Toni Locy's "Day in Court"

A miserable rainy day at the federal courthouse in D.C.--but there may have been a parting of the clouds hanging over former reporter Toni Locy.

In front of a large crowd in the cavernous ceremonial courtroom in the courthouse, attorneys for Locy argued before an appeals court panel of the D.C. Circuit that a lower court judge's ruling against Locy should be thrown out.

Federal Judge Reggie Walton had ruled that Locy would have to pay $5,000 out of her own pocket for refusing to identify sources for stories she had written about the 2001 anthrax attacks that had identified former Army scientist Steven Hatfill as a possible suspect.

Locy had told Walton that she couldn't remember whom she had talked to about the stories, and so he ordered her to divulge the names of every person she ever talked to at the Justice Department or U.S. Attorney's Office.  When she refused, he imposed the $5,000 fine, with the additional and incredibly punitive directive that no one else, including her former newspaper, could help her pay the fines.  As she told Boston Globe columnist Kevin Cullen, "Nicky Scarfo can have a defense fund, Scooter Libby can have a defense fund.  But I can't have a defense fund."

The issue arose because Hatfill is suing the Justice Department for violation of privacy (former Attorney General John Ashcroft memorably set off a furor when he publicly termed Hatfill "a person of interest" in the anthrax investigation) and his attorneys wanted reporters who had covered the case to reveal their sources.  Locy was not the first reporter to write about Hatfill, and she has said she can't recall now who told her what for the story; it was not a personal scoop so it doesn't loom large in her memory.  She was working for USA Today at the time, and had previously covered legal issues for AP, The Washington Post, the Boston Globe, and the Philly Daily News.

Locy is now teaching journalism at West Virginia University, but she was a tough reporter during her days at the DC Courthouse, a tiny but determined figure who always had a perfect manicure and somehow managed to wear stiletto heels every day.  But you always knew she was from Pittsburgh; she always made me think of the Roz Russell character in the classic Chicago newspaper movie, "The Front Page." A profile in the American Journalism Review of April/May quoted me at length describing in admiration what a tough competitor she was.  I bring this up because everyone else who covered those beats with her is conflicted, unable to discuss her case, although they ache for her.

After today's hearing, I talked to one of those colleagues and friends, who told me that the AP story is accurate; the three appeals court judges did express a high degree of skepticism and even exasperation that Hatfill's team was pushing so hard for Locy's sources, when they've already asked for a trial date, proving they're ready to go to trial and think they can win.  The appeals court judges also pointed out that Judge Walton had failed to perform the usual and required balancing test between the public interest and the individual's rights.  My source said Judge Douglas Ginsburg even seemed a bit contemptuous of Hatfill's argument, basically asking them, why are you wasting our time?

Among those in the courtroom, and who surrounded Locy afterward, as she stood there in her flaming red suit and (yes) red stiletto heels, were three former colleagues from her Boston Globe days who had traveled down by train to offer moral support.

Reached by phone, Locy told me, "I was very impressed with the questions that the judges asked.  I thought they had a great command of the facts in the case.  I appreciate that they gave me my day in court."

Locy spent yesterday on Capitol Hill, meeting with staffers regarding the pending shield law, for which she has become the number one poster child.  POGO shares the concerns of all journalists in this matter; the judge actually said he hoped his actions would stop ALL government employees from talking to reporters.  That would certainly affect us at POGO, too, but this is really a subject of central importance to all who care about a thriving democracy.  Remember, it was Thomas Jefferson who said he'd rather have a free press without a government than the other way around.

-- Beverley Lumpkin

Déjà Vu All Over Again

Remember those hanging chads from Florida in the election of 2000?  That was of course the most notorious failure of election equipment in modern memory.  In the wake of that disastrous election, the results of which are still disputed by many, counties and cities across the country moved to purchase and install nice, new, modern, electronic, touch-screen voting machines in place of the old-fashioned punch-card types.

But guess what?  All those fancy new machines have turned out to be the cure that's worse than the disease.  In The New York Times Magazine this past January, Clive Thompson wrote:   

In the last three election cycles, touch-screen machines have become one of the most mysterious and divisive elements in modern electoral politics.  Introduced after the 2000 hanging-chad debacle, the machines were originally intended to add clarity to election results.  But in hundreds of instances, the result has been precisely the opposite:  they fail unpredictably, and in extremely strange ways; voters report that their choices 'flip' from one candidate to another before their eyes; machines crash or begin to count backward; votes simply vanish.  (In the 80-person town of Waldenburg, Ark., touch-screen machines tallied zero votes for one mayoral candidate in 2006 – even though he's pretty sure he voted for himself.)  Most famously, in the November 2006 Congressional election in Sarasota, Fla., touch-screen machines recorded an 18,000-person 'undervote' for a race decided by fewer than 400 votes.

