CNN reported over the weekend that the Justice Department is seeking new powers in the wake of the COVID19 plague and Politico added some valuable detail
New York Democrat Alexandria Ocasio-Cortez and Utah Republican Michael Lee have criticized the proposal. One provision is scary, according to civil liberties lawyers.
The proposal would also grant those top judges broad authority to pause court proceedings during emergencies. It would apply to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings,” according to draft legislative language the department shared with Congress.
The proposal has implications for habeas corpus — the constitutional right to appear before a judge after arrest and seek release.
“Not only would it be a violation of that, but it says ‘affecting pre-arrest,’” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “So that means you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over. I find it absolutely terrifying. Especially in a time of emergency, we should be very careful about granting new powers to the government.”
Reimer said the possibility of chief judges suspending all court rules during an emergency without a clear end in sight was deeply disturbing.
“That is something that should not happen in a democracy,” he said.
One the revelations of the report of Michael Horowitz, inspector general of the Justice Department, was the abuse of the Foreign Intelligence Surveillance Act (FISA)
The act was passed by Congress in 1978, after revelations that CIA counterintelligence chief James Angleton had presided over two massive program of spying on Americans. FISA requires the FBI or CIA to get a warrant from a secret court in order to listen in on the conversations of Americans. The judges on the FISA court are appointed by Chief Justice John Roberts.
Horowitz’s report illuminated how unfair the FISA process can be.
The report identified 17 significant problems—including inaccuracies, exaggerations, and omissions—in the applications the Department of Justice submitted to the FISA Court to conduct surveillance of former Trump campaign aide Carter Page. Moreover, the Inspector General found no evidence of political bias or any other special circumstances that would explain the problems. If, indeed, the Page applications were treated like any other, that would indicate that corner-cutting and application-padding are par for the course in FISA applications.
While conservatives are justifiably disturbed by the treatment of Page, they were mostly silent about previous reports of FISA abuse. The documents leaked by NSA whistleblower Edward Snowden showed the chief victims of FISA abuses were American Muslims.
In 2014, documents disclosed by Edward Snowden revealed that the U.S. government had obtained FISA orders to conduct surveillance of five prominent Muslim Americans, including a former Department of Homeland Security official, the executive director of the largest Muslim civil rights organization in the U.S., and a professor of international relations at Rutgers University. The notion that these respected community leaders were all agents of a foreign power is as implausible as it sounds.
Boetein argues both for reforms in the FISA process and changing the culture of the FBI in which FISA abuses flourish. The first may be easier than the second.
The Inspector General’s report is a damning indictment. Thanks to the endlessly bizarre politics of the day, it is also an opportunity. Arguably, we are in another “Snowden moment” in which real surveillance reform is actually possible. The recommendations above, in my view, should be an important part of the reform discussion.
For months, the names of Michael Horowitz and John Durham have figured in the pounding rhythms of right-wing media in which a heroically afflicted president faces down his perfidious enemies. A steady drumbeat of reports from Fox News, echoed by President Trump, Republican loyalists in Congress and media mouthpieces, proclaimed these two obscure Justice Department officials would get to the bottom of an alleged conspiracy against the Trump presidency.
They would, in Trump’s
words, “investigate the investigators.” It was oh so promising.
will tell you this,” Trump blustered on October 25. “I think
you’re going to see a lot of really bad things,” he said. “I leave it all up to
the attorney general and I leave it all up to the people that are working with
the attorney general who I don’t know. … I think you’ll see things that nobody
Horowitz, as the DOJ
inspector general, had the narrower assignment. He was tasked with
investigating the Foreign Intelligence Surveillance Act warrants issued to
intercept the communications of Trump campaign adviser Carter Page. Horowitz
had to answer the question: Was Page targeted for political reasons, perhaps based
on the famous “Steele Dossier”?
