Kagro X wrote a post stating that Karl Rove is "not honoring his subpoena" from House Judiciary Committee. That’s not quite an accurate statement, yet–it won’t be until Rove actually does not show up when he was subpoenaed to testify, on Thursday, July 10.

I raise the distinction because, thus far, Rove’s refusal to testify is based solely on his attorney Robert Luskin’s efforts to pretend that the executive privilege Bush invoked with regards to the US Attorney purge extends to questions of politicized prosecution.

As I have indicated to you in each of my letters, Mr. Rove does not assert any personal privileges in response to the subpoena. However, as a former Special Advisor to the President of the United States, he remains obligated to assert privileges held by the President. As you are, of course, well aware, the precise question that we have discussed at length in our correspondence–whether a former Senior Advisor to thet President is required to appear before a Committee of Congress to answer questions concerning the alleged politicization of the Department of Justice–is the subject of a lawsuit in the United States District Court for the District of Columbia.

Yet that invocation of executive privilege was very specific. It relied upon a Paul Clement opinion that very specifically refers to the "dismissal and replacement of U.S. Attorneys" and then goes on to claim that that deliberations about the hiring and firing of USAs "necessarily relate to the potential exercise by the President of an authority assigned to him alone." The claim is specious on its face–after all, Congress has specific authority in the Constitution to legislate the selection of inferior officers; they had passed and were considering passing laws pertaining to the selection of interim USAs; and therefore they had a clear and recognized legislative interest in, for example, whether Bush tried to appoint Tim Griffin using a PATRIOT appointment so as to avoid the Senate approval process. But putting aside Clement’s transparently false argument, everything else he argues is premised on the exclusivity of the hiring and firing authority to the President.

But prosecution of federal crimes is not exclusive to the President; it’s an issue that Congress has clear legislative authority over. So DOJ would have to make very different analysis to find that Rove didn’t have to testify about his role in politicized prosecutions.

Furthermore, the argument the White House used to exempt Harriet Miers from testifying was based on two conditions that may not apply in Rove’s case. First, Clement’s argument about whether Presidential advisors had to show up to testify before Congress–on which the White House based its executive privilege claim with Harriet Miers–bases its logic on a Presidential advisor’s participation in privileged communications related to deliberations on a Presidential decision.

On the other hand, the White House has very legitimate interests in protecting the confidentiality of this information because it would be very difficult, if not impossible, for current or former White House officials testifying about the disclosed communications to separate in their minds knowledge that is derived from the Department’s disclosures from knowledge that is derived from other privileged sources, such as internal White House communications.

And, the Stephen Bradbury memo claiming absolute immunity from testifying before Congress–on which the White House relied in telling Harriet Miers not to show up–specifies that an assistant to the President need not show up before Congress if she is subpoenaed about matters relating to her official duties.

Accordingly, we conclude that Ms. Miers is immune from compelled congressional testimony about matters, such as the U.S. Attorney resignations, that arose during her tenure as Counsel to the President and that relate to her official duties in that capacity, and therefore she is not required to appear in response to a subpoena to testify about such matters.

In other words, to make the argument that Rove doesn’t have to show up, Luskin should be arguing that:

• Rove had privileged conversations about this matter–that is, with someone in the White House, as distinct from hacks in Alabama and the Public Integrity section of DOJ
• Rove was acting in his formal capacity as Senior Advisor to the President and/or Deputy Chief of Staff for Policy
• The subpoenaed testimony pertains exclusively to matters that happened during Rove’s tenure in the White House

Frankly, I don’t know what Rove would claim he was doing with regards to the Siegelman prosecutions. But even assuming he would testify to having had conversations about the prosecution, would he be willing to say his actions relating to it included some advice to the President, offered in his official duties as Advisor, and that all his actions occurred while he was at the White House? Unless he’s willing to claim that whatever involvement he had with the Siegelman case was part of his official duties, then he’s in a different situation than Miers.

In any case, Rove’s role in the Siegelman prosecution is distinct enough from Miers’ role in hiring and firing US Attorneys, that–it would seem–the White House would have to invoke executive privilege specifically in regards to this subpoena.

And I’m not alone in that belief. Some guy named Karl Rove has admitted as much. In an appearance with George Stephanopoulos, Karl Rove described the invocation of executive privilege for his Senate subpoena "a similar instance"–but then said that executive privilege would be invoked in this case soon. Probably.

Rove: Congress–the House Judiciary Committee wants to be able to call Presidential Aides on its whim up to testify, violating the separation of powers. Executive Privilege has been asserted by the White House in a similar instance in the Senate. It’ll be, probably be asserted very shortly in the House. Third, the White House has agreed–I’m not asserting any personal privilege, the White House has offered and my lawyer has offered several different ways, if the House wants to find out information about this, they can find out information about this and they’ve refused to avail themselves of those opportunities. [my emphasis]

Gosh, that was six whole weeks ago–certainly within most normal measures of "very shortly." But, as far as we know, the White House has not yet invoked executive privilege to prevent Rove from testifying on Thursday.

