Posts Tagged ‘Jerrold Nadler’
Friday, July 16th, 2010

Two Democratic members of Congress introduced a bill Thursday that would prohibit the use of racial profiling and authorize the Justice Department to provide grants to state and local law enforcement to discourage the practice.

The measure, introduced by Rep. John Conyers, Jr. (D-Mich.) and Rep. Jerrold Nadler (D-N.Y.), seeks to eliminate law enforcement practices that single out individuals for heightened scrutiny based on race, ethnicity, religion or national origin. Similar legislation was introduced in 2007.

Nadler said that focusing on such characteristics distracts and diverts the attention of law enforcement in ways that can prove disastrous to public safety.

“Racial profiling not only unfairly targets people for different treatment by law enforcement based on traits such as race, nationality, or religion, but it is bad policing,” Nadler said. “It simply is not an effective way to identify and apprehend criminals.”

Conyers said the recent passage of Arizona’s new immigration law, which the Justice Department is challenging, “crystallized the terms of the profiling debate.”

“The debate over racial profiling has become a central element in a much larger history of adversarial relationships between the police and communities of color,” Conyers said. “Over the past two decades, the tensions between police and minority communities have grown as allegations of racial profiling by law enforcement agents, sometimes supported by data collection efforts, have increased in number and frequency.”

Under the legislation, the Justice Department would provide grants to state and local governments to develop and implement practices, such as early warning systems, technology integration or other management protocols that discourage profiling. The bill also would require the Attorney General to issue periodic reports on any ongoing discriminatory profiling practices.

Last fall, Attorney General Eric Holder initiated an internal review of the Justice Department’s Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, which was issued in 2003 and has been the subject of criticism.

“I’m committed to ensuring that department policy allows us to perform our core law enforcement and national security responsibilities with legitimacy, accountability and transparency,” Holder told the American-Arab Anti-Discrimination Committee last month.

A Justice Department spokeswoman could not immediately comment on the progress of that review.

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Friday, March 19th, 2010

New York Democratic Rep. Jerrold Nadler plans to renew a push for legislation that would change the way the Justice Department handles allegations of misconduct.

New York Rep. Jerrold Nadler (D) will advocate for changes to internal DOJ investigations (photo by Ryan J. Reilly).

The measure championed by Nadler would allow the Office of the Inspector General the right of first refusal to investigate misconduct claims. Under the current structure, the Justice Department’s internal review board, the Office of Professional Responsibility, investigates all attorney misconduct allegations.

Supporters of the change say the Inspector General has much more autonomy given his unlimited term, greater resources and the fact that he reports to both Congress and the Attorney General, whereas OPR is much more susceptible to interference from political leaders.

Defenders of OPR, including Attorney General Eric Holder, counter that the specialized office is necessary because it has developed an expertise in applying complicated ethical and legal standards to DOJ employees and that allegations of misconduct, many of which are frivolous, should be handled out of the public realm.

Some members of Congress have tried and failed to give more power to the Inspector General before. The renewed interest is the result of a recent OPR investigation into the Bush administration’s interrogation policies. In a long-awaited report, OPR found that Bush-era Office of Legal Counsel lawyers Jay Bybee and John Yoo committed professional misconduct by authoring memos that approved the use of enhanced interrogation techniques. But that finding was overruled by David Margolis, a career employee serving as Associate Deputy Attorney General, the highest ranking non-political position in the Justice Department. In a memo overturning the finding, Margolis said he agreed that the authors’ work was slipshod and that they demonstrated “poor judgment” but not misconduct.

Nadler said the recent OPR report highlighted the need for change because of how easily a report can be overruled by just one man.

“I met with my staff … and said why don’t we introduce that bill?” Nadler told Main Justice.

Such a bill, Nadler’s staff told him, was actually quietly introduced by House Judiciary Committee Chairman John Conyers (D-Mich.) in October. HR 3847 was referred to the House Committee on Oversight and Reform on Oct. 20, and has sat there since. Now Nadler plans to make a new push. Nadler does not serve on the Oversight panel.

“We’re going to pursue that,” said Nadler.

Long Running Disagreement

The tussle between OPR and the Inspector General is not new.

