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DiFi and the Silly Season of Senate Committee Music Chairs

A little over an hour ago, there was some rather notable news tweeted out by CNN:

Intel cte’s @SenFeinstein will give up the chair and move to Judiciary, source tells @CapitolHillCNN. @SenatorReid to announce today

I have talked to both sources at both the Senate Judiciary Committee and Personnel offices and have yet to hear a denial. This is, then, significant news as to a complete reshuffling of key Majority Senate Leadership assuming it continues to bear out.

First off, a tenured Senator like Feinstein does not leave a high value Committee Chairmanship without another, or something higher, on the offer. CNN said she it is to “move to Judiciary”. But DiFi has long been a member of the SJC, that can only portend she will then become Chairman of Judiciary.

Ryan Grim at Huffington Post has also picked up this shuffle, and beat me to the punch by a few minutes:

If Feinstein does take over leadership of the Judiciary Committee, that could ease the passage in the Senate of a renewed assault weapons ban, which was passed under President Bill Clinton in 1994 but expired in 2004. The shooting rampage on Friday in Newtown, Conn., in which 20 children and six adults were murdered by a gunman with a military-style assault weapon and high-capacity magazines, has renewed calls for stricter gun control legislation.

On Tuesday, speaking in the Capitol before the party’s weekly caucus lunch, Feinstein told reporters who had asked her whether she will jump to Judiciary, “Keep tuned. I think it is [going to become open], and I think it’ll happen.”

On Monday, Sen. Daniel Inouye (D-Hawaii) who was the chairman of the powerful Senate Appropriations Committee, passed away at the Walter Reed National Military Medical Center. Now that Inouye’s post is empty, Sen. Patrick Leahy (D-Vt.) is rumored to be looking at taking over Appropriations — in turn opening up the leadership slot at Judiciary. Feinstein could then move from her current spot as chair of the Senate Intelligence Committee to chair Judiciary.

That is good, fast reporting and coincides with what I can discern. And Appropriations Chair is a long time traditional home for the Senate Pro-Tem, which Pat Leahy became with yesterday’s passing of Inouye.

So, what about SSCI? Next in line would, by seniority, be Jay Rockefeller. But, as Mother Jones’ Nick Baumann pointed out, Rockefeller gave up leadership at Intel nearly three years ago to take over the Commerce, Science and Transportation Committee helm, and there is no reason to think he would double back. That gave a brief glimmer of hope that Ron Wyden might get the nod at SSCI, but HuffPo’s Grim, in a tweet, thinks he is more likely to take over the helm of the Senate Energy and Natural Resources Committee for the outgoing Jeff Bingaman of New Mexico, who did not seek reelection. That would mean the next senior Democrat on SSCI as Barbara Mikulski of Maryland.

Now, if I were Wyden, I would want the SSCI job over Energy. It is likely most progressives would like him there as well, which is why the smart money likely says Reid talks him into the Energy Chair.

So, we are into the Congressional equivalent of Formula One silly season; i.e. the end of the year shuffling of drivers before the season is really over. The one real wildcard here is Wyden.

John McCain: Declassify the Torture Report

John McCain just released a very strong statement on the torture report–which is below. Of particular note, he called to declassify the report.

Will McCain’s call to declassify it provide the moral weight–and political cover, for the Administration–to do so?

I commend the members and staff of the Committee who have worked tirelessly over many years to produce the comprehensive study that you meet to discuss today. At a moment when our country is once again debating the efficacy and morality of so-called “enhanced interrogation” practices, this report has the potential to set the record straight once and for all. What I have learned confirms for me what I have always believed and insisted to be true – that the cruel, inhuman, and degrading treatment of prisoners is not only wrong in principle and a stain on our country’s conscience, but also an ineffective and unreliable means of gathering intelligence.

