Sadly, it is a meme that persists even today in spite of the fact that all manufacturers, very much including those in Japan, are sucking air and taking on water. And, no, their cars are not that much better either, they have quality and safety problems too.

For all of its ballyhooed efficiency, quality control and supposed relative superiority, the Japanese auto industry always was built on the shoulders and technology of the American manufacturers; they wanted the sales sector of the Americans and the aura of the Europeans. Since the Japanese marques first started their meteoric rise in prominence in the 70s, the holy grail for them was to compete and win on the highest stage in the world. Formula One. But the wake of the global financial meltdown has trashed their fortunes, and their goals, every bit as hard as it pounded the American car business. The pursuit of the holy grail is over, first for Honda last December, and now for Toyota:

Toyota announced Wednesday that it would give up its prized Formula One racing team in an effort to slash costs, refocus the company on green cars and turn a profit amid continued weakness in the auto sector.

Toyota, the world’s biggest automaker, joins a growing exodus of Japanese auto companies from racing, highlighting the woes facing the country’s once cash-rich manufacturers. Honda pulled out of Formula One racing in December, while the tire-maker Bridgestone said this week that it would not renew its exclusive deal to supply tires to the series when its contract expires in 2010.

Subaru and Suzuki pulled out of the World Rally Championship before the season, citing concerns about the global crisis, while Kawasaki is quitting MotoGP, the top motorcycle competition.

“I hope you will understand that based on the current business environment we have no choice but to make this very painful decision,” Akio Toyoda, the Toyota president, said at a news conference in Tokyo on Wednesday. “To all fans, I apologize from the bottom of my heart.”

Akido Toyoda literally cried as he made the announcement. Make no mistake, there was cause; he, Toyota and Japan had all lost face with the withdrawal from Formula One. The Japanese do not take loss of face lightly; their auto business is truly hurting just like the Americans.

The dream may be over for Toyota, Honda and the Japanese for now, but F1 will live on. In fact, it is not all that huge of a surprise; there has been speculation since before the season started in March that Toyota would pull out if they did not have a breakthrough season this year, and they did not, even though many things were lined up for them. Contrary to what Toyota said, it was not just the money, it was that they were not particularly competitive even in a year where they had their best equipment ever and the power teams Ferrari and McLaren were off their game and mediocre at best. In their eight years in the F1 Circus, Toyota never managed to win even one race. Still, it is a sad loss for motorsport, and F1 will be worse off for the wear. Here is hoping that Japanese, and American, auto manufacturing soon returns to form and profitability, and soon returns to the biggest sporting stage in the world, Formula One.

National Favre League: The Cardinals at Bears is an oddly interesting game. Both teams have been wildly inconsistent, one week world beaters, the next week goats. Kurt Warner was a huge goat last week with five interceptions; he had nothing. No Urlacher though, Warner will pick it up and the Cards get a close win. The Ravens visit the Bengals. Cincy won the first one this year, can they sweep Baltimore? You have to say no, but the Bengals have been pretty solid this year; I rate it a toss up. Houston at Indy could be a good tilt, but Peyton and Reggie Wayne are too much for the upstart Texans. The Fish at the Pats looks on paper like a game to watch, but Bill Bel is coming off a bye week, thus giving him two weeks to scheme revenge for what Miami did to the Pats last year in this game. Pats will obliterate the Fish this time. The Iggles host the ‘Boys and will remind Dallas that it is a mediocre team. The Monday Night game is Steelers at Broncos. Denver plays tough, but gets its second loss in a row.

NCAA Football: It is a horrid slate of games on tap this weekend; completely unacceptable this far into November. Bleech. The only two games of interest I see are Ohio State at Penn State and the Oregon Quackers waddling into the Stanford Trees. I have no idea why, but I smell an upset by the Buckeyes over the JoePas. Oregon should take care of Stanford. Here at home I have the once mighty Trojans of USC rolling into Sun Devil Stadium for a night game. USC may be down, but they will kill the Devils.

It took over four decades for the outright lie in Reynolds to surface and be exposed. The government was well on their way to covering up their similar dishonesty in Horn v. Huddle for decades, if not eternity, when a relentless plaintiff was finally able to demonstrate to Judge Royce Lamberth the fraud being perpetrated upon the court, nearly a decade after the original state secrets assertion. After giving the government multiple opportunities to come clean, Judge Lamberth blistered the DOJ with an opinion literally finding their acts a fraud upon the court.

After being exposed on the record by Judge Lamberth, the government suddenly decided to settle with the plaintiff, with a non-disclosure and no admission of wrongdoing agreement of course, and then moved the court to vacate its rulings against them. The DOJ literally wants to erase the record of their fraud.

But not everybody is quite so excited about the thought of the DOJ wiping the record of their time worn proclivity to dishonesty in state secrets assertions. It important for there to be such a record, with written opinions of the court behind it, because the government is still out there seeking to shirk accountability for illegality and Constitutional malfeasance in critically important cases such as al-Haramain and Jeppesen.

In this regard, the attorney for al-Haramain, Jon Eisenberg, has just taken the extraordinary step of seeking leave to file an amicus brief to Judge Lamberth in the Horn v. Huddle case objecting to the government’s attempt to vacate the court’s opinions. The amicus filing by Eisenberg is brief, but a thing of beauty. And he nails the government for continuing dishonesty with the court by pointing out how the DOJ unethically failed to cite to the court directly adverse authority to their arguments in seeking to vacate the previous opinions.