The Inspector General’s office is an independent entity within the department that publishes public audits and reports on DOJ programs. Congress and the executive branch have limited oversight over the DOJ’s Inspector General; the head of the office is selected by the president and confirmed by the Senate, and can be removed only by the president himself. The office has the authority to issue subpoenas to compel testimony or documents for investigations, but it is specifically prohibited from investigating the department’s lawyers for misconduct related to their official duties.

Only OPR — which answers to the Justice Department’s political leaders — can investigate Justice attorneys or other DOJ employees for misconduct. OPR does not have the ability to issue subpoenas and the results of investigations are not usually made public.

Much of the office’s workload remains a mystery.

While OPR is required by law to provide an annual report, the last one available is from fiscal 2007. The report is scrubbed of any identities.

In 2007, OPR received 906 complaints. The office determined that 207 of the matters, about 23 percent, warranted further review. OPR opened full investigations in 71 of those; the remaining 136, which are called “inquiries,” were resolved with no findings of professional misconduct.

Of the 75 investigations that were closed in fiscal 2007 — some of which took the investigators more than a year to finish — OPR found professional misconduct in only 23.

The report gives little to no detail on the subject of investigations.

“The matters opened as inquiries during fiscal year 2007 were remarkably diverse,” the report states. “Many of those matters did not involve a complaint against a department attorney. For example, some inquiries were based on allegations of whistleblower retaliation made by FBI employees. Others involved abuse of prosecutive or investigative authority by agents or unauthorized leaks to the media.”

OPR’s Toughest Critics

Some of OPR’s biggest detractors are federal judges.

Judge Mark L. Wolf, the chief judge of the District of Massachusetts, was forced to let two mob figures out of prison in 2003 after discovering that a federal prosecutor never told defense attorneys that the star witness in the murder trial had recanted his testimony.

An OPR investigation found the prosecutor’s conduct reckless but not intentional, and the attorney was privately reprimanded by the Massachusetts U.S. Attorney. But Wolf did not learn of the OPR finding until two years later and was highly displeased with the result.

Wolf wrote to the state bar disciplinary counsel and publicly released a letter to then-Attorney General Alberto Gonzales.

“In my view, a mere secret written reprimand by the United States attorney would not ordinarily be a sufficient sanction for the serious, repeated and consequential misconduct,” Wolf wrote in the 2007 letter.

Judge Emmet Sullivan pushed for reforms after prosecution errors in the Sen. Ted Stevens case. (Dominic Bracco II)

In a more recent case, U.S. District Judge Emmet G. Sullivan decided to open his own investigation into the botched prosecution of former Sen. Ted Stevens (R-Alaska) rather than rely on an OPR investigation.

Stevens was accused of failing to disclose gifts he received on his Senate Ethics form. He was convicted in October 2008, but after the trial a FBI whistleblower and many others accused the prosecution of mishandling evidence. Holder moved to dismiss the case, concluding that prosecutors improperly withheld evidence favorable to Stevens.

At an April 2009 hearing voiding Stevens’ conviction, Sullivan called the prosecution’s mistakes the worst mishandling and misconduct he had seen in his 25 years on the bench. Although the Justice Department had opened an internal OPR investigation, Sullivan said it was not enough. He appointed attorney Henry F. Shuelke III as an independent prosecutor to look into the matter.

“The court looks forward to receiving the results of the OPR investigation whenever that investigation concludes,” Sullivan said at the hearing. “But the events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no outside accountability.”

Holder Opposed Similar Bill

Efforts by Nadler or other lawmakers to press for enactment of Conyers’ bill will undoubtedly face opposition from the leadership of the Justice Department. A department spokeswoman declined to comment for this story.

Conyers’ legislation is similar to a 2007 measure introduced in the wake of the U.S. Attorney firing scandal.

That legislation, which dealt with inspectors general at all federal agencies, would have given Justice Department’s inspector general the authority to conduct legal ethics reviews.

But the legislation changed during Senate floor consideration, when the provision related to OPR was removed by Sen. Jon Kyl (R-Ariz.).

“I find it dubious that an OPR lawyer would be in any position to assess whether an Office of Legal Counsel opinion is legally correct or not,” said Kyl at the time. “I fear that OPR’s actions are influenced more by the toxic style of opposition attacks on the Justice Department in recent years, in which legitimate policy and legal disputes are recast as ethical lapses, rather than by a sound concern for the integrity of the Department.”

Kyl’s intervention came after the Justice Department and supporters from previous administrations raised objections to a stronger role for the Inspector General.