Has the White House or–more likely–DOJ gotten pickier about invoking executive privilege?

Attorney General Mukasey is certainly not above supporting Bush’s claims of executive privilege. He did so to prevent EPA from admitting that the White House–and Bush specifically–had ignored EPA’s counsel on ozone standards and an exemption for California under the Clean Air Act. While it’s fairly clear the Administration is invoking privilege to hide the fact that they’re not complying with the law (a case Oversight has yet to make directly), this instance is very narrowly tied to deliberative discussions Administrator Johnson had with the White House. Mukasey included a rough description of the privileged materials (though not, as is required, a log). And because OLC deemed and Mukasey agreed that these conversations directly pertained to deliberation, Mukasey supported the White House’s executive privilege claim.

Similarly, Mukasey nodded to executive privilege when DOJ told Oversight it couldn’t have copies of the Bush and Cheney interview reports–though Bush did not assert executive privilege directly and ultimately the DOJ refusal was couched in terms of concern over the Department’s ability to get voluntary cooperation from Presidents and Vice Presidents in the future.

We are not prepared to make the same accommodation for reports of interviews with the President and Vice President because the confidentiality interests relating to those documents are of a greater constitutional magnitude. The President and the Vice President are the two nationally elected constitutional officers under our Government. The President heads the Executive Branch and, as the Congress has by law recognized, the Vice President often advises and assists the President in the President’s performance of his executive duties. It is settled as a matter of constitutional law, reflected in court decisions, and congressional and Executive Branch practice, that the communications of the President and the Vice President with their staffs relating to official Executive Branch activities lie at the absolute core of executive privilege. The interview reports sought by the Committee deal directly with internal White House deliberations and communications relating to foreign policy and national security decisions faced by the President and his immediate advisers. Congressional access to those reports would intrude into one of the most sensitive and confidential areas of presidential decision-making.

This argument doesn’t make any sense on several levels. Nevertheless, once again DOJ was protecting only those conversations that related to conversations with the President and Vice President directly.

But then there’s the example of David Addington, who obviously didn’t want to testify before HJC about torture, but who did so anyway, all the while pathetically waving around the Bradbury statement that said aides didn’t have to appear before Congress, just as Rove is metaphorically doing right now. If a smart lawyer like David Addington didn’t consider the mere existence of the Bradbury memo sufficient exemption from showing up under subpoena, it’s not clear that a smart lawyer like Robert Luskin will conclude any differently.

Now, it’s possible that Bush will still get around to invoking executive privilege for Rove. After all, Bush did not do so for the EPA until the day Oversight had scheduled to vote on contempt. Conyers and Sanchez have already made clear that, if Rove doesn’t show on Thursday, they will consider contempt–though they don’t say they’re prepared to vote on contempt on Thursday.

We want to make clear that the subcommittee will convene as scheduled and expects Mr. Rove to appear, and that a refusal to appear in violation of the subpoena could subject Mr. Rove to contempt proceedings, including statutory contempt under federal law and proceedings under the inherent contempt authority of the House of Representatives,

So it may be we wouldn’t find out until Thursday or sometime later that Bush has or hasn’t invoked executive privilege. But there are several reasons why Bush and/or DOJ may be unwilling to invoke executive privilege in this case:

• OPR is currently investigating the Siegelman prosecution, which means some of this may come out via other means
• Some of the Siegelman back history pre-dates Rove’s tenure at the White House, so could not be covered by executive privilege in any case
• Karl is alleged to have spoken to PIN directly, meaning there’s no executive deliberation involved
• It would be a stretch to admit that ensuring the prosecution of prominent Democrats was included among Rove’s official duties–at least those Bush wants to admit to

Basically, I’m not convinced–particularly not with the Rezko/Kjellander/Fitzgerald allegations lurking in the background here–that the White House is prepared to say all of Karl’s interventions into ongoing prosecutions were part of his official business.

As of now, Bush has not invoked executive privilege–at least not as far as is publicly known. And if Rove’s a no show on Thursday without such protection, he’s in much greater danger of immediate prosecution for contempt.

Which is a point HJC needs to make crystal clear between now and Thursday. Rove, by his own admission, believes the executive privilege invoked WRT the USA purge is not adequate to excuse him from appearing on Thursday. Yet as of last week, Luskin still claimed he wouldn’t appear.

