Emptywheel to Senator Whitehouse: We Only Have 7 Weeks to Indict Bush

Two and a half weeks ago, bmaz predicted that the Bush Administration would appeal Judge Vaughn Walker’s ruling requiring the Bush Administration to turn over a document that likely proves they violated FISA by wiretapping American citizens. Sure enough, on Friday and Monday, they did so.

In a parting shot, the Bush administration’s Justice Department shrugged off a San Francisco federal judge’s order to make a classified document available to lawyers for an Islamic group challenging the legality of the outgoing president’s secret wiretapping program.


Chief U.S. District Judge Vaughn Walker ruled Jan. 5 that Al-Haramain could proceed with its case, saying government statements showed that the group had probably been wiretapped.

Walker said he would examine the classified document to see whether it showed that federal agents intercepted the calls without a warrant, a ruling that would allow him to decide the legality of the surveillance program. He ordered the Justice Department to let the group’s lawyers see the document, after they obtain security clearances, so they can argue their case while keeping the contents secret.

In Monday night’s filing, Justice Department lawyers asked Walker to suspend his ruling while they appeal, and said the National Security Agency has decided the Islamic group’s lawyers have no need for the document.

"Under normal clearance procedures, the NSA would decide – not the court – whether the plaintiffs’ counsel should receive access to any classified information," department lawyers wrote.

Between that appeal and Arlen "Scottish Haggis" Specter’s highly unusual one-week hold on Eric Holder’s nomination yesterday, it sure does look like my theory–that Republicans are trying to delay the time when a Democrat takes over DOJ and starts reviewing Bush Administration actions and considering prosecutions.

In particular, I believe, they are delaying Holder’s nomination to shorten the time between the day Holder takes over and the day the statute of limitations on violations of FISA Bush committed on March 11, 2004 start to expire–that is, March 11, 2009, just seven weeks away.

At yesterday’s Progressive Media Summit, I had an opportunity to remind Senator Sheldon Whitehouse of that timeline. I reminded him, too, that Bush seems intent on delaying the time when an Article III judge assesses the evidence in the al-Haramain document, which probably proves Bush broke the law.  

I don’t know whether Senate Dems can do anything to short-circuit Republican efforts to run out the clock. After all, Mark Filip will remain the Acting AG for the next week, at least, and he’s likely to follow the same obstructionist approach as Mukasey has.  But perhaps with some focus from Senator Whitehouse, we might raise the costs for their efforts. Particularly given the Tice revelations last night, we ought to be able to generate new focus on Bush’s efforts to wiretap every American.

  1. siri says:

    I wonder if Senators would be any better informed and be moving any faster on the Holder nomination and indictments if they learned that THEIR phones were definitely tapped during Bu$hCo’s reign of terror.

  2. KiwiJackson says:

    I don’t know how many times i’ve thought it while reading this blog, so time to write here. huge thanks to you Marcy Wheeler for positioning yourself to ask this type of questions. You seem to have woken up the senator with your queries.

  3. Loo Hoo. says:

    Good for you, EW. You probably blew Whitehouse away!

    Wouldn’t some of Obama’s appointments to the Justice Department be able to get at this material, or would Filip be able to block them?

    • emptywheel says:

      There won’t BE anyone at DOJ until after Holder is there. That’s the beauty (if you hate the Constitution) of holding the Holder nomination.

      Obama can put in those who don’t require Senate approval. But all the players will be held until after Holder’s in.

  4. acquarius74 says:

    Thank you EW.

    I live in TX. Sens. Cornyn and Hutchison are both, IMO, just Bush tools. You can bet you are right about the Repubs trying to run out the clock.
    Cornyn is a lawyer and former judge (ugh; so much for TX justice) and it is probably not by chance that he is the one obstructing the process.

    We worked hard to defeat Cornyn, and had a good Dem candidate. Cornyn had Rove campaigning for him – – nuf said?

    I hope Obama can outsmart him.

