The Attorney General Thinks It’s Okay for the Vice President to Have Ordered the Outing of a Spy

Now we know why Attorney General Mukasey is willing to write such ridiculous letters in the service of hiding Vice President Cheney’s role in the outing of CIA spy: he apparently thinks it’s no big deal that the Vice President ordered the outing of a CIA spy.

At least that’s the implication of this exchange between Mukasey and Arlen "Scottish Haggis" Specter (34:00 to 36:01):

Specter: Moving to reporters privilege in the limited time left. Attorney General Mukasey what was the justification for keeping reporter Judith Stern [sic] in jail for 85 days when the source of the leak was known to be Deputy Attorney General [sic] Richard Armitage?

Mukasey: As you know I was not on duty when that case came to the fore, and it’s my own view that that case may very well be a better argument against the Special Counsel than it is in favor of legislation of the sort that’s been proposed.

Specter: I’m not prepared to deal with the Special Counsel because he’s not here. If I had Senator Leahy’s gavel, I would have brought him in here a while ago, once the case was finished. But it’s very germane in evaluating public policy on whether the Department of Justice ought to have the authority to issue a subpoena in the context and move for a contempt citation and hold a reporter [sic] in jail under very unpleasant circumstances. I can attest to that first hand–I went to visit her.

Mukasey: There’s no such thing as jail under pleasant circumstances. It is an inherent contradiction. It is something that therefore we use as a last resort, and we’re gonna continue to use as a last resort.

Specter: Well, why’d you need a resort when you know the leak? When you know who the leaker is, why go after a reporter or keep her in jail?

Mukasey: As I said, that was not…

Specter: I know that would be better addressed to the Special Counsel.

Mukasey: It would.

Specter: Someday we may have an opportunity to do that. But right now, you’re the one we’ve got, Attorney General Mukasey. You’re the guy who’s pushing a policy. So I think it’s a fair question to say to you, why maintain a policy that gives whoever the prosecutor is the power to do that when you know who the leaker is.

Mukasey: We don’t give that power to a prosecutor, for precisely that reason. We require a clearance up through and including the Attorney General of the United States.

Specter: Attorney General of the United States is a prosecutor. My time is up. [my emphasis]

Mukasey implies that Fitzgerald should have had someone review his decision to subpoena Judy Miller. More troubling, he suggests that Fitzgerald was wrong, ultimately, for having done so.

Now, I can understand such a sentiment from Arlen Specter, who can’t seem to get Richard Armitage out of his head, all the evidence notwithstanding that Armitage’s testimony did not explain all the classified leaks in Novak’s column. I can understand such a sentiment from First Amendment absolutists, who believe even designated shills for the White House, like Judy Miller, deserve an absolute reporter’s privilege. I can understand such a sentiment from someone who doesn’t really understand the case–even some folks here–who don’t get that Judy Miller was the necessary proof that Vice President Cheney ordered Libby to out Valerie Plame.

But Mukasey made this statement in the middle of an argument against a legal reporter’s privilege. And, more importantly, Mukasey is one of the few people who has access to all the materials in this case–both Bush and Cheney’s interview reports and the unredacted affidavits supporting the journalist subpoenas.

Now, perhaps Mukasey hasn’t peeked at those documents, in the same way he hasn’t peeked at any of John Yoo’s crappy OLC opinions, not wanting to know about crimes that he’s preoccupied with hiding. So perhaps he’s just as ignorant as Haggis in this discussion.

Or perhaps he saw something in non-public materials that made him believe that the reporter subpoenas were unnecessary. If Cheney just up and admitted, "Yeah, I orderd Scooter to out the bitch, so what? It’s great to be a Barnacle," do you think Mukasey would have then found the subpoenas unnecessary? Do you think he would, then, find the appointment of a Special Counsel unnecessary, if he learned that the Barnacle had proudly exposed one of our spies out of political vengefulness? Really?

The most troubling–and most likely–possibility, though, is that Mukasey doesn’t think it worth pursuing a bunch of circumstantial evidence that the Vice President of the United States ordered his Chief of Staff to out a spy–and then conspired with his aide to cover up that order and that leak.

Now wonder Mukasey doesn’t want to let Waxman see the Bush and Cheney interview reports. Mukasey appears to think covering up the embarrassing fact that the Barnacle outed a CIA spy is all well and good.

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  1. AZ Matt says:

    Do you think he would, then, find the appointment of a Special Counsel unnecessary, if he learned that the Barnacle had proudly exposed one of our spies out of political vengefulness?

    Cuz he is just sleepwalking through his job? Cuz Cheney threatened to shoot him in the face? Cuz he is a smarter verision of AGAG?

    • jayt says:

      I’m surprised how quickly Mukasey has become a BushCo operative.

      You think *you’re* surprised? How’d you like to be standing in Chuck Schumer’s shoes today?

  2. Peterr says:

    Now, perhaps Mukasey hasn’t peeked at those documents, in the same way he hasn’t peeked at any of John Yoo’s crappy OLC opinions, not wanting to know about crimes that he’s preoccupied with hiding. So perhaps he’s just as ignorant as Haggis in this discussion.

    I think Mukasey hasn’t looked at the documents, for the same reason the White House refused to open a certain email from the EPA. Unlike Haggis’ ignorance, I think Mukasey’s is deliberate and by his own choice.

    If Mukasey had looked at the documents, he might have found it necessary to quit turning a blind eye toward holding anyone at 1600 PA Ave accountable. But by not looking, he can truthfully say “I am not aware of . . .”

    He may be covering up for the Barnacle, but he’s also trying to preemptively cover up for himself.

  3. LS says:

    When they drink the koolaide…everything turns a certain shade of yellow….

    Are we actually living The Wizard of Oz???……Mukasey is an enigma.

    • pdaly says:

      I caught that, too. lol.

      Poor Judy.

      Just curious. Is there a Judy Stern out there? or was he conflating the name Jessica Stern (writes about the threats of CBRNs/WMDs)with Judy Miller (trumpter of fear of WMDs)?

      or is it merely a conflation of the names Howard Stern and Judith Miller?

      • SparklestheIguana says:

        Judy Miller, Judy Stern, Valerie/Victoria Plame/Flame…..what’s in a name….not too much, clearly.

        I even read a rightwing screed the other day about how Valerie Plame’s husband, “Joseph Plame”, was such a scumbag.

