EFF FOIA Working Thead, Three

Note: EFF has added one more set of documents–from the Civil Division. So if you think you’re done, you might not be, yet.

This will be another working thread on the EFF FOIA Documents–I’ll be focusing on the Office of Legal Counsel documents. Here was the first working thread (National Security Division documents) and the second working thread (Office of Information Policy documents).

The two sets of documents are:

And here’s the Vaughn Indices DOJ earlier submitted on these documents to help you figure out what they said they had.

For more on what’s in the EFF docs, MadDog and Jim White have a bunch of comments on the documents in this thread.

FISC Orders from 2007, 2006, and 2004

Shortly after the Bush Administration worked out a way to do its surveillance program through FISC, House Intelligence Committee staffer started working with Steven Bradbury to get permission for the committee to see the “recent FISA order.” During the negotiations for that, Bash noted that the committee should have been able to see the other FISA orders.

Ben Powell had indicated to me that were supposed to have been granted access to the previous orders/applications (’04 and ’06).

This tells us the program was already working with some FISC approval–presumably solicited after the hospital confrontation in 2004 and after the exposure of the program in 2005.

Steven Bradbury’s NSA email?

I’m not sure, but the email address on page 55 appears to indicate that Steven Bradbury had his own NSA email address.

Bradbury’s Emergency

On March 13, 2007, Steven Bradbury sent a telecom (page 12) a description of the emergency that precipitated Bush’s illegal wiretapping (he doesn’t call it that of course). It starts like this:

On September 11, 2001, the al Qaeda terrorist network launched a set of coordinated attacks along the East Coast of the United States.

Presumably, that was language for a court filing–so we may be able to figure out which telecom it was by checking fillings. First place to check would be Verizon in the Maine Public Utilities case.

More on Foreign/Domestic Surveillance

I’ve been tracking some curious comments about foreign/domestic surveillance. Here’s what DOJ said (page 18) they were trying to do with FISA reform on April 13, 2007.

Adding an additional definition of an agent of a foreign power for non-U.S. persons whom the
Government believes possess significant intelligence information, but whose relationship to a foreign power is unclear.

This proposed change would apply only to non-United States persons in the United States, and collection of information from such an individual would be subject to the approval of the FISA Court.

The reference is significant given the Administration’s insistence on keeping the Lone Wolf in the PATRIOT Act.

SSCI cooperating on bypassing FISA Court

On July 27, 2007, Jack Livingston, a Republican staffer on SSCI claimed (page 28) people on both sides of the aisle wanted to get the FISA Court out of some of the surveillance.

As Louis stated, members on both sides of our committee have expressed a desire to get this out of the FISA court’s jurisdiction.

This was just days before Protect America Act passed.

Specter’s July 30 briefing

As you recall, Arlen Specter kept pushing Alberto Gonzales on his lies about Administration disagreement on “TSP.”

Which is what makes this sequence (page 81 to 82) so interesting.

I’ve attached the statement released by Sen. Spencer after today’s briefing. It conforms to the edits you made to his original.

Thank you for all the work that went into today’s briefing. I think Sen.  Specter was persuaded of the need to change FISA to address the concerns highlighted by the DNI.

I an happy to help coordinate a less detailed but still classified briefing for other Judiciary Committee Members at your earliest convenience.

You’d have no idea what they were talking about–but they were talking about the briefing that Specter demanded to reassure himself that Gonzales had not perjured himself.


I have received a briefing this after noon by the Director of National Intelligence and others from the Administration which included matters relating to whether Attorney General Gonzales testified accurately that there was no disagreement in the Administration about the Terrorist Surveillance Program as public described by the President. Given the difficulty of discussing classified matters in public, I think it is preferable to have a letter addressing that question from the Administration to Senator Leahy and me by noon tomorrow which will be made available to the news media. The Administration has committed to producing such a letter.

As we know, Gonzales was basically parsing carefully, speaking of the artifically named “TSP” as a way to bracket off things like the dragnet collection and data mining of communications. So it’s likely that the briefing was about those data mining activities. If so, though, note that the briefing convinced Specter to expand the authorities available under FISA.

