I asked in my earlier post on the NYT leak of Jim Comey emails what the big rush was in May 2005 that Comey couldn’t use a week to fix the "combined techniques" opinion.

The emails themselves explain the rush–and that rush should have been the NYT story. On April 28, 2005, Comey wrote:

[Alberto Gonzales’s COS Ted Ullyot] mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

In other words, the May 10, 2005 authorization to use combined techniques was designed to give legal cover for something that had already happened.

Now, the other memo mentioned Hassan Ghul several times–Ghul’s interrogators were making requests to use torture in August 2004. Was this the torture they were authorizing after the fact?

And if so, why was it so critical to authorize, since Dan Levin had authorized even waterboarding the previous August? And did they use waterboarding, even though they claim not to have?

More importantly, where is Hassan Ghul? He has not surfaced at Gitmo. Are they trying to hide the reasons why?

Update: Corrected that Comey’s conversation was with Ted Ullyot, and not with Gonzales directly.

Update: Read the Comey emails. The NYT has–IMO–grossly misrepresented the emails. Not only have they printed a story with their source’s spin completely untouched, but they have ignored the real news in these emails.

The NYT has been leaked a bunch of the emails that will show up in the Office of Public Responsibility report on John Yoo, Jay Bybee, and Steven Bradbury’s role in approving torture. (h/t Jason Leopold) Their story on the emails appears to be a pre-emptive (and somewhat misleading) strike on the OPR report due out shortly.

The most news-worthy of these appears to be Jim Comey, agreeing that the May 10, 2005 opinion authorizing waterboarding was “ready to go.”

Previously undisclosed Justice Department e-mail messages, interviews and newly declassified documents show that some of the lawyers, including James B. Comey, the deputy attorney general who argued repeatedly that the United States would regret using harsh methods, went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful.

That opinion, giving the green light for all 13 C.I.A. methods, including waterboarding and up to 180 hours of sleep deprivation, “was ready to go out and I concurred,” Mr. Comey wrote to a colleague in an April 27, 2005, e-mail message obtained by The New York Times.

While signing off on the techniques, Mr. Comey in his e-mail provided a firsthand account of how he tried unsuccessfully to discourage use of the practices. He made a last-ditch effort to derail the interrogation program, urging Attorney General Alberto R. Gonzales to argue at a White House meeting in May 2005 that it was “wrong.”

“In stark terms I explained to him what this would look like some day and what it would mean for the president and the government,” Mr. Comey wrote in a May 31, 2005, e-mail message to his chief of staff, Chuck Rosenberg. He feared that a case could be made “that some of this stuff was simply awful.”

Now, I say this is a misleading attempt to pre-empt the OPR report.

I say it’s misleading not because I’m trying defend Comey for “going along with” this memo. But because the story buries the fact that Comey still did oppose the May 30, 2005 May 10 techniques memo (which raises the question of why these approvals came in three different memos).

His objections focused on a second legal opinion that authorized combinations of the methods. He expressed “grave reservations” and asked for a week to revise the memorandum, warning Mr. Gonzales that “it would come back to haunt him and the department,” Mr. Comey said in a 2005 e-mail to Mr. Rosenberg.

Thus, the story obscures whether these memos address the torture statute, or compliance with CAT more generally, and oversells the terms of the debate.

Furthermore, this story presents as “news” stuff that we already knew–such as that Dan Levin signed off on waterboarding in August 2004.

Mr. Levin, now in private practice, won public praise with a 2004 memo that opened by declaring “torture is abhorrent.” But he also wrote a letter to the C.I.A that specifically approved waterboarding in August 2004, and he drafted much of Mr. Bradbury’s lengthy May 2005 opinion authorizing the 13 methods.

We’ve known that Levin signed off on waterboarding in August 2004 for some time, not least from the SSCI narrative on torture. (It would be truly news if the NYT explained precisely why–aside from the detainee’s obesity–CIA didn’t use that approval to waterboard Hassan Ghul, as they were asking to do.) And this story includes no discussion of whether the “CIA’s proposed limitations, conditions and safeguards” included in Levin’s approval made waterboarding a lot less interesting for the interrogators.

The story also gives new details about Jack Goldsmith’s withdrawal of the Bybee One memo.

In addition, in a previously undisclosed letter to the agency, Mr. Goldsmith put a temporary halt to waterboarding. But he left intact a secret companion memo from 2002 that actually authorized the harsh methods, leaving the C.I.A. free to use all its methods except waterboarding, including wall-slamming, face-slapping, stress positions and more.

But we knew from the SASC report that Bybee Two was in the short stack that Goldsmith found problematic, and we’ve known (obviously) that Bybee Two was never withdrawn.

In other words, my gripe with this is not that the NYT has published this as a story–but they appear to have published it as the story the leakers wanted, rather than to examine the questions even these damning emails raise. For example, what does it mean that Dick Cheney had pushed so hard for the May 30 May 10, 2005 techniques memo that Gonzales wouldn’t even allow Comey a week to make the memo less than embarrassing?

Mr. Gonzales told him that he was “under great pressure” from Vice President Dick Cheney to complete both memos and that President George W. Bush had asked about the memorandums, Mr. Comey recounted in one of the 2005 e-mail messages.

And what was the big rush for, anyway?

And what does it mean that CIA asked Chertoff to grant immunity in advance?

They had asked Michael Chertoff, then head of the Justice Department’s criminal division, to grant interrogators immunity in advance from prosecution for torture. Mr. Chertoff refused, but neither did he warn the agency against the methods it was proposing.

And given the use of such a phrase by others–such as Diane Beaver–why are we so sure that Chertoff didn’t give implicit immunity in advance?

These are interesting new (well, some of them) details, don’t get me wrong. They portray Comey, especially, in a nuanced light (but Mary’s has been trying to make that point for years). But they also raise questions that are totally different than the ones that the NYT–and its source, presumably–would like to raise.

The other day, I did a post that summarized where we are on the interlocking warrantless wiretap claims. I summarized the state of affairs as follows:

• Al-Haramain’s briefing on summary judgment due in late summer with a hearing September 1
• The retroactive immunity challenge headed to the 9th for appeal, plus a possible refiling for telecom actions (probably) after January 7, 2007
• The hearing in Jewel scheduled for July 15
• The state cases dismissed pretty definitively
• The Jeppesen ruling and its potential effect on the government’s invocation of state secrets in Jewell
• Any discovery action in the Seda case
• The legally required IG report on warrantless wiretapping due (ha!) next month

Since the beginning of the year, Walker has been proceeding very deliberately (read, slowly) with the cases under his control (indeed, the September 1 hearing date for al-Haramain may suggest he continues to do so), during which time a number of issues in these cases have solidified. In some cases, this holds true just for his courtroom; in others, it holds true at the 9th Circuit. Most haven’t been tested in SCOTUS yet. This deliberation sucks, insofar as the criminal statute of limitations on the primary illegal wiretapping that occurred in March 2004 has expired. But I think Walker allowed everything to mature such that–on Thursday–he felt he could move three of them forward at once. In this post, I’ll explain what I think has matured in these cases, and look at how it affects the Jewel suit against the government. In a follow-up post I’m going to look at what it might mean for post-January 7, 2007 surveillance.

