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The USA Purge: DOJ’s IG Punts

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Well over a year after the Department of Justice’s Inspector General started an investigation into the US Attorney firings, they’re set to punt tomorrow. They won’t refer Gonzales–or anyone else–for prosecution, but they will recommend that someone–someone with subpoena power–continue the investigation.

Justice Inspector General Glenn A. Fine and Office of Professional Responsibility director H. Marshall Jarrett, who wrote the report, will not absolve Justice Department officials of blame but will recommend that efforts continue to resolve unanswered questions, said the sources, who spoke on condition of anonymity because the findings have not yet been made public. 

The problem, it seems, is the same problem that prevented Congress from determining the truth behind the US Attorney firings: key participants refused to cooperate.

An intense effort to determine how the firing plan originated and whether perjury or obstruction of justice laws were violated in refusing to reveal the basis for the dismissals has been thwarted, partly because investigators lack the power to compel testimony from people outside of the Justice Department.

[snip]

Investigators did not win access to lawmakers and their assistants or former White House aides despite attempts to interview them.

Yeah, those key participants: Harriet Miers, Turdblossom, Bush, Domenici and his staffers, Heather Wilson and her staffers, etcetera. What a surprise. Mukasey’s refusal to appoint a prosecutor last year–and his ongoing support for the claims of executive privilege and absolute immunity–bought the White House a year in their attempts to stall or quash this investigation.

And, as if you didn’t already guess, Mukasey seems unprepared to appoint a special counsel to investigate this–he seems poised to appoint someone internal, just as he did with the torture tape destruction investigation.

Despite calls from some of the fired U.S. attorneys, Mukasey will not name a special prosecutor from outside the department. Instead, he intends to hand over the project to a career lawyer with experience in public corruption work, the sources said. 

Tune in tomorrow where we see yet more evidence of DOJ’s changing stories about why they fired the US Attorneys.

Rationalizing the Hospital Visit

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As promised, I wanted to say a few more things about Murray Waas’ articles from yesterday. Murray reports two new details that weren’t in the IG report on Gonzales’ notes or in Barton Gellman’s reporting on the events of March 10, 2004. His first story adds to Gellman’s earlier report that George Bush was the one who called John Ashcroft’s hospital room to alert Mrs. Ashcroft that Gonzales and Andy Card were coming; Murray notes that Gonzales "recently" told federal investigators that Bush was the one who sent him to the hospital. Murray’s second story reveals that DOJ investigators are trying to determine whether, on Bush’s orders, Gonzales created a false record of the March 10, 2004 briefing of the Gang of Eight to justify Bush’s reauthorization of the warrantless wiretap program after Comey and Ashcroft refused to reauthorize it.

The Justice Department is investigating whether former Attorney General Alberto Gonzales created a set of fictitious notes so that President Bush would have a rationale for reauthorizing his warrantless eavesdropping program, according to sources close to the investigation.

[snip]

In reauthorizing the surveillance program over the objections of his own Justice Department, President Bush later claimed to have relied on notes made by Gonzales about a meeting that had taken place the day before (March 10), in which Gonzales and Vice President Cheney had met with eight congressional leaders—also known as the “Gang of Eight”—who receive briefings about covert intelligence programs. According to Gonzales’s notes, the congressional leaders had said in the meeting that they wanted the surveillance program to continue despite the attorney general’s refusal to certify that it was legal.

But four of the congressional leaders present at the meeting say that’s not true; they never encouraged the White House to sidestep the objections of the attorney general and continue the program without his approval.

I have no doubt that Gonzales fictionalized his notes so as to invent a rationale for reauthorizing the program in spite of Comey’s disapproval. But I think something else is going on, as well–a desire to invent a rationale for Gonzales and Card’s March 10 hospital visit itself. Read more →

The Contents of Alberto Gonzales’ Safe Briefcase

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Here’s what Alberto Gonzales thought was so sensitive, he illegally kept it in an unsecure safe and brought it back and forth to work in his briefcase.

