Philip Zelikow: How BushCo Gamed the Briefing Process

One more important point on the briefing process.

In this exchange between Dick Durbin and Philip Zelikow, Zelikow makes clear how the briefing process is supposed to work.

ZELIKOW: Formally, what’s supposed to happen is, a memorandum of notification is prepared that lets key members of Congress know that a program is being undertaken with the authorization of the president, pursuant to some prior presidential finding.

And therefore, members of Congress are being informed…

DURBIN: After…

ZELIKOW: … pursuant to this finding, we are now doing certain things.

DURBIN: After the fact?

ZELIKOW: It could be after the fact. It should be at the time the program is initiated and before the program is implemented, so that it appears that you’re taking the congressional consultation seriously, which the administration should.

The President prepares a memorandum of notification for "key members" of Congress to let them know a program "is being undertaken with the authorization of the president, pursuant to some prior presidential finding." So: a finding, then authorization.

Durbin presses him on whether Congressional notification should be before or after and Zelikow states that–so "it appears" that you’re taking Congressional consultation seriously–the notification should happen at the time the program is initiated (which, in the case of the torture program, would have been no later than July 2002). 

Now, when Durbin asks Zelikow directly whether Congress got that before the fact briefing in this case, Zelikow claims ignorance. 

DURBIN: So, when members of Congress were briefed of this, was it before the fact? Were they being asked to authorize these techniques and give their approval?

ZELIKOW: Sir, I think Senator Feinstein mentioned, SSCI is apparently really trying to break down the chronology. The Office of the Director of National Intelligence has been publicizing chronologies of briefings, which then need to be matched up against when we were actually doing things.

And so, the honest answer is, I don’t know whether folks were briefed before the fact.

Yes, Zelikow, you do know whether folks were briefed before the fact. There’s the SSCI narrative (to which DiFi’s work–alluded to by Zelikow–is follow-up), which states clearly that Congress got briefed after Abu Zubaydah had already been tortured.

In the fall of 2002, after the use of interrogation techniques on Abu Zubaydah, CIA records indicate that the CIA briefed the Chairman and Vice Chairman of the Committee on the interrogation. [my emphasis]

Or, you can compare this passage from the Bradbury memo

The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah.

… with the CIA briefing list showing the first Congressional briefing on September 4, 2003. The public record makes it crystal clear that folks were briefed after the fact, that the Administration did not make any effort to consult Congress before the fact.

But there may be a reason why Zelikow got so squirmy when asked whether the Administration fulfilled its obligation to inform Congress (aside from the fact that Condi would have had a central role in that notice, and aside from the fact that the SSCI narrative and Yoo’s testimony suggest Condi had a role in circumscribing any such consultation). As Zelikow admits, the Administration rebutted the arguments that Zelikow himself made by pointing to members of Congress who had been briefed and who–the Administration claimed–didn’t "have a problem with it."

ZELIKOW: I think I do. And as I have listened to both sides of this argument, I step away from this with some concern.

I will tell you on the inside, when I was arguing — we were having heated arguments about these policies on the inside in the White House situation room. And the argument would often be deployed against me and my colleagues, that, well, we briefed the following members of Congress — name, name, name, name, name — and they don’t have a problem with it.

So, in other words, they’re using — these briefings are being used, actually, to deal with arguments on the inside of the administration. Yet I hear what you’re saying and what other members of Congress have said. [my emphasis]

Mind you, in 2005 and 2006, when Zelikow was having these arguments inside the WH Situation Room, the only Democrats who had been fully briefed on the program, Jane Harman and Jello Jay, were both trying to fight the program. Harman had written a letter to Scott Muller objecting to the program on policy grounds (and asking for what would amount to a formal presidential finding). And Jello Jay was being rebuffed in his efforts to get more information on the CIA IG report.  

The Republicans are working so hard to argue that Democrats were properly briefed because–per Lindsey Graham–if it becomes clear they weren’t, then it is evidence of criminal intent.  And–per Zelikow–because the Bush Administration was rebutting its own internal critics with claims about whether or not members of Congress bought off on the program. (Incidentally, the appeal to Congressional approval is precisely what BushCo was attempting with their March 10 pre-hospital briefing to Congress, and undoubtedly the reason Bush had Gonzales makes notes of the meeting after the fact–this was a pattern for these guys.)

Zelikow doesn’t say it (in fact, in his statement, he claims that members of Congress from both parties are responsible), but his desciption of the way Congressional briefings should work, and his description of how BushCo made claims about Congressional approval that may not be true, show how false the Republicans appeals to Congressional briefings is. Philip Zelikow explains how briefing Congress is supposed to work, but all the available evidence shows that’s not what happened. Rather than briefing Congress to get even the appearance of Congressional consultation, BushCo was briefing Congress to help win bureaucratic battles within the Administration. 

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101 replies
  1. Hmmm says:

    Not briefing Ds is evidence of criminal intent; per bmaz suppression and collection of the Zelikow memo is evidence of criminal intent. Any questions?

  2. klynn says:

    And the argument would often be deployed against me and my colleagues, that, well, we briefed the following members of Congress — name, name, name, name, name — and they don’t have a problem with it.

    I have a problem that Zelikow took someone’s word on this? At his level, his training and his own practice of writing letters and memos to document his legal concerns to superiors and peers, why did he not ask for written documentation of their support of the policy or specific documentation of the briefings?

    He just took their word? Really?

    If so, then his memos come off as CYA only.

