I was overly optimistic about the head cold fog I’m in today. But a couple of details from the WSJ editorial Christy linked to yesterday are stuck in my craw.

The editorial is an attempt to warn Congressional Democrats against pushing for a (as the WSJ calls it) "Truth Commission" to investigate the Bush Administration’s torture policies.

In particular, at [Panetta’s and Bair’s] nomination hearings they’re likely to be asked to support a "truth commission" on the Bush Administration’s terrorist interrogation policies. We hope they have the good sense to resist. And if they need any reason to push back, they could start by noting the Members of Congress who would be on the witness list to raise their right hands.

It then lists the Democrats it believes would serve as witnesses in such an investigation: it names Pelosi specifically, it deals with Jane Harman’s public objections to torture, and also invokes Intelligence Committee leadership and–after 2006–membership more generally.

Now, I’ll come back to this individualized focus in a second. But here’s the paragraph that has really got me thinking.

The real — the only — point of this "truth" exercise is to smear Bush Administration officials and coax foreign prosecutors into indicting them if Mr. Obama’s Justice Department refuses. The House and Senate Intelligence Committees already possess the relevant facts, and Senator Carl Levin and his staff have spent two-and-a-half years looking at mountains of documents — with nothing to show for it.

Carl Levin, the editorial claims, spent two-and-a-half years looking at documents, with nothing to show for it.

What a remarkable claim, given that the Executive Summary of that not-quite-two-year investigation (since Levin took over as SASC Chair in 2007–the WSJ can’t even get its dates right) lists this as its first conclusion:

On February 7, 2002, President George W. Bush made a written determination that Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, did not apply to al Qaeda or Taliban detainees. Following the President’s determination, techniques such as waterboarding, nudity, and stress positions, used in SERE training to simulate tactics used by enemies that refuse to follow the Geneva Conventions, were authorized for use in interrogations of detainees in U.S. custody.

And this as unlucky conclusion 13:

Secretary of Defense Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there. Secretary Rumsfeld’s December 2, 2002 approval of Mr. Haynes’s recommendation that most of the techniques contained in GTMO’s October 11, 2002 request be authorized, influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq.

According to the WSJ, proving that Bush and Rummy’s actions led directly to torture equates to "nothing to show for it."

But I’m even more amused by the WSJ’s claims given Levin’s statements to Rachel Maddow on December 17 (linked above).

LEVIN: What I think is our role to do is to bring out the facts which we have to state our conclusions, which we have, which is where the origin of these techniques began. And then to turn over to the Justice Department of the next administration – because clearly this Justice Department is not willing to take an objective look – to turn over to the next Justice Department all the facts that we can, and we have put together, and get our report, the rest of it declassified.

But then it seems to me it is appropriate that there be an outside commission appointed to take this out of politics, that it would have the clear subpoena authority to get to the parts of this which are not yet clear, and that is the role of the CIA.

We looked at the role of the Department of Defense, but the role of the CIA has not yet been looked at, and let an outside commission reach the kind of conclusions which then may or may not lead to indictments or to civil action. But it is not our role, it’s not appropriate for us to make those kinds of – reach those kinds of conclusions. [my emphasis]

Shortly after releasing the conclusions of the "nothing to show for it" investigation, Levin said three things: that Obama’s DOJ should take the conclusions of the report and consider them objectively, that SASC should declassify the balance of its report (meaning that some of the "nothing to show for it" claim can be attributed to BushCo’s unwillingness to declassify embarrassing information), and that "an outside commission" should "get to the parts of this which are not yet clear, and that is the role of the CIA." And those actions, Levin notes, "may or may not lead to indictments or to civil action."

Sure doesn’t sound like a "nothing to show for it" report to me.

But Levin’s statement is significant for a few more reasons. After all, he emphasizes that CIA’s role in this has not been looked at. 

As a reminder, in 2006 when Bush admitted to the torture program, Carl Levin was a senior member of the Senate Intelligence Committee. Now, as the Chair of SASC, he’s an Ex Officio member. Levin was at those briefings that the WSJ reports all SSCI members started getting in 2006. But he says the CIA’s role in this has not been looked at. 

