DoJ Nixed Investigation of Congresswoman to Get Support for NSA Wiretapping: Via Threat Level.

Those who have long felt there was a suspicious backstory behind Congress's support of the Bush administration's warrantless wiretapping may feel their suspicions are closer to being confirmed this week.

Congressional Quarterly's Jeff Stein has an explosive story about how the Justice Department thwarted a criminal investigation of Representative Jane Harman (D - California) in order to guarantee her support for the NSA's warrantless wiretapping program. [ Read more ... ]

Yoo memo on military searches in wartime in the U.S. now online Via FourthAmendment.com :

John C. Yoo's October 23, 2001 memo on the use of U.S. troops to conduct military warrantless raids inside the U.S. was released yesterday by DoJ and appears here. The memo is to Alberto Gonzales as Special Counsel to the President and William J. Haynes, DoD General Counsel. The Fourth Amendment argument is premised on anything goes in wartime, and it appears at pages 24-34 of the memo. Alternatively, it would be reasonable under the Fourth Amendment, and that appears at 34-37 of the memo.

Read Original Article (Via FourthAmendment.com.)

Editorial Observer - Democratic Pressure on Obama to Restore the Rule of Law - NYTimes.com: Via NYTimes.com

In a Senate hearing room in September, weeks before Barack Obama won the election, a series of law professors, lawyers and civil libertarians outlined one of the biggest challenges that will be facing the next president: bringing the United States government back under the rule of law.

Over the past eight years, they testified, American legal traditions have been degraded in areas ranging from domestic spying to government secrecy. The damage that has been done by President Bush, Vice President Dick Cheney, former Attorney General Alberto Gonzales and others is so grave that just assessing it will be an enormous task. Repairing it will be even more enormous.

This was not a new complaint. Civil liberties advocates have been sounding the alarm for years. The difference now is that a Democrat is about to assume the presidency, and one of the most ardent defenders of civil liberties in his party — Senator Russ Feingold of Wisconsin — is dedicated to putting the restoration of the rule of law on the agenda of the incoming government, with the support of the American Civil Liberties Union and other groups. [ Read more ... ]

EFF Sues NSA, President Bush, and Vice President Cheney to Stop Illegal Surveillance-UPDATED - Via EFF.org Updates:

The Electronic Frontier Foundation (EFF) filed a lawsuit against the National Security Agency (NSA) and other government agencies today on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. The five individual plaintiffs are also suing President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other individuals who ordered or participated in the warrantless domestic surveillance.

The lawsuit, Jewel v. NSA, is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. [ Read more ... ]

TELECONFERENCE TODAY at 1:30pm ET/10:30am PT: EFF Sues NSA, President Bush, and VP Cheney to Stop Illegal Surveillance - Via EFF.org Updates:

Toll-Free Dial-In for Reporters: 1-800-894-5910; title "EFF Call"

The Electronic Frontier Foundation (EFF) will file a lawsuit against the National Security Agency (NSA) and other government agencies today on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records.

The five individual plaintiffs are also suing President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other individuals who ordered or participated in the warrantless domestic surveillance. [ Read more ... ]

Gonzales Violated Security Rules with Spy Docs, Lied to Cover it Up - Via Threat Level:

Former Attorney General Alberto Gonzales repeatedly violated federal secrecy rules by mishandling documents containing "zealously protected" secrets about government's warrantless wiretapping program, then lied to investigators to cover up his actions,  Justice Department investigators reported Tuesday.

Before his ouster in August, 2007, Gonzales was prone to storing an ultra-secret document about the so-called Terrorist Surveillance Program in his briefcase at his home -- near, but not inside, a personal safe. And at his office,  he stored at least 18 top secret documents about the NSA's wiretapping in a safe used by at least five employees not cleared to know about the program, according to a 29-page report (.pdf) from the department's Inspector General. [ Read more ... ]

Yoo Torture Memo is "Absurd" - Via ACLU Blog:

Last week's release of the March 2003 Yoo Torture Memo (which Scott Horton has dubbed the "Yoo Two" memo, as a previous Yoo memo was authored in August 2002) continues to reverberate around the blogs and elsewhere. (Though Salon's Glenn Greenwald and Rogue Government's Lee Rogers were dismayed to find that media coverage of Barack Obama's poor bowling score overtook news of the memo's release.) [ Read more ... ]

Yoo Torture Memo Says Fourth Amendment Doesn't Apply in War on Terror - Via Threat Level:

John Yoo, the former Bush Administration lawyer who now teaches at UC Berkeley's law school, authored the torture memo that cleared the way for the U.S. military to begin torturing suspected Al Qaeda members in Guantanamo and black site prisons, as well as Iraqis in Abu Ghraib. 

