This should be the only really contentious one. Go to CSPAN3 or the Committee Webcast to see it.

Note, in a bit of timing jujitsu, Biden and Hillary are giving their farewell speeches on the floor of the Senate at 10 and 11, meaning CSPAN2 will be covering those speeches and not this hearing, meaning (in turn) that this hearing won’t be available to most Americans watching on teevee.

Leahy’s opening statement is a bit of a scold directed at Arlen "Scottish Haggis" Specter for his kabuki opposition to Holder.

Ah Jeebus. Specter is bitching about minority rights–complaining that, after having agreed to the schedule he originally agreed to, he then wanted to change the schedule. 

Huh. Did Specter just say that Mary Jo White refused to testify? [I may have gotten that wrong–I’m having technical difficulties with the RealPlayer streams]

John Warner: "bipartisan approach in helping President-elect face the most complicated issues that ever faced a President."

Warner: People in every corner of the country are following this hearing. [Well, they would be if two top incoming officials weren’t giving their swan-song speech on the floor of the Senate and therefore hogging the CSPAN2 time]

Note: there appears to be a RealPlayer difficulty on the feed–if you’re having problems–getting sound but not picture–try CSPAN’s Microsoft feed, which has picture for me.]

Holder’s goals:

Protect American people from terrorism. Use every available tactic, do so within the letter and the spirit of the law. America must remain a beacon to the world. 

Restore credibility of department.  DOJ will serve justice, not fleeting interests of any political party. Filip and Mukasey deserve gratitude of American people for doing much. (?)

Embrace historic role in fighting crime, protecting civil right, protecting environment, ending fraud. [Talks about accountability in finance.]

Leahy starts with waterboarding. "Two most recent nominees to serve as AG hedged on waterboarding. Do you agree with me that waterboarding is illegal?"

Holder: If you look at the history, I agree with you that waterboarding is torture.

Holder: no one above law. President has obligation to faithfully execute laws of US. Obligations from treaties and Constitution. The President acts most forcefully when he acts in manner consistent with Congressional intents and directions. It’s my belief that President does not have power to authorize torture.

Leahy: 2nd Amendment? [Leahy sets up Holder to answer one of the questions GOP will throw at him.]

Holder: My amicus brief was with respect to decisions signed before Heller. 

Holder: I support media shield with caveat that I want to talk to the department and protect leaks on national security. [Which basically protects the DC insider leaks but not the whistleblowers.]

Leahy: Review of all OLC opinions and withdraw those problematic ones?

Holder: I will make that pledge. Important that these OLC opinions truly reflect what the law is, want to ensure that these opinions consistent with these two purposes.

 Leahy: What did you learn from the Marc Rich pardon?

Holder: My conduct in that matter was the place where I made mistakes. I’ve accepted responsibility of making those mistakes. Always said that given opportunity to do differently, would have. Should have made sure that prosecutors were informed. Made assumptions that turned out to be not true. Remains most intense, searing experience as a lawyer. I’ve learned. I think that, as perverse as this may sound, I’ll be a better AG having had this experience. Learned that need to ensure there is full consultation. Have to work to improve pardon process. We have to work on DOJ side to ensure rules followed. It was something that is not typical of the way I’ve conducted myself as a lawyer. Made mistakes, learned from them.

Leahy: And of course pardon made by Clinton, not by you.

Haggis: Pursuing the Rich pardon. Comment that it’s a mistake is one way of approaching it. When you take a look at hard facts, hard to see how you came to conclusion you did, even conceding fact that none of us is perfect. 

[Holder taking notes on Specter’s details here.]

Haggis: Preponderance of evidence suggests Eric Holder was deliberately assisting Mark Quinn to allow him to bypass DOJ.

[Nice use of the third person there, Haggis.]

Holder: I would not take everything as gospel in that House report. I volunteered to appear before that Committee and yet the claim that I recommended Quinn to the WH appeared in the House report. I, as DAG, according to this report, would have said to a perfect stranger, "we’ll work it out." I did not recommend Mr. Quinn. The people who were trying to determine who Rich’s lawyer should be, took a number of months picking a lawyer. 