      • rosalind says:

        well, a dr. judith stern appeared before arlen spectre at a special hearing of the appropriations committee feb 17 2003 in s.f. topic: improving nutrition & health through lifestyle modifications.

        dr. stern is listed as a professor in dept of nutriton & internal medicine at uc davis. her testimony starts at page 35.

        link

        (there’s also a judith stern who’s a lobbyist and political consultant out of florida. one of her clients is suez energy.)

  4. LS says:

    What do they have on Muccous Membrane that makes him melt to Bushco’s demands…that makes him willing to throw away his ENTIRE career…?????

    What? and Why?

    • BayStateLibrul says:

      Conclusion: Cabinet member nominee hearings and Supreme Court hearings are
      useless…

        • LS says:

          I don’t trust anything about Bushco, until I see that they are “gone”. A myriad of things could happen between now and then.

          I have “zero” trust that they have the intention to leave, or that they will, in fact, leave.

          The only thing at this point in time is “hope” that they will. I will believe it when I see it. They have shown every indication of their desire to overtake life as we know it, since they “stole” the election in 2000. I won’t believe it is over until it is over. JMHO

            • LS says:

              Hmmm…I think that Obama is “either” doing everything he can to avoid accusations by the GOP that he his “soft on terra” (and sacrificing his constitutional thoughts on this) in order to “win” over McCain…or…he is a “red herring” that the GOP deliberately enabled into the elective process….

              Me..I think the former. I think if he votes against FISA he will be relentlessly branded as against “national security”….through November. He would rather sacrifice charges of the 4th Amendment being dissed…in order to get elected.

              My Question once again? Does FISA trump the 4th Amendment in reality????? I never get an answer.

              • Peterr says:

                Does FISA trump the 4th Amendment in reality????? I never get an answer.

                Judge Walker will likely give you an answer shortly, followed by a subsequent response from the 9th Circuit Court of Appeals, and ultimately you will get a reaction from SCOTUS.

                My WAG is that the first two will clearly say “No, the Fourth Amendment trumps the FISA amendments.” Given some of the detainee and habeas corpus rulings from SCOTUS, I lean toward them agreeing that the Bill of Rights is stronger that a bill passed by Congress — but I’m still very nervous about it.

                • Teddy Partridge says:

                  It will be interesting to see the composition of SCOTUS when this reaches them. I wonder if some newly appointed Justice might have to recuse herself, since she voted against immunity in the USSenate?

                  It’s been so long since a Senator was appointed to SCOTUS, I’m not sure how recusal for previously voting on a bill now before the court works.

                • earlofhuntingdon says:

                  No, a statute would not “trump” the Fourth Amendment. But legislatures and the courts do define what manner of search and seizure is “reasonable”. Knockless police entries, for example, and the whole category of automobile searches, including dog sniffs without a warrant or probable cause.

                  • PJEvans says:

                    The dog sniffs are already running. They’ve been walking the K-9 units through my trains on random schedules for months, in the name of ’security’. Same with the baggage searches they’re starting.

                  • nonplussed says:

                    We’re already so screwed on searches with “good faith” discoveries-a concept totally at odds with the letter of the law according to the Fourth Amendment. Then again, it just a goddamned piece of paper. It has been treated as such by the Courts and Police Agencies for many years now, especially since we declared war on drugs.

              • Hmmm says:

                Only time will tell, but here’s how I tried to work it out over on Christy’s thread:

                This is a tragic day. But freedom is a constant struggle, and it’s not over yet.

                Evisceration of the 4th Amendment, ascendence of the Unitary Executive, and dismissal of the Walker cases and the attendant veil of secrecy on the illegal programs they concern, are all NOT FINAL at this point, and none of them will actually take effect until and unless the forthcoming Constitutional challenges to Title II are exercised and fail. Walker has ruled that program illegal, Turley has articulated that this means the President of the US has committed at least 30 felonies. Although the possession of DOJ means any actual Federal prosecution is unlikely, the Emperor’s nakedness is showing. Bush is thus at a very weak point now, and dangerously exposed to challenge, perhaps manipulation.

                (By the way, what an interesting day for Iran to choose for a ballistic missile capabilities display.)

                I assume that any conference committee will either be waived, or else will accept the Senate language whole, and that the President will then sign the bill, thus making it a law. At that point the new law serves as a direction to Judge Walker to dismiss the suits, so at that point Walker will be compelled by law to start the process of dismissing the cases from his Court — I guess that would be an Order to Dismiss. That’s probably when the plaintiffs (because these are civil suits, not criminal) will bring legal challenges to the law that the Senate passed today. IANAL but I imagine one form those might take might be appeals to Walker’s Order to Dismiss; probably the plaintiffs have other available avenues as well.

                If there are any other parties claiming to have standing and to be negatively impacted by the law, I believe they could also file the actions (i.e. sue the USG in new lawsuits separate from the Walker cases) at any time after the President signs the bill into law.

                LHP replied:

                Or in repsonse to the Motion to Dismiss, plaintiffs could argue that the law is unconstitutional b/c it gut s the 4th ammendment.

                Walker, just might buy that argument. Wouldn’t THAT be fun?

                And I answered:

                Just by way of explanation: I was assuming, perhaps wrongly, that there wouldn’t necessarily be any defendant’s Motion to Dismiss as usual, since the unique reason in this instance is a new law applying to the hearing of the cases themselves, and so the Court would go directly to an Order to Dismiss. But I agree, if Walker has an opportunity to rule on Fourth Amendment issues here, he could well side with the Constitution. (Heywaitaminute, isn’t that the way all those officeholders are sworn to behave?)

                (Ever notice how absolutely opposite to the fundamental paradigm of proper procedure the concept of ‘unique reason in this instance’ is? Counter to law, counter to science.)

                • LS says:

                  GWB could could give a shizzola about his “standing” weak or otherwise…

                  He is pressing forward with an agenda that they “the neocons” developed well before he took power….it encompasses intelligence (his Daddy was head of the CIA)…it encompasses policies that support fascism (his Grandaddy did that)..it encompasseas earnings for Halliburton (His VP has interests)…it encompasses the Bin Laden family (his old roomates)…It encompasses the Saudis, who he owed money to for bailing him out of his failed oiled companies…

                  Who attacked us on 9/11: Saudis.
                  Where is Osama Bin Laden from? Saudi Arabia.

                  Wake up America. Geez.

