March 29, 2024 / by 

 

Waxman Subpoenas the Bush and Cheney Transcripts

Well, it looks like Henry Waxman isn’t going to wait around for HJC to follow my suggestions on getting the Bush and Cheney transcripts.

From the Oversight Committee:

Oversight Committee Subpoenas Justice Department for Plame Documents
Today, the Oversight Committee issued a subpoena to Attorney General Mukasey compelling the production of FBI interview reports of Vice President Cheney and President Bush and other documents regarding the outing of covert CIA agent Valerie Plame Wilson.

Update: the due date on the subpoena is June 23. It asks for the same materials requested in Waxman’s June 3 letter.


Why Might Schlozman Have Been Referred to a Grand Jury

While I’m waiting to hear from the next President of the United States, I thought I’d make some suggestions about what Brad "Shorter" Schlozman said that got him a perjury referral to the grand jury for. In this post, I laid out several things Schlozman said when he testified before the Senate which are probably truth-challenged.

The ACORN Investigation Is/Is Not National
You’ll recall that Brad Schlozman indicted 4 former ACORN workers (one of whose name he got wrong) for submitting fraudulent voter reg information. Well, he strongly suggested that the indictments were not part of a national investigation (a few Senators hammered him on this point–suggesting that, since the investigation was not national, it shouldn’t have been filed before the election). But, at the same time, Schlozman indicated over and over again that the investigation is national.

There needs to be follow-up on this. Did Schlozman and some other flunkies dream up a national campaign against ACORN based on the 4 flimsy indictments in MO?

[snip]

Schlozman Claims He Didn’t Know of MO Job Until It Was Publicized
If there is one claim, of many, that I think Schlozman will eventually get busted on, I suspect it’s this one (which is remarkably similar to Rachel Paulose’s claims, I might add). Schlozman argued he didn’t apply–or know about–the potential opening in WD MO (Todd Graves’ old job) until it was published. Only once it was, Schlozman tells it, did he apply for the job.

As Schumer elicited, it’s not like Schlozman should have thought he was qualified for the job. He had never prosecuted a case, neither civil nor criminal at that point.

But he applied for the job and–only because they needed someone within 2 weeks, Schlozman said–he was hired.

Schlozman Claims He Didn’t Tell Monica about the MN Voting Rights Case
You’ll recall that (as perhaps first reported here), there was a voting rights issue that may be behind the planned firing of Thomas Heffelfinger. The Republican SOS wanted to prevent Native Americans from using tribal IDs to vote. And an AUSA in Heffelfinger’s office wanted to make sure they could do so.

For the record, Schlozman claims he didnt’ spike the investigation. Rather, he told the AUSA to refer the investigation to the SOS, rather than investigate allegations at the county level. You know, the same Republican SOS who ruled against tribal IDs in the first place? Yeah, that investigation is going far.

Well, Schlozman claims he didn’t tell Ms. Goodling about this investigation. Which might mean one of three things:

  • Schlozman is lying (again)
  • Someone else–like the White House, after having heard from someone in MN–told Monica
  • The Voting Rights issue is not the Native American issue that got Heffelfinger placed on the firing list.

Then there’s the issue that Schlozman had to issue a correction about within days of his testimony: whether or not he had been advised it was cool to indict those ACORN workers just before an election. But as I pointed out, Schlozman was still trying, desparately, not to admit that he was hte one who decided to ignore DOJ guidelines.

My written testimony explicitly stated that the Department’s informal policy of not interviewing voters during the pre-election period, which is intended to avoid actions that could conceivably have a chilling effect on voting, does not forbid the filing of any charges around the time of an election. While the ACORN matter arose in October, Department policy, as confirmed by the Elections Crime Branch (the director of which authored the Department’s election crimes manual), did not require a delay of this investigation and the subsequent indictments because they pertained to voter registration fraud (which examined conduct during voter registration), not fraud during an ongoing or contested election. Consequently, the Department’s policy was not implicated in this matter.