Perhaps less well known is that Yoo also wrote a legal opinion blessing the president's targeting of American citizens for wiretapping, a memo that even members of Congress have not seen.

There have been clues before in the administration's defense of its wiretapping program. For instance, the Justice Department said (.pdf) the Authorization to Use Military Force and the president's war making powers in the Constitution. [ Read more ... ]

Memo linked to warrantless surveillance - San Jose Mercury News - Via :

WASHINGTON—For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism.
Editor: Emphasis added.

That view was expressed in a Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union. [ Read more ... ]

Administration Asserts No Fourth Amendment for Domestic Military Operations - Via EFF: Deep Links:

What Could It Mean for Warrantless Domestic Surveillance?

Update: Click here to read the AP article on the Yoo memo and the Fourth Amendment.

Today's Washington Post reports on a newly released memo, "Memorandum for William J. Haynes II, General Counsel of the Department of Defense Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States" (March 14, 2003) , which which was declassified and released publicly yesterday. Balkinization has commentary on the very troubling opinion.

While the newly released memo focuses on "asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators," it contains a footnote referencing another Administration memo that caught our eye: [ Read more ... ]

THREAT LEVEL's Year in Review -- 2007 - Via Threat Level:

It was a year of soul searching at THREAT LEVEL, every day a fresh challenge to our fundamental beliefs and convictions: Alberto Gonzales made us pine for John Ashcroft; Google made us love roving surveillance cams; and Jammie Thomas' internet spoofing defense was enough to make us secretly root for the RIAA.

If you missed any of it, not to fear: here's the year-end wrap up that will push your personal threat level to code orange. [ Read more ... ]

Bush Lawyers Discussed Fate of Tapes - New York Times - Via New York Times :

WASHINGTON — At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

The accounts indicate that the involvement of White House officials in the discussions before the destruction of the tapes in November 2005 was more extensive than Bush administration officials have acknowledged. [ Read more ... ]

White House Heavily Involved in CIA Tape Destruction - Via ACLU Blog:

The CIA is on a roll lately with news that it destroyed taped “harsh” interrogations of detainees. The Justice Department recently warned a federal judge to back off of an inquiry as to whether the tapes’ destruction violated a court order. The department also asked congressional committees to back off of their independent investigations – as if Congress does not have a constitutionally mandated oversight role. [ Read more ... ]

Gonzales Named Lawyer Of The Year - Via Crooks and Liars:

“Passive Exonerative Tense” courtesy of lifeclever

And it’s not even April 1st:

Negative news coverage may have cost former Attorney General Alberto Gonzales his job, but it won him a dubious honor Wednesday from a magazine published by the American Bar Association: Lawyer of the Year.

Additionally, the ABA Journal named Gonzales’ successor, Attorney General Michael Mukasey, as its top lawyer for 2008 — mostly in anticipation of how often he’ll be in the media spotlight for trying to repair the beleaguered Justice Department.

I wish I could say this is a joke, but I would be lying.

(Read Original Article - Via Crooks and Liars.)

The Independence of Federal Prosecutors [Federalist Society] - Via JURIST - Video Monitor:

The Independence of Federal Prosecutors, Federalist Society, November 15, 2007 [discussing the US Attorney firings]. Flash, 1 hr. 28 mins. Additional details here.

(Read Original Article - Via JURIST - Video Monitor.)