It is my sincerest hope that we Americans, for all of our many disagreements, can nonetheless manage to agree that torture of the kind described in this report is unworthy of our national honor and should no longer be a matter for discussion. It is my hope that we can reach a consensus in this country that we will never again engage in these horrific abuses, and that the mere suggestion of doing so should be ruled out of our political discourse, regardless of which party holds power. It is therefore my hope that this Committee will take whatever steps necessary to finalize and declassify this report, so that all Americans can see the record for themselves, which I believe will finally close this painful chapter for our country.

Our enemies may act without conscience, but we do not. It is indispensable to our success in this war that those we ask to fight it know that, in the discharge of their dangerous responsibilities to our country, they are never expected to forget that they are Americans, and the valiant defenders of a sacred idea of how nations should be governed and conduct their relations with others – even our enemies.

Those of us who have given our protectors this onerous duty are obliged by our history, and the many terrible sacrifices made on our nation’s behalf, to make clear that we need not risk our country’s honor to prevail – that through the violence and chaos and heartache of war, through deprivation and cruelty and loss, we are always Americans, and different, stronger and better than those who would destroy us.

Update: DiFi has released a statement, along with announcing a 9-6 vote (meaning one Republican–though it could be McCain by proxy–voted for it). She says she’s not going to release it until the Executive Branch gets to review it.

Following the committee’s vote today, I will provide the report to President Obama and key executive branch officials for their review and comment. The report will remain classified and is not being released in whole or in part at this time. The committee will make those decisions after receiving the executive branch comments.

She says this in a statement that suggests this report should settle the debate about torture.

I also believe this report will settle the debate once and for all over whether our nation should ever employ coercive interrogation techniques such as those detailed in this report.

When Overseers Become Talking Heads

The entire Benghazi pseudo-scandal can reportedly be traced back to House Intelligence Committee Ranking Member Dutch Ruppersberger’s request for talking points he could use to respond to journalists.

Three days after the lethal attack on the American Mission in Benghazi, Libya, Representative C. A. Dutch Ruppersberger of Maryland, the top Democrat on the House Intelligence Committee, asked intelligence agencies to write up some unclassified talking points on the episode. Reporters were besieging him and other legislators for comment, and he did not want to misstate facts or disclose classified information.

More than 10 weeks later, the four pallid sentences that intelligence analysts cautiously delivered are the unlikely center of a quintessential Washington drama, in which a genuine tragedy has been fed into the meat grinder of election-year politics.

Before I get too far, remember that Ruppersberger (D-NSA) is one of the geniuses who believe the way to stem leaks is to prevent intelligence professionals from giving background briefings. Remember, too, that the talking points that have caused so much trouble were almost certainly tweaked to protect the intercepts Ruppersberger’s constituent, the NSA, had collected. Nevertheless, this guy, who presumably supports the principle of not telling militants we’ve got their phone tapped, and who thinks people with a more developed understanding of sensitivities around intelligence should not be able to brief the press directly, had to have his talking points so he could talk to the press himself.

Ruppersberger’s inconsistency on this point reminded me that after the super secret drone killing of some American citizens last year, the Gang of Four all weighed in to assure Americans that Anwar al-Awlaki’s death was “legitimate” because there had been “a process.” The Gang’s loquacity contrasted sharply with the Administration’s silence on the very same issue, one reiterated since in the Administration’s Glomar claims about topics the Gang of Four feels welcome to discuss. That contrast is all the more troubling given that Ruppersberger admitted that the Gang of Four does not know who is on the Kill List (and therefore didn’t really know whether the killing of Samir Khan was “legitimate”).

It’s all very neat. Not only does the Gang of Four enjoy immunity from prosecution under the Speech or Debate Clause. But they were–and presumably are–serving as journalistic sources on topics about which they aren’t (though legally should be) fully informed.

Last week Julian Sanchez and Mike Masnick rehashed an earlier version of this, when the Bush Administration armed the Intelligence Committees with talking points that would reinforce their lies that the Terrorist Surveillance Program constituted the entirety of the illegal wiretap program.

Note what that does to the whole question of “legitimacy.” The Gang of Four only knows what Administration and agency officials tell them.  Yet, even in spite of potential and real limits to their knowledge of a program (and a history of deliberately misleading briefings on such topics), they will weigh in and declare something “legitimate.”