I managed to get some of Blue America-endorsed candidate Mark Schauer’s (candidate for MI-07, just west of Ann Arbor) time on Wednesday. We talked about the crummy auto industry, what he hopes to accomplish when we elect him to Congress next year, and his wife’s recipe for Pasty Pie–some of which I’ll write up at more length in the coming days. But for now, I wanted to share what Mark had to say, on Wednesday, as he looked forward to the July Fourth weekend.

emptywheel: The question is, as we go into the July Fourth weekend, and there’s lots of people feeling very frustrated about the status of our Constitution and the values that went into that original Fourth of July, what can you, Mark Schauer do, when you get to DC, to restore the Constitution and to restore those values that are all about Fourth of July?

Schauer: I think our country has been steered off a cliff by this Administration, they’ve compromised our Constitution in lots of ways. I’ve spoken out against the FISA issue and I’ve also talked with my constituents about basic things like signing statements that this President has abused. And a Vice President, Dick Cheney, on one hand insists he’s a member of the Executive Branch, and on the other hand, insists he’s a member of the legislative branch. I think one of the ways we restore our reputation abroad is by restoring our commitment to our Constitution. I will defend people’s privacy, I will defend people’s protection under the Constitution at every opportunity. I will take that oath of office seriously–frankly, as I have as a member of the Michigan legislature. And I think that that’s part of the change that this country is ready for and I look forward to helping to bring that about.

emptywheel: What do you think Congress can do moving forward–because so far Congress hasn’t been successful at bringing the Administration in check, even though we all admit that there are these problems and we’ve got a terrible reputation abroad. What do you think one Congressperson can do to help restore the Consitution?

Schauer: I think actively uphold that oath. I think one of the roles of a legislature is oversight over the Executive Branch. Now, I’m going to be enthusiastically campaigning for Barack Obama and I hope he’s our President. But let me be clear–my job is not to work for a future President Obama, my job is to work for the people of my district. And so part of our job is to hold that President accountable to the Constitution, to provide legislative oversight that’s in the law, whether it’s from a budgetary or a War Powers standpoint. I think that’s what the people will be electing me to do. 

emptywheel: Anything else you want to say as we go into the July Fourth weekend?

Schauer: Happy Birthday America!

I hope our candidates around the country are reflecting on these questions, too, this weekend. 

So I spent a day and a half, knowing full well that the Colombian rescue was done with the assistance of our intelligence services, wondering, still, why they timed the rescue to coincide with McCain’s visit to Colombia.

Leaders of the Colombian FARC rebel movement were paid millions of dollars to free Colombian politician Ingrid Betancourt and 14 other hostages, Swiss radio said on Friday, quoting ‘a reliable source’.

The 15 hostages released on Wednesday by the Colombian army ‘were in reality ransomed for a high price, and the whole operation afterwards was a set-up,’ the radio’s French-language channel said.

Saying the United States, which had three of its citizens among those freed, was behind the deal, it put the price of the ransom at some $20 million.

[snip]

White House spokeswoman Dana Perino said the rescue ‘was conceived by the Colombians and executed by the Colombians with our full support,’ while implying that Washington had provided intelligence and even operational help.

Silly me! They didn’t need McCain there for a photo op! They needed a bagman.

Now I wonder how long it’ll be before we find out the ransom came from Bandar’s little slush fund? But don’t worry–McCain’s just aspiring to be like Saint Ronnie.

(Stole the YouTube from Athenae)

Back before George Bush shat on the Constitution and back before I got dual-citizenship, through mr. emptywheel, in Ireland, I spent a summer studying Czech in Prague. I was in the most advanced class, which meant that (because most Americans never get much further than "pivo" in Czech) I was one of just two Americans in the class. In fact, several of the other students were people who had been born in Czechoslovakia, but had fled communism when they were kids. They were spending the summer re-learning Czech so they could, now that Czech Republic was a free country, contribute to the country of their birth.

Though the other American woman was the daughter of a Czech, she was in some ways an "ugly American." I remember, for example, when she said she could not, would not, ever live without a car, not even if she lived in Manhattan (she lived in Ithaca, NY). She was pretty jingoistic, too–America had the power and force, goddamnit, so it could do what it wanted to do.

One day, the other American woman was gone for some reason and, in the course of some speaking exercise I suggested that America wasn’t all it could be. Everyone in the class took that opportunity to express their surprise. "You’re not like other Americans" they said (this was in the period when young Americans treated Prague like an extended frat party). "I can’t believe you haven’t moved to Europe."

But immediately several of them, at once, said, "But please stay where you are, to make America better. To make America what it should be."

There have been times–after I got my EU citizenship and after Bush won the 2004 election–when I’ve been tempted to leave this country. But I always think back to that commitment I made to a bunch of Europeans (some of whom, remember, had fled communism and experienced the return of freedom to their own country) to make America what it should be again. I think back to that commitment I made to myself to make America what it should be again.