Here’s my NAL understanding of what has matured in that time (as always, feel free to kick my ass on my misunderstanding of the law or any other aspect of this).

• The Court of Appeals made it clear that the government must assert state secrets with respect to individual pieces of evidence, not information. This means the government cannot–as it has tried to–just declare the entire question of whether US person data was vacuumed up a state secret.
• The Court of Appeals refused the government’s interlocutory appeal of Walker’s ruling that al-Haramain had sufficiently proved it had aggrieved status such that he could review the evidence to see if the charity had been wiretapped (this was also an unsuccessful attempt to appeal his ruling that FISA trumped state secrets that they had flubbed the previous summer). This means the 9th is probably going to give Walker leeway to rule on other aggrieved party statuses, if he does so.
• Vaughn Walker got four new declarations presumably correcting an "inaccuracy" in how Bush’s DOJ had described the surveillance done on al-Haramain and probably giving him a much better idea how the surveillance worked.
• Vaughn Walker just affirmed the government’s insistence that the legislative record holds significant sway in these proceedings, but also that under Navy v. Egan Congress can legislate restrictions on the handling of classified information. This carves out a space where a judge can assess liability for illegal surveillance, even in the face of the government’s attempt to claim this is all secret (though Walker’s affirmation of this argument hasn’t been tested yet). 
• The Supreme Court ruled in Iqbal that a plaintiff must submit specific facts for a claim to overcome qualified immunity of a government employee in his official duties.

What’s Next

Now, if I understand this all correctly, it means that Walker will use the following process for suits going forward:

1. Is the suit prohibited by the FISA Amendments Act (that is, is it a state-based suit or a pre-January 7, 2007 suit against telecoms which the AG has certified should be dropped)?
2. If not, then the plaintiff should present a case for aggrieved status under FISA (and/or some other statute, which I’ll get back to in my next post, maybe).
3. The government may only claim state secrets with regards to individual pieces of evidence, not information about the program generally, and if Walker finds the case to be sufficient, then the 9th isn’t going to stop him from reviewing further before ruling.
4. In addition to Walker’s "FISA trumps state secrets" ruling (which still stands, but hasn’t been tested in practice yet), even the government agrees the legislative record on the FAA can be reviewed closely to judge the law.
5. The plaintiff must overcome the bar set by Iqbal.

Now, granted, all of this doesn’t get a plaintiff to Anthony Kennedy’s doorstep (particularly not with regards to the FISA trumping state secrets in practice)–but it gets you part of the way there. 

Not only does this seem to be the process in place, but Walker has indicated–at least preliminarily–that he thinks it offers real opportunity for plaintiffs to challenge the government on its warrantless wiretapping. In his retroactive immunity ruling, he wrote,

The United States and the telecommunications company defendants counter that while suits against telecommunications companies are foreclosed, neither the statute nor the government’s actions prevent plaintiffs from seeking redress for their constitutional claims against the government actors and entities. Doc #520 at 12. Lest any further reassurance be necessary, the SSCI report states: “The committee does not intend for [section 802] to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President’s program.”

The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities. Indeed, the same plaintiffs who brought the Hepting v AT&T lawsuit (C 06-0672 VRW) are now actively prosecuting those claims in a separate suit filed in September 2008 against government defendants before the undersigned judge. Jewell v United States, C 08-4373 VRW, filed September 18, 2008. Jewell thus joins several other cases in this MDL which seek relief only against government defendants.

Walker here emphasizes Congress’ insistence that claims against the government can move forward while asserting plaintiffs do have a means of redressing harm. He seems to have a reason to believe that–and not just in al-Haramain, but in Jewel, too. And that’s coming from a guy who has read all the evidence submitted by EFF and all the declarations submitted by the government. 

With that in mind, let’s look at the Jewel suit, the suit against the government and government officials who illegally surveilled Americans that–Vaughn Walker says–offers a means to redress abuses. It alleges that the government and named defendants violated AT&T customers’ First and Fourth Amendment rights, FISA, the Wiretap Act, the Electronic Communication Privacy Act, and the Administrative Procedures Act. Significantly, it focuses on the vacuuming up of data and data mining of it, rather than on the wiretapping that happened later. Thus, in the FISA, Wiretap, and ECPA violations, the complaint focuses as much on the use of illegally-collected information as its collection.

Now, Walker has explicitly noted that Jewel passes the bar set by FAA–it focuses on government employees, and not the telecoms immunized by Congress.

The government has already invoked state secrets in this case. But–as I mentioned and EFF hammered on in their most recent filing–that invocation of state secrets claimed to protect about six kinds of information, not evidence. So at the very least, the government is going to be sent back to the drawing board to fight over state secrets on discrete bits of evidence, rather than on wide swaths of information.  I suspect that will be the specific outcome of the hearing next month, perhaps in tandem with a more pointed direction to EFF to show aggrieved status.

EFF’s Summary of Evidence

And there’s a lot of evidence in question, most of which the government cannot possibly claim state secrets on. Back in October, EFF submitted a summary of evidence in the case, laying out its case that the government and the defendants violated the law (it was accompanied by several binders of the evidence itself). The narrative itself really is pretty comprehensive and I encourage you to read it for its content. But just in light of the government’s attempt to claim state secrets, here are some of the pieces of evidence included in that summary.

Evidence implicating named individuals and showing the program violated FISA

• Presidential order authorizing the program (referenced in Lichtblau)
• SSCI testimony of Benjamin Powell (describing that surveillance was done pursuant to Presidential authorization)
• Jack Goldsmith’s "blow through" FISA statement implicating Addington
• 2007 SJC Ken Wainstein testimony (saying the written declarations did not constitute a proper written order)
• 2007 Background briefing with SAO (admitting the 4th Amendment covers call data)
• 2008 NGA George Bush speech (saying the telecoms had been told surveillance was legal) 

General details about the program

• Michael Hayden confirmation hearing (for start date of program, many other details)
• Program reauthorization dates (Coffin statement to SJC)
• 2007 HPSCI hearing, Reyes statement (on what was collected)