So the WSJ looks at an investigation that–by design–looked solely at torture emanating out of DOD’s chain of command, and says that it found nothing to show for it. The guy in charge of that investigation says the report specifically leaves out CIA’s role. And, since that same guy attended the briefing for the entire SSCI membership in 2006, he either said that knowing what was included in that confidential briefings–or having reason to believe that briefing was incomplete. And, finally, Levin advocates "an outside commission"–precisely the kind the WSJ opposes–to get to those parts which have not been revealed.

Boy, invoking Levin’s investigation sure doesn’t help the WSJ’s case.

Now, back to the WSJ’s invocation of specific Democrats. The WSJ names Bob Graham and Jello Jay (Jello Jay took over from Graham at SSCI in 2003; the WSJ does not mention Reyes, who took over HPSCI in 2007) as having been briefed between 2003 and 2006. But, as I said, it focuses primarily on Pelosi and Harman.

There’s a weird detail about this to begin with. Since BushCo routinely broke the law and only briefed Intelligence Committee leadership (and not Congressional leadership) on these things, Pelosi was only getting briefings through 2002, when she was Ranking Member on HPSCI. The WSJ does date the briefings back to 2002.

According to our sources and media reports we’ve corroborated, the classified briefings began in the spring of 2002 and dealt with the interrogation of Abu Zubaydah, a high-value al Qaeda operative captured in Pakistan.

But then, the timing of the briefings starts to get fuzzy.

In succeeding months and years, more than 30 Congressional sessions were specifically devoted to the interrogation program and its methods, including waterboarding and other aggressive techniques designed to squeeze intelligence out of hardened detainees like Zubaydah.

Followed by a clear timeline again, but this time one that excludes Pelosi.

The briefings were first available to the Chairmen and ranking Members of the Intelligence Committees. From 2003 through 2006, that gang of four included Democrats Bob Graham and John D. Rockefeller in the Senate and Jane Harman in the House, as well as Republicans Porter Goss, Peter Hoekstra, Richard Shelby and Pat Roberts.

In other words, the WSJ curiously includes–and then promptly excludes–Pelosi from participation in the substantive briefings (Graham should be excluded as well, since Jello Jay took over in 2003). That seems to be an admission, on the WSJ’s part, that Pelosi didn’t get the same detailed briefing about methods her successors got–a view reinforced by Pelosi’s own description of the one briefing she got.

On one occasion, in the fall of 2002, I was briefed on interrogation techniques the Administration was considering using in the future. The Administration advised that legal counsel for the both the CIA and the Department of Justice had concluded that the techniques were legal.

I had no further briefings on the techniques. Several months later, my successor as Ranking Member of the House Intelligence Committee, Jane Harman, was briefed more extensively and advised the techniques had in fact been employed. It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred.

Given the WSJ’s fuzzy sentence–the one that suggests "in succeeding months" Congress was briefed on techniques "including waterboarding," I’d say even the WSJ is not claiming that Pelosi was in the more substantive briefings in which torture was discussed.

Which brings us to Harman’s objection, which the WSJ calls "equivocal."

Ms. Harman did send a one-page classified letter in February 2003 listing her equivocal objections to the interrogation program. She made her letter public in January 2008 after the CIA revealed that it had destroyed some interrogation videotapes. After lauding the CIA’s efforts "in the current threat environment," she noted that "what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions." Ms. Harman also vaguely wondered whether "these practices are consistent with the principles and policies of the United States," but she did not condemn them as either torture or illegal.

But now compare their cherry-picked quotations from Harman’s letter with the full text of that letter.

Last week’s briefing brought home to me the difficult challenges faced by the Central Intelligence Agency in the current threat environment.  I realize we are at a time when the balance between security and liberty must be constantly evaluated and recalibrated in order to protect our nation and its people from catastrophic terrorist attack and I thus appreciate the obvious effort that you and your Office have made to address the tough questions.  At the briefing you assured us that the [redacted] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions.  I would like to know what kind of policy review took place and what questions were examined.  In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States.  Have enhanced techniques been authorized and approved by the President?

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry.  I would urge the Agency to reconsider that plan.  Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future.  The fact of destruction would reflect badly on the Agency.

I look forward to your response.