                    • LS says:

                      Then FIGHT BACK!!

                      Dick can go $%(^(*^( himself. Old fart.

                      I’m going to let Dick F’ing Cheney decide the future for my children?????

                      NOT!!!

                • MadDog says:

                  Yeah, I’ve been trying to boil the argument down for myself that many Obama Zombies make and here’s my result (Note that many Obama supporters are not Obama Zombies, so don’t try the shoe on if you know it doesn’t fit):

                  Betraying the Constitution vs Appointing Future Supreme Court Justices

                  Which is real funny if you think about it and have a sad sense of humor like me because what in the world do you care about Supreme Court Justices if the Constitution itself has no value to you?

                  Heck, you could appoint any doofus to the SC if the Constitution doesn’t matter anymore.

                  Or another way to boil it down is this question:

                  Which is more important? The Constitution or gaining power?

                  The answer is not “blowing in the wind!”

                  • bmaz says:

                    Well, yes; but i would point out that my answer was directed at FISA itself, not just the FAA just passed. The very first original FISA was a workaround of the 4th Amendment, and in some (maybe most) cases the confrontation clause. The law has always had some aspects that were of dubious Constitutionality; now it has many more.

              • masaccio says:

                I see that Mary and bmaz have provided answers, but I’ll add my two cents. The Fourth Amendment does not grant rights. It specifies rights that were retained by the citizenry when we created our government. It should be read as specifically denying that the government has the power to take certain actions. The judiciary has traditionally protected citizens from violations of their constitutional rights by the executive and legislative branches.

                The Supreme Court decided years ago that we have an expectation of privacy when we use telephones, so the Fourth Amendment applies, and the government must get a warrant if it wants to eavesdrop. If it doesn’t, then the question is what rights does the citizen have. This question was resolved in criminal cases: the evidence cannot be used against the person whose rights were violated.

                So, the question raised by the change to FISA is simply this: how does the Court protect citizens against violation of their rights by this arrogant administration. Mary points out the difficulties inherent in a Bivens action, the traditional set of rules for enforcing constitutional rights in non-statutory cases.

                Judge Walker’s decision is aggressive in asserting that the President and his administration deliberately violated FISA. If I were he, I would follow that up with an enforcement mechanism. I would gloss over Bivens, on the grounds that the violation was obvious and intentional. I would hand the plaintiffs a significant verdict against the government, and let the appellate courts try their hands at constructing a better remedy for the plaintiffs and those of us who communicate with our traveling friends overseas and our ex-pat relatives.

                • bmaz says:

                  I am not sure Walker needs to do even that. Quite frankly, at this point, I don’t think he can do that. It appears at first glance that what Walker can do is to find the FAA unconstitutional when the dismissal submissions are made and, separately, find the al Haramain sufficiently evidences standing as to damage/surveillance via their supplemental filing based on “anything but the Document”. That would leave al Haramain active, subject only to an interlocutory appeal (which are very much not favored in Federal civil cases), and the remaining consolidated cases in the most positive posture possible for appeal which, thankfully, is to the 9th Circuit.

                  FrankProbst – At least as far as I am concerned, willful ignorance of the type by Mukasey you describe constitutes unethical conduct and likely criminal fraud and obstruction upon congress and courts.

                  • Helen says:

                    Re: Mukasey (and I am not being sarcastic here; I really wanna know): Who’s gonna charge him?

                    • bmaz says:

                      Oh, I would not take that sarcastically, it is an extremely cogent question. I am not sure there is a proper charging authority. The DOJ as an entire institution has a conflict because he is their superior. At this point special counsels still are adjuncts of the DOJ and funding and ultimate authority still resides within the Executive/DOJ framework. Since it is a DC act, there is no state AG to transfer it to under special jurisdiction (if that is even possible). I think it would have to either be inherent contempt or impeachment.

  5. Teddy Partridge says:

    When will we get to read “The Jailhouse Visits” chronicling JudyMiller’s visits by powerful and rich men?

    Was there eavesdropping at the Alexandria jail?

  6. skdadl says:

    Hmmn. Specter may not have had the special counsel to question, but last May, he did have the man who appointed the special counsel, Mr Comey, before him. As I recall, Specter didn’t venture on to that territory at all in his questions. Could he have? Maybe Comey was gone as DAG before things were sorted out with Miller, but still.

    • emptywheel says:

      Comey left in August 2005. Fitzgerald subpoenaed Judy in August 2004; Appeals Court decided against her in December 2004. So Comey almost certainly did know of what Fitz was doing, though Judy was in jail when Comey left. She testified on September 30 and October 12.

      • skdadl says:

        It bothers me. In both judiciary committee hearings with Comey, Fitzgerald’s name came up only in connection with Kyle Sampson’s clownish list (hasn’t distinguished self one way or t’other). And everyone just laughed that off, which in context was correct.

        But there was Comey, this untapped fount (font?) of knowledge on the appointment of special counsel and the justification for it, and nobody thought to chat with him about that a bit?

        And today there are those two, Specter and Mukasey (whom Comey supported in a letter last fall, I believe), insulting Fitzgerald out of ignorance or worse. I would expect Fitzgerald to be annoyed (if never to show it), but now I’m really wondering about Comey too.

        Couldn’t one of these guys get just a little angry? In public?

  7. JThomason says:

    What happened to the day when folks at the DOJ would resign in a noisy fashion when asked to condone executive branch illegality. Used to be you’ll get yours because we share principle. Now its just you’ll get yours only if you cheat. What happened?

  8. wwiii says:

    Gotta say there are certain benefits to living on the left coast. One of them is that I get warm responses to my letters and postings to the charming and talented Sen. Feinstein with some regularity. Here’s one, for example:

    Thank you for writing about Judge Michael Mukasey’s nomination as Attorney General.

    After doing my due diligence and carefully reviewing Judge Mukasey’s record, I concluded that he will be a strong and independent leader of the Justice Department. I believe that if he was not confirmed, an acting Attorney General, who would not be confirmed by the Senate, would have led the Department for the remainder of the administration. The Justice Department is too important for that to happen.

    Therefore, I supported Judge Mukasey’s nomination and voted to confirm him. I made a statement on the Senate floor explaining my decision which I have enclosed, along with an op-ed I wrote and op-eds from several newspapers on the importance of confirming Judge Mukasey.