The problem is that most of the touch-screen machines do not produce any paper record and thus their results are not verifiable.  In a landslide election, that may not matter.  But if the election is close, and recounts are demanded, the lack of paper records could create mayhem. 

Congressman Rush Holt (D-NJ) has made a crusade of trying to rationalize the nation's voting systems.  A holder of a Ph.D. in Physics, Holt has been pushing for changes in the law for the last several years.  Now he's anxious to avert an electoral catastrophe this coming November.  His bill, H.R. 5036, would reimburse any counties that opt to retrofit their touch-screen machines with paper records that voters can verify.  As Rep. Zoe Lofgren (D-CA) pointed out as she led debate on the House floor on behalf of the bill, "Having a voter verified paper trail with an automatic routine audit will go a long way to increase voter confidence and deter fraud."

In his remarks during the floor debate on Tuesday, April 15th, Holt warned that without the extra federal assistance to the states and counties prior to this November, six complete states and a number of counties in 14 additional states "will be conducting completely unauditable elections in 2008." 

The problem for the bill arose with the cost estimate of $685 million issued by the Congressional Budget Office.  As Lofgren pointed out, that was the estimate Rep. Holt had calculated way back in early 2007 when he first offered his legislation.  Further, she said, that number "anticipates the participation of everyone in this bill.  I think it is highly unlikely that every jurisdiction will participate in every aspect of the bill…It is clear that the actual score or total would be less."

But that was seemingly enough to change the minds of Republicans who had previously supported the bill.  Although the committee vote had been both bipartisan and unanimous, suddenly the minority party had problems with the bill.  Rep. Vernon Ehlers (R-MI) led the fight on the House floor against H.R. 5036.

Ehlers maintained that he and Holt had not been able to reach full agreement on a satisfactory package. He explained, "I supported it out of committee because I thought it should reach the floor for floor debate. I anticipated that it would be taken up under a rule where we might have the possibility for an additional compromise, but that has not happened."

Ehlers said he had some qualms about total reliance on paper records, believing that "redundancy in an electronic fashion" might be sufficient. "But the final blow to our efforts was the judgment of the CBO that it was $685 million for 1 year. I realize that Mr. Holt had estimated that would be the cost in his original bill. In fact he had included it as an authorization in his original bill." But now that CBO had confirmed that number, "I am afraid that is likely to be the death knell." 

In vain did Holt and Lofgren protest that since the bill was optional, and not all counties would opt in, "there's not way that that would be the full amount."

Holt said the principle was quite simple: "Anything of value should be auditable. Votes are valuable." But "in too many places around the United States, they are not even auditable." He pointed out additionally that "already in this primary season, there have been numerous, numerous problems, questions, and unresolved disputes." He added: 

In county after county, in State after State, electronic voting systems have failed in many ways, failure to start up in the morning, a mismatch between the electronic count and the end-of-day printout, failed memory cards, and on and on and on. In too many places, the irregularities can not be resolved. There is no way to resolve them. There is no way to know because there is no record of the voter's intentions.

Citing studies performed by both California and Ohio, Holt said "a number of academic and public policy experts have recommended that the shortcomings of these systems be addressed. He quoted the Brennan Center for Justice of New York University Law School, which found that the many reports of problems during the primaries "provide a preview of potentially widespread machine failure and disenfranchisement in November."

It wasn't until his concluding remarks, however, that Ehlers finally let the cat out of the bag:

I also want to comment that the White House also has taken a dim view of this. They've issued a SAP [Statement of Administration Policy] this afternoon, somewhat to my surprise, that indicates that they oppose this bill and urge Members of Congress to vote against it.  [Emphasis added.]

In her closing remarks Lofgren confessed her disappointment at the change by Ehlers.  She noted that in the past year: 

…we have worked with Secretaries of State, the National Association of Counties, disability rights groups, voting rights groups, civil rights groups, to try and get a measure that could garner broad support across the country. … I will say that the White House issuing an SAP today, after a year's work, I think, is really bad faith. We have worked very hard, and to come out at the last minute is really very unprofessional.

Although the bill garnered more "yeas" than "nays," it failed because it had been brought to the floor under a rule requiring a two-thirds vote to pass. It also didn't help that the White House expressed its opposition to the bill at the eleventh hour, resulting in a change of heart among House Republicans. 

Common Cause President Bob Edgar was dismayed: "The United States is spending billions of dollars to build democracy overseas, yet our own Congress turned its back on the workings of our own democracy."

So if you loved Florida in 2000 or Ohio in 2004, you might just be over the moon this coming November. 

-- Beverley Lumpkin

Matthew Diaz to Be Honored at 2008 Ridenhour Prizes

On Thursday, April 3rd, POGO will be celebrating the fifth anniversary of the Ron Ridenhour Prizes.  The prizes were established by The Nation Institute and The Fertel Foundation, in partnership with POGO, the Government Accountability Project (GAP) and the Fund for Constitutional Government, to "recognize those who persevere in acts of truth-telling that protect the public interest, promote social justice or illuminate a more just vision of society."

