Yesterday, in a well-reasoned decision, a federal judge in New York struck down under the First Amendment a particularly extreme provision in the Patriot Act — the “gag rule” that applied to National Security Letters (NSLs). As discussed in my Senate Judiciary testimony this April, NSLs are subpoenas issued by the FBI, with no judicial oversight. They require phone companies, banks, and Internet service providers to turn over customer records. The “gag rule,” in the court’s words applied to “the mere fact that the FBI issued an NSL” and also, “most troubling to the Court, statements critical of the way that the government uses NSLs.”

When it comes to gag rules in the future, the court made two holdings:

1) “The government’s use of nondisclosure orders must be narrowly tailored on a case-by-case basis.” In other words, no blanket gag orders that apply to all NSLs.

2) “The nondisclosure orders must be subject to meaningful judicial review.” The revised Patriot Act had “judicial review” provisions that were too weak to pass constitutional muster.

This case is good news for creating the right set of rules around national security searches. It will be a good precedent to cite in other cases where the government is claiming that “national security” should trump the Constitution. It also will improve use of NSLs, which were the subject of a scathing report by the Department of Justice Inspector General earlier this year.

Here’s what we need to do next on NSLs:

– Especially in light of the court decision, Congress should consider the better checks and balances contained in bipartisan efforts such as the SAFE Act, introduced in the last Congress as S.737.

– Recipients of an NSL should receive a “Statement of Rights and Responsibilities.” This Statement would prevent over-reaching by the FBI. It would inform the recipient on issues such as the right to consult an attorney; the right to appeal an NSL to a court; and the limited scope of records that an NSL can cover.

– Peter Swire

Yesterday, the Washington Times reported that Congressional leaders have begun calling the upcoming Iraq assessment “the Bush report” rather than crediting it to Gen. David Petraeus — a change that the paper and other right wingers claim is an effort to “undermine” Petraeus’ credibility. But, as TPM’s Greg Sargent points out, the legislation calling for the report specifically mandated that it come from the President, not the top commander in Iraq.

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U.S. force levels in Iraq, an “all-time high.” Maj. Gen. Richard Sherlock, director of operational planning for the Joint Staff, said that “the arrival of more combat brigades will temporarily push the total to as high as 172,000 over the coming months before it falls back to about 160,000 troops by November or December as other units leave.”

On ABC’s World News with Charles Gibson on Wednesday, Newsweek International editor Fareed Zakaria said that fears of genocide in Iraq after an American withdrawal are misplaced because large-scale ethnic cleansing has already occurred:

One of the dirty little secrets about Iraq is that Iraq has increasingly been ethnically cleansed. It’s sad to say, but the American Army has presided over the largest ethnic cleansing in the world since the Balkans. When people say bad things are going to happen if we leave, bad things have already happened. Where were you for the last four years?

Retired Gen. Jack Keane, one of the architects of Bush’s escalation plan, attacked Zakaria’s fact-based assertion. “You are really not describing what’s happening in Iraq. I mean, you’re in the past, to be quite frank about it,” said Keane before claiming the “surge” is working. Watch it:

Keane’s response to Zakaria has been heralded by the right wing. NewsBusters championed the “rebuke.” The Media Research Center, NewsBuster’s parent organization, approvingly reprinted the post in a cyber alert. The Washington Times’ Greg Pierce highlighted the exchange today.

None of Keane’s supporters note, however, that Zakaria is correct on the facts when he says “Iraq has increasingly been ethnically cleansed.”

Since the initial invasion of Iraq, more than 4.2 million Iraqis have left their homes, with roughly 2.2 million internally displaced while more than 2 million have fled to neighbouring states. Bush’s escalation, which Keane calls “very very encouraging,” has actually increased the pace of ethnic cleansing.

As the Center for American Progress’ Brian Katulis and Anita Sharma write today, the situation in Iraq now comprises “the biggest refugee crisis in the middle east since 1948.” But you won’t learn that reading right-wing diatribes against Zakaria.

Transcript: (more…)

In her recent column on bus safety, Rep. Jean Schmidt (R-OH) warned school children to “never bend down near or under the bus to pick something up that has fallen.” An observant Ohio blog, The Daily Bellwether, noticed that parts of Schmidt’s column were strikingly similar to columns written by former Ohio State Highway Patrol Col. Paul McClellan. The Cincinnati Enquirer confirmed Schmidt’s cut-and-paste plagiarism today:

If Rep. Jean Schmidt’s latest column on school bus safety looked familiar, there’s a good reason why.

Six sentences from her column of last Tuesday appear to be cut and pasted in identical form from a column written in October 2005 by then-Ohio State Highway Patrol Col. Paul McClellan. […]

For example, Schmidt’s column says: “When exiting the bus, care should be taken to check that clothing with drawstrings and book bags with straps do not get caught in the handrails or doors. Additionally, students should never go back for anything left on the bus, and never bend down near or under the bus to pick something up that has fallen.”