Haggis: You recommended Quinn at a dinner.

Holder: As best as I can remember, all I explained was how the process worked. 

Haggis: Are you saying that Quinn’s name never came up?

Holder: No, did not. And if you look at the minority part of the report there’s some question whether Keck even said that. 

Haggis: How do you explain this email that Quinn attributed to you saying "go directly to the White House."

Holder: That would have been illogical. Maybe he misinterpreted something I said. I never told him go straight to the White House.

Haggis: Were you aware of atrocious record Rich had?

Holder: No, and that was one of the mistakes I made. I did not know a lot of the underlying issues.

Haggis: When pardon attorney said "don’t do it" was that a reason for you to look into this atrocious record?

Holder: Love wasn’t pardon attorney at the time.

Kohl: You must be grateful to the PEOTUS personally. Your first duty will be to the American people and not the President. One top priority to restore integrity of department. 

Kohl: If you had big Constitutional disagreement with Obama?

Holder: Resign.

Kohl: How will you close Gitmo.

Kohl: The interrogation methods?

Holder: both PEOTUS and I disturbed. Make sure consistent with treaty obligations and be effective. One concern I have is that enhanced interrogations not effective.

Kohl: Basketball, you also a person of considerable skill on basketball. If he invites you to gym, will you defeat him as badly as I can.

Leahy: Well, that was the first time that question has been asked.

Kyl sounds like he’s on board–he’s just asking Holder a series of question to get his support for AZ-related issues on the record.

Kyl: FISA, lone-wolf terrorist. Someone we have no evidence that he’s taking orders. There bc no search of Moussaoui, agents could not link him to AQ. Lone wolf needs to be reauthorized.

Holder: Expect I will. 3 provisions up for reauthorization. Want to talk to people to see if they’ve worked. At least some of those provisions are from Clinton (lone wolf and roving surveillance).

Kyl: other two: PATRIOT’s multi-point authority, and 215 authority. Unlike typical Admin subpoena, requires judicial approval.

Holder: multi-point authority, want to have interaction with people using tool.

Holder: 215 orders. That’s one that has generated more controversy.  Want to know as much as I possibly can. Tools in FISA are important ones. I would expect I would support.

Kyl: Warrantless monitoring of suspected intl communications of terrorists. Do you agree with that principle, do you believe new law is constitutional. 

Holder: Law is constitutional. Regrettable–the program, that I’ve not been read into–is a useful tool. We could have had that tool congressionally sanctioned. Refers to Youngstown. 

Kyl: Operation streamline. That’s been utilized in 2 sectors. 

[5 minute break]

While we’re breaking, I wanted to summarize what Holder said about FISA. He said that he thinks the FISA amendments–as passed–are constitutional. Let’s see whether or not Feingold asks him about minimization and reverse targeting. But he also said that he had not yet been read into "the program," which means he is not saying that THAT program was legal. And he also invoked Youngstown when asked about it, signifying that–at the very least–he thought Bush had violated Congressional law. That probably still means that he would support immunity (which is before Vaughn Walker right now). But we shall see what Whitehouse and Feingold ask him.

Update: Jane transcribed the exchange between Kyl and Holder on FISA:

KYL:  You indicated that comments that you had made in a speech on June 13 2008 were directed to the status of the law pre FISA modifications from the legislative branch.  When Congress later — I believe it was the next month — modified the FISA law there was an explicit type of search that was provided allowing warrantless monitoring of suspected communications of international terrorists predicated on the principle that the 4th amendment gives greater leeway to intelligence investigations of foreign threats.  Do you agree with that general principle, but more importantly in the context of our conversation do you believe the new law is constitutional and if confirmed will you support its enforcement?

HOLDER:  I believe that the law is constitutional.  One of the things that  I think is in some ways regrettable is that the program — that I’ve not been read into and I don’t know all the dimensions of it — but as I understand it that that law, that that program is a very use useful tool, it’s an essential tool in fighting terrorism.  I think that what is unfortunate is that we could have had that tool congressionally sanctioned at a much earlier stage.  I think that as we saw in the Steel seizure concurrence of Justice Jackson, the President has his greatest power when he acts consistent with congressional directives and I think in this instance that is instructive.  Had the administration come to Congress and asked for that enhanced authority many years before I have no doubt that Congress would have granted him that tool.  Having done that though and having had Congress say that this is an appropriate thing to do, I think as I say that it is a very useful tool and one that we will make great use of.