The recipient of this year's Ridenhour Prize for Truth-Telling is Matthew Diaz, a former JAG officer at Guantanamo Bay, Cuba, whose incredible story was recently chronicled in the New York Times Magazine.

Diaz first became interested in law as a young man, after his father was convicted of murder and sent to death row in a case fraught with questionable evidence.  After consistently receiving stellar performance reviews during his time as a Navy lawyer, Diaz was assigned to the military's detention camp at Guantanamo Bay in 2004.

Not long before he arrived, the Supreme Court had ruled that Guantanamo Bay prisoners were entitled to judicial review as a means of challenging their incarceration. Although he believed that many of the prisoners posed a serious threat to the United States, Diaz quickly came to the conclusion that the Pentagon was blatantly undermining the Court's decision.  For instance, the military leadership still refused to release the names of the prisoners, making it difficult for any outside lawyers to contact them.

Diaz soon decided that something had to be done.  One early morning in January 2005, he printed out the names and serial numbers of the 551 prisoners, consolidated the information onto tiny pieces of paper stuffed inside a Valentine's Day card, and mailed it to a lawyer at the Center for Constitutional Rights, which had originally filed a petition in the Supreme Court case.

Diaz knew he was probably risking his career by disclosing such sensitive information; he soon learned there would be other consequences as well.  The lawyer at the Center for Constitutional Rights was forced to turn the list of detainees over to the Justice Department and the F.B.I., which easily identified Diaz as the man behind the mailing.  In May 2007, a jury of naval officers discharged Diaz from the military and convicted him on four counts, including the disclosure of information that "could be used to the injury of the United States or to the advantage of a foreign nation."

Even though a federal court had by this time ruled that the list of names was public information subject to the Freedom of Information Act, Diaz was sentenced to six months in prison, making him the only U.S. serviceman to be sent to jail for defying the administration's detention policies.  His case is currently under appeal.

The other recipients of this year's Ridenhour Prizes are:

• Bill Moyers, a veteran journalist whose latest series, Bill Moyers Journal, premiered on PBS in April 2007.  He will be awarded the Ridenhour Courage Prize in recognition of his "fierce embrace of the public interest and his advocacy of media pluralism, and for contributing an unyielding moral voice to our national discourse;" and
• James D. Scurlock, who will be awarded the Ridenhour Book Prize for his latest work, Maxed Out: Hard Times in the Age of Easy Credit, "a disturbing account of America's unsustainable relationship with debt."

-- Michael Smallberg

Angler: Cheney's Vice Grip on Executive Power

If you haven't seen it yet, I highly recommend the ongoing Washington Post series on Vice President Cheney, who the Secret Service code-named "Angler."  The Post's Barton Gellman and Jo Becker obtained unprecedented access to current and former insiders at the highest levels of government to paint an extremely detailed picture of how Cheney has wielded unprecedented vice presidential power to shape some of country's most important policies.  It's this week's must read (so far), in my opinion.

-- Nick Schwellenbach

Call Your Senator in Support of Open Government

A bill entitled the “Senate Campaign Disclosure Parity Act” (S.223) that would require senators to file campaign finance forms electronically has hit a snag on its way to a Senate floor vote. In what Sen. Burr has called “a procedural matter within the Senate,” an anonymous Republican senator has placed a so-called “secret hold” on the bill, which effectively blocks it from debate. What’s the possible reason for this “procedural matter”? From The Hill:

“I assume they want to have a chance to offer an amendment,” Minority Whip Trent Lott (R-Miss.) said, quipping, “I don’t have any problem with electronic filing, but I’m not necessarily interested in making it easier for the press to do their work.”

There’s certainly nothing wrong with proposing amendments, yet Sen. Lott fails to explain why a secret hold is necessary in order to so. Moreover, the mere fact that the senator who placed the hold chose to remain anonymous raises questions about his or her true motives.

The bill’s sponsor, Sen. Feingold, had this to say in response:

I am disappointed that a Republican Senator has chosen to block my bill to require Senate campaign reports to be filed electronically. This bill has bipartisan support in the Senate and significant support around the country, from editorial boards to bloggers on both the left and the right. I am aware of no opposition to it at all. I do not understand why someone in this body would block a bill that simply brings the Senate filing process into the 21st century, and do so anonymously and without explanation.

As I discussed in a previous post, there is absolutely no reason why the Senate shouldn’t file campaign finance forms electronically. The House has already done so for roughly 10 years now, and not only does electronic filing allow for easier public access to information, but it also speeds up processing time and decreases costs.

Several open government organizations, including the Campaign Finance Institute and Sunlight Foundation, are now calling on voters to contact their senators and urge them to support the bill. As of this afternoon, 56 senators have stated that they did not place the hold.