The classified materials that are the subject of this investigation consist of notes that Gonzales drafted to memorialize a classified briefing of congressional leaders about the NSA surveillance program when Gonzales was the White House Counsel; draft and final Office of Legal Counsel opinions about both the NSA surveillance program and a detainee interrogation program; correspondence from congressional leaders to the Director of Central Intelligence; and other memoranda describing legal and operational aspects of the two classified programs. 

[snip]

Gonzales told the OIG that President Bush directed him to memorialize the March 10, 2004, meeting. [ed. Note, contrary to one of the press reports, it does not appear that Bush was at the meeting–though Cheney was.] Gonzales stated that he drafted notes about the meeting in a spiral notebook in his White House Counsel’s Office within a few days of the meeting, probably on the weekend immediately following the meeting. Gonzales stated that he wrote the notes in a single sitting except for one line, which he told us he wrote within the next day. Gonzales said that his intent in drafting the notes was to record the reactions of the congressional leaders during the meeting, as opposed to recording any operational details about the program that were discussed. In the notes, Gonzales listed who was present, followed by a general summary of the briefing given to the congressional leaders by intelligence agency officials, and the congressional leaders’ responses to the briefing. However, Gonzales’s summary also referenced TS/SCI operational aspects of the program by his use of specific terms associated with the program. The notes also included the SCI codeword used to identify the program. [my emphasis]

[snip]

The two envelopes contained a total of 17 separate documents. The envelope containing documents related to the NSA surveillance program bore the handwritten markings, "TOP SECRET – EYES ONLY – ARG" followed by an abbreviation for the SCI codeword for the program. The envelope containing the documents relating to a detainee interrogation program bore classification markings related to that program. Each document inside the envelopes had a cover sheet and header-footer markings indicating the document was TS/SCI. Read more →

Gonzales Resigned 17 Days After This IG Investigation Began

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I’ll be doing running commentary on today’s DOJ Inspector General’s investigation of how Alberto Gonzales improperly handled Top Secret information. But I didn’t even get through the first page before being struck by the circumstances behind this investigation. Most curiously, Gonzales resigned just days after this investigation began.

The matter was referred to the OIG by Kenneth Wainstein, former Assistant Attorney General for the National Security Division, on August 10, 2007. The White House Counsel’s Office had initially notified the Department of Justice (Department) about the matter, and Wainstein, after consultation with other senior Department officials, referred the matter to the OIG for investigation.

That is, at a time when Alberto Gonzales was weighing down the Bush Administration, Fred Fielding informed Ken Wainstein that Alberto Gonzales was running around town with a briefcase full of TS/SCI documents. Fielding did so just 20 days after the Administration used Pixie Dust to give Cheney carte blanche to make up his own rules about how to treat classified information. And, more interesting still, it happened just 17 days before a weepy Gonzales resigned on August 27.

Gosh. You’d almost think the Administration, after Bush asked Gonzales specially to take notes of a meeting at which members of Congress collaborated with the Administration in breaking the law, then used those notes against Gonzales, to push him out of the Administration.

And if you’re wondering, Ken Wainstein has since been named Bush’s Homeland Security Advisor. 

Update: typo fixed per bobschacht.

Is THIS Why Congress Folded on FISA?!?!?

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There’s a DOJ IG report focusing on Alberto Gonzales tomorrow–but it’s not the one we’ve all been anxiously anticipating (the one on the US Attorney firings). Rather, this one arose (I believe) out of the clear evidence that Gonzales discussed classified details about the warrantless wiretap program in front of John Ashcroft’s wife, who was sitting in his ICU hospital room on March 10, 2004 when Gonzales and Andy Card stormed into the room to try to get Ashcroft to sign off on the warrantless wiretap program. From James Comey’s testimony, it appeared that Gonzales may well have divulged details of this program to someone not authorized to hear them, and from that DOJ’s Inspector General investigated whether Gonzales had broken the law when he did so.

