Don't Worry Your Pretty Little Head About It

"Beware of he who would deny you access to information, for in his heart he dreams himself your master"

Back when the mortgage mess was merely incredibly bad - Bloomberg asked the Federal Reserve to disclose who they've been lending to, and in what amounts.

The Fed's answer was immediate: No.

So Bloomberg sued. They still haven't gotten the information, but they are still fighting for it.

To be fair, the Fed is standing up for the privacy concerns of groups like the Clearing House Association LLC (whose members include banks like Bank of America and JP Morgan Chase) - and that group of business does offer a compelling reason why the Fed shouldn't tell us:

“Our member banks are very concerned about real-time disclosure of information that could cause a run on the banks,” said Paul Saltzman, the group’s general counsel, in an interview yesterday.

Oh. Well, in that case - they'd better not tell us.

(Via CJR and Bloomberg)

FISA Redux: Hon. Walker Throws Down

(Via The Atlantic)

I'll be buggered: Judge Walker ruled against the government in the FISA lawsuit.

The National Security Agency broke the law when it wiretapped two American lawyers working for the El-Haramain Charity Foundation, an influential judge ruled Wednesday.

The government is almost certain to appeal this long-awaited decision, as it touches on subjects ranging from the state secrets privilege to the breadth of President Bush's "Terrorist Surveillance Program."

The ruling is a major victory for civil libertarians, and the first time that the TSP has been declared illegal. The case has bounced back and forth from district court judge Vaughn Walker, the chief judge for federal courts in Northern California, to the 9th Circuit Court of Appeals, which rejected a government motion to dismiss it entirely.

This would be another instance of the government refusing to make a case - and losing because of it.

The odds are not good on appeal - but hey, I didn't think they'd get this far.

Credit to the man from Minnesota

Apropos of nothing, I was looking up the process by which we passed the Commodity Futures Modernization Act of 2000. That'd be the one that prohibited the government from regulating the Credit Default Swaps that encouraged big investors to take massive risks. These were the  financial products that brought down A.I.G, and damn near everything else..

Anyway - Phil Gramm gets most of the blame for this little slice of legislation, but I remember reading how this was a bipartisan bill.

So, I'm looking it up and find the House Roll Call, noting that my very progressive representative voted for it, but the Senate passed it by unanimous consent - meaning that there was no recorded roll.

Huge spending bill, including provisions that would nearly destroy our economy - no record of who was for and against. Interestingly enough, the agreement to pass the bill by unanimous consent was constructed such that objections after the agreement did not invalidate unanimous consent.

Of the two senators who spoke up - one was the late Senator from Minnesota, Paul Wellstone:

Mr. WELLSTONE. Mr. President I want to voice my strong objection to 
the process by which this legislation is being passed by the Senate. 
The Omnibus Appropriations conference report--containing numerous other 
pieces of unrelated legislation--is being passed by the Senate tonight 
under a consent agreement that was entered suddenly by the Majority 
Leader without the normal notification process. We should have had a 
recorded vote. Since I first came to the Senate 9 years ago I have felt 
that it does the Senate no credit to pass such significant budgetary 
legislation--literally hundreds of billions of dollars--without a 
recorded vote. We cannot be held accountable as Senators to our 
constituents when such bills are passed in this manner. I want to make 
it clear; I oppose this legislation and I would like the Record to show 
that I would have voted no had there been a recorded vote.

Now, I won't presume that Sen. Wellstone foresaw any looming financial cataclysm, but his point here is well made. The Senate used procedure to obscure who supported a piece of legislation that they were passing. I'm sure this continues in many forms, but I think Sen. Wellstone's position is only amplified by that fact.

You pass a bill, your name should be recorded.

Flip the lights on...

...and watch the roaches scatter.

The British courts have ruled against American and British assertions of national security in the Binyam Mohamed case.

I have to say, I'm completely unimpressed with the Obama administration's reflexive defense of Bush era secrets. So it's good to see some daylight finding its way to the public, even if it had to happen overseas.

Freedom of information, provided you can pay for it

Balkinization has a great post about the ACLU's role in prying documents out of the government.

