It's good news that unpaid bloggers are included in this compromise, but since I don't know the details, I don't know if this would have kept Judy Miller out of jail:

WASHINGTON — The Obama administration, leading Senate Democrats and a coalition of news organizations have reached tentative agreement on legislation providing greater protections against the fining or imprisonment of reporters who refuse to identify confidential sources.

Under the deal, made public Friday, federal judges could quash subpoenas demanding testimony or information from reporters if the judges determined that the public interest in news gathering outweighed the need to uncover the source of a leak, including, in some circumstances, unauthorized disclosure of classified government information.

Protection under the so-called shield law would also be extended to unpaid bloggers engaged in gathering and disseminating news.

A version of shield legislation was approved by the House in March. But a similar bill has stalled in the Senate, and its prospects appeared to dim significantly in September when the administration, responding to apprehension expressed by intelligence agencies and prosecutors, took a harder line with regard to cases in which the government could claim national security concerns.

With the new agreement, however, the White House has now moderated that position.

[...]The leading proponents of the legislation, Senators Charles E. Schumer of New York and Arlen Specter of Pennsylvania, both Democrats, expressed confidence that the compromise would move quickly through the Senate.

“We still get most of our information from investigative journalists,” Mr. Specter said. “If you can’t protect sources, there is a lot of public corruption and private malfeasance that will go undetected and unpunished.”

Wired is one of the few publications that acts as a watchdog on civil liberties and freedom of information issues, and I'm glad they do. The federal government far too often overreaches - and this looks like it's one of those times. Go read the whole thing:

(WIRED) -- An anarchist social worker raided by the feds wants his computers, manuscripts and pick axes back. He argues that authorities violated the U.S. Constitution and the rights of his mentally ill clients while searching for evidence that he broke an anti-rioting law on Twitter.

In a guns-drawn raid on October 1, FBI agents and police seized boxes of dubious "evidence" from the Queens, New York, home of Elliott Madison. A U.S. District Judge in Brooklyn has set a Monday deadline to rule on the legality of the search, and in the meantime has ordered the government to refrain from examining the material taken in the 6 a.m. search.

Madison, who counsels more than 100 severely mentally ill patients in New York, seems to have first drawn attention from the authorities at September's G-20 gathering of world leaders in Pittsburgh, Pennsylvania. There he was arrested on September 24 at a motel room for allegedly listening to a police scanner and relaying information on Twitter to help protesters avoid heavily-armed cops -- an activity the State Department lauded when it happened in Iran.

A week later, the Joint Terrorism Task Force, armed with a search warrant and backed by a federal grand jury investigation, raided Madison's house, which he shares with his wife of 13 years and several roommates. The squad seized his computers, camera memory cards, books, air-filtration masks, bumper stickers and political posters -- all purportedly evidence that the 41-year old social worker had broken a federal anti-rioting law that carries up to five years in prison.

But a closer look at the court documents leaves the unmistakable impression that Elliott Madison is yet another casualty of the government's nasty, post-9/11 habit of considering political dissidents as threats to national security.

Madison, his wife and his lawyer Martin Stolar say the search violates the Constitution's protections against general searches and prosecution for political speech. The police also seized mobile phones, citizen emergency kits, manuscripts, posters and even the couple's marriage license.

In a motion to throw out the search, Stolar called the search unconstitutional:

In this day and age, federally authorized agents entered the private home of a writer and urban planner and seized their books and writings. The warrant's vagueness and lack of specificity encouraged the agents to use their own discretion and their own views of the political universe to seize, or not to seize, items which they thought were evidence of a violation of the federal anti-riot statute. The law and the Constitution do not allow this. If there really is a grand jury investigation with possible future prosecution under [a federal anti-rioting law], the use of this statute as applied to demonstrations, demonstrators, and their supporters has profound 1st Amendment implications.

If Madison were an Iranian using Twitter to coordinate government protests, he'd likely be considered a hero in the West. Instead, the self-identified anarchist -- who volunteered in Louisiana after Katrina -- is now facing up to five years in prison for each count a grand jury cares to indict him on.

Glenn Greenwald on Obama's support for the new Graham-Lieberman Secrecy Act:

It was one thing when President Obama reversed himself last month by announcing that he would appeal the Second Circuit's ruling that the Freedom of Information Act (FOIA) compelled disclosure of various photographs of detainee abuse sought by the ACLU. Agree or disagree with Obama's decision, at least the basic legal framework of transparency was being respected, since Obama's actions amounted to nothing more than a request that the Supreme Court review whether the mandates of FOIA actually required disclosure in this case. But now -- obviously anticipating that the Government is likely to lose in court again (.pdf) -- Obama wants Congress to change FOIA by retroactively narrowing its disclosure requirements, prevent a legal ruling by the courts, and vest himself with brand new secrecy powers under the law which, just as a factual matter, not even George Bush sought for himself.

