I was putting together notes for my Netroots Nation panel next Saturday on torture accountability and realized it has been over three weeks since reports said Eric Holder would appoint a prosecutor in the next two. But according to the LAT, Holder still intends to appoint a prosecutor–and still intends to sharply circumscribe the investigation.

U.S. Atty. Gen. Eric H. Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects, current and former U.S. government officials said.

A senior Justice Department official said that Holder envisioned an inquiry that would be "narrow" in scope, focusing on "whether people went beyond the techniques that were authorized" in Bush administration memos that liberally interpreted anti-torture laws.

The story reports that some of the potential subjects of investigation are still at CIA–though had been on the verge of retirement.

Bracing for the worst, a small number of CIA officials have put off plans to retire or leave the agency so that they can maintain their access to classified files and be in better position to defend against a Justice investigation.

"Once you’re out, it gets a lot harder," said a retired CIA official who said he had spoken recently with former colleagues.

And it suggests that the contractors will also be investigated.

The inquiry would also likely target private contractors who worked for the CIA during the interrogations.

But perhaps the most interesting revelation is that some of the torturers did not know what was in the John Yoo memo.

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

That’s interesting, first of all, because of the evidence that one of the documents used to develop the Bybee memo–and not the Bybee memo itself–described waterboarding as practiced. Is it possible that that was the only document the torturers read? Is it possible that Yoo wrote the Bybee memo knowingthat the more expansive limits would be followed?

In any case, if it’s true that the torturers didn’t know the limits in the Bybee memo (or at least, that DOJ can’t prove they knew those limits), then it all becomes a management issue again. Who didn’t tell the torturers of the limits of the Bybee memo, George Tenet? 

Of course, so long as Holder refuses to investigate those who somehow neglected to let the torturers know about the limits on torture as described in the Bybee memo, then it doesn’t really matter, does it?

It has been pretty apparent, given Alberto Gonzales’ utter failure to stumble on any wingnut welfare since resigning, that the Bush camp hasn’t been helping him out much.

But an interview in the NYT shows just how much relations between Gonzales and Bush have chilled.

Do you still talk to President Bush?
I have not spoken with the president since he left office.

Have you ever been tempted to pick up the phone and say hi to him?
I do, of course, think about our time together, and there are times when I think about doing that. But listen, I know that he has his life to live. I’ve got challenges and my life to live as well.

This of course means Gonzales has not been invited to Bush’s legacy planning meetings (not surprisingly). But it also means Gonzales hasn’t even bumped into Bush in over six months. That would be hard to do, if Gonzales were traveling normal Texas Republican circles.

I’m particularly interested in Gonzales’ representation of the timing of this: he says nothing about whether he spoke to Bush before he left office. I wonder whether something happened at the end to make Gonzales clam up? Did Gonzales, for example, ask for a little Bushie pre-emptive pardon, just like Cap Weinberger got?

Add in Gonzales’ whining about his legal bills–and the suggestion that Bush and Cheney have not been forthcoming to help with them–and it all seems to reinforce the notion that Bush has sacrificed Gonzales to legal problems he has at least partly because of larger Bush Administration actions.

Have you asked Bush or Cheney to help defray your legal bills?
I have not asked them personally.

I think you should ask them. They got you into this pickle. Shouldn’t they help get you out?
Listen, I have a group of supporters that are helping me fund-raise. They’re making decisions about how to do this successfully.

What are your legal bills like?
Substantial. I’ll say that obviously it’s been a burden. We did establish a legal-defense fund, and we have raised and are in the process of raising additional monies to pay for the lawyers.

But then, Gonzales has been whining about his bills for some time, to no avail. 

Given the news that Nora Dannehy is seriously considering charges, I do wonder whether Gonzales might consider saving himself in exchange for exposing those who (to some degree) got him into this position?

I’ve been meaning to put up a Friday trash talk for some time. I tried to convince bmaz to do it. But ever since his man Brett Fav-ruh said no to the Vikes, bmaz has been pouting. And while I hope that Fav-ruh un-retires around mid-season, so bmaz will get out of his funk, on the off-chance that the Kitties are on a resurgance this year, I’m happy that Fav-ruh declined to move back to the neighborhood.