Evidence on data mining and concerns about its legality

• 2008 DOJ IG Report on Alberto Gonzales’ mishandling of information (including his notes on March 10, 2004 wiretap briefing describing legal problems with program)
• Yoo PBS Frontline interview (on FISA being inadequate, on computers plucking data from emails and calls that might have intelligence value)
• 2007 Alberto Gonzales testimony (explaining why FISA was inadequate)
• 2007 HPSCI Mike McConnell testimony (explaining that original program was unlawful under FISA, describing data being put into database automatically, referring to billions of things going on, referring to pizza shop calls being minimized)
• 2006 interview of Chertoff admitting data mining
• Kathleen Turner letter to Reyes and Hoekstra (describing analysts "combing through" data)
• 2007 SJC Mike McConnell testimony (referring to database of collected data)
• 1982 DOD intelligence procedures (saying data is collected only after DOD employee receives information)
• Jack Goldsmith testimony
• Jim Comey testimony
• 2007 Tony Snow statement (saying the program did not change in 2007)
• 2007 Mike McConnell letter to Arlen Specter (on TSP being a fake name invented to refer to wiretap part in 2006 to cordon off the data mining)
• Hayden testimony (showing his use of "conversation" and "communication" to hide extent of surveillance)
• US Attorney’s Manual (on URLs as contents in some cases)

Evidence showing US person call data are vacuumed up and kept

• February 26, 2008 White House background briefing on FISA (admitting domestic calls are intercepted, but minimized) 
• 2006 SJC Alberto Gonzales testimony (on information being kept indefinitely)
• James A Baker Frontline interview (admitting the program collects data from innocent people)
• 2006 Alberto Gonzales press release (referring to call data collection)
• 2006 Pat Roberts NPR interview (dismissing concerns about content by saying they collected call data–business records)
• 2006 Kit Bond PBS interview (describing the govt using what telephone number called what other telephone number)
• 2006 Blitzer inerview with Bill Frist (confirming that call data from 10s of millions of Americans have been collected)
• Statements from 9 members of Congress acknowledging call data program
• Joseph Nacchio statements (about Qwest being asked to collect data)
• Verizon Vice President acknowledging that Administration asked for call records

Evidence regarding Jewel’s San Francisco vacuuming of data and proof the Bay Area plaintiffs were affected by it

• Mark Klein declaration on Folsom street
• Scott Marcus declaration
• James Russell declaration (confirming accuracy of Klein’s account)
• AT&T Wayne Watts delcaration to House Energy and Commerce (referencing surveillance pursuant to presidential power)

In addition to these official government unclassified sources, EFF referred to an abundance of journalistic work, the collected works of Eric Lichtblau and James Risen and Barton Gellman and Siobhan Gorman.

There are a few things missing (most critically, IMO, Jello Jay’s letter to Cheney, a named defendant, saying on the day before the Senate withdrew funding for data mining of this sort that the program reminded him of PoindexterNegroponte‘s TIA; but also the October 23, 2001 Yoo memo eviscerating the 4th amendment, which we know they considered applicable to warrantless wiretapping). But EFF has cited repeated, unclassified admissions (many of them from the fight over immunity) that there was a data mining component based on large scale collection of data.

The Process

Now, clearly, the government is going to find it all but impossible to declare state secrets over most of this material. One obvious exception will be the Presidential orders to the telecoms. Another important possible exception is the material relating to the AT&T’s San Francisco data gathering (though they have not prosecuted any of those who submitted declarations for leaking classified information, so it’ll be hard there too). And perhaps not surprisingly, that same information–the San Francisco facility information–is the same information that plaintiffs will need to prove they’re aggrieved parties (and note, one of these declarations is sealed, so we don’t know what’s in there). The question then becomes whether Walker will find that they have sufficiently proved they are aggrieved parties such that they get to the point where FISA trumps state secrets and that information can be considered in the suit. And also, whether or not Walker will apply his general understanding of the program, including what he has learned through al-Haramain, to his assessment of the Jewel plaintiffs’ aggrieved status.

I don’t know the answer to that–but Vaughn Walker did say that suing government employees provides recourse for plaintiffs. And remember, he has already seen the declarations submitted in Jewel as well as the four corrected declarations in al-Haramain.

If the suit gets that far, it’ll be in roughly the same position as al-Haramain is in right now, though rather than a specific document, the government will be asserting state secrets to prevent discovery on a range of evidence–regarding the San Francisco facilities, but also regarding how much of Americans’ data gets swept up and how it is data mined to select targets for wiretapping.

That would hypothetically leave two related problems for the Jewel plaintiffs: getting beyond the immunity claims for government employees, and getting to the level of specificity required by Iqbal. Now, on Iqbal, I’m agnostic–the only four people about whom Jewel currently presents facts with any specificity are Bush, David Addington (assuming Goldsmith can serve as witness to Addington’s desire to blow FISA away), Alberto Gonzales (who signed the March 11, 2004 authorization), and John Yoo (who is not named in the suit). This is where timing may play a critical role, however. If the IG Report comes out in time, it promises to describe:

the involvement of the DoJ and the Federal Bureau of Investigation (FBI) in the Program, including the use of and control over Program information; compliance with relevant authorities governing the Program

[snip]

the evolution of the Presidential authorization as it affected NSA, the technical operation of the Program, the preparation and dissemination of the product of the Program, and communications with and representations made to private sector entities. The review will address access by NSA to legal reviews and information concerning the Program

[snip]

the involvement of the Office of the Secretary of Defense in the establishment and implementation of the Program

That is, we’ve been promised, in 35 days time and before the hearing on this, much more detail about the role of the individuals who implemented the program. I don’t think we’ll get it in timely fashion, but it has been promised.

But as for the immunity claims, this is where Walker seems to be insisting on the importance of the legislative record. In addition to his ruling that FISA trumps state secrets because there must be some kind of recourse for violations of FISA (the appeal of which, of course, the government flubbed), there’s his repeated reference to the legislative record from FAA, which makes it clear that Congress at least claimed to believe the individuals who authorized the program could be sued. To some degree, Walker’s ruling last week seems to have been a long statement saying, "you want me to read the legislative record on retroactive immunity strictly? then I’ll read it attentively when it comes to suing George Bush, too."

The Laws

Ultimately, though, this suit may come down to the interpretation of what the laws in question mean. Here is the specific language EFF says the government violated. From FISA:

A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

From the Wiretap Act:

(1) Except as otherwise specifically provided in this chapter any person who—

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; 

[snip]

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

[snip]

(2)(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with— (A) a court order directing such assistance signed by the authorizing judge, or(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

From ECPA:

(a) Contents of Wire or Electronic Communications in Electronic Storage.— A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.

(b) Contents of Wire or Electronic Communications in a Remote Computing Service.— (1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection— (A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or (B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity— (i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title. (2) Paragraph (1) is applicable with respect to any wire or electronic communication that is held or maintained on that service— (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.

(c) Records Concerning Electronic Communication Service or Remote Computing Service.— (1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity— (A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; (B) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosure; (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or (E) seeks information under paragraph (2). (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the— (A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number), of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.