Durham, a senior U.S. attorney in Connecticut, has a broader brief: to review the FBI’s decision to open a counterintelligence investigation of the Trump campaign’s contacts with Russians in 2015. Durham was selected for the assignment by Barr.
For those inclined to
believe Fox News and the president, the “deep state cabal” that allegedly
targeted Trump was running scared. In early October, Fox News reported that “Barr and Durham traveled to Italy
recently to talk to law enforcement officials there about the probe and have
also had conversations with officials in the U.K. and Australia about the
investigation.” From this report, the
Daily Caller imaginatively extrapolated that Durham’s probe had expanded to include “looking at the activities of
foreign intelligence agencies.” (One British official told the Independent that Barr and
his minions asked, “in quite robust terms, for help in doing a hatchet job on their own intelligence
services.”) On October 22, the Washington Examiner said Durham was “scrutinizing four key figures”; the Spectator, a right-wing British magazine,
claimed former CIA director John Brennan was in “Durham’s crosshairs.”
And so on.
‘Things That Nobody Would’ve Believed’
words, ironically, are coming true. Horowitz, it is now reliably reported,
found that the Trump/Fox News talking points about a “deep state” conspiracy
against Trump are, in fact, “things that nobody would’ve believed.”
Horowitz’s report, says USA Today, is “expected to conclude the FBI was justified in
launching its two-year inquiry into the Trump campaign and possible ties to
Russian interference in the 2016 presidential election.”
The Washington Post reports that Durham has already disappointed
Trump. In the course of Horowitz’s investigation, Durham declined to endorse
one key Republican talking point: that one witness, Joseph Mifsud, was actually
a CIA or FBI agent deployed to undermine
and defeat Trump’s presidential bid.
Durham, according to the
Post, has “said he could not offer evidence to the Justice Department’s
inspector general to support the suspicions of some conservatives that the case
was a setup by American intelligence.” (The Post describes its source as
“people familiar with the matter.”)
Those pundits who expected Horowitz to side with the president could not be detained by mere facts, no matter how public. Remember a couple of hundred news cycles ago—mid-October—when right-wing media was filibustering about the identity of the CIA whistleblower who first brought Trump’s Ukraine pressure campaign to light?
At the time, Horowitz was engaged in a more substantive matter. As inspector general, Horowitz played a leading role in an extraordinary letter, signed by about 70 inspector generals, concerning the Justice Department’s handling of the whistleblower’s allegation. Although the letter never mentioned the attorney general’s name, its message was a broad rebuke of Barr.
The legal question was
far too intricate to generate pleasurable repartee on Twitter. The
whistleblower complained in August to the inspector general in the Office of
the Director of National Intelligence (DNI). The DNI is legally bound to pass
to Congress only whistleblower complaints of “urgent concern.” Joseph Maguire,
the acting director of national intelligence, passed the buck and asked the
Office of Legal Counsel (OLC) for guidance. In a secret memo, dated September
3, the OLC decided the whistleblower’s complaint was not an “urgent” matter
that had to be passed to Congress.
The OLC, beholden to Barr, took the position that there was no need to tell Congress of the possibility that Trump was withholding congressionally appropriated funds from the beleaguered Ukraine armed forces in order to force the Ukraine president to investigate Joe Biden’s son. The legal logic was fallacious and tortured, to say the least.
Horowitz’s name topped
the list of roughly 70 inspectors general who declared:
“the OLC opinion could seriously impair whistleblowing and deter individuals in the intelligence community and throughout the government from reporting government waste, fraud, abuse, and misconduct.”
Of course, the letter was a dud on social media, cable TV, and Fox News. Who cares what a bunch of bureaucrats in Washington think? Horowitz, the hoped-for savior of Trump, had, along with almost six dozen other senior civil servants, publicly rebuked his boss, the Attorney General. His real-world actions were almost completely ignored by the conservative news outlets hyping imaginative reports about his investigation.
Will John Durham follow
Barr’s lead? Or Horowitz’s?