  3. phred says:

    BushCo wielded classification as a weapon, walling their opponents off from each other to prevent a united front that could thwart their plans. It was gratifying to hear Zelikow acknowledge their use of this divide and conquer technique.

  4. JimWhite says:

    It’s nice that there is also push-back on the notifications used in today’s NYTimes:

    The C.I.A. is prohibited by law from conducting covert action activities without express presidential approval — and this is not a requirement that the agency takes lightly. The National Security Act also requires that when the president approves a covert action program the two Congressional intelligence committees shall be “notified.” The committees do not have disapproval power, nor can they force changes at that time. But the law does require the executive branch to provide timely, written notice to the full committees — which together consist of fewer than 40 members — of the plans.

    It is unlawful for the executive branch to limit notification, as it did here, to the Gang of Four. There is no such entity recognized in the National Security Act. Federal law does provide, however, for notification of fewer lawmakers than the full intelligence committees, but only when “extraordinary circumstances affecting vital interests of the United States” are at stake. Under those very limited situations, the notification may be to the “Gang of Eight,” which includes the majority and minority leadership of the House and Senate, in addition to the intelligence committee leaders.

    It should be noted that there is a legal argument that the interrogation program was merely foreign intelligence “collection,” and not “covert action” at all, because it was used to elicit information that already existed in the minds of the detainees. In that case, there is no exception in the law for Gangs of Four or Eight, and every member of the two committees should have been notified.

    Writer: Vicki Divoll, a former deputy counsel to the C.I.A. Counterterrorist Center, was the general counsel of the Senate Intelligence Committee from 2001 to 2003. She teaches government at the United States Naval Academy.

    It’s interesting that this would appear on the same page with the announcement of your prize; you’ve already covered this ground previously. Still, it’s nice for this point to get some well-deserved attention.

    This all still plays into Graham’s epic fail on claiming that there could be no criminal intent because the administration was so careful to brief the other side. The reality is that their briefing failures were just another of their many criminal acts.

    • Mary says:

      It is unlawful for the executive branch to limit notification, as it did here, to the Gang of Four. There is no such entity recognized in the National Security Act

      Good for the NYT for finally putting something up on this, but damn, the blogs have hammered this point forever and the MSM never even asks any questions on it in the many times the issues come up. NYT should look at it’s own stories (many of which have made me nuts as they came out) that uncritically talks about briefing of the Gang of 4 as if that was somehow an ok thing to do.

      • Nell says:

        Even this, welcome as it is, is an op ed rather than the result of reporting. But maybe once it’s out there it will finally form the basis of questions and follow-up questions by someone determined to commit journalism. (’Finally‘ because you’ve only been raising these questions here for, oh, three years? Four?

  5. oldtree says:

    Mr. Z knows something about an issue that was brought up on that testimony and is now parsing his involvement. From the statement, it sounds as though he is lying about his knowledge of the congress briefings. He is desperate for a loophole that is going to let him off the hook, and at the same time, terrified someone is going to ask about his superiors involvement, orders to him, and that he suddenly becomes a willing participant based on this info. What is it that he squirms over?

  6. sojourner says:

    Marcy, my memory fails me, but I remember a long time ago that we speculated that there had been separate briefings with slightly different content. I suspect that it was when the torture issue was just coming to light, and Dianne Feinstein had asserted that she was not told of the waterboarding, etc. It probably is inconsequential at this point…

    I have this image of 4th Branch still scrambling to keep all the compartments in place to prevent all the information from forming a critical mass — but somehow I don’t think he can. Maybe all his TV appearances and comments are designed to try to keep his cells in line or something. Regardless, I think he is very afraid of what is coming down the pike.

  7. TheraP says:

    More and more roads leading to War Crimes.

    Superb reporting today, EW! And on a very special day as well. You deserve all the recognition you’ve received – and more.

    • LabDancer says:

      I echo your sentiment, and add that ms ew is to be commended for picking out and tacking hard towards a true harbor [Jim White’s citing today’s NYT op-ed above, as he implies, fits perfectly]. But at the same time, I’ve got doubts as to this characterization of Zelikow. In no particular order:

      [1] His using the term “it appears” is at least too ambivalent to be concluded as a ‘tell’. The relevant and analogous legal phrase — and Zelikow, despite now serving in the role of academic and historian, is, and was during the time material to his relevant fact testimony, regardless of the duties attendant to his role at State, a lawyer — is ‘justice must be seen to be done’; itself part of the larger maxim to the effect that justice must not only be done but seen to be done’.

      [2] As far as I could tell, nothing else in Zelikow’s testimony was inconsistent with the above taked, and to the point, nothing else in that suggested he was implying only technical compliance. I do grant the possibility that Zelikow was intending to convey a narrow ironic pun in his choice of words, i.e. that though technically correct, they also conveyed the limited legal formality of the exercise.

      [3] Despite what might be made from the stories on Zelikow’s having a checkered executive role in the work of the 9/11 Commission, he appears to have been a straight shooter on the subject matter of this hearing. [Indeed, I note that the conclusion from your post with the long comment thread on whether Zelikow meant he wrote one memo or two is being resolved nicely towards that option we all settled on, and based on his own words and phrases at that.]

      [4] The one point you strike hardest at is the discrepancy between the SSCI memo that Senator Rockefeller facilitated [I’ve presumed to grant him a partial jello-ectomy in this.] and that wierd piece of legerdeplume that Crazy Pete weasled out of the CIA. But again: Zelikow’s choice of words is open to a more ‘innocent’ interpretation, itself consistent with his pretty obvious caution in choosing words and as well the possible existence of a particular type of dry — arid — humor wrapped up in the sort of academic-wank tank-consulting world of which he’s a creature [I expect not just others here, but you yourself, are well familiar with that world.]