Two hundred-some years ago, a bunch of guys fought hard to make this country special. It’s our fight now, to make our country back into the leader and beacon of hope it ought to be.

May you and yours have a wonderful Fourth!

Obama’s statement on FISA:

I want to take this opportunity to speak directly to those of you who oppose my decision to support the FISA compromise.

This was not an easy call for me. I know that the FISA bill that passed the House is far from perfect. I wouldn’t have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush’s abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration’s program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That’s why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate.

But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year. The exclusivity provision makes it clear to any President or telecommunications company that no law supersedes the authority of the FISA court. In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people. But in a free society, that authority cannot be unlimited. As I’ve said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility

The Inspectors General report also provides a real mechanism for accountability and should not be discounted. It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues. The recent investigation uncovering the illegal politicization of Justice Department hiring sets a strong example of the accountability that can come from a tough and thorough IG report.

The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I’m persuaded that it is necessary to keep the American people safe — particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I’ve chosen to support the current compromise. I do so with the firm intention — once I’m sworn in as President — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.

Now, I understand why some of you feel differently about the current bill, and I’m happy to take my lumps on this side and elsewhere. For the truth is that your organizing, your activism and your passion is an important reason why this bill is better than previous versions. No tool has been more important in focusing peoples’ attention on the abuses of executive power in this Administration than the active and sustained engagement of American citizens. That holds true — not just on wiretapping, but on a range of issues where Washington has let the American people down.

I learned long ago, when working as an organizer on the South Side of Chicago, that when citizens join their voices together, they can hold their leaders accountable. I’m not exempt from that. I’m certainly not perfect, and expect to be held accountable too. I cannot promise to agree with you on every issue. But I do promise to listen to your concerns, take them seriously, and seek to earn your ongoing support to change the country. That is why we have built the largest grassroots campaign in the history of presidential politics, and that is the kind of White House that I intend to run as President of the United States — a White House that takes the Constitution seriously, conducts the peoples’ business out in the open, welcomes and listens to dissenting views, and asks you to play your part in shaping our country’s destiny.

Democracy cannot exist without strong differences. And going forward, some of you may decide that my FISA position is a deal breaker. That’s ok. But I think it is worth pointing out that our agreement on the vast majority of issues that matter outweighs the differences we may have. After all, the choice in this election could not be clearer. Whether it is the economy, foreign policy, or the Supreme Court, my opponent has embraced the failed course of the last eight years, while I want to take this country in a new direction. Make no mistake: if John McCain is elected, the fundamental direction of this country that we love will not change. But if we come together, we have an historic opportunity to chart a new course, a better course.

So I appreciate the feedback through my.barackobama.com, and I look forward to continuing the conversation in the months and years to come. Together, we have a lot of work to do. [my emphasis]

Here’s my biggest problem with this statement. Obama says the IG report on politicization is a great example of accountability. Well, here’s what that report said about accountability:

However, because both McDonald and Elston have resigned from the Department, they are no longer subject to discipline by the Department for their actions. Nevertheless, we recommend that the Department consider the findings in this report should either McDonald or Elston apply in the future for another position with the Department.

In other words, the IG report on politicization at DOJ found that Mike Elston and Esther McDonald had broken the law. But it admitted that DOJ was unable to hold them accountable for their actions–because too much time had elapsed, because they had both snuck off to sinecures in swank Republican law firms, and because the Inspector General really couldn’t hold them accountable directly.

So next year, when we get this vaunted IG report on the illegal wiretapping, it’ll include a passage that says:

However, because the five year statute of limitations has passed and because former President Bush, former White House Counsel Alberto Gonzales, former Chief of Staff Andy Card, and former Vice President Cheney are no longer in office, the culprits are no longer subject to legal consequences for their actions. Nevertheless, we recommend the American people consider the findings in this report should George Bush ever try to run for President again.

Nah. I don’t call that accountability either.

If she becomes First Lady.

I guess that’s SugarMomma’s idea of sacrificing for her country, swapping her $3000 German suits for $3000 American ones. Perhaps, as someone who doesn’t wear $3000 suits, I don’t understand the point, but if it would be important for the First Lady of the United States to stick to American designers, don’t you think the woman auditioning to be First Lady ought to do the same?

Anyway, I don’t know why, but I find these examinations of Cindy McCain’s wealth fascinating, in a train wreck kind of way. The country is heading into (at best) a deep recession and people are having trouble paying for food, yet this woman has–sometime in the last year–spent $500,000 in one month on her Amex Card.

