, medical and financial, without Subpoenas; and obtain and store a whole host of other personal information about American citizens who have not been accused, let alone convicted, of having done anything wrong.

It was obvious that the same cheerleaders for excessive government surveillance, warrantless wiretapping, and police-state crackdowns would turn on a dime the moment that the federal apparatus transferred to Democrats. And it was obvious they would not fall back on their previous justifications - "If you've done nothing wrong, you have nothing to worry about," - once their party lost power. So they really have no right to complain at all. If they had any intellectual honesty at all, maybe they'd work with civil liberties groups to dismantle the national security state and put an end to the threat of concentrated power in the hands of the few. But they won't, because they're perpetual victims and rage addicts who just want to feel oppressed by their enemies.

Go West

The announcement today that Barack Obama will deliver his convention acceptance speech to a cheering crowd of 75,000 in Denver's Invesco Field is a telegraph that the Democratic nominee will concentrate a great deal of resources toward winning the West. There are increasing signs that the Rocky Mountain states are more winnable for a Democrat this year than in the recent past.

Superior voter mobilization is playing a role. Nevada's latest registration numbers show a five percent increase among Democrats over Republicans, a difference of 55,000 voters out of 1,000,000. In 2004, Republicans led in voter registration by one percent, and George Bush won the state by a touch more than that.

So are issues particular to the West. One of them is land use. When the Bush Administration is making closed-door deals to hand over hundreds of thousands of acres of forest to developers in the middle of Montana, residents are going to be angry, and take out those frustrations on the Republican Party. This subdivisioning of America simply won't stand among those Westerners who value open spaces and support land conservation.

Another major issue in the West concerns its natural libertarian streak. The quintessential Western Democratic candidate is a civil libertarian and a conservationist, who wants the rights of his citizens protected. Anchorage, AK mayor Mark Begich, running for the US Senate against Ted "Series of Tubes" Stevens, is an example of this kind of Democrat, and his plan to protect citizens' rights looks like a political winner:

The Begich plan includes:

Standing Up Against Government Interference - including warrantless wiretapping, the assault on habeas corpus, the pursuit of Real ID cards, and retroactive immunity for telecommunications companies that illegally helped the federal government spy on Americans.

No Surveillance on Law-Abiding Americans – Begich opposes efforts since 9/11 to take advantage of public fears, bypassing the courts and Congress to eavesdrop on Americans.

Repeal the Patriot Act – Begich believes national security resources should be built on human intelligence and Special Forces that will identify and respond to real threats of terrorism, not monitoring what books Americans read.

Restore Habeas Corpus – Begich called the Military Commissions Act, passed in 2006, the lowest point in our country’s response to the threat of terrorism. The Act suspends habeas corpus for millions of Americans, and that right needs to be restored.

There are as many electoral votes in Colorado, New Mexico and Nevada as there are in Ohio. New Mexico is actually the ultimate swing state, having chosen the winner in 22 out of its 24 Presidential elections (and really 23, since it narrowly went for Gore). The opportunities in the West, including in places like Montana and Alaska, are very great, and Sen. Obama is showing a desire to press those advantages.

Glennzilla 1, KO 0

Digby notes this blog-war between Keith Olbermann and Glenn Greenwald over Obama and FISA. It's pretty instructive. Olbermann basically hangs his hat on one aside comment from John Dean because he's really really smart, and then constructs this entire behind-the-scenes universe where Obama isn't objecting to the FISA bill because it's sloppily written and he'll still be able to prosecute the telecoms for criminal violations, just not civil ones, and he's doing the right thing by hiding this from everybody in the hope that "Republicans don't see the loophole."

You know, the loophole that Olbermann's been touting on his show nightly for a week.

Greenwald kind of eviscerates him on the substantive facts (there is deliberate immunization on only the civil liability, and Bush could pardon anyone for criminal but not civil charges, and furthermore just making up a story about Obama that you want to be right isn't anything but a justification), and John Dean himself basically comes down on the side of Greenwald. But I would add the fact that Keith Olbermann is a newsman. A reporter. He doesn't actually have to guess what Obama's thinking about this - he could use the full weight of the resources granted to him by NBC News and ASK him. Or ask someone connected to the campaign. There's no need for him to spin a yarn about this absent the facts.

Further, there are plenty of smart people out there who can pinpoint why this FISA bill is crap outside of the immunity provisions - Julian Sanchez is one of the better ones. Dean HIMSELF said on Olbermann's show that it was a win for the telecoms.