And then I was going to write to note the passing of Jim Johnson. He will be missed. 

I thought about doing a pool–enter your guess and win a hubcap!!–about whether and where Mike Vick might try to mend his ways. I’m surprised, frankly, that Al Davis hasn’t picked him up–they might enjoy each others’ company.

But what finally signaled that it’s time to start trashing again is the latest spying scandal in football: players Tweeting during pre-season. The big scandal, of course, is that the pre-season favorite, the San Diego Super Chargers, are feeding their players "nasty food." A secret it cost Antonio Cromartie $2500 to spill.

Cromartie said he was pulled out of a meeting by Twitter cop/head coach Norv Turner and notified that he was being fined. Cromartie also was a given a letter that spelled out the fine.

The fourth-year pro had a good laugh over the matter, but said he’s going to be more careful. Still, he’s not going to stop tweeting.

He also thinks the fine is a bit excessive.

"But other than that, I mean, I ain’t going to take back what I said," Cromartie said after practice Tuesday afternoon. "I said what I had to say. But at the end of the day, I mean, I got fined for talking about nutrition and that. I can’t really say too much else.

"I just thought it was harmless. It was just me talking about the food and stuff. I took it as a joke. But other people took it as a different kind of way."

Cromartie thinks the mole occupies an office somewhere in the team’s executive suite.

Between Cromartie’s leaking of important secrets and Shawne Merriman’s insightful tweets (his most recent as of this posting? "Wow"), I figure this is just enough distraction to keep the Bolts out of the Super Bowl (leaving room for the resurgent Pats). 

Let me just make this clear to my buddy BillBel, though. It is NFL policy: no tweeting during games, no tweeting from the stands. So please don’t get caught doing something stupid in the middle of a Jets game. ‘Kay? 

And with that, I open up the first offical Pre-Season Trash Talk thread…

Dana Milbank reveals what really doomed Mouthpiece Theater.

Dana Milbank says it was clear that "Mouthpiece Theater" wasn’t working even before the "Bitch Beer" brouhaha. "We were trying to squeeze it into our daily routines, writing and filming it while still keeping up our other responsibilities, in my case writing four columns a week and in [Chris] Cillizza’s case writing umpteen blog items a day …If anybody has an idea about a video format that might work, please let me know." [my emphasis]

Now, the last time I heard Milbank complain about his oppressive workload of 4 columns a week, he also noted that those columns were 750 to 800 words (and that some weeks, he does just three columns). 

After which, in backstage discussions here at FDL, we’ve routinely made fun of this new unit, the "Milbank Unit." The context is usually something like, "Hey Gregg, I’ve published three Milbank Units this morning, can I break for lunch yet?" Or, "I’m kind of tired today, maybe I’ll produce just two Milbank Units today."

Poor, poor Dana Milbank–whose job appears to be attending important events like the latest Mohammed Jawad hearing and then going home to write about the Beer Summit he watched on TV instead.

In spite of the fact that his Beer Summit column was somewhat derivative of the legendarily crappy Mouthpiece Theater that got pulled, after his terribly taxing workload Dana just doesn’t have anything left to be funny, I guess.

And that, Dana explains, is why Mouthpiece Theater sucked so badly.

Digby and mcjoan both have good posts on the question of whether or not Obama made a deal with PhRMA for $80 billion in concessions for an agreement that negotiating on drug prices won’t be a part of health care reform. A short recap:

August 5: Deputy Chief of Staff and former Max Baucus Chief of Staff Jim Messina says there is a deal

August 6: Messina and David Axelrod tell Sherrod Brown there is no deal

August 6: White House spokesperson Dan Pfeiffer says there is too a deal

Pfeiffer, incidentally, suggests Brown may have misunderstood what he was told–which (according to Pfeiffer) is that Dems can negotiate price caps outside of health care reform.

Me, I suspect the real misunderstanding is that Pelosi and Brown and everyone else trying to do this right misunderstand that the White House has already decided that the Senate Finance Committee bill will be the bill, and the hard work they’ve been doing to come up with better bills has just been smoke and mirrors to make the progressives think they had some role in this process.

But aside from the question, Deal or No Deal, I’ve got another question.