The purpose of this brief is to apprise the Court of legal authorities – as to which the United States’s vacatur motion is silent – that are directly adverse to the United States’s position and support this Court’s denial of the motion.
….
The United States contends there is “minimal” value in leaving this Court’s opinions “extant,” because they are interlocutory and thus are “non-precedential.” See United States’s Motion, Dkt. #508, at 6. But a district court’s interlocutory opinions, while lacking precedential value, are hardly valueless. In Fraser, 98 F. Supp. 2d at 791, the court refused vacatur of opinions concerning interlocutory issues because “there can be little doubt that, like the appeals court opinion in Bancorp, opinions on such matters are a valuable resource for litigants and courts,” especially where the opinions address “questions of first impression.”

That is the situation here. The opinions that the United States wants vacated concern questions of first impression – whether a district court may decline to give a high degree of deference to an assertion of the state secrets privilege where the government has previously made misrepresentations to the court regarding the privilege (the opinion of July 16, 2009), and whether a district court may decide whether counsel who have been favorably adjudicated for access to classified information have a “need to know” the information within the context of pending litigation (the opinion of August 26, 2009). The opinions will be a valuable resource for litigants and courts as these issues arise in other cases. In fact, the opinions have already proved to be a valuable resource in Al-Haramain Islamic Foundation, Inc. v. Obama, where the plaintiffs (amici curiae in the present case) have cited them in briefing on a pending motion for partial summary judgment. See Al-Haramain Islamic Foundation, Inc. v. Obama, MDL Docket No. 06-1701 VRW (N.D. Cal.), Plaintiffs’ Reply to Government Defs.’ Opp. to Pls.’ Motion for
Partial Summ. Judg., Dkt. #104, at 13 n. 2 & 17 n. 3.

Get that? After perpetrating a fraud on Judge Lamberth’s court, and being caught redhanded, the Obama DOJ files a brief that fails to disclose directly adverse authority, which is fundamentally unethical. It never stops on the pernicious dishonesty and outright fraud when the government is involved in state secret assertions; that was the case in the outset with US v. Reynolds, and that is the case now.

And you have to wonder why, at this point, Judge Lamberth would possibly be interested in granting the government’s wish to wash their hands here. It was Judge Lamberth, and his court, the fraud was directly perpetrated on, and that is the very conduct seeking to be escaped from by the settlement and motion to vacate. If not for having been caught, the fraud would still be ongoing. Justice, and the sanctity of the court, require Judge Lamberth to leave those opinions in place (not to mention the authority Eisenberg cites in the amicus filing); it would not be right to give the government the ability to wash away the opinion record of such outrageous perfidy when other litigants across the country are facing potentially similar circumstances.

Judge Lamberth should leave his opinions in place and let them have whatever value they may for other litigants, as a message to Congress, and, most of all, support for other judges, like Judge Vaughn Walker, trying to wrangle with an obstreperous and obstructionistic Department of Justice and US government. Quite frankly, after all the disingenuous conduct perpetrated by the DOJ in covering up the violations of the executive branch, the court should still impose stiff sanctions on the government as was being contemplated by the court in Horn v. Huddle before settlement; but, at a minimum, the court should send a message that such conduct will not be tolerated by leaving its opinions in place and in force.

Cheney, speaking to the Economic Club of Southwest Michigan, was harshest when addressing a Department of Justice investigation into so-called “enhanced interrogations” used by the CIA and military on detained suspected terrorists.

“I find that absolutely abhorrent,” said Cheney, who served under George W. Bush from 2001 to 2009. “It bothers the heck out of me that we would go after those people who have been instrumental in preventing further attacks against the United States.”

The techniques, he said, were approved by Bush’s justice department and closely monitored by the CIA.

I’m surprised by the contrast. After all, last we saw Cheney, he was a babbling old fool who couldn’t seem to remember an attack on the CIA he had ordered up just a year earlier–or conversations he had had about those orders just seven months before. Yet here he was last night, talking about orders he gave to the CIA seven years ago, as if they were yesterday.

It’s remarkable, the way Cheney’s memory seems to be fresh all of a sudden.

But now that I think about it, Cheney still is–at heart–that same babbling old man, unable to remember basic facts about the events he has ordered, Consider these two details from his speech.

It did not amount to torture and broke no laws or international agreements, and the simulated drowning technique known as “waterboarding” was used only three times.

In all instances, he said, the methods used produced valuable information about terrorist operations.

Just to refresh old man PapaDick’s memory, waterboarding was used at least 268 times (83 times with Abu Zubaydah, at least 183 times with Khalid Sheikh Mohammed, and twice with Rahim al-Nashiri). With Abu Zubaydah, waterboarding produced no information that the FBI hadn’t already elicited using rapport-based interrogation. Not even Liz “BabyDick” Cheney claims waterboarding worked with al-Nashiri. And KSM provided a lot of information–much of it long after he was waterboarded, when the CIA had begun using rapport-based interrogation with him, too. I guess, too, old man PapaDick has simply forgotten how much inaccurate information these methods elicited.

So maybe I shouldn’t be surprised about Cheney’s apparently clear memory. Turns out he was the same doddering forgetful fool last night as he was on May 8, 2004, when he couldn’t seem to remember much of anything.

I guess I should be surprised, then, that MSNBC didn’t report this speech with a caveat, noting that Cheney’s memory has now proven to be completely faulty, and no one should treat his assertions about the CIA with any credibility.