EFF has a number of people saying this program bypassed FISA. Assuming the San Francisco materials are admissible, we have evidence that wire communications were intercepted and used–and at least for the period following March 11, 2004, any request of the telecoms to do so came with White House Counsel Alberto Gonzales’ signature, after the Acting Attorney General had refused to sign off on it. But given the fact that they’re doing data mining on meta-data, a lot of this will likely come down to the language of ECPA. As EFF makes clear in their summary of evidence, the Administration has been playing games with the meaning of "content" and "communication" in its discussion of this program, and I guess the meaning of these terms with respect to emails is not settled.  

Vaughn Walker has laid a lot of the ground work to get to assessing evidence in this case. But I’m not sure where the parsing on "communication" will go if we ever get to that stage. 

Wow. Even I am surprised at Bob Corker’s rank hypocrisy this time. After begging and begging and begging that America’s auto manufacturers be forced into bankruptcy last year–a process, after all, that allows companies to renegotiate all their contracts to make them more competitive–Bob Corker is now pushing to force those same manufacturers to not only honor the existing contracts they’ve got with dealers, but hold off on terminating them for 180 days.

 Chrysler and General Motors Corp would have to fully reimburse terminated dealerships and give them 180 days to wind down their operations under a proposal introduced on Thursday in the U.S. Senate.

"We filed this amendment to apply pressure on the automakers to keep their word to rejected dealerships and fully reimburse them for their inventories of vehicles and parts," said Tennessee Republican Bob Corker.

"We hope Chrysler and GM will take these appropriate actions and make this amendment unnecessary Corker said in a statement after introducing the measure.

Corker’s amendment would not permit judges in both automaker bankruptcies to approve government-funded debtor financing unless his terms are met.

Aside from the fact that this is probably mere posturing, at least in the case of Chrysler (because by the time this passed, it’d be too late, because the judge is going to finish this up next week), consider what this means. After having made sure that tens of thousands of working men and women will be out on the street overnight (not to mention the big number of supplier workers who will lose their jobs, too), after having made sure that the health care of hundreds of thousands of retirees is at risk, Bob Corker now wants his small businessmen friends to go through this process without losing out at all.

As I’ve said: what’s happening with dealers is tragic–for many of them, generations of life work is being ended almost overnight. But that’s no more or less tragic than the thousands of middle class workers losing their livelihood (and for many of them, that livelihood is a multi-generational thing, too). And Bob Corker was personally responsible for making sure there wasn’t a more viable way to do this back in December.

The Hill has a childish article out–one that encourages our Congress to function like a child’s playroom, and one that manufactures "news" at the whim of its sources. The "story," as told by the Hill, is that Republicans attended a closed briefing (the article doesn’t really explain that "closed" means "classified"), and then came out and made claims about what they heard in the briefing.

Republicans ignited a firestorm of controversy on Thursday by revealing some of what they had been told at a closed-door Intelligence Committee hearing on the interrogation of terrorism suspects.

Democrats immediately blasted the GOP lawmakers for publicly discussing classified information, while Republicans said Democrats are trying to hide the truth that enhanced interrogation of detainees is effective.

GOP members on the Intelligence Committee on Thursday told The Hill in on-the-record interviews that they were informed that the controversial methods have led to information that prevented terrorist attacks.

When told of the GOP claims, Democrats strongly criticized the members who revealed information that was provided at the closed House Intelligence Subcommittee on Oversight and Investigations hearing. Democrats on the panel said they could not respond substantively, pointing out that the hearing was closed.

Now, reading those first few paragraphs, you’d think you’d find a series of quotes from Republicans in the article that supported the claim that torture "had led to information that prevented terrorist attacks," right? The Hill promised "on the record interviews."

As it turns out, the Hill gives us just one on-the-record quote from a Republican who attended the briefing, and it doesn’t quite live up to billing:

Rep. John Kline (R-Minn.), a member of the subcommittee who attended the hearing, concurred with Hoekstra [who was not at the briefing, that they told him interrogation worked].
 
“The hearing did address the enhanced interrogation techniques that have been much in the news lately,” Kline said, noting that he was intentionally choosing his words carefully in observance of the committee rules and the nature of the information presented.
 
“Based on what I heard and the documents I have seen, I came away with a very clear impression that we did gather information that did disrupt terrorist plots,” Kline said.

Kline makes two claims:

1. The hearing did "address" techniques that have been in the news lately
2.  We did gather information that did disrupt terrorist plots

And from this, the apparently English-challenged Hill writer, Jared Allen, claims that GOP members–plural–said they "were informed that the controversial methods have led to information that prevented terrorist attacks." In the bits Allen quotes, after all, Kline makes no claims they were even briefed about what information they got from torture, and he certainly makes no claim that the information that disrupted terrorist plots came from torture. Maybe Kline said it, but if so, Allen forgot to report it. Just like he forgot to report the other on-the-record interviews proving this case.

Now what Allen does give us, in abundance, is on-the-record quotes from Republicans who didn’t attend the briefing. There’s Crazy Pete Hoekstra, who wasn’t at the briefing:

“Democrats weren’t sure what they were going to get,” said Rep. Pete Hoekstra (Mich.), ranking Republican on the Intelligence panel, referring to information on the merits of enhanced interrogation techniques. “Now that they know what they’ve got, they don’t want to talk about it.”
 
[snip]
 
Hoekstra did not attend the hearing, but said he later spoke with Republicans on the subcommittee who did.  He said he came away with even more proof that the enhanced interrogation techniques employed by the CIA proved effective.
 
“I think the people who were at the hearing, in my opinion, clearly indicated that the enhanced interrogation techniques worked,” Hoekstra said.

It seems to me the story from these quotes ought to be:

• The Ranking Member of HPSCI thinks people should immediately talk about the content of classified briefings
• The Ranking Member of HPSCI treats hearsay–the comments of his members who attended a briefing–as proof
• The Ranking Member of HPSCI is politicizing intelligence

But instead, Allen seems to have followed Hoekstra down the road of taking hearsay evidence as clear proof (it’s not even clear that Allen asked Hoekstra who he had talked to about the briefing). 

And then, Allen relies on a quote from John Boehner that doesn’t even pertain to this briefing

“It’s been three weeks since I asked Speaker Pelosi to back up her allegations that the CIA lied to her or purposely misled her,” Boehner said at his weekly press conference. “Allowing this to hang out there is unconscionable. And I just think the silence from Speaker Pelosi is deafening.”

That’s it. That’s what the Hill’s Jared Allen gave us to back up his claim that Republicans, in on-the-record interviews, made claims about those briefings.

I don’t know whether Jared Allen is this dumb or what, but congratulations to Crazy Pete–you sure found your mark, a reporter so gullible he’d print your story, absent any proof, and with it declare "a firestorm" that serves your political spin. 

Me, I think the Hill’s marshmallow just went up in flames.