McClellan’s column says: “When exiting the bus, care should be taken to check that clothing with drawstrings and book bags with straps do not get caught in the handrails or doors. Additionally, students should never go back for anything left on the bus, and never bend down near or under the bus to pick something up that has fallen.”

This isn’t the first time Schmidt has been caught passing off other people’s words as her own. In September 2006, Schmidt appropriated passages from Rep. Deborah Pryce’s (R-OH) press releases for a column on Medicare.

In anticipation of the White House’s report next week, Gen. David Petraeus sent a letter to U.S. troops today. Brandon Friedman, who served in Iraq and is now a senior adviser to Vote Vets, obtained a copy of the letter and notes that most of it “essentially says what everyone expects him to say.” On the second page, however, Petraeus admits that “tangible political progress” on the ground “has not worked out as we had hoped”:

Earlier this week, White House chief of staff Joshua Bolten also admitted that “success” on the political benchmarks has not been “as large as we would have hoped.”

In the latest twist to the ongoing saga over the Petraeus White House report, a senior military official tells the Washington Times today that there will actually be no report at all:

A senior military officer said there will be no written presentation to the president on security and stability in Iraq. “There is no report. It is an assessment provided by them by testimony,” the officer said.

The only hard copy will be Gen. Petraeus’ opening statement to Congress, scheduled for Monday, along with any charts he will use in explaining the results of the troop surge in Baghdad over the past several months.

To recap, first the public was incorrectly led to believe that Gen. David Petraeus would issue his own report about the situation on the ground in Iraq. Then the Los Angeles Times reported that the so-called “Petraeus report” would “actually be written by the White House.”

Rep. Tom Davis (R-VA) then suggested the White House would probably “tweak” the “Petraeus report.” In an effort to put the controversy to rest, Gen. David Petraeus assured lawmakers that the White House was not going to be involved in the “writing” of the report:

Rep. Kendrick Meek (D-Fla.), told reporters Thursday that Petraeus said he and U.S. Ambassador to Iraq Ryan Crocker had briefed the administration on the situation in Iraq, but added that “as far as [Petraeus] is concerned … he is writing his recommendations of that report and testimony.”

Now, apparently there will be no written report from Gen. Petraeus at all. While Petraeus’ statement to Congress will be made available, the public will not know what information he is providing to President Bush. The lack of transparency over Petraeus’ “report” will only intensify the high level of skepticism surrounding his statistics.

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UPDATE: In a recent hearing, Sen. Norm Coleman (R-MN) said he recently met with Gen. Petraeus and was shown “the data.” Coleman said the data is “very clear about a reduction in violence. General Petraeus has those charts,” Coleman explained. Apparently, those charts will not be for public consumption.

This week, President Bush met with China’s President Hu Jintao in Australia at the APEC summit. In “his usual understated way,” Rep. Dana Rohrabacher (R-CA) issued a statement yesterday asking: “If this were 1936, would President Bush be anxious to sit next to Adolf?” “One bit of advice, Mr. President,” Rohrabacher said, “I wouldn’t be so anxious to use the toothpaste in your hotel room.”

Number of citizens around the world who “think US-led forces should leave Iraq within a year, according to a BBC World Service poll of 23,000 people across 22 countries. Just one in four (23%) think foreign troops should remain in Iraq until security improves.”

Though Gen. David Petraeus has told President Bush “that he wants to maintain heightened troop levels in Iraq well into next year,” a senior U.S. official says the general is willing to consider a slight drawdown of “between 3,500 and 4,500 U.S. troops from Iraq early next year.”

Rep. Mike Simpson (R-ID) lashed out at Senate Republican leaders yesterday over their efforts to force Sen. Larry Craig (R-ID) to resign. “I hope I never stub my toe and they throw me under the bus,” said Simpson. “It kind of makes you wonder what party you want to be a member of,” he added, noting he has no intention of switching parties.

“American intelligence agencies are expecting Osama bin Laden to issue a triumphant message to Al Qaeda followers on the sixth anniversary of the September 11, 2001, terrorist attacks boasting of Al Qaeda’s growing numbers and success in the Middle East and Southeast Asia.” The al-Qaida leader has not appeared in new video footage since October 2004.

“Seven U.S. troops have been killed in Iraq, including four in the western province of Anbar, the U.S. military said on Friday.” The deaths take to more than 3,750 the number of U.S. soldiers killed since the start of the U.S.-led invasion in 2003.