DiFi Up.

DiFi: Brad Schlozman screening people and removing people. Report found that Schloz made false statements.  Have you read this report, and what can you do to follow-up?

Holder: News accounts. Antithetical to anything department stands for.

DiFi: Lying to committee is violation of the law. We can’t do nothing if someone representing gov comes before us and lies.

Holder: Prosecutors have made determination, if I’m fortunate enough to be confirmed, I will review. Don’t know all the facts. I want to know why determination made. 

DiFi: DO you believe military commissions are sufficient?

Holder: I don’t think the ones now in place have all the due process I’d like to see them have. 

DiFi: Field Manual should be basis for interrogation?

Holder: Starting with what we have in Field Manual. I personally think that techniques are consistent with Article 3. Not convinced that if we restrict ourselves we will be less effective. This is something that POETUS is considering now, giving all components an opportunity to express their views–giving Intell oppty to make case.

[Sounds like Holder knows Intell doesn’t agree]

DiFi: CIA interrogation done by contractors. 

Holder: Concern you express legitimate one.

Orrin Hatch: Fourth time you’ve come to Senate for confirmation, so far without negative vote. Some real issues of concern. FISA?

Holder: In rare instances where law is unconstitutional, POTUS in that instance can act contrary. POTUS has his power at its zenith when acts with congressional direction. Exclusivity: the way in which that can occur. Taking Admin to task for not following dictates of FISA. I think had the Admin worked with Congress it could have had no question of legality.

Hatch: FISA reviews decision in Steel case. How to reconcile analysis of TSP with Keith, in re sealed, Wadi al-Hagge case?

Holder: My belief that statute lays out how executive can do that type of surveillance. Sets out very explicitly the means by which this can be done. Incumbent upon exec branch to be mindful of dictates of FISA.

Hatch: As former DAG under Clinton, were you part of decision-making that authorized warrantless search of Ames?

Holder: Don’t know all circumstances in which it occurred. Did not participate in 93. Don’t know if there were exigent circumstances.

Hatch: Is POTUS’ inherent authority, can it be limited under statute? You’re relying on statute, as if it’s binding on Article II. 

Holder: POTUS has powers that cannot be infringed. Congress does not have ability to say you cannot exercise. 

[Hatch trying to corner Holder to say that Bush was legal.]

Hatch: Immunity provisions. According to this act, in order for this to occur, AG must file certification with Court. Do you believe those private partners should be given civil liability protection.

Holder: Contained within statute. Defend statutes unless compelling reason not to. Obama against immunity but voted for the statute. It would seem that unless compelling reasons I don’t think we would reverse course.

Hatch: You’ll honor that certification. 

Holder: we have to look at if there are changed circumstances. 

Hatch: Are you going to prosecute Yoo.

Holder: No one above the law. We will follow the facts and the law. POTUS has said it well, we don’t want to criminalize policy differences that exist. 

Hatch: Would you consider these policy differences?

Holder; I have to become more familiar with what happened. That would better inform any decision I would make in that regard. 

Hatch: Right to bear arms. Your belief that 2nd amendment, collective.

Holder: I will respect the SCOTUS rule.

Hatch: Were they correct?

Holder: there was a good argument to be made. It’s one lawyers can disagree on. 5 justices have agreed on what the 2nd amendment is, so they’re right. 

Feingold: Look forward to many more discussions should you be confirmed. As you know, concerned about wrong-headed legal theories of outgoing Admin to justify exec power. These theories used to justify actions by Exec branch that I believe were in excusable. Clear indication that new admin will make an unmistakable break from the past. You’ve already said that POTUS not above law. What is your view of POTUS authority to authorize violations of the law.