Steny Hoyer’s failure

One of the most remarkable aspects (one I hope to do a post on) is to see the panic surrounding the August 2007 passage of the PAA.

Such as this tidbit (page 120), from August 4, 2007, the day this got pushed through, in response to whether the legislation was going to be voted on that day.

As far as we know it is, but we hear that Hoyer is so angry about not getting his way that he refuses to acknowledge right now that a bill is even going to be brought up. A lot of standing by to stand by …

Steny–and Pelosi–got absolutely skunked on this legislation. Its nice to see the Republicans laughing about badly they skunked Steny. FWIW, before the passage of the FAA in 2008, Steny forced both parties and both committees to meet in his office to try to craft a compromise. It’s interesting to know that that came after he had been skunked earlier in the process.

Wooing the Blue Dogs

Between February 28 and March 6, 2008, DOJ–including Attorney General Michael Mukasey) spent a lot of time individually wooing Blue Dogs for support on their legislation (pages 33 to XX). Those Blue Dogs include:

  • Lincoln Davis (2/28)
  • Earl Pomeroy (2/28)
  • Allen Boyd (2/29)
  • Chet Edwards (2/29)
  • Artur Davis (2/29)
  • Mike Ross (2/29)
  • Jim Marshall (2/29)
  • Chris Carney (3/5)
  • Ike Skelton (3/5)
  • Joe Donnelly (3/5)

This is obviously an attempt to get support from Blue Dogs for the Senate legislation.

It’s not surprising that the calls were made–but it is interesting to see who needed some hand-holding from Michael Mukasey for screwing their party.

69 replies
  1. MadDog says:

    …I’m not sure, but the email adderss on page 55 appears to indicate that Steven Bradbury had his own NSA email address…

    Minor typo “adderss” should be “address”.

    And on the subject of your sentence, I’m guessing that Bradbury didn’t have his own NSA email address (not that he wouldn’t have wanted one *g*).

    First, the email was printed from the email account of Bette Farris (Supervisory Paralegal Office of Legal Counsel Department). She seemed to function as Bradbury’s “executive assistant/secretary”.

    The email looks like a Microsoft Outlook email, and as I said previously “you can set it up to “delegate” access to a person’s email account. Tis quite common in corporate environments.”

    And if it is Microsoft Outlook as I suspect, then the inclusion of the “Bradbury, Steven” text in the 2nd part of the “To:” field is how another Outlook user’s email address looks in Outlook emails.

    The redacted text that follows, along with the “@nsa.gov” indicates to me that they together form a non-Outlook email address for someone else.

    And finally, I’m pretty sure that redacted email account name is for “Vito Potenza” whose name is spelled out on the second half of that page 55.

    Vito’s name shows up in many other documents, and his email address over at NSA is always redacted in a similar fashion.

    • WilliamOckham says:


      I think you are wrong and ew is right. Bradbury has two different email addresses in that email chain. I will include references in a sec.

      [You will appreciate this. I got a new laptop that has HDMI output, so I’m looking at these docs on my Sony 54 inch HDTV].

          • bmaz says:

            Heh heh, I dunno; I was just pimping you. Friend of mine has some capability, not sure whether it is Apple TV or a different device, where it does operate wirelessly, but no clue whether it is hd (is a pretty good picture though on his plasma big screen).

          • klynn says:

            Well, bmaz is almost correct. Macs do HDMI. PowerBooks can too. Wireless? My new Mac can do HDMI wireless but we have the right tools in our house as well as the right TV.

            The reason I bring this up is that it seems to me that in providing a response to EFF’s FOIA request for these Retroactive Immunity lobbying records, the DOJ is inadvertently documenting that Bradbury was in serious violation of the Federal Records Act as regards emails.

            Many of Bradbury’s emails are printed out from Bette Farris’s email account. Where are the Bradbury originals?

            Anyone want to bet whether Bradbury wrote a yet unseen OLC opinion that determined the FRA was an unconstitutional infringement on the powers of the Unitary Executive?

            I think you are on to something MadDog.

            • MadDog says:

              …I think you are on to something MadDog.