The torture story is one of the most important examples of American journalism in the last decade. But it was not revealed through traditional investigative reporting alone. Instead, a non-profit organization-- the ACLU--worked in coordination with journalistic efforts to mount a long-term litigation campaign to gain access to important government information. The ACLU then provided the information to the general public on the Internet, and journalists wrote stories based on the revelations, which led to further ACLU requests and more litigation, producing further revelations, and so on.

It is unlikely that many newspapers today--strapped as they are for cash--would have been able to mount a litigation campaign of many years as expensive or as effective as the ACLU did in order to obtain information for a story.

Bloomberg beats the fed?

(Via CJR)

Bloomberg has won their FOIA case against the Board of the Federal Reserve System.

All that money the Fed has been pumping into the system and hasn't been telling us where it was going?

We might find out.

Obama on transparency:

Fail.

Late edit: TPM reports the White House has reversed themselves on this one issue. It remains to be seen if the list of people was comprehensive, or an edited list.

Later edit: Just goes to show that you never take the first draft seriously. It was an edited list, and not the actual records.

CJR has the goods:

...it certainly isn’t right to say that “Obama quickly reversed their decision.” As to the “quickly” part, it’s worth noting that the Secret Service originally denied the request on July 7, not yesterday. But ,far more importantly, Obama hasn’t decided to reverse anything. All he’s decided to do is voluntarily release the most pertinent information that would have been contained in the records CREW requested. And while that counts for something, he didn’t reverse the decision to deny the actual request; FOIA requests are for records, not for the information that may be contained within those records, as CREW points out a letter they sent in response to Craig today.

HPSCI to investigate violations of National Security Act

No he di-un't...

Oh yes, he di-ud!

After careful consideration and consultation with the Ranking Minority Member and other members of the Committee, the House Permanent Select Committee on Intelligence will conduct an investigation into possible violations of federal law, including the National Security Act of 1947
-Rep. Silvestre Reyes

This is the same man who feebed on FISA, but at least a ball is rolling in the right direction.

And- as wiser heads (including Sen. Whitehouse) have pointed out - the Nat'l Security Act does not have an enforcement clause for violations.

(H/t emptywheel)

Have gun, will travel

(Via TPM)

At last we have one: a credible reason the undisclosed CIA program wasn't shared with congress.

The finding imposed no geographical limitations on the agency's actions, and intelligence officials have said that they were not obliged to notify Congress of each operation envisaged under the directive.

Undisclosed Death Squads vs the Patriots-Kill-the-Bad-Guys program

The confirmation that (as should have been obvious) the Bush administration's numerous references to the surveillance program called the TSP (for "Trust us, our Surveillance is Perfectly justified") was a narrowly-parsed term designed to conceal the existence of more extensive programs has launched a new round of obfuscation masquerading as revelation.

The WSJ is quoting "former intelligence officials" as claiming that the

...Central Intelligence Agency initiative terminated by Director Leon Panetta was an attempt to carry out a 2001 presidential authorization to capture or kill al Qaeda operatives...

Marcy Wheeler doesn't buy that - and I hope she's not the only one.

Aside from the near ubiquitous drone strikes, which seem to be fully acknowledged and non-controversial, there have been enough personal strikes against al Qaeda figures that appear likely to have been assassinations, that for all intents and purposes, it appears we are assassinating al Qaeda figures.

She goes on to point out that the executive order that purports to ban assassinations can (if you believe the Bush administration) be freely ignored at the whim of the president, without altering the orignal order, or notifying anyone.

Somehow, I don't think Leon Panetta and the Dems are going to the mat over whether or not the CIA should be hunting al Qaeda. That's a little too tidy - don't you think?

Much like the TERRORIST suveilance program was advanced as a perfectly justified (never mind how often we keep hearing how many of our private conversations were hoovered up) we are now being told that the previously undisclosed initiative was intended to kill the bad guys.

Of course it was - but something tells me it isn't as cut and dried as that. Can we at long last avoid surrendering to the terms of those who wish to mislead us? Can we define something by what we know it to be, rather than what its defenders would prefer we call it?

Pretty please?

Late edit: the spin's velocity keeps increasing. Here's the AP parroting the same line (emphasis mine):

A secret intelligence program canceled by CIA Director Leon Panetta in June was meant to find and then capture or kill al-Qaida leaders at close range rather than target them with air strikes that risked civilian casualties, government officials with knowledge of the operation said Monday.