DEAN: Well, I think, you've got to give one for the terrorists on our Fourth Amendment. They really did some damage today in this so-called compromise, contrary to what the speaker said that really does hurt the Constitution. So, it's very troubling and it's not a good day for civil liberties, particularly.

To hang your hat on one comment about one portion of this bill and then rationalize Obama's Perfect Secret Plan reminds me of how neocons would claim that Bush struck bin Laden with a Patriot missile, but he can't tell anybody because he wouldn't want to make him a martyr, and this was all reported in the Guardian but they changed the story on the website, yadda yadda yadda.

Sorry Keith, but you need to take the blinders off. If you wanted to argue, like this former attorney, that the Patriot Act is the real problem and if we're depending on FISA to save the Fourth Amendment that we've already lost it, fine. That's a colorable argument. But the fantasy of Valiant Obama finding all the bad guys and stopping them with his Super-Heat Vision is, you know, just that. A fantasy. And the sooner you recognize it the better.

Civil Liberties, Checks and Balances Making A Comeback

This week we have seen a couple court cases that strike back at the Bush Administration's grabbing of new and extreme executive powers for the executive branch. A federal judge demanded that the Administration provide documents to the court relating to an ACLU lawsuit against the government's warrantless spying program. The government sought to dismiss the case based on the state secrets privilege, and denied even those in the court with security clearance to see the documents requested under the Freedom of Information Act.

While the court is certainly sensitive to the government's need to protect classified information and its deliberative processes, essentially declaring "because we say so" is an inadequate method for invoking Exemption.

Then, a major portion of the Patriot Act was struck down.

A federal judge struck down parts of the revised USA Patriot Act on Thursday, saying investigators must have a court's approval before they can order Internet providers to turn over records without telling customers.

U.S. District Judge Victor Marrero said the government orders must be subject to meaningful judicial review and that the recently rewritten Patriot Act "offends the fundamental constitutional principles of checks and balances and separation of powers."

This specifically deals with National Security Letters, which implements a gag order on those businesses summoned with one. No grand jury subpoena or judge's order was required to issue a National Security Letter, meaning the government could deploy them at will to force businesses to turn over customer records without oversight. These letters were previously shown to be misapplied by the FBI.

Even the long-ago-forgotten LEGISLATIVE branch got into the act by criticizing the new use of spy satellite technology.

Senior House Democrats called on the Bush administration yesterday to delay a planned Oct. 1 expansion of the use of powerful satellite and aircraft spy technology by local and federal law enforcement agencies, challenging the plan's legality and charging that the administration is failing to safeguard the privacy of Americans.

House Homeland Security Committee Chairman Bennie Thompson (D-Miss.) and two Democratic subcommittee chairmen jointly asked the Department of Homeland Security to provide the legal framework for the domestic use of classified and military spy satellites, and to allow Congress to review privacy and civil liberties protections.

"You let this thing go, it may be another blank check to the executive. It may morph into things that will terrify you if you really understand the capabilities of satellites," said Rep. Jane Harman (Calif.), former ranking Democrat on the House intelligence committee.

Next thing you know, they'll start fighting efforts to give away massive new spying powers to the President!

How Many Little-Known Provisions Of The Patriot Act Are There?

Another one was unearthed today, giving Alberto Gonzales the power to finally realize his dreams of killing more people.

The Justice Department is putting the final touches on regulations that could give Atty. Gen. Alberto R. Gonzales important new sway over death penalty cases in California and other states, including the power to shorten the time that death row inmates have to appeal convictions to federal courts.

The rules implement a little-noticed provision in last year's reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use "fast track" procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court.

I ask again, does anyone in Congress read these bills? Are we going to read in the paper come January 2009 that another little-known provision sets up a House of Bush line of succession that conveys lifetime executive branch status on Queen Jenna and Princess NotJenna?

Death penalty cases are consistently overturned, as the flawed system has disproportionately convicted innocent men and women who were too poor for effective representation. Under the new system, America will become more like Texas was under George W. Bush, when his counsel - yep, Abu Gonzales! - would write perfunctory clemency summaries that were scrupulously ignored.

The death penalty system in this country is a mess, and until that is sorted no new powers to execute the potentially innocent should be given to anyone, least of all Abu G.

UPDATE: The article does make the point that this spins off of the "Effective Death Penalty Act" of 1996, signed into law by Bill Clinton, which was an opening to kill people faster (I think it came right out of the Oklahoma City bombing case and the attendant fearmongering).