    Please know that I appreciate your opinion and hope that you will continue to inform me of your views. If you should have any other comments you want to share with me, or if you have a question I can answer, please feel free to contact my Washington, D.C. staff at (202) 224-3841. Best regards.

    Best regard, indeed.

    • BayStateLibrul says:

      It was done in the Senate Chamber Room, with the waterboard, by
      Colonel Mukasey

  9. LS says:

    Does this FISA vote actually eviscerate the 4th Amendment? I never get an answer.

    Bring it on! Does it really?

    • JThomason says:

      Warrants disposed of where the AG does not have sufficient time to seek them. Backing into domestic warrants for persons with foreign contacts. No checks or requirements with regard to minimization policy, legislative fiat preempting the judiciary in a finding of good faith in existing constitutional controversy arising of the 4th amendment with respect to telecoms. I say yes.

      Its the same story, press with illegal actions to force compromise expanding power. It should not be countenanced.

  10. BayStateLibrul says:

    The seven year legacy:

    Bush 999 999 999 81 81 0
    Congress 000 000 000 0 0 81

    WP: Bush
    LP: Pelosi, Reid
    Save: Cheney
    SB: Rove

  11. JohnLopresti says:

    Specter has become his own caricature. That interchange with Mukasey is devoid of contemplation of one of the blindspots in lady justice’s writ, the grand jury process. I took Mukasey’s response to be a jaded suggestion PAA last forever. Mukasey has to like the Bush Cheney authoritarian exercise of government, because Mukasey is their cleanup attorney general. Mukasey is temporizing on the administration’s behalf, a responsibility the white house soon appreciated was palatable for Mukasey. After the hasty discussion in the Chertoff thread, I was reminded once again Cheney probably remains active in helping his business associates with profiteering. There are a few environmental initiatives in Cheney’s part of the nation that have the same sciencelessness about them. The FBI IG report on women torture experts at Gitmo was yet another glimpse at Cheney and Bush’s view of the initiatives in which women might advance neocon paradigms of governance in the US. I think Fitzgerald was being simply mercurial nailing Judy quickly, but not staying too rude about her, knowing she was a tool, a pliant one. The PlameWilson outing served the purposes of arms traders and oil moguls. I have yet to read analysis of the Bush Cheney perspective of women’s best ways of contributing to the Republican party, but these few instances speak volumes about Bush and Cheney’s view of leadership: torture experts, outed monitors of arms trade and oilco intrigue, favorable media propagandists. It is cronyist but lacks vision.

  12. earlofhuntingdon says:

    [No] wonder Mukasey doesn’t want to let Waxman see the Bush and Cheney interview reports. Mukasey appears to think covering up the embarrassing fact that the Barnacle outed a CIA spy is all well and good.

    Presumably, that’s why Mikey was acceptable to the Barnacle, whose network controls senior political appointments, in the first place. As for Specter’s obsession with Armitage, it doesn’t seem to have registered with him that he was only one of several sources that disclosed Plame’s identity, and as you say, provided only some of the background information on her to the press.

    Fitz was charged with determining whether federal crimes took place. He proved that Libby obstructed his lawful investigation. He wasn’t charged with determining whether political crimes took place – ie, legal, if reprehensible acts such as declassifying and publishing the identity of a covert agent on WMD’s, an intelligence asset that still seems to be in short supply.

    Boy, did Mikey fool Schumer about what kind of job he would do for the Barnacle. As Scott Horton says, he’s a Tom Hagen, a competent Alberto Gonzales, whose job is to keep the Don out of trouble.

  13. cboldt says:

    Specter got this one wrong. Miller was jailed for refusing to testify in probing whether or not Libby obstructed justice. The inquiry that Fitz had cooking at the time wasn’t only (and maybe not at all) “who were the leakers.”

      • cboldt says:

        In any event, wasn’t Judy’s contempt at a time before Armitage “remembered” he was a leaker?

        I believe so, but I’m reconstructing that from memory. I think the Libby indictment happened before it was clear that Armitage was one of several leakers; and Miller’s jailing occurred before Libby was indicted.

        • prostratedragon says:

          I’m seeing from places like Wpedia that Armitage spoke up in Aug. 2006, after all those other events had taken place. Not clear without reading some articles (if then) whether Armitage had already told anyone else, like, maybe, the prosecutor, about these things before those chrono points.

          Clearly, of course it does not affect the case as it was indicted by then. Just Arlen being Arlen, and maybe also creating an opportunity to drop those seeds that Mary so intriguingly mentions.

      • emptywheel says:

        No.

        Armitage testified on October 1, 2003, that he had told Novak that Plame had suggested Wilson for the trip. He also said that he DIDN’T tell Novak anything about the CIA trip report. And he didn’t provide the name or covert status.

        Novak and Armitage disagree about whether Armitage said Plame was in counter-proliferation. And Novak blames someone–who isn’t Libby and may be either Rove or Armitage in spite of good evidence that it wasn’t–for providing the information that came from the CIA trip report.

        • JThomason says:

          Ok, so Haggis indulges in a convenient gloss where Armitage’s admission doesn’t in fact fully account for all the sensitive information that was provided to Novak.

          • cboldt says:

            so Haggis indulges in a convenient gloss where Armitage’s admission doesn’t in fact fully account for all the sensitive information that was provided to Novak.

            Specter completely misses the point that Fitz was in part investigating whether or not Libby had testified truthfully.

            And, he (along with 90% of the people who comment on le affair Plame) fall into the trap of thinking there can be only one leaker. I.e., if Armitage is a leaker, then Libby isn’t.

    • emptywheel says:

      If you read the affidavits, it’s pretty clear that he was still working on sorting through the abundant contradictory evidence that didn’t even completely explain the Novak article, much less what Cheney ordered Libby to leak to Judy.

  14. JThomason says:

    In contract law a distinction is drawn between “good faith” activity and “coercive” activity but the distinction is lost as the concept of “good faith” is applied to government and the threshold issues of abuses of power are minimized. The way the term “good faith” is used in jurisprudence it increasingly serves as a euphemism for “coercion” and “abuse of power” inasmuch as the government is acknowledged to have an interest in preventive police measures. But these preventive measures require a “Minority Report” epistemology. Suspicion replaces provable activity as a basis for intrusion in this approach.