-- John Pruett

 

Administration Submits FISA "Modernization" Proposals

Well over a year after the New York Times exposed the warrantless National Security Agency (NSA) domestic eavesdropping program, the Justice Department and the Intelligence Community have submitted their proposed changes to the Foreign Intelligence Surveillance Act (FISA).  The NSA program circumvented the FISA and the FISA court from 2001 until earlier this year, when some sort of accomodation was made allowing the FISA to approve of monitoring.

Posted on Secrecy News yesterday:

"Today, following over a year of coordinated effort among the Intelligence Community and the Department of Justice a bill is being submitted to Congress to request long overdue changes to the Foreign Intelligence Surveillance Act," according to an April 13 fact sheet (pdf) on the proposed changes issued by the Justice Department and the Office of the Director of National Intelligence.

The text of the proposed legislative changes to FISA, with a section by section analysis, may be obtained here (pdf).

POGO has not made an analysis of the Administration's proposal, but the American Civil Liberties Union said in a statement that the proposal is an "attempt to erode the Fourth Amendment and its protections."

-- Nick Schwellenbach

Make Congressional Research Service Reports Available to Public

Good government groups have written to Congress asking them, once again, to take up the issue of making the Congressional Research Service’s products and information available to the public. It’s about time!

In POGO’s 2003 report “Congressional Research Service Products: Taxpayers Should Have Easy Access," we challenged the dubious arguments that the CRS made for why their information should be kept shrouded in secrecy. Since that time, web activists at OpenCRS.com have made the argument for secrecy meaningless by posting many of the CRS’ reports on the web anyway.

-- Beth Daley

Executive Privilege: The Battles are Brewing

Paul Abrams, writing at the Huffington Post, is absolutely right: There is no explicit grant of "Executive Privilege" in the U.S. Constitution.  And thus, ironically (though hardly anymore to anyone who has paid much attention), in an Administration that has bashed judicial activism to no end for interpreting the Constitution, relies upon a legal concoction which insults it when it is abused.  (Note: The implied Constitutional grant of Congressional investigating power, has been acknowledged definitively by the Supreme Court, unlike that of Executive Privilege. UPDATE: More specifically, the scope of Exec. Privilege in response to Congressional requests for information has not been ruled upon by the courts.)

The row over the U.S. attorney firings and the ongoing investigation and Executive Branch stonewalling we're seeing currently is just the latest battle between Congress and the Executive over access to information--a battle that, at its most intense, heightens when the White House (or even more dubiously, a Department head) invokes Executive Privilege, a term with an epic ring to it, that few realize is of relatively recent vintage.

On this last and, on the surface, its most inconsequential point--the term's usage--I defer to recently departed historian Arthur M. Schlesinger Jr. writing in the Wall Street Journal (March 30, 1978, pg 8):

...'executive privilege' seems to be of very recent American usage...I cannot find that any President or Attorney General used it before the Eisenhower administration.  You will search in vain for it as an entry in such standard reference works as the Smith-Zurcher 'Dictionary of American Politics,' or 'The Oxford Companion to American History,' or Scribner's 'Concise Dictionary of American History.' It is not even to be found, I was dismayed to discover, in 'The New Language of Politics,' compiled by William Safire of Mr. Nixon's very own White House staff.

Though the "breaking news" this afternoon was that President Bush will allow Karl Rove and other White House to be interviewed by committees probing the firings of U.S. attorneys (though they will not testify under oath), these "interviews" are far from testimony.  Consider what "interviews" mean to White House counsel Fred Fielding, who is also a former Nixon deputy counsel and counsel to President Reagan--and was hired after Congress flipped over to Democratic control in November:

Such interviews would be private and conducted without the need for an oath, transcript, subsequent testimony or the subsequent issuance of subpoenas.

Just yesterday the New York Times reported that:

Dan Bartlett, counselor to Mr. Bush, has said it is “highly unlikely” that the president would waive executive privilege to allow his top aides to testify publicly. One Republican strategist close to the White House, speaking on the condition of anonymity so as not to appear to be representing the administration, said: “No president is going to let their senior staff assistant to the president go testify. Forget that. They might agree to do an informal interview, but they’ll never testify.”

The New York Times was certainly correct to report that the President is loathe to have his top aides testify.  After all, Bush initially refused to allow then-National Security Advisor Condoleeza Rice testify before the 9/11 Commission.  And even when he allowed Rice to do so:

In a letter to the panel, the White House sought written assurances that Rice’s testimony would set no precedent and that no more public testimony from any White House official would be requested.

The rationale behind the initial refusal and the request--which was granted--that no more White House officials would testify was Executive Privilege:

The White House and Rice had maintained that requiring a national security adviser to testify under oath would compromise “executive privilege,” which allows a president to exchange ideas freely with an adviser without fearing that they would be made public.