We have a problem in this country with the way our intelligence community communicates publicly (see Dan Drezner and Nada Bakos addressing different aspects of this problem.)

But the solution clearly is not the one the national security establishment increasingly appears to be adopting: to turn the four men and women who purportedly exercise the only oversight of the most sensitive programs into talking heads. That process almost certainly ensures incomplete briefing of these “overseers.” Worse, still, it guarantees a kind of complicity that makes the overseers-turned-talking-heads useless for oversight.

WIth their push to limit background briefings, the Gang of Four have raised their own stock as journalistic sources. But they’ve also further gutted the inadequate oversight we’ve got over intelligence.

Silent Talking Points: Don’t Tell the Terrorists We Know They Exist

Between the extensive leaking from the so-called closed hearings on Thursday and Friday (Spencer’s got a good wrap-up here) and the Sunday shows (LAT has a good wrap-up here), we’ve got a little better understanding of the Administration’s current understanding of the Benghazi attack.

That said, I’ve got a different set of questions about what those show than most of the pundits commenting on it.

How strongly did Petraeus initially blame al Qaeda-related attackers?

My first question pertains to an apparent discrepancy, not about the testimony last week, but about Petraeus’ initial testimony shortly after the attack.

We know that in his testimony Friday, Petraeus said he knew fairly quickly that Ansar al-Sharia was behind the attack.

He knew “almost immediately” that Ansar al-Sharia, a loosely connected radical Islamist group, was responsible for the attack, as suggested by multiple sources and video from the scene, said the source. At the same time, a stream of intelligence — including about 20 distinct reports — also emerged indicating that a brewing furor over the anti-Islamic video preceded the attack.

The CIA eventually disproved the reports that film-related protests had anything to do with the attack. But this didn’t happen until after Petraeus’ initial briefings to lawmakers, in which he discussed all the possibilities, the source said.

Petraeus blamed some other unnamed intelligence agency for taking out the reference to Ansar al-Sharia (though the talking points came from CIA).

Petraeus testified that the CIA draft written in response to the raid referred to militant groups Ansar al-Shariah and al-Qaida in the Islamic Maghreb but those names were replaced with the word “extremist” in the final draft, according to a congressional staffer. The staffer said Petraeus testified that he allowed other agencies to alter the talking points as they saw fit without asking for final review, to get them out quickly.

But different lawmakers have differing recollections about what Petraeus originally testified, just days after the attack. Peter King suggested that Petraeus hid the role of terrorists in his September 14 briefing to the House Intelligence Committee.

King said Petraeus had briefed the House committee on Sept. 14 and he does not recall Petraeus being so positive at that time that it was a terrorist attack. “He thought all along that he made it clear there was terrorist involvement,” King said. “That was not my recollection.”

That’s not how Dianne Feinstein (who elsewhere expressed concern about the “suffering” related to the sexy time scandal) remembers a briefing on September 12.

Feinstein, appearing on NBC’s “Meet the Press,” said that the now-former director of the Central Intelligence Agency, David H. Petraeus, had “very clearly said that it was a terrorist attack” in a meeting with lawmakers the day after the attack in Benghazi.

Mind you, those were different briefings–it’s possible just the Gang of Four got briefed on September 12. If that’s the case (and if King is telling the truth), it would mean Petraeus was less forthcoming about terrorist involvement with the full House Committee than with a more select group of lawmakers.

And note this seems to be the reverse of the politics you’d expect. While both DiFi and King vow to get to the bottom of how the talking points were made, King seems to attribute some deceit to Petraeus whereas DiFi seems to believe the suffering Petraeus was forthright–and clear-headed–from the start.

Were we really afraid to let Ansar al-Sharia know we were onto them?

Now consider the excuse Petraeus gave for taking mention of Ansar al-Sharia and AQIM out of the unclassified talking points: we didn’t want the terrorists to know we knew about them.