    Due process originally was put into place to guard against prejudicial bias in governance especially in the protection of “liberty” interests. But there has been a de facto supplanting of the “liberty interest” analysis with an analysis that requires a kind of “corporate” compliance with government acting as a coercive instrument. Some of this arises of demographics where the domains traditionally appropriate for the exercise of liberty interests become increasingly scarce and this is commensurate to the rise in the allure of intoxication as a mechanism of escapism.

    And this way of looking at the problem may at this point be more psychologically true than literally true but the paradigm shift certainly is increasingly applied in the contexts of public roads, communications and foreign activity. It amounts to a kind of monopolization and sequestering of potential frontiers. This monopolization of opportunity is the economic crime here but there is no reason to think that the denial of the ever expanding coercive tendencies in governance will be easily overcome. With the hegemony of a corporately driven economic status quo, opportunity is seen as an affair increasingly subject to private regulation. Citizenry affords little protection in such an ever decreasing public domain where the ethos of “coercion” then becomes normative in the enforcement of contracts.

  15. cboldt says:

    Evidence for my point is visible in Fitzgerald’s affidavits supporting his subpoenas for reporter testimony – it was failure to respond to those subpoenas that got Miller her stay in jail.

  16. Hmmm says:

    …and this is commensurate to the rise in the allure of intoxication as a mechanism of escapism.

    Don’t forget escapism as a mechanism of escapism. What country is the world’s foremost producer of entertainment?

  17. Mary says:

    The statutory changes don’t “trump” the 4th amendment, but they do create tremendous practical difficulties.

    Under the 4th Amendment (or a FISA challenge) first you would have to prove standing. That has been the big problem to date – with Judge Taylor’s case being kicked by the 6th bc those spied upon could not prove that they had been spied upon, and it has also been the problem in the al- Hariman case before Walker, in that he is not allowing the evidence of the phone log – although relatively indisputable – to ‘count’ as evidence of illegal spying bc of the invocation of state secrets for that piece of evidence.

    So if you were to get past the standing issue, then under a 4th amendment analysis, you’d probably have to rely on a Bivens-styled action for civil recovery, or on getting subsequent criminal proceedings against you thrown out if you were in the midst of a criminal proceeding. Despite Walker’s ruling in al-Hariman, as that case goes up the appellate ranks, the log may be able to be raised as evidence of illegal spying to justify defenses on a criminal front, but the Sup Ct has pretty much become a ‘eh, so it was illegally obtained – let it in anyway’ court of no resort. On the civil front, you would have to prove how you were damaged by being spied upon. For most people, this might be very difficult.

    Enter Old FISA. Old FISA created a statutory remedy that is not mandated by the Constitution – it is a remedy of allowing a $1,000 (or whatever the amount is) civil recovery (as well as making the spying a felony) WITHOUT PROVING DAMAGE for each instance of felonious unwarranted domestic spying. So with old FISA, if the mass plaintiffs (or any individual plaintiff) can get past the standing issue, they are home free bc they don’t have to prove damages. Just get access to the info on instances of felonious spying and start allocating payments owing to litigants or to a certified class if you get to that point.

    So nothing about the legislation can or will truly be able to cut off Bivens type actions. But a part of the catch-22 is that a Bivens action is only available if there is no other Federal remedy (Old FISA does give such a remedy and new ObamizedFISA keeps that remedy – it just creates a class of litigants who can’t use that remedy – – those who the President decided it was *legal* to spy on [enter Due Process attack #1]) It is also going to be an evidentiary issue on whether the telecoms were acting under color of law or as Executive branch agents (I think that’s a winner for litigants) What forcing litigants to take the Bivens route does, though, is open up a possibility of punitive damages not available under FISA. You’d need a tough court or jury for that, but if you get them – the damages could still be substantial. You also have to prove up an element of egregiousness. So there are a lot more proof issues on a Bivens action and if you can’t get access to information bc of state secrets invocations, then you have a lot of hurdles.

    The big thing the Old FISA did was to take away all those proof issues and “set damages” and that is primarily what the legislation does bar. Can they take away the remedy that the Constitution didn’t require them to provide to start with (a civil $$ award?) Normally, you’d have to say yes. OTOH, when they are saying that they will reward violations of the Constitution (the 4th Amendment) by exempting the violaters from the statutory penalties of FISA, that is a little more bizarre and complicated context. A court has to think twice about having Constitutional violations in front of them and rewarding those because the President determined them to be legal.

    And a court would have to think twice about the manner in which Congress is taking away the recovery – Congress is not just taking it away. They are telling a COURT that it is REQUIRED to take away the civil recovery based on being presented with evidence that the President directed the criminal and constitutional violations. whew – talk about some severe separation of powers issues. And then there’s the foreclosing of a forum issue and … lots of constitutional and procedural fodder for the litigation cannons IMO. That’s why my take awhile back was to quit even trying to worry over the dissolutes who call themselves Senators and instead shift focus.

    I’d say all the contributions that might have gone to Obama, or DCCC or SCCC or DNC etc. might be better targeted to either Glenn’s group or to entities like EFF or ACLU etc. who are going to fight the fight.

    • Hmmm says:

      That’s very encouraging, thank you for that.

      I wonder whether the permission slips are already in evidence in the Walker cases, vs. whether they now have to be shown to Walker before the cases can be dismissed. Hmmm, would that be regular evidence, sealed evidence, or just an ex parte showing? I.e. what latitude if any might Walker have to make the permission slips public, were he so inclined?

  18. Mary says:

    48/50 “Miller was jailed for refusing to testify in probing whether or not Libby obstructed justice.”

    I agree with that. I’m not sure I agree with the prosecutorial approach behind that, though. I really think that if the sole purpose of jailing Miller was to resolve whether or not Libby made false statements and not because those statements were material statements about an underlying crime, I’m not all that sure that journalists should be able to be jailed for that kind of situation. OTOH, I think Fitzgerald was going for more and had good grounds to believe he could get to more, but just couldn’t make it work in the end.

    I also think there’s a real chance (although a real chance and a good chance aren’t the same) that something happened to the delegation of authority to Fitzgerald after the Libby suit was filed and I think Mukasey’s reference about the special counsel situation could, in that context, be a backhanded reinforcement of what was done – so that if it ever comes out he could point to things such as the jailing to show that some of the delegation and decision making had to be called back. Sowing of seeds. fwiw.