Just One More Unaccountable Appointment Before I Go

The one, and perhaps only, hard piece of accountability that has come out of the widening US Attorney scandal is that the Congress passed legislation striking out the provision in the PATRIOT Act that allowed the Justice Department to appoint replacement federal prosecutors without seeking Senate confirmation. The new law passed in both Houses with expansive, veto-proof majorities (94-2 in the Senate, 306-114 in the House). Any veto would be overridden, so the President has no choice but to sign the bill.

Except he hasn't yet, and the hip-pocket veto has enabled Abu G to strike again - right in my own backyard of Los Angeles.

In a Senate Judiciary Committee business meeting Thursday morning, Senator Patrick Leahy (D-VT) revealed that Attorney General Alberto Gonzales once again used an interim appointment authority at the heart of the US Attorneys controversy that Congress banned in a bill sent to the President for signature on June 4 [...]

Tracy Schmaler, a spokeswoman for Senator Leahy, clarified the situation in an e-mail to RAW STORY.

"It just so happens the committee got notice yesterday, that on June 16, George Cardona's 210 days as Acting U.S. Attorney in the Central District of California will have run out and the Attorney General will appoint him as an interim U.S. Attorney at that time. (i.e. still using the end-run authority because Bush has slow-walked signing the bill)," she wrote.

The Cardona appointment is interesting, to say the least. It was reported in the LA Times just two weeks ago that a new hire for Cardona's position was imminent. The Los Angeles DA Steve Cooley called the pick, Thomas O'Brien, "the most apolitical person selected to that job in quite some time." Remember that the vacancy here was made by Debra Wong Yang's departure to Republican law firm Gibson Dunn, the same firm whose client was Rep. Jerry Lewis, who Yang was investigating at the time.

So Lewis' team had already bought out Yang (allegedly!), and now they were faced with the prospect of a hard-charging independent former DA in the role. That must not have sat well with him. So did Lewis tell the Justice Department to keep their handpicked loyalist in place until he made his way out of Congress (he's rumored to be retiring)?

Marcy Wheeler also sees another angle here.

Finally, the move is especially curious because Gerry Parsky, a bigwig Republican who heads a Commission that picks judicial appointees in CA, has been particularly cranky about being left out of the process of naming USAs. And DOJ already went around him on this position specifically.

Once Yang resigned in November to pursue private law practice, it was up to the commission to make recommendations to the White House and the Justice Department. But Sampson and Goodling tried to generate candidates of their own. Interviews were scheduled with half a dozen people, many of whom had held political appointments in the department.

Parsky did not respond to e-mailed questions about his role in the process.

After word of the interview schedule leaked, Parsky called the White House and the Justice Department to complain, according to a person familiar with the process who requested anonymity because it involves a personnel matter. Goodling was allowed to proceed with the interviews, but was told she had to tell the candidates that they would have to reapply through the commission.

Ultimately, the commission is believed to have recommended two candidates; the only one interviewed by the Justice officials in Washington was a career prosecutor who has headed the criminal division of the Los Angeles office. The White House has not said whom it will nominate for the post.

Some people close to the selection process suspect Goodling and Sampson were attempting an end-run around the commission to install a politically connected Washington insider, possibly by using a law that permitted the attorney general to appoint interim U.S. attorneys without Senate oversight.

Indeed, Parsky was on board with the Thomas O'Brien appointment, according to the recent LA Times article. Until it all fell through.

What the hell's going on here? Why is it so important to keep George Cardona in the Los Angeles USA seat, in defiance of a law passed by over 85% of Congress? Does this have to do with investigations of members of Congress like Lewis (and, potentially, Ken Calvert)? Will there be an effort to suppress the vote in the extremely ethnically diverse region, and must Cardona be the point person for that? It's very, very curious.

A First Step

The House overwhelmingly passed a bill eliminating a provision in the Patriot Act that allows the President and the Justice Department to replace a US Attorney without Senate confirmation. The voting margins in the House and Senate were well over 2/3, so I expect that the President will have no choice but to sign (though, watch for the signing statement on this one).

So the punditocracy idiots who claim that Democrats are doing "investigation, not legislation" fail to see the relationship between the two. First of all, this is legislation. Second of all, investigation IS legislating, under the duties prescribed to Congress.

I also found this interesting (h/t to Thom Hartmann, where I first heard this).

The danger then consists merely in this: the president can displace from office a man whose merits require that he should be continued in it. What will be the motives which the president can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be im-peachable by this house, before the senate, for such an act of mal-administration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be that he may fill the place with an unworthy creature of his own. Can he accomplish this end? No; he can place no man in the vacancy whom the senate shall not approve; and if he could fill the vacancy with the man he might chuse, I am sure he would have little inducement to make an improper removal.