During the debate in 2007 on the inspector general legislation, Attorney General Eric Holder, then in private practice at Covington & Burling, wrote Sen. Joe Lieberman, one of the bill’s co-sponsors, in support of OPR. (A copy of the letter is embedded below.)

Holder closeup

Attorney General Eric Holder (photo by Ryan J. Reilly).

“I believe strongly that, far from curing the problems now under investigation, authorizing an IG to investigate the sensitive issues historically investigated by OPR would create additional opportunities for improper political concerns to influence law enforcement decisions,” Holder wrote.

“OPR has been recognized consistently as a strong, independent entity within the Department since its creation in 1975,” he continued. “Over the years, Attorneys General of both parties have considered proposal that OPR’s jurisdiction be given to the OIG, and have concluded that allegations OPR investigates, such as exercise of prosecutive discretion and legal judgment, should remain the mission of a dedicated staff of specialists responsible directly to the Attorney General.”

Margolis, who has overseen OPR as part of his role in the Deputy Attorney General’s office, is one of OPR’s biggest supporters.

In 2000, he testified along with other department officials that a bill to change the way misconduct cases were handled would be “profoundly unwise” and potentially unconstitutional. In his testimony he noted that OPR was subject to the “general supervision” of the Attorney General, and noted that the Attorney General has the final say regarding the release of information about the results of investigations.

After years of promoting the independence of OPR attorneys, his memo on the Bybee-Yoo report highlights what critics say is its major flaw — that it takes just one person to overrule OPR’s findings.

Inspectors General Want Change

Glenn A. Fine

Justice Department Inspector General Glenn A. Fine (photo by Ryan J. Reilly).

There are several people within the DOJ who support a stronger role for the Office of the Inspector General, including the inspector general himself.

Inspector General Glenn Fine declined to comment directly on the recent OPR report, but said that his views about the need for an independent inspector general are very public.

“I think this should be a bipartisan issue, and it’s something we have talked about for awhile. My views on this are well known. We’ll see what happens,” Fine told Main Justice last month. “I expect that when I’m asked about this, I’ll continue to state my position on this.”

The previous Inspector General agrees.

“The existence of OPR gives the Attorney General more control over internal investigations because it reports solely to the AG; by contrast, the Inspector General reports jointly to both the Attorney General and to Congress. In theory and in fact, the AG controls the OIG far less than he controls OPR,” said Michael Bromwich, who served as Inspector General during most of the Clinton administration and is now a partner at Fried Frank.

When he took on the role, Bromwich was promised that the Office of the Inspector General would absorb the Office of Professional Responsibility. That transition never happened because of internal opposition.

For 22 years Michael E. Shaheen served as chief counsel in the Office of Professional Responsibility, investigating big cases across the department including cases that took on the FBI and even the attorney general.

Shaheen, wrote Jim McGee and Brian Duffy in their book “Main Justice,” gained the reputation of a dragon slayer, and kept his independence because of his allies on Capitol Hill, including now-Vice President Joe Biden during his stint as chairman of the Senate Judiciary Committee and his Republican successor, Orrin Hatch of Utah.

So it was surprising when in 2007 Shaheen called for his former office to be abolished, telling NPR its functions should be merged with the Office of the Inspector General.

It pained him to say so, he said, but the Office of Professional Responsibility has been “plagued by a history of delays and bureaucratic layers imposed on it,” he said.

Shaheen died that same year. But Bromwich said Shaheen’s comments on OPR after so many years leading the office “sent a pretty powerful statement” about the need for change.

Joe Palazzolo and Leah Nylen contributed to this story.

Holder Letter

Monday, December 7th, 2009
Rep. Steve King (file photo by Ryan J. Reilly / Main Justice).

Rep. Steve King (file photo by Ryan J. Reilly / Main Justice).

In its lead editorial on Sunday, The Washington Times asked if “President Obama’s legal team is imploding due to a voter intimidation case involving the New Black Panther Party.”

The editorial from the conservative-leaning newspaper comes as House Republicans are working to keep alive  a controversy regarding the Justice Department’s handling of the case against members of the New Black Panther Party.

Members of the black separatist group stood outside a Philadelphia polling place last November in military-style fatigues. The government filed a civil lawsuit against several members of the organization in the waning days of the Bush administration.