“The modus operandi of this administration is that when they
cannot dismiss somebody else’s fact-based conclusions, they create a parallel
narrative,” Joel Brenner, a former inspector general at the National Security
Agency in the George W. Bush administration, told USA Today.
What kind of narrative will Durham write?
One clue can be heard in “The Report,” a new movie starring Adam Driver about the Senate Intelligence Committee’s 2014 report on torture. The name “Durham” is heard exactly once in the movie. And yes, it is a reference to the same John Durham.
Durham is now a career Justice Department prosecutor in Connecticut. In 2009, Attorney General Eric Holder assigned him to investigate the CIA’s torture program. It was a delicate assignment. On the one side, he had to poke into the dirty business of a $15 billion-a-year agency that believed it had legal and presidential sanction for “enhanced interrogation techniques.” On the other side, he was working for a popular new president who said the program was abhorrent and a host of lawyers who said it might well be criminal.
Durham, in short, walked
into a legal and political minefield. Two years later, he emerged unscathed
with a supple, if not evasive, reading of the law. His investigation exonerated the CIA on 99 out of 101 incidents of torture.
Whatever you make of Durham’s report legally and morally, it was
politically adroit. The report pleased Obama and Holder, who dodged the need to
take on the barons of the national security agencies. His report pleased the
CIA, which dodged the bullet of indictments of senior officials who had
approved the torture regime, including John Brennan. As a narrative, Durham’s
torture report shows that he implicitly shares the worldview of Brennan and
other senior national security managers.
He’s also a career prosecutor who is sure to consider all the facts brought to his attention.
Trump’s critics are not legally invulnerable. Trump was enraged and threatened by national security leaks, even before he took office. Did Brennan et al commit technical violations of the Espionage Act in sharing classified information with reporters about the president-elect’s Russian contacts? Possibly. Would John Durham go out on a legal limb to prosecute former top U.S. officials on behalf of Barr and Trump, who will be gone from Washington in five years at the maximum? That seems highly unlikely.
As Trump sails into the high seas of a Senate impeachment trial, Durham’s report on the origins of the Trump-Russia investigation will probably not be a lifeline.
While social media chatter about the Trump-Russia investigation continues with the usual ratio heat to light, the report (300 pages, 400 pages, 687 pages?) remains secret, thanks to Attorney General Bill Barr.
Congress wants a copy. So does the Washington-based Electronic Privacy Information Center (EPIC), which has sued for the release of the report. On Tuesday EPIC said that the Justice Department has
agreed to the accelerated schedule after the group sued for the documents last month under the Freedom of Information Act (FOIA). A portion of an email sent by a DOJ official to EPIC and viewed by The Hill also showed that the department had agreed to an expedited release of the report.
But the law is undermined by the very people who are supposed to enforce it, says Nate Jones of the non-profit National Security Archive: the U.S. Justice Department.
The primary reason for the law’s failings can be traced to its oversight by the Justice Department, which views itself primarily as the protector of executive branch prerogatives rather than a promoter of openness. When agencies’ desires for secrecy conflict with FOIA, Justice does not go out of its way to ensure that the public’s right to know triumphs. In a sure sign of conflict, the same department charged with enforcing FOIA also defends agencies in court when they are sued for breaking the law.
I saw this first hand in my FOIA lawsuit for certain JFK assassination records. Justice Department lawyers have argued for 16 years that the public had no right to the records. When the U.S. Court of Appeals overturned their position and forced disclosure of some 500 pages of material about CIA coverup of intelligence operations targeting accused assassin Lee Harvey Oswald, the DOJ lawyers argued that the government didn’t have to pay my court costs because the CIA had acted reasonably.
During a time in which the president has claimed that in the case of public information “the public means the enemy,” Congress must ensure that its law protecting the public’s access to information is being followed. To reduce FOIA delays and the over-redaction of documents, Congress must develop a mechanism to force agencies to actually comply with the Freedom of Information Act, a law that underpins our commitment to open, accountable government.