              But with the Obama Administration’s “looking forward, not backward” mindset, I’m guessing there ain’t gonna be no FRA violation investigation anytime soon. *g*

              • bobschacht says:

                But with the Obama Administration’s “looking forward, not backward” mindset, I’m guessing there ain’t gonna be no FRA violation investigation anytime soon. *g*

                Nixon was done in, not by some high level congressional investigation, but by an investigation into a second-rate burglary, which left a trail of cookie crumbs that led eventually to the Oval Office.

                All of these little seemingly inconsequential petty offenses need to be investigated for any criminal offenses. We never know which one will free up the log jam. Maybe even a case currently in litigation– such as Al Haramain.

                Would that we had prosecutors with the cajones of Archie Cox and Leon Jaworski. Would that one such (e.g. PatFitz?) would be given a mandate such as Cox and Jaworski had. I want to be proud, once again, of the American Lady Justice, who weighs the scales of justice blindly, without fear or favor.

                Bob in AZ

                • bmaz says:

                  Well, it will not be a criminal investigation into the almost definitive crimes that occurred in al-Haramain, because the statutes of limitation expired with nary a peep last March.

                  • MadDog says:

                    And correct me if I’m wrong, but as far as I know there is no penalty or sanction for violations of the FRA (or for that matter,the PRA).

                    Laws with no teeth. We serfs should be so lucky.

                  • bobschacht says:

                    What I was thinking of was that Al Haramain would show criminal wrongdoing that would expose some on-going activity for which the SOL is not yet expired.

                    Bob in AZ

      • MadDog says:

        I can’t be wrong, I’m MadDog! *g*

        No, seriously, I do think I’m right, but I’ll await your “evidence”.

        Did Bradbury have a second email address? Sure, I guess that’s possible. Perhaps a personal email account on Gmail or some such non-government account.

        Did Bradbury have a NSA email account? Most unlikely, but still possible (in the manner of it is possible that the sun may rise in the West tommorrow *g*).

        I would note that on page 58 that his DOJ email account is not redacted, nor is it on many of the other documents I’ve reviewed.

        Again, I think the redaction EW points to is for Vito Potenza over at the NSA.

      • MadDog says:

        [You will appreciate this. I got a new laptop that has HDMI output, so I’m looking at these docs on my Sony 54 inch HDTV].

        Jiminy crickets! I suppose one has to sit about 10 feet away from a monitor of that size in order to read something. *g*

  2. MadDog says:

    …This will be another working thread on the EFF FOIA Documents–I’ll be focusing on the Office of Legal Counsel documents. My text in this post deals with documents from the Office of Information Policy…

    EW, I think you might have meant to delete that second quoted sentence. It contradicts the first sentence.

  3. emptywheel says:


    Thanks for the two typo corrections–I had just seen the second but didn’t see that adderss thing.

    As to the email, I’m a bit agnostic on it–as I said, I’m not sure. My goal was to get you tech wonks to look at it. But now I have to hear about WO’s HD analysis of these things.

    I guess maybe now I know what to ask Santa for for Christmas? (Though frankly, I’d settle for some functional lights in my office.)

    Though one reason Bradbury might have an NSA email is to have an email on an uber-secure line. Just a random suggestion–but that’s why I wanted you tech wonks to look closely.

    • skdadl says:

      (Though frankly, I’d settle for some functional lights in my office.)

      You have have that problem too? I moved at the end of July, and ever since, one by one, lights have been dying out on me all over the place, first here, then there. And when I open up the innards to replace the bulbs, I discover all kinds of ancient weirdnesses that I can’t fix on my own, different every time. It’s as though the previous owner left a hex on the electrics or something.

    • WilliamOckham says:

      This question gets more and more interesting. I’m going to run off to lunch, but here’s what I’m sure of. The “nsa.gov” address on pg. 55 is not Vito Potenza. There’s not enough room in the redacted space for his name (which Outlook resolved in the email on pg. 52). By the way, did you notice that the email that started the chain that ends on 55 is the same email that starts the chain on pg. 52. The email chain that’s on pg 55-57 bounced around the lawyers offices before hitting the DOJ’s email system. I say that because the positioning of the intermediate messages’ date/timestamps is the way Lotus Notes does it (and impossible in Outlook).