    • Nola Sue says:

      I used to live in TX, and you are so right: Cornyn is a tool, in oh-so-many ways. He’s also not so bright, and I’ve wondered about him ending up in the RSCC role. (”You want it?” “I don’t want it.” “Hey! Let’s get Cornyn — he’ll swallow anything!”)

      Shouldn’t be too hard for Obama to outsmart that one. (Reid, on the other hand?….)

      Now I live in MN, where another Repub tool is finally, though way too slowly, being shown the door. Best wishes to my former Lone Star neighbors for better representation. Soon.

        • Nola Sue says:

          Lovely. But Whining Norm probably won’t get the chance. Laurie’s “bonuses” may end up being called what they really are, and bribery charges will hopefully put that law license in the shredder.


      • acquarius74 says:

        Thank you for your sympathy, Nola Sue, and congrats on your escape. I’m 4th generation Texan and Cornyn is a disgrace to our state. When I write to him all I ever get are form letters which insult my intelligence. I told him so, too. He didn’t respond to that one.

        • sojourner says:

          That is amazing…. I wrote him, too, and probably got the same form letter you did! He truly is an embarrassment! I just hope we Texans are not judged by him… I sure didn’t vote for him!

          • sojourner says:

            What I meant to say is I hope people realize that there are some of us in Texas who have some good sense…

            • freepatriot says:

              there are some of us in Texas who have some good sense

              I’m thinking a majority of texans pulled their heads out of their assholes

              looks like texas is gonna go blue in 2012

              Texas: Approve 62%, Disapprove 35%

              tennessee too

              hey repuglitards, just keep singing “Barack The Magic Negro”, it’s WORKING OUT GREAT for us

                • freepatriot says:

                  give it some time

                  nothing succeeds like success

                  everybody loves a winner

                  the repuglitards are gonna try to help Obama fail over the next 4 years

                  so if Obama succeeds, the repuglitards got NUTTIN

                  Americans have been watching the repuglitards support george as george fucks up everything he touches

                  now Americans are watching repuglitards oppose Obama as he succeeds at everything he does

                  even the most inbred fucking hicks can see what’s going on

                  nobody likes following people who continually support failure and oppose success

                  the repuglitard party is going to be limited to battered women and the male equivilent, soon

                  just being a member of the repuglitard party might soon be a legal reason to order psychiatric evaluations

                  • Leen says:

                    “five it some time” yep about a year. Like some of the things I am witnessing all ready and it has only been a few days.

          • acquarius74 says:

            There’s some fine, very intelligent Texans here at FDL. Welcome to my list of ‘the good guys’.

            I think Cornyn is digging his own grave in the senate if he continues to expose his stupidity as he did today in his questioning of Holder. Cornyn just refused to go to the underlying premise upon which Holder pointed out the flawed hypothetical rested.

            Cornyn was trying to use on Holder the word-games that were successfully used on Cornyn. Cornyn is a factory made reproduction of a long line of good ole boys who brag, bribe and bully throughout their mediocre, shallow existence.

            Please excuse me, the bile is rising in my throat. Wish I could just laugh in Cornyn’s face like Holder did.

            • nonplussed says:

              Please excuse me, the bile is rising in my throat. Wish I could just laugh in Cornyn’s face

              Whenever I feel that way I just watch Big John

              But when that doesn’t quite do it, I resort to Big Bad John!

              h/t Rick Noriega

    • nonplussed says:

      You & Nola Sue have it pegged. I, too, thought we had a great opportunity to dispose of the embarrassing Cornyn this time around but he won by a surprisingly (at least to me) large margin. Our continuing efforts are slowly turning Texas blue, however, and Tim Kaine mentioned it in his comments upon taking the DNC reins.

      On another note, the great beating of collective breasts, wailing, and rending of garments of the Anti-Roe v Wade crowd is disgusting. It’s the worst decision since Dred Scott! Trent Franks is reading scripture on the Floor of the House and making continued reference to Obama using Lincoln’s Bible-”Free the Innocent, Tiny Unborn from the scourge of the murderous abortion upon demand” DFH!