Obviously, there’s a reason why Harman didn’t focus on the legal issues: because Scott Muller had done so in his presentation, and had emphasized that DOJ, NSC, and CIA lawyers had all bought off on the techniques. Inexcusable or not, now look at what the WSJ specifically excludes: the questions Harman had posed regarding high level approval by the White House–up to and including George Bush.

Here’s Muller’s non-answer to that question.

As we informed both you and the leadership of the Intelligence Committees last September, a number of Executive Branch lawyers including lawyers from the Department of Justice participated in the determination that, in the appropriate circumstances, use of these techniques is fully consistent with US law. While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch. 

That is, he dodged her question entirely, emphasizing again the legal review that had taken place, but not George Bush’s personal policy review. 

And Harman’s question is precisely the issue before us now, the one that would be investigated by an independent commission (note, even the WSJ uses the word "policy" in describing the commission).

In other words, to make its case that Congress is implicated in torture, the WSJ mischaracterizes the SASC report (and Levin’s response to being briefed at SSCI) and hides Levin’s call for precisely the independent investigation WSJ opposes; it implicates Pelosi when its own timeline doesn’t implicate her; and it cherry-picks Harman’s letter to hide the fact that she was asking–in 2002–precisely the questions that remain to be answered.

Which leaves Bob Graham, who is no longer in Congress and who presumably got the same fuzzy Fall 2002 briefing Pelosi got.

And, finally, (it had to come to this) Jello Jay. Who, not incidentally, may be the only Democrat mentioned in the editorial who actually gets to ask Bair and Panetta questions at their confirmation hearings (I’m double checking on whether Levin gets to ask questions or not; I’m assuming, given his squawking the other day about Panetta, that Jello Jay will remain on SSCI even while moving to Appropriations and ceding the Chair at SSCI). 

The WSJ didn’t waste this entire editorial solely to threaten Jello Jay not to ask Leon Panetta for a Truth Commission, did it? Because this swiss cheese of an editorial surely won’t dissuade someone like Russ Feingold from asking such questions. In fact, why direct these questions to members of SSCI–those who will ask Bair and Panetta questions–in the first place? Last I heard, a Truth Commission was more likely to come out of HJC. And frankly, most of the members of HJC don’t give a rat’s ass about the threats WSJ makes about Jello Jay (though they may well have Pelosi to contend with over the nature of their investigation).

Don’t get me wrong. I have no doubt that Jello Jay, especially, and Harman and Pelosi, to a much lesser degree, are implicated in approving the torture program. But even the WSJ poses this as a policy question that–though they hide the proof that exists–we know was a question Harman asked directly. But what the WSJ is doing here is mischaracterizing all but Jello Jay’s implication in those policies (as far as we know). The whole thing smacks of flailing desperation once you unpack the false claims included in the editorial.l

Here. The Trib’s overview is here.

I think the head cold is sufficiently at bay so I can read along with you.

One thing to note as you read: how the Committee has used (in limited fashion) Fitz’ evidence from the complaint. Note they’re focusing on the flashy stuff: Wrigley Field and the Senate seat. The pay to play stuff has been lumped in with testimony from the Rezko and other trials.

Also note a few of these items are things that are reasonably laudable–better services–but which  Blago tried to accomplish through illegal means.

And finally, note the Executive Ethics Commission Report, starting on page 53. This is basically about Blago breaking all sorts of hiring rules. I raise it for you to keep in mind as Dems start cheerleading this impeachment. The charge is something that Bush is equally guilty of–but there was no squawk of impeachment for him.

Starting on page 60, there is a list of all the evidence they’ve used thus far. You can access almost all of those at this website.

McClatchy’s Marisa Taylor has gotten a hold of three more Yoo memos–and one Jack Goldsmith memo–that reveal the Administration’s thinking on the Iraq War.

They are:

October 23, 2002: Bush has authority to declare war against Iraq because his Daddy did

November 8, 2002: UN 1441 doesn’t prevent Bush from going to war outside the terms of 1441

December 7, 2002: If Scooter Libby claims the Iraqis lied on their WMD declaration, Bush can declare war

March 18, 2004: If the US ships Iraqis outside of Iraq, then they can torture them [Jack Goldsmith’s opinion]

I’m most interested in the December 2002 memo, because it seems to have shaped the roll-out of propaganda directed against Iraq–up to and including John Bolton’s use of the Niger claim in a State Department release on Iraq’s declaration. Basically, they seem to have gotten the legal opinion, then tailored their propagana to the terms of the legal opinion.