      It’s very hard to tell if that nsa.gov address belongs to Bradbury because there are two alternatives. Either it is Bradbury’s and there should be printed square brackets around the “redacted@nsa.gov” or Bette Farris has an Outlook address entry for somebody that resolved to “redacted@nsa.gov”. The brackets themselves may be redacted. The whole redaction process was very haphazard. Compare the two originating emails and you can see that some stuff was redacted on one that wasn’t on the other.

      More later. This is fascinating (which says something about me, I guess…)

      • MadDog says:

        This question gets more and more interesting. I’m going to run off to lunch, but here’s what I’m sure of. The “nsa.gov” address on pg. 55 is not Vito Potenza. There’s not enough room in the redacted space for his name (which Outlook resolved in the email on pg. 52)…

        By that same logic, there’s not enough room for Steven Bradbury as the redacted name either.

        Unless (in eithers’ case), the redacted name has a shortened version of the owner’s name. Something like sbrad or vpote.

        I do agree that the redacted space is mighty small, and that limits the amount of characters used preceding the “@nsa.gov”.

        I mean, really small. *g* Like, no more than 6 characters. Perhaps even 5 characters if you assume that the “n” in Steven was whited out preceding the redaction.

        And having thought about it some more, I’m coming around to the idea that Bradbury may indeed have had a second official government email address.

        We know for a fact that staffers on the National Security Council were required to use a separate classified email system for their work which was managed by the White House Communications Agency.

        Given the almost paranoid level of strict “need to know” security surrounding the TSP (thanks PapaDick and Consigliere Addington!), (and also remember that even the DOJ’s various investigative components like the IG and OPR complained that only John Yoo at the OLC had been read into the TSP, and even DAG Comey and AG Ashcroft were kept out of the actual details), it might be logical to assume that both Bradbury, as well as Yoo, were allowed into a super-duper, secret email system for their criminal communications.

        • bobschacht says:

          I do agree that the redacted space is mighty small, and that limits the amount of characters used preceding the “@nsa.gov”.

          I mean, really small. *g* Like, no more than 6 characters. Perhaps even 5 characters if you assume that the “n” in Steven was whited out preceding the redaction.

          How about if the space contained not a name, but a function, such as “Chair”?

          Bob in AZ

          • Mary says:

            I was thinking along similar lines – a title. Like maybe a Director, NSA, as dirnsa.

            Re: bypassing FISC on some of the surveillance, I think it might be helpful to consider the overall context.

            The whole concept of agent of a foreign power language (vs, anyone, anywhere) is a big deal issue. The substantive issue was the claim of Executive power and ability to search and seize communications without following Congressional statutes and also without being subject to Judicial oversight. Congress in the past has been very deferential to exercises by the Executive, in part I would guess, under advice from counsel that it are benefits to keeping a court from deciding the exact parameters of Congressional v. Executive power, where Congress acts by legislation in an area involving the President’s powers as chief diplomat and CIC.

            IOW – better to issue vague legislation and avoid conflict than to have a court rule that Congress is not entitled to legislate in an area and its recourse is impeachment. There’s also the issue we have seen presented over and over here, that the Executive owns the prosecution and in a showdown between Congress and the Presidency, the Executive is dealing with prosecutors that are selected by the Executive and could be more faithful to the President even in his criminal acts, than to the law. IOW, Borks (or worse) instead of Richardsons and Ruckelshaus-s. The fact that we saw a different face of DOJ during Watergate doesn’t mean that a situation where the criminals own the prosecutors isn’t pretty inherently a dicey situation.

            So Congress has either enacted legislation – like the NatSecAct requirements of intelligence and gang of 8 briefings and Pre Rec. Act requirements, etc. – and deliberately included no oversight and penalties so that they would not have to face the showdown, or they have put into other legislation caveats assuring that they aren’t trying to step on the Exec’s toes if he is acting in a matter of national security, or they’ve done what they did with FISC to set up a secret court where Exec power assertions can never make their way before a real court. Then they’ve abdicated responsibilities re: impeachment – pretty much setting up a petri dish with everything needed for virii to grow and thrive. But it was in part because of uncertainties involving who has what power in what situation imo.