Testifying out of sight, ex-CIA Director David Petraeus told Congress Friday that classified intelligence showed the deadly raid on the U.S. Consulate in Libya was a terrorist attack but the administration withheld the suspected role of al-Qaida affiliates to avoid tipping them off.

I wonder if that’s the entire story.

I’m not saying the Administration deliberately used inaccurate talking points; if they had, then why did Obama name terrorism even before Susan Rice appeared on the Sunday shows? It’d be a colossal fuckup of a cover-up.

And there are certainly reasons to believe that’s why they withheld this detail. It is true that the conclusions about Ansar al-Sharia and AQIM rely in significant part on–presumably–NSA intercepts of voice communications. Read more

Funny. General Petraeus Didn’t USE to Avoid Testifying to Congress…

ABC follows up on the point I made yesterday–that Congress is now getting interested in David Petraeus’ October 31 trip to Egypt and, we now find out, Libya–and reveals that he now doesn’t want to testify about his trip.

In late October, Petraeus traveled to Libya to conduct his own review of the Benghazi attack that killed four Americans, including U.S. Ambassador Christopher Stevens.

While in Tripoli, he personally questioned the CIA station chief and other CIA personnel who were in Benghazi on Sept. 11 when the attack occurred.

The Libya stop was part of a six nation trip to the region. Petraeus intended the review as a way to prepare for his upcoming testimony before Congress on Benghazi.

[snip]

But now Petraeus is telling friends he does not think he should testify.

Petraeus has offered two reasons for wanting to avoid testifying: Acting CIA Director Morell is in possession of all the information Petraeus gathered in conducting his review and he has more current information gathered since Petraeus’ departure; and it would be a media circus.

So David Petraeus, after charging taxpayers for the cost to take his own plane to the Middle East to prepare for this testimony, doesn’t want to deliver it himself, preferring instead to let Acting Director Mike Morell tell secondhand about what Petraeus learned on that very expensive fact-finding trip?

Note, ABC doesn’t question CIA’s claim that they can’t hand over the trip report to the intelligence committees because it’s not done yet, in spite of Dianne Feinstein’s complaints yesterday about someone else having already read a copy of it.

Which leads me to believe Petraeus wants to prevent or delay Congress from getting this information in the first place.

To get an idea of what Petraeus might want to withhold from Congress, let’s take a look at the CIA timeline (using David Ignatius’ apparent transcription of it), which was based on a briefing while Petraeus was still overseas. The timing means it’s unclear whether this incorporated some of what Petraeus learned while there, or whether the CIA released this timeline before Petraeus got back, effectively deliberately giving the press outdated information. Moreover, it’s possible Petraeus had others deliver the timeline so his own credibility wouldn’t be impacted if it turned out to be false.

Of all the timeline bullet points, Petraeus’ personal interviews with the station chief and other CIA personnel would have resolved one of the key details that remains contested: why CIA waited 24 minuets before heading to the Mission to rescue Chris Stevens.

10:04 p.m.: A six-person rescue squad from the agency’s Global Response Staff (GRS) leaves in two vehicles. Read more

A CIA Report on a Trip to Africa, Again

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Holy hell I can’t believe I’m back in the business of writing about CIA reports on trips to Africa again, but here I am.

In this post, I noted that David Petraeus made a two-day trip to Cairo on October 31, just as the CIA launched its pushback campaign against Fox reporting, and just before Scott Shane wrote a maudlin story about Petraeus’ image.

October 25 [earliest reported date] – week of October 28: Petraeus interviewed by FBI.

October 26: Fox reports that CIA security in annex were twice told to stand down by “CIA chain of command.”

October 31: Acting after speaking to FBI “whistleblower,” Eric Cantor’s Chief of Staff calls Robert Mueller about investigation.

October 31- November 1: Petraeus in Cairo for security discussions.

November 2 [based on a briefing held November 1 while Petraeus was still in Cairo]: CIA releases timeline rebutting Fox report–mentioned by Broadwell–that CIA chain of command told security to stand down.

November 2: FBI interviews Broadwell a second time.