During the early months of the new administration, career attorneys temporarily appointed by President Obama to leadership roles determined that just one case, against a defendant holding a nightstick, was sustainable and obtained an injunction against him. The other charges were dropped, and conservatives argued that those appointees were driven by political motivations.

“Holder and them have done a terrible job on this,” Rep. Frank Wolf (R-Va.) told The Washington Times. “This has just been handled so poorly. … You can’t hide these things. There is something wrong here. There is something very wrong. When it all comes out, I think it will be very bad.”

The Washington Times editorial page thinks the congressman is probably right.

A Justice Department spokesperson Monday declined to comment to Main Justice on the Washington Times editorial. On Friday, the chairman of the New Black Panther Party told The Associated Press that the now-dismissed civil lawsuit filed by the Justice Department against his organization had no merit because the party does not condone voter intimidation.

On Thursday, Republican members of the House Judiciary Committee pressed Civil Rights Division chief Tom Perez on the Justice Department’s handling of the case against the New Black Panther Party during his testimony before the panel’s Constitution, Civil Rights and Civil Liberties Subcommittee on a wide range of civil rights matters.

Perez was well prepared for the line of questioning, telling the subcommittee that the decision to drop the case was made by two career attorneys with more than 60 years of combined experience who concluded that the charges against two out of three defendants named in the original court filing charged were unsustainable. DOJ obtained an injunction against against the member of the New Black Panther Party who was holding a nightstick, which Perez said was the maximum penalty allowed under Section 11(b) the Voting Rights Act.

After being asked several times, Perez said he was amongst the millions who have seen the video either online or on television. He reminded the lawmakers that the department’s Office of Professional Responsibility is reviewing the matter and said he was looking forward to the report.

Rep. Steve King (R-Iowa), meanwhile, claimed that Perez had lied to the subcommittee during a heated exchange with Rep. Louie Gohmert (R-Texas) over the handling of the case. Perez said the injunction was the maximum penalty possible under Section 11(b). That is true,  agreed former Acting Assistant Attorney General for the Civil Rights Division Grace Chung Becker, but King and other subcommittee Republicans  argued that the injunction could have been broader and not just limited to Philadelphia, for four years, as the current injunction entails.

“I’m going to make this position, Mr. Chairman, I do not believe Mr. Perez was truthful with this panel, and I believe the question comes up as to whether we need to look into the penalty for being dishonest with this committee,” said King.

At that point, subcommittee Chairman Jerrold Nadler (D-N.Y.) gaveled King to order, saying that King was approaching or may have exceeded the rules of the House. After the hearing had adjourned, King told a staff member to get a clip of the exchange between Perez and Gohmert along with the written record of his testimony and make it “his Achilles heel.”

“I sat down and have been briefed on this case, and I can tell you that this case is the clear cut open and shut case of voter intimidation in the history of the United States of America,” King told Main Justice last Tuesday, a point he reiterated during the hearing. “That is no stretch, there’s nothing that even comes close, and the investigators will tell you that if they have a candid moment.”

Speaking further about the unnamed attorneys he’s spoken with, King told Main Justice that he’s “had very informed conversations with people that are very close to the case, and I’ve got to be cautious about the people I name.”

Video of a heated exchange is embedded below.

This article has been updated to note that the federal government filed a civil suit, not federal charges, against members of the New Black Panther Party.

Wednesday, November 18th, 2009
Associate Deputy Attorney General Donald Verrilli at a panel at American University today (Photo by Ryan J. Reilly).

Associate Deputy Attorney General Donald Verrilli at a panel at American University today (Photo by Ryan J. Reilly / Main Justice).

The Obama administration inherited approximately 20 state secrets cases from the Bush administration and is working to develop a stricter definition of the controversial legal privilege, Associate Deputy Attorney General Donald Verrilli said Wednesday.

The administration wants to ensure the privilege is only invoked when there are legitimate national security concerns, Verrilli said at a forum Wednesday.

Still, he acknowledged there has not been a bottom-line change from the Bush administration on the privilege, which the government can invoke to keep information out of public court records if it is deemed to be harmful to national security.

Speaking as part of a panel at American University’s Washington College of Law, Verrilli said the administration was working towards a “narrow tailoring” of the state secrets privilege. The goal is to assert it “to the minimal extent necessary,” he said, adding that as a matter of policy, the administration would not assert the privilege to cover up government wrongdoing.