    • cboldt says:

      I really think that if the sole purpose of jailing Miller was to resolve whether or not Libby made false statements and not because those statements were material statements about an underlying crime …

      It’s a tough call. The obstruction was certainly material to the investigation of the allegation of a crime; and Fitz was operating on the presumption that the CIA referral was righteous (i.e., not “crying wolf”). And, it was a serious investigation, see appointment of a special counsel to get to the bottom of it. In that environment, a “pure” administration of justice has a gut check as to whether it will take a knowing liar, and look the other way, or take a knowing liar and do something about it – even if the underlying crime can’t be found for want of other elements.

    • cboldt says:

      I think Mukasey’s reference about the special counsel situation could, in that context, be a backhanded reinforcement of what was done – so that if it ever comes out he could point to things such as the jailing to show that some of the delegation and decision making had to be called back. Sowing of seeds.

      I’m speculating too, but I take Mukasey’s statement in the blockquote above to be forward looking. He’s basically saying that Congress might be better off repealing the special counsel statute (or maybe hemming it in so special counsel have to work through DOJ to obtain subpoenas directed to reporters); than to pass a reporter shield statute that covers all cases, not just special counsel cases.

      Mukasey wants to keep subpoena power when he controls the prosecutors, but he wants to deny the report subpoena power to a prosecutor that can operate independently of the DOJ.

  19. Loo Hoo. says:

    What happens to all of the paperwork in this Dept. of “Justice” when a new administration comes in with a new AG?

    • MadDog says:

      Deadeye is planning that “small” fires will breakout in various Federal agencies.

      The one in his Executive Office Building office was merely a trial run to see if:

      1. It burned sufficient quantities of material in a timely manner.
      2. It managed to fool the Fire Marshall’s arson investigation.
      3. If # 2 doesn’t work, that the incoming Democrats can be blamed for careless smoking.

      Deadeye has got it all worked out. Just trying to figure out how to get a tax deduction for all that expensive petrol.

  20. MadDog says:

    EW, with your updates to this post, I took a clear understanding from Mukasey that Rove ain’t gonna get no “Executive Privilege” pass wrt to tomorrow’s hearing.

    Now to be very clear, I don’t mean that to say that he will enforce a Congressional Contempt citation against Turdblossom. Just that there ain’t gonna be no EP extended to Turdblossom.

    As to Congressional Contempt, Mukasey is merely kicking that can down the road to another Administration’s DOJ since he is using the “out” that the underlying issue has already been moved to the Judicial branch (via Miers and Bolten).

  21. Mary says:

    61 – I see that too, but IIRC, even an “outside special counsel” (the ones the regs are written for) would have to follow Dept procedure on subpeonas and those would require AG level approval for actions like seeking to jail reporters for noncompliance with subpoenas. I may misunderstand that procedurally, but I thought the only reason Fitzgerald got to make the call independently wasn’t bc he was “special counsel” under the special counsel regs (bc he wasn’t) but rather bc he had the delegation of authority equivalent to AG authority. I could have the mechanics of the journalist jailing rules wrong though.

  22. freepatriot says:

    off-topic notes from the lotus eater’s banquet

    remember how everybody used to say kkkarl rove was a genius ???

    let’s see what this does to alter that view

    Top GOP Rep: Obama’s Turnout Could Sink Us In The South

    Obama could spur high turnout from African-American voters and drastically change down-ticket races in the South.

    a repuglitard just expressed doubt in the “Southern Stratgy”

    the repuglitards are worried about losing in THE SOUTH

    what else have they got, besides Utah ???

    kkkarl ain’t so smart. he just squeezed the southern stratgy to it;s narrowest margins

    now the southern strategy is dying

    is there any reason to believe that the repuglitards are gonne be resurgent anywhere else ???

  23. Loo Hoo. says:

    Bmaz, here we are:

    Hugh July 9th, 2008 at 5:35 pm
    203
    In response to selise @ 188 (show text)

    Thanks, and the list is:

    Bmaz: The Audacity of Nope
    BlueToe2: The Mendacity of Hope
    neurophius: The Audacity of Hype
    Jo Fish: The Paucity of Scope
    JimWhite: (for us) The Alacrity to Cope
    siri: (for some of us) The Felicity of Dope

  24. JThomason says:

    OT. I think I am beginning to understand now what a “suspected terrorist” is. That’s someone overseas with whom you may do business that is competitive toward global corporate interests.

    • skdadl says:

      Whew. Luckily, I am neither “overseas” (we seem to be joined at the midriff along the 49th parallel) nor competitive in that grand a way, so I’m in the clear, right?

    • PetePierce says:

      Replying to JThomason @ 77:

      OT. I think I am beginning to understand now what a “suspected terrorist” is. That’s someone overseas with whom you may do business that is competitive toward global corporate interests.

      A suspected terrorist is anyone who has vital signs and is not in a coma in the Bannana Republic of the U.S.

      You live in “Surveillance Church (how Christy not Hardin Smith but as in Jesus Christ) can you be ’cause whatever it is you ain’t Christy enough) Nation”. And although there was a presumption of separation of Church and State, (I know it’s not literally in the Constitution or Federalist papers according to wingnuts, but it is strongly inferred).

      I just heard Feingold explaining the optimism to Maddow after FISA he sees in Obama fixing the now crippled never again to be Fourth Amendment and it was frankly pathetic.

      Today was the day when you got to learn your Democrats in Congress and the Senate for the most part thing you are worthless and don’t count.

      They can’t even make your food safe, and you have a balless doctor running CDC who allows Cheney to edit her medical evaluations–unthinkable and unmedical.
      ___________________________

      OT,but if anyone knows how to get in touch with one Ian Welch who is some kind of weekend or other kind of editor at Firedoglake who has made the wild and crazy pronouncement that “Edwards and Clinton had universal health care plans and Obama did not” that is wildly naieve and simply not true on the planet earth in the US particularly to those of us who are tasked with providing care. I believe Mr. Welch is in Canada where single payer health care is in place. I wish I had a nickle for the doctors I know who fled Canada because they hated the system there, and I’m making no reflection on the excellent research and medical centers and innovations that Canadian doctors make.

      The fact is that first of all every candidate since before Roosevelt has had a health care plan and not one of them got through Congress and saw the light of day.

      Second of all Mr. Welch doesn’t participate in trying to deliver health care, and if and when he does, he will find their is no detail in any candidate’s plan.