      [5] Two of the impressions I drew from his testimony today were that Zelikow, in this like Soufan, would have been perfectly content to go on longer were he given the room — yet unlike the typical member-in-good-standing of the renazification movement [Miz babydick, for example] he was not at all prone to recycling talking points or shutting down dialogue. [I don’t mean to suggest he came without an unstated side agenda; there remains the question of his routine insertion of Condi into the products of his suggested better nature, for example; and of course the matter of his own phony-baloney career xref: Blazing Saddles; but still …].

      [6] I think it’s worth noting that it appears he abandoned the Good Ship Torture Presidency pretty damned quickly following the events he’s described.

      Again, I don’t mean for this observation or any part of it to discourage you from continuing on your tack: I’m with you Cap’n ew; aye, all the way.

      • emptywheel says:

        Oh, I agree he’s a pretty straight shooter here, and lawyerly cautious. Mostly I think he’s got some dawning cognitive dissonance he’s dealing with, on top of very understandable caution.

      • Mary says:

        And you have to have some level of sympathy with the fact that he appears to have been tight with Bellinger and Rice and he knows that, even as he tries to build them, esp Bellinger, up, any black and white statements damn them individually as well as the people he sees as much more culpable.

        It’s a hard thing to stake out territory that puts your friends in peril.

  8. MadDog says:

    May I quote our latest “Democrat” on May 26, 2006 on Congressional Notification? Why, sure!

    Mr. SPECTER. Mr. President, I voted against General Hayden for the
    position of Director of Central Intelligence as a protest vote against
    the administration’s policy of not informing the Congress, with special
    emphasis on the Judiciary Committee, in a way which enables the
    Congress and the Judiciary Committee to do our constitutional job on
    oversight. I have no quarrel with General Hayden…

    …The administration has not complied with the National Security Act of
    1947, which requires notification of all members of the Intelligence
    Committee. That was only done in the few days prior to the confirmation
    hearings on General Hayden. In fact, the administration for years
    notified only the so-called Gang of 8, the majority and minority
    leaders of the House and Senate, and the chairmen, vice chairman, and
    ranking members of the Intelligence Committees. Just because that had
    been the practice, it is not justification for violating the express
    language of the National Security Act of 1947, which requires
    notification of all members of the Intelligence Committees.

    During the 104th Congress, I chaired the Intelligence Committee, and
    for that period of time I was a member of the so-called Gang of 8.
    Candidly, I don’t think the administration told the Gang of 8 very
    much about what went on.

    Be that as it may, admittedly the administration did not tell anybody
    but the Gang of 8 about their electronic surveillance program until it
    was disclosed by the New York Times on December 16 and the Judiciary
    Committee brought in the Attorney General and had pressed on in a
    series of hearings; then, belatedly, a subcommittee was formed in the
    Intelligence Committee and seven additional members were informed.
    Then, at first, the House resisted to having only part of their
    Intelligence Committee informed, but, finally, 11 Members of the House
    were informed. Then, in the wake of the Hayden nomination, the
    administration finally complied with the Act by informing all of the
    members of the Intelligence Committee–I think, plainly, so that they
    could get General Hayden confirmed…

    (My Bold)

    A point for all these Congresscritters:

    If you write laws that require the Executive branch to do something, it might be helpful to include penalties if they don’t.

    Just sayin’!

    • bmaz says:

      MD the only enforcement mechanisms available to Congress over the Executive WERE available contempt and impeachment. Congress refused to avail themselves, but the mechanisms were there.

      • MadDog says:

        And that is why I suggested our Congresscritters think again.

        Whether they lack the political courage or numbers to do things like contempt or impeachment, if they think outside the box, they ultimately have far more weapons that they can bring to bear.

        Stuff that could be included in legislation to happen automatically unless a majority of Congress votes to relent in imposing said automatic penalities.

        For example, Congress could make an automatic penalty of Congressionally-forced removal from office (firing/impeachment) of an Intelligence Community head (CIA, DNI, NSA, etc.) unless a majority of Congress votes to relent in imposing such an automatic penality.

        Instead of requiring Congressional political courage or numbers to do things like contempt or impeachment, make the actions that require political courage or numbers, the reverse of firing/impeachment.

        Change the rules! If one fails to observe laws/statutes, require a “vote-of-confidence” to keep your job.

        The primary point I raise is that Congress is not without the power to change how things are done.

        Of course, if they lack the courage…*g*

    • Mary says:

      If you write laws that require the Executive branch to do something, it might be helpful to include penalties if they don’t.

      Would have helped with the DTA as well, eh? You have to treat detainees “humanely” but ooopsie, no penalties if you don’t.

      • MadDog says:

        Yeah, all this feckless handwringing by Congresscritters that “we can’t/couldn’t do anything” is pure, unadulterated BS!

        It’s kind of like hearing a board member of a corporation whining that they couldn’t do anything to stop the CEO from running the corporation into the ground.

        It is never a failure of ability; instead it seems always to be a failure of willingness.

  9. radiofreewill says:

    Waterboarding is Torture and a War Crime.

    Bush used AG Ashcroft’s Verbal OK, and Twisted Legal Memos from his own Lawyers, to Waterboard Zubaydah 83 times, on film, in August 2002 – before even beginning to Brief Congress in September.