That was James Madison in 1789, on the floor of the House of Representatives. Democrats just took one more step to restore the Constitution. A first step.

Iglesiasgate: White House in Full Backpedal

The central legislative shift that enabled the Justice Department to hire and fire US Attorneys without Congressional oversight was a provision tucked into the back of the re-authorized Patriot Act at the last minute. This allowed DoJ to hire interim replacements for the purged prosecutors indefinitely. Well, with the criticism of this purge at a fever pitch, the administration is beating a fast retreat away from that legislation and away from the policy as a whole.

Slapped even by GOP allies, the Bush administration is beating an abrupt retreat on eight federal prosecutors it fired and then publicly pilloried....

The Justice Department is shifting from offense to accommodation.

"In hindsight, we should have provided the U.S. attorneys with specific reasons that led to their dismissal that would have helped to avoid the rampant misinformation and wild speculation that currently exits," Justice Department spokesman Brian Roehrkasse said Friday. "We will continue to work with Congress to reach an accommodation on providing additional information."

It was a striking reversal for an administration noted for standing its ground even in the face of overwhelming opposition.

The Attorney General has even given the go-ahead to change that provision of the Patriot Act and restore Congressional oversight for US Attorneys. I would guess that Gonzales got into a meeting with members of the Senate Judiciary Committee, realized exactly how fucked he was, knew that he couldn't stay on the job any longer unless he changed his tune, and came out of it sounding like the Great Conciliator.

It's important to note that none of this would be coming to light under a Republican Congress. There would be grumbling from some circles, but the GOP leadership would dismiss it as politics, and would sweep the whole thing under the rug. Elections have consequences, and in this case, the consequences were great indeed.

The White House was attempting to turn the US Attorney into a political position and an arm of the RNC. In some cases they succeeded in doing so, as Paul Krugman notes.

The bigger scandal, however, almost surely involves prosecutors still in office. The Gonzales Eight were fired because they wouldn’t go along with the Bush administration’s politicization of justice. But statistical evidence suggests that many other prosecutors decided to protect their jobs or further their careers by doing what the administration wanted them to do: harass Democrats while turning a blind eye to Republican malfeasance.

Donald Shields and John Cragan, two professors of communication, have compiled a database of investigations and/or indictments of candidates and elected officials by U.S. attorneys since the Bush administration came to power. Of the 375 cases they identified, 10 involved independents, 67 involved Republicans, and 298 involved Democrats. The main source of this partisan tilt was a huge disparity in investigations of local politicians, in which Democrats were seven times as likely as Republicans to face Justice Department scrutiny.

The executive branch has been refigured under this President and turned into an instrument used by a political party to get back at their enemies. Parties have their own infrastructure. They don't need their own branch of government as well.

How The Bush Administration Follows The Law

There are a bunch of reports out in this past week that show the reckless disregard for the laws of the United States displayed by the Bush Administration. Consider this:

• The inspector general for the Justice Department has found that the FBI has misused the Patriot Act by failing to comply with internal regulations in an astonishing 10% of all "national security letters," which allow them to obtain personal telephone, email and bank records of suspected terrorists.

• The Bush Administration deliberately removed 3 citizens from a 2004 re-election event in Denver as part of White House policy, despite the fact that the three had tickets to the event, did nothing to disrupt it and were solely removed for having an anti-Bush bumper sticker.

• FEMA will have to sell 40,000 trailer homes, which never reached families in the aftermath of Hurricane Katrina, for 40 cents on the dollar, and many of the others have rotted away and sunk into the mud in various storage sites.

• The head of the US General Services Administration is under investigation for cronyism, giving jobs to favored friends and using the agency to help Republican candidates.

• Internal memos at the Federal Fish and Wildlife Service demand that officials not talk about climate change or the endagered habitat of polar bears.

• Secret CIA interrogations were held at a former Soviet site in Poland, and US and British officials asked the Polish government to keep it quiet, according to secret memos. In addition, Human Rights Watch has found that scores of detainees are missing and unaccounted for at either CIA prisons or Guantanamo.

This is all in the space of ONE WEEK, and it includes corruption, cronyism, politicizing federal services and organizations, ripping off the American taxpayers, breaking statutes and regulations governing conduct, impinging on American's civil liberties, disappearing prisoners, crushing dissent, and violating maybe every single Amendment in the Bill of Rights.