But I guarantee you, Mary is going to have some things to say about the Goldsmith memo, which she has been keeping an eye out for for some time.

Consider this a working thread.

Update: Come to think of it, the October 23, 2002 opinion is pretty funky. As it points out, it came not long after Congress approved the Iraq War resolution.

You asked us to render an opinion based on the constitutional and other legal authorities that would exist in the absence of new authorization from either Congress or the United Nations ("U.N .") Security Council. We note that on October 16, 2002, the President signed into law the Authorization for Use of MiIitary Force Against Iraq Resolution of 2002, HJ. Res. 114, Pub. L No. 107-243,116 Stat. 1498 (2oo2),which authorizes the President to use force against Iraq to enforce relevant U.N. Security Council resolutions regarding Iraq and to defend the national security of the United States from the threat posed by Iraq. We have not considered here the legal effect of that resolution. As this memorandum makes clear, even prior to the adoption HJ. Res. 114 the President had sufficient constitutional and statutory authority to use force against Iraq. We also note that negotiations are ongoing in the U.N. Security Council on a
new resolution regarding Iraq, but we do not address any of the proposed terms here.

It’s as if, at each stage of the process, Bush got Yoo to say he could do what he wanted regardless of the machinations in Congress and the UN, so he could claim he didn’t need that authorization. (Shades of Daddy, here.) And, of course, they eventually probably relied on that authority when they went to war without a new resolution.

I wonder whether Colin Powell knew about these opinions?

Update: November 8 opinion link updated (I think).

Kagro has been tracking the passage of the new House rules package over at his new digs.

As he described earlier, John Conyers stuck something in the new rules that will allow the House Judiciary Committee to continue its lawsuit against Harriet Miers and Bolten to get their testimony in the US Attorney scandal.

One nice goody buried in the new House Rules package: the House will authorize the Judiciary Committee to continue its lawsuit seeking to enforce its subpoenas and contempt of Congress citations against Bush White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers.

Technically, Miers and Bolten were in contempt of the 110th Congress. But with its adjournment, the 110th Congress no longer exists, so there’s nothing to be in contempt of, nor any plaintiff in the lawsuit. The courts had indicated that this might give them cause to moot the whole case and drop it. But the Rules package specifically authorizes the Judiciary Committee in the new 111th Congress to continue the suit. And we had earlier word that the 111th was considering reissuing those subpoenas.

And, as Kagro now points out (now that the rules have passed), there’s a little bomblet in there specific to Rove.

There’s one more juicy nugget in the rules package that just passed. Regarding the Judiciary Committe’s power to continue its suit against Miers and Bolten.

From Majority Leader Steny Hoyer’s fact sheet (PDF):

In addition, it authorizes the Judiciary Committee and General Counsel to add as a party to the lawsuit any individual subpoenaed by the Committee in the 110th Congress who failed to comply.

Who else was subpoenaed by the Judiciary Committee in the 110th Congress and failed to comply?

Karl Rove.

And Michael Mukasey.

Nice going, Chairman Conyers and Speaker Pelosi.

In other words, Rove–and Michael Mukasey, who refused to turn over documents particularly relating to the Siegelman prosecution–is about to get added to HJC’s lawsuit forcing him to testify before HJC in the 111th Congress.

Remember that $9 billion that seems to have simply disappeared into thin air in Iraq? Add another $25 billion to the money the Bush Administration has just pissed away through incompetence, in this case by failing to implement recommendations made by Inspectors General.

Rep. Henry A. Waxman, Sen. Claire McCaskill, and Rep. Ed Towns issued a new report that finds that the Bush Administration has failed to implement over 13,000 recommendations made by Inspectors General (IGs) since 2001. Federal agencies could save taxpayers over $25 billion by implementing these open recommendations.