    Ergo – Bush, et al committed 83 Counts of Statutory Torture and War Crimes *on his own*.

    The only Real Question now is – Who was Complicit, who had Guilty Knowledge, and Colluded with Bush in the Torture and War Crimes – After the Fact? Who Else shares Responsibility in Bush’s Torture and War Crimes?

    Our Dems are holding the line on Non-Complicity with Bush’s Torture. Nancy and Jane, Bob and Jello Jay – didn’t know, dissented, didn’t know, and asked for clarification, respectively. When it became clearer that Bush had Tortured, on his own, the record shows that the Dems Moved to Unify in Opposition.

    The Goopers who were briefed, otoh, Roberts, Goss, Crazy Pete, Shelby and a host of others, appear to have Gotten Tagged with the Knowledge of Bush’s Torture That They Can’t Now Deny: Bush Waterboarded Zubaydah – Torture and a War Crime – before he told Congress, or them, about it. And, when the Goopers found out about it, it appears they Enthusiastically Went Along With It!

    So, the Occam’s Razor Answer – as EW says – in this situation would appear to be:

    – Bush, Cheney and others Committed Torture and War Crimes, on their own, without informing Congress. (Bush Guilty – Congress Exonerated)

    – After the Fact, Bush and Cheney kept the Dems in the Dark until the 2004 CIA IG Report. (Bush Guilty – Dems Exculpated)

    – After the Fact, Bush and Cheney fully inform the Goopers they Waterboarded (Torture and a War Crime), and that it’s Legal, Safe and Effective. (Bush Guilty – Goopers Guilty)

    So, at least as we see it now, the Optics say that Bush the Monster, his Cabal, and his Shameless Gooper ‘leadersheep’ Enablers, are Complicit in a Criminal Enterprise to Evade Accountability for Their Own Torture and War Crimes.

    Bush’s Fantasy was/is that He’s Above the Law. The Goopers’ Fallacy was that they Believed Him Unquestioningly – and got Judgeships, Millions for ‘Contract Compliance’ Payola Work, Tax Breaks for the Wealthy, partisan prosecutions of Democrats, botched prosecutions of Republicans, MegaPork, Immunity for Loyalty, De-Regulation of Wall Street, and on and on.

    Once someone knows You’re Complicit in Torture – and has the goods on You to prove it – You’ll Vote Any Way You’re Told To.

    Isn’t Republican Complicity in Torture like the Key that smoothly aligns and opens the tumblers of Bush’s Secrecy?

    • MrWhy says:

      I don’t think Zelikow was lying. I think he was trying to avoid saying that BushCo briefed Republicans more thoroughly than they briefed Democrats.

      • Dalybean says:

        I wasn’t really saying that Zelikow was lying. What he did say was picked up as inaccurate by Marcy immediately. In an earlier thread I had wondered if Zelikow stressing the importance of timelines was a tribute to Marcy’s timeline work in addition to her award today. When I read this post, I knew that Zelikow has not been paying enough attention to Marcy’s work or he would have known she would catch his vagueness and publish it, as she does here.

    • Mary says:

      And even that pale next to him making it clear that he really is ready to pressure Britain with threats of leaving Brits and Americans in British areas open to death by terrorist attack unless the Brits help cover up the Bush crimes.

      http://washingtontimes.com/new…..ith-brits/

      The Obama administration’s in writing position to the Brits:

      “If it is determined that [her majesty’s government] is unable to protect information we provide to it, even if that inability is caused by your judicial system, we will necessarily have to review with the greatest care the sensitivity of information we can provide in the future.”

      SOB.

      • skdadl says:

        That horrible letter has to be a collaboration between Miliband and Clinton, don’t you think? Miliband tells Clinton what he really really needs, given the anger over there about more and more news of MI5/6 complicity in proxy interrogations, and Clinton just says ok? That’s sort of how I’m reading it for now.

        Me, I’m betting on the High Court judges. They were eloquently annoyed in February, and I doubt that all that has followed has improved their tempers much.

        • Mary says:

          I’d like to bet on the judges, but since a part of the “foreign country” info involves Pakistan and another part Morocco and one is on the verge of disintegration with Nukes, and the other is only marginally better but does have the benefit of being nukeless, however, is ripe for an anniversary-attack.

          So I guess we’ll have to see. But it sure does beg the question, then, on how truthful Miliband was with parliament when he said, shucks no, Obama wouldn’t quit sharing info with us.

          And is anyone issuing any bulletins to Americans, btw, that if they are planning on visiting England, keep in mind that their President might withhold necessary intel info that would help keep them safe if he gets his knickers in a twist that the Brits didn’t destroy their legal system to oblige him on Bushco coverups?

          stillsearchingfortherightfont

  10. Mary says:

    What should have existed at the time of the first briefing to Pelosi and Goss should have been:

    a) a presidential finding or directive as per the NSA (and the existence and content of which would go a long way towards clearing up the likely nature of the briefings on EITs, since if the directive is shared and it gives current authorization or only authorizations after Presidential review and order, etc. that is worthwhile info)
    b) per Zelikow the notification that would reference the existence and/or the abbreviated or full content description of such a directive or finding, and
    c) again per the NSA a presidential statement referring to why less than the full committees are receiving the briefing (I’m not sure if b is an independent item or if Zelikow is referring to the procedural approach and form they take to fulfilling their NSA duties in respect of c).