Their credit card bills peaked between January 2007 and May 2008, during which time Cindy McCain charged as much as $500,000 in a single month on one American Express card and $250,000 on another, while one of their two dependent children had an AmEx card with a monthly balance as large as $50,000.

And in an era when millions of people are losing their homes, the McCains have raised the "budget" for servant salaries from the price of a modest home in many parts of the country to the price of a really nice home.

The McCains increased their budget for household employees from $184,000 in 2006 to $273,000 in 2007, according to John McCain’s tax returns.

(For the record, "budget" is the Politico’s term, not the McCain’s. I rather suspect they don’t use that word, much less the concept.)

And Cindy’s solution to the problem of fighting with her kids to get into the Coronado condo is to simply buy a second one.

Cindy McCain, through another family corporation, spent about $4.7 million in 2004 and 2008 on two condos in an exclusive building in Coronado, Calif., an affluent San Diego suburb noted for its high percentage of military retirees.

In her recent Vogue interview, conducted from the newer Coronado condo, McCain explained that her husband, a Navy veteran, initially wasn’t keen on the idea of a pied-à-terre in Coronado.

"When I bought the first one, my husband, who is not a beach person, said, ‘Oh, this is such a waste of money; the kids will never go,’” she told Vogue. “Then it got to the point where they used it so much I couldn’t get in the place. So I bought another one.”

Frankly, I’ve seen mothers do this with toys. Having a fight over the Legos? Buy some more. Kids fighting over the the last cookies? Buy some more. Only in the McCain family, that kind of conflict resolution extends to multi-million dollar condos.

Look, I don’t begrudge Cindy McCain for being fabulously rich after inheriting the money Daddy made of shitty beer. And I realize that Theresa Heinz Kerry is even richer.

But we have a problem in this country when our elected politicians lead lives that are this drastically different from the lives average Americans lead. How can people who buy new condos like they’re a piece of clothing understand how dire the housing crisis is in this country?

John Dean’s piece on FISA reads with all the angst of someone who–after a number of people have demonstrated his error–is hoping to persuade Barack Obama to get him out of the hole he created for himself. "Please, Obama," Dean seems to be saying, "hold Bush accountable so I don’t have to admit immunity really is immunity."

One gaping problem with Dean’s argument is the absence of any discussion of statutes of limitation. Even if Obama did what Dean wanted–and announced he would direct his AG to immediately review the warrantless wiretap program–the Republicans in the Senate could just filibuster approval of Obama’s AG until, say, April 26, 2009 (five years and 45 days after the authorization signed by Alberto Gonzales on March 11), and the statute of limitations on the known crimes would expire.

But the proposition I find really ridiculous is Dean’s contention that Bush isn’t going to issue blanket pardons of all the law-breakers in his Administration.

Given the downside, it is not clear whether Bush would issue a pardon in this context.

If it were issued by Bush, however, a blanket pardon to his “national security” miscreants would require acceptance by them of the fact that they had broken the law, and thus an admission of guilt. Were Bush to issue such a remarkable pardon, it would, of course, cement his historical stature as several notches below even that of Richard Nixon, who refused to pardon those who (many “for national security reasons”) engaged in the so-called Watergate abuses of presidential power on his behalf. Not many presidents want to be viewed by history as worse than Nixon. And a blanket pardon would be an admission by Bush that his war on terror has been a lawless undertaking, operating beyond the bounds of the Constitution and statutes that check the powers of the president and the executive branch. It would be an admission by Bush, too, of his own criminal culpability (which is why Nixon refused to grant his aides a pardon.)

Bush is very politically savvy. He knows that a blanket pardon, or even the prospect of it, could give Obama and the Democratic Party a wonderful issue during the coming months of the general election. Most Americans are deeply concerned about Bush/Cheney’s conduct of foreign affairs and national security, which ignores American laws and treaty obligations. So if Bush is forced to pardon his national security zealots, or if GOP standard-bearer John McCain was forced to embrace such action (as he likely would be), it raises the issue of whether Americans now want to elect a president who is subject to the law, or endure another temporary monarchy which ignores it. And that is no small issue in this 2008 election.

First, given that Nixon never really had to admit his guilt, I don’t see why anyone would expect Cheney, Libby, Gonzales, Yoo, and Addington would have to either. Is anyone now talking about how guilty Cap Weinburger is?

Second, Bush already is viewed–even by historians–as worse than Nixon. His approval rating has been in the toilet longer than Nixon’s, and he’s not going to have a peace treaty or a China relationship to show for his time in office. And the damage Bush has done to the economy will linger in historical memory for quite some time.