“Under the Bush Administration, thousands of proposals to make government more efficient languished,” said Rep. Waxman. “The result has been billions of dollars in waste, fraud, and abuse. Congress will work with the new Administration to restore accountability and increase the effectiveness of our government.”

[snip]

The House Oversight Committee asked the nation’s IGs to identify all recommendations made between January 1, 2001, and December 31, 2008, that had not been implemented by federal agencies. The information provided shows that the Bush Administration failed to implement 13,847 recommendations since 2001, which could have saved taxpayers $25.9 billion. Almost half of these recommendations were made over a year ago, and more than a quarter were made over two years ago.

Just two more weeks of suffering under the epic incompetence of the "MBA President."

Before you read this post, go read this post and this post for background about Judge Vaughn Walker’s order yesterday that the government must give him a document accidentally given to al-Haramain years ago that the Muslim charity claims proves they were wiretapped using the illegal wiretap program. Those posts explain that Walker will finally assess the warrantless wiretap program itself to determine whether it violated FISA. The second post goes on to suggest that this decision will likely impact Walker’s pending decision on whether or not the retroactive immunity passed by Congress is legal.

In this post I’m going to wallow in some delightful weeds, because they show that al-Haramain is going after Bush personally.

Recall that, back in July, Walker told al-Haramain that, before he would review the document itself to determine whether or not the program was illegal, they would have to use unclassified material to prove they are aggreived persons–that they had been wiretapped. A central part of their response to that direction was a description of a series of phone calls which they assert the government used to classify al-Haramain as a super-duper terrorist group, one with direct ties to Al Qaeda. Walker cites those calls in his opinion.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004. Belew was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. During the same period, plaintiff Ghafoor spoke by telephone with al-Buthi approximately daily from February 19 through February 29, 2004 and approximately weekly thereafter. Ghafoor was located in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. (The FAC includes the telephone numbers used in the telephone calls referred to in this paragraph.)

In the telephone conversations between Belew and al-Buthi, the parties discussed issues relating to the legal representation of defendants, including Al-Haramain Oregon, named in a lawsuit brought by victims of the September 11, 2001 attacks. Names al-Buthi mentioned in the telephone conversations with Ghafoor included Mohammad Jamal Khalifa, who was married to one of Osama bin-Laden’s sisters, and Safar al-Hawali and Salman al-Auda, clerics whom Osama bin-Laden claimed had inspired him. In the telephone conversations between Ghafoor and al-Buthi, the parties also discussed logistical issues relating to payment of Ghafoor’s legal fees as defense counsel in the lawsuit.

Remember, these lawyers have seen the document indicating they were tapped–which was probably a summary of taps and contents of those taps.

I’m guessing, then, it is not a mistake that the lawyers are honing in on these dates. That is, I’m guessing that these specific conversations were among those described in the document that al-Haramain once had in hand. Which means that when Walker reviews the document, it’ll be affirmation of precisely the argument al-Haramain makes here.

It’s easier writing these things, I guess, when you’ve seen the answers to the test.

But that’s not the really delectable part of the description of these calls. Look at this sentence.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004.[my emphasis]

Hahahahahahaha!!!

On March 11, 2004, remember, the warrantless wiretap program was operating without the approval of the Acting Attorney General. After Jim Comey refused to recertify the program on March 9, after Andy Card and Alberto Gonzales tried to get John Ashcroft to overrule Comey from his ICU bed on March 10, Bush reauthorized the program using only the legal sanction of then-White House Counsel Alberto Gonzales on March 11. 

Thus, even if the rest of the program were somehow deemed legal (which it wouldn’t be, because it violated FISA, which is the question at hand), it would be not be deemed legal on March 11, 2004, because the program didn’t have sanction from the Attorney General.

Al-Haramain has reason to believe, you see, that one of the conversations wiretappped was tapped on the day they know the program was illegal under any interpretation of the law.  And, if I’m guessing correctly on why they honed in on these conversations, Judge Walker will have proof to that fact in two weeks time.

I just finished reading Vaughn Walker’s opinion explaining that the government will have to give him the document that–the lawyers for al Haramain claim–shows they were wiretapped without a warrant under Bush’s illegal wiretap program, so he can determine whether it really does show what the lawyers claim it shows. If it does, you see, then someone will finally be able to sue Bush and his cronies for violating FISA.