But critics say they expected more from President Barack Obama, who campaigned against perceived Bush-era civil liberties abuses. They also worry that the internal executive policy of justifying the use of the states secrets privilege on a number of levels wouldn’t be binding on future administrations. The critics want Congress to act.

SharonBradfordFranklin

Sharon Bradford Franklin of the Constitution Project (Photo by Ryan J. Reilly / Main Justice)

“We’ve pulled back from the brink, but there’s still a long way to go,” said Sharon Bradford Franklin, senior counsel to the Constitution Project. “It’s a welcome development, but really is the first small step.”

Bradford said there is a need to reassert the role of the courts to provide a check on the executive branch when it comes to the state secrets privilege.

She also said it was important to make sure the executive branch is not policing itself. Secrecy and over-classification has been an issue in the government for years, said Bradford.

Verrilli sits on a task force of senior Department of Justice officials that was asked by Attorney General Eric Holder earlier this year to review every pending case in which the states secrets had been invoked. The panel has spent a large amount of time on the issue, said Verrilli, who noted that he went into it with an “extremely skeptical point of view.”

Verrilli said the problems with invoking the state secrets privilege are a potential lack of public confidence in a court’s result when information is withheld. He also said there is a potential erosion of the value of the court system if a case cannot proceed because the government invokes the privilege, said Verrilli.

“Those costs are real and they’re serious and we acknowledge that they exist here, and the question for us is what can we do to address that set of problems that exist here,” said Verrilli.

Verrilli said the DOJ task force has tried to set up a system of accountability. Credible allegations of wrongdoing by government officials require referrals of the allegations to the Inspector General office of the agency whose conduct is at issue. The administration is also committed to robust congressional oversight, said Verrilli.

“While it’s not a perfect substitute, it’s our hope it will be an important mechanism,” said Verrilli.

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union (Photo by Ryan J. Reilly / Main Justice).

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union (Photo by Ryan J. Reilly / Main Justice).

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union, noted the panel’s topic was the Obama administration’s emerging position on the state secret privilege and how it differs from the Bush administration.

“We can address that pretty quickly, it hasn’t” changed, said Wizner. “It’s been pretty much the same.”

Wizner said overly broad secrecy claims amount to immunity for the government. He said that immunity was not simply the effect of, but rather the intent of, the government in many cases in which it invoked the state secrets privilege.

“We do not have a single judicial opinion that rules on whether the Bush administration’s torture program was legal,” Wizner said.

Verrelli also said that the Obama administration doesn’t have a position on reform legislation from Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee’s Constitution subcommittee. Nadler gave the keynote speech at the forum Wednesday morning.

“We’re engaged in a dialogue, it’s ongoing and it will continue,” said Verrelli.

Thursday, October 8th, 2009
Slate Magazine Senior Legal Correspondent Dahlia Lithwick

Slate Magazine Senior Legal Correspondent Dahlia Lithwick (By Steve Bagley for Main Justice)

Democrats on the House Judiciary Committee’s Constitution and civil rights subcommittee said Thursday the conservative wing of the Supreme Court was acting against the cause of civil rights.

Committee members said the point of their hearing yesterday was not to criticize the Supreme Court, but to discern how to legislate in the face of what they characterized as an agenda against civil rights. “We could be blasting the hell out of the court system,” House Judiciary Committee Chairman John Conyers (D-Mich.) said, “because they’ve sure done some pretty lousy work, not just recently, but historically.”

One of two Republicans to attend the hearing, ranking minority member Rep. Jim Sensenbrenner (Wis.) took an opposing view, noting Supreme Court refused to “strike down” the Voting Rights Act of 1965 when it was up for renewal in 2006.

Conyers was unmoved. He mentioned three Supreme Court decisions from the past several years, including Alexander v. Sandoval, Gross V. FBL Financial Services, and Ledbetter v. Goodyear Tires.

In Ledbetter, Conyers noted, Judge Ruth Bader Ginsberg read her dissenting opinion aloud in court, calling the majority decision a “cramped interpretation” that was “incompatible with the statute’s broad remedial purpose.” Congress changed the law, in effect over ruling the court, when it passed the Lilly Ledbetter Fair Pay Act of 2009. President Obama signed it into law in one of his first official acts as president.