November 2: Scott Shane writes odd article on demise of Petraeus’ image, blaming his absence from media for Benghazi blowback, in part repeating a point made by Broadwell on October 26.

That appears to be the trip–and the report currently being withheld from the Intelligence Committees on the grounds it is not yet complete–referred to by Dianne Feinstein in this interview with Andrea Mitchell. (Daily Caller reported on this first.)

DiFi: I believe that Director Petraeus made a trip to the region shortly before this became public.

Mitchell: To Libya?

DiFi: Yes. I believe that there is a trip report. We have asked to see the trip report. One person tells me he has read it, and then we try to get it and they tell me it hasn’t been done. That’s unacceptable. We are entitled to this trip report and if we have to go to the floor of the Senate on a subpoena, we will do just that.

Mitchell: You’re suggesting that you might have to subpoena from the intelligence community a trip report that David Petraeus made after going to Libya within the last two weeks.

DiFi: Yes, for the very reason that it may have some very relevant information to what happened in Benghazi.

So right between the time the FBI interviewed Petraeus and the time Scott Shane was writing a valediction to Petraeus’ career, Petraeus went “to the region”–possibly to Libya itself. And CIA doesn’t want to tell Dianne Feinstein what Petraeus learned or did there.

Why Would a Whistleblower Go to Eric Cantor?

The NYT reports that in late October, a “whistleblower” approached Eric Cantor to tell him about Petraeus’ affair.

Eric Cantor, the House majority leader, said Saturday an F.B.I. employee whom his staff described as a whistle-blower told him about Mr. Petraeus’s affair and a possible security breach in late October, which was after the investigation had begun.

“I was contacted by an F.B.I. employee concerned that sensitive, classified information may have been compromised and made certain Director Mueller was aware of these serious allegations and the potential risk to our national security,” Mr. Cantor said in a statement.

Mr. Cantor talked to the person after being told by Representative Dave Reichert, Republican of Washington, that a whistle-blower wanted to speak to someone in the Congressional leadership about a national security concern. On Oct. 31, his chief of staff, Steve Stombres, called the F.B.I. to tell them about the call.

“They took the information,” said Doug Heye, Mr. Cantor’s deputy chief of staff, “and gave the standard answer: they were not able to confirm or deny any investigation, but said that all necessary steps were being taken to make sure no confidential information was at risk.” [my emphasis]

Note Cantor describes this person as an “FBI employee,” not an agent (though he may be deliberately vague to hide the person’s identity), so it’s possible this person is more senior. The person went first to Dave Reichert, who–as a Representative from Seattle–has no ties to the FBI offices that conducted the investigation (though he’s a former Sheriff and may have ties to the FBI through law enforcement channels). And then he asked to talk to someone “in Congressional leadership,” rather than, say, the head of the House Judiciary Committee, Lamar Smith, who has jurisdiction over the FBI, or Mike Rogers, himself a former FBI Agent and the head of the House Intelligence Committee.

In other words, this instance of whistleblower was not conducted as it normally would be, through the appropriate committees, but instead went to the guy whose job is primarily political, leading the Republican caucus.

Note the timing, too. Petraeus was interviewed around October 25-26. Given that Cantor’s Chief of Staff called Mueller after that, it appears the FBI person probably contacted Cantor after that interview–or certainly after it got scheduled. One thing’s certain: the interview could not have been a CYA effort after Mueller got the call from Cantor.

But it may be what Dianne Feinstein called a “additional complication” today. And it’s possible James Clapper finally got informed of the investigation into Petraeus–he says, on November 6, election day–because Mueller knew that Cantor had heard of it. That is, by alerting Cantor, this “whistleblower” may have ensured the national security establishment couldn’t protect Petraeus.

One more note about the timing. The interview–and this alert to Cantor–happened after the time the GOP was going full October Surprise mode on Benghazi. There were tensions between CIA and FBI because CIA had not shared video fo the attack with investigators. Again, there’s no reason to believe this is Benghazi related. But there were certainly institutional tensions playing out just as the FBI interviewed the head of the CIA about his mistress’ access of his email.