More importantly, I expect that Bush’s priority, as he leaves office, will be (as Nixon’s was) on avoiding criminal prosecution rather more than on his historical legacy. And given Congress’ determination not to impeach Bush for all his law-breaking, that puts Bush in precisely the opposite position as Nixon was in. Nixon got his pardon (again, without admitting culpability), which left him free, in turn, to deny his aides their pardon, because they couldn’t do anything to him! Bush, on the other hand, is utterly dependent on Cheney and Addington and Gonzales on keeping silent about his own culpability. And the best way to keep them silent–as we’ve already seen with Libby–is to make sure they avoid any real legal consequences for their actions. We know that Bush authorized the illegal warrantless wiretap program himself, in spite of FISA’s clear restrictions against it, so we know Bush is ultimately the one on the line. And the best way for him to avoid legal consequences for that act is to make sure his aides don’t talk about it. All the more reason, then, for him to issue a boat-load of pardons as he leaves office, for this issue and for others. (And yes, I’m aware that these newly pardoned thugs would then not be able to invoke the Fifth if Congress were to call them to testify–but I think past behavior and Bush’s frequent invocation of executive privilege suggests we’re not going to see that happen).

Finally, I don’t know why Dean believes that "a blanket pardon, or even the prospect of it, could give Obama and the Democratic Party a wonderful issue during the coming months of the general election." Obama frequently uses the phrase "Scooter Libby justice," so he’s effectively already doing what Dean says he might do if Bush were to offer pardons (which, of course, wouldn’t actually be issued until Obama has won the presidency anyway). But that "Scooter Libby justice" phrase really doesn’t reflect on McCain. Furthermore, Bush’s commutation for Libby proves that the electoral consequences of excusing law-breaking won’t keep him from doing excusing law-breaking–so long as his own ass is on the line.

And given that it is, on FISA more than on any of the Administration’s other law-breaking, you can be sure Bush will issue the pardons to keep himself safe.

Due to some doozy global warming storms last night, we had intermittent power, so I’m just now getting to the Vaughn Walker decision in the al Haramain case, in which he dismisses the suit but invites the plaintiffs to submit unclassified evidence in support of their case. So there’s already a range of smart commentary on the decision. The Electronic Frontier Foundation argues that Walkers ruling bodes well for their own case–which relies on the AT&T documents liberated by Mark Klein, and not classified evidence. Wired’s David Kravets notes that, coming as it does two business days before Congress will grant the telecoms immunity, the ruling has little meaning for EFF. McJoan basically makes the same argument–Congress is in the process of taking an unwieldy bad law and making it worse.

With regards the events of the next week, I sort of agree that this ruling will have little effect. There’s nothing in Walker’s ruling that will, by itself, persuade Barack Obama to take a stand on this legislation (he’s due to make an announcement about his stance on the legislation, but I don’t think this will change it one way or another). And I agree with Kravets–once Congress does pass its immunity, this ruling will be meaningless for those suing the telecoms (though perhaps it’ll make the likely suits that the immunity itself is illegal more interesting).

State Secrets Is Not Absolute

But the decision is interesting for two other reasons. First, Walker makes a strong case that the government’s ability to invoke state secrets is not absolute. Walker cites one of David Addington’s favorite cases, Navy v. Egan, to show that even that case envisions the possibility of Congress placing limits on the President’s ability to control national security information.

But Egan also discussed the other side of the coin, stating that “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Id at 530 (emphasis added). Egan recognizes that the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required. Egan’s formulation is, therefore, a specific application of Justice Jackson’s more general statement in Youngstown Sheet & Tube. [my emphasis]

And then, in yet another example of Article III reminding the executive branch about that whole co-equal branch thing, Walker reiterates that the courts get to decide the limits to the President’s power.

The weakness of defendants’ first argument——that the Constitution grants the executive branch the power to control the state secrets privilege——is evident in the authorities they marshal for it. Defendants rely on United States v Nixon, 418 US 683 (1974), in which the Supreme Court rejected President Nixon’s efforts to quash subpoenas under Federal Rule of Criminal Procedure 17(c) seeking tape recordings and documents pertaining to the Watergate break-in and ensuing events. The Court rejected the president’s “undifferentiated claim of public interest in the confidentiality of [White House] conversations” between the president and his advisors, contrasting the need for confidentiality of these conversations with “a claim of need to protect military, diplomatic or sensitive national security secrets.” Id at 706. In the course of making this comparison, the Court observed that privileges against forced disclosure find their sources in the Constitution, statutes or common law. At bottom, however, Nixon stands for the proposition that in the case of a common law privilege such as that asserted by President Nixon, it is the judiciary that defines the metes and bounds of that privilege and even the confidential communications of the president must yield to the needs of the criminal justice system. This hardly counts as authority that the president’s duties under Article II create a shield against disclosure.

So Walker lays out the legal basis through which Congress can place limits on how the Executive Branch plays with classified information. Given that Congress is currently considering placing limits on the State Secrets privilege, Walker’s decision may come in useful.