Ashcroft Argues to Absolve Telcos, THREAT LEVEL Calls for Constitutional Showdown: In an Op-Ed in Monday's New York Times, former Attorney General John Ashcroft joined the'long line of Republican Justice Department law-and-order types'who all of a sudden sound like an aging, pony-tailed defense attorney, banging the table and pleading with a jury to free their'meth-lab owning client since the law is just unfair, that the'meth was being grown to help kids'with'ADHD,'and that there was no way he could have known that'meth was illegal, the government gave it to pilots in WWII, for goodness sake.'

So which law-breakers get the benefit of the nation's toughest law men publishing heart-felt clemency petitions in the Op-Ed pages of the nation's largest newspapers?

AT&T, Verizon, and Sprint, among other telecoms, who are currently being sued for allegedly violating the nation's privacy laws. The Administration says the companies need retroactive immunity or else they will face fines of billions of dollars that could bankrupt the companies. Of course, the only way the telecos could be liable for billions is if they are actually guilty violated the privacy rights of millions, so it's a little odd that's part of the government's rationale. [ Read more ... ]

Secret U.S. Endorsement of Severe Interrogations - New York Times: WASHINGTON, Oct. 3 — When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures. [ Read more ... ]

Anthony D. Romero: Secrets of the Justice Department - Politics on The Huffington Post:Former Attorney General Alberto R. Gonzales' reign in the Bush Justice Department is a sorry story that just won't end.

If you thought the scandals of the Gonzales Justice Department were a thing of the past, here comes today's extraordinary New York Times article revealing that the reality of the Bush-Gonzales Justice Department vastly exceeded what others might only dream up in their most creative fiction.

Recall what happened in December 2004. After intense criticism from advocacy groups and prolonged political wrangling, the Bush administration categorically declared, "Torture is abhorrent both to American law and values and to international norms."

Well, it turns out that shortly after Gonzales took office two months later, his Justice Department served up another, contrary opinion. But this one was in secret and, as the Times reports, "It was a very different document...an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency." [ Read more ... ]

Loyalty Marked Attorney General Gonzales' Tenure: Friday marks the final day of Alberto Gonzales' tenure as the nation's Attorney General, ending his more than six years of fealty to longtime friend, President Bush.

Gonzales parting words seem'intended to persuade the nation to remember his Horatio Alger-like, Hispanic formative years and his efforts to protect 'the children' online.

But history will likely remember him as the ultimate sycophant, the loyal sidekick. [ Read more ... ]

Amen: Mr. Gonzales Departs; He was 52:

Last month, when Attorney General Alberto Gonzales announced he would resign effective Friday, The New York Times editorialized that the President Bush acolyte 'has finally done something important to advance the cause of justice. He has resigned.'

THREAT LEVEL agrees. The same is true for Mr. Gonzales' predecessor, John Ashcroft.

Mr. Ashcroft resigned in late 2004 amid a cloud of scrutiny following the revelations of torture at Abu Ghraib, a torture policy with underpinnings of a legal theory conjured up under Mr. Gonzales' watch as White House counsel.

THREAT LEVEL will miss Mr. Gonzales, and the material he has supplied it: The (alleged) perjury, the torture memo, the War on Terror, the domestic spying, the U.S. attorneys scandal and so forth. [ Read more ... ]

New Video on NSL Privacy Violations & the Constitution: "

National Security Letters (NSLs) are in the news a lot lately. Earlier in the year, a Justice Department report found that abuses of this powerful investigation tool were rampant, despite repeated statements to the contrary by Attorney General Alberto Gonzalez. Then, documents obtained by EFF under the Freedom of Information Act exposed blatantly illegal uses of NSLs, as well as other illegal demands that phone companies provide information on a target’s ‘Community of Interest.’ And let’s not forget that earlier this month, a federal judge ruled NSLs unconstitutional. [ Read more ... ]

Government Promises to Self-Audit Spying to Make Powers Permanent: The government wants to keep the wide spying powers Congress gave it in rush legislation this summer, and to get Congress to make the powers permanent after the six month expiration period, the spies will audit themselves and give information to select groups of Congressman, Assistant Attorney General Kenneth Wainstein told a national security conference on Monday.

Those powers, codified in the Protect America Act passed just before Congress's summer vacation, allow the government to install wiretap rooms in the nation's phone and internet networks and force communication providers such as Skype or instant message systems to create wiretapping back doors in their software, so long as the purpose of the surveillance order is to target any person outside the United States.