Yesterday, the head of the Justice Department’s civil division announced that he will be leaving in two weeks. His departure “will leave only two of the department’s six key litigation divisions headed by Senate-confirmed officials.” Once Alberto Gonzales steps down, all three of the Justice Department’s top positions will also be filled by “acting” officials. (more…)

In a House Armed Services Committee hearing this afternoon, Chairman Ike Skelton (D-MO) asked Gen. James Jones to comment on his report’s recommendation that the U.S. should reduce its footprint in Iraq. The Jones report suggests “significant reductions” in the “size of our national footprint in Iraq.” Skelton asked Jones if this is a call to reduce troop levels, and Jones answered yes:

JONES: [W]e can consider taking a look at our footprint, taking a look at how many people we have in Iraq, how many bases we have, how many locations we have, and begin to think about ways in which we can realign the force, retask the force, and even remission it, so that we can gradually adjust our footprint and our military commanders can do it.

SKELTON: Does that mean reduce?

JONES: Sir?

SKELTON: Does that mean reduce our force?

JONES: It means — it means finding efficiencies and it means — yes, it means making a candid assessment of who’s over there, who absolutely needs to be there, critically, and making sure that we are operating at peak efficiency and don’t have excessive capacity simply over there because it’s their time to go.

Watch it:

On his radio show yesterday, Bill O’Reilly called Media Matters and MoveOn.org “the most vicious element in our society today” and referred to their employees as “assassins.” He also claimed that there is “no corresponding level of this kind of vitriol on the right.” Listen to the full segment HERE.

Number of Americans who believe the White House report on Iraq will honestly reflect Gen. David Petraeus’s “true assessment of the situation in Iraq,” according to a new Rasmussen poll.

Bush’s “surge” has escalated ethnic cleansing. Shiites have cleared the western half of Baghdad of thousands of Sunnis, who once dominated the area. Newsweek reports:

The surge of U.S. troops — meant in part to halt the sectarian cleansing of the Iraqi capital — has hardly stemmed the problem. The number of Iraqi civilians killed in July was slightly higher than in February, when the surge began. … Rafiq Tschannen, chief of the Iraq mission for the International Organization for Migration, says that the fighting that accompanied the influx of U.S. troops actually “has increased the [internally displaced persons] to some extent.”

The Iraqi Red Crescent Organization and the U.N. reported last month that the “number of Iraqis fleeing their homes has soared since the American troop increase began in February.” Despite the mass exodus of large numbers of Iraqis from conflict zones, the Iraqi health ministry reports there still have been more civilian deaths this month than in previous months.

The National Intelligence Estimate confirmed that where some “conflict levels have diminished,” it was due to ethnic cleansing. The new report by an independent 20-member military commission headed by Gen. James Jones puts this reality in a stark visual presentation. See the chart below (from p. 34 of the Jones report):

The chart reports some decreases in the intensity of “ethno-sectarian violence” in certain Baghdad districts (Note: This is based on military data). But where there have been decreases, they are due largely to the fact that “mixed Muslim” areas are being overrun by either Shia or Sunni enclaves.

The map above demonstrates that Shias have been gradually taking over all of Baghdad (noted by the green mass that now covers much of the city), wiping out Sunni communities that stood in their path. Center for American Progress analyst Brian Katulis estimated that Baghdad, which once used to be a 65 percent Sunni majority city, is now 75 percent Shia.

Next week, when Gen. Petraeus reports “progress” in reducing sectarian violence in Iraq, what he means is that there has been great “progress” in the Shia ethnic cleansing campaign.

The Terrorist Screening Center (TSC), the government’s terrorist screening database that monitors 270 million people each month, “continues to be marred by errors and inconsistencies that can result in the detention of innocent people and increase the chances a terrorist could slip through,” according to Justice Department auditors.

Last night, President Bush issued a statement wishing “greetings” to those “celebrating Rosh Hashanah“:

The sound of the Shofar heralds the beginning of a new year and a time of remembrance and renewal for the Jewish people. During these holy days, men and women are called to reflect on their faith and to honor the blessings of creation.

The enduring traditions of Rosh Hashanah remind us of the deep values of faith and family that strengthen our Nation and help guide us each day. As Jewish people around the world come together to celebrate Rosh Hashanah, it is a chance to look to the new year with hope and faith.

Laura and I send our best wishes for a blessed Rosh Hashanah and shanah tovah.

Unfortunately for the White House, Rosh Hashanah does not start until next week — sunset on Sept. 12. (Happy Thanksgiving, Mr. President!)

(HT: On Deadline)

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Last week, Gen. David Petraeus alleged a 75 percent reduction in “sectarian violence” in Iraq and is expected to say the same before Congress. In contrast, the nonpartisan Government Accountability Office recently reported that daily attacks in Iraq have “remained unchanged” throughout the escalation.