John Yoo Was Wrong

The other reason I find this opinion useful is because it directly refutes a claim John Yoo made in one of his still-classified OLC opinions. As I reported in May (though we basically knew this anyway), John Yoo claimed that Congress had never really said exclusive meant exclusive.

After significant efforts, Senator Whitehouse has finally gotten the Administration to declassify the fourth of the four outrageous opinions John Yoo wrote to justify the warrantless wiretap program (the other three Pixie Dust provisions basically allow the President to write his own laws). This one pertains to the exclusivity provision of FISA, which states clearly that FISA was the "exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted."

Here’s what that purported genius, John Yoo, did with FISA’s exclusivity provision:

Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.

Not that it should surprise us, but Judge Walker disagrees with Yoo.

It is not entirely clear whether defendants acknowledge Congress’s authority to enact FISA as the exclusive means by which the executive branch may undertake foreign intelligence surveillance in the domestic context. While their papers do not explicitly assert otherwise, defendants’ attorney in this matter stated in open
court during the hearing herein held on April 23, 2008 that, while he conceded that “Congress sought to take over the field” of foreign intelligence surveillance (Doc #452 at 29:2-3), whether the president actually had constitutional authority under Article II to order such surveillance in disregard of FISA remained an open question: “[D]oes the president have constitutional authority under Article II to authorize foreign intelligence surveillance? Several courts said that he did. Congress passed the FISA, and the issue has never really been resolved. That goes to the issue of the authority to authorize surveillance.” Id at 33:7-12. Counsel repeatedly asserted that this issue was entirely separate from the preemption inquiry relevant to the state secrets privilege and urged the court not to “conflate” the two inquiries. E g, id at 32:8-10.

To the contrary, the court believes that the two areas of executive branch activity pertaining to foreign intelligence surveillance are not distinct for purposes of this analysis as defendants’ counsel asserts. Congress appears clearly to have intended to——and did——establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities. [my emphasis]

Remember, the Office of Professional Responsibility is currently investigating whether Yoo’s decisions underlying the warrantless wiretapping program were improper. Not that it ought to take anything more than common sense to conclude that Yoo’s claim–that FISA did not explicitly limit the President’s ability to conduct wiretapping–is nuts on its face. But just in case, now there’s another judge’s ruling that clearly finds Yoo’s proposition to be nuts.

In any case, with regards to FISA, this ruling is little more than a useful marker for how a court interprets a law that will, as of Tuesday, be out of date. But at the very least, the decision is probably giving David Addington and John Yoo and the rest of the Unitary Executive clubbers heartburn right now–and that’s always a good thing.

Via Laura, ABC reports that Bush is considering closing Gitmo.

President Bush will soon decide whether to close Guantanamo Bay as a prison for al-Qaeda suspects, sources tell ABC News. High-level discussions among top advisers have escalated in the past week, with the most senior administration officials in continuous talks about the future of the prison camp at Guantanamo Bay–and how it will be dramatically changed and/or closed in the wake of the Supreme Court’s ruling that gave detainees there access to federal courts.

Sources have confirmed that President Bush is expected to be briefed on these pressing GTMO issues–and may reach a decision on the future of the naval base as a prison for al Qaeda suspects–before he leaves for the G8 on Saturday.

As a number of people have pointed out, the Boumediene decision basically eliminates the reason for Gitmo. BushCo had used Gitmo because Cuba technically retains sovereignty over the land, so–they claimed–the US military could evade US habeas corpus laws. But Anthony Kennedy didn’t buy that logic, meaning the entire reason for Gitmo has now been invalidated. So why keep it open?

Particularly when you can turn Gitmo into a campaign issue. ABC notes, in passing, that subsequent to making a decision on Gitmo, Bush will basically dump the whole festering problem into Congress’ lap.

Bush has not decided whether he will announce that GTMO should be closed, sources say. But at the very least, sources say, he will soon announce a host of these legal and policy changes that will force Congress to come up with a solution–including where to imprison those detainees if GTMO does, in fact, shut its doors. [my emphasis]

I guess it’s not enough to time the Gitmo Show Trials to coincide with the election. Now, Bush is going to demand that Congress legislate on Gitmo during election season. In 2002, we had the AUMF. In 2006, we had MCA. I guess this year it’s Gitmo’s turn.

Lovely. Congress always thinks so clearly when Bush plays this trick.

Man, Condi Rice has got to be tired of getting damning letters from Henry Waxman.

This one shows that, despite very specific denials from the Bush Administration that they knew anything about Bush buddy and uber-donor Ray Hunt scoring one of the first oil deals with Kurdish Iraq, the State Department was in fact very well informed about the deal.