Athenae has a typically righteous post about just this topic today, with regards to the Fort Hood tragedy yesterday. And as it happens, it is fund-drive week over at First Draft.

So go over and read the post, part of which appears below. And while you’re there, leave some scratch if you can.

The only part of this Fort Hood business I feel remotely qualified to begin to talk about is the coverage, of which it is impossible to judge the accuracy right now. But on TV people are calling up anyone they can think of, to say anything that pops into their heads, without vetting, without background checking, without any of the vaunted gatekeeping traditional media like to deride bloggers for lacking.

My first daily paper job out of college was in a small city getting ripped apart by gang violence. I’d never covered cops before, and the police reporter was this terrifying news god who knew everything and had sources that made Deep Throat look like Ari Fleischer. I was scared to death I’d get called out to some scene where nobody would talk to me, and I’d end up screwing something up.

So one night I’m confessing this to the copy editor working my meeting story into something recognizable as English, and he tells me something I’ve never forgotten in 12 years. “If you can’t get anyone to talk to just look around and write down everything you see. Everything that’s happening, write it down. That’s the story too.” I’ve gotten a very few great journalism lessons in my life and that was one of them, that this is the job: Write down what you see.

It’s not a lot. It’s not anything I’d ever put above anyone who can swing a hammer. I don’t have a lot of useful skills but I felt for a long time and still feel that we know each other because we are told about each other and that if all you can do is bear witness then you do that. Write down what you see. And tell as many people, as many many people, as you possibly can. It’s a simple job. It’s an impossibly simple job.

But you have to shut the fuck up and get out of your own way to do it, and that’s where most of us slip up at least once. We make it all about us, or about who we know, or what we really think, and not about the experiences of the people involved.

[snip]

The first day, the first hours: Cut out all the analysis, all the nonsense, and just tell us what you see. What you can prove. What you know is real. That’s what we need. That’s the best thing that can be done in this scenario. That’s the only useful thing. That’s what people need the most.

In addition, the House Judiciary passed its version of PATRIOT Reauthorization. It’s a better bill than the Senate bill.

While both of these bills have a long way to go before they get signed into law (and at some point, I would expect the Obama Administration to reveal their opposition–and their support for unfettered executive power). But on the state secrets bill, especially, we have taken a very small step toward reining in the abuse of power of both Bush and Obama.

Schiff: Strike ordinary pen register and trap and trace changes. Follow-up to Rooney amendment, potential unintended consequences on changing trap and trace. Avoid unintended consequences.

Smith: Strikes higher standard for pen register and adds audit.

Schiff: Yes. Calls for same audit in one context extended to FISA and criminal context.

Smith: Improves bill, not to extent we can support bill.

Passed on voice vote.

Issa: Strike section 106. Sneak and peek. Existing bill limits judges discretion in granting permission for delayed notice. Imposes standard which shall not be achieved.

[This is being held for the moment, now moving to State Secrets]

Resolution of inquiry from Lamar Smith on Medical Malpractice.

Nadler: State Secrets. Uniform standards for state secrets. In order for rule of law to have any meaning, must have recourse in court. If wiretaps your phone, steals your gun, kidnaps and tortures you, only remedy is to sue the govt. If exec can have any case dismissed on any incantation of state secrets, not simply excuse to shield illegal or embarrassing information. There can be no law, no rights and no liberty if exec can do anything it wants behind wall of state secrecy.Holder policy welcome, but not enough. Internal policing, but still permits exec to be its own judge. Congress has provided guidance to courts on handing sensitive info in other contexts. Several witnesses who have submitted evidence, courts have proven themselves fully competent, that is Courts best qualified to balance risks of disclosing evidence. Only govt interlocutory appeal. Prohibits dismissal at outset. Would require Court to rule on actual, not hypothetical harm. Requires all judges review info to determine whether harm is likely to occur. Currently each judge decides whether to review or whether to accept govt’s assertions. If judge determines privilege has been asserted, consider substitute. Where no possible substitute, allows dismissing or finding for or against. Modeled on CIPA. Same type of flexibility in civil cases as in criminal cases. Courts, find balance.

Sensenbrenner: State secrets long-standing. SCOTUS most recently described in Reynolds. May occasionally disprivilege someone suing in court important to protect all Americans. Obama Administration not enamoured with this legislation.

[Shorter Jim Sensenbrenner: I'm as fond of Democrats abusing power as I am of Republicans doing so.]

Conyers: Want to thank Gentleman for research in which he has allied the current president with the past president.

Nadler: Sensenbrenner helped make the case for this bill. Kennedy: “District Court will use discretion” to protect valid state secrets. Yes. That’s the point of this bill. Many courts will use discretion. Many courts will say we won’t look at it. What this bill says is you have to look at it. Court should do exactly what J Kennedy said, and assess validity of state secrets. Also said we use deference, with FOIA is to obtain public disclosure. Has resulted in abject deference. In civil cases, the goal is the suit isn’t public disclosure. Alleging injury. Greater constitutional concern. Should not require undue deference. Yes, we must protect state secrets if validly asserted. We know that govt in Pentagon Paper said sky would fall. Reynolds case, establishing state secrets, govt lied to Court. In fact, when became public, nothing to do with that. Air force negligence. Even if state secrets had constitutional origins. Until Bush Admin, ss used only to say you can’t see that doc. Under Bush, sadly supported by Obama Admin in court, new use, move to dismiss case, right after first pleading, on grounds that consideration will result in revelation of ss. Not evidentiary protection, but use of doctrine to preclude consideration at all. This bill says you can’t do that. What that means is they’re not protecting state secrets. Govt can do ANYTHING to you. Can violate second amendment. When you sue them to say stop, they say, you can’t consider the case. SO you can’t get into Court. It may be that SCOTUS will say you can’t do that. Unfortunate that Obama Admin taking same position. THey haven’t taken it publicly. So for those reason urge to support bill.

