I just reviewed Burris’ testimony before the impeachment committee. I was struck by Sam Adam Jr.’s efforts to orchestrate a wiretap that might exonerate Blago of any charges he attempted to sell the Senate seat for personal gain. Here’s what happened.

December 26, afternoon: Sam Adam Jr., a Blago lawyer who may or may not be part of Blago’s defense team, called Burris and told him he had something urgent to tell him. Burris was curious what he had to say, so–even though he was preparing for a black tie event, told him to come over. Presumably, even if Adam called from Blago’s tapped phones, this conversation would be minimized bc of attorney client privilege.

December 26, 4PM: Adam shows up. They have a conversation. Since it occurs in a place presumably free of wiretaps, we only have Burris’ version.

December 28, 4PM: Adam shows up to Burris’ house again. Same thing: presumably this conversation wasn’t tapped, so we only have Burris’ version.

December 28, shortly thereafter: Blago calls Burris and offers him the seat. Blago goes on at some length (per Burris’ description) listing Burris’ qualifications. Gosh. It’s as if Blago were performing an honest offer for the Senate seat, complete with listing all the reasons Burris is qualified. This conversation is on tape, and will make a nice trial exhibit to prove that Blago really was only trying to appoint someone qualified for the seat, and not seeking personal gain for it.

December 30: Blago announces the pick in a joint press conference. I find the delay interesting; something I’ll come back to. 

Isn’t that all neat and tidy? What I find particularly interesting is how it matches up with what we know of the offer Blago made to Danny Davis before he made an offer to Burris. 

December 24 morning; Davis and Sam Adam Jr. meet in Davis’ Chicago office. This conversation would not only not be tapped, but would be protected by legislative privilege. Like Burris, Davis had previously said he would not accept the spot, but he heard Adam’s offer anyway:

Davis said he was told "the governor would like to appoint me to the vacant spot." After Blagojevich was arrested Dec. 9, Davis, who sought the appointment from him when he thought Blagojevich was playing it straight, said he would not take the job if offered.

But he conferred with Adam anyway, out of "respect" for the office of the governor, Davis told me; besides, Blagojevich has not yet been indicted nor found guilty of anything.

December 26, 9AM: Davis and Adam meet (apparently again in person) again; Davis rejects the offer.

"I indicated I came to the conclusion there was too much discomfort on my part and the part of my family," Davis said. Anyway, he could not see how the governor could name anyone and make it stick.

But most important, Davis said he realized that if he took the job, "It would be difficult to generate the trust level people would have to have in me. I just decided there was too much turmoil, too much disagreement. It was something I wanted to do, but I said I would not take an appointment from the governor."

Of course, in Davis’ case, Blago never got the chance to call and make the offer on tape, all nice and tidy like. But note that it only took Blago 7 hours to find a new potential candidate?

Incidentally, Burris’ testimony ends (around 1:24:38) with Representative Rose asking Genson a question about Adam’s role.

Rose: I hope at some point in time we’re going to be able to ask some question as to what the status of Mr. Adam is.

Genson: Well, I’ll give you the status but don’t count on Mr. Adam answering.

Genson, of course, doesn’t explain Adam’s status. Awkward pause. End of Burris testimony. 

Update: A reader who–as a lawyer–knows this much better than I, corrects me on my suggestion that an Adam-Burris call would in any way be protected, particularly by attorney client privilege. That said, I think Fitz is bending over backward on minimization here, so he may not look that closely at calls with retained lawyers involved. Besides, the "Burris appointment as exonerating act" will be so easy to refute, who needs it?

There were two things of note that came up at yesterday’s Roland Burris testimony before the IL impeachment committee. His $1.2 million campaign loan gift from Joseph Stroud–who was also giving to Blagojevich at the time (who, incidentally, also employs Vicki Iseman as a lobbyist). And, his discussion(s) with Lon Monk about wanting the Senate Seat.

The Monk revelation is important for several reasons:

• It violates the spirit–though not the letter–of Burris’ affidavit describing his appointment
• Monk is a central player in the Blago complaint–and was wiretapped himself
• The wiretaps Fitz was trying to get the legislature pertain to a scheme between Blago and Monk

The Monk disclosure violates the spirit of Burris’ affidavit

In the affidavit he submitted to the committee, Burris claimed that, 

Prior to the December 26, 2008 telephone call from Mr. Adams Jr., there was not any contact between myself or any of my representatives with Governor Blagojevich or any of his representatives regarding my appointment to the United States Senate.