Holder: Not above law. Obligation to execute law. Steel seizure concurrence of Jackson, weakest in category 3, where Congress has indicated something contrary to what president wants to do. Never been President upheld when act in Category 3.

Feingold: Does President have authority to authorize warrantless searches in violation of laws passed by congress.

Holder: You’re in Category 3. Jackson didn’t say President didn’t have ANY authority. Difficult to imagine president acting in appropriate way.

Feingold: You see FISA as under Category 3. 

Holder: Exclusivity statute was pretty clear.

Feingold: Anything that makes you believe President has ability to disregard FISA statute. Congress will consider lege to reauthorize PATRIOT. Last time, Admin used scare tactics to counter legitimate concerns raised by Democrats. Admin refused to find common grounds. 

Feingold: Disagreed with aspects of the amendments. But one I agreed with: IG’s report due to be completed by July. Will you pledge full cooperation of DOJ and make as much public?

Feingold: What will you do to make sure that justice is truly served and will you cooperate with oversight efforts from Congress?

Holder: Damage assessment. How has the institution been harmed. What has been the lasting impact. 

Feingold: What about the documents?

Holder: To extent that there is not a reason why we are withholding, transparency is the best practice. Institutional concerns. 

Sessions wanted to know whether Holder is going to prosecute Yoo. Holder basically said he had to review the case. 

Schumer: now talking about independence. I think that in my entire Senate career my vote against Gonzo may have been the most vindicated. They’re cherry picking. Have you ever been Obama’s personal lawyer? A staffer? Official Counsel? Did you ever dispatch a staffer to a hospital room? Not a close relation to the President? Professional politician? Did you owe any paid job to Barack Obama? When’d you first meet Obama? What did the President first tell you when he asked what kind of AG?

Holder: He said our good relationship would change.  

Schumer: I doubt Bush ever had such a conversation with Alberto Gonzales. I welcome your nomination because Obama will be different kind of president. Your nomination should you be approved will end the rancid politicization at the department. Full return to rule of law. You, unlike some of your predecessors will be chief law enforcement office.  

Schumer: I asked that Schloz be referred to Dannehy. Do you see any problem with making such a referral?

Holder: I have great respect for the lawers in USA DC. THey’re good lawyers there, the fact that they had a chance to fully look at that matter, would be significant for me. On teh other hand, I’m disturbed by what I read about the report.  I woudl like to myself review the determination. 

Schumer: Without disclosing GJ information, could we at least get a report from why refuse to prosecute? Would you at least commit to do that?

Holder: to the extent I can; GJ frequently prevents a prosecutor from sharing. 

Schumer: On Civil Rights Div. Report from IG more like campaign headquarters than hall of justice. Civil rights division, through Democrat and Republican presidents alike. From 20034 to 2006, Schloz hired 60 lawyers on basis of political leanings. I it would be violation if a democrat did the same. Overtly racist statement. Do you expect thorough cleaning up of Civil Rights Div. 

Holder: I expect to spend a lot of my time restoring it.  

Unfriendly. Just as he deserves:

U.S. Sen. Bob Corker, Republican of Tennessee and nemesis of Detroit automakers and UAW workers in congressional hearings, came to the Detroit auto show for an up-close look Tuesday at the industry he’s reluctant to rescue.

And he got a taste of the kind of confrontational grilling that he laid on auto company chief executives and UAW President Ron Gettelfinger in Washington.

"I realize that I’m not popular here," said the trim, 5-foot-7 Corker, a tiny figure buffeted in a sea of microphones, cameras and jostling journalists as he walked the floor of the North American International Auto Show at Cobo Center.

"But I’m proud of the effort I put forth," Corker said of his attempt to forge a Senate deal for auto industry rescue loans that foundered when Gettelfinger balked at Corker’s demands for immediate wage reductions and other contract changes. After the Senate rejected a bailout deal, President George W. Bush approved $17.4 billion in bridge loans to keep General Motors Corp. and Chrysler LLC afloat.

Corker, not unlike the Detroit CEOs after the hearings in Congress, admitted Tuesday that he felt a bit misunderstood. "I don’t know how people perceive me," he said.