    These are the kinds of things the press and Congress should be pushing to get answers for and production on. Did they exist, were they given, if not why not, if not why did no one in Congress ask for them, does anyone read the NSA, etc.

    Cummings, supposedly one of the staffers briefed on torture, went on to write this CRS report on Presidnential duties to keep Congress informed and drops this footnote:

    Common practice by the executive branch in informing the intelligence committees about intelligence activities, other than Gang of Eight notifications, has been to communicate such information to the chairmen and ranking members of the two committees, often in writing. Such communications then generally are made available to the rest of the committee membership, and follow-up briefings by the executive branch are scheduled when determined to be necessary.

    So what existed to tell the ranking members of the two committees that they shouldn’t follow this standard procedure and communicate on to the rest of the committee membership (or even to the full gang of 8)?

    • Rayne says:

      There’s something else missing, though.

      The Bush administration chose to vacate international treaty/ies. That’s not an intelligence matter, it’s reversing a decision already affirmed by the advice and consent of the Senate.

      It also happened after they’d begun to render people in contravention of the Geneva Conventions and abused other treaties on trans-border air travel, again in contravention to affirmations of the Senate.

      Ethically, there should have been a much larger dialogue with Congress beyond the less-than-Gang-of-Eight regarding these “modifications” of treaties. There was no substantive “change in circumstances” which would warrant a unilateral withdrawal from the treaty. Granted, the Bush administration would probably rely on Goldwater v. Carter to claim the president’s authority to withdraw from signed treaties, and they’d probably try to claim that the 9/11 attack was a “change in circumstances.” But terrorism existed before 9/11, as in the case of the earlier WTC attack, and the treaty was still signed by Clinton.

      The bigger problem is that these assholes have done this before; it’s a sign of bad faith. Remember that Reagan exited the jurisdiction of the International Court of Justice before he requested more money from Congress for the Contras in Nicaragua — same thing, a treaty was “un-signed” in order to accommodate behavior which was illegal under both international and U.S. law.

      These guys have done this before, under Reagan; it’s bad faith.

      Disclaimer: IANAL – YMMV.

  11. Mary says:

    A bit more from the CRS report by Cummings, which was the one that Harman wanted vis a vis the failure to notify the intel committees on the domestic surveillance program, but which is interesting for how it lays out the “typical” procedure and given that it comes from someone supposedly involved in EIT briefings that did not follow the statute, involving, as they did, the briefing of staffers when even the full Gang of 8 was not briefed.

    With respect to covert actions only, if the President makes a finding that he must notify less than the full committees “to meet extraordinary circumstances affecting vital interests of the United States” then the procedure is that:

    the President is authorized to limit reporting of such a covert action finding to the chairmen and ranking members of the congressional intelligence committees, the House and Senate majority and minority leaders,and any other member or members of the congressional leadership that the President may designate. This covert action finding notification procedure is sometimes referred to as a “Gang of Eight” notification, because such a notification usually involves the notification of eight Members of Congress

    What about that “gang of 4″ notification process? Or the “bits and pieces of the gang of 4 spread out over a few years and intermingled with staffers” notice?

    Not much statutory authority for that.

    • LabDancer says:

      Did you note that in yesterday’s stop on the Torturewhistlestop Tour, Papadick threw in front of one of maitre d’Hannity the phrase “the Big 9″. Whattayamaka that?

      • Mary says:

        I didn’t see that. Tongue in cheek I’d tend to say the Gang of 8 and Rush. Or Gang of 8 and top corporate fundraiser in Congress. Less in cheek, I guess Gang of 8 and VP?

        • bmaz says:

          OH MARY…… http://news.yahoo.com/s/politi…..tico/22488

          James B. Comey Jr., the top Bush administration official who rebelled against plans for domestic eavesdropping, is being pushed by some White House officials for inclusion on the short list of candidates to replace Supreme Court Justice David Souter, Democratic sources said.

          President Barack Obama’s aides have narrowed the list of possibilities considerably, but more than a dozen candidates remain under formal consideration, the sources said.

          Comey, a former federal prosecutor and deputy attorney general, is the sort of unconventional choice – someone who’s not a federal appeals court judge – that key senators and some administration officials have been urging the president to consider.

          • Mary says:

            Oh good lord.

            I guess with the qualifications of the Higazy cover up, the Arar cover up, the USA firing rush to the forefront as a white knight for personal friends, and the assistance in keeping the Bush presidency around after what he found out in 2004, he’s pretty much what the Obama who is threatening Britain is looking for.

            I’d give it 50/50 at least that Obama might pull something like that. Hey, here’s a better one – Fran Fragos Thompson. She’d give Snow and Collins the woman they want, she was tight with Reno as well as Bush, and the fact that the FISCt kicked her out for fibifying isn’t a drawback for a nation whose Republican and Democratic parties and President have elected “SEXual degredation, LIES to Congress, the courts and the American people, AND destruction of VIDEOTAPES and other evidence.

            I guess we could dispense with Congress and just shoot another Spader flick.

          • emptywheel says:

            Glad you broke it to her not-gently there, bmaz.

            Though note the writer (Allen). I’d be really surprised if Obama picked an ultra conservative white catholic guy over any number of women who are just as qualified and–like Obama, moderates. So I’m reading it as GOP spin.

          • Mary says:

            BTW – what the hell kind of situation does Obama think he’s putting the judge who has to rule on the ACLU request in with his public statements which in essence say that the Judge is going to be killing US soldiers if he releases the pictures. I can’t find the font I’m looking for to include another: SOB.