Yes, the program that was kept from Congress - caused such a flap in the DOJ - and was immediately halted by the incoming CIA director was designed to kill our enemies and save innocent life.

I'm totally buying that at face value.

NYT's Lichtblau and Risen are still on the NSA trail

(Via the NYT, emphasis mine)

N.S.A.’s Intercepts Exceed Limits Set by Congress

Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.

[snip]

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.

The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.

The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.

Anyone feel like the 4th amendment is antiquated now?

FISA: Yowza!

Judge Walker rules against the govt in part of the ongoing al-Haramain case.

Basically, Judge Walker has asked to review the wiretap log that pertains to the case - and the government had asserted that the state secrets rule barred him from doing so.

The Judge Begs to differ, and on Monday we will see how the next round of this mess proceeds.

Emptywheel posts that the government will appeal, but not before they suddenly remember:

The Government’s ex parte, in camera classified submissions also address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.

Translation, some of the earlier stuff we gave you is wrong. We'll send you updated information via classified channels.

Or - The stuff is wrong - and we'll send you the correct information when you litigate it out of us (i.e. over our dead bodies).

I'm sure I don't have enough information to know what the hell is going on, but I'm sure going to keep following this.

Props to Emptywheel, she who informs my ranting...

Foggo's dossier

Now that ex-number-three-at-CIA Dusty Foggo's is getting three years in prison, a number of fascinating details about him are coming to light.

The killer was the quote at the end of this piece. It's mid 2004, and the CIA is considering Foggo for the CIA exec job. Foggo's long list of misdeeds were known to the CIA. Questionable conduct, security risks, and outright lies are overlooked - and why?

[CIA DIrector Porter Goss'] team also thought it wouldn't matter much whom they picked, since Sen. John Kerry, D-Mass., the Democrats' presidential candidate, was "certain" to win the election and they would all soon be gone. 

Oh, if only, man... if only.

Apparently, the CIA's tea leaves are as effective at predicting elections as they are for finding WMD.

(H/t Danger Room)

Nary a whisper of nationalization

Planet Money's Adam Davidson meets with a non-source and asks what he can leak about the nationalization issue.

The non-source's answer: bupkis.

The government official told me that if word leaked out in any way that the government was even considering nationalization, it could spook the stock markets so badly that all those troubled banks would, instantly, become dead banks.

Which makes sense.

So, if there were reports that a certain bank's future was being discussed by the Treasury Department, there would instantly be nothing to discuss.

The bank would fail, and the Treasury would have to move - simply because they discussed it.

Well, here's hoping those discussions are happening anyway.

(H/t Cool blog)

On State Secrets and the Lord of the Rings

David Luban has a great post, You Cover It Up, You Own It, over on Balkinization. It's about the Obama administration's support of Bush policies on state secrets.

Here's a nice bit:

One question is whether the state secrets doctrine concerns facts or documents.  That is:  does it mean that government documents cannot be entered into evidence because they are secret?  Or does it mean that the underlying facts are "state secrets" that can never be ventilated in an American courtroom, even if they are well known everywhere else in the world and the plaintiff can prove them using publicly available evidence?

The latter position -- that the state secrets privilege is a rule about facts, not about evidence -- is absurd, but it is the government's position.

Like many who voted for the man, I'd be very curious about what motivates a decision like this. If it's just continuity until key players are ramped up enough to change the policy - okay. But you'd think if this was so, there would be an attempt to get this across. There have been great strides on secrecy law in the past few weeks - so it's probably too early to pronounce judgement.

But I'm not encouraged.

Luban has a great closer, though:

It's time to throw away the Ring, Frodo, before it hooks you and enslaves you.

Oooh, Snap!

(Via TPM)

Court Rules on Miers/Bolten Subpoenas!

Late edit:
Double snap! (via Balkinization):

In a 93-page opinion in the Miers/Bolton contempt case, Judge Bates not only rejects all of the various Administration arguments against justiciability, but goes so far as to reach the merits and hold that there is no basis for the DOJ argument that close presidential advisers are absolutely immune from compelled congressional testimony.

A landmark decision, I think.

I would think so.