Documents obtained by the Committee indicate that contrary to the denials of Administration officials, advisors to the President and officials in the State and Commerce Departments knew about Hunt Oil’s interest in the Kurdish region months before the contract was executed.

The documents show:

• On June 12 and 15,2007, Hunt Oil officials met with officials from the U.S. Regional Reconstruction Team (RRT) for the Kurdistan region, located in Erbil, "to investigate investment prospects" in the Kurdish region.6 During the June 15 meeting, the Hunt Oil officials "specifically asked if the [U.S.] had a policy toward companies entering contracts with the KRG.7 According to notes taken by Hunt Oil officials, they were told the "U.S. has no policy, for nor against."8 Synopses of these meetings were sent to the U.S. Embassy in Baghdad as part of weekly situation reports on June 14 and 21,2007.9
• On July 12,2007, Ray Hunt, president and CEO of Hunt Oil, sent a letter to the President’s Foreign Intelligence Advisory Board, of which he was a member, making clear his intentions to pursue oil exploration in Kurdistan. Mr. Hunt disclosed that Hunt Oil was "approached a month or so ago by representatives of a private group in Kurdistan as to the possibility of our becoming interested in that region."10 He went on to describe the visit of an oil survey team and stated that "we were encouraged by what we saw. We have a larger team going back to Kurdistan this week."11
• In August 2007, Hunt Oil representatives exchanged e-mails with State Department personnel discussing their return to Kurdistan in late August to "assess business opportunities in Kurdistan. 12
• On August 30, 2007, Ray Hunt sent a second letter to the President’s Foreign Intelligence Advisory Board informing the board that he would be traveling to Kurdistan during the week of September 3,2007, to meet with members of the Kurdistan Regional Government, including the President, Prime Minister, and Oil Minister. 13
• On September 5, 2007 – three days prior to the contract’s execution – Hunt Oil’s general manager informed the RRT in Erbil that "Hunt is expecting to sign an exploration contract" with the Kurdistan Regional Government.14 That same day, the RRT leader sent an e-mail summary of the meeting to the Embassy in Baghdad and the State Department headquarters in Washington.15 A second synopsis of the meeting was sent to the Embassy in Baghdad in a situation report the following day. 16

That’s all bad enough. But I’m particularly interested in why someone from the State Department is busy tipping off Hunt Oil to other oil and gas deals in Iraq?

Other correspondence provided by Hunt Oil also casts doubt on the State Department’s claim that it disapproved Hunt Oil’s deal with Kurdistan. Five days after the announcement of that contract, on September 13, 2007, a State Department official in southern Iraq made contact with a Hunt Oil representative to suggest another business opportunity in Iraq, in this case a project to develop a liquefied natural gas refinery in southern Iraq, writing: "This seems like it would be a good opportunity for Hunt. … If you all are not aware of this and would like some more information … let me know." 21 A Hunt Oil official forwarded the State Department e-mail to Ray Hunt, the head of Hunt Oil, noting: "This is really good for us…. I find it a huge compliment that he is ‘tipping’ us off about this. He certainly doesn’t have to…. This is a lucky break. 22 [my emphasis]

Since when did our diplomatic corps turn into the business development wing of one of the company of one of Bush’s best donors?

Don’t answer that.

When this deal first went through, I tried to imagine WTF the Bush Administration was thinking when it let this deal go forward.

What I don’t know is how to interpret the deal. Perhaps it means nothing more than that Ray Hunt, having reviewed BushCo’s plans and the real underlying intelligence personally, is sufficiently comfortable that Kurdistan will exist as a viable entity, with the oil laws in Iraq remaining as they are, with sufficient security, to conduct oil exploration over the long term (and this is oil exploration, so we are talking a long term indeed). Or perhaps Hunt has signed this deal as a favor to Bush, to push other, publicly held oil companies (which might–out of concern for shareholder value–hesitate before signing such a deal) to invest in Iraqi oil. The NYT article suggests both may be factors in this deal.

Despite Iraq’s vast oil reserves, major international companies have sat on the sidelines, not only for security reasons but because of the absence of legislation governing the industry and offering protection for investments.

A draft oil law for all of Iraq has been bogged down for months, in part because of disputes over who will control the proceeds.

In August, however, the Kurdish self-governing region in northern Iraq enacted its own law governing foreign oil investments. The move angered the central government in Baghdad, but the Kurds are determined to push ahead with oil exploration.

Most interestingly, this deal suggests those close to Bush believe the US will retain its ties with Kurdistan, as a distinct entity, for some time.

I still don’t know the answer to that question. But I’d say that the State Department approval of the deal sure suggests they don’t give a damn about Iraq’s so-called "sovereignty."