Yet, in response to a question from State Rep Jim Durkin about whether he had talked to anyone "associated" with Blago, Burris reluctantly admitted he spoke with Monk about the seat, "in September or maybe it was in July."

Now, Burris may well say that he didn’t consider Monk a "representative" of Blago. Monk used to be Blago’s Chief of Staff, but was no longer employed by Blago when Burris had the conversation(s) with him. Furthermore, Burris claims he didn’t read the Blago complaint, which doesn’t name Monk by name anyway, so there’s no reason why the repeated mention of Lobbyist 1 in the complaint should have led Burris to reveal his contacts with that same Lobbyist 1. So Burris’ conversation with Monk certainly doesn’t contradict the letter of his affidavit.

Nevertheless, Burris was chatting about the seat with someone close to Blago, in the process of trying to drum up state business from that lobbyist specifically in context of his ties to Blago.

Monk was a central player in the Blago complaint

Burris’ revelation is all the more interesting given Monk’s role in the Blago complaint. Blago apparently used him to pressure potential donors on several schemes. Blago said Monk was going to hit up a Tollway Contractor for $500,000 tied to a $1.8 billion road project. 

According to Individual A, after Individual B left the meeting on October 6, 2008, ROD BLAGOJEVICH told Individual A that he was going to make an upcoming announcement concerning a $1.8 billion project involving the Tollway Authority. ROD BLAGOJEVICH told Individual A that Lobbyist 1 was going to approach Highway Contractor 1 to ask for $500,000 for Friends of Blagojevich. ROD BLAGOJEVICH told Individual A that, “I could have made a larger announcement but wanted to see how they perform by the end of the year. If they don’t perform, fuck ‘em.” According to Individual A, he/she believed that ROD BLAGOJEVICH was telling Individual A that ROD BLAGOJEVICH expected Highway Contractor 1 to raise $500,000 in contributions to Friends of Blagojevich and that ROD BLAGOJEVICH is willing to commit additional state money to the Tollway project but is waiting to see how much money Highway Contractor 1 raises for Friends of Blagojevich. [my emphasis]

Monk was also supposed to help hit up the Executive of the Children’s Hospital for $50,000 tied to $8 million in funding for the hospital.

On November 12, 2008, at approximately 8:26 p.m., Fundraiser A called ROD BLAGOJEVICH and reported the status of fundraising efforts. During the conversation ROD BLAGOJEVICH instructed Fundraiser A to call Lobbyist 1 the following day and ask Lobbyist 1 what to do about the fact that Hospital Executive 1 is not calling Fundraiser A back and inquire whether it was possible that Individual A had instructed Hospital Executive 1 not to call back.[my emphasis]

And he was centrally involved in efforts to get money from the horse racing industry before Blago signed a bill diverting money from casino revenues to the horse racing industry.

Also during this call, ROD BLAGOJEVICH and Fundraiser A spoke about efforts to raise funds from two other individuals before the end of the year. Fundraiser A advised ROD BLAGOJEVICH that with respect to one of these individuals, Contributor 1, Lobbyist 1 had informed Fundraiser A that Contributor 1 was “good for it” but that Lobbyist 1 was “going to talk with you (ROD BLAGOJEVICH) about some sensitivities legislatively, tonight when he sees you, with regard to timing of all of this.” ROD BLAGOJEVICH asked, “Right, before the end of the year though, right?” Fundraiser A responded affirmatively. Later in the conversation, ROD BLAGOJEVICH stated that he knows Lobbyist 1 is “down there (Springfield, Illinois)” with Contributor 1 “pushing a bill.” In a series of calls since that time, it became clear that the bill Lobbyist 1 is interested in is in the Office of the Governor awaiting ROD BLAGOJEVICH’s signature. The bill, which is believed to be a law which involves directing a percentage of casino revenue to the horse racing industry, is expected to be signed as soon as next week. In a call on December 3, Lobbyist 1 advised ROD BLAGOJEVICH that Lobbyist 1 had a private conversation with Contributor 1 about the contribution (“commitment”) Contributor 1 had not yet made and advised Contributor 1 “look, there is a concern that there is going to be some skittishness if your bill gets signed because of the timeliness of the commitment” and made clear that the contribution “got to be in now.” ROD BLAGOJEVICH commented to Lobbyist 1 “good” and “good job.” In a call the next day, Lobbyist 1 asked ROD BLAGOJEVICH to call Contributor 1 “just to say hello, I’m working on the timing of this thing, but it’s gonna get done.” Lobbyist 1 suggested that it is better for ROD BLAGOJEVICH to make the call personally “from a pressure point of view.” ROD BLAGOJEVICH stated that he would call Contributor 1 and indicate that ROD BLAGOJEVICH wanted to do an event (fundraiser) downstate “so we can get together and start picking some dates to do a bill signing.” Lobbyist 1 assured ROD BLAGOJEVICH that Contributor 1 would be good for the donation because Lobbyist 1 “got in his face.” [my emphasis]

