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Holder Refuses to Say Warrantless Wiretapping Is Illegal
10 a.m. Live webcast video.
Skip down to the word Feingold to find anything useful here.
10:03 Leahy begins it with a big wet kiss on the but for the man who has supposedly restored the DOJ to being a D of JUSTICE. But he objects to abuses like "state secrets." Not a word about political prosecutions, no mention of names like Don Seigelman. Not a word about prosecuting torturers, war criminals, violators of FISA, etc.
10:10 Sessions: blah blah, no I mean it, blah. I'm disappointed. Rule of law. Constitution. Blah. (Constitution of course is document that denies all rights to enemy combatants.) Given critical information to our enemies. (Constitution says to keep everything secret.) Dropping prosecution of Black Panther voter intimidation. (So election tempering DOES make it into this hearing.) Blah. Miranda warnings for mere human beings. Blah. (Does Leahy ever wish he'd taken the offensive after he sputters his weak flattery and then has to sit through an assault like this? I'm kidding, of course. He must enjoy this.) Reauthorize the PATRIOT Act. I'm disappointed. Blah. Blah.
10:24 Holder making his statement. Won't let Gitmo Terrorists or Mexican drug dealers getcha. Civil rights. Medicare and Medicaid fraud. (But not private health insurance fraud?)
10:30 Q&A. Leahy replies to Black Panther thing and shifts blame to a "career attorney," not the AG. Blames Republicans holding up nomination of head of civil rights division. Then Leahy goes into speech about shooting at Holocaust Museum. These crimes are "vile" (unlike aggressive war, preventive detention, torture, rendition, warrantless spying, political prosecutions). Wants to pass Hate Crimes Prevention Act.
10:34 Holder agrees it's a good bill.
10:36 Leahy asks about warrantless spying and fact that he had to learn about it from today's New York Times. Holder claims to know nothing because he hasn't "reviewed in any detail" the New York Times article.
10:47 Sessions has spent the past 10 mins on release of dangerous evil innocent victims of Guantanamo.
10:47 Senator Kohl asks (sort of) about indefinite detentions.
10:49 Holder says he'll make sure and apply some "robust due process". Why is it that everything purporting to be what it isn't (including the "robust public option" for healthcare) is "robust"?
10:51 Another softball from Kohl: what steps have you taken to make DOJ independent of politics?
10:55 Lindsey Graham actually supports closing Gitmo because of the damage it does to US image. Good. But no mention of Bagram or any other bases used just like Gitmo. And Graham wants military commissions used, not courts. And he wants some people neither released nor tried. But he does want them tried or something. Holder says there would be "a review." Graham agrees: an annual review process to make sure the detainee has a way forward. (Forward to what if not being released or tried?)
11:00 Graham raises Bagram prisoners. Urges treating them in same "new system" -- whatever it is. Graham doesn't let Holder respond. Graham moves on to preventing release of torture photos. Wants assurance that if courts insist on release of photos, president will illegally issue an executive order preventing release. Holder doesn't exactly give that assurance. Graham wants executive order actually to be issued before another court rules that photos must be released. Holder gives no definite answer.
11:03 Feinstein says NY Times story on spying is not true. Tom Coburn already spoke up with that same claim.
11:06 Feinstein asks whether the OLC Opinion announcing that 4th Amendment did not apply in war on terra had been withdrawn. Holder says he doesn't know. Holder says some OLC opinions have been released and he'll release more, and he wants Dawn Johnsen to finally be confirmed as head of OLC. Feinstein turns to drug war. Then she asks about "due process reviews periodically" for "enemy combatants". Holder says they're still "coming up with" what that "review" will be and how frequent. (Ya don't just invent a whole new (il)legal system overnight.) Feinstein goes back to pushing drug war.
11:14 Tom Coburn asking about Emmett Till civil rights bill.
11:15 Coburn concerned that killing of abortion doctor in Kansas considered hate crime - what about killing of a soldier in Arkansas? Holder says that too might be a hate crime if based on race but not if based on military status. Coburn proposes possibility of new legislation to protect military recruiters. (But not to protect those who die because of the lies of military recruiters.) Blah blah. Assault weapons.
Feingold should be next if he's there. Whitehouse is way down the list. So SOMETHING might still get said in this hearing.
11:20 Feingold raises prolonged detention and refers to his recent hearing. Says "due process protections" don't cover it. Says this could be a big mistake and hurt relations around the world. Then he objects to failure to withdraw opinions asserting legality of warrantless wiretapping. Was the warrantless wiretapping program illegal?