Those audits will be conducted by the Office of the Director of' National Intelligence and the Justice Department's National Security Division of the Justice Department.' Attorney General Alberto Gonzales recently ordered the latter group to investigate the FBI's misuse of self-issued subpoenas known as national security letters.

In August, the Administration killed a competing bill, which would have allowed the secret spy court to review how the government would set up spying outposts and allowed the independent Inspector General Glenn Fine, whose Congressionally-ordered review of NSLs exposed misuse and widespread violations of departmental policy. [ Read more ... ]

Former Justice Insider, an Unlikely Civil Lib Hero, Details Battles Over Torture and Eavesdopping: Civil libertarians spent years castigating Attorney General John Ashcroft for covering up Lady Justice's bare breasts and describing critics of the Patriot Act as 'scaring freedom-loving people with phantoms of lost liberty.'

But earlier this year, Ashcroft became an unlikely hero to the same, after former Assistant Attorney General James Comey told Congress about the Intensive Care Showdown, where Ashcroft rose from a post-operational stupor to lecture then-White House counsel Alberto Gonzales and chief of staff Andrew Card on the fine points of wiretapping and the law.

Since that disclosure, another unlikely hero has emerged: Republican Justice Department appointee, Jack Goldsmith -- a man who decries the title 'civil libertarian' and describes the use of international law to prosecute Augusto TK Pinochet and Henry Kissinger for human rights offense as 'lawfare' practiced by weak countries against the strong.

Goldsmith took over the Office of Legal Counsel, a powerful arm of the Justice Department whose opinions give legal cover to government programs -- including the most secret ones -- and promptly found himself reversing the legal opinions of his friend John Yoo.' Those overturned opinions included the infamous 'torture memo' and the legal backing for the government's secret warrantless spying program. [ Read more ... ]

Conscience of a Conservative by Jack Goldsmith about George W. Bush - Torture - Human Rights - Geneva Conventions - Alberto Gonzales - Donald Rumsfeld - Terrorism - New York Times: This article will appear in the Sept. 9 issue of the magazine.

In the fall of 2003, Jack L. Goldsmith was widely considered one of the brightest stars in the conservative legal firmament. A 40-year-old law professor at the University of Chicago, Goldsmith had established himself, with his friend and fellow law professor John Yoo, as a leading proponent of the view that international standards of human rights should not apply in cases before U.S. courts. In recognition of their prominence, Goldsmith and Yoo had been anointed the “New Sovereigntists” by the journal Foreign Affairs.

Goldsmith had been hired the year before as a legal adviser to the general counsel of the Defense Department, William J. Haynes II. While at the Pentagon, Goldsmith wrote a memo for Defense Secretary Donald Rumsfeld warning that prosecutors from the International Criminal Court might indict American officials for their actions in the war on terror. Goldsmith described this threat as “the judicialization of international politics.” No one was surprised when he was hired in October 2003 to head the Office of Legal Counsel, the division of the Justice Department that advises the president on the limits of executive power. Immediately, the job put him at the center of critical debates within the Bush administration about its continuing response to 9/11 — debates about coercive interrogation, secret surveillance and the detention and trial of enemy combatants.

Nine months later, in June 2004, Goldsmith resigned. [ Read more ... ]

Feds Tell Secret Spying Court to Keep Opinions Secret: The Justice Department told a secret spying court Friday that the court lacked the power to even hear the ACLU's request for it to release court opinions about the government's so-called Terrorist Surveillance Program.

Although the Foreign Intelligence Surveillance Court mostly confines itself to issuing thousands of secret wiretap orders a year, the ACLU asked the court in August to release opinions that dealt with a controversial'program, saying that the orders were more akin to rulings setting out the law of the land than individual spy orders.

In an unprecedented move, the court agreed to hear the ACLU's arguments and'directed the government to file any objections. The government told (.PDF)'the court Friday that the releasing the documents would endanger national security, that the court's job was only to issue wiretap orders and that the proper way for the ACLU to get the orders was through a government sunshine request. [ Read more ... ]