Noting these precedents, subcommittee chair Rep. Jerrold Nadler (D-N.Y.) said Congress needed to continue to examine how Supreme Court decisions effect civil rights. “Calling balls and strikes is the job of umpires,  but the Justices have a more complicated tasks,” Nadler said.

Those decisions, Nadler and panelists said, slowly chip away at civil rights. One panelist, Charlestown School of Law Prof. Armand Derfner, said he believes the laws have been misinterpreted by the courts.

“Today’s Supreme Court takes a very different approach to interpreting Congress’ laws,” Derfner said. “Fifteen cases the Supreme Court has decided, Congress has had to correct. It’s astonishing to have a record like that.”

Prof. Aderson Francois of Howard University School of Law took a more measured approach. He told the committee in his written testimony that “while the Court has certainly issued its share of decisions that can be fairly characterized as hostile to the advancement of civil rights and equality, it is probably premature to conclude that the Court has been - or will be - consistently anti-civil rights.”

Francois added that the tenure of Chief Justice John Roberts has not been a major change from that of the late Chief Justice William Rehnquist, another conservative. But “given the Supreme Court’s poor record in matters of civil rights over the last 20 years, the continuation of the Rehnquist Court jurisprudence under Justice Roberts has indeed left civil rights enforcement in a fragile and precarious position,” he said.

Rep. Frank Johnson (D-Ga.) asked panelists a provocative question about the confirmation process. “How can we make so they don’t deceive or lie about their intentions?” Johnson said of judicial nominees.

“I don’t know that there’s a way to do that,” Derfner replied.

Panelist Dahlia Lithwick, legal analyst and senior editor of Slate Magazine, said the media could do a better job of explaining the issues to the public. ”I think the Supreme Court is exquisitely sensitive to public opinion,” she said.

Wednesday, September 23rd, 2009

Senate Democrats joined their House counterparts today in questioning the Obama administration’s broad support of three expiring Patriot Act provisions that expand the government’s powers in counter-terrorism investigations.

David Kris (Harvard Law)

David Kris (Harvard Law)

Senate Judiciary Committee Democrats pushed National Security Division Assistant Attorney General David Kris to comment today on proposed legislation that puts stipulations on the reauthorization of Patriot Act powers that sunset at the end of the year, The Associated Press reported. Panel Chair Patrick Leahy (D-Vt.) introduced legislation yesterday that reapproves the provisions, but allows Congress and the public to better monitor the use of the powers.

Kris said the Justice Department does not have an official position on the bill beyond the administration’s support of reauthorizing the expiring provisions, according to The AP. The Assistant Attorney General said in his written testimony that the Justice Department is “ready and willing to work with members … to craft legislation that both provides effective investigative authorities and protects privacy and civil liberties.” National Security Division Deputy Assistant Attorney General Todd Hinnen also refused to take a position on possible changes to the provisions, which frustrated Democrats at a House Judiciary Constitution, civil rights and civil liberties subcommittee meeting yesterday.

Here’s a summary of the 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.

Leahy said, according to The AP, that the administration’s position keeps “the cards … rather stacked” in favor of the government.

Kris responded, according to the news wire, “We’re willing to look to see if these tools can be sharpened.”

Like the House Republicans, Senate Republicans supported the Justice Department’s position on the provisions. Senate Judiciary Committee Ranking Member Jeff Sessions (R-Ala.) said there is no indication that “there have been any abuses to date,” according to The AP.

Democrats have long been skeptical of whether the Bush administration abused the Patriot Act powers and national security letters, which the FBI uses to obtain evidence without a court order. The Leahy bill and legislation introduced by Rep. Jerrold Nadler (D-N.Y.) would put more restrictions on the letters.

DOJ Inspector General Glenn Fine said in his written testimony to the committee today that the Office of Inspector General found the FBI initially did not “take seriously enough its responsibility to ensure that these letters were used in accord with the law, Attorney General Guidelines, or FBI policies.” But the FBI has taken steps to correct it use of the letters, he said.

“We … believe that as Congress considers reauthorizing provisions of the Patriot Act, it must ensure through continual and aggressive oversight that the FBI uses these important and intrusive investigative authorities appropriately,” Fine wrote in his testimony.