(Note, this is currently the Free Press’ most popular story, so I’m not the only one taking some pleasure in Corker’s discomfort.)

That said, I actually think this was a stunt dreamt up by Mike Cox, our current AG and wannabe 2010 replacement for Jennifer Granholm. Cox wrote a fairly timid op-ed for the WaPo the other day, inviting Senators to come visit the auto show (I say timid because Cox exhibited nowhere near the understanding of the industry–or the cooperation with the UAW–that Thad McCotter did in his excellent speech in the House in November).

And then, voila! There you had Bob Corker and Mike Cox, two reprehensible Republicans, sucking it up to the press today, pretending they might have the key to saving the auto industry. In a touch of theater, they even met at the Cerberus Chrysler booth, an appropriate place for them to discuss how to bail out their buddies in the private equity firm.

Kudos to Corker to actually showing. You think maybe he can take Mike Cox with him when he leaves?

The Sun-Times reports yet more wiretaps used in the Blagojevich investigation. From the complaint, we knew of:

• Two bugs in Friends of Blagojevich office
• Wiretap on Blagojevich home land line

From the motion to release the wiretaps related to the horse racing scheme, we learned of:

• Wiretap on Lon Monk’s cell phone

And this article reports:

• Camera focused on entrance to Friends of Blagojevich office
• Wiretaps on cell phones of three close Blago advisors (this may or may not include the one on Monk)

Recall that when Fitz asked for a 90 day extension, he mentioned the thousands of tapes they had to go through. It sure sounds like thousands to me.

This time, with a judge telling them to go look again for those missing White House emails.

The United States District Court for the District of Columbia today granted the National Security Archive’s emergency motion for an extended preservation order to protect missing White House e-mails.  With the transition from the Bush Administration to the Obama Administration taking place in six days, and all the records of the Bush White House scheduled for a physical transfer to the National Archives and Records Administration (NARA) on that same day, the Court has directed the Executive Office of the President (EOP) to search all its computer work stations and has ordered EOP employees to surrender any media in their possession that may contain e-mails from March 2003 to October 2005.

“There is nothing like a deadline to clarify the issues,” said Archive Director Tom Blanton.  “In six days the Bush Executive Office of the President will be gone and without this order, their records may disappear with them.  The White House will complain about the last minute challenge, but this is a records crisis of the White House’s own making.”

Counsel for the Archive, Sheila Shadmand from Jones Day made clear: “The White House has been on notice since we filed our lawsuit a year and a half ago that they would have to retrieve and preserve their e-mail.  Instead of coming clean and telling the public what they have been doing to solve the crisis, they refused to say anything.  At this point, it is critical to preserve evidence that can help get to the bottom of the problem and prevent it from happening again.”

Magistrate Judge John M. Facciola has scheduled an emergency status conference today at 2 p.m. to consider additional measures that may be necessary to protect the records during the transition. (Courtroom 6 of the E. Barrett Prettyman Federal Courthouse)

I can just see them now, the same folks who have been talking about their sacred duty to bury things for 12 years deliver all their documents to the National Archives, trying to explain how it was that they accidentally destroyed Scooter Libby’s hard drive and Karl Rove’s Blackberry.

While I’m glad that Susan Crawford has acknowledged publicly what we all know–that Mohammed al-Qahtani was tortured (see Spencer’s take here)–I’m just as interested in the questions that "crack reporter" Bob Woodward didn’t ask.

Such as, "Is that the same reason Abu Zubaydah was not charged along with the other 9/11 plotters?"

The answer to that question might raise all sorts of uncomfortable answers, though. After all, Qahtani was not in the same category as the other 9/11 plotters, in either the treatment he received (since it came at Gitmo rather than in black sites overseas, and came while under DOD custody rather than CIA custody), or in his actions (that is, he was stopped short of participating in 9/11, if that was indeed his intent). 

But Abu Zubaydah’s treatment resembles Khalid Sheikh Mohammed’s: while in CIA custody at a black site, he was waterboarded, not just once, but a bunch of times.

So if you admitted that Abu Zubaydah had been tortured–and therefore could not be tried–then it would raise questions about why KSM can be charged.