Smith. Join Obama Admin in opposing bill. Obama has resstated state secrets four times. Serves essential purpose of protecting secrets. Leahy just monitoring Admin’s policy.

Back to PATRIOT:

Issa: Will and may language (this is a compromise that will likely go through on voice vote).

Bill passes 16-10.

Back to State Secrets.

Nadler Amendment: 3 technical changes. First stream-lines process for attys w/clearances. Clarify aspects of what happens after Court determines ss valid or no. Court issues orders if ss does not apply.

[Good for Nadler--he's putting in requirements to give atty clearance or appoint one who has it]

Goodlatte: Support amendment, not bill.

Schiff: No guidance on how to evaluate testimony of govt versus other witnesses. In Senate leg include substantial weight standard. Provide that govt’s assertion of harm be given due deference. Will facilitate court in understanding whether witness possess broadest possible information on disclosure of state secrets.

Nadler: Secondary amendment. The whole point, we’re asking court to judge whether govt’s assertion is valid or not. Has to be hearing. Secret in camera hearing in front of judge. Due deference. Putting thumb on scale. In FOIA, you rarely see judge disagree with govt. Govt here not disinterested party, govt has allegedly wronged someone.

Lungren: Rise in support of Schiff amendment. SCOTUS has said clearly that a claim of privilege on ground that info constitutes diplomatic secrets necessarily Article II. Constitution gives deference. US Constitution does that.

Lungren now quoting Navy v. Egan without noting that it allows for Congressional limitations.

Nadler: Egan recognizes broad authority. Unless Congress has provided otherwise.

Thank you Nadler. I like when the lawyers come in and defend my slapdown of stupid Republicans channeling David Addington.

Nadler: Bill says court shall weigh in same manner. Schiff takes out and subs “due deference.” Secondary would put back in, weigh in same manner, in making such an assessment, as supported by material reviewed under section b1. So long as supported by something in record.

Delahunt: Recommends Nadler removes secondary amendment and opposes Schiff. I think we have learned that executive power should be limited. We’ve had significant difficulty receiving from exec collaboration necessary for effective oversight. It’s time to reassert the Constitutional authority of US Congress, task judiciary with its obligations under the constitution and not continue this abject deference to the executive. They will make the case as to the need to the assertion of the privilege. Do not want to see continued trend toward unfettered exec power.

Gohmert: Agree respect from CA. Regarding part where he said due deference borders on irrefutable. Doesn’t mean irrefutable. Due diligence means due deference.

Delahunt: Judges will interpret to give credence to what may irrebutable. Tell the courts that they have obligation as separate order of govt. If we are going to have a system of checks and balances everyone has to do their part.

Gohmert: some experts think constitution ought to be scrapped.

[You ignorant fucker, the constitution requires separation of powers.  YOU'RE the one ignoring the Constitution]

Schiff: Constitutional core, some Article II power, to say revelation would be so injurious that exec can preclude that.

Gohmert: Both sides of aisle, administrations claiming privileges they shouldn’t have. Should not be irrefutable.

Jackson Lee: This amendment skews balance. Article III courts give deference.

Gohmert: If we vote it down, courts can look at legislative history.

Schiff amendment fails 13-17.

Schiff:

Nadler: Compromise?

Schiff amendment does something with which attorneys.

WOOT!! We have a state secrets bill. 18-12 vote, with just Schiff crossing aisle to vote against.

Here’s Jerry Nadler, in yesterday’s hearing, explaining how the PATRIOT reauthorization attempts to balance privacy and national security.

Follow along today’s hearing here.

Oops, I had some technical issues. Started up late. Apparently Lamar Smith is attempting to keep Lone Wolf.

Conyers now explaining that Suzanne Spaulding says govt could always seek criminal warrant for a Lone Wolf. Lone Wolf provision not in original PATRIOT, nor the one that got substituted in middle of the night in rules committee, got added for reasons not remembered by me now. Govt already uses criminal warrants with domestic terrorists, comparable to Timothy McVeigh. Tom Evans says Lone Wolf not constitutional.

Chaffetz: My understanding is that DOJ is in favor of keeping this in place.

Smith: I agree with President of US and DOJ and FBI that this needs to be reauthorized. Let me address again those who argue that we can substitute criminal wiretaps. Wiretaps that the evidence will be turned over to defendant. In case of this provision, dangerous to turn over, bc it might reveal sources and methods. Second reason, criminal wiretaps require live minimization. Translating foreign language, live minimization impossible. I don’t know if gentleman from CA would like for me to yield to him?

[Interesting, this is where Adam Schiff pushes right.]

Nadler: Only heard one of Mr. Smith’s two points, that if you use lone wolf, if you use Title III, that is done with view toward using evidence in court, if evidence collected that was secret, bring CIPA into play. Not a valid reason for having new section of law. Fundamental reason for not extending it, if you don’t show connection to foreign power, no justification for going beyond Fourth Amendment. Fourth Amendment is a protection in criminal law, when you have lone wolf, who by definition is not foreign intell, then it makes this whole thing unconstitutional.

Smith: It does add to burden.