            • Nell says:

              Neither Glenn G. nor TPMers have touched on the reason I think Obama flip-flopped on the torture images: to avoid having the resulting public revulsion re-raise questions that might gum up confirmation hearings for Lt.Gen. Stanley McChrystal, commander of the torture task forces in Iraq from September 2003 until last year.

              He’s already had Levin, late last year, hold up confirmation hearings for his last posting because of the history of the torture under his command –but a private chat with the Armed Services Committee seems to have given everyone the cover they sought. Hearings on his plans for the Afghan morass in the middle of another vivid spasm of torture outcry…

              • bmaz says:

                They have another burr in the saddle on McChrystal

                The parents of slain Army Ranger and NFL star Pat Tillman voiced concerns Tuesday that the general who played a role in mischaracterizing his death could be put in charge of military operations in Afghanistan.

                In a brief interview with the Associated Press, Pat Tillman Sr. accused Lt. Gen. Stanley McChrystal of covering up the circumstances of the 2004 slaying.

                “I do believe that guy participated in a falsified homicide investigation,” Pat Tillman Sr. said.

                Separately, Mary Tillman called it “imperative” that McChrystal’s record be carefully considered before he is confirmed.

                • bobschacht says:

                  I like the fact that McChrystal needs to be confirmed. Unfortunately, the Tillmans have two Republican Senators.

                  And while we’re talking about confirmations, why is so-called Majority Leader Reid talking down Dawn Johnsen’s chances of confirmation? Christy was beating the drums on this the other day. Can we rally the troops on this?

                  Bob in HI

              • Mary says:

                I think that could be very likely. Especially since Obama’s tactics are likely to result in increased deaths of US soldiers (Maddow had a good segment up last night on this. So this way he avoids the blame that those deaths are bc of his relase of photos. And conveniently plants that responsibility with a Judge.

                What they won’t say flat out is that they don’t give a rats ass about Afghanistan, but they want troops as near to Pakistan as possible with the ability to operate in Pakistan bc of the threat levels there. So even though we haven’t “declared war on” Pakistan either, he wants some of McChrystal’s NAMA goons and experience right there ready for cross border ops.

                I hope the Tilmans raise a huge stink. The Dems in Congress should have shown some miniscule interest in doing something to help those poor people get to the bottom of that morass, but instead they are too busy being Republicans.

                • TheraP says:

                  The Tilmans have sympathy on their side. I think they made a serious miscalculation with regard to that.

              • Nell says:

                David Kurtz brushes up against the thought without quite getting to it, probably because TPM is being deferential enough to Obama’s pick and Afghan approach to describe McChrystal as “a new commander in Afghanistan who is steeped in counterinsurgency doctrine and devoted considerable resources and political capital to a new strategy there” rather than my equally accurate description above.

              • phred says:

                Thanks for mentioning that — I’ve been wondering if the about face was all about McChrystal’s promotion. Not that that makes anything better. Makes things a lot worse actually…

              • emptywheel says:

                Nor have I–though it was a question I had. At the very least, they’re protecting middle ranks from paying a price for the abuse that happened under their command.

          • MadDog says:

            Jiminy Crickets!

            While I do appreciate Comey manning the hospital bed barricades, that doesn’t excuse stuff like Padilla, etc.

            Wtf are these anonymous Democratic Senators and Administration officials thinking of?

            Yes, Comey is further to the left than Rushbo, but that doesn’t make him a fookin’ liberal.

  12. Nell says:

    While there are still four to seven hours in the day, let me congratulate Marcy for a richly deserved honor, and urge any readers who haven’t done so and can to contribute to the fundraiser.

    Thanks so much for all your work, Marcy, and for your down-to-earth-ness while sharing it with us.

  13. Mary says:

    Aww- looky.

    Harry Reid who was really wanting Miers on the court has also decided that, even though he hasn’t seen them (what, no briefing Mr. Senate Maj Leader?) Obama is right right right about the pictures.

    http://www.huffingtonpost.com/…..03200.html

    “We’ve had quite a few pictures. I’m not sure we need anymore,” he said in response to a question from the Huffington Post in the hallway off the Senate floor.

    DiFi goes further – releasing the pics wouldn’t require that Congress get off its duff and do something, or refute the record Congress has helped create about the “few bad apples” at Abu Ghraib – instead, you only would release the pics if you worship enormous catclysms

    “I don’t know what the point of releasing them would be, other than to have an enormous cataclysmic reaction. We saw the Abu Ghraib photographs,” she said.

    I’m glad she still has enormity in her working vocabulary – I just wish she’d apply it to the concept of letting torturers walk off scott free.

    • LabDancer says:

      We’ll see the pictures soon enough — when cert is denied; or shortly after the government appeal fails for absence of fact to support reversible error; or just as soon as they’re marked as exhibits at trial.

    • TheraP says:

      This “few bad apples” thing is getting old! That lays the blame on the troops. If their plan is to keep the troops safe, that strategy is a losing one. They need to step up to the plate and appoint a Special Prosecutor.

      Speaking of plates to step up to…. Please step up! I confess I’ve done so twice. Today is a good day to step up!

    • phred says:

      Yet another example of why I have no confidence at all in the SSCI investigation (no matter how nice Sen. Whitehouse was to her about it this morning).

  14. Rayne says:

    Um, a specific legal theory written or requested by the same stellar wits who used Yoo and Bradbury?

    Okay…ri-ight.

  15. MadDog says:

    Zelikow now on Rachel.