And if those questions were asked, you might have to differentiate between KSM and Zubaydah. KSM–as was made clear in his appearance in the Gitmo show trials–still has his wits about him. Zubdaydah, from all reports, does not.

Or, just as importantly, KSM will happily admit to having done the things we accuse him of. But Zubaydah appears to have been over-sold as the mastermind of the attacks. In fact, if you admitted that Abu Zubaydah admitted to stuff he didn’t really do after having been broken through torture, then you’d have the beginning of the pattern–with Qahtani and Zubaydah–proving that torture doesn’t work.

I’m glad Susan Crawford has finally admitted that we tortured Qahtani and because of that he can’t be charged. But will she have the courage (and the clearance) to admit that about Abu Zubaydah, too?

By now you’ve heard that Obama risked indigestion just days before his inauguration to reach out to the other side.

Barack Obama took the next big step in his Republican charm offensive on Tuesday night, when he dined with several of the nation’s most prominent conservative pundits.

The president-elect arrived at the Chevy Chase, Md., home of syndicated columnist George Will shortly after 6:30 p.m., according to a press pool report. Greeting him at the residence were other luminaries of the conservative commentariat, including the Weekly Standard’s William Kristol, New York Times columnist David Brooks, and Charles Krauthammer of the Washington Post.

Just two comments about this. First, remember that two out of three of these men sort-of endorsed Obama as the election came to a close (indeed Brooks was a fan from early on). Here’s Brooks, enthusing over Obama’s self-efficacy in October.

But other candidates are propelled by what some psychologists call self-efficacy, the placid assumption that they can handle whatever the future throws at them. Candidates in this mold, most heroically F.D.R. and Ronald Reagan, are driven upward by a desire to realize some capacity in their nature. They rise with an unshakable serenity that is inexplicable to their critics and infuriating to their foes.

Obama has the biography of the first group but the personality of the second. He grew up with an absent father and a peripatetic mother. “I learned long ago to distrust my childhood,” he wrote in “Dreams From My Father.” This is supposed to produce a politician with gaping personal needs and hidden wounds.

But over the past two years, Obama has never shown evidence of that. Instead, he has shown the same untroubled self-confidence day after day.

Here’s Will, attacking the Republican ticket’s shared inability to think with complexity, in October.

Palin may be an inveterate simplifier; McCain has a history of reducing controversies to cartoons. A Republican financial expert recalls attending a dinner with McCain for the purpose of discussing with him domestic and international financial complexities that clearly did not fascinate the senator. As the dinner ended, McCain’s question for his briefer was: "So, who is the villain?"

McCain revived a familiar villain — "huge amounts" of political money — when Barack Obama announced that he had received contributions of $150 million in September. "The dam is broken," said McCain, whose constitutional carelessness involves wanting to multiply impediments to people who want to participate in politics by contributing to candidates — people such as the 632,000 first-time givers to Obama in September.

Why is it virtuous to erect a dam of laws to impede the flow of contributions by which citizens exercise their First Amendment right to political expression? "We’re now going to see," McCain warned, "huge amounts of money coming into political campaigns, and we know history tells us that always leads to scandal." The supposedly inevitable scandal, which supposedly justifies preemptive government restrictions on Americans’ freedom to fund the dissemination of political ideas they favor, presumably is that Obama will be pressured to give favors to his September givers. The contributions by the new givers that month averaged $86.

Given that Kristol played Higgins to Palin’s Eliza Doolittle, he couldn’t very well endorse Obama. But in November, he tried to repackage Obama’s foreign policy as a continuation of Bush’s foreign policy.

Second, remember that all three of these men–and especially Kristol and Brooks–are paid propagandists. If, for the sake of one night of indigestion, he can neutralize propagandists that the Noise Machine has invested a lot of money in, all the better.

 I wouldn’t want to do it. But if Obama’s got the intestinal fortitude to dine with these three, more power to him.