Nadler: SCOTUS has made it clear that Fourth Amendment applies to all persons in US.

Smith: Live minimization. Speaking foreign language.

Sensenbrenner: Support amendment of gentleman from TX. Lone Wolf plugged the hole. Maybe bc the hole is plugged, not necessary to use it, but if we create the hole again, we create a gap that terrorists will exploit. Prosecution required to disclose in open court, phone conversations disclosed in court, result indicated that we weren’t able to use that surveillance method day after it became used in trial.

[The Republicans keep arguing that any hole in PATRIOT will be used by AQ, even while arguing that parallel holes in civil liberties protections won't be used by investigators. I guess some human beings are either shrewder or less human than others.]

[Sensenbrenner is arguing that al Qaeda was successful on 9/11 bc of the earlier World Trade Center trial.]

Conyers: Lone wolf never came before judiciary committee.

Sensenbrenner: DOJ realized it needed it in 2004.

On this, Schiff and Quigley voted yes (that is, to keep the Lone Wolf provision.) Also there are a lot more Republicans present, it looks like. Looks like Conyers had to keep this one open long enough to get the votes. 15-15 vote.

They’re breaking for a vote right now. I’m curious that Quigley was the one person–besides Adam Schiff, which I have predicted–who voted to keep Lone Wolf. Is it because he’s new, or bc he thinks he might have to face Rahm? Or what?

AND we’re back…

Tammy Baldwin now introducing amendment.

Baldwin: Thank you for limiting current law that has been employed in violation of Americans’ civil liberties. Remember well history that Chair cited yesterday when our Committee’s bill was tossed aside. Do have concerns about classification about programs authorized by FISA or NSLs. Whether programs need to be classified as such. Amendment expresses sense of Congress that President should review classification level of programs that use NSLs or authorities under FISA. Amendment makes clear that review should not endanger ongoing investigation. EOs on classification, 13292. This includes systematic declassification review by each agency. My amendment is consistent with these orders. Reaffirms that govt should provide info about these programs as soon as possible. Obama Admin has already taken steps to declassify. Documents from OLC on torture. July spy satellite images, ice melting.

Smith: I don’t object to this amendment, considering that NSL provisions have been so weakened, why have this review. Good part of bill.

Conyers: Weakest endorsement this year.

Coble: Introduces amendment striking section requiring public reporting. Declassification belongs to Executive, I don’t think we can legally require this. Postpone until necessary input from DOJ.

Conyers: Suggestion, that perhaps if gentleman would be kind enough to withdraw, we will get immediate meeting with DOJ, and you and me and ranking member to determine if your amendment is the only outcome, if there’s no satisfaction to be had from DOJ.

Smith: I’d like to accept your offer, add items, starting with lone wolf.

Conyers: I would add the lone wolf since it was defeated on tie vote.

Sheila Jackson Lee: Introduces humanitarian exemption from criminal material support statute. Want to note for the record that title of reauthorization PATRIOT allows consideration of number of issues including material support. Seeks to limit some of provisions that have diminished privacy. Gentleman from TX, well aware of some of the issues on charitable foundations, does not capture charitable orgs that were using that status for terrorist activity. To address providing humanitarian aide. Currently employees face prison time, should be imposed only on those who mean to support terrorism.

Baldwin: Result is that people do without necessities because humanitarian groups are prohibited under material support provision. Very difficult to provide assistance in Sri Lanka after tsunami without cooperating with Tamil Tigers. I do believe we have to amend underlying language.

Nadler: While I understand humanitarian concerns. Effect would be far from humanitarian. Add food and water to medical supplies. Issues not definition, prohibition to which definition refers. Prohibits from providing resources, knowing or intending they will be used for terrorism related offense. If it’s not given with intent that it be used for terrorist act, it’s not prohibited.

Smith: Amendment not germane, beyond scope and purpose.

Jackson Lee: Disagree with interpretation of definition. We have amended roving wiretaps. I believe this is germane. Withdraw amendment. Would like to add this issue to discussion with DOJ.

Bobby Scott agrees to do hearing in Criminal subcommittee.

DWS: Grave concern and personal opposition. This is settled question. Money is fungible, I don’t think it would be appropriate or timely.

Jackson Lee: Basis for oppty to explore for factual information.

Rooney: Strike changes make to criminal pen registers and trap and trace devices. Federal criminal code has provided since 1986. Requires specific and articulable facts in statement to Court. Says police opposed.

Quigley: Have law enforcement agencies taking stand against, in form of documents, and put into record?

Rooney: Emails effectuating what was stated.

Quigley: Groups?

Rooney: National DA Assc, Fraternal Order of Police, etc.

Scott: Section 107 would be eliminated by this amendment. Trap and trace does not capture privacy. Under current law, not requirement that explain any facts.

Smith: Support. Strikes changes made. If amendment not adopted, will unduly burden law enforcement.

Rooney: When you talk about standards of proof.

Schiff: Secondary? One that would not have specific and articulable, but do away with presumption?

Rooney: Would consider, would alleviate disparity, that there’s some problem with existing law.

Issa: On this side having a hard time finding that there is a presumption. In this case, writing down license plate numbers. More appropriate equivalent. Trapping relevant association numbers.

Lungren: Hearings on this particular subject?

Scott: Not sure if this came up.

Lungren: Law enforcement technique, law enforcement agencies unanimously oppose change. Far-ranging change in the law.

Schiff: Question to author of amendment is, would the gentleman accept secondary amendment?