      Among the problems not rememdied by anyone running for President past or current:

      Medicare (10.2%)and Medicaid Cuts with the remedy currently blocked by an Obstructive Republican Senate and the Blue Dog gutless Dems.

      Mr. Welch who has perhaps been on the receiving but not providing end of Canadian health care wrote today:

      He sure talks the talk. Too bad his health care plan isn’t universal. Hilary’s was. Edwards’ was. Obama’s isn’t. But don’t worry, Obama believes.

      This is extremely naive. There was no significant detail in anyone’s health care plan that has a clue where the states would get the money to provide univsal health care plan, and in fact many states are cutting in two specific areas that allow those of us who give care to see more and more patients die. I’m not an expert in immortality, but once they are dead, I’m not sure how universal the health care is. I know that 12 years after being accused, Patsy Ramsey has been exonerated by the DA who made her life a horror story, and I’m not sophisticated enough in the nuances of Colorado law to know how that Boulder Colorado D.A. communicated this uplifting bit of news to Patsy Ramsey who has been dead since June of 2006.

      District Attorney Mary Lacy met with John Ramsey and his defense attorneys, Bryan Morgan and Hal Haddon, on Wednesday morning to formally deliver the letter clearing the family of any involvement.

      Back to Mr. Welch’s (from Canaada’s) information on universal health care by plans from Elizabeth and John Edwards and Hillary Clinton. Hillary Clinton’s extensive health care plan from the 1990’s remains a secret to this second. Her plan in the previous primary campaign had no details that a physician would find useful in the current climate nor do the Edwards’. There is no significant detail in how many shortcomings would be paid for nor how they would remedy the many deaths in the U.S. that are occuring every day.

      None of this is covered in any plan–and all of these guarantee exponentially increasing suffering/morbidity and death,

      1) In many states, EMS personnel have been cut, as well as the ambulances on wheels significantly increasing the response time for the EMT’s to put medicine into the patient. In trauma and cardiac care to name just two areas, minutes and seconds mean life v. death and a substantial number of cases.

      2) Tertiary trauma care personnel and Level 3 trauma centers are being cut dramatically in several states. The ETA for many critical patients dying from an acute event is in hours and this insures they will die.

      3) Mergers like the one of UnitedHealth Group, and Sierra Services in Nevada approved by Bush Justice creates a monopoly that gives United a 56% share of the commercial health insurance market in Las Vegas and 90% of the HMO market. This is currently the subject of anti-trust litigation in the D.C. Circuit. The actual prospects of the Court (trial, appellate or the Supremes) overturning the DOJ are dim.

      4) The current plan to counter pandemic flu is in chaos and states are spending millions of dollars on Tamiflu which has no efficacy whatsoever and in fact, only enhances resistance to any mutation of H5N1. 30% of patients could require ventilators but there aren’t near that number of respirators.

      5) Universal? Right now with no candidate or “Congress” in office until late January, 2.6 million patients eligible for Medicare Part D subsidies aren’t getting them to pay for their meds and their M.D.’s aren’t aware they’re eligible either according to HHS.

      6) Reimbursement for patient care or procedures remains time consuming, cumbersome, and actually abusive for physicians trying to get paid. The average amount of money spent by doctors (cost of collecting payment) in collecting their bills from plans is 14% of their total collections plowed back into “claims administration.”

      7) Electronic records often in the media remain practically economically completely unfeasible for small independent, free standing practices and will in their present format for years.

      8)CMS or Centers for Medicare and Medicaid services http://www.cms.hhs.gov/ is refusing to pay for reimbursing up to 17 conditions they list as preventable in hospitals which simply aren’t preventable under conditions that are near perfect like catheter induced infections. Whether it’s a CVP or a urinary catheter, and many of the components depend on age, condition, concommitant diseases and medicatgions, there is always going to be a rate of catheter based infections.

      9) There are currently huge inequities in the code system for primary care physicians who may spend large amounts of cumulative working with a diabetic patient and educating them, versus the reimbursement for a procedure that is bread and butter for a subspecialist like removal of a cataract clouded lens and replacement with an IOL (intraocular lens).

      10) Two weeks ago the NYT published an excellent article for a newspaper in which it showed that cardiac CT while very expensive ( billed at $500 to $1,500) for the payer has not been proven to improve cardiac care significantly. In the same day’s paper were numerous advertisements from hospitals touting the “benefits” of cardiac CT. Every major medical center and teaching hospital runs press releases on the web touting the “second coming” of cardiac CT, none of them actually get into the cardiac literature which has not proven the widespread benefits of these expensive scans in double blind multicenter studies.

      Weighing the Costs of a CT Scan’s Look Inside the Heart

      These are just a few major issues and none of them is touched by any past or current presidential candidate’s plans. Obviously McCain is as concerned about providing health care to the poor or the middle class as the current occupant of the White House is.

  25. MadDog says:

    Totally OT (just because it’s a slow news day…*g*) – Court Orders White House Office Of Administration To Preserve Documents Regarding Missing Email:

    Last evening, District Court Judge Colleen Kollar-Kotelly granted CREW’s request for a stay pending appeal in CREW v. Office of Administration, a lawsuit seeking documents under the Freedom of Information Act (FOIA) regarding the White House’s loss of millions of emails from White House servers. Although Judge Kollar-Kotelly had ruled last month that the Office of Administration (OA) is not an agency subject to the FOIA, CREW had sought a stay of that ruling to require the White House to preserve documents that would have to be produced, should CREW prevail on appeal. Justice Department lawyers had argued that a stay was unnecessary because they had assured CREW that the records would be preserved, but Judge Kollar-Kotelly rejected this argument, becoming the second judge to rule in litigation brought by CREW that assurances from the White House and/or its counsel that it will preserve documents are not a sufficient substitute for a court order…

    OA Stay Ruling here.

  26. prostratedragon says:

    skdadl, I just saw where this AM during the liveblog you asked about video of Durbin’s questioning of Muck. Found a short and disgusting passage at ThinkProgress.

    • skdadl says:

      Thanks very much, dragon. Off to watch. I thought that Durbin was terrific today, and he really got Mukasey cornered, step by step by step.

      • prostratedragon says:

        (Sorry, stepped away a while—looks like I have a lot of catching up to do.)

        Yeah, I’ve always hoped that if I ever found myself having to say stuff that weak and wrong, I’d know it was time to hang it up.

    • Loo Hoo. says:

      Pete, I don’t expect Obama to have the level of expertise that you do. I just expect him to get the experts on board if he wins.