I noted the other day that–after years of trying to limit the Bush Administration’s responsibilities under the Presidential Records Act–the Bush Administration had found religion and was insisting that it had to box up all the documents proving they acted improperly when they fired nine US Attorneys. Basically, the first thing they did after the new year was to send Judge Bates a status report describing their solemn duty to throw everything in boxes, hopefully to make it unavailable for five years (to be fair, DOJ–and not Dick Cheney–sent the status report, so this is only partly hypocritical).

Although the PRA generally restricts access to presidential records for a period of five years (or until the Archivist completes processing and organizing the records), and further restricts disclosure of certain categories of information for a period of up to 12 years when presidential records are requested under the Freedom of Information Act, see 44 U.S.C. § 2204, the PRA contains special-access provisions that are relevant here. First, “[n]otwithstanding any restrictions on access imposed pursuant to section 2204, . . . subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available . . . pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding[.]” 44 U.S.C. § 2205(2)(A). Second, the same exceptions to restricted access apply to requests for access to presidential records of a former President by “an incumbent President if such records contain information that is needed for the conduct of current business of his office and that is not otherwise available.” Id. § 2205(2)(B).[my emphasis]

As I noted earlier this week, HJC believed–and Bates concurred–that putting these documents in boxes and requiring legalese to open them again might cause a bit of delay (not that that was the idea, I’m sure).

Sure enough, Bates was carried through on his concerns, and got both sides to stipulate that these documents will remain at the White House until the suit is done (and/or HJC gets their grubby paws on it). 

Defendants will create a copy set of all materials responsive to the subpoenas, including both paper and electronic documents, in hard copy format to be stored, segregated, and maintained at the White House for use in this litigation until this litigation is finally resolved.

[snip]

The White House shall make provisions to ensure the Archivist maintains the original set of materials responsive to the subpoenas intact at a facility in Washington, D.C. until this litigation is finally resolved, under appropriate security and in a manner that will enable ready access to the materials, if necessary.

That’s all well and good and I’m grateful that Bates–who spent a number of years shielding BushCo–remains on the side of transparency and oversight here.

But it’s got me thinking. What else is BushCo busily boxing up, preparing to bury it for five or twelve years, unless we find a way to identify it and withhold it?

Christy linked to HJC’s report on the Imperial Presidency earlier.

I’ll have a lot more to say about it. But for the moment I wanted to point to details it includes on the October 23, 2001 OLC opinion eliminating the 4th Amendment we’ve been looking for (this is the memo cited in Yoo’s Torture Memo). 

On page 74 it describes the memo:

On October 23, 2001, Deputy Assistant Attorney General John Yoo and Special Counsel Robert Delahunty in the Department of Justice’s Office of Legal Counsel (OLC) prepared a memorandum entitled: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”291 This unclassified memorandum suggests broad power of the president as Commander in Chief to use military force inside the United States, contemplating even seizure and detention of United States citizens (or lawfully admitted aliens) in some circumstances. As such, the memorandum – though it does not squarely address detention policy — is consistent with the September 25, 2001, War Powers Memorandum which claimed for the president domestic war powers, anticipates the assertions of presidential power in the domestic detention context just a few months later, and anticipates the November 2001 conclusion that the president has the power to subject United States citizens to military commissions.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

Mr. Yoo and Mr. Delahunty concluded that both Article II of the Constitution and the 9/11 use of force resolution would authorize these types of domestic military operations (even though Congress had expressly rejected language proposed by the Administration for the AUMF that would have authorized domestic military operations).292 The memorandum also contains extended discussion of a hypothetical example which posits that a domestic military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden inside an apartment building and may possess weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the building, detain everyone found inside, and then interrogate them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement. This memorandum was referenced in a subsequent OLC memorandum for the legal conclusion “that the Fourth Amendment had no application to domestic military operations.”293 [my emphasis]

Then another description appears in footnote 1577:

Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense ("DOD"), from John C. Yoo, Deputy Assistant Attorney General, OLC, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (Oct. 23,2001). – Committee staff have reviewed this unclassified memorandum, which contains extraordinary assertions of executive power and appears deeply flawed in its legal analysis. The memo relies on odd precedents, such as a 1933 decision of the New Mexico supreme court, while unhelpful precedents of seemingly greater weight – such as those discussing legal principles developed during the Civil War era involving non-battlefield actions – are dismissed in footnotes. The memo focuses on a startling hypothetical example involving a U.S. military commander seizing an apartment building in a major American city and detaining and interrogating every person found inside. The Department has claimed that this memo does not reflect current OLC thinking, but it is not clear if it has been formally withdrawn or revised. There is no excuse, moreover, for the Administration’s refusal to make this memorandum public.[my emphasis]

I think the emphasis on physical search here is a bit of a red herring.  Check out how that hypothetical scenario reads when you replace "apartment building" with "email server."