“A president and his advisers, including his advisers for national security affairs, must be able to communicate freely and privately without being compelled to reveal those communications to the legislative branch,” Bush said.

“We have observed this principle while also seeking ways for Dr. Rice to testify,” he added.

There are many more examples, but a recent one is the refusal of the CIA to turn over interrogation and detention policy documents to the Senate Judiciary Committee and a particularly egregious threat in 2003 to terminate Medicare actuary Richard Foster for reporting to Congress on cost estimates of Bush Medicare legislation.

The struggle over information between the Executive and Legislative branches is a clash of the titans.  Ultimately, both have generally avoided taking their clash to the courts in fear of adverse rulings which will cripple them.  This is why they negotiate over access or back down.  However, negotiation should not come at the cost of the public interest which is what the Congress, as the Grand Inquest of the Republic, should set out to achieve.  When the public interest is at stake, when there are clearly reasons for Congressional requests for information, the Executive should allow Congress access.  And Congress should use its leverage as the branch of government closest to the people and the tools available to it to put pressure on the Executive.

-- Nick Schwellenbach

State Secrets Privilege v. Accountability

An insight into the views of the Republic's founders can be found in their response to the English royal perogative "the King can do no wrong," that imparts immunity to the Sovereign from suit.  James Iredell, before the North Carolina constitutional ratifying convention in 1788, remarked of this British maxim, "We have experienced that he can do wrong, yet no man can say so in his own country."  The founders intended to leave sovereign immunity behind by making the United States government one where ambition is made to counteract ambition by separating powers between different branches and by enshrining the rule of law, rather than rule by man, as the DNA of the government.

Unfortunately the Republic's system of accountability and rule of law has been undermined by increasing assertions of the state secrets privilege by an agressive and excessively secretive executive branch and an overly deferential judicial branch often unwilling to examine the assertion (a notable and hopeful exception occurred last year in one of the National Security Agency warrantless wiretapping cases). Ever since the 1953 Supreme Court ruling in United State versus Reynolds, a ruling which "rests on a lie," the state secrets privilege has shut down court proceedings by denying access to documents and information necessary in order to have a fair adversarial process in court, thus thwarting accountability.

One of the most egregious examples of executive abuse of the state secrets privilege is the Justice Department invocation of the privilege in the case of Sibel Edmonds, a former FBI contract linquist, who blew the whistle, who has alleged corruption in the FBI.   But Edmonds was the wrong whistleblower to pick on: Edmonds and her allies are fighting back and Congress needs to hold hearings on the use and abuse of the state secrets privilege.  After all, we fought a war for independence so that when the people's government does wrong, we can say so.

-- Nick Schwellenbach

Leaks Go Wiki

One of the major impediments to government transparency and accountability in the U.S. (and worldwide) is the justifiable fear faced by government employees that leaking information and documents to the press, the Congress or the public will result in retaliation. Daniel Ellsberg who leaked the infamous Pentagon Papers was perhaps the first modern-day whistleblower who faced such retaliation, being arrested and put on trial.

And so, it is fitting that a new website called Wikileaks posts Ellsberg’s quote at the top of its site: “We were young, we were foolish, we were arrogant, but we were right.” According to the new site “WikiLeaks is developing an uncensorable version of WikiPedia for untraceable mass document leaking and analysis. Our primary targets are highly oppressive regimes in China, Russia, central eurasia, the middle east and sub-saharan Africa, but we also expect to be of assistance to those in the west who wish to reveal unethical behavior in their own governments and corporations.”

-- Beth Daley

Feds Back Off On Jack Anderson Files

Our heartfelt congratulations go out to Jack Anderson's family and his biographer Mark Feldstein who courageously fought an invasive attempt by the FBI to acquire his papers, claiming some of them might be classified.  Freedom is only as strong as the citizens who fight for it.

From today's Associated Press:

According to Anderson's biographer, George Washington University journalism professor Mark Feldstein, he and family members had told the FBI there was no classified material in the hundreds of boxes holding Anderson's files....

The revelation that the government was backing off came in a letter dated Nov. 30, from Acting Associate Attorney General James H. Clinger, which was posted Wednesday on the Web site of the Federation of American Scientists.

That letter is here (pdf). Jack Anderson was a mythical investigative journalist who trained many of the best and brightest muckrakers today. POGO admitted Jack Anderson to its Good Government Hall of Fame in 2006.

-- Beth Daley

Congressional Access to Secrets Showdown

The Executive branch has always argued that it can deny Congress access to secret national security information, but the Bush administration has been particularly adept at flouting Congressional requests.  The latest example is the denial of a request by Senate Judiciary Chairman Patrick Leahy (D-Vermont) for policy documents on the detention and interrogation of suspected terrorists.  Expect this to be one of many showdowns over Congressional access to classified information between a Congress, where newly-in-charge Democrats and many Republicans alike are ready to assert their constitutional perogative of oversight, and the hyper-secretive Bush administration. 