Wednesday, September 23rd, 2009

A Justice Department official Tuesday gave the Obama administration’s case for reauthorizing three expiring Patriot Act provisions that expand the government’s powers in counter-terrorism investigations. But House Judiciary Committee Democrats weren’t entirely convinced.

Todd Hinnen (Main Justice)

Todd Hinnen (Main Justice)

Todd Hinnen, National Security Division Deputy Assistant Attorney General, told House Judiciary Committee members that roving wiretaps, the authority to access business records and the ability to track “lone-wolf” terrorists, or those without visible ties to a foreign terrorist organization, are still needed to probe suspected terrorists. The Justice Department said last week it supported the reauthorization of the three provisions that expire at the end of the year.

Here’s a little bit more about the 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.

Hinnen said, however, the administration is open to congressional amendments to the Patriot Act provisions, if they don’t hamper the ability of  law enforcement authorities to be effective.

House Judiciary Committee Chair John Conyers (D-Mich.) said he did not support reauthorizing the provisions without making some changes to them. He and Rep. Jerrold Nadler (D-N.Y.) said they were particularly concerned with the “lone wolf” provision, which has never been used.

“Now is the time to consider improving the Patriot Act, not just extending the provisions,” Conyers said at the House Judiciary constitution, civil rights and civil liberties subcommittee hearing.

Republicans said they supported the Justice Department’s position. The subcommittee ranking member, Rep. James Sensenbrenner (R-Wis.), even called Hinnen a “breath of fresh air.”

Conyers, however, was not as pleased with Hinnen, who has worked at the Justice Department since January.

“You know, you sound like a lot of people who come over here from DOJ, and yet you’ve been there for only a few months,” Conyers said at the hearing. “Do you think that’s a good thing or a bad thing?”

Hinnen reassured Democrats throughout his testimony that the Justice Department will be in close communication with Congress as it moves forward on Patriot Act legislation.

House Judiciary Committee Ranking Member Lamar Smith (R-Texas) introduced a bill in March to reauthorize the provisions.

Senate Judiciary Committee Chair Patrick Leahy (D-Vt.) introduced legislation Tuesday that would also reauthorizes the provisions, but allows Congress and the public to better monitor the use of the powers.

“This hearing is only the beginning of a process working closely together to create legislation that will maintain the operational effectiveness of these important [provisions] and protect the privacy and civil liberties of the American people,” Hinnen said in his testimony before the panel.

Tuesday, August 25th, 2009

The Republicans aren’t too happy about Attorney General Eric Holder’s decision to appoint a special prosecutor to investigate whether CIA officers and contractors broke anti-torture laws during the interrogations of suspected terrorists.

Rep. Peter King (R-N.Y.) flying from Baghdad to Amman, Jordan with security personnel. (Gov)

Rep. Peter King (R-N.Y.) flying from Baghdad to Amman, Jordan with security personnel. (Gov)

New York Rep. Peter King, the ranking Republican on the Homeland Security Committee and a member of the House Intelligence Committee, used a few choice words in an interview with Politico today to express his disgust with the upcoming investigation.

“It’s bullshit. It’s disgraceful. You wonder which side they’re on,” King told Politco adding that the probe was a “declaration of war against the CIA, and against common sense.”

But he was only getting started.

“It’s a total breach of faith, and either the president is intentionally caving to the left wing of his party or he’s lost control of his administration,” King told Politico.

He then had a warning for the Obama administration.

“You will have thousands of lives that will be lost, and the blood will be on Eric Holder’s hands,” he told Politico.

Other Republicans were more reserved in their remarks about Holder’s move. Senate Minority Leader Mitch McConnell said in a statement Monday that Holder made “a poor and misguided decision.”

Democratic leaders in Congress applauded the appointment of a special prosecutor, but they said more can still be done. Connecticut Assistant U.S. Attorney John H. Durham will be limited to determining whether there is enough evidence to warrant a full investigation into CIA officials who may have violated the law in their handling of suspected terrorists.

“As I have said for many months, it is vital that this special counsel be given a broad mandate to investigate these abuses, to follow the evidence where it leads, and to prosecute where warranted,” said Rep. Jerrold Nadler (D-N.Y.), chair of the House Judiciary constitution, civil rights and civil liberties subcommittee, in a statement Monday. “This must be a robust mission to gather any and all evidence without predetermination of where it may lead. Seeking out only the low-level actors in a conspiracy to torture detainees will bring neither justice nor restored standing to our nation.”

