The Obama administration has blessed three controversial provisions of the Patriot Act that expand the government’s reach in counter-terrorism investigations.
In a Sept. 14 letter to lawmakers, Assistant Attorney General Ron Weich said the Justice Department supports the use of roving wiretaps, the authority to access business records and the ability to track so-called “lone-wolf” terrorists, or those without visible ties to a foreign terrorist organization. The provisions sunset at the end of the year.
The Justice Department’s position was expected. During his confirmation hearings, Attorney General Eric Holder told members Congress he would review the provisions but said he would likely endorse their re-authorization.
“The tools that we have been given by Congress in FISA are important ones, so I would look at all three and make the determination of whether I would be able to support them,” Holder told member of the Senate Judiciary Committee. “I expect that I will.”
Weich said the administration is willing to consider changes that would increase privacy protections, as long as they preserve the effectiveness of the tools. Still, his letter embittered civil libertarians who have long opposed the measures.
“We are very encouraged to learn that the Obama administration has stated a willingness to discuss reforming the deeply flawed provisions in the Patriot Act, though we are disappointed at its support for the reauthorization of the three expiring provisions,” Michael Macleod-Ball, acting director of the ACLU’s Washington Legislative Office, said in a statement.
A refresher on the three provisions:
- Lone wolf: Allows government to track a target without any discernible affiliation to a foreign power, such as an international terrorist group. The provision only applies only to non-U.S. persons. It has never been used in a FISA application.
- Business records: Allows investigators to compel third parties, including financial services and travel and telephone companies, to provide them access to a suspect’s records without the suspect’s knowledge. From 2004 to 2007, the FISA court issued about 220 orders to produce business records.
- Roving wiretaps: Allows the government to monitor phone lines or Internet accounts that a terrorism suspect may be using, whether or not others who are not suspects also regularly use them. The government must provide the FISA court with specific information showing the suspect is purposely switching means of communication to evade detection. The government has applied for roving wiretaps an average of 22 times a year since 2001.
The House and Senate Judiciary committees are scheduled to hold hearings on the provisions next week. Sen. Patrick Leahy (D-Vt.), the Senate Judiciary chairman, said in a statement today he was “pleased that the Justice Department has signaled its willingness to work with Congress” on the issue.
This post has been updated.
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Eric Holder won Senate confirmation as Attorney General tonight by a vote of 75 to 21. Here’s the Senate roll call vote:
|Not Voting – 3|
|Begich (D-AK)||Kennedy (D-MA)||Martinez (R-FL)|
Attorney General nominee Eric Holder “assured senior Republican senators that he won’t prosecute intelligence officers or political appointees who were involved in the Bush administration’s policy of ‘enhanced interrogations,’” Eli Lake reports today in The Washington Times:
Holder’s assurances were apparently key to moving the nomination forward, the Times said:
Sen. Christopher “Kit” Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview … that he will support Eric H. Holder Jr.’s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama’s Justice Department will not prosecute former Bush officials involved in the interrogations program.
But wait a minute. This isn’t exactly what Holder, who has said he considers waterboarding to be torture, told Republican Judiciary members in written responses to follow-up questions from his Jan. 15 confirmation hearing. He didn’t rule out any prosecutions. He just said it would be “exceedingly difficult” to prosecute those officials who relied on DOJ legal advice to carry out orders. He didn’t say anything about the officials who ordered up those orders.
Here’s what he wrote in a response to Sen. Jeff Sessions (R-Ala.):
“I believe deeply in the principle that no person is above the law. But decisions to prosecute must depend on the facts. Government officials must do everything they can to comply with the law. It is, and should be, exceedingly difficult to prosecute those who carry out policies in a reasonable and good faith belief that they are lawful based on assurances from the Department of Justice itself.”
UPDATE: Mike Isikoff and Mark Hosenball report in Newsweek that a Holder aide is denying the Washington Times report.
“Eric Holder has not made any commitments about who would or would not be prosecuted,” an aide to Holder told NEWSWEEK. “He explained his position to Senator Bond as he did in the public hearing and in his responses to written questions.”
ANOTHER UPDATE: Sen. Russ Feingold (D-Wisc) just said on MSNBC’s Rachel Maddow Show the White House had assured his staff the Washington Times report was wrong. “They indicated that’s not the case. He [Holder] certainly did not give an assurance there’d be no prosecution. So I don’t think he got that assurance, and that Sen. Bond should rely on such assurance.”
The Senate Judiciary Committee approved Holder’s nomination today, 17-2. The full Senate is expected to confirm him easily in a vote as early as Thursday.
Republicans have questions about whether he’d prosecute intelligence agents for warrantless wiretapping and torture. The Senate Judiciary Committee vote was supposed to be this afternoon, but it’s now delayed a week.
Afternoon session was very agreeable. Opened with Sen. Lindsey Graham (R-S.C.) telling Holder, “I’m almost ready to vote for you right now.” Holder agreed with Graham there is a role for military justice for captured combatants, while habeus corpus applies to accused terrorists in the domestic justice system. Enemy combatants “should be held off the battle field as long as they are dangerous,” Graham said. “Do you agree with that?” Holder: “I do.” Sen. John Cornyn (R-Tex.) an advocate of strengthening the Freedom of Information Act, said: ”I think you agree that you’d work with us to open up the government to make it more transparent and more accountable.” Holder, who said earlier he’d rescind John Ashcroft’s 2001 memo directing agencies to use any reasonable justificiation for denying a FOIA request, agreed. Sen. Orrin Hatch (R-Utah) told Holder: “You’ve acquitted yourself well I support you.”