But Gonzales’ blabbing in front of Mrs. Ashcroft aren’t the details from the DOJ IG report that got leaked to the WaPo–by all appearances, by Gonzales’ attorney George Terwilliger. Instead, the WaPo focuses on the new revelation that, after January 2005, Gonzales was wandering around DC with notes from the meeting between the Administration and the Gang of Eight that took place on March 10, 2004.

Former attorney general Alberto R. Gonzales improperly handled classified information about some of the government’s most sensitive national security programs, but authorities will not recommend that he face criminal sanctions, according to officials familiar with an investigative report to be released today.

[snip]

At issue are notes that Gonzales took during a March 2004 meeting between President Bush and congressional leaders in the White House Situation Room, as a program that allowed authorities to secretly monitor communications for evidence of terrorist plots was set to expire.

When Gonzales, then White House counsel, moved to become the Justice Department’s top official in early 2005, he failed to secure the notes in a sensitive compartmentalized facility, the inspector general has concluded. Gonzales kept the notes in a safe in his office and at times took them to and from work in a briefcase — practices that violated protocols for the handling of classified materials, according to people familiar with the report.

In a memo to the inspector general, Gonzales’s advisers characterized the episode as an unintentional mistake and a technical violation of the rules. [my emphasis]

Read more →

Trading our Constitution Away Based on the Word of Alberto Gonzales

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Here’s what Jim Comey had to say about the illegality of the warrantless wiretap program:

SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.

COMEY: I’m not saying — again, that’s why I kept avoiding using that term. I had not reached a conclusion that it was.

The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.

SPECTER: OK.

Well, now I understand why you didn’t say it was illegal. What I don’t understand is why you now won’t say it was legal.

COMEY: Well, I suppose there’s an argument — as I said, I’m not a presidential scholar — that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal.

I disagreed with that conclusion. Our legal analysis was that we couldn’t find an adequate legal basis for aspects of this matter. And for that reason, I couldn’t certify it to its legality.

Comey’s a pretty conservative lawyer. Even still, he obviously struggled seriously to figure out whether, if the President said something that had no basis in law was legal, it was legal, or not.

You might think that’s the kind of challenging legal assessment Attorney General Mukasey is doing, preparing (as he surely is) to deliver the immunity the FISA capitulation will give the telecoms within the next week.

But you’d be wrong. As a reminder, here’s what the immunity language in the FISA capitulation says.

[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that

[snip]

(4) the assistance alleged to have been provided by the electronic communication service provider was —

(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and

(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.

Look at the language carefully. It doesn’t say, "Michael Mukasey, a conservative and complicit–but still a once-respectable–lawyer, must review the program and certify that the program was legal." Rather, it says that, for the telecoms to receive their immunity, the Attorney General (Mukasey) only has to certify that at the time the Administration requested the telecoms’ assistance, they were told, in writing, that the program was "(i) authorized by the President, and (ii) determined to be lawful." There’s no "determining to be lawful" going on now. There’s simply the assertion, on a piece of paper, that someone–they don’t even have to say a lawyer did the determining!!!–someone determined the program to be lawful. It could have been Jenna Bush, on a bender, "determining the program to be legal." So long as she could manage to put pen to paper to certify as such–that’s the only standard the FISA capitulation requires!! Me, you, my dog McCaffrey–anyone of us could determine the program to be legal; had we done so, and told the telecoms as much, they go scot free.

And, in fact, it’s almost that bad. We know, after all, that on one of the certifications, someone almost as incompetent as Jenna on a bender (though not quite as competent as my dog McCaffrey) "determined the program to be lawful." Read more →

Just Making It Up on Classification

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A number of you have pointed to smintheus’ excellent post on Bush’s new classification, Controlled Unclassified Information.