    He just stated that the Bush/Cheney Administration (my paraphrase), in response to his arguments against the torture policies, would tell him that Congresscritters were notified, including members of both parties, that they had no problem with the torture policies, so why is Zelikow objecting? (My Bold)

    Again, Zelikow said that the Bush/Cheney Administration claimed they notified members of both parties.

    I wish Rachel had followed up with a question as to just who in the Bush/Cheney Administration made these statements.

    • phred says:

      Yeah Zelikow whipped out the mantra that the Dems were briefed (based on the CIA briefings doc) as fast as he could. I wish Rachel had busted his chops on that. I also wish she had asked who had made the “request through informal channels” to destroy the memo that Z testified to this morning. Alas, another question goes unasked…

    • Leen says:

      During Zellikow’s last appearance on Rachel’s my sense was that he was attempting to not only provide cover for himself and Condi but for Bush, Cheney, Addington, Yoo, etc.
      http://emptywheel.firedoglake……yed-memos/

      Zellikow “unchartered waters”
      “murky area of the law”
      (“I’m just one point of view”
      “of course just offering my opinion”
      “perfectly entitled to hear an alternative opinion”
      “they weren’t commiting an obstruction of justice by trying to destroy copies of the memos”

      Zellikow “I don’t know why they wanted to do it”

      “all it shows is that they were presented with an argument that says your interpretation of the law appears to this one fellow to be unsound”
      ————————————————————————

      Will we ever find out what Soufan was attempting to say when he was interrupted three times by Lindsay “I support International treaties” except when it comes to the U.S. Graham. Then Soufan was interrupted again by Whitehouse because he had to get in his shtick before he rushed off to catch a plane.

      Don’t get me wrong I hang onto everything Whitehouse says and sounds like he actually believes. But is that business as usual to keep reminding everyone that he has a plane to catch and we need to wrap it up? Seems like he could have set some time between the first hearing and his next appointment

      • readerOfTeaLeaves says:

        But is that business as usual to keep reminding everyone that he has a plane to catch and we need to wrap it up? Seems like he could have set some time between the first hearing and his next appointment

        Good point; there should have been more ‘give’ in Whitehouse’s schedule, but OTOH if he’d walked out with no explanation that would not have been acceptable.

        The good news is that from what I can tell catching up, this hearing was really a stunner.
        And a first step.

  16. freepatriot says:

    this is off topic, but I gotta know

    is it true that Barack Obama is claiming that he is refusing to release the photos of torture because he wants to protect the victims of the torture ???

    is he really that much of a lowlife scum sucking bastard ???

    cuz if that’s true, he better get a grip, REAL QUICK

    Barack Obama can’t make this stuff go away

    ha CAN smear this shit all over HIMSELF

    please tell me this isn’t true

    • Hmmm says:

      Oh sure, now you show… (insert wry smiley here, please) Bmaz had to do a little cleanup two floors down on aisle 75. Better now.

      • freepatriot says:

        stuff like that exceeds my authority

        besides, they pay me in stale leftover pizza*, so I ain’t as dedicated to the job as I could be …

        *I thought I was hiring that Drew Rosenhaus guy to negotiate my contract, turns out I hired a guy named DAVE Rosenhaus. He aint as good as Drew, apparently …

    • phred says:

      Oh but the best part is he fell back on W’s argument that this was the dastardly work of a “small number of people”. Uh, right.

      I guess Obama released the OLC memos without reading them or bothering to learn what was in them…

      • hackworth1 says:

        There’s a sayin’ in Texas, Oklahoma too, Fool me Once – Shame On you, Fool me twice…. You don’t get fooled again! – Dubya

  17. spoonful says:

    torture memos nothin – how about this guy’s shenanigans in suppressing critical evidence as director of the faux 9/11 commission.

  18. Hugh says:

    I think anything Philip Zelikow has to say should be taken with a lot of skepticism.

    You have to ask yourself why he only wants to discuss his dissent now.

    How, while he was a close colleague of Rice, her name doesn’t come up in his narrative.

    How much of this is misdirection, a way for him to make this about Congressional notification, a process that Rice really would not be calling the shots on.

    As for Pelosi and the other Democrats, we have already been down this road several times. Pelosi, Jello Jay, and Harman all have been pretty slippery in their stories. I think the Bush Administration didn’t fully inform them of what it was doing and had already done, but that none of them actually tried to break down any doors to find out what was going on and that what efforts they did make were mostly CYA.

    • LabDancer says:

      Conceding the need to be cautious about Zelikow:

      [1] on Olbermann tonight, Senator Whitehouse confirmed Zelikow’s earlier statements and testimony of having written a memo, as one fitting the description had been retrieved from the records of State, and from his reading the expectation said memo seemed likely to be declassified for release; and

      [2] on Maddow tonight, Zelikow described not one, or even two, but at least four, and maybe five memos he claims to have written during the relevant period that pertain to the issue — bearing in mind that he’s shown every capacity to understand what does and does not pertain to the issue.

      [3] Some several posts back, days ago, I speculated, and thereafter emptywheel actually asserted [the basis for which I queried — without response; but she’s been busy fixing the larger historical record]– that Zelikow has been co-operating with the Durham grand jury — and tonight on Maddow we heard him pretty much confirm as much — as well as expand our understanding of the scope of that investigation to include the topic of his efforts as manager of the 9/11 Commission to secure reliable records of detainee interrogations.