            So,for example, when warrantless seizure of communications of the White Panthers (Americans in America) was discovered (bc the Nixon DOJ was, shockingly, much more truthful to the courts than the Bush or Obama DOJs have been), DOJ and the Executive predictably invoked national security authority to support the surveillance and said it was further acceptable bc the results were not being used in the court proceedings at issue – even though the parties had been illegally surveilled.

            The Sup Ct and the Executive both acknowledged that the surveillance had not followed the procedures set up in Congressional legislation at the time, but Gov pointed with assurance to the Congressional “opt out” give to the Executive:

            Together with the elaborate surveillance requirements in Title III, there is the following proviso, 18 U.S.C. 2511 (3):

            “Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, [407 U.S. 297, 303] or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.”

            Congress then, as it has now, had attempted to set up legislative boundaries, but then given the Exec power at the Exec’s own discretion to opt in or out of whether those strictures would apply to the Exec.

            The court was not swayed by the Exec’s claim that it was authorized, bc of the Congressional carve out, to act outside of the statutes whenever the President decided – even vis a vis American citizens on American soil – that there was a national security interest. The court also didn’t buy the Exec’s claim that the Congressional opt out language above was full extent of the assertion of Congressional power to legislate whenever the President made a claim of national security. Instead, in a case that was clearly at the heart of FISA legislation, the court said:

            … it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. This would not comport with the sensitivity of the problem involved or with the extraordinary care Congress exercised in drafting other sections of the Act. We therefore think the conclusion inescapable that Congress only intended to make clear that the Act simply did not legislate with respect to national security surveillances

            IOW, not that Congress conferred a legislative mantle on the Pres, but rather that Congress did not act. So what did the court find to be the limits of Presidential authority to act without warrants or legislation in this national security setting? It didn’t make findings:

            Further, the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General’s affidavit in this case states that the surveillances were [407 U.S. 297, 309] “deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government” (emphasis supplied). There is no evidence of any involvement, directly or indirectly, of a foreign power.
            Our present inquiry, though important, is therefore a narrow one. It addresses a question left open by Katz, supra, at 358 n. 23:

            “Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security . . . .”

            emph added.

            The court went on to find that there needed in that domestic situation to be a warrant and used as a part of the rationale: “By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur. ”

            But the agents of foreign power language remained very important, as the Court was careful to limit its opinion: “We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents

            Several cases have come up since then, not reaching the Sup Ct, where the courts have been very deferential as long as the Exec used the buzz words of, not “domestic security” but rather “national security” and “agent of a foreign power.” And Congress went out and drafted legislation around the concept of “agent of a foreign power” and that legislation, FISA, did make a carve out, denying judicial oversight in cases where the AG certified that both ends of the communication were out of the US and involved foreign powers or their agents, other than US citizens.

            That, however, was a far cry from authorizing carte blanche warrantless surviellance where someone is merely in a foreign location as opposed to based on the Presidential national security powers involving enumerations of interests. IOW, if a “claim” that the President was seeking to protect against domestic plots to overthrow of the government weren’t deemed to be sufficient to excuse the warrant requirement, how is it that “cuz the person isn’t in the US” would be a sufficient national security grounds to engage in massive surveillance? Or to sweep up all kinds of US communications in the scenario outlined by EW?

            And that’s what is taking place now. Painted against that backdrop, the decision to eschew the FISC takes on some additional relevance. First, you have numerous activities that are possibly at issue – for example foreign to foreign communications capture where there is not reasonable grounds to believe either party is a foreign power or agent of a foreign power (even under the new, expanded indefinite definition that Congress has provided in leglislative amendments that would seem to make donors to PETA fair game). If you require a court warrant, but the court says: We have no jurisdiction to issue a warrant for foreign to foreign communications not based on probable cause to believe a US crime is being committed and not even based on foreign power relationships – then you have a quandry. A secret court says it can’t authorize something (based on an issue such as jurisdiction) and Congress says you have to get the court’s authorization – that’s a problem.