On Friday afternoon, with George Bush in Texas for his daughter’s wedding, the White House finally released its new Executive Branch rules for designating and disseminating what used to be known as "sensitive" information. The most common term in the past for such material has been "Sensitive But Unclassified" (SBU), though there was an alphabet soup of competing classifications in various agencies. In part, the new rules create a uniform standard across the Executive by replacing SBU etc. with a new classification, "Controlled Unclassified Information" (CUI).

The Friday memo states that its purpose "is to standardize practices and thereby improve the sharing of information, not to classify or declassify new or additional information." The initial impetus for change came in a December 2005 memo in which Bush called for a new policy for information sharing between agencies. The alphabet soup of "sensitive" designations too often played into the hands of officials who sought to hoard information rather than to share it.

[snip]

Though the material to be regulated is nominally "unclassified", this new system is in fact a much more sweeping program for keeping information secret than the ostensibly higher grades of secrecy for "classified" material. And at the same time, the system for designating "unclassified" information is in significant ways far less regulated than for "classified" information. This new memo represents the opposite of reform.

I agree with smintheus that this classification is simply an invitation for bureaucratic games that result in less information sharing rather than more.

But at the same time, with the increasing evidence that it doesn’t matter what Bush says the classification guidelines are, key players in his Administration will just do as they please anyway, I’m not sure the CUI is the worst of our worries.

Consider the example offered by Bill Leonard in his statement for Russ Feingold’s April 29 30 [thanks selise] hearing on Secret Law. Leonard focused most of his attention on the improper classification of the Yoo Torture Memo authorizing the military to torture; he offered quite a striking soundbite about the memo:

To learn that such a document was classified had the same effect on me as waking up one morning and learning that after all these years, there is a "secret" Article to the Constitution that the American people do not even know about.

But I found the details of Leonard’s discussion even more interesting. Read more →

Kyl Agrees to IG Reform–but Sustains DOJ Lawyer’s Protection

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POGO has a review of the Senate bill passed Wednesday that will strengthen the independence of the nation’s Inspectors Generals. As it describes, John Kyl was able to water down some of the key provisions of the bill, but it does make some improvements. As someone who has struggled to find IG reports buried in DHS’ and DOD’s websites, for example, I’m particularly fond of this one:

All IG websites must be clearly and directly accessible from their agencies’ home pages, and IG reports must be posted within 3 working days of release.

No longer can agencies hide bad news by making the IG reports inaccessible.

I’m particularly intrigued, however, by one of the provisions that Kyl struck from the bill–a move to give DOJ’s IG authority to investigate the lawyers at DOJ.

Finally, Kyl’s amendment did away with Justice Department Inspector General Glenn Fine’s most cherished desire: that he be granted authority to investigate Justice lawyers accused of engaging in professional misconduct. Such allegations–as distinct from questions of fraud or abuse–are currently handled by the DOJ Office of Professional Responsibility (OPR), and Kyl, in a masterpiece of faint praise, announced that "there is no evidence that this Office’s reviews are anything less than adequate."

I’ve done posts on this here and here. The issue is important because, when Alberto Gonzales was attempting to spike any real investigation into the OLC authorization of the warrantless wiretap program and of the USA purge, he attempted to give OPR–and not OIG–the exclusive investigative authority. Recently, too, OIG had to refuse to investigate Yoo’s torture memos because it doesn’t have the mandate to conduct such investigations. As Glenn Fine explained the problem in testimony before the Senate:

Unlike all other OIGs throughout the federal government who can investigate misconduct within their entire agencies, the DOJ OIG does not have complete jurisdiction throughout the DOJ. Rather, the DOJ OIG can investigate misconduct throughout DOJ with one notable exception: the OIG does not have the authority to investigate allegations against DOJ attorneys acting in their capacity as lawyers – litigating, investigating, and providing legal advice – including such allegations against the Attorney General, Deputy Attorney General, and other senior Department lawyers. Instead, the DOJ Office of Professional Responsibility (OPR) has been assigned jurisdiction to investigate such allegations.