      Do you think he will?

      • PetePierce says:

        Loo Hoo he has had access to impecable incredibly talented medical experts since his days in the Senate in Chicago. He will have his pick of the cream of medical experts to do all kinds of things. There is a book published every year you can buy in bookstores that goes into detail as to hundreds of people from every agency every year in each administration with their backgrounds/CV’s for about $100 not to mention several from BNA the people that do a great job with the Criminal Law Reporter and a href=”http://www.bna.com/products/lit/uslw.htm”>US Law Week.

        I’m always amazed and how much talent there is in each agency and bureaucracy but also ironically how crushed these people are because the “leaders” are political automatons like at the EPA, or the over the top arrogant Ms. Chutzpah herself Laurita Doan who is thankfully gone from GSA

        Obama has been literally surrounded by them for years and actually every President has them. even in the agency bureaucracy and Congress as you also know there are large lists of state of the art people who testify for them or work for them day in and day out but the many many problems remain.

        I could write a book about the politicization of the CDC at the top, but for example in the last few days it has come to light that Dick Cheney and his staff actually edited information out of testimony that was given by CDC head Julie Gerberding, M.D. because they didn’t want to improve standards on emisssion of green house gases.

        A doctor with any ethics/integrity at all would have told them “no way” and of course the Bush administration would have fired her. The CDC predictably says no harm no foul. This isn’t the first time the administration has edited her testimony to Congress by a long shot. And as Marcy has beautifully shown, they are pulling Mukasey’s strings every step of the way.


        Cheney’s Staff Cut Testimony On Warming

        Remember also Michelle Obama was a VP for community and external affairs at the University of Chicago Hospitals since May 2005 until the campaign started, and before that was executive director of community affairs there, and before that Dean of Student services at the University of Chicago. He has and will have access to the best and brightest and the AMA’s tools and resources are located in Chicago where Obama’s are.

        I know that since I was a kid the AMA has had a predatory or slick or doctor centered rather than patient centered image for many people or the idea has persisted that they don’t have patient interests at heart, but I haven’t found any of this in my adult life in any of their initiatives and I have no particular reason to cheerlead for them. Almost every initative they currently have (and there are a lot of them) are targeted at improving patient access to care and fighting off plans that limit it.

        The incoming President is a lady named Nancy Neilsen who has made the centerpiece of her incoming address to cover the uninsured or make universal care actually happen. She’s an internist, a Ph. D. in microbiology, and medical school associate dean from Buffalo NY.

        All that’s encouraging but I guess we’ll have to see what happens.

        Medical care is always a big political issue and politically it is incredibly more complex than a lot of us think it needs to be. What drives me up a wall is the amount of money wasted on fiascos like Iraq that or spent in Pakistan that could go along way towards providing the care that the Bush administration has been bent on cutting. There are also crazy serial medical mandates (from Congress or HHS etc.) as I know you’ve seen (as well as many other kinds of mandates like a universal ID card by DHS) to states with no way on earth to pay for them.

  27. MarieRoget says:

    I guess if Russ Feingold can act positive & display some hope after today’s craparound, so can I. Heading back into the traffic to go tutor kids over @ Covenant House for the GED now; make myself useful in this burg.

    The mark of a really shitty day- Could use a cig, & I quit almost 8 yrs. ago. Russ, be my strength, amen.
    Read you all later.

  28. FrankProbst says:

    I’ll bet you a dollar to a doughnut that Mukasey hasn’t read the file. He doesn’t need to, and as a lawyer, he has to know that he’s better off not knowing what’s in there. If he has any sense, he will have made sure that the file is under lock and key, and no one, including himself, can get to it without creating a paper trail. That would give him evidence to support his claim that he never read the file, should he need it in the future.

    Why would he do this? Because he knows that the file is explosive, and if/when it does make it to the light of day, it’s going to leave shitstains on a lot of people, and he’s going to want to be damn sure he can claim he had no idea what was in there.

    • darclay says:

      Seems to me if you have suspicions that a crime has been committed or there is the accusation of crimes being committed, if as the AG in that capacity deliberately ignores and fails to investigate, is that not a crime in itself?

  29. strider7 says:

    the new war powers commission

    Holy Caligula! There has never been, nor will there ever be, a totalitarian despot on earth who wouldn’t give his left baby maker for that kind of statutory authority to make war. I don’t know what Baker and Christopher and the rest of the geriatrics on the War Powers Commission were thinking when they drafted their Consultation Act, but if passed by Congress, their proposal would transform our erstwhile republic into a perpetual form of the militaristic oligarchy it has become under the stewardship of George W. Bush and Dick Cheney.

    We don’t need a new war powers law that Congress can brag about passing on the Sunday morning vagina dialogues but which does nothing to stuff the executive branch back in its box. What we need is the kind of legislation that would allow stem cell researchers to discover a way for Congress to grow itself enough spine to enforce the limits on executive overreach that already exist.

    Under order of young Mr. Bush, United States armed forces have been conducting overt offensive combat operations in Pakistan and Somalia for well over a year, without so much as a yes-you-may from Congress, and in flagrant violation of the War Powers Resolution of 1973.
    http://www.atlargely.com/2008/…..nough.html

  30. yonodeler says:

    For the invasions of Afghanistan and Iraq, authorizations given to George W. Bush to use force when felt like it, given to him by Congress, were as close as Bush and Cheney wanted to get to declaration of war. As to US covert military presence elsewhere, Bush and Cheney like to pretend that they’re doing something similar to fighting Barbary pirates rather than acting militarily against a nation.

    • strider7 says:

      yeah, a daclaration of war is sooo 40s
      more like J thomason@77
      OT. I think I am beginning to understand now what a “suspected terrorist” is. That’s someone overseas with whom you may do business that is competitive toward global corporate interests.

  31. darclay says:

    OT The non news is that Richard Burr is being considered as Mcstain’s running mate…second time in the past few months I’ve heard this. That will make the ticket even more sickening. Burr is a shill for everything this admin. wants. only lickerman is worse.

  32. Leen says:

    Mukasey does not know if “waterboarding:” is torture…so the “barnacle” outing an undercover spy who has put her own life on the line while looking for WMD’s (and the U.S. government has a 20 year investment in) seems to mean nothing to Mukasey.

    Just who is Mukasey working for? Certainly not the American people or U.S. National Security.