If you don’t have time to read the entire opinion, I recommend you pick it up around page 16–where Walker includes a short summary of how the al Haramain lawyers proved they were surveilled under the illegal program–and then go to page 21–where Walker starts getting really cranky with the government. 

Defendants simply continue to insist that § 1806(f) discovery may not be used to litigate the issue of standing; rather, they argue, plaintiffs have failed to establish their “Article III standing” and their case must now be dismissed. But defendants’ contention that plaintiffs must prove more than they have in order to avail themselves of section 1806(f) conflicts with the express primary purpose of in camera review under § 1806(f): “to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” § 1806(f).

In reply, plaintiffs call attention to the circular nature of the government’s position on their motion:

Do defendants mean to assert their theory of unfettered presidential power over matters of national security —— the very theory plaintiffs seek to challenge in this case —— as a basis for disregarding this court’s FISA preemption ruling and defying the current access proceedings under section 1806(f)? So it seems.

So it seems to the court also.

It appears from defendants’ response to plaintiffs’ motion that defendants believe they can prevent the court from taking any action under 1806(f) by simply declining to act.

But the statute is more logically susceptible to another, plainer reading: the occurrence of the action by the Attorney General described in the clause beginning with “if” makes mandatory on the district court (as signaled by the verb “shall”) the in camera/ex parte review provided for in the rest of the sentence. The non-occurrence of the Attorney General’s action does not necessarily stop the process in its tracks as defendants seem to contend. Rather, a more plausible reading is that it leaves the court free to order discovery of the materials or information sought by the “aggrieved person” in whatever manner it deems consistent with section 1806(f)’s text and purpose.

Walker calls BushCo’s lawyers on their bogus claims and throws in a "shall" to whip them around the head. And then he gets snarky.

I don’t think you’re really supposed to incite your judge to snark.

And the significance of Walker’s crankiness extends beyond the al-Haramain case.

Walker has given the government short deadlines for responding to this order. He has required they hand over the document in question–the one that will probably show that the government did spy on the al Haramain lawyers without a warrant–in the next two weeks. If you look at your calendar, you’ll see that’s just one day before BushCo leave office and Obama takes over (though, with their stall tactic on Eric Holder, it will be before Obama’s got an Attorney General ready to take this over). Walker is also requiring the government to give the lawyers in this case Top Secret SCI clearance in crazy fast time (by mid-February) so they can continue to litigate this case. 

But it’s the first deadline–January 19–that I’m really interested in. Remember, Vaughn Walker has more than just this FISA mess on his plate. He is also–as we speak–deliberating on EFF’s suit to prevent the awarding of retroactive immunity to the telecoms for their role in the illegal wiretap program. In fact, last we heard from him, Walker was wondering why he shouldn’t wait until the new President comes in, to see whether that President’s Attorney General is really so sure that the retroactive immunity for constitutional violations was as legal as Michael Mukasey claims it to have been. BushCo, of course, insisted that it’s unheard of for a new Attorney General to reverse what the prior Administration’s Attorney General has said.

"We are going to have new attorney general," Walker interjected in Tuesday morning’s hearing in a San Francisco courthouse. "Why shouldn’t the court wait to see what the new attorney general will do?"

[snip]

"The Department of Justice rarely, if ever, declines to defend the constitutionality of a statute," Nichols said. "It’s very, very unlikely for a future DOJ to decline to defend the constitutionality of this statute."

Mukasey has made his representations on this issue–both about the constitutionality of retroactive immunity, and about the legality of the underlying program–based on his typical crap about Yoo’s OLC opinions.

But he’s also about to hand over a document to Walker that proves that there are aggrieved parties that can sue the government for violating FISA. He’s about to hand over a document that will demonstrate clearly that Bush broke the law.

It’s going to be a lot harder for Walker to find retroactive immunity legal (not least because he’s contemplating the same issues of separation of powers that has him so riled up here), and it’ll be a lot harder for Mukasey’s successor to continue to affirm the program itself was legal, if Walker is in the process of affirming that Bush broke the law. 

bmaz has said–rightly–that BushCo is likely to appeal Walker’s decision. But I suspect Walker is going to be reluctant to decide on immunity before he gets that document.