Update: Apparently Andrea Mitchell says the FBI investigation would have ended had this not been brought to Cantor.

DiFi’s Very Brown List of Terrorists

Presumably to boost Obama’s election chances, Dianne Feinstein released a list of “95 individuals arrested inside the United States since January 2009 on terrorism-related charges.” The list includes the real terrorists–Najibullah Zazi and Faisal Shahzad (the latter of which DiFi bizarrely credits as a thwarted attack rather than a botched one, even while she doens’t count Nidal Hasan or the UndieBomber because the attacks weren’t thwarted). It includes the most extravagant products of FBI’s imagination, including the Scary Iran Plotter and Goldfinger, the would-be terrorist who would have left a tenth of the world’s gold untouched at the Fed. It includes men whose plots were so dubious the FBI wouldn’t touch them: Jose Pimental, Ahmed Ferhani, and Mohamed Mamdouh.

But by my count, it only includes 16 non-Islamic white terrorists (nine of which are the Hutarees).

  • Kevin Harpham, the MLK Parade bomber
  • Roger Stockham, who planned to bomb the Dearborn Islamic Center
  • The Hutaree, including the 7 members whose charges were thrown out
  • The Ohio 5, anarchists who planned to blow up an OH bridge

Just a few of the white terrorists not on this list?

  • Scott Roeder, who killed George Tiller
  • Ray Lazier Lengend, who firebombed a NYC mosque
  • Wade Michael Page, who attacked the Sikh temple in Oak Creek, WI
  • Schaffer Cox, the Sovereign Citizen convicted of the charge the Hutaree should have been charged with–conspiring to kill federal law enforcement officers
  • The Waffle House Four, who allegedly (but implausibly) were going to make a bioweapon, ricin

Now, to be fair, to some degree these white terrorists aren’t on the lists because their crimes weren’t defined as terrorism. Attacks on mosques with guns and low explosive bombs are hate crimes, whereas aspirational plots on synagogues with inert bombs provided by the FBI are terrorism. Attempts to overthrow the government with guns are conspiracies, but not terror, whereas attempts to overthrow the government with bombs (again, usually supplied by the FBI) are terrorism. There’s no excuse, really, for not charging Roeder and the Waffle House plotters as terrorists (at least if you believe a castor bean plant equates to a WMD plot, which I don’t, but the FBI charged anyway). And in some of these cases, law enforcement had an incentive not to label an attack as terrorism because the plots were successful: terrorism stats are all about proving success, not keeping the country safe.

Then again, I suspect putting out a document showing that white terrorists are a real threat in this country wouldn’t help Obama’s reelection.

Remember When Obama Thought the FISA Amendments Act Was Imperfect?

Four years ago, when Obama caved and supported the FISA Amendments Act, he said in part,

I want to take this opportunity to speak directly to those of you who opposemy decision to support the FISA compromise.

This was not an easy call for me. I know that the FISA bill that passed the House is far from perfect. I wouldn’t have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush’s abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration’s program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses.

[snip]

Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I’ve chosen to support the current compromise. I do so with the firm intention — once I’m sworn in as President — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.

[snip]

I do promise to listen to your concerns, take them seriously, and seek to earn your ongoing support to change the country. That is why we have built the largest grassroots campaign in the history of presidential politics, and that is the kind of White House that I intend to run as President of the United States — a White House that takes the Constitution seriously,conducts the peoples’ business out in the open, welcomes and listens to dissenting views, and asks you to play your part in shaping our country’s destiny.

Since that time, Obama’s DOJ has litigated the FISA Amendments Act so aggressively that it has, in fact, completely gutted the deterrent effect of the law. It has refused to share with all of Congress what activities the government actually conducts under the law, much less with American citizens. It has refused to tell Congress–even the Intelligence Committees–how many Americans have been spied on under the program. And it has been caught violating the Fourth Amendment.