Congressional Quarterly reports:

The Justice Department has rebuffed a Senate request for documents related to the Bush administration's policy on the detention and interrogation of suspected terrorists, particularly those held by the CIA.

Patrick J. Leahy, D-Vt., soon to take the helm of the Senate Judiciary Committee, requested the documents from Attorney General Alberto R. Gonzales on Nov. 16, after the CIA acknowledged the existence of two of them in the course of a Freedom of Information Act lawsuit brought by the American Civil Liberties Union.

The Executive branch is wrong to argue that Congress can't see classified information.  To start, there seems to be an assumption that disclosure to Congress is the same as public disclosure.  That is why acting Assistant Attorney General James H. Clinger said, in his denial to Senator Leahy, that, "Al Qaeda seeks information on our interrogation techniques — their methods and their limits — and trains its operatives to resist them."  Now there may be information that the American government or most of of the public may not want Al Qaeda or other terrorists to know.  However, neither the public or terrorists will know this information unless it is declassified or leaked.  Many have noted that much more leaking comes from the Executive branch rather than Congress.   Senator Richard Shelby (R-Alabama) stated in 1998, "As CIA Director Tenet told this [Senate Intelligence] Committee last week, Congress has a better record at keeping secrets than does the executive branch, which he said, quote, leaks like a sieve, end of quote." (see page 45 of this pdf)

And Congress has never used its own rules to declassify documents on its own, but has relied on the Executive to declassify documents when it believes the public should see them.   The rules are: Senate Resolution 400, section 8, agreed to May 19, 1976 (94th Congress, 2nd Session) and Rules of the 109th Congress, U.S. House of Representatives, Rule X.

Documents can remain classified and kept from the public, yet still be shared with Congress for purposes of oversight. Congress, by and large, has been good at keeping secrets and its Members, Senators and cleared staffers have the authority to receive them.

Also to keep in mind, the Executive branch is denying Congress policy documents, not detailed information on what we actually know about Al Qaeda that could tip them off--again, if they were publicly disclosed.  If the Executive gets away with keeping these documents from Congress, then our constitutional system of separation of powers will have totally failed because Congress cannot oversee without basic information such as the policies of the Executive.  Leahy, Congress and the American public should fight for these documents.  This is a clear case where the War on Terrorism has wrongly skewed us away from one of the most fundamental principles of our constitutional Republic.

-- Nick Schwellenbach 

Exposing the Truth: Joe Darby

Few people know Joe Darby by name, but you can bet millions of Americans know the results of what he did. Darby is the whistleblower who came forward about the Abu Ghraib atrocities and gave authorities the pictures of U.S. soldiers abusing Iraqi prisoners.

This Sunday (Dec. 10) in a segment titled “Exposing the Truth,” 60 MINUTES will run a piece on Joe Darby, the Army reserve soldier from Appalachia who ended up exposing what became one of the biggest news stories of the Iraq war. Darby will tell his story to Anderson Cooper on this week’s 60 MINUTES (Sunday, Dec. 10, 7PM ET/PT on CBS).

-- Jennifer Gore

Over 1,000 Gov Employees Snared by FBI for Corruption

Wow.  The magnitude of public corruption uncovered by the FBI so far is astounding.  Part of FBI Director Robert Mueller's prepared statement before the Senate Judiciary Committee:

Public corruption is a betrayal of the public’s sacred trust. It erodes public confidence and undermines the strength of our democracy. Unchecked, it threatens our government and our way of life. That is why it is our top criminal investigative priority.

Over the last two years, the FBI has convicted more than 1,060 government employees involved in corrupt activities, to include 177 federal officials, 158 state officials, 360 local officials, and more than 365 police officers. In FY 2005 alone, the Public Corruption Program saw a 25% increase in public corruption cases investigated, resulting in 890 indictments, 759 convictions, and 2,118 cases still pending. There are 622 agents currently working public corruption matters, an increase of 264 since 2002.

As you may know, we've followed some of these cases here on the POGO blog. 

-- Nick Schwellenbach

CQ: Expanded Presidential Power to Declare Martial Law Met With Silence

Summary of Congressional Quarterly article called "Fine Print in Defense Bill Opens Door to Martial Law": Congress passed a questionable provision in the Defense authorization act that greatly expands the President's power to declare martial law.  Few in Congress care or know besides Senator Patrick Leahy (D-Vermont).  The mainstream media doesn't seem to know what's going on.  Do you?

-- Nick Schwellenbach

Bravery is Not Always Protected

First, we want to applaud the bravery of all who speak up for what they believe in, despite the risks they face in doing so.  That said, we were deeply concerned by today’s news in the Brattleboro Reformer that an active duty Marine is stepping forward to raise concerns about the war, presumably under the assumption that he will be “protected” under the Military Whistleblower Protection Act.