The White House is actively supporting a new bill jointly sponsored by Sens. Lindsey Graham and Joe Lieberman -- called The Detainee Photographic Records Protection Act of 2009 -- that literally has no purpose other than to allow the government to suppress any "photograph taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States." As long as the Defense Secretary certifies -- with no review possible -- that disclosure would "endanger" American citizens or our troops, then the photographs can be suppressed even if FOIA requires disclosure. The certification lasts 3 years and can be renewed indefinitely. The Senate passed the bill as an amendment last week.

Just imagine if any other country did this. Imagine if a foreign government were accused of systematically torturing and otherwise brutally abusing detainees in its custody for years, and there was ample photographic evidence proving the extent and brutality of the abuse. Further imagine that the country's judiciary -- applying decades-old transparency laws -- ruled that the government was legally required to make that evidence public. But in response, that country's President demanded that those transparency laws be retroactively changed for no reason other than to explicitly empower him to keep the photographic evidence suppressed, and a compliant Congress then immediately passed a new law empowering the President to suppress that evidence. What kind of a country passes a law that has no purpose other than to empower its leader to suppress evidence of the torture it inflicted on people? Read the language of the bill; it doesn't even hide the fact that its only objective is to empower the President to conceal evidence of war crimes.

That this exact scenario is now happening in the U.S. is all the more remarkable given that the President who is demanding these new suppression powers is the same one who repeatedly vowed "to make his administration the most open and transparent in history." After noting the tentative steps Obama has taken to increase transparency, the generally pro-Obama Washington Post Editorial Page today observed: "what makes the administration's support for the photographic records act so regrettable" is that "Mr. Obama runs the risk of taking two steps back in his quest for more open government."

Scott Horton says indictments against Gonzales and several associates are very likely this week:

Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. attorney general Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo, several reliable sources close to the investigation have told The Daily Beast. Their decision is expected to be announced on Tuesday before the Spanish central criminal court, the Audencia Nacional, in Madrid. But the decision is likely to raise concerns with the human rights community on other points: they will seek to have the case referred to a different judge.

Both Washington and Madrid appear determined not to allow the pending criminal investigation to get in the way of improved relations.

The six defendants—in addition to Gonzales, Federal Appeals Court Judge and former Assistant Attorney General Jay Bybee, University of California law professor and former Deputy Assistant Attorney General John Yoo, former Defense Department general counsel and current Chevron lawyer William J. Haynes II, Vice President Cheney’s former chief of staff David Addington and former Under-Secretary of Defense Douglas J. Feith—are accused of having given the green light to the torture and mistreatment of prisoners held in U.S. detention in “the war on terror.”

The case arises in the context of a pending proceeding before the court involving terrorism charges against five Spaniards formerly held at Guantánamo. A group of human rights lawyers originally filed a criminal complaint asking the court to look at the possibility of charges against the six American lawyers. Baltasar Garzón Real, the investigating judge, accepted the complaint and referred it to Spanish prosecutors for a view as to whether they would accept the case and press it forward. “The evidence provided was more than sufficient to justify a more comprehensive investigation,” one of the lawyers associated with the prosecution stated.

But prosecutors will also ask that Judge Garzón, an internationally known figure due to his management of the case against former Chilean dictator Augusto Pinochet and other high profile cases, step aside. The case originally came to Garzón because he presided over efforts to bring terrorism charges against the five Spaniards previously held at Guantánamo. Spanish prosecutors consider it “awkward” for the same judge to have both the case against former U.S. officials based on the possible torture of the five Spaniards at Guantanamo and the case against those very same Spaniards. A source close to the prosecution also noted that there was concern about the reaction to the case in some parts of the U.S. media, where it had been viewed, incorrectly, as a sort of personal frolic of Judge Garzón.

Instead the prosecutors will ask Garzón to transfer the case to Judge Ismail Moreno, who is currently handling an investigation into kidnapping charges surrounding the CIA’s use of facilities as a safe harbor in connection with the seizure of Khalid el-Masri, a German greengrocer who was seized and held at various CIA blacksites for about half a year as a result of mistaken identity. The decision on the transfer will be up to Judge Garzón in the first instance, and he is expected to make a quick ruling. If he denies the request, it may be appealed.