And yet here’s what Obama’s Administration said today about the extension for the FISA Amendments Act, which essentially will extend the bill Candidate Obama once admitted still had problems for five years, all the way through his second term.

The Administration strongly supports H.R. 5949. The bill would reauthorize Title VII of the Foreign Intelligence Surveillance Act (FISA), which expires at the end of this year. Title VII of FISA allows the Intelligence Community to collect vital foreign intelligence information about international terrorists and other important targets overseas, while providing protection for the civil liberties and privacy of Americans. Intelligence collection under Title VII has produced and continues to produce significant information that is vital to defend the Nation against international terrorism and other threats. The Administration looks forward to working with the Congress to ensure the continued availability of this critical intelligence capability.

Change we can believe in.

Dick Durbin: The Targeted Killing Memo Is Like the Torture and Illegal Wiretap Memos

It took transcribing the debate in the July 19 Senate Judiciary Committee hearing for me to realize it, but Democrats are running very serious interference to keep the Anwar al-Awlaki targeted killing memo secret. Not only did Dianne Feinstein basically roll John Cornyn, telling him she’d introduce language that would accomplish his goal of getting all the oversight committees the memo when, if hers passes, it will only, maybe, get the Intelligence Committee the memo.  Not only did the Democrats vote on a party line vote to table John Cornyn’s amendment to require the Administration to share it–in classified or unclassified form–with the Judiciary and Armed Services Committees. Not only did Pat Leahy get pretty snippy with Cornyn for offering–and asking to speak on–the Amendment.

Most stunning, though, is Dick Durbin’s comment on it.

Durbin: Thank you Mr. Chairman. My staff briefed me of this on the way in, and I asked the basic question, “would I ask this of a Republican President? Of course. And I did ask it, in a different context, of the previous President, when it came to questions of interrogation, torture, and surveillance. I might say to the Senator from Texas I had no support from the other side of the table when I made that request. But I do believe it is a valid inquiry and I would join the Senator from Texas and any who wish in sending a letter to the Attorney General asking for this specific information on a bipartisan basis. And certainly we can raise it the next time the Attorney General appears before us. I do have to say that I’m going to vote to table because I think that as flawed as this [the FAA extension] may be without the Lee Amendment which I think would help it, I do believe we need to pass this and  bringing in these other matters are going to jeopardize it. But I think it is a legitimate question to be asked of Presidents of either party, and I will join you in a letter to this President and his Attorney General for that purpose. [my emphasis]

This partisan retort (one Leahy repeated) says, in part, that the Democrats aren’t going to cooperate with Cornyn’s effort to get the memo because Cornyn didn’t cooperate with Durbin’s efforts to get the torture and illegal wiretap memos. Durbin and Leahy are right: Cornyn and the rest of the Republican party did obstruct their efforts.

That doesn’t make obstructing Cornyn’s effort right, of course, particularly given that Durbin purports to support Cornyn’s intent.

But remember, Republicans obstructed the release of the torture and illegal wiretap memos because, well, they showed the Executive had broken the law. When we all got to see the torture memos, they made it clear CIA had lied to DOJ to get authorization for torture, had exceeded the authorizations given to them, had engaged in previously unimagined amounts of torture, and had ignored legal precedent to justify it all.

And while we’ve only ever seen part of Jack Goldsmith’s illegal wiretap memo (after the Bush Administration purportedly fixed the data mining and other illegal problems with it) and a teeny fragment of an earlier John Yoo memo, those showed that Yoo relied on gutting the Fourth Amendment, there is an additional secret memo on information sharing, they were hiding their flouting of the exclusivity provision, and–possibly–the illegal wiretap program violated an earlier decision from the FISA Court of Review. We also learned, through some Sheldon Whitehouse persistence, that these memos revealed the President had been pixie dusting Executive Orders and claiming the right to interpret the law for the Executive Branch.

The Republicans had good reason to want to help Bush bury these memos, because they showed breathtaking efforts on the part of the Bush Administration to evade the law.

And that’s the fight that Dick Durbin analogized this one to.