Why the fuck isn’t Billy Tauzin, the head of PhRMA, sending out representatives to every town hall across the country to pitch the value of health care reform? Why hasn’t Bristol-Myers Squibb gotten Dick Armey to call off the violent hordes at the town halls?

If Billy Tauzin has really exacted the deal it appears he has, it means the pharmaceutical industry has turned health care reform into a giant government subsidy for their industry. Well, then, why aren’t they leading the way in supporting this crappy bill?

Let’s get one thing straight: Tennessee is a car state. And so is Missouri. In fact, unlike Missouri, Tennessee does not have a car on the top 10 new vehicle purchased under Cash for Clunkers. Nevertheless, Tennessee’s two Republican Senators voted for the program. But Claire McCaskill did not.

Here are the votes that deviated from party line (final vote was 60-37):

Republicans Voting Yes:

Brownback (KS)

Collins (ME)

Snowe (ME)

Bond (MO)

Voinovich (OH)

Alexander (TN)

Corker (TN)

Democrats Voting No:

McCaskill (MO)

Nelson (NE)

Leahy (VT)

Warner (VA)

Democrats Not Present:

Mikulski (MD)

Kennedy (MA)

Byrd (WV)

I look forward to McCaskill’s Tweeted explanation for why she was almost alone of car-state Senators voting against an effective stimulus program. Unfortunately for McCaskill, even the normally press-friendly but regressive Bob Corker won’t be able to give her reasons, since he voted in favor.

Or perhaps worse than Alberto Gonzales.

At John Brennan’s speech today, Spencer asked a question I’ve been hoping to have clarified since the IG Report revealed that two departments Brennan managed were in charge of targeting for Bush’s illegal surveillance program.

So today I asked Brennan: in light of the IGs report, what was his role, if any, in the domestic surveillance activities of the Bush administration? Here’s his answer, in full:

I fulfilled all my responsibilities at NCTC [National Counterterrorism Center] that I was asked to fulfill. And there are a number of different programs, some of which have come out in the press, some of which have not. Some of the things that have come out in the press have been inaccurate in terms of the representations there. And when I look back in terms of my service at the NCTC and those places I believe I fulfilled those responsibilities to the best of my abilities.

These issues related to the so-called domestic surveillance programs and other things — one of the things I mentioned, there’s a lot of hyperbole and misrepresentations about what actually happened. And a lot of times people go down certain roads believing reports as facts. And that’s not the case. So I’m not going to go into sort of what my role was in that instance because a lot of those activities are still considered classified and not in the public domain, irrespective of what the press reports might be out there.

Brennan is either conflating unspecified inaccurate press reports with the inspectors general report or he’s challenging the inspectors general report itself.

Brennan seems to be doing two things. First, he’s using the same tactic adopted by Gonzales when he dodged questions about Bush’s illegal spying program by playing semantics about whether there was one program or many. Gonzales claimed there was no disagreement about the program by segmenting off the actual wiretapping of targets from the data mining which–the IG Report seems to confirm–was the key issue in the dispute. By claiming the Terrorist Surveillance Program was distinct from the data mining, then, Gonzales got away with claiming under oath that there had been no dispute.

Here, Brennan is suggesting either that the aspects of the program that have come out in the press aren’t the aspects he was involved in, or that the reporting on it has been inaccurate. Or rather, "either" … "and/or." No matter which conjunction you use, he’s avoiding admitting he was involved in Bush’s illegal surveillance program by simply claiming the parts he was involved in haven’t been accurately portrayed, if they’ve been portrayed at all. 

But worse than Gonzales, Brennan is making an appeal to following orders. 

I fulfilled all my responsibilities at NCTC [National Counterterrorism Center] that I was asked to fulfill. …  And when I look back in terms of my service at the NCTC and those places I believe I fulfilled those responsibilities to the best of my abilities.

We don’t really give a goddamn whether you fulfilled all the orders Dick Cheney gave you, Mr. Brennan. We want to know how many of those orders were illegal. How many of those orders did you know to be illegal?

You mean we had to bail out AIG because Hank Greenberg was making misrepresentations about the company’s profits that enabled it to keep blowing up the bubble?