I know we joke (and usually mock) the notion that Obama is playing 11 dimensional chess with all the active court cases of late. But I believe Vaughn Walker, the judge overseeing all the warrantless wiretapping cases, really is playing chess. All of the relevant cases have been consolidated under him (though there are two related cases, which I’ll get to), and in the process, he has gotten pretty damn fed up with the government’s attempt to game the system, and partly as a result (and mostly because it is right in terms of law), he appears to be consciously working through all the suits together with an eye toward some kind of justice in the case.

In this post, I’m going to lay out the many factors at play here–the four cases (broadly defined) before Walker, two other related cases, and the IG report. In two follow-up posts, I’ll explain where I think this will go from here. 

Al-Haramain:  The Islamic charity once had a wiretap log showing allegedly illegal wiretaps from 2004, yet the government has promised to appeal any order that it make that–or other materials–available to litigate the suit. In response, Judge Walker has directed plaintiffs to submit a motion for summary judgment, with a hearing scheduled September 1; the parties are working on a briefing schedule now.

Retroactive Immunity Challenge: Electronic Frontier Foundation and other groups challenged the constitutionality of Congress’ grant of retroactive immunity to the telecoms under FISA Amendments Act. Yesterday, Walker dismissed the challenge, finding that Congress had explicitly directed the Attorney General that he could certify the telecoms to receive immunity. Significantly, Walker invoked the legislative record of FAA to support both his ruling that the law did not violate the Constitution and his finding that "plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities." In addition, Walker recalled that Navy v. Egan allows Congress to limit the executive branch’s control of national security issues, including classification–but that it had specifically allowed the executive to keep the AG certifications secret here. The plaintiffs have said they will appeal, and given Walker’s comment that, "the lack of a charge to the Attorney General [specifically directing the Attorney General to undertake review and to submit to the court the specified certifications] remains a problem," they are sure to focus on their argument that Congress abdicated its own rule-making authority to the Attorney General.  In addition, Walker has dismissed this suit without prejudice, suggesting that if plaintiffs can amend their complaint to cover telecom wiretapping not covered by the immunity granted by FAA, they are welcome to do so; significantly, Walker reminds plaintiffs that immunity only covers wiretapping that happened between September 11, 2001 and January 7, 2007.

Jewel: In September, some of the plaintiffs that had sued the telecoms filed a new suit against Bush and the government agencies that had undertaken the warrantless wiretapping. The government has argued that it is immune from suit in this case, but the plaintiffs have pointed to the same legislative records that the government used in the warrantless wiretap challenge (and which Walker cited in his ruling) to show that Congress specifically intended to reserve the ability to sue the government and its officials. Walker has not ruled on this suit yet. [Update: see EFF’s latest opposition to the govt’s motion to dismiss, plus an EFF declaration, thanks to MadDog] The hearing on the govt’s motion to dismiss will be July 15.

State Cases: Also yesterday, Judge Walker dismissed a set of state investigations into the warrantless wiretapping, based on a provision of the FAA that reads, "No State shall have authority to … conduct an investigation into an electronic communication service provider’s alleged assistance to an element of the intelligence community." I’m not in the least surprised these got dismissed as the language in FAA on this topic was pretty clear.

As I suggested, there are a few more things that may affect Walker’s calculus–or the plaintiff’s ability to make their cases–going forward.

Jeppesen: In 2007, the 9th Circuit ruled that "(1) whether Al-Haramain was subject to surveillance and (2) the Sealed Document wiretap log and information on whether al-Haramain was wiretapped" were properly invoked state secrets. But in April, the 9th Circuit ruled in a suit brought against a Boeing subsidiary involved in extraordinary renditions that "the government must assert the privilege with respect to secret evidence (not classified information)." Not only might this affect al-Haramain going foward (in that the four new declarations submitted this year were not reviewed by the 9th when it mades its prior ruling), but it is particularly relevant to the Jewel case. In the invocation of state secrets in that case, Dennis Blair claimed state secrets covered, 

Information concerning the specific nature of the al-Qaeda terrorist threat

Information that may tend to confirm or deny whether the plaintiffs have been subject to any alleged NSA intelligence activity

Any information concerning NSA intelligence activities, sources, or methods that may relate to or be necessary to litigate plaintiffs’ allegations

Information concerning the scope of the now inoperative "Terrorist Surveillance Program"

Information concerning whether or not the NSA obtained from telecommunications companies such as AT&T communication transactional records

Information that may tend to confirm or deny whether AT&T … has provided assistance to the NSA

Information, information, information, information, information, and more information–but no discussion of discrete evidence, not even of Mark Klein’s reports of a tap into the Folsom street AT&T circuits (nor of Russell Tice’s public reporting that has been made public more recently). 

Pete Seda Criminal Case: In addition, there is a very narrowly drawn criminal case targeting Pete Seda and Soliman al-Buthe, who were affiliated with al-Haramain before it went defunct. This is sort of an Al Capone case–an attempt to get two people targeted for completely different reasons under a narrow tax issue. And, surely by design, the entire case is built around dates that don’t implicate the illegal wiretapping of al-Haramain: the most recent date in the indictment is October 16, 2001–just two weeks after the first memos relating to the illegal wiretap program and after the "freebie" 15-day FISA window expired after the AUMF. It’s totally conceivable that the government included al-Haramain in its first batch of illegal wiretapping, but the timing is dicey. Nevertheless, Seda’s lawyer is pushing for discovery of things that might implicate illegal wiretapping, including:

• [Relating to a request for emails] "other communication it has obtained from other means that are also exculpatory"
• Any information gathered regarding AHIF, AHIF-US, Pirouz Sedaghaty [Pete Seda], or Soliman Al Buthe pursuant to any National Security Letters or the Foreign Intelligence Surveillance Act [the discovery request notes this might have been collected "otherwise" than NSLs or FISA]
• Notice and all information regarding when the investigation against AHIF, AHIF-US, Pirouz Sedaghaty, or Soliman Al Buthe began 
• Any and all bank records relating to AHIF, AHIF-US, Pirouz Sedaghaty, or Soliman Al Buthe; specifically Bank of America account number
  2880311561
• Any and all records or notes relating to any telephone numbers held by AHIF, AHIF-US, Pirouz Sedaghaty, or Soliman Al Buthe
• Any and all records, documents, notes, regarding any internet provider, including but not limited to, Unicom, as relative to AHIF, AHIF-US. Pirouz Sedaghaty, or Soliman Al Buthe

There’s more that would implicate illegal wiretapping as well. The government says it doesn’t have to turn this stuff over because it’s not part of its case in chief (which of course was designed to avoid dependence on the warrantless wiretapping, but Seda’s lawyer argues it would exculpatory (not least, presumably, because the whole case might be poisoned fruit).