Tomorrow, dozens more may follow in his foot steps at a press call organized by Fenton Communications. We wondered whether these courageous individuals realize that getting whistleblower protection from retaliation is extremely difficult, made even more so by the Uniform Code of Military Justice which allows discipline for such catch-all violations as “conduct unbecoming an officer and a gentleman.” Little has changed to improve the situation since David Hackworth’s 1994 column “Blow the Whistle, Get the Ax.” 

Today’s comment by Democratic Senator Jack Reed at a press conference was also not encouraging:

With respect to active duty personnel, soldiers have an obligation to serve. I think the province of public discourse is not something that they should be engaged in so free. I have not heard these comments. I heard a reflection of them. But let me make a general point: We expect our soldiers to follow the rules, follow the legitimate orders of their commanders. And if you feel a course of action is inappropriate, your choice is just getting out of the service, basically, if you can and making your comments as a civilian.

POGO and other whistleblower organizations regularly advise members of the military and government employees not to become publicly identified as whistleblowers. Their First Amendment right can be exercised more safely if they stay anonymous. The Department of Defense Inspector General investigates military retaliation cases, but only finds in favor of 17% of them. There are big hurdles to reversing retaliation -- among them, the need to establish a clear connection between the whistleblowing and the retaliation that occurs. Retaliation can come years down the road after the limelight has faded. Even “straight arrows” can suffer as the smallest infraction or appearance of an infraction is used against them. One of the few things that government bureaucracies do well is to hold grudges against their whistleblowers.

We don't want to discourage anyone in the government or the military from following their conscience, but we just want them to be aware of the reality of (the lack of) whistleblower protections and to be prepared to face the difficult road they may have to face.

--Beth Daley

 

Princeton Researchers: Diebold Electronic Voting Machines Are Highly Vulnerable

Bottom line: The integrity of elections may be highly suspect where Diebold electronic voting machines are used, because, according to a team of Princeton University researchers who released a paper yesterday, these machines are extremely vulnerable to manipulation. (hat tip: BeSpacific)

Diebold rebutted the researcher's report last night in a statement.  They argue that the machine and software the researchers examined is no longer used and that "normal security measures were ignored."

A link to the paper "Security Analysis of the Diebold AccuVote-TS Voting Machine" (pdf) by Ariel J. Feldman, J. Alex Halderman, and Edward W. Felten.

The abstract:

This paper presents a fully independent security study of a Diebold AccuVote-TS voting machine, including its hardware and software. We obtained the machine from a private party. Analysis of the machine, in light of real election procedures, shows that it is vulnerable to extremely serious attacks. For example, an attacker who gets physical access to a machine or its removable memory card for as little as one minute could install malicious code; malicious code on a machine could steal votes undetectably, modifying all records, logs, and counters to be consistent with the fraudulent vote count it creates. An attacker could also create malicious code that spreads automatically and silently from machine to machine during normal election activities — a voting-machine virus. We have constructed working demonstrations of these attacks in our lab. Mitigating these threats will require changes to the voting machine's hardware and software and the adoption of more rigorous election procedures.

Their main findings:   

1. Malicious software running on a single voting machine can steal votes with little if any risk of detection. The malicious software can modify all of the records, audit logs, and counters kept by the voting machine, so that even careful forensic examination of these records will find nothing amiss. We have constructed demonstration software that carries out this vote-stealing attack.

2. Anyone who has physical access to a voting machine, or to a memory card that will later be inserted into a machine, can install said malicious software using a simple method that takes as little as one minute. In practice, poll workers and others often have unsupervised access to the machines.

3. AccuVote-TS machines are susceptible to voting-machine viruses — computer viruses that can spread malicious software automatically and invisibly from machine to machine during normal pre- and post-election activity. We have constructed a demonstration virus that spreads in this way, installing our demonstration vote-stealing program on every machine it infects.

4. While some of these problems can be eliminated by improving Diebold's software, others cannot be remedied without replacing the machines' hardware. Changes to election procedures would also be required to ensure security.

-- Nick Schwellenbach

NORAD, Lies and Audiotape

In a story worthy of front-page coverage, the Washington Post reported today that many members and staffers on the 9/11 commission considered the testimony given by military and aviation officials to be criminally misleading.  The panel debated the matter at a secret meeting following the conclusion of its hearings.  In the end, it decided to refer the issue to Inspector Generals at the Defense and Transportation departments.  The IGs are completing their reports and can still make criminal referrals based on the evidence presented. 