It’s worth noting, too, that the government had a wiretap on Monk’s cellphone (in addition to those on Blago), suggesting he’s also a close focus of the investigation, or he’s cooperating.

Federal authorities had an additional, previously undisclosed wiretap in their investigation of Gov. Blagojevich — on the cellular telephone of someone in the governor’s inner circle.

A new prosecution court filing indicates that, in November, authorities tapped the cell phone of "Lobbyist 1" — identified by the Chicago Sun-Times as Lon Monk, a longtime friend and college classmate of Blagojevich who was the governor’s first-term chief of staff.

Since this wiretap wasn’t put into place until November 2008, Burris’ conversations with Monk pertaining to the Senate seat would presumably not have been taped.

Fitz was trying to release wiretaps pertaining to a scheme between Blago and Monk

Most interesting of all, however, is the fact that the wiretaps Fitz was trying to disclose to the impeachment committee pertain to a scheme involving Blago and Monk–the horse racing scheme described above.

After careful deliberation, the government applies for authorization to disclose a limited number of intercepted communications in redacted form. Although many relevant communications were intercepted, the government believes that, on balance, it is appropriate to seek the disclosure of four intercepted calls, in redacted form, to the Committee, and that disclosure of the calls by themselves would not interfere with the ongoing criminal investigation. These calls bear on a discrete episode of criminal conduct alleged in the complaint affidavit, specifically at Paragraph 68(e), and the calls are evidence of a criminal offense that the government was authorized to monitor under the wiretap order.

Now, I’ve been wracking my brain to figure out why Fitz decided to try to release these four intercepts to the impeachment committee out of all of the intercepts to choose from. There are several possible reasons. This episode–more than any of the others described in the complaint–pertains to something that involves the legislature. In addition, since Blago signed the law in question on December 15, the episode may have more closure than the others described in the complaint.

But there is something else I noticed.

Fitz first mentioned trying to get the impeachment committee intercepts on December 22.  But he didn’t propose releasing these specific intercepts until December 29–the  day after (we know from Burris’ testimony) Burris accepted Blago’s offer for the seat (Blago announced the appointment two days later, on December 30). 

That’s almost certainly just a coincidence. But I do find it notable that Fitz believed he had closure on a central allegation involving Monk just as the Burris appointment was finalized.

As I said, I think this is coincidental and not causal. But I do think it means that Burris’ conversation(s) with Monk might turn out to be more embarrassing than he let on yesterday.

It seems like BushCo–particularly Cheney–have been fighting for about 2 years to limit their responsibility under the Presidential Records Act to actually supply their papers to the National Archive in usable and timely fashion.

Well, all of a sudden, they’re arguing the contrary–that the papers have to go immediately.

The new Congress on Thursday asked a federal judge to force the Bush White House to keep documents on the controversial firings of nine federal prosecutors instead of turning them over to the National Archives.

[snip]

They asked U.S. District Judge John Bates to order the administration to leave the documents at the White House in the custody of President-elect Barack Obama’s aides in case the information is needed.

Justice Department lawyers argued that the White House is required to turn the material over to the National Archives.

[snip]

The National Archives has already agreed to segregate the subpoenaed material from the rest of Bush’s documents in case it is needed by the courts or the Obama administration, lawyers said.

"If they want the documents, they can request them from NARA," lawyer Carl Nichols said.

But Bates said he had no doubt "there will be some delay if the materials are sent" to the Archives. The judge suggested that he may order the administration to make copies of the documents so they can send the originals to the Archives and make the copies available to the incoming administration.

He said he would make a final ruling on Friday.