            Or let’s say you go to the court for authorizations to do sweeps and the court says you have to engage in certain minimizations and the Exec doesn’t want to, or just doesn’t, or the technical aspects of seizure don’t lend themselves readily to the kinds of minimization contemplated, and you again have a problem – a secret court ruling under a statute that cannot be challenged in court bc of the secret nature, and which Congress set up specifically so as not to be able to be subject to real court review, and for which there is no real supervision – all that is pretty much an invitation for the lawyers involved to do what it looks like was done under old FISA and just violate the court’s rulings – there is no viable punishment for that action. I guess they could toss you out, like Townsend, but then you get a different gov gig and a consultant’s berth with FOX or CNN or whomever, but no one takes public action vis a vis your license. The FISC is prohibited from being able to enforce it’s own orders – unless it takes some pretty severe action.

            I’d think that most of the lawyers involved would just as soon cut off that possible avenue by removing the court as much as possible, and Congress might be equally willing to avoid the showdown over whether their legislation is constitutional – or not.

              • WilliamOckham says:

                Nope, you can tell from the preceding message (sent after 10pm on Feb 12) and the succeeding message (sent 7am Feb 13).

                • Peterr says:

                  Just catching up, and I’m not sure what batch of docs you’re looking at.
                  What was the subject of that email?

                  I’m curious, because from Marcy’s Torture Timeline, we learn the following:

                  February 14, 2007: ICRC completes report on 14 High Value Detainees.

                  The ICRC report was addressed to Rizzo, and I suspect that it would be something that Bradbury and others would have been highly anticipating and perhaps had gotten wind that it would be arriving imminently. That might account for his insomnia.

                    • Peterr says:


                      Note that Bradbury is replying to a message sent to him (and Vito) at 10:54 PM. This wasn’t just Bradbury catching up on emails after a long day, but several folks working into the wee hours on something. The message itself doesn’t convey immense urgency (i.e., it doesn’t say “clear your schedule and let’s get together for breakfast!”), but the time of the messages says that this isn’t just ordinary chit chat.

                      The redaction of various recipients (including several lines’ worth in the cc’s) also suggests that this isn’t ordinary. Vito, Steve, and their unnamed pal were keeping several others appraised of their conversation.

          • Mary says:

            And yet no one was around at what, 5 or so pm, to sign off on a FISA application according to the DOJ/NSA testimony to Congress about the *necessary* changes to FISA.

      • MadDog says:

        I’m looking at page 52 of that first OLC document (77 page PDF).

        In the 3rd email of the chain on that page, Vito Potenza is a “To:” addressee and right after his name is a “[redacted]@nsa.gov;” address followed by “Bradbury, Steve” and perhaps some more redaction.

        Again, the redacted portion is mighty small for the entirety of Vito’s name, so I’m again wondering if the NSA uses or only allows a small number of characters for the username in their email addresses.

  4. MadDog says:

    And btw, does anyone else find it “curious” that many of Bradbury’s emails are “discovered” via Bette Farris’s email account?

    The reason I bring this up is that it seems to me that in providing a response to EFF’s FOIA request for these Retroactive Immunity lobbying records, the DOJ is inadvertently documenting that Bradbury was in serious violation of the Federal Records Act as regards emails.

    Many of Bradbury’s emails are printed out from Bette Farris’s email account. Where are the Bradbury originals?

    Anyone want to bet whether Bradbury wrote a yet unseen OLC opinion that determined the FRA was an unconstitutional infringement on the powers of the Unitary Executive?

  5. MadDog says:

    …On July 27, 2007, Jack Livingston, a Republican staffer on SSCI claimed (page 28) people on both sides of the aisle wanted to get the FISA Court out of some of the surveillance…

    Tis a much repeated strategic goal throughout a number of the documents.

    I strongly got the sense that the Executive and Congressional branch players were both desirous of not having this pesky little violation of law come before any fookin’ judicial body charged with determining said breakage of law.