The Securities and Exchange Commission today charged former American International Group Chairman and CEO Maurice "Hank" Greenberg and former Vice Chairman and CFO Howard Smith for their involvement in numerous improper accounting transactions that inflated AIG’s reported financial results between 2000 and 2005. The SEC alleges that Greenberg and Smith are liable as control persons for AIG’s violations of the antifraud and other provisions of the securities laws. Smith also is charged with direct violations of the antifraud and other provisions of the securities laws.

The SEC alleges that Greenberg and Smith were responsible for material misstatements that enabled AIG to create the false impression that the company consistently met or exceeded key earnings and growth targets. According to the SEC’s complaint, Greenberg publicly described AIG as the leader in the insurance and financial services industry with a history of delivering consistent double-digit growth. However, AIG faced numerous financial challenges under Greenberg’s leadership that were disguised through improper accounting.

[snip]

The SEC’s complaint, filed in U.S. District Court for the Southern District of New York, charges the defendants with responsibility for the following improper accounting transactions:

• Sham reinsurance transactions to make it appear that AIG had legitimately increased its general loss reserves.

• A purported deal with an offshore shell entity to conceal multi-million dollar underwriting losses from AIG’s auto-warranty insurance business.

• Economically senseless round-trip transactions to report improper gains in investment income.

• The purported sale of tax exempt municipal bonds owned by AIG’s subsidiaries to trusts that AIG controlled in order to improperly recognize realized capital gains.

And do you want to guess how much a first-hand role in the bubble costs a gazillionaire? $15 million.

Greenberg and Smith agreed to settle the SEC’s charges and pay disgorgement and penalties totaling $15 million and $1.5 million, respectively.

Hmmm. Greenberg pays $15 million, taxpayers pay over a hundred billion, and Eliot Spitzer remains sidelined because he (admittedly, utterly hypocritically) slept with a high priced sex worker.

Eight years ago, our President was on vacation, ignoring a Presidential Daily Brief that warned, "Bin Laden Determined to Strike in US." The brush on a pig farm in Texas, you see, was far more  important.

And here we are now, six whole days in to August, and Obama’s just got one week planned on Martha’s Vineyard. How will the brush get cleared? How will the PDBs get ignored?

Obama has chosen today, PDB day, for John Brennan’s coming out party, where Brennan will present Obama’s new direction in counterterrorism. (Spencer will be liveblogging from the talk at the Windy).

There are parts of today’s speech that are welcome. This is a reiteration of Obama’s March renunciation of the War on Terror.

"This is not a ‘war on terror.’ . . . We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world." 

It’s an embrace of soft power–a real engagement with the rest of the world. (Mind you, Bush tried it, but sent Karen Hughes to do the job.)

Washington must couple the military strikes that have depleted al-Qaeda’s middle ranks with more sustained use of economic, diplomatic and cultural levers to diminish Islamist radicalization, he said, exercising "soft power" in ways that President George W. Bush came to embrace but had trouble carrying out.

 But it also seems to represent the ascendancy of John Brennan, Obama’s holdover from Bush’s War on Terror team.

"His portfolio is growing, not shrinking," said Mark Lippert, a longtime Obama foreign policy aide and now chief of staff for the National Security Council, which is run by Brennan’s boss, national security adviser James L. Jones. Brennan’s role spans terrorism, cybersecurity, swine flu and some intelligence matters. "He has the president’s trust. . . . Folks from all parts of the policy and intelligence community respect him," Lippert said. 

I’m sure John Brennan is very knowledgable and all. But he was also, apparently, intimately involved in the illegal activities of the Bush Administration, particularly Bush’s domestic surveillance program. 

So soft power is all well and good–provided we make a more competent attempt at it than Karen Hughes was able to muster. But will it move beyond the abuse of power Brennan was involved in under Bush?

Spencer has an appropriately skeptical look at this at the Windy:

… it’s on Brennan to explain how this approach is more than saying, No, no, we mean it this time … Is there an ideological component? Or does that implicitly overestimate the intellectual force that al-Qaeda possesses and counterproductively links al-Qaeda to a mainstream of Islamic thought? How does Brennan link Afghanistan, where the mission appears to be moving to something beyond counterterrorism, to this effort? Are these changes in policy or changes in branding?