The IG Report: And there’s one more legal item that might play into how things roll out–the IG Report on the illegal wiretap program, mandated to be completed next month. Frankly, I absolutely expect the IGs to miss their deadline. I absolutely expect there to be a big squabble over how much of the report will be unclassified (though it is supposed to be presumptively unclassified) and how long it’ll take for us to actually get it. And I question how effective some of the IGs will be. But if you look at the scope of the IG Report–as reported back in November–you can see that some of this information might well be pertinent both to al-Haramain and to the Jewel suit, at a minimum. 

So, in summary, here’s where we are:

• Al-Haramain’s briefing on summary judgment due in late summer with a hearing September 1
• The retroactive immunity challenge headed to the 9th for appeal, plus a possible refiling for telecom actions (probably) after January 7, 2007
• The hearing in Jewel scheduled for July 15
• The state cases dismissed pretty definitively
• The Jeppesen ruling and its potential effect on the government’s invocation of state secrets in Jewel
• Any discovery action in the Seda case
• The legally required IG report on warrantless wiretapping due (ha!) next month

I’m a little late to the the House Judiciary State Secrets Hearing (committee stream here).

Here are the witnesses:

Hon. Patricia M. Wald Retired Chief Judge U.S. Court of Appeals for the District of Columbia Washington, DC

Hon. Asa Hutchinson Senior Partner Asa Hutchinson Law Group Washington, DC

Andrew Grossman Senior Partner The Heritage Foundation Washington, DC

Ben Wizner National Security Project Staff Attorney American Civil Liberties Union Washington, DC

[Also, though it’s related more generally to the two bills on this than this hearing, Secrecy News just made a recent Congressional Research Service paper on State Secrets available.]

Jerrold Nadler has had his opening statement–the big news in that was that Holder refused to make a witness available for this hearing. Jim Sensenbrenner is up noting that Obama has adopted Bush’s approach on State Secrets.

Ouch.

And if I’m not mistaken, Sensenbrenner accidentally called Hillary VP, not Biden. 

Conyers: The President’s running away from a lot of things, that doesn’t make this different. We’ve been here before, Ladies and Gentlemen. I’m for State Secrets. There are some secrets we’ve got to keep away from citizens and congresspeople and bloggers. But which ones. We didn’t say "abolish state secrets." 

[Man, something has made Conyers cranky.]

Conyers: [Now listing the cases in which Obama has invoked State Secrets.] It is unacceptable that the Department declined to come to this non-secret hearing. They could not provide a witness, why? There’s a review pending, and until it is solved, they don’t want to come before this co-equal branch of government. They could have sent someone here to say we can’t talk with you guys.

Patricia Wald: Use of privilege to cut off relief. Unnecessary, produces rank injustice. US v Reynolds, ultimately it is a judge who must decide whether privilege applies. There is a consensus it’s time to regularize the privilege. Nothing that I can find in this bill would make govt turn over information. Not much doubt Congress has power to regulate evidentiary rules. In al-Haramain, judge decided that FISA pre-empted state secret’s privilege. Federal judges handle classified information every day. Incoporates proven techniques, good thing to have these techniques recognized in the law. Jeppesen, to me they did a very good thing in distinguishing using State secrets to dismiss as a whole. Court should weigh govt’s testimony in same way as he evaluates expert testimony. The bill does require the judge to actually look at it.

Asa Hutchinson:  Law enforcement background. Any assertion of state secrets should not be immune from checks and balances. A human tendency when that privilege is there to claim that privilege. Courts have proven their ability to manage secrets: FISA, CIPA, FOIA. You could make the case there’s been more loose lips in other branches of government. 

Andrew Grossman: This legislation would severely limit the state secrets privilege. [The Heritage Foundation sent someone whose voice has yet to change to oppose this bill.] No evidence that it is being used more frequently or differently than before. "There’s a bunch of Democrats who love state secrets too!!!" This empowers judges to usurp Congress’ powers. [huh? Well, it’s a novel approach.] "This is about using the Courts to make policy."

Ben Wizner: We’ve seen state secrets mutate into an alternative form of immunity to shield the government from accountability.

Nadler: Do you agree that the courts must grant govt substantial weight? This is one in the SJC bill but not this one.

Wald: Utmost deference, in the colloquy that followed, like exemption FOIA 1, use substantial weight, I believe I also attached to that what I later said, I meant the same kind of weight that any expert witness gets. Only weight appropriate according to expertise. I like the language in this bill. 

Nadler: What are the risks of putting in "substantial deference"?

Wald: Basic principle is that judge should be decision maker, ought to make independent assessment. 

Hutchinson: "Substantial deference" would undermine independent judgment. 

Nadler: You’d trust expertise of courts.

Nadler: Wizner, entire subject state secrets. Govt acknowledged rendition. What are we to make of subject that entire subject matter too secret.

Wizner: Govt approach is opportunistic and maleable. 

[One note about this. Kagro noted today that this hearing is happening on the same day that SJC is marking up their bill on this. It sure seems like Nadler’s pushing back hard against Leahy on this…]

Sensenbrenner: Wald, you said, "substantial weight." Have you changed your mind?

Wald: Deference not in any statute. Different stakes in FOIA and state secrets, if you’re in a civil case where there’s an allegation of injury, stakes are much more important. Judges have interpreted FOIA 1 differently. 

Sensenbrenner: Body of law in current law, repeals does not substitute another standard. Aren’t we likely to get less certainty on what is legitimate claim of suppression of information?

Conyers: Why has Obama blown this off?

Grossman: Obama likes state secrets now.

Conyers: I was afraid you’d answer.

[Someone, I don’t know whom]: Are you just speculating?

Grossman: Yes. Reasonable conclusion can be drawn. 

Conyers: Since you’ve been so expert with President, can you explain AG?

Hutchinson: Appreciate fact that AG is looking within the executive branch, but that raises the profile and necessity of Congress to act. They’re working on their branch of govt, I’m glad Congress is considering it as well.

Conyers: Mr. Frank and I raise unconstitionality more than anyone else?

Wizner: I share Wald’s opinion that Congress has authority to legislate in this area. My understanding that if this were unconstitutional, it’d apply to FISA, CIPA, FOIA. None of those intrude on President’s constitutional authority, and neither would this bill. 

Hutchinson: Impedes President’s ability to protect. Doesn’t stop from exercising state secrets. It just says that when it gets to the courts after the fact, then there’s going to be a process in our system of checks and balances. 

Conyers: if we were in court, Mr. Grossman, you’d be on the short end of this discussion.

Grossman: Time and time again, secrecy in some domains C-i-C powers. [names Nixon] Govt has innate power to control classified information. It is my opinion that this legislation intrudes on this power. 

Nadler: Grossman, you cite these cases where SCOTUS says secret. It has always said that this is not unlimited.

Grossman: No power is absolute. No power is empty either.