    We all can figure out why the Executive branch felt this way, but no one has yet presented an ethical reason why the Democratic Congresscritters would willingly join the conspiracy to cover up these crimes.

    Self-serving and cynical reasons abound, but not one with any ethical constraints.

    These not be angels!

  6. MadDog says:

    And if Nate Cardozo or any of the other EFF Legal Eagles show up, I’d like to ask them a couple of questions.

    Why was the FOIA request for Retroactive Immunity lobbying records limited to just folks like ODNI and DOJ?

    Why not the EOP, OVP, and NSC as well? It seems to me that the White House denizens would have had to be involved in this effort up to their eyeballs as well.

    And with the wealth of “eop.gov” email addresses included in the released documents, it certainly proves their heavy involvement.

    And why not the NSA and CIA? Both organizations had a dog in this fight, and based on some of the released documents, it sure seems like they had lobbying involvement at some level.

    And lastly, a question for the participants here. Doesn’t it seem strange that we don’t see any high-level DOJ involvement documentation?

    Where was DAG McNulty and his immediate staff? Or acting DAG Morford or DAG Filip?

    And how how about Fredo and Mumbles’ involvement? Or Kyle Sampson?

    One would think that all of these folks had some involvement in greasing the wheels for Retroactive Immunity. They certainly had to have knowledge of the conspiracy, if not active in its direction.

  7. skdadl says:

    O/T: UK High Court slaps Miliband’s hand again.

    I think that we’re just one appeal away from the High Court’s actually publishing those seven paragraphs about CIA–MI5/6 activities. There’s an interesting new detail in this finding, though. One of the passages Miliband has been insisting be suppressed is part of one of the Bybee memos (I think Bybee Two, but please correct if I’m guessing wrong):

    They [the High Court judges] revealed that one passage the foreign secretary had now agreed could be disclosed referred to a memo from Jay Bybee, US assistant attorney general, to John Rizzo, acting CIA general counsel, which, the judges said, “made clear that the techniques described were those employed against Mr Zubaydah, alleged to be a high-ranking member of al Qaida.” The judges said the remainder of the paragraph, which remains redacted from public versions of their rulings, was a “verbatim quote” from a memo made public in the US seven months ago.

    The Bybee memo was written in 2002, the year Mohamed was arrested. It sought to justify as legal, and not regarded as torture, such treatment meted out to Abu Zubaydah as temperature extremes, music played at debilitating volumes, and sexual humiliation. Zubaydah was also subjected to beatings, isolation, wall standing, continuous cramped confinement, sleep deprivation, and waterboarding.

    The judges yesterday appeared to invite a comparison between the treatment of Zubaydah and Mohamed. They referred to another piece of evidence Miliband wanted kept secret which, they said, was “consistent with the publication of the CIA interrogation technique memoranda”.

    It was necessary to stand back and ask “whether President Obama would curtail the supply of information to the United States’ oldest ally when what was put into the public domain was not intelligence”.

    The judges added: “It is difficult … to see any grounds for rejecting the submission of Mr Mohamed, the UK media and the international media that there is no evidence of any real risk of serious harm to the national security of the UK.”

    • fatster says:

      Promising news, skdadl. Any idea of when more might be expected from your High Court judges on these matters?

  8. lawordisorder says:

    Here at the coffeemaker were again handing out some a little bit stronger than coffee..as we celebrate…The how and the when…you all will know in due time…so give us some trash talk (is that how the Yank Rebel(to us redcoats) spell it) BTW would appriciate a FOOOKING beginner manual on the game of FOOTBALL…….

    Lets just say that the enemy is on the run and were in the bisnez of winning wars as to putting out fire….big mojo to small soldiers….and as usual not in the way you would imagine.

    Just my five cents worth

  9. MadDog says:

    I would note that the Civil Division document (32 page PDF) has a bunch of emails from a “Tony Coppolino”. And in the driver’s seat no less!

    If that name sounds familiar to folks here, it’s because Tony is the chief DOJ litigator on all the EFF warrantless wiretapping litigation like Al Haramain v. Bush, Jewel v. NSA, and Shubert v Bush.