This is all follow-up to the rule passed on Tuesday that allows the House Judiciary Committee to pick up its pursuit of testimony in the US Attorney firing investigation right where they left off.

I guess Conyers didn’t want to have any down time during the early days of this Congress.

Update: And in somewhat related move, a different District Court Judge ruled that BushCo doesn’t get to hide what kind of wingnuts were visiting Cheney’s house.

A federal judge on Friday rejected the Bush administration’s latest attempt to keep secret the identities of White House visitors and declared that it engaged in illegal record-keeping practices.

[snip]

A watchdog group, Citizens for Responsibility and Ethics in Washington, asked for the records to determine whether nine conservative religious leaders visited the White House and Vice President Dick Cheney’s residence in October 2006.

Lamberth’s decision means the government will have to find other legal grounds if it wants to block release of the Secret Service logs.

 All this transparency is getting sort of exciting.

A pity we didn’t get it about 2 years ago.

When it became clear that Nixon would be impeached, he had the good sense to step down. Not so Blago, who vowed today to remain governor in spite of the 114-1 vote in the IL House in favor of impeaching him today.

In a historic vote, the Illinois House has impeached Gov. Rod Blagojevich, directing the Senate to put the state’s 40th chief executive on trial with the goal of removing him from office.

The vote by the House was 114-1 and marks the first time in the state’s 190-year history that a governor has been impeached, despite Illinois’ longstanding reputation for political corruption.

Rep. Milt Patterson (D-Chicago) was the lone vote against impeaching the governor. Patterson, from Chicago’s Southwest Side, said after the roll call that he didn’t feel it was his job to vote to impeach the governor. He declined comment on whether he approved of the job Blagojevich is doing.

A Blagojevich spokesman said the governor will not resign. A 2 p.m. news conference with the governor is scheduled for the James R. Thompson Center in downtown Chicago.

Then again, resignation is the one chit that Blago has to use with Fitz, so it’s no surprise he won’t resign … yet.

Next up, a trial in the IL Senate.

I’m with Josh. I’m not sure an expert in complex financial instruments is really what Detroit needs in an auto czar.

Democrats tell ABC News successful private equity investor Steve Rattner of the investment firm Quadrangle Group has emerged as President-elect Barack Obama’s leading candidate to be "car czar."

Known for brokering investment media deals, Rattner began his career as a reporter with the New York Times before leaving for the greener pastures of Wall Street. There, he rose quickly at places like Lehman Brothers, Morgan Stanley, and Lazard Frères. Mr. Rattner is highly regarded for his financial acumen — so highly that a year ago, New York Mayor Michael Bloomberg put his fortune — estimated to be worth as much as $13 billion — in Rattner’s hands.

Here’s the best part–someone who will fit in the Mid-Western culture of Detroit perfectly.

In Autumn of the Moguls author Michael Wolff described Rattner as "very smooth" with a mien of formality, reserve, efficiency, and soft-spokenness. "He is a kind of perfect museum-board member," Wolff wrote.

I remember the first time I got taken to a girlie bar in Thailand to watch Formula One with colleagues; I felt like I had finally lost my auto industry virginity (and, since you asked, I was the only Anglo woman in the bar and the only one not working). I wonder how Mr. Museum-Board Member likes titty bars?

I wonder if Mr. Museum-Board Member even drives his own car? 

Though in the end, I suppose I shouldn’t complain. Usually when people give the kind of huge money that Rattner has, they get to be Ambassador to Paris. Rattner? He’s contemplating the privilege of serving as Ambassador to the Rust Belt.

On CSPAN now.

Burris is doing terribly in his testimony before the Blago impeachment Committee.

He was asked whether he talked to Lon Monk about the Senate seat. He said yes. Lon Monk is Lobbyist 1 in the Complaint, the guy who Fitz has also taped, not least in the horse-racing venture that Fitz was willing to release to the impeachment committee.

And now Durkin, the Republican ranking member on the committee, has noted that a $1.2 million donor (Telephone USA Investments/Joseph Stroud) to Burris has only given to one other politician: Blago. Burris and his lawyer are now trying to back out of answering details about this loan. Burris justgave a non-answer about whether or not the loan was "forgiven"–he basically said he had no way of repaying it, though he didn’t say the loan had been repaid.

Back on Lon Monk: "As lobbyists, we see how we can help each other."