11:22 Holder: It was unwise. He refuses to say it was illegal! Feingold asks him again. Not a straight answer. A third and fourth time. Holder willing to say "inconsistent with FISA" but refuses five times to say illegal or unconstitutional. Feingold repeatedly cites Obama's pre-election statements.
11:24 Feingold mentions that memos authorizing torture have been withdrawn and wants to know why memos authorizing warrantless wiretapping have not been. Holder said he hopes to release opinions. (Which is different from overturning them.)
11:25 Feingold asks about abuse of "state secrets" privilege. Since February Feingold has sought a classified briefing from the exec branch to explain three cases in which that excuse has been used. Feingold asks Holder to get him that breifing - and asks twice. Holder refuses to commit to that. Holder says that withing "a matter of days" he will make some proposals public.
11:28 Orrin Hatch's turn.
11:33 Orrin Hatch raises "state secrets" privilege in support of abusing it as much as possible, but objecting that tomorrow the committee will begin marking up the State Secrets Protection Act that would limit imperial power. We've been waiting for months for DOJ's opinion on the bill. What is it?
11:35 Holder: We're about to release what our views are, and they will address the concerns of some people that legislation might be needed. I think our proposals will be sufficient. Holder prefers to let executive decrees do what legislation is supposed to do.
11:36 Leahy has no problem with that but says "If we do not have the Dept's views, we WILL mark up the bill."
11:38 Durbin's turn.
11:39 Durbin asks about OPR Report on torture. Again raises concern that six weeks ago the subjects of the report submitted responses (in a bizarre unprecedented move). Holder says that changes are being made to the report as a result of those responses. He thinks that pretty soon ("a matter of weeks") some of the report will be released, but other parts will be classified. But Holder thinks the unclassified portion alone will give wrong impressions. He'll want to get more of the report declassified, but that will take more time.
It's worth noting that leaders in both houses of Congress, including Leahy and Conyers, have long since made clear that they will not seek to hold anyone accountable for torture until the OPR report is released. Presumably they mean the full report. And that could be months or never.
11:45 Durbin turns to crack/powder cocaine disparity. Leahy drones on about that for a while too.
Leahy and others discuss the absence of many Judiciary Committee members for this hearing because they are busy working on healthcare. (Maybe they'll focus on healthcare for illegally detained prisoners?)
11:48 John Cornyn's turn. He wants to make sure the people of Washington D.C. do not get voting representation in Congress. OLC opinion that bill unconstitutional not released. Holder says it won't be released if he (Obama) disagrees with it. Holder says OLC opinions are just recommendations. (Well, couldn't Bush have been expected to disagree with memos absurdly concluding or "recommending" that torture was legal?)
11:58 Holder gets worried he's put president in a bad spot and now says that he himself disagrees with the OLC and believes the proposal is constitutional.
11:59 Cardin on predatory lending. Sounds like he's reading a report from ACORN like the ones we used to put out years ago.
12:07 Jon Kyl wants to know what terrorists are currently in US prisons and aren't supermax prisons already overcrowded -- 20,000 in space for 13,000 he says (not that he objects to that, but he doesn't want Evildoers added in there). He's also afraid of immigrants and drugs.
Whitehouse should be next if he's there. So there is a chance of something more.
12:14 Whitehouse approves of the release of OLC torture opinions that have been released already. (Disagreeing with Sessions.) Whitehouse says on Feb 18, 2008, he was told the OPR report was underway, that a draft report was delivered in December 2008, that on May 4, 2009, the comment period for the subjects closed, and the CIA was given an opportunity for substantive comment and classification review -- Is the CIA the logjam? Holder: No, the OPR is still working on the report. The head of the Office is new. The work is related to the responses from the subjects of the report. Whitehouse says CIA has a conflict of interest (as if DOJ doesn't as well!). Whitehouse wants assurance that those at CIA influencing report were not part of the program being reported on. Holder doesn't answer that question at all but just says he'll try to declassify as much as possible. Whitehouse asks again what assurances CIA has given that people involved have clean hands. Holder again does not answer the question at all but says he thinks he's gotten nothing from the CIA yet re classification, suggesting that on substantive comment they HAVE gotten input from the CIA. Holder just says that the DOJ will determine what the report says. Whitehouse asks again and gets no useful response.
12:22 Amy Klobuchar's turn.
12:38 Schumer's turn. Hate crimes.