    And another thing about the Civil Division document.

    Note that almost everything is redacted. Not only the contents of almost all the emails, but also the very subject line of the emails.

    Something tells me that EFF ought to push back hard on this particular document as being unreasonable and mighty dang (in honor of our Alaskan Princess Sarah *g*) non-responsive.

  10. rosalind says:

    apologies for the OT: for any of the legal beagles re. Jay Bybee’s Legal Defense Fund – the fund’s home page says he’s soliciting money to help:

    pay costs and expenses he is incurring or may incur in connection with claims, investigations or proceedings relating to his service as Assistant Attorney General for the Office Legal Counsel in the U.S. Department of Justice or his service on the U.S. Court of Appeals for the Ninth Circuit.

    (emphasis mine)

    However, the Declaration of Trust only seems to discuss raising funds for his OLC stuff. Why would he need to be raising money for anything related to his 9th Circuit judgeship?

    • bmaz says:

      Well, of all the possible bad law that could be made out of the Fed trials of KSM et. al, the two he focuses on – venue and speedy trial – are two that don’t particularly bother me. Our endless detention program may suck and be immoral, and illegal under international and US law, but speedy trial does not accrue until charges are filed in Federal court, and that is just the way it is. So long as the court proceeds according once charged, and it will – it is easy to exclude time if the interest of justice so demand – there just is not much of a real speedy trial issue in the common understanding of it. And I do not think the venue consideration is going to be analogous to too many regular cases, so not so much there either. However, the general thought he expresses is quite valid. There are going to be a hell of a lot of crappy evidentiary rulings, and it will serve to ingrain the acceptance of torture, or at least ability to ignore in some respects that it occurred etc. Still, as he says, it is the least bad option at this point.

  11. fatster says:

    Apologies for the O/T

    US to drop shooting case against Blackwater guard

    US prosecutors to drop manslaughter case against Blackwater guard in deadly ’07 Iraq shooting


    Meanwhile, the Siegelman case moves forward.

  12. bobschacht says:

    Holy Moly, Batman, John McCain is being primaried by J.D. Hayworth, according to Rachel Maddow! But Anna Marie Cox is skeptical, on the grounds that you don’t leave a congressional seat under the shadow of an ethics violation and then run for Senator against an incumbent from the same party.

    Whaddya think, bmaz?

    Maddow also gave a shout-out to FireDogLake for threatening to “primary” conservaDems, but later made light(?) of the practical effect.

    Bob in AZ

    • bmaz says:

      Hayworth will get the right wingnut tea bagger crowd and the Joe Arpaio race baiters and haters, and there are plenty of such blithering idiots here, but i cannot see that McCain is in real danger of losing the primary. Jesus, what a choice – McCain or Hayworth. Leave it to Arizona to find the one asswipe that may actually be worse than McCain. Scary.

  13. WilliamOckham says:

    On a completely different email trail, in NSD 01 (pg. 29), there is an email from [redacted] to Carl Nichols:

    Sent: Friday, May 16, 2008 9:01AM
    To: Nichols, Carl
    Subject: Standard of review?


    If the review of the AG happens in Walker’s court, have you considered what you want the standard of review to be in the 9th?

    I am concerned that there is some 9th Cir precedent that might box the 9th into abuse of discretion review of walker, which I don’t think is best for us.
    (See 267 f3d 877, 877).


    Anybody want to translate that? Sounds like they expected Vaughn Walker wouldn’t buy that BS (and they were right).

    • bmaz says:

      Abuse of discretion is a standard of review on appeal. In a nutshell, it contemplates that unless the lower court judge abused his discretion in making his ruling – i.e. that there was no reasonable basis whatsoever supporting his ruling – it is to be upheld. Quite frankly, I am not at all sure their analysis here is correct and the case he cited is a review of a district court review of an administrative decision, and administrative decisions are much more standard for abuse of discretion review. I dunno, I have seen their awareness of this argument before and I still don’t think it is that big of a concern for them; their problem is Walker and the 9th (and those ARE a problem for them); not the standard of review that might be used on appeal.

Comments are closed.