Monday, August 24th, 2009

Attorney General Eric Holder will appoint a special prosecutor to investigate cases in which CIA members and contractors may have broken anti-torture laws during the interrogations of suspected terrorists, the Justice Department announced this afternoon.

Assistant U.S. Attorney John H. Durham, a 20-year veteran of the Connecticut U.S. Attorney’s Office, was tapped for the job. Read a Washington Post profile of Durham here. Durham is already investigating the destruction of CIA interrogation videotapes that allegedly showed the use of waterboarding and other harsh interrogation methods. He was tapped by then-Attorney General Michael Mukasey to oversee that probe.

In a statement, White House press secretary Robert Gibbs said:

The President has said repeatedly that he wants to look forward, not back, and the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted.  Ultimately, determinations about whether someone broke the law are made independently by the Attorney General.

Durham will determine whether there is enough evidence to warrant a full investigation into CIA officials who may have violated the law in their handling of suspected terrorists, according to the news release.

The Attorney General’s decision comes on the heels of the DOJ Office of Professional Responsibility recommendation released today that urged Holder to reopen nearly a dozen CIA prisoner-abuse cases.

“There are those who will use my decision to open a preliminary review as a means of broadly criticizing the work of our nation’s intelligence community,” Holder said in the news release. “I could not disagree more with that view.”

He added, “That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”

Congressional Democrats including Senate Judiciary  Committee Chair Patrick Leahy (D-Vt.), House Judiciary Committee Chair John Conyers (D-Mich.) and House Judiciary constitution, civil rights and civil liberties subcommittee Chair Jerrold Nadler (D-N.Y.) applauded Holder’s decision. Leahy said he hopes this investigation will hold responsible the people who “undermined our values and our laws.”

“I recognize how difficult this decision has been for Attorney General Holder, and I am grateful that the Justice Department is finally being led by an independent Attorney General who is willing to begin investigating this dark chapter in our country’s history,” Leahy said in a statement. “I had no doubt that he would put the interests of the law ahead of politics, and he has demonstrated that.”

But they said that more must be done. Nadler said Holder’s decision was the “first step.”

“As I have said for many months, it is vital that this special counsel be given a broad mandate to investigate these abuses, to follow the evidence where it leads, and to prosecute where warranted,” Nadler said in a statement. “This must be a robust mission to gather any and all evidence without predetermination of where it may lead.  Seeking out only the low-level actors in a conspiracy to torture detainees will bring neither justice nor restored standing to our nation.”

Thursday, June 18th, 2009

Attorney General Eric Holder, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Rep. Jerrold Nadler (D-N.Y.) came out against the Supreme Court’s ruling today that DNA testing is not a constitutional right for people who try to prove their innocence after they were convicted.

The Supreme Court ruled in a 5-4 decision that Alaska was not obligated to make DNA testing available to William G. Osborne, who was convicted of rape. Alaska, Alabama, Massachusetts and Oklahoma are the only states that do not have laws that clearly allow convicts some access to DNA testing, according to the New York Times. The newspaper’s story is here.

Holder said the Supreme Court did not rule in support of “good policy” and the decision wasn’t necessarily a “wise” one.

“DNA testing helps ensure that justice is done,” Holder said in a statement. “For that reason, this administration believes that defendants should be permitted access to DNA evidence in a range of circumstances … Today’s decision reaffirmed the power of such practices, and I hope that in light of today’s decision all levels of government will follow the federal government’s lead by working to expand access to DNA evidence.”

Leahy also expressed his disappointment in the Supreme Court decision. He said the high court’s move causes “unnecessary hurdles” for convicts trying to prove their innocence.

“We should make every effort to promote DNA testing in our criminal justice system — whether before or after trial — in order to help ensure that only the guilty are convicted, never the innocent, and that the guilty do not walk free to commit more crimes,” Leahy said in a statement.

The House passed an amendment to the fiscal 2010 Commerce, Justice and science subcommittee spending bill today that added $5 million to the Debbie Smith DNA Backlog Grant Program, which would now have a $151 budget to solve backlogged rape cases. Nadler, who offered the amendment, said Congress recognized the need for DNA testing by approving the measure.

“DNA evidence in particular has already become widely accepted in law enforcement as a reliable method of extracting unambiguous information,” Nadler said in a statement.