Read more →

The WaPo Did Not Scoop This Story in 2005

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I’m still waiting for the media to start covering the news that a head of state–the head of our state–just admitted to approving torture. As of 9:30, only UPI has joined ABC and the WaPo in noting this story–which is about all they do, note it (though the foreign press is beginning to take note). For its part, ABC seems to have gotten bored with breaking the news that the President authorized his top aides to set up a torture regime–by 5PM yesterday they had removed the story from their Top Headlines (but worry not, you can still find the story of Sam, the dog that invited himself to his owner’s funeral, among the Top Headlines).

While we’re waiting for what I’m certain will be a barrage of stories covering the fact that the President thinks it’s okay to torture so long as John Yoo says so, I thought I’d look at the WaPo’s claim that they had already covered this story. I mean, I’m glad that the WaPo saw fit to cover the story–it even made it onto page A3; I should be glad it was not relegated to Lifestyles. But it’s clear the WaPo is missing what’s new with this story.

In its story, the WaPo claims it covered this in January 2005.

The Washington Post first reported in January 2005 that proposed CIA interrogation techniques were discussed at several White House meetings. A principal briefer at the meetings was John Yoo, who was then a senior Justice Department attorney and the author of a draft memo explaining the legal justification for the classified techniques the CIA sought to employ.

The Post reported that the attendees at one or more of these sessions included then-presidential counsel Alberto R. Gonzales, then-Attorney General John D. Ashcroft, then-Defense Department general counsel William J. Haynes II, then-National Security Council legal adviser John B. Bellinger III, CIA counsel John A. Rizzo, and David S. Addington, then-counsel to Cheney.

The Post reported that the methods discussed included open-handed slapping, the threat of live burial and waterboarding. The threat of live burial was rejected, according to an official familiar with the meetings.

State Department officials and military lawyers were intentionally excluded from these deliberations, officials said.

Gonzales and his staff had no reservations about the proposed interrogation methods and did not suggest major changes, two officials involved in the deliberations said.

Read more →

A Tough Job Market for Discredited Bush Lawyers

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As many of you have pointed out, Alberto Gonzales is having a tough time on the job market. I’ll get to that, but first I want to remind you of two other experiences former Bush lawyers have had after they left. First, there’s Harriet Miers, who after a four month job search, ended up where she started, at her old firm of Locke Liddell. She found a job, sure, but it didn’t look like any other big firms were eager to snap up the former White House Counsel.

Then there’s William Haynes. He found something right away–as Corporate Counsel for Chevron. But Chevron doesn’t want you to know they’ve hired Haynes.

When a company recruits a prominent government official, it’s usually eager to put the word out immediately. But Chevron Corp. took more than a month to publicly confirm that it had hired William "Jim" Haynes II, the controversial former general counsel of the Pentagon. Chevron officials say that they didn’t make a big deal of Haynes’ hiring because they didn’t think it was newsworthy.

[snip]

The U.S. Department of Defense announced Haynes’ resignation as general counsel Feb. 25. Two days later Chevron general counsel Charles James sent a memo to the company’s management committee stating that Haynes would be coming aboard as chief corporate counsel. Haynes, who will report to James, will manage the 45-attorney legal department.

Chevron spokesman Kent Robertson says that the company did not make an external announcement about Haynes’ hiring. "I don’t think we thought it was newsworthy," Robertson says. Word of Haynes’ employment by Chevron began appearing in blogs last week, and was reported on Newsweek‘s Web site April 5.

Mr. Robertson, you may not want the general public to know where Haynes ended up, but particularly with the news that Dick Cheney has leant his personal lawyer to Haynes to represent him in matters pertaining to torture, it is certainly newsworthy that Haynes ended up at one of the oil companies Dick and Bush have been making rich of late.

Read more →