The Washington Post reports today that national security analysts are questioning the military’s statistics. National Intelligence Estimate authors, Iraq Study Group members, intelligence officials, and academics now “accuse the military of cherry-picking positive indicators.”

Brookings analyst Michael O’Hanlon, however, attacked the GAO, choosing instead to laud the Pentagon’s distortions. In an analysis only he could offer, O’Hanlon rips the GAO report for being both “overly rigorous” and “flat-out sloppy”:

During his recent tour through Iraq, [O’Hanlon] adds, every local briefing he received from the US military said that attacks in that particular sector were down. In addition, for the GAO to decline to judge whether attacks are sectarian or not is to take an overly rigorous approach to the numbers, says the Brookings expert.

“I just think they were flat-out sloppy,” he says of GAO.

By attacking the GAO, O’Hanlon has defied the community of national security experts he alleges to be a part of and has instead allied himself with the discredited ranks of the Bush administration and right-wing lawmakers.

Ironically, while O’Hanlon bashes the GAO when he doesn’t like what it says, his very own Iraq Index borrows heavily from GAO reports:

A senior military intelligence official attributed the Pentagon’s drastic reduction in violence “to a desire to provide Petraeus with ammunition for his congressional testimony.” O’Hanlon’s desire to provide that ammunition has left him in lonely territory in Washington.

This December, Wheaton College, outgoing Rep. Dennis Hastert’s (R-IL) alma mater, will “unveil a new academic program and center to house the documents and create an education legacy for Hastert.” The J. Dennis Hastert Center for Economics, Government and Public Policy will have “a conference room in the new center that will double as an office for Hastert.”

The GOP presidential field seemed complete last night when former senator Fred Thompson finally announced he was jumping into the race. But apparently the right-wing isn’t satisfied with its choices and is hoping that the race may have room for one more candidate — Gen. David Petraeus.

Today, the New York Sun has an editorial entitled “Petraeus for President?” In the piece, the editorial writers pen the speech they would like Petraeus to give on the sixth anniversary of the 9/11 attacks:

I am prepared, even eager, to command our forces in this battle — but only on one condition: That you signal that you share my goal of victory. If you think I am mistaken and wish to continue your efforts to undermine me, then I cannot command. Absent that signal, I will resign, effective immediately, and take my case to the voters in a run for the presidency on a campaign to finish the work of winning the war and redeeming the sacrifice of so many Iraqis, allies, and our own GIs.

The Corner’s Kathryn Jean Lopez approvingly linked to the editorial this morning, titling her post “Dream Sequence.” Last spring, The Weekly Standard’s Bill Kristol told the Harvard Republican Club that he and other “conservative insider[s]” believe “a ticket of Fred Thompson and David Petraeus might be able to avert electoral disaster for the GOP” in 2008.

It’s unlikely that Petraeus would be as warmly received by the American public, which wants withdrawal from Iraq. According to a Rasmussen poll of major political figures, Petraeus has an approval rating of only 24 percent — a number lower than even Dick Cheney and Donald Rumsfeld.

As author of the “surge,” Petraeus is intimately tied to the administration and its Iraq failures and has acted as Bush’s main PR flack to cover-up mistakes. Some highlights:

Petraeus “softened” the intelligence community’s judgments about Iraq violence. After reviewing an early draft of the National Intelligence Estimate on Iraq, “Petraeus succeeded in having the security judgments softened” to reflect so-called improvements in recent months.

Petraeus claimed the United States has “become liberators again” in Iraq. In June, Petraeus argued there was a “golden hour” of “omnipotence” in the early stages of the war where the U.S. was “viewed as a liberator.” He then claimed that Iraqis perceive the United States to once again be “liberators,” this time freeing them from the bloody civil war instigated as a result of the U.S. occupation.

Petraeus claimed life in Iraq is showing “astonishing signs of normalcy.” In June, Petraeus stated that he sees “astonishing signs of normalcy” in Baghdad, despite a report that found violence had “increased in most provinces, particularly in the outlying areas of Baghdad province.”

Petraeus has never shied away from inserting himself into politics. Just prior to the 2004 presidential election, Petraeus wrote an op-ed defending Bush’s course in Iraq. Recently, he defended Bush’s good friend Australian Prime Minister John Howard, who is facing a tough re-election race because of his support for the Iraq war.

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Sidney Blumenthal reports in Salon that President Bush ignored a 2002 Oval Office briefing in which CIA director George Tenet provided him with intelligence that Saddam Hussein did not possess weapons of mass destruction. “Bush dismissed as worthless this information from the Iraqi foreign minister, a member of Saddam’s inner circle, although it turned out to be accurate in every detail.” “The president had no interest in the intelligence,” a CIA officer disclosed. “Bush didn’t give a f**k about the intelligence. He had his mind made up.”