Shorter Schloz: This one’s tricky, Mr. Democrat [sic] Senator, so watch closely. First, yes, I admit that my written testimony also suggested it was cool to bring indictments before the election. I will insist that the Department’s policy, inscribed in a fancy red manual you all seem to have read closely, is just informal. Because, you see, I’m a Republican and … never mind. Anyway, I’m going to pull a fancy trick of grammar, now that I’m not sitting right in front of you any more, and blame the "Elections Crime Branch"–and not Craig Donsanto himself–for allowing me to file the indictments before the election. You like that trick, how I blamed the "Elections Crime Branch," but then followed it immediately with an unrelated reference to Craig Donsanto? You don’t? Damn, you elected Democrat [sic] Senators have no sense of humor. And how about how I use the passive in that last sentence, "the Department’s policy was not implicated"? A pretty fancy way of avoiding any mention of who made the final decision here, right?

If I were Leahy, I’d haul Schlozman’s ass back before the Committee and keep asking questions until he provided the subject of that now-passive sentence. Who made the decision to go forward with the indictments? Because this "clarification" does nothing but continue to obscure the key facts.

And then there’s the question which Schlozman flat out decided not to answer: which indictments he spoke to Mike Elston about.

That leaves a lot for federal prosecutors to choose from, huh?


Obama in Flint, MI

Update: Here’s the remarks live-blogged below as prepared for delivery. 

Hello everyone. I’m blogging from Flint, MI, where Obama will hold a town hall starting at 12EST. The town hall will be a big unity event–with some of our Congressional delegation (I’ve seen Dingell’s folks) and Governor Granholm joining Obama to unify the Democratic Party. This follows our State Central Committee meeting–which was held Saturday–at which the same message of unity was emphasized. Blue America-endorsed candidate Mark Schauer closed the meeting on Saturday with one such message of unity.

"We’ve got the best workers in the world right here in Michigan, but we need a president who will fight for fair trade polices and solve the health care crisis to make sure they can compete on a level playing field," said Schauer. "With Michigan Democrats working together this year, we can elect a president who will bring about the change our country needs and fix what’s broken in Washington. And next January, I’ll be the first Congressman in line to help hand him the toolbox."

As I understand it, the balance of our delegation was chosen on Saturday, based on the allocation that came out of the Rules and Bylaws Committee meeting on May 31. I’ve been told that Obama will announce (I believe he’s making that announcement to the big state press as we speak) that he will seat the full MI delegation in Denver, with full-strength vote.

I’ll update as fun things happen.

11:43 The crowds’ in their seats and are beginning to do the wave. The national media is showing up–one reason they’ve made this the Unity event in MI, rather than Obama’s big rally at Joe Louis "Home of the Stanley Cup Champions" Arena tonight is so it’ll get in today’s media cycle.

Oh, and for those worried, Kwame will not be attending any of the events today, so Detroit’s Boy Mayor will not be rubbing any of his bad karma off on our Presidential candidate.

granholm-et-all.JPG

Photo thanks to Todd Heywood of the Michigan Messenger, which is also liveblogging the event. Check out MM for pictures of the wingnuts protesting outside.

12:06 As I said, many of MI’s Democratic dignitaries are here: this picture shows Representative Dale Kildee, Governor Granholm, Senator Carl Levin, and Lieutenant Governor John Cherry is hiding next to Levin. I know Chairman and Mrs. Dingell are also here somewhere. I understand Levin will introduce Obama.

12:12 Carl Levin on stage now. Introduces Dale Kildee, John Dingell, Debbie Dingell, Lt Gov John Cherry, and Governor Granholm (lots of applause for her). Levin starts by repeating McCain’s statement claiming there has been great economic progress in the last seven years. Loud booing. Levin now listing the number of lost manufacturing jobs, gas prices, home foreclosures, unemployment, Americans with no health insurance, decreased purchasing power "That’s what John McCain calls ‘Great economic progress." Not in our book." Levin asks for hands who have had "great economic progress" in the last seven years.

12:21 Obama pays tribute to the dignitaries here, including his Flint Organizer and a Flint family he talked about to understand what he was going through.

12:30 It’s a fairly pro-Globalization speech here. "I have no doubt that American can compete in the 21st Century. … Success will depend on the dynamism and innovation of the American people. … We have the best workers on earth here in Flint, MI."

12:32 Talking about how it takes not just private sector innovation, but national leadership. Talking about the national efforts of Abraham Lincoln and Franklin Roosevelt and John F Kennedey. "This was leadership that had the strength to turn moments of adversity into opportunity."