Rooney: Without any evidence or proof that current standard being abused, I don’t see the need to modify. I’d like amendment to stand on its own.

Johnson: Is it true that when investigation that has not led to indictment.

Scott: Trap and trace pursuant to court order.

Rooney now introducing same amendment wrt FISA trap and trace.

Smith: New standard unnecessary, burdensome to govt.

Jackson Lee: Not enhanced standard, Clearer standard.

Jackson Lee: Public reporting.Achieve President’s support for transparency.

Adam Schiff and a top staffer are having fairly intense discussion right in front of Jackson Lee. I wonder what Shiff has coming.

Jackson Lee invoking King assassination in support of greater transparency on PATRIOT.

Smith: Wish Conyers was here, because when Coble strike public reporting on NSL, this amendment would fall under same category. Ask colleague from TX to consider withdrawing, so she and Coble and I can discuss public reporting.

Lungren: Revises standard by which FISA will review govt cert of nondisclosure of business record. Existing legislation strikes conclusive. Substantial weight rather than no weight at all.

Scott: Under current law when a person receives 215, he cannot challenge for a full year. Court required to reject a challenge. Bill is right to change, too many times under last Admin, abuse of secrecy to hide crimes, torture warrantless surveillance, and whether or not Iraq had WMD. We’re right to adjust govt’s power. If govt cannot make case maybe it cannot get secrecy order to begin with.

Smith: Support amendment. Incorporates deferential standard more accurately reflects 2nd circuit.

Lungren: Stunned that Chair would talk about torture, this has nothing to do with this. Nondisclosure of business records. Adopting SJC standard.

Schiff: Adopts an appropriate balance.

[Uh, I notice you don't make the same claim about warrantless wiretapping. Is that bc they used these authorities to replace warrantless wiretapping???]

Watt: If we were silent. Doe said standard applied was unconstitutional. What standard did they apply?

Lungren: Left it opened, but acknowledged that deference given.

Watt: Court would give deference anyway. In this cases Court gives degree of deference.

Schiff: US v Nixon, used utmost deference. If you go form situation where standard conclusive to no standard, court could infer no added weight. So if we set a standard better than no standard at all.

The ACLU has received Condi’s response, sent a week later. (h/t MadDog) The summary of the response describes the document as “Memorandum from Condoleezza Rice … regarding review of CIA’s Interrogation Program.” Condi appears to be putting Tenet off on DOJ.

I have reviewed your memorandum to me of June 4, 2004. As we have already discussed, the next logical step is for the Attorney General to complete the relevant legal analysis now in preparation. Once this work is completed and you have returned from your current travel, we can convene a Principals Committee meeting on this subject. In the interim, I will contact Attorney General Ashcroft to underscore the priority we attach to completing expeditiously the Department of Justice’s legal analysis. I also encourage you to carry through on your expressed intention of talking to the Attorney General directly on this subject before any Principals Committee meeting.

Now, the document is interesting when read against the background of reports that–at precisely this time–Tenet requested a document from the White House endorsing torture as a policy. That is, Condi’s response to Tenet’s request for a document from President Bush might have been to pawn Tenet off on DOJ.

With that in mind look at how these two documents–and Condi’s instruction that DOJ would have to review the torture program next–fit into the timeline of debate between DOJ and CIA.

June 3, 2004: Tenet announces his resignation; John McLaughlin resigns as well. SOUTHCOM Commander James Hill traces source of abusive techniques used on al-Qahtani to SERE training.

June 2004: (After announcing his resignation) Tenet requests more explicit approval water-boarding.

June 4, 2004: Tenet requests review from Condi.

June 7, 2004: WSJ refers to March 2003 OLC opinion.

June 8, 2004: WaPo reports on details of Bybee Memo.

June 10, 2004: Goldsmith tells Muller that the Legal Principles are not an opinion of OLC, demands any more request for opinions to be in writing.

June 11, 2004: Condi responds to Tenet’s request for review (Tenet receives this on June 14).

June 15, 2004: Goldsmith informs Ashcroft he will withdraw Bybee Memo and resigns. This effectively leaves the CIA with no legal protection for the water-boarding it had already done.

June 17, 2004: Jack Goldsmith announces his resignation.

June 18, 2004: Goldsmith writes Tenet telling him the IG Report mis-represents Ashcroft’s statements.

June 22, 2004: In an off-the-record briefing, Comey, Goldsmith, and Philbin renounce Bybee Memo. Rizzo sends Philbin copy of earlier approval from Yoo. Muller responds to Goldsmith saying he had forwarded the complaints to John Helgerson, but would release the IG Report that week.

No wonder things were getting so testy between CIA and DOJ. (It may also explain why Goldsmith only withdrew the Bybee One memo, and not the Bybee Two memo.)

graphic: Dr John 2005 via Flickr

The hearing started with John Conyers introducing a managers amendment to the bill that made tweaks to the overal bill to move them slightly closer to what the Obama Administration wanted. Republicans tried to gut National Security Letters (NSLs). One of those pertained to the changes in NSL minimization.

Republicans tried to eliminate special protections for library records, expand NSLs, and eliminate any minimization on NSL information. On all three, those amendments went down on a party line vote. Nadler did a particularly good job at defending the logic of the underlying bill, particularly the standards of proof the government must have to conduct certain kinds of searches.