A Vanity Fair article also published today includes excerpts from audiotape recordings made at NORAD’s (North American Aerospace Command’s) northeast headquarters.  These recordings, parts of which were aired on ABC News last night, tell a very different story from the one presented by Major General Larry Arnold and Colonel Alan Scott to the 9/11 commission in 2003.  For instance, Arnold and Scott told the panel that NORAD was largely in control of its affairs by the time the fourth plane (United Flight 93) was hijacked, and that fighter jets were in place to shoot the plane down if it threatened Washington, D.C.  Colonel Scott said that NORAD first learned about United 93 at 9:16 a.m. and gave launch orders for the fighter jets at 9:24.  The only problem is that at 9:16, United 93 had not been hijacked yet.  And the fighter jets were actually launched in response to a different flight: American Flight 11, which had already crashed into the World Trade Center.  The chaos within NORAD in the midst of the hijackings is understandable—the deliberately misleading testimony by NORAD officials two years later is inexcusable and possibly criminal.

POGO has repeatedly spoken out against secrecy and over-classification in the post-9/11 intelligence community.  Both the public and the 9/11 panel deserve to know the truth about NORAD’s response to the hijacked planes.  The IG reports will hopefully clarify how badly we have been misled thus far. 

--Michael Smallberg 

Gingrich’s “Advice” on Congressional Oversight

A new article in The Hill reveals more details about the meeting held between White House official Clay Johnson, former House Speaker Newt Gingrich and Republican Congressional investigators. According to The Hill:

Gingrich and Johnson also spoke out against holding many public hearings on oversight.

Johnson said “A lot of communication with Congress doesn’t have to be in the hearing room.” He called for more work between the two branches to be done on an informal basis and said that hearings would work best at the end of the process.

Yeah, and maybe everyone can have a group hug too. The article goes on to add:

“Congressional hearings add to the problem,” noting that very often this “maximizes hostility between the legislative and executive branch and minimizes creativity.”

The White House’s Johnson even claims that “the executive branch provides better oversight than the legislative branch. He touted the OMB website expectmore.gov, which grades federal programs.”

Anyone out there have a few things to say about the effective programs listed at http://www.expectmore.gov? Perhaps a Congressional oversight hearing is merited on the effectiveness of Expectmore.gov.

For example,  the Nuclear Regulatory Commission scores high marks in its spent fuel program, yet the program has done little since 9/11 to ensure that spent fue l pools are adequately protected from a terrorist attack (a scenario with the 9/11 Commission reported that terrorists had considered). Indeed, if the program is run so well, why did the NRC stone wall the Congressionally-requested National Academy of Sciences when it was conducting a review of security at the fuel pools?

NRC refused to allow its report to be released but, even worse, it refused to provide information to the Academy to help it conduct its study. According to the study (pg. 33): “The Nuclear Regulatory Commission declined to provide detailed briefings to the committee on surveillance, security procedures, and security training at commercial nuclear power plants.”  Luckily, the House National Security Subcommittee has held hearings to hold NRC accountable.

Unfortunately, these “evaluation programs” by the executive branch often end up to be mealy-mouthed exercises in paper pushing.  Though they can be useful, they cannot replace checks and balances between the branches of government.  A principle, one which we feel folks like Johnson and Gingrich should be reminded, upon which our constitutional republic was founded.

-- Beth Daley

Congress Avoiding the Masses' Email

While some members of Congress are trying to cut pork out of the Congressional diet, other members are concerned about interest group spam (known to some as constituent e-mail). New web technology enables members of Congress to require the completion of a simple math or logic problem (examples include what is 5 minus 1, or 3 x 1) before constituents can e-mail them. The optional enhancement to "Write your Rep" is designed to thwart mass e-mails and ensure that only an actual person can complete the puzzle. In some cases, like Sen. John Cornyn's (R-TX) contact page, constituents are asked to choose the nth word out of both politically-charged or nonsensical words like xenophobic, snootiness, canonizing, secretions, skidooed, markups, and snafus.

Common Cause described the new technology as "blocking communication from the people who vote [Congressional members] into office." The ACLU agreed and denounced the use of "logic puzzles." According to the Washington Post, of the 8,262 times the logic puzzle was viewed in the House, only 1,568 people solved the puzzle correctly and moved on to send a message, which could mean that the computer could not crack the code or humans were frustrated and gave up. The Post's Jeffrey Birnbaum (in what is arguably abusive hyperbole) compared the measure to poll taxes once used to prevent blacks from voting.

Approximately 60 offices have already added the feature to their websites. That number may decrease: Rep. John Dingell (D-MI)'s office is reportedly taking it down, saying the technology does not fit the office's needs.

Anyone with an e-mail account can sympathize with Congress members' desire to reduce spam. Unfortunately, the fundamental problem may be lawmakers' general resistance to constituent input in e-mail form. The new web feature also risks being challenged by the Americans with Disabilities Act.

Many advocacy groups provide form letters (like this) through their websites that would be filtered out, if sent directly through the website. Whether a member of Congress considers the letter "spam" is beyond the point--constituents have the constitutional right "to petition the government for a redress of grievances."

-- Mandy Smithberger