DOWNLOAD (40)

PLAY (77)

On CNN's "State of the Union" this morning with John King, I heard something that almost made me choke. King interviewed Charlie Swift, a formal Naval defense attorney, and former Bush defense policy advisor Doug "Stupidest Guy in the World" Feith about Cheney's warning to Obama about repudiating torture:

KING: Is he right? Are there Americans alive today because the Bush Administration used these controversial tactics?

SWIFT: "Who knows? See, that's the problem. No evidence is brought forth. It's said that everything that was learned is so secret that we can't tell you, and that's one of the other parts of the Obama executive order that is critical. He's asking for a complete look into the interrogation methods and what was seen.

One of the real problems with Guantanamo was the lack of transparency - we're right, you've got to trust us. And every time the administration turned out to be wrong - and they were wrong many times - then that trust was lowered each time that happened. ... It's my personal belief that it's very unlikely that enhanced interrogation techniques produced a great deal of actionable intelligence."

[...]

DF: It's quite clear that President Obama has recognized there are serious security problems involved here. This is not simply a matter of establishing civil liberties issues. It's a balancing of very important civil liberties issues against very important security issues. I think that the administration has an interest, as Mr. Swift says, in being as transparent as possible. So did the Bush administration. Reasonable people can differ about how those balances get struck, but I think this administration is going to have to take very seriously the security issues, and they're going to realize this is a problem that's not as simple as it was suggested during the campaign that it was."

Well, Dougie, I guess it depends on what you mean by "transparency." The Bush Administration used words in a peculiar way - that is, to communicate exactly the opposite. (See "Clear Skies" initiative, "No Child Left Behind Act," etc.)

For instance, George Bush signed something last year that would seem to indicate support for transparency with one caveat - when he decided it's against the interests of the country - which was, you know, always?

I don't know how any reasonable person can assert transparency as a value of this administration, but that's not really the main point here. It's that the Republicans, embracers of anti-American values like torture, are quite obviously setting the stage to pin the blame on Obama in the event of another terror attack.

The American people have made their position clear: They'll take their chances with Obama.

American presidents and their staff work for the American people, they are not monarchs with an inner court of priviliged nobles. President Obama has reminded all his predecessors of that simple fact, living up to a campaign promise to "nullify attempts to make the timely release of presidential records more difficult."

President Barack Obama, in his first full day in office, revoked a controversial executive order signed by President Bush in 2001 that limited release of former presidents’ records.

The new order could expand public access to records of President Bush and Vice President Dick Cheney in the years to come as well as other past leaders, said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists. …

Under Bush’s order, former presidents had broad ability to claim executive privilege and could designate others including family members who survive them to exercise executive privilege on their behalf.

Obama’s new order gives ex-presidents less leeway to withhold records, Aftergood said, and takes away the ability of presidents’ survivors to designate that privilege.

Separately, an Obama memorandum issued Wednesday also appears to effectively rescind a 2001 memo by President Bush’s then-Attorney Gen. John Ashcroft giving agencies broad legal cover to reject public disclosure requests.

Over at MoJo blog, they quote CREW chief counsel Anne Weismann as explaining:

"[Obama]'s putting former presidents on notice that if you want to continue a claim of executive privilege that [Obama] doesn't think is well-placed, you're going to have to go to court."

Even Ed Morrissey at Hot Air is impressed, writing "On Inauguration Day, I promised to offer praise for Barack Obama when he pursued good policy, and it didn’t take long." At least one other conservative thinks this executive order is "nothing more than him throwing a meaty bone to his constituency who hopes to be able to find out “The Truth” about the Bush administration’s alleged plans to turn this nation into a dictatorial theocracy." That's simply mean-spirited hyperbole, hiding an implied argument. Who would really want to argue, out there in plain words, that stopping Bush's bosses (the American people) from finding out what's in millions of his administration's emails is a good thing?

Crossposted from Newshoggers

Well, of course they do! You didn't think they were going to start following the laws at this late date, did you?

WASHINGTON (AP) — The Bush administration is aggressively pushing back against a federal court order instructing the most important offices in the White House to preserve all of their e-mail.

In court papers late Friday, the administration argued that a federal court has no authority to impose such a requirement on the offices of President George W. Bush, Vice President Dick Cheney and the National Security Council.

[...] The issue arose Wednesday after U.S. District Judge Henry Kennedy directed the White House to issue a notice to all employees to surrender any e-mails from March 2003 to October 2005.

[...] In the lawsuits over possibly missing e-mails that may number in the millions, two private groups are seeking to force the White House to engage in a recovery effort and to establish an electronic archive for e-mail.

The White House said this week that it had located 14 million e-mails thought to have been missing. But the White House has provided no details to support this assertion.

The two private groups suing the Executive Office of the President are the National Security Archive and Citizens for Responsibility and Ethics in Washington.