Ashamed of the cost of war

(via E&P)

I imagine most people have heard about government regulations barring coverage of American war dead. This is not new, and something that was done even in the Clinton administration.

Restricting media access sounds pretty bad - but I can see the protection of an individual right under that policy. If I had a family member returning on one of those planes - I might not want them to be greeted by journalists snapping pictures and writing stories using their name.

Yes, the government has its own agenda in squelching this kind of coverage - but at least while the bodies are in their care, I think they can be permitted to deny public access. The information does get out, just without visuals.

What genuinely bothers me is that the government apparently assumes that they can muzzle the press even when the dead are in the custody of their families - during the funeral

Citing WaPo's Dana Milbank, E&P explains:

The family of 38-year-old Hall, who leaves behind two young daughters and two stepsons, gave their permission for the media to cover his Arlington burial -- a decision many grieving families make so that the nation will learn about their loved ones' sacrifice. But the military had other ideas, and they arranged the Marine's burial yesterday so that no sound, and few images, would make it into the public domain.

If you think that's unreasonable, you're not alone. The public affairs director at Arlington National Cemetery took issue with this approach:

When Gina Gray took over as the public affairs director at Arlington National Cemetery about three months ago, she discovered that cemetery officials were attempting to impose new limits on media coverage of funerals of the Iraq war dead -- even after the fallen warriors' families granted permission for the coverage. She said that the new restrictions were wrong and that Army regulations didn't call for such limitations.

Six weeks after The Washington Post reported her efforts to restore media coverage of funerals, Gray was demoted. Twelve days ago, the Army fired her.

Read the full story on WaPo

Obama: you listening now?

(via TPM)

Obama supporters liking telecom immunity? Not so much.

Late edit:

Here's an excerpt from the response I got from the Obama campaign on FISA (emphasis mine):

Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance - making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future.  It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay.  So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives - and the liberty - of the American people.

I'd respond to just the bold bits thusly:

Restores FISA exclusivity? Hah.
Guarantees a thorough review? Emptywheel's got your double-hah right here:

The bill takes an idea included in the House bill--a review of the program to find out what really happened--and dumps that review into the lap of the Inspectors General of the various agencies (the House bill had called for a bipartisan commission). The OPR review of the authorization of the program is included in this. An IG picked by the President and approved by the Senate will, a year after the bill is passed, present an unclassified report on the program (with classified annex). That review cannot name anyone in the private sector involved in the illegal wiretapping.

So the foxes will give us a thorough review of who raided the hen house? Color me unimpressed.

Making news by seeking it

Nukes & Spooks details the DoJ's scrambled reaction to the Boumediene et al v. Bush decision (that reversed attempts by the Bush administration and both houses of Congress to deny Enemy Combatants the right to judicial review in US Courts).

Justice Department media representatives set up a briefing with department lawyers, but insisted the question-and-answer session be off-the-record. They acknowledged it was an unusual demand, but said they couldn’t discuss the decision because they were still reviewing it.

That DoJ was flat-footed and heavy handed is not what surprised me - this is:

Associated Press reporter Matt Apuzzo quickly objected, saying the off-the-record rule "does nothing to help anybody understand anything."

When he said he would consider the discussion on the record, he was told he should get off the call. Apuzzo refused, saying "there’s just no reason for this to be an off-the-record call." A conference call mute button prevented 40 other reporters from chiming in.

But Justice Department officials wouldn’t budge and the call was cut short.

Right there - this is what a reporter should do. Not just take what you are given - "Oh, you want me to listen and say nothing, okay," but actually force the government official to say something on the record. Even if it is by press release, or a "no comment" comment - they are not allowed to say they've addressed the issue by swearing you to silence.

Memo to network news types - do your F-ing job, already.
(H/t Glenn, again)

Let the sun shine...

Obama's early advocacy for transparency in government was a winner for me - but it's nice to see he hasn't lost a step.

(H/t Secrecy News)

On the same day that he became the presumptive Democratic nominee for President, Sen. Barack Obama introduced new legislation to expand public access to information about government spending.

[snip]

The new bill would build upon and improve previous efforts by Senators Obama and Coburn to provide public access to federal grant and contract information through the USASpending.gov web site. Among other things, it would require copies of each federal contract and details of the bidding process to be published online.

Hell, yeah.