Just a snapshot. And as they say, a fish rots from the head down. Here's Glenn Greenwald at Salon:

That the FBI is abusing its NSL power is entirely unsurprising (more on that below), but the real story here -- and it is quite significant -- has not even been mentioned by any of these news reports. The only person (that I've seen) to have noted the most significant aspect of these revelations is Silent Patriot at Crooks & Liars, who very astutely recalls that the NSL reporting requirements imposed by Congress were precisely the provisions which President Bush expressly proclaimed he could ignore when he issued a "signing statement" as part of the enactment of the Patriot Act's renewal into law. Put another way, the law which the FBI has now been found to be violating is the very law which George Bush publicly declared he has the power to ignore [...]

The Bush administration has created vast and permanent data bases to collect and store evidence revealing the private activities of millions of American citizens. When the FBI obtains information essentially in secret -- with no judicial oversight -- that information is stored in those data bases. This is all being done by the executive branch with no safeguards and no oversight, and the little oversight that Congress has required has been defiantly and publicly brushed aside by the President, who sees legal requirements as nothing more than suggestions or options which he will recognize only if he chooses to. That is the constitutional crisis that we have endured under virtually the entire Bush presidency -- the crisis which, for the most part, our mainstream political and media elite have collectively decided not to acknowledge.

The story here is not merely that the FBI is breaking the law and abusing these powers. That has long been predicted and, to some degree, even documented. The story is that the FBI is ignoring the very legal obligations which George Bush vowed were not obligations at all, but mere suggestions to be accepted only if he willed it. It is yet another vivid example proving that the President's ideology of lawlessness exists not merely in theory, but as the governing doctrine under which the executive branch has acted, time and again and as deliberately as possible, in violation of whatever laws it deems inconvenient.

The biggest question for a new President in 2008 is whether or not they will sanction this culture of lawlessness, or if they will disavow the concept of the unitary executive and the ability to nullify American law through signing statements. Only then will we have a return to the American system of government as we know it. All of these examples of Administration lawbreaking can be traced back to the fact that the chief executive holds the law in contempt, and views it as subservient to his objectives and policies. Until we change that mindset, we can hardly be said to be living in a democracy.

Prosecutor Purge Update

It's pretty clear that this gambit to fire US Attorneys who weren't sufficiently loyal to the President and the Republic Party is falling apart. First, the most egregious replacement, a former oppo research specialist and aide to Karl Rove who was installed as US Attorney in Arkansas, gave up the post rather than face a confirmation fight in the Senate. Actually he said he would stay on until a replacement is confirmed. Under current law, the White House never has to pick a replacement; that's the whole point. Under a little-seen provision of the Patriot Act, the Justice Department could install interim US Attorneys without having to go through the Senate.

The upshot of this purge is that the law will change.

Congressional Democrats and some Republicans are trying to change part of the USA Patriot Act that allows the Bush administration to fire and replace federal prosecutors indefinitely without Senate confirmation.

Freshly briefed by the Justice Department on the forced resignations of some of the seven U.S. attorneys since the act took effect, Senate Democrats planned to bring a bill to the floor Thursday that would impose a 120-day deadline on the amount of time a replacement could serve without Senate confirmation.

Of course, Sen. Reid tried to schedule a vote on this yesterday, but Sen. Jon Kyl blocked it on constitutional grounds. See, if the executive branch names no replacement within 120 days, under the new bill a federal judge would step in. Kyl claimed that raises separation of powers issues. Sen. Patrick Leahy had a good response to this:

I have heard not a word from the apologists who seek to use the Constitution as a shield for these activities about what the Constitution says. The Constitution provides congressional power to direct the appointment power. In Article II, the part of the Constitution that this Administration reads as if it says that all power resides with the President, the President’s appointment power is limited by the power of Congress. Indeed, between its provisions calling for appointments with the advice and consent of the Senate and for the President’s limited power to make recess appointments, the Constitution provides: “But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the Heads of Departments.” Thus, the Constitution contemplates exactly what our statutes and practices have always provided. Congress is well within its authority when it vests in the courts a share of the appointment power for those who appear before them.

Funny how the separation of powers only comes up in the context of protecting executive authority, isn't it?

Carol Lam, who indicted Brent Wilkes and Dusty Foggo this week, has apparently moved on to work for Qualcomm, though some Democratic lawmakers would like her to prosecute the case as outside counsel. Regardless of that, Kyl and the other Bush apologists aren't going to be able to hold back this tide for long. The great prosecutor purge of 2007 will end, and another Administration power grab will be overturned. The problem is that they just don't quit.