And: how do the Republicans react? If the Obama administration is doing anything, it’s slowly killing the idea of a war on terrorism, which became almost a culture-war issue during the Bush era. “You cannot win a war when you don’t believe you’re fighting one,” President George W. Bush hectored in the days before the 2004 election.

Maybe it’ll draw Cheney out of his cave to attack Obama–we haven’t had a Darth Cheney sighting in a while.

Assistant Attorney General Lanny Breuer’s background has been a key topic of discussion in CREW’s lawsuit to force DOJ to release Dick Cheney’s interview with Patrick Fitzgerald. The problem is, DOJ forgot to reveal that Breuer had represented one of the people involved with issues directly related to Cheney’s interview.

DOJ needed an expert on investigations of White House officials–so they got Breuer

During a hearing on whether or not DOJ should release Dick Cheney’s interview with Patrick Fitzgerald back in June, Judge Emmet Sullivan suggested that DOJ ought to have someone with actual experience in investigations of high level White House officials make their argument that releasing Cheney’s interview would make such investigations more difficult in the future.

MR. SMITH: In this case I don’t see — the law enforcement issue here is very unique and it’s very different than I think in Sussman and in most other cases. It’s an interest, it’s basically a chilling interest that if the Vice-President’s interview is released, that could have a chilling effect on future senior leadership.

THE COURT: Says who?

MR. SMITH: Says the Attorney General Mukasy [sic], that was his conclusion.

THE COURT: He didn’t file a declaration. Mr. Bradbury filed a declaration. He didn’t base it upon any experience, he didn’t base it upon anything. He didn’t articulate the bases for his declaration. Other than he was designated to follow declaration. So it wasn’t Mr. Mukasy [sic] who filed the declaration which arguably could have carried great weight. If the chief law enforcement officer says based on my experience and experience of others in law enforcement, it could have but that’s not the case here. Bradbury was a political appointee. I don’t know what his experience was. He was appointed to, maybe he was appointed to file this declaration. I don’t know what else he did. He’s no longer there at OLC. And essentially the government in footnote says I should defer to his declaration.

This is not a deferential review. I want to be clear I’m not suggesting that the Attorney General should sign a declaration. I’m not ordering, certainly not ordering him to do anything, but I’m just saying in response to what you just said arguably it could have carried greater weight for such a declaration to come from a law enforcement official based upon his or her experiences with respect to this chilling effect. Otherwise, it’s just an assumption this man makes based upon nothing he can point to. [my emphasis]

So rather than have the discredited Steven Bradbury submit this declaration, DOJ got Breuer to do so. After Breuer submitted a statement arguing that release of Cheney’s interview will present some new disincentive for high level White House officials in the future to cooperate that thirty years of routine release don’t already present, CREW questioned what basis Breuer had to make that claim.

The only experience plaintiff is aware of Mr. Breuer having with law enforcement investigations involving the White House is his tenure as special counsel to President Clinton during the Independent Counsel’s “Whitewater” investigation. Mr. Breuer “appeared before the grand jury . . . and invoked Executive Privilege,” a claim that was rejected by Chief Judge Johnson and that the Independent Counsel described as “interposed to prevent the grand jury from gathering relevant information.”

In response, DOJ played up Breuer’s experience relevant to this issue.

Mr. Breuer’s experience in criminal law and government investigations is, in fact, extensive. Prior to his appointment as Assistant Attorney General for the Criminal Division, Mr. Breuer served as an Assistant District Attorney in Manhattan, a senior legal official in the Clinton Administration, and the Co-Chair of Covington & Burling’s White Collar Defense and Investigations practice group.

What they didn’t say, though, is that Breuer represented someone involved in this very case.

What they didn’t say is that Breuer represented someone whose involvement in this matter may be related to precisely those things being hidden by DOJ’s refusal to release the interview.

Lanny Breuer represented one of the people at CIA involved in responding to Dick Cheney’s inquiries

Breuer, as his financial disclosure reveals, has provided John Kiriakou at least $5,000 of legal services. Now, Kiriakou is best known for going on ABC in 2007–shortly after the destruction of the torture tapes was first revealed–and claiming Abu Zubaydah was waterboarded just once, for 30, 35 seconds. A claim that, as readers of this site know well, turned out to be totally false.