      Still, among other things [some noted on posts above this on this same thread], it occurs that a ‘realist’, like Zelikow [taking advantage of his ‘foreign policy’ orientation] would have figured the odds of:

      [a] the return to the White House of a Republican president through the remainder of his career, and
      [b] being painted with the same brush/cooped up in the same pen with those who failed to speak up/come clean,

      and the implications to his career ambitions.

      Still: it does appear his stock is rising to this point.

  19. cinnamonape says:

    This whole hearing today has got me hot under the collar! Specially that slime mold of a creature named Lindsey Graham.

    Here Graham is defending the OLC’s (John Yoo) August 2002 Memorandum that allowed the CIA contractors to place insects that a detainee feared, say a caterpillar, inside the “confinement box”. Yoo approved it as long as the CIA knew the insect was “harmless”…for example a “non-stinging insect”.

    Graham: “Would it be torture to put a spider inside a jail cell [with a detainee] who was afraid of spiders?”
    Luban: “Conceivably”
    Graham: Would you say if we put a spider in the jail cell we were torturing them?”
    Luban: “If we knew that spiders are deadly. An ordinary person…”
    Graham: [cutting him off] “Mr. Addittot has a different view of torture. Do you think he is unethical?”

    I don’t think that Luban actually knew much about the specifics of Yoo’s approval…which was mischaracterized by Graham. The approval was for the right to place a seemingly dangerous insect, say a de-stingered scorpion(s), into the “confinement box”. A box where the detainee could not brush it off or move away from it. Think the rat face-cage in Rm. 1011 in “1984″.

    Now I’ve always wondered about the coincidence of the OLC decision and the only reported use of insects on detainees. No one else interviewed by the IRC has reported them being applied to them.

    But soon after Yoo gave his approval an opportunity arose for their use. On September 12, 2002 Khalid Sheik Mohammed’s children were captured in a raid. According to a report from another detainee who was housed with them and Majid Khan…

    http://en.wikisource.org/wiki/…..27s_father

    Also according to Mohammed, he and Majid were detained in the same place where two of Khalid Sheik Mohammed’s young children, ages about 6 and 8, were held.

    The Pakistani guards told my son that the boys were kept in a separate area upstairs, and were denied food and water by other guards. They were also mentally tortured by having ants or other creatures put on their legs to scare them and get them to say where their father was hiding.

    A six year old and an eight year old starved and having different types of insects placed on them to induce extreme anxiety so they would give up the location of their father. Procedures straight out of the OLC guidelines!

    So Senator Graham? Is placing scorpions (destinged), caterpillars, ants and other insects on children under the age of ten while they can’t brush them off their bodies…is that torture?

    • cinnamonape says:

      This is related to my above post. Yes the following program places volunteers into a confinement space (actually one that would not place the individual in a stress position). The volunteers are told that the insects are harmless (destinged). They are given an opt-out button.

      But maybe someone should tell Lindsey Graham that this is definitely torture. Even the best individuals can’t suffer this for more than a minute…even knowing that the insects are harmless.

      Watch at your own peril.



      • skdadl says:

        I won’t even try to watch, cinnamon; I believe you too well.

        It’s a shame that Luban didn’t catch Graham out on that lie (”cell” for “confinement box/coffin”). I was shouting into my monitor — lot of good that did.

  20. greenbird4751 says:

    I’m pretty much in a permanent emotional ICU these days, and today was HIGH anxiety in DC…but also great JOY for your honor and recognition and $.
    salud! and molto graci. you’re the best.

  21. freepatriot says:

    an ew, by now, you shoulda received the ducats I sent

    jes so ya know

    BEST MONEY I EVER SPENT


    an I sent money to Digby, so that’s sayin a lot …

  22. readerOfTeaLeaves says:

    Will catch up on thread comments later, but wanted to comment that Durbin’s brilliant remarks really hit almost dead center on what I see as a key problem: the people who know are precluded from divulging. Which means they’re basically pawns in the hands of those (like Cheney, like GW Bush) who use that fact to manipulate, disempower, and compromise people in justice, the military, and the Congress.

    Durbin raises a complex, disturbing, and critical issue.
    IMHO, this is a gutsy, profound question-observation.
    I hope it’s followed up, because it surely hits the heart of a very dark nexis of problems.

  23. radiofreewill says:

    I’m going to take a semi-wild-assed guess that the ‘CIA Member Briefings Document’ is actually a Clever Prop in the World’s Biggest and Slowest RICO Case – designed to put the Goopers – and any involved Crooked Politician, really – on the Horns of a Dilemma:

    The Member Briefings Report is cloudy, at best, on Dem Complicity, but it clearly says that the Goopers were given knowledge of a War Crime by Bush – Waterboarding Zubaydah – before Informing Congress.

    So, do the Goopers speak-up and Say they were Complicit back then, or keep quiet and Show that they’re Still Complicit now?

    That’s really the Major Action, imvho, that’s going on in these Hearings. It’s not about the witnesses – What’s really going on is everyone is ‘watching’ the behavior of the Goopers to ’see’ them Willfully Ignoring Bush’s War Crime of Waterboarding Zubaydah, without properly informing Congress beforehand.

    And so, what do We see? Lindsay Graham shows-up to a hearing on Torture with his hands in his pockets, and just whistles his way through the proceedings without even the slightest acknowledgment of Bush’s Obvious Crime.

    That’s interesting information in and of itself.

  24. Lizinbklyn says:

    This hearing was NOT even mentioned in Rupert Murdick’s NEW YORK POST today . .

    Anyone surprised?

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