Threat Level is reporting that Judge Walker–who is overseeing several of the FISA suits against the telecoms and the government–will review the log of warrantless wiretapping of lawyers representing the Muslim charity al-Haramain to determine whether or not the lawyers were spied on illegally.

U.S. District Judge Vaughn Walker said the lawyers’ amended lawsuit, even absent the classified document, showed there was enough evidence for the case to continue. The amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity the lawyers were working for and, among other things, a speech about their case by an FBI official.

"The plaintiffs have alleged sufficient facts to withstand the government’s motion to dismiss," Walker ruled in a 25-page opinion (.pdf). Walker said the nation’s spy laws now demand that he view the classified document and others to decide whether the lawyers were spied on illegally and whether Bush’s spy program was unlawful.

[snip]

Walker’s decision Monday came six months after he ruled that he could look at the Top Secret document in private to see if the surveillance was illegal, but only if the lawyers could first find independent evidence they were allegedly spied on in violation of how the Foreign Intelligence Surveillance Act was written at the time.

On Monday, Walker ruled: "To be more specific, the court will review the sealed document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed — that is, whether the sealed document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA."

This will finally put Bush’s behavior in ordering illegal wiretapping under scrutiny by a judge. It’s a far cry, yet, from putting Bush in the pokey for his illegal acts. But at least it is judicial review.

Car sales in December were–as expected–still way down as compared to last year. But as with November, there were some interesting numbers last month. Remember–these are year on year declines (which suggests the total market is down slightly less than it was in November):

Make      Decline

Chrysler   53%
Hyundai   48%
Toyota      37%
Honda      35%
Ford          32%
Nissan      31%
GM            31%
Daimler    25%
VW            14%
Subaru      7.7%

I’m still looking for Hyundai’s US numbers, and Chrysler (which I suspect really tanked) won’t announce until later in the day.

While GM and Ford still lost more sales across the year than Toyota and Honda (because they also tanked during the gas price crash of the summer), their performance against Toyota and Honda more recently demonstrates the degree to which recent sales are a credit driven issue, and not what Richard Shelby likes to claim is a failed business model. 

Moreover, there is better news for Ford in the numbers, as its market share is beginning to rise for the first time since 2001.

Ford took an optimistic view of December’s results, noting that its December market share rose to 14.6%, up 0.7 percentage point from a year ago — the first time since 1997 it had achieved a market share increase for three straight months.

"This is a strong ending to…a very challenging year," said marketing chief Jim Farley. Ford projected a fourth-quarter 15% market share for Ford, Lincoln and Mercury — beating the year-ago figure for the first time since 2001, it said.

I keep looking at these relative numbers because we’re basically looking at two questions in the auto market right now. First, who can survive in the next two years, as the market for cars remains at these contracted levels? Because of the debt the American companies have, the answer to that question is undoubtedly the Japanese car companies. But the other question is who can survive best over the next two years? The rules of the game have changed, and surviving best will be as much about managing inventories on a month to month basis as anything else. And Ford, at least, (which outperformed Toyota and Honda last month as well), looks like it is winning that game in the short term.

Particularly as more people realize that Ford is somehow "different" than GM and Chrysler (because it didn’t need a bailout), Ford has the opportunity to really turn its brand image around. If it continues to pick up market share during this recession, it may well succeed in doing that. 

Update: I’ve added Chrysler’s numbers (from breaking news at Reuters) which were–as I expected–utterly terrible. 

Update: Both the Prius and the Tundra had worse than average declines last month, with the Tundra down 52% and the Prius down 45%. This isn’t about gas prices anymore–it’s about money.

Update: Part of GM’s less-bad-than-forecast sales were due to the GMAC deal put together at the end of the month.

GM said its December sales were helped by a zero-interest financing offer that its GMAC finance unit was able to make during the last few days of the month after GMAC was granted status as a bank holding company by the Federal Reserve.

This allowed GMAC to access money from the federal government aimed at helping banks and Wall Street firms. GMAC had essentially run out of cash to make auto loans earlier in the fall.

Shockers!! BushCo actually managed to free up credit somewhere!! And the entity involved actually offered that credit!!!