Lots of questions from Republicans about whether or not he has been making promises not to run in 2010.

Rut roh. Now the Republicans are bitching that the draft report was released this morning.

"Those of us downstate often see more clearly because there’s not as much airpollution as there is in Chicago."

Asking about Burris’ partner talking with Patti Blago about employment gig.  Burris says he knows nothing about it.

Eddy: Why was the Governor’s criminal defense attorney calling you about the seat?

Genson: He’s not the criminal defense attorney.

Eddy: When Adams called you, in what capacity?

Burris: Adams is a good friend of my son, I helped raise him to some degree. I treated it as being counsel to governor.

Eddy: I’ve seen Adams sit in this committee as defense counsel of governor. Nothing relating to criminal complaint relating to appointment at all?

Davis: Will you get Blago’s security clearance back?

Burris: I don’t know what authority I would have. It’s something that would come to my attention–I’d check with Durbin.

Rose: "Designee Burris."

Now discussing Burris’ December 08 presser to bid for the seat.

Tracy: The 1.2 million campaign donation: what kind of business?

B: He owns TV stations.

Tracy: Does he have any contracts with the state of IL.

I see him socially.

Tracy: Is it understood it will never be repaid. 

B It has never come up since I lost the primary in 02.

Tracy: Do you recognize your appointment not under idea circumstances? What I’m trying to establish, I believe that you have qualification. What we have to consider is people of state of IL.

Bellock: Did you mean it when you assured the people of IL that Blago would not appoint?

Genson: I didn’t assure anyone.

Bellock: To hear that Adams came back to request that you have that appointment, seems highly irregular. People were assured appointment would not be made. No matter who made that statement, in testimony today, it seems highly irregular statement made and two weeks later Adams come forward.

Burris: No knowledge.

IMO, Blago’s been playing his whole post-arrest period about as well as could be expected, up to and including making the Senate Majority Leader look like an amateur. But today’s latest move may well backfire.

Blago’s lawyers just filed (in a motion they tried to keep sealed) to get Fitz dismissed from his case.

Lawyers for Gov. Rod Blagojevich have filed a sealed motion to remove U.S. Atty. Patrick Fitzgerald and his assistants from prosecution of the case against the governor, a federal judge disclosed today.

U.S. District Chief Judge James Holderman ordered the defense today to file that motion publicly.

After today’s court session, Sheldon Sorosky, a Blagojevich lawyer, said the defense wanted Fitzgerald’s removed "because of the statements made in the announcement of the arrest of Gov. Blagojevich."

Sorosky was asked if the defense believed Fitzgerald used inflammatory language in the announcement. "The motion speaks for itself," Sorosky said.

Mind you, I’m sure Blago can find all manner of discredited shill who will argue that Fitzgerald spoke improperly at his press conference announcing Blago’s arrest. But that doesn’t change the fact that Blago is now asking for something his alleged confederates tried to do over four years ago–get Fitz fired (or at least removed from this case). The same Rezko trial witnesses that form the foundation of Fitz’s case against Blago, after all, also testified that the gang tried to get Fitz fired.

In a hearing before court began, prosecutors said they hoped to call Ali Ata, the former Blagojevich administration official who pleaded guilty to corruption yesterday, to the stand.

Assistant U.S. Atty. Carrie Hamilton said she believed Ata would testify to conversations Ata had with his political patron, Rezko, about working to pull strings to kill the criminal investigation into Rezko and others when it was in its early stages in 2004.

"[Ata] had conversations with Mr. Rezko about the fact that Mr. Kjellander was working with Karl Rove to have Mr. Fitzgerald removed," Hamilton told U.S. District Judge Amy St. Eve.

The one member of the pay-to-play gang who has not yet publicly admitted they tried to take Fitz out–Rezko–is, by all appearances–getting more cooperative by the day.

 So while maybe I’m misreading how this latest play will go over, I gotta say the optics of it stinks. Blago’s alleged accomplices have been gunning for Fitz for years. And now, post-arrest, the first thing he does is try once more to get Fitz fired?

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

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

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

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

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

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

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

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

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

And this as unlucky conclusion 13:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I look forward to your response.

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

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

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

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

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

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

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

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

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

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

Here. The Trib’s overview is here.

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

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

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

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

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

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

They are:

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

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

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

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

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

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

Consider this a working thread.

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

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

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

I wonder whether Colin Powell knew about these opinions?

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