Then, Adam Schiff (as I had predicted) piped up to make one of the changes the Administration wanted. He switched the 215 standard to what the Senate Judiciary Committee has adopted (showing the reasons to believe that records are relevant to an authorized investigation), but then required the Administration to come up with a better way to collect this information. Whereas in the Senate, that effort won bipartisan support, here it was strictly party line vote (though it seemed like Maxine Waters considered voting against it from the left).

The highlight of the hearing, though, was a speech that Mel Watt made. He talked about how, in the days after 9/11, he thought, “Well, if AG Ashcroft is protecting me from terrorists, who’s protecting me from AG Ashcroft?” He went on to bemoan the fact that there was no one like Bob Barr left on the Republican side. “I long for the day that somebody on your side of the aisle and remember that it was you that stood for individual rights at one point in your party’s history.”

All things considered, this is currently a better bill than the Senate side–though still one that allows for data mining of Americans. They’re coming back tomorrow, though, so we have not yet succeeded in improving on the SJC bill.

[Ed. note: The House Judiciary Committee is expected to reconvene Thursday at 11:00 a.m. EST; watch for more coverage here at emptywheel.]

Dan Lungren: NSL minimization. Deals with section of bill bc they did it on the Senate side. Strikes 2008 which calls for establishment of minimization procedures obtained pursuant to NSLs. If there are tangible problems that have arisen, let’s create new procedures. Problem is we’re trying to apply concept of minimization in NSL context. Can’t use electronic surveillance and apply to NSLs. Square peg round hole. Not content of communication. Contrast to electronic surveillance. Generally note an expectation of privacy that a communication occurred, rather than communication itself. I’m talking about entry in phonebook. We will have chaotic consequences. I know some don’t like NSLs. Much like criminal cases where GJ subpoenas can be used for duration of investigation. Must be available to national security. It seems at least strange that we would have higher degree of proof higher bar dealing in terrorist context. Requirement of destruction of early building blocks will lead to more intrusive means.  I think minimization inapplicable to NSLs. As far as I can find from anything we received from Admin, no support. Leahy received letter from DOJ. Found nothing that says Admin believes this is necessary.

[Since when do Congressmen refuse to legislate until the President tells them to? He's pretending he can't accept an amendment unless the President tells him to. Let's hope that stance carries over to health care.]

Conyers: I think your efforts are good faith. Procedures reasonably designed to minimize the acquisition and retention of non-publicly available info regarding unconsenting US persons. These minimization procedures ensuring that non-public info during nat sec investigations regarding innocent American persons not disclosed by law enforcement. Privacy experts and DOJ acknowledged need for these types of guidelines. Not dreamed up by our distinguished colleagues. Managers amendment accounts more accurately for how it can be used. Only for minimization procedures reasonably designed in light of NSL. Directs AG to submit procedures to Congress. I’m hoping we can go along with refining minimization procedures that already exist.

Lungren: Realize DOJ refining procedures wrt NSL. Unaware of DOJ either suggestion or consideration of applying minimization reqts to NSLs as part of good faith effort to refine NSL.

Conyers: We’ve been working together. If I had a letter that would address this to your satisfaction. They know what we’re doing and why we’re doing it. We have not encountered any objection to what is embodied in manager’s amendment.

Lungren: First I heard DOJ had not raised any objections. My understanding they thought this was an inappropriate transfer of process used in electronic realm to this.

Conyers: I’ve got an idea I’d like to present to you afterwards that would make you more comfortable.

Smith: Support this amendment. Minimization will only burden FBI with unnecessary procedural impediments. Oh, and we should have had a hearing.

Conyers: I have a page full of hearings that we have had. To you and perhaps others they were insufficient and I apologize for that. Btw we did not receive any notice of what your amendments were. I don’t know what other amendments are coming.

Chaffetz: I appreciate you on the great pronunciation on my name. Strikes 204 that require govt to, in addition to NSL, document specific and articulable facts that pertains to foreign power or agent of foreign power. Allows info to be sought not just if it pertains to agent of foreign power.  A backdoor attempt to roll back standards for NSLs. Previously Congress did away with specific and articulable facts. Congress refused to return to that standard.

[Chaffetz was just playing dumb, claims he didn't know what happened before. All of a sudden he's lecturing about what has gone before.]

Chaffetz: How can we limit when we know it relates to agent of foreign power.

Nadler: Rise in opposition. We have sought to properly balance considerations of national security and personal liberty. NSL issued without any court. Should be held to a higher standard than 215 business records order. Have to be reasonable and articulable facts, to show grounds to believe relates to foreign power, or agent of foreign power, or pertains to indiv in contact with. If you cant’ show it relates to a terrorist, you should not be getting this. Relevant to an investigation is a 215 order, which requires court approval. If you can’t show that it is related to a terrorist, go to a court and at least get an order. So we provided for both those contigencies, in a way that is more protective of privacy. What this seeks to go back to is essentially the current law, which has led to many abuses.

Smith: Support this amendment. In 2001 and 2005 we specifically reject need to have specific and articulable facts. Nothing has changed.

Conyers: At least one IG report, talking about abuses with NSLs. I will put into record. It is what has changed that we have been able to document that has led us to write managers amendment in this way.

Issa: Majority may choose not to support amendment. Record keeping related. I certainly think we can find a way to sanction those who do not keep records. Justify, if not this amendment, where would be not curtail legitimate use of, for example, a plot to put liquid homemade plots in Britain. Do we tie hands here to follow-up to see if there are similar activities? Would the Chair speak to base text still enabling appropriate use is that what you’re doing we’re going to cut off the tool.