Update: Added the Hyundai numbers, which were very crappy (which explains why they’re doing the offer where they’ll take your car back if you lose your job). Please note that Hyundai is another of those Alabama manufacturers that Richard Shelby likes to boast about. 

Obama just announced several new nominations for DOJ. I thought I’d look at the two most notable appointments from the perspective of their response to Bush’s DOJ.

As expected, Obama nominated Elena Kagan to be Solicitor General, in what is almost certainly a stepping stone to a SCOTUS appointment for her.

Kagan, as Dean of Harvard Law School, is the person who hired Jack Goldsmith after he left Bush’s DOJ. Here’s what Kagan had to say about that appointment. 

 "Jack Goldsmith is a bold and creative thinker whose scholarship and teaching will enrich the Law School immeasurably," said Kagan. "His talents and energy will help to ensure that Harvard remains the premiere place to study international and comparative law."

Now, I’m not entirely opposed to hiring people like Goldsmith in academia; my sense is his scholarship–unlike that of John Yoo–is at least internally consistent, even if I disagree with it. One wonders, though, whether Kagan thought she was getting someone who approved of Bush’s torture and wiretapping, or someone who disapproved of it?

Dawn Johnsen, whom Obama has appointed to head OLC, has been much more critical of Bush’s own OLC. After the Yoo memo was leaked in 2004, she was one of a number of former OLC lawyers who signed the Principles to Guide the Office of Legal Counsel, an attempt to prevent similar misuses of the OLC advisory process. More recently, Johnsen testified before Russ Feingold’s "Secret Law" hearing. Here’s her criticism of the way the Bush Administration used secrecy to bypass statute:

The Bush Administration has not complied with this public notice standard and has operated in extraordinary secrecy, generally and with regard to its interrogation policy. Again, the Administration kept secret OLC’s determination that the President had the constitutional authority to violate a federal statutory ban on torture, in an opinion that did not evaluate Congress’s competing constitutional authorities or the most relevant Supreme Court precedent. The public learned of this determination only through a leak almost two years after OLC issued its written opinion and after the Administration began engaging in unlawful interrogations.

Rather than acknowledge it is asserting the authority to act contrary to a federal statute, the Bush Administration often claims it is simply “interpreting” the statutory provision—sometimes inconsistent with the best reading of the text and legislative intent—to avoid a conflict with the Administration’s expansive view of the President’s powers. The Administration cites for support to the judicial canon of constitutional avoidance. Given the Bush Administration’s propensity to claim that it is simply engaging in statutory interpretation when it in effect is claiming the authority to disregard a statute, Congress should amend the current notification requirement to extend beyond cases in which the executive branch acknowledges it is refusing to comply with a statute. Presidents should explain publicly not only when they determine a statute is unconstitutional and need not be enforced, but also whenever they purport to rely upon the constitutional avoidance canon to interpret a statute.

[snip]

The Bush Administration, however, repeatedly has relied upon the avoidance doctrine in secret, depriving Congress of any opportunity to respond with clarifying legislation. Congress cannot effectively legislate unless it knows how the executive branch is implementing existing laws. Moreover, if the President refuses even to notify Congress when he refuses to comply with a statutory requirement, Congress—and the public—has little ability to monitor the executive branch’s legal compliance and significant reason for suspicion. The public notification regarding either nonenforcement or the use of the avoidance canon should contain sufficient detail and analysis genuinely to inform the public of the legal reasoning behind the administration’s legal conclusions, as well as of its potential future action.

Our system does not work when the executive branch secretly determines not to follow enacted statutes—or interprets them away under extreme constitutional theories. This is not to deny the executive branch its constitutional authority. It is to assure that in our constitutional democracy, where the rule of law is paramount, all branches of government and the American people know what the law is.

Let’s hope Johnsen maintains these standards when she assumes control over OLC.

Now, to be fair, these are not parallel comments on Bush’s OLC. But there is much to be thrilled about with the Johnsen nomination. Kagan, on the other hand, seems to be much more closely tied to Obama’s desire for post-partisan love and happiness throughout his government. 

Update: Here’s Glenzilla rejoicing over the Johnsen nomination.