But Kiriakou was also closely involved in the CIA Leak case. He was the one who, on June 10, 2003, was trying to come up with some answers about Joe Wilson for Vice President Cheney. He’s the author of the email that explains,

The VP apparently heard the below story and had questions on it. The DDCI needs a response before his noon meeting tomorrow (Wednesday [June 11]) with the VP, so if you could get back to me by 1000 or 1100 tomorrow, I’d appreciate it. Thanks a million.

Story: In Februay 2002, CIA received an initial report of a shipment of uranium from Niger to Chad [sic]. Former Ambassador to Cameroon [sic] Joe Wilson (an old friend of the Agency and former Charge d’Affaires in Baghdad) was supposedly sent by CIA to Niger to investigate the story. He did so, and he concluded that there was no truth to it. Wilson said that he was debriefed by a CIA case officer who flew in (to where is unclear) [redacted].

VP Questions: Is this story true? Do we have a chronological account of the above events? What is the nature of Wilson’s relationship with CIA? What exactly did Wilson report to us? Was this in a reporting cable [redacted] (if it was, can somebody send me a copy of it? Will you also send me a copy of the intel? [redacted] Didn’t the Brits come out with a similar report detailing a Niger-Iraq uranium connection? [redacted]

And that’s relevant because two of the things DOJ is trying to protect in Cheney’s interview pertain to Cheney’s conversations with the CIA–precisely what Kiriakou was personally involved in.

Vice President’s discussion of the substance of a conversation he had with the Director of the CIA concerning the decision to send Ambassador Wilson on a fact-finding mission to Niger in 2002. (Page 3, lines 15-17, 21-28)

Vice President’s discussion of his requests for information from the CIA relating to reported efforts by Iraqi officials to purchase uranium from Niger. (Page 6, lines 30-33, 39-40)

Indeed, Cheney’s conversation with Tenet is one of just two things in the interview DOJ is trying to hide that was not otherwise released in some form at the Libby trial (the other being a conversation Cheney had with Condi Rice). And we know that Kiriakou was gathering evidence for Tenet’s Deputy, John McLaughlin, on precisely this issue, around the same time that–Libby claimed–Tenet told Cheney about Plame’s identity.

Lanny Breuer’s ethics letter limits whether he can participate in issues related to people he represented

Now, I’m not sure whether and to what extent that at-least $5,000 of legal services involved helping to explain the context of Kiriakou’s e-mail about collecting information for Cheney. But I do know that Breuer has a letter agreeing that he would not participate in any matter in which a former client of his is a party for one year after he last provided services to that client.

For a period of one year after his resignation from the law firm of Covington & Burling, LLP, he also will not participate personally and substantially in any particular matter involving specific parties in which that law firm is a party or represents a party, unless he is first authorized to participate pursuant to 5 C.P.R. § 2635.502(d). In addition, he will not participate personally and substantially in any particular matter involving specific parties in which a former client of his is a
party or represents a party for a period of one year after he last provided service to that client, unless he is first authorized to participate pursuant to 5 C.F.R. § 2635.502(d).

Now, so long as Breuer’s relationship with Kiriakou ended at least a year ago, so long as Covington & Burling is not still representing Kirakou, this letter should not be a problem at all (yes, I’m working on finding out when C&B ended their relationship with Kiriakou).

But as a matter of common legal ethics, shouldn’t Breuer at least reveal to the Court that he represented someone who was personally involved in precisely the matters DOJ is trying to hide? 

There was a fair amount of back-and-forth in court filings about why Lanny Breuer was the one guy at DOJ best qualified to make the Jon Stewart defense: Whitewater, Assistant DA, Covington & Burling’s White Collar Defense practice. Somehow, though, DOJ forgot to mention Breuer’s most direct qualification for assessing whether the exposure of Cheney’s interview would embarrass him: representing one of the guys who was personally involved in one of the matters DOJ is trying to hide, Cheney’s discussions with the CIA about Wilson.

You’d think DOJ maybe could have mentioned that.