The memorandum also contains extended discussion of a hypothetical example which posits that the NSA military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden messages inside an email server and which may possess information about weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the circuits, collect all the emails found inside, and then read them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement.

We know, after all, that this opinion was included in those Stephen Bradbury said had formed the basis for the warrantless wiretap program, so we know BushCo used this logic when designing its warrantless wiretap program.

Call me crazy, but I’m betting money that this little exercise in abolishing the Fourth Amendment is precisely the logic the Administration used for collecting and reading all the telecom signals in this country. It "justifies" unwarranted searches without probable cause, the detention of everyone residing in a particular space whether or not they have a demonstrated tie to the alleged terrorist, and it claims you can use information gathered from this warrantless search for criminal prosecution. That is–it "justifies" everything that is unjustifiable in the warrantless wiretap program.

I’m betting equal money that this is the stuff that made Jim Comey’s head pop off when he learned about it in 2003 and 2004.

Is here. Or rather, the Inspector General’s report describing his criminal referral for lying to Congress.

We have referred this matter to the U.S. Attorney’s Office for the District of Columbia for a decision on whether the evidence warrants a criminal prosecution. We provided to the prosecutor the evidence we gathered in the course of our investigation, including transcripts of interviews and relevant documents and e-mails.

[snip]

Schlozman is no longer employed by the Department and, therefore, is not subject to disciplinary action by the Department. We recommend, however, that, if criminal prosecution is declined these findings be considered if Schlozman seeks federal employment in the future. We believe that his violations of the merit system principles set forth in the Civil Service Reform Act, federal regulations, and Department policy, and his subsequent false statements to Congress render him unsuitable for federal service.

Of course, the report is dated July 2, 2008. So what has happened?

Here’s the answer to that question:

We referred the findings from our investigation to the U.S. Attorney’s Office for the District of Columbia in March 2008. We completed this written report of investigation in July 2008.

The U.S. Attorney’s Office informed us on January 9, 2009, of its decision to decline prosecution of Schlozman. The Interim U.S. Attorney, Jeffrey Taylor, was recused from the matter and the decision.

So, after taking ten months to decide whether or not to prosecute (ten months which happened to include an election in which one of those named in the report–Hans Von Spakovsky–served on FEC), they now release the report. Nice.

Consider this a working thread. I need to run out for a few hours, and I assume that WO and others will get a good start on this before then.

I was sending so many comments via email, I figured I ought to invite all of you to join in. Go to CSPAN for your viewing fun. See also Hillary’s responses to questions posed by Committee members. 

You’ve already missed the real amusement, though. Kerry, trying to be chummy, welcomed Hillary’s friend and family: basically just Chelsea and Chuck Schumer (notice who was missing). He invited Chelsea to join the Senators on the dais, saying, "since your dad was an intern with this Committee, maybe we can make you an intern for a day."

Um, Kerry? Intern? Clinton? Nuh uh.

Though, as I pointed out, when the Senate hold confirmations hearings for one of their own, it’s really more of a mutual blow job than anything else. (You can see why I’m inviting you all to participate). Lots of heavy petting, back and forth, even from the Republicans.

Bob Corker basically said that Hillary’s not a good manager, because she’s not a former general like Colin Powell.

Feingold up now, actually doing his job.

Boxer could not have been more loving. 

Voinovich is cranky about management too. What’s up here? The best Republicans could think of was going after Hillary for her bad management??? Also note, Voiny suggested he’d be off this committee (it only lost one Republican this year–Chuck Hagel–so may need to shed another given the Republicans’ losses). Interesting.