You mean someone still cares about silly things like the rule of law, and actual consequences?

Washington, D.C., January 15, 2009 - The federal magistrate judge overseeing the White House e-mail litigation today said the issue had reached "true emergency conditions" with only "two business days before the new President takes office" and that "the importance of preserving the e-mails cannot be exaggerated," according to the court's Memorandum Opinion issued this morning along with an Order and posted on the National Security Archive website, www.nsarchive.org .

Magistrate Judge John Facciola formally ordered the White House to search all Executive Office of the President components' workstations and portable media for possibly missing e-mail -- enforcing yesterday's order from U.S. District Judge Henry Kennedy -- after government lawyers at a hearing yesterday represented that they would only search those EOP components that create federal agency records and leave out offices that create presidential records.

Today's order also granted plaintiffs' requests that a full inventory of all backup tapes and portable media containing White House e-mail be delivered to the Archivist of the United States and filed with the court, and that the full administrative record and all other evidence related to the White House e-mail be preserved under the custody of the Archivist.

"From the outset, the White House has fought tooth and nail against having to preserve sources of missing e-mail as well as other evidence relating to this case," said Sheila Shadmand of Jones Day, counsel for the Archive. "For the umpteenth time, this Court has commanded that they do so. We expect they will yet again object to the terms of these Orders, when instead they should be busy complying with it. The clock is running out."

The Department of Justice's inspector general has finally released its report (434 pg pdf) on the FBI's involvement in detainee interrogations in Guantanamo, Afghanistan and Iraq. Reuters reports that the "Bush administration's top security officials ignored FBI concerns" and that the "FBI, alarmed by interrogation techniques such as the use of snarling dogs and forced nudity, clashed with the Defense Department and CIA over their use." Please do dig into the document and let us know in the comments any parts that may merit more attention. Emptywheel noticed already that "this report does not and cannot discuss the issues that OLC, Condi Rice, and John Ashcroft apparently faced tells you what we need to know about torture." Hmmm?

Also, David Kurtz notes that:

The IG's report has been delayed in part because the Pentagon slow-rolled its review of the report for classified information.

FBI Director Robert Mueller testified to Congress last month that he had "reached out" to the Pentagon and the Department of Justice "in terms of activity that we were concerned might not be appropriate -- let me put it that way." But it was clear from his testimony that the Justice Department's essentially unilateral legalization of torture had prevented the FBI from investigating the abuses its agents witnessed.

For those interested, here is Chairman Conyers' response (via email, after the jump)

Continue reading »

The Bush administration has repeatedly invoked the state secrets privilege, a doctrine that was adopted in the McCarthy era, that was originally meant to be used only in exceptional circumstances. Since 2001, however, the Bush Administration has repeatedly abused the privilege in attempts to cover up potentially embarrassing or illegal activities in cases involving warrantless wiretapping and other aspects of the NSA's domestic spy program, kidnapping, aka 'extraordinary rendition', and torture, just to name a few. They have relied on it not only to silence critics and whistleblowers, but also to use it as a shield to go after them like they have to James Risen, Sibel Edmonds and many others. Just this week it's come out that they once again have invoked it in an attempt to keep the details hidden in the case against Thomas Kontogiannis, one of the convicted bribers of Republican congressman Randy "Duke" Cunningham, where the executive branch has asserted that once they deem something classified, the "courts are virtually powerless to review or disagree."

It's way past time Congress steps in to put a stop to it.

Electronic Frontier Foundation:

Now, Congress may finally be ready to act to rein in these abuses. On Thursday, the Senate Judiciary Committee will consider S.2533, the State Secrets Protection Act, which would bring much needed judicial supervision that could help eliminate bogus state secrets claims, while carefully protecting legitimate interests in national security.

If one of your Senators is on the Judiciary Committee (see below), then you're uniquely positioned to encourage the Committee to approve this legislation and make a real difference in fighting government secrecy! Contact them now and tell them to support the State Secrets Protection Act.

Continue reading »

image at Tales of the Freewayblogger.

The Thomas Jefferson Center for the Protection of Free Expression has issued their annual "Muzzle" awards, including a lifetime achievement award to the Federal Communications Commission.

Daily Progress.com:

...the Federal Communications Commission, will receive a “Lifetime Muzzle” for decades of what the Jefferson Center considers to be inconsistent regulation of “indecency” on the nation’s airwaves, which has led to a “profound chilling effect” on broadcasters.
For example, more than 150 TV stations declined to air the World War II film “Saving Private Ryan” out of fear that the FCC would levy heavy fines for the movie’s violent imagery and battlefield swear words. Though the FCC did not hit any stations with fines in that case, it did condemn an “NYPD Blue” episode about the Sept. 11 terrorist attacks that featured swear words. A call to the FCC for comment was not returned.