      • acquarius74 says:

        nonplussed, I’ve pondered how I can overwhelm Cornyn with an e-mail that will knock some sense and a sense of decency into him. Total hypocrite, bought by Big Oil contributions to his campaigns.

        When Rove campaigned for him in El Paso I was very suspicious – majority of voters are Latinos there….machine voting? When I voted this time it was a paper ballot which was then fed into a counting machine. Don’t know if all TX counties did it that way.

  5. Nanz says:

    It occurs perhaps the leak regarding Caroline Kennedy might have happened on a bugged phone,etc. Are there any legal means in Senate around this hold business?

  6. danps says:

    Hi Marcy. Another great post, thanks for keeping your eye on the ball.

    The Tice revelations make me think back to Eliot Spitzer last year – do we know all the details on how his use of prostitutes were collected and made public? I think a lot of speculation on “how did they know X” might be starting soon.

  7. behindthefall says:

    Crikey. Anyone who can get Whitehouse to nod, say “I wasn’t aware of that”, and “I’ll look into it” in one conversation has major, MAJOR chops.

    • Leen says:

      Ditto. Thank you Marcy.

      And Tice offered his services to the Obama administration. Will Whitehouse or anyone else take Tice up on his offer.

      Although I thought some of the Republicans questions about the Rich pardon and Holder’s actions were legitimate (and really had wished that some of those questions had come from the Dems).

  8. Nanz says:

    Thank you. sort of wish Reid could take the reins although perhaps Obama wants this to play out absolutely traditionally “with an abundance of caution”

  9. Nola Sue says:

    This is a thing of beauty, EW. Thanks & kudos to you & bmaz for your hard work & many gifts.

    Each day this week seems a little brighter, doesn’t it? Sunshine helps. A lot.

  10. phred says:

    Just a quick question EW — what is to prevent Obama from appointing his own “acting AG” while we await Holder’s confirmation? Would it be possible for Obama to appoint someone with a greater affection for the rule of law, while we wait?

    • bmaz says:

      There is a succession provision; to be named acting, you have to have been confirmed into one of the to positions. Marcy is right, it is Filip until Holder.

      • drational says:

        Marcy. Why would an Obama Administration necessarily even need an AG to start to ramp up an investigation/prosecution?
        If it is an agenda item important to the new administration, why can’t Obama just ask the acting AG or some other new staff to start working on it? I am not convinced that there is anything particularly important about a week (or more) delay in the Holder nomination….

        In short, how can Mark Filip be permitted to obstruct, unless you are assigning him some super-presidential power?

        • emptywheel says:

          The AG would have to approve a high level indictment. Mukasey had to approve the wiretapping and subsequent arrest of Blago, so Filip would have to approve any indictment against Bush or Dick. And the indictment needs ot be done by March 10, if I understand the way this whole legal stuff works.

          I have this outside hope taht someone could write an indictment based on the al-Haramain document, and then write a superseding indictment once we get Holder in. But that’s really a pipe dream.

          • acquarius74 says:

            Marcy, this suggestion will probably expose my ignorance. (not the first time).

            What about Obama write an Executive Order that extends the statute of limitations on any investigations pertaining to potential criminal activity by federal officials and/or employees for a stated period of time after the new AG has been confirmed.

            Anything in the Law that would prevent that?

  11. jonL says:

    Can any of you lawyers answer the following: Is this statute you speak of that runs out on march 11,2009 based strictly on time or does the statue of time run from knowledge. In other words does the statue of limitations only start when we have first knowledge of the crime. If so, then who must know of the crime? Is it the public? The AG?