Conyers:All we’re doing is requiring they go to Court.

Issa: If then they should go to Court.

Nadler: I’m confused about what your question was. What I tried to say before is that we’re establishing two standards. 215, to do that need to get court order. Higher standard to look at similar records w/o court order. I’m not saying requiring court order but with lower standard you would require court order.

Issa: I would yield to the guy who has actually headed up investigations, Lungren?

Lungren: Sloppy record keeping. If you look at IG report. They didn’t find any evidence of mal-intent, every indication is that taht has changed.

[What about the time when FBI tried to do something improper with 215 and then did it with NSL instead, after Court had said not.]

Issa: We’ve had the change, old admin, to new admin, negating any reason for this amendment.

Conyers: You didn’t intentionally intend to stir up ordinary…

Issa: I think he was saying I was replacement for Bob Barr. With ACLU and NRA, making it as good as it could be. Wanting to get back to what we voted out of this bill.

Nadler: Gentlmen from CA talking about record-keeping abuses. I’ll give you a few. Documents including social security and DOB records irrelevant to investigation. University records from university. Full credit reports when full credit reports only in counter terrorism cases. In a couple of instances after FISA court denied record based on First Amendment concerns, the FBI simply went around Court, circumventing Court’s oversight, despite fact that NSLs subject to First Amendment cases. These are some of the things we’re trying to get at. Need strong oversight. Craft bill to put appropriate limits while permitting necessary investigations.

Chaffetz (?): In those three examples.moved outside of the law, doesn’t mean law was wrong.

Nadler: We disagree on that.

Issa (I think) blares into mike, Conyers chides him for it.

Schiff: Makes changes to Section 215. May be used to order any tangible thing. Should not be used lightly. Orders reviewed by FISA Court, presumptively relevant. Bill before Committee leaves before presumption, govt must show specific and articulable facs. Admin has expressed concern that this would impact intelligence activities. Remove specific and articulable facts, but no longer presumption. Require report to Congress in six months about better ways to collect.

[This would put this in line with the SJC, except that it instructs Admin to go find better way to collect this info]

Quigley: Discussions with DOJ?

Schiff: DOJ hasn’t given definitive answer. The Amendment addresses concerns raised by Admin. Admin would be more inclined to support than the provisions that it amends.

Quigley: I’ll support this amendment, do hope that the DOJ graces with their opinions on this. Critical decisions. I understand SJC already had markup without DOJ veiws. Need to let us know what their views are.

[Note Quigley asked about DOJ views, but Schiff answered that feedback came from Obama Administration]

Smith: Another reason we might have a hearing. Amendment an improvement.

Smith: How can we protect civil liberties when we don’t know how civil liberties affects these intrusions?

Conyers: Schiff wrt business records that we strike specific and articulable fact standard replace with language reported on bipartisan basis in Senate. Doing what has been done in Senate. So what we’re trying to do is direct govt submit to court statement relied upon by applicant that info sought is relevant to authorized anti-terrorism investigation. Eliminate presumption of relevance that is currently in the law. Not a matter of making it more complicated, being much more specific about it. Reason this enjoys bicameral support, we’re eliminating presumption of relevance. Ask that it be specifically articulated. Submit report to House and Senate committees on ways that ongoing operations can enhance civil liberties, within six month period.

Schiff: Exactly right. In response to ranking member, not wanting to force govt to disclose facts in court, 215 orders approved by FISA. I would hope, and expect, that when it makes 215 requests, does make showing of why relevance. I would hope not relying on presumption. No jeopardy that it be disclosed.

Lungren: Amendment to amendment. Members will recall various briefings we have had. Centrality of this section of the law to various programs proven very successful in fight against terrorism. Difference between requiring specific and articulable versus using standard of relevance at this stage of program or programs or whatever we want to call them, if we revert back to specific and articulable, it would deny us many of the dots that we need to connect as we were told by 9/11 Commission. Gentleman’s amendment retains relevant standard. Requires statement of facts relied upon. However, my amendment would strike lines 7 through 10, which is the section where he removes presumption that goes in favor of whatever agency making application. What evidence is there that there has been any abuse. Why ought there not be a presumption? [his voice is rising] As has been expressed, concern that when remove presumption, telling the court that we want different standard. No evidence in hearings we had..

[WAit, you said you had no briefings or hearings? Now you remember hearings?]

Lungren: Limited by what we can say publicly. Find one example of an abuse. One of the key areas of the PATRIOT Act, why didn’t you collect the dots bc of the way the law was written inability to access the kind of information we’re talking about here. Gentleman said look, that should be higher standard, you have courts review it. FISA Cout has done an exceptional job. Why run the risk of changing the standard that may cause the court to change its analysis. If we’re acting to tell them past practice is based on presumption.

That is the danger that we have here. We had a problem with 9/11, attempted to address it. Know of programs about which we’ve been briefed for which this works very well, running a risk of sending a message to the Court that we want something different than what you’ve approved in the past.

Conyers: What you’re doing is striking specific and articulable facts and taking away presumptive relevance.

Schiff: We are removing specific and articulable and also removing presumption. Two things. Contrary to what my colleague said, we are not changing standard. By removing specific and articulable. Removing presumption. Standard remains the same, not going to presume that something is relevant. THey should be showing relevance. WRT never been problem, I would beg to differ, it’s not something we can or should discuss here, have had public hearings, I would not represent no probs with 215. Govt should not be asking if cannot show relevance. I dont’ think showing relevance would impede any program that is ongoing.