Conyers: If we were in Court, Mr. Grossman, I’d ask you to come back to Chambers afterwards but I appreciate your attempts to defend your ideas. 

King: Anything in history where state secrets has made it less safe. What are we trying to fix?

Hutchinson: Regardless of history, we have responsibility that potential for abuse minimized by checks and balances. I come at this as a conservative. I do not believe in an unfettered and unchecked executive branch any more than I believe in an unchecked judiciary branch. That goes against our Founding Fathers.

King: Ever gone into classified hearing and given up blackberry and cell phone and seen similar briefing already come out in news. 

Hutchinson: Executive branch excels in speaking of classified information. Track record with Courts totally different. Track record is extraordinary. 

King: If the President was about to contract with a criminal enterprise to do the census to flip the congress. [Gotta attack ACORN!!!]

Grossman: No, that organization that you describe, do not concern national security.

Nadler: Sure, I’ll reconsider whether ACORN should be investigated if you co-sponsor this bill.

Delahunt: What we have failed to do is look at the process of classification. 

Delahunt: Grossman, why do you think this would be burdensome to review this? How many of these have you been involved in?

Grossman: I’m a researcher.

Delahunt: You ought to speak to some litigators and some judges before you say that.

Franks: Asa’s on the other side of the issue. Even the most sage and wise among conservatives can be a little disoriented. Mr. Chairman, pattern of conversation you had with Grossman. Reserved under themselves the right to use same techniques if they thought were necessary. Obama called Iraq War war of choice, and yet he continues to prosecute that war. Has withdrawal timetable, same as Bush Administration. Gitmo, appears the results will be terrorists in the US or creation of something essentially the same as Gitmo. Surveillance have been left in place. I even heard the President say we cannot sustain this deficit spending. Invoked State Secrets three court cases. "Makes it hard to distinguish from its predecessor." All the elements of hyprocrisy. I’m thankful that Mr. Obama has had some epiphanies. 

Grossman: Not a partisan matter. There has been no disagreement. 

[Hey, you think those who have unlimited power like to keep that unlimited power?]

Nadler: Purpose of hearing is to find out what’s right, not who’s right. 

graphic by allposters.co.uk

For all the blistering that I, and many others here, give to Obama for his continuation of the Bush/Cheney duplicity on wiretapping, privacy, torture and Executive Branch primacy issues, there are similarly a great many areas in which he is so many light years ahead of where we have been moribund for the last eight years that it is hard to remember we are still in the same galaxy. This morning’s speech in Cairo was one of those moments driving home the difference.

Spencer has posted the full text of the speech, and some good comment. Click the link and read the full text of the speech, it is well worth it.

It was a remarkable speech. This is a not just a speech that George Bush would not have given, but a speech he functionally could not have given; even with wordsmith speechwriters and handlers, he simply doesn’t have the intellectual depth, greater worldview or oratorical skill to have pulled off what Obama did. If there is a hope for peaceful and productive coexistence with the Islamic world, and peace in the middle east, this speech will be the first linchpin of Obama’s effort in that regard.

He was visionary:

No single speech can eradicate years of mistrust, nor can I answer in the time that I have all the complex questions that brought us to this point. But I am convinced that in order to move forward, we must say openly the things we hold in our hearts, and that too often are said only behind closed doors. There must be a sustained effort to listen to each other; to learn from each other; to respect one another; and to seek common ground. As the Holy Koran tells us, “Be conscious of God and speak always the truth.” That is what I will try to do – to speak the truth as best I can, humbled by the task before us, and firm in my belief that the interests we share as human beings are far more powerful than the forces that drive us apart.

He was challenging and proud of America:

But that same principle must apply to Muslim perceptions of America. Just as Muslims do not fit a crude stereotype, America is not the crude stereotype of a self-interested empire. The United States has been one of the greatest sources of progress that the world has ever known. We were born out of revolution against an empire. We were founded upon the ideal that all are created equal, and we have shed blood and struggled for centuries to give meaning to those words – within our borders, and around the world. We are shaped by every culture, drawn from every end of the Earth, and dedicated to a simple concept: E pluribus unum: "Out of many, one."

Humble, but unapologetic, as to our mistakes:

Let me also address the issue of Iraq. Unlike Afghanistan, Iraq was a war of choice that provoked strong differences in my country and around the world. Although I believe that the Iraqi people are ultimately better off without the tyranny of Saddam Hussein, I also believe that events in Iraq have reminded America of the need to use diplomacy and build international consensus to resolve our problems whenever possible. Indeed, we can recall the words of Thomas Jefferson, who said: “I hope that our wisdom will grow with our power, and teach us that the less we use our power the greater it will be.”

But most of all, he played both sides of the Israeli-Palestinian issue like a Stradivarius:

Around the world, the Jewish people were persecuted for centuries, and anti-Semitism in Europe culminated in an unprecedented Holocaust. Tomorrow, I will visit Buchenwald, which was part of a network of camps where Jews were enslaved, tortured, shot and gassed to death by the Third Reich. Six million Jews were killed – more than the entire Jewish population of Israel today. Denying that fact is baseless, ignorant, and hateful. Threatening Israel with destruction – or repeating vile stereotypes about Jews – is deeply wrong, and only serves to evoke in the minds of Israelis this most painful of memories while preventing the peace that the people of this region deserve.

On the other hand, it is also undeniable that the Palestinian people – Muslims and Christians – have suffered in pursuit of a homeland. For more than sixty years they have endured the pain of dislocation. Many wait in refugee camps in the West Bank, Gaza, and neighboring lands for a life of peace and security that they have never been able to lead. They endure the daily humiliations – large and small – that come with occupation. So let there be no doubt: the situation for the Palestinian people is intolerable. America will not turn our backs on the legitimate Palestinian aspiration for dignity, opportunity, and a state of their own.

Obama gave weight to both and tough love to each, you really have to read it all to get the effect, but the point is clear: Obama cares about the middle east and he is going to make a strong play on middle east peace, on a retooled and equilibrated plane. It is a legitimate effort, and contrary to all the initial fears, Obama and his Secretary of State are, so far, on exactly the same page and slowly but surely setting the stage.

Obama hit on several other topics in Cairo including peace in the middle east above and beyond the I-P situation, nuclear weapons in the world, the will of the world’s people and democracy, religious tolerance (noting specifically and candidly the pains of Muslim intolerance) and economic development and opportunity. Of particular significance were his words on women’s rights:

I know there is debate about this issue. I reject the view of some in the West that a woman who chooses to cover her hair is somehow less equal, but I do believe that a woman who is denied an education is denied equality. And it is no coincidence that countries where women are well-educated are far more likely to be prosperous.
…
Our daughters can contribute just as much to society as our sons, and our common prosperity will be advanced by allowing all humanity – men and women – to reach their full potential. I do not believe that women must make the same choices as men in order to be equal, and I respect those women who choose to live their lives in traditional roles. But it should be their choice. That is why the United States will partner with any Muslim-majority country to support expanded literacy for girls, and to help young women pursue employment through micro-financing that helps people live their dreams.