  12. THATanonymous says:

    The crime wasn’t only in the tapping. It was first a conspiracy to violate the constitutional protections of everyone. Since that conspiracy was ongoing until at least two days ago (officially), and likely continues unabated, certainly the ongoing crime has not even begun to approach a statute of limitations. As such, the primary ongoing crime would include all subsidiary acts, including the particular case of wire tapping under review. Shouldn’t the plaintiffs lawyers be able to argue this position, with hopefully an amicus brief from DOJ if/once a new AG is sworn in? There now seem to be a number of people, starting with Tice, who are willing to testify to the ongoing conspiracy and therefore the inapplicability of the statute of limitations.

    Anyone care to tell me what’s wrong with this line of thinking? Take a number if there’s going to be a bunch of you jumping down my throat at once.

    –TA (The law is what again? Besides being an ass.)

    • THATanonymous says:

      I see that I failed to make one point clear. The legislation that “legalized” subsequent taps did not legalize the ongoing conspiracy, as it could not. That is why I am wondering if we really need to be concerned about time limits.


  13. Leen says:

    When are they going to let Marcy into the Press conferences when Rahm Emmanuel and others start dishing? Who do we contact to push for Marcy and Jane being let in to ask some hard driving questions?

  14. marksb says:

    Timely, excellent interview, thanks EW.
    It feels like the situation between the WH and Congress, especially the Senate, is incredibly dynamic at this point. No one really knows what to expect from anyone else. I tend to think that something like this will be noted by all parties and taken into immediate consideration in regard to moving the Holder nomination along, as well as looking more deeply into the emerging wiretapping revelations, all in a more timely fashion.

  15. BayStateLibrul says:

    Mark Filip, deputy attorney general under former President George W. Bush, has been appointed acting attorney general until Holder’s nomination is resolved. Filip resigned his federal judgeship in Chicago to take the No. 2 Justice Department job under former Attorney General Michael Mukasey

  16. Leen says:

    Olberman to Tice “Has anyone in the Obama administration been in touch with you about this”?

    Tice “No well I’ve been in touch with a volunteer” “they have never utilized me”

    So will the Obama administration or Whitehouse “utilize” Tice

  17. QuickSilver says:

    Way to go, Marcy, putting the clock out there… With a simple, specific question, you’ve found a way to spotlight this hugely important issue.

    If Senator Whitehouse doesn’t get back to you on this, I’ll be disappointed. Obama’s measures on accountability are very welcome.

  18. emptywheel says:


    I have to apologize for my crappy hairdo. I have two excuses. First, the night before this was taken, I was kidnapped by Nate Silver and brownsox and made to drink beer. WHy am I the one stuck drinking all night with the young gun lefty bloggers, I want to know?!?!?

    That, and this conversation took place at the very end of the day, just as Jane and I were headed out. So I was a little bit tired.

    • Leen says:

      Fuck the “hairdo” conversations. Just like the what Michelle was wearing conversations. The men folk are just not scrutinized this way. It is complete bs. Thanks Marcy for your hard driving questions. Really liked the way you closed the deal with Whitehouse.

      When can I call you and find out

    • wavpeac says:

      Marcy…you looked beeeautiful to me.

      The fact that you were defending our democracy didn’t hurt and did cause a rather blinding “rockets red glare” kind of effect. Very flattering. Didn’t even notice the hair.

  19. cinnamonape says:

    I’m wondering if the litigants can somehow supercede all this by placing someone WITH a high-level security clearance on their team to examine the document. That individual could hash out with the judge what could be revealed in Court and what could even be presented, at least in paraphrased form, publicly.

  20. spoonful says:

    toll that bell – under the doctrine of estoppel, the passage of time under a statute of limitations is not computed for that period in which the party asserting the statute either actively concealed the cause of action from the party seeking to asset such claim or otherwise caused such party’s incapacity to timely assert it.

    • dakine01 says:

      However, as we have seen in the current SCOTUS when they ruled that Lily Ledbetter could not claim discrimination because she had not filed her case within the first 180 days she was discriminated in, the passage of time is being counted, even though in her case it was demonstrable that her employer had been hiding the discrimination.