AG-nominee Eric Holder said in his opening statement before the Senate Judiciary Committee, referring to controversies over Clinton pardon recommendations: “My decisions were not always perfect. I made mistakes.” He also thanked “the thousands of career employees at the Department of Justice. They have been my teachers, my colleagues and my friends.”
Holder vowed to preseve DOJ’s independence. But when asked if he would support a criminal investigation of Bush-era legal policy, he said he didn’t want to “criminalize policy differences” between the Bush and Obama admininstrations. He did say the USG should stay “within the dictates” of the FISA on wiretapping. That morning a previously secret August 2008 decision by the Foreign Intelligence Surveillance Court of Review was released. The court said the government did have authority to intercept international communications without a warrant, even if American citizens were involved.
Unlike Mukasey, he didn’t equivocate on waterboarding, calling it “torture.” He said he would personally review the decision by the US Attorney’s office in DC not to prosecute Brad Schlozman for what the DOJ IG said were his “false statements” to Congress about politicization of the Civil Rights Division. Sen. Arlen Specter (R-Pa.) complained that Judiciary Chairman Pat Leahy (D-Vt.) had blocked subpoenas for former pardon attorney Roger Adams and former US Attorney in New York, Mary Jo White, to discuss their interaction with Holder on controversial Clinton-era pardons.
Eric Holder at his confirmation hearing today singled out a 23-year former veteran of the Civil Rights Division, Bill Yeomans, as the kind of person he’d like to see back in charge at DOJ.
In answering questions from Sen. Chuck Schumer (D-NY) about the Brad Schlozman affair, Holder said he planned to “devote a hute amount of time looking at the Civil Rights Division and restoring that division.” Then he added: “I see someone sitting behind you, Billy Yeomans. He’s the kind of person who should be supervising people, teaching” young lawyers. Yeomans left DOJ in 2005 and is now Sen. Edward Kennedy’s (D-Mass.) Judiciary Committee counsel. He’s been a vocal critic of politicization of the division.
I wonder if Barack Obama isn’t playing a bit of bait-and-switch with his comments that he’s inclined to “look forward as opposing to looking backwards” on torture policy and other potential crimes committed by Bush administration officials. In that same interview, on last Sunday’s ABC’s “This Week With George Stephanopoulos,” he also said Eric Holder will be “making some calls” in the interests of the American people and the independence of the Justice Department.
OBAMA: “My general view when it comes to my attorney general is he is the people’s lawyer. Eric Holder’s been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So, ultimately, he’s going to be making some calls, but my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past.” (more…)
I was struck by the number of Republicans who played prominent roles in the impeachment of Bill Clinton who vigorously support Eric Holder’s nomination for Attorney General. Most of them have thriving corporate legal, lobbying and/or consulting practices as well, with lots of real and potential client issues before Justice.
Those writing letters to the Senate Judiciary Committee in support of Holder’s confirmation include two House managers of Bill Clinton’s impeachment – former Reps. Asa Hutchison and Bob Barr (now a Libertarian and GOP critic), as well as Paul McNulty, who served as chief spokesman for the House Judiciary Committee during impeachment long before he became embroiled in the US attorneys scandal and had to step down as deputy attorney general. Oh, and Manus Cooney signed a letter of support, too. Cooney was Orin Hatch’s top aide on the Senate Judiciary Committee when the Senate voted againt convicting Clinton, realizing it was political suicide. Cooney lobbies on behalf of tech companies and others with patent and antitrust issues before DOJ. One of his clients is agriculture giant Monsanto.
Also writing in favor of Holder: White & Case partner George Terwilliger, Victoria Toensing and her husband Joe DiGenova. All three were vocal Clinton critics who helped built the public case for impeachment. They now have so many corporate clients with interests before DOJ I wouldn’t have time in this brief post to tally them all. Just check out Terwilliger’s law firm page here.
(UPDATE: Now former Solicitor General and long-time Republican activist Ted Olson has filed a letter, on Jan. 14, for Holder. In the 1990s Olson sat on the board of the conservative American Spectator magazine when it launched the infamous “Arkansas Project” funded by Richard Melon Scaife that dredged up the Paula Jones sexual harassment allegations that eventually snowballed into Clinton’s impeachment.)
And: former special counsel Charles LaBella, who recommended in 1998 that Janet Reno appoint an independent counsel to investigate alleged Clinton administration and Democratic Party campaign finance abuses, wrote a letter for Holder, and former FBI Director Louie Freeh signed one, too. Reno declined to appoint an independent counsel and clashed with Freeh about that decision.
Holder was considered an honest broker by conservatives when he was deputy assistant attorney general during the Clinton scandals. For example, he advised Janet Reno to allow Ken Starr to expand his independent counsel investigation into the Monica Lewinsky affair, which led to Clinton’s impeachment.
There’s a cameraderie in Washington circles that defies even the most bitter partisanship. It’s bad business to be enemies, for one thing. Still, the ironies abound. If confirmed as AG, Holder will have to decide whether to investigate Bush-era abuses of the “rule of law” – the principle that conservative ideologues brayed about so disengenuously after Clinton lied to a grand jury about his affair with Lewinsky. Later, when it was a Republican president disregarding the rule of law — with much dire consequences for the country and world — this Greek chorus (except for the apostate Bob Barr) was slient. In fact, Terwilliger later became defense lawyer to former AG Alberto Gonzales, one of the chief (if hapless) villains in the whole affair. Gonzales faces an inquiry from a special prosecutor about whether he testified truthfully to Congress about his role in warrantless domestic surveillance and the firing of the US attorneys.