Some of us progressives have comforted ourselves that after the Bush administration is over, the history books will finally tell the truth. Not so fast. History News Network (George Mason Univ.):

The Bush administration’s Executive Order 13233 underscores the new fact that presidential legacies, once the domain of academic historians and parlor game aficionados, have become a serious business — so much so that a president has mounted a Kremlinesque campaign to stifle the free dissemination of information. The Bush administration is playing for keeps.

Bush’s Executive Order 13233 could change history — literally — by restricting historians’ access to materials that help them document and ultimately judge a president’s actions, lapses, and principles.

Executive Order 13233 gives ex-presidents nearly unlimited discretionary authority to prohibit the release of their papers, and allows them to name designees who can act in their stead. Moreover, a sitting president may also prevent the release of a predecessor’s papers — as Bush has already done with some of Ronald Reagan’s papers — even when the predecessor has authorized his papers’ release. These are radical encroachments on the public’s access to documents that were produced in the public interest, at public expense, by officials elected by the public. Citizens can challenge these decisions in court, but the expense and time commitment will discourage most people from trying.

A House-approved bill that would undo this blatant assault on openness has been held up in the Senate. Even if the measure advances, there is no guarantee that Congress could override Bush’s expected veto.

Read more...

The bill reversing this travesty is advocated in Public Citizen's online letter for your Senator.

I'm sure (well, not really) that it's just a coincidence that as the FISA/telecom immunity debate comes to a head, the journalist who helped bring Bush and Cheney's illegal domestic spy program to light has just been subpoenaed.

Jon Perr has a most excellent write-up about it:

That cheering sound you may have heard this morning was conservatives' applauding the news that New York Times reporter James Risen has been subpoenaed in an effort to force him to reveal his confidential sources. But while Republican rage may be temporarily muted over the inquiry into Risen's 2006 book, many on the right won't be satisfied until Risen goes to jail for his cardinal offense, revealing President Bush's illegal domestic surveillance program.

The subpoena James Risen received from a federal grand jury last week did not concern his 2005 reporting on the NSA domestic spying program. Instead, the Justice Department wants Risen to divulge his sources for a chapter on Iran's nuclear program in his 2006 book, State of War. In it, Risen describes CIAs unsuccessful efforts during the Clinton and Bush administrations to infiltrate the Iranian nuclear program. ... (do read on)

Lest anyone be confused, this is quite the opposite situation from when former NYT pseudo-reporter/White House shill, Judy Miller, was subpoenaed and went to jail for failing to reveal her sources in the CIA leak case. In her case she was refusing to name White House officials who were involved in government wrongdoing in which she had a role. In James Risen's case, he exposed government wrongdoing that had been shrouded in secrecy, which is quite simply the most meritorious and patriotic deed a journalist can do, and is exactly why the fourth estate deserves to have a federal shield law to prevent government retaliation for exposing their crimes.

Here we go again with the missing emails. Just this Tuesday a judge ordered the White House to come clean on its never-ending scandal over something like 10 million missing emails - including 4 years worth deleted by Karl Rove - and now we've got Missouri Governor Matt Blunt being accused of more of the same:

KC Prime Buzz: The former deputy legal counsel to Gov. Matt Blunt sued the governor and four of his top aides Wednesday, alleging a wide-ranging conspiracy to cover up the administration’s activities.

The suit, filed in Jackson County Circuit Court, describes schemes within the governor’s office to destroy public documents, to evade the state Sunshine law by sending text messages on personal Blackberrys and to fire a long-time state employee for political reasons. ...

h/t to Jamie who adds: "Can we label the entire Republican Party as organized crime yet?"

...as the FCC puts a big bow on consolidated media ownership. In spite of widespread public opposition. In opposition to basic human decency and common sense.

Free Press: FCC Chairman Kevin Martin is ignoring the public will and defying the U.S. Senate. His decision to gut longstanding ownership rules shows once again how the largest media companies — with their campaign contributions and high-powered lobbyists — are corrupting the policymaking process at the expense of local news coverage and independent voices.

“Martin’s FCC relied on slanted research and a rigged process to reach today’s preordained outcome — local media wrapped in a bow for Tribune, News Corp., Gannett and all the rest. Read more...

One has to wonder how much outrage Bill O'Reilly, Sean Hannity, and Neil Cavuto will be allowed to express over this obvious capitulation to their boss big media ownership. After all, we all know what happens when any "little guy" stands up to the suits upstairs...