      IANAL but would assume the same five would rule that the statute of limitations clock has been running all along.

  21. jdmckay says:

    Completely OT: I just watched BO’s news conferance introducing his ME team, and his statement of purpose/goals there. Hillary, George Mitchell, Biden & (to my surprise) Hollbrook on stage w/him.

    Excellent speech, excellent statement of purpose, superb outline of goals… virtually everything that’s been missing for last 8 yrs was said. AFAIC Mitchell is exactly the right guy. Hollbrook a fine supporting cast.

    I’ve expressed sincere and profound in BO since election, but I got’a say… the way he’s hit ground running, the EO’s from yesterday and now this event today, I couldn’t ask for more. I’m beginning to get sense this is exactly the right guy, and he’s up to the task.

    Can’t say enough about these 1st 2 days so far. God bless him.

    And thanks for tapping Whitehouse on shoulder Marcy.

    • 4jkb4ia says:

      I am so thrilled simply that Barack Obama is president. A generic Democrat already represents improvement whether he has a deep progressive world view or not.

  22. pseudonymousinnc says:

    Nice work, EW.

    I do think that Whitehouse has succumbed a little to SSCItis, the affliction whereby membership on the Super Seekrit Seekrits Committee leaves one excessively sympathetic to spooks. Still, we can hope.

  23. plunger says:


    The “slow roll” is in progress, and you most certainly called them on it, and exposed their motive.

  24. Petrocelli says:

    Um … does Whitehouse need a flurry of evidence, perhaps in a timeline for added effect and where, oh where will the find someone who can send that off to him while tossing back Tankards of Beamish ?

  25. BillE says:

    Obama visited State today. He should head over to Justice tomorrow and start going through the file drawers. He is supposed to be a good lawyer and I think he has clearance

  26. klynn says:


    I enjoyed your closing comment.

    “So, I’ll call you next week to find out.”

    You didn’t ask. You put them on notice that you would be following through and they better as well.

    Thank you for all your work. I hope this goes viral.

  27. perris says:

    can’t the proceedings simply take place or be filed and thusly stop the clock on statutes of limitations?

    in addition, doesn’t the clock only begin ticking when the information is available?

  28. pdaly says:

    Like those above, I add my praise and thanks for the heads up you provided Sen. Whitehouse re: likely motivation of the Republicans stalling on the Holder nomination. Whitehouse’s speech you linked to is great. Long live the light.

    Two ideas: now that Napolitano has sailed through Senate confirmation, is there anything left for the Senate to discuss if Obama switches players around and decides to move Napolitano to DOJ instead of Holder? If the Senate has nothing derogatory on Napolitano, this gets the DOJ up and running right away.

    Pres. Obama could insta-declassify the classified March 2004 document about the wiretapping of al-Haramain.
    If Bush is unmasked, well then oops. Obama could say, “My bad.”

  29. maeme says:

    Two things: Chris Matthews keeps pressing about the torture prosecutions and going after Bush and the higher ups who did and authorized the torturing. Tonight, Lynn Sweeney and Chris Cillizza are both saying that Obama has no intention of going after Bush and Cheney and prosecuting anyone. So you may find the Obama is not helpful in this pursuit. The media keeps selling it as these folks on the far left and the blogosphere are only pushing it and just democrats in Congress.

    Second thing: Almost four years ago, Paul Craig Roberts, former Assistant Secretary of the Treasury under Reagan, former of Editor for the WSJ wrote an article about the wiretapping and the way the democrats were acting, he believed that only the media and members of Congress were being wiretapped and any one deemed as an enemy. He took a lot of flack for that article. It may turn out that’s exactly what was going on.

    • wavpeac says:

      No, the right is WAY worried. They are defending torture on every channel in every way they can. No longer denying it, but defending that torture is a good way to save the world. That tells me something. They need public opinion to sway their way…or well, it might not be pretty.