Considering the forum, and it coming hot on the heels of his time in Saudi Arabia, the support for women’s rights in Muslim lands are welcome and bold words. It is also something that both his Secretary of State and wife Michelle are focusing on too. It is a worthy effort.

Make no mistake, this was nothing more than a speech, and just one speech at that. But it was dignified, powerful and in a setting that conveyed the importance of the moment. We here in the US have quickly become used to seeing Obama and his soaring rhetoric, but this speech in Cairo will leave a mark and, from what I saw, a good one. And Obama, as is his style, is insuring mass saturation to the maximum market, especially through the modalities that will reach and affect youth. The early reports are that the response on these alternate modalities is huge; good, let the youth carry the message. The key is not how Obama’s speech and visit plays here at home, but what lasting imprint it makes there. Again, I think it is going to leave a good mark.

Barack Obama’s foreign policy surge, especially in the middle east, is still in its infancy, but it is a joy to watch so far. This truly is the hope we all sensed from Obama during the election. Hopefully today’s Cairo speech, like the sun rising on the pyramids, is the dawn of a new interaction of the United States with the the middle east and Muslim world.

A number of you were discussing the report–from Lawrence Wilkerson and Robert Windrem–that we used water bottles when waterboarding.

In administering the Bush White House’s most infamous “enhanced interrogation” procedure, waterboarding, CIA questioners employed a civilized tool for a brutal task—bottled water, sometimes straight from the fridge.

[snip]

A leading Bush administration official, retired Col. Lawrence Wilkerson, former chief of staff  to Secretary of State Colin Powell, says that the numbers associated with CIA waterboarding sessions—such as 183 times for 9/11 mastermind Khalid Sheikh Mohammed and 83 times for al Qaeda training camp commander Abu Zubaydah—may even reflect the number of water bottles expended.

Windrem did a bit of fast math to figure out how many water bottles would have been used.

A one-pint water bottle takes about seven seconds to empty, so four or five bottles would take empty in 30 or 40 seconds, the time prescribed by the Justice Department memo approving the process. (Larger two-liter bottles might have been more efficient. Each takes a full 30 seconds to empty.)

At the risk being pedantic, I wanted to suggest this might not be the correct math. Windrem’s using the description of waterboarding included in the Bybee Two memo. But we know from the May 30, 2005 memo that waterboarding, in practice, used more water than described in the Bybee Two memo.

"[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is "for real–and is more poignant and convincing.") [my emphasis] 

And a document submitted by JPRA in support of the Bybee Two memo (and described in the SASC report) gave a description of waterboarding that more closely resembled waterboarding as it was eventually practiced than it did the SERE technique it purportedly described (or the description that got into the Bybee Memo). It described the volume of water used as up to 1.5 gallons.

JPRA’s description of the waterboarding technique provided in that first attachment was inconsistent in key respects from the U.S. Navy SERE school’s description of waterboarding. According to the Navy SERE school’s operating instructions, for example, while administering the technique, the Navy limited the amount of water poured on a student’s face to two pints. However, the JPRA attachment said that "up to 1.5 gallons of water" may be poured onto a "subject’s face."

Given that this may have been the instruction interrogators were using (and that we’ve had reports of waterboarding lasting far more than 40 seconds), it seems we might be talking about up to 16 bottles per waterboarding session: 1.5 gallon or 6 quarts or 12 pints or 16 12-ounce bottles.

Again, I don’t mean to be pedantic, but with this math, we’d get much closer to matching the "pour" numbers of 183 and 83 to the number of waterboarding sessions that have been reported.

As you’ve no doubt heard, Cheney confessed yesterday that Bush punted the auto crisis into Obama’s lap.

CHENEY: Well, I thought that, eventually, the right outcome was going to be bankruptcy. … And the president decided that he did not want to be the one who pulled the plug just before he left office.

VAN SUSTEREN: Why?

CHENEY: Well, I think he felt, you know, these are big issues and he wouldn’t be there through the process of managing it, but in effect, would have sort of pulled the plug on GM and that was one of the first crises the new administration would have to deal with. So he put together a package that tided GM over until the new administration had a chance to look at it, decide what they wanted to do.

VAN SUSTEREN: But it’s cost us billions to get — I mean, you know —

CHENEY: It has. … And now the government owns a big chunk of General Motors. That bothers me. I don’t like having government own those kinds of major financial enterprises. I think it’s — it does damage to our long-term economic prospects when we get government involved in making those kinds of decisions.

Now, that was pretty clear at the time. That was sort of the subtext of what Bush said at the time:

… there’s too great a risk that bankruptcy now would lead to a disorderly liquidation of American auto companies. My economic advisors believe that such a collapse would deal an unacceptably painful blow to hardworking Americans far beyond the auto industry. It would worsen a weak job market and exacerbate the financial crisis. It could send our suffering economy into a deeper and longer recession. And it would leave the next President to confront the demise of a major American industry in his first days of office.

Bush gave the car companies three months of funding (he claimed), so they would go bankrupt on the 100th day of Obama’s Administration, rather than the first.

But that doesn’t mean Bush was willing to leave all of this mess for his successor. He made damn sure, you see, that he took care of Cerberus before he left office.

He did so in two ways. First, in Christmas week negotiations that no one followed, Bush allowed Cerberus–and not Chrysler–to negotiate the terms of the December loan to Chrysler. And then Bush gave Chrysler just $4 billion–much less than Chrysler said it needed to survive those three months (by comparison, Bush gave GM more than they asked for). And even though Cerberus (and not Chrysler) negotiated that loan, Cerberus was barely on the hook to pay any of that money back. Given that Cerberus was trying to dump Chrysler on the UAW and bondholders at the time, the arrangement seems designed to drive Chrysler into liquidation without Cerberus losing much more on the deal.

And while Bush couldn’t find time to negotiate some kind of way forward for Chrysler (which Bush seemed determined to kill) or GM (which we know he was determined to keep alive for 90 days so Obama would have to deal with it), he did find time to negotiate bank status of GMAC in the last days of December last year. Now, Cerberus had to dole out 36% of its ownership stake to its members. And the deal–along with the financing it freed up for GM–did help the company’s sales at the end of last year. But Cerberus got to start sucking the federal teat just before its buddies in the Republican party turned over control of that teat to Democrats. 

So it’s not just that Bush left a crisis for Obama to deal with–that I’m not so  bummed about, because Obama’s team has proven way more competent to deal with it than Bush’s was. But Bush picked and chose which crises he’d address, and just happened to choose to solve Dan Quayle’s and John Snow’s crisis rather than Main Street’s.