12: 33 Chants of Obama. Obama is talking about the things we could have done if we had invested in the infrastructure and education rather than spending it on the war.

12:39 We cannot be satisfied until every child in America has access to the same education.

12:43 If you commit to teach, America will pay for your college education.

12:48 John McCain opposes a 21st Century GI bill. I support it.

12:49 The second part of the competitiveness agenda: energy. [Incidentally, this speech really resonates with what Granhom talks about. Someone sitting next to me asked, "Did Granholm write this." I think this is a big part of the unity message–Obama’s hitting on all the issues that MI wanted to put to the forefront by moving its primary up.]

12:51 $150 billion to create wind/energy sector, will create 5 million jobs. The jobs will be created when we have quality hybrids rolling off the assembly line here in MI. We’ll use that money, particularly here in MI, convert to green technology. Unlike Bush, I won’t wait until the 6th year of my administration to sit down with the automakers.

12:53 Will end tax breaks to manufacturers that send jobs overseas. McCain has voted to keep tax incentives that move jobs overseas. We need to support iniatives like MI’s 21st Century Job Fund.

12:56 I’ve proposed exempting start-ups from capital gains. We’ll make the patent process more efficient and more reliable. We’ll make sure the next Goggle or Microsoft is started right here in America, right here in Flint MI.

12:57 We need to pass universal health care.

12:58 A commitment to 21st Century infrastructure. $60 billion dollar infrastructure investment over 10 years nearly 2 million new jobs.

12:59 Iraq needs to pay more of their share of rebuilding their economy.

1:00 Talks about high speed trains in the mid-West.

1:01 It is unacceptable that the country that invented the Internet we have fallen to 15th place in Broadband competition. If you can’t get broadband in Flint, you can’t compete.

1:03 I don’t think any trade agreement is a good trade agreement. If South Korea can import cars but we can’t export to South Korea. We need reciprocity.

1:05 Fiscal responsibility. I realize my agenda is ambitious, particularly after Bush ran up the national debt. The answer to our fiscal problems is not to continue to shortchange education, innovation, infrastructure. Instead we need to end the war in Iraq. We need to eliminate waste in existing programs. We need to charge polluters for greenhouse gases polluting our atmosphere. John McCain wants to double down on G Bush’s disastrous tax policies, not only by making permanent the Bush tax cuts for the wealthy, but by adding more tax cuts. A quarter of the revenue would go to those making a quarter of a million dollars. Who here makes more than a quarter of a million dollars annually. My tax plan gives middle class three times the tax relief of John McCain’s. John McCain hasn’t detailed how he would pay for this giveaway. There is nothing fiscally conservative about that.

2:09 The American people are not the problem, they are the answer. We have a choice. Continue Bush status quo, as McCain wants to do. And we can become a country in which a few reap the benefit of the economy. That’s one course.

Or, we can rise again, if we choose to change, just imagine what we can do.

We can do this, because this is America–a country defined by determination and belief. Flint, this is our moment, this is our time.


How to Get the Transcripts

Skdadl asked, with due skepticism, whether Mukasey would ever hand over the Bush and Cheney transcripts. I was thinking about just that on my walk with McCaffrey the MilleniaLab. Here’s how I think–if HJC were to play it correctly–it might play out.

In his letter to Mukasey, Waxman used McClellan’s public statements to demonstrate the need to release the transcripts and FBI reports.

New revelations by fonner White House Press Secretary Scott McClellan raise additional questions about the actions of the President and the Vice President. Mr. McClellan has stated that "[t]he President and Vice President directed me to go out there and exonerate Scooter Libby." He has also asserted that "the top White House officials who knew the truth including Rove, Libby, and possibly Vice President Cheney – allowed me, even encouraged me, to repeat a lie." It would be a major breach of trust if the Vice President personally directed Mr. McClellan to mislead the public.

In his FBI interview, Mr. McClellan told the FBI about discussions he had with the President and the Vice President. These passages, however, were redacted from the copies made available to the Committee. Similar passages were also redacted from other interviews. There are no sound reasons for you to withhold the interviews with the President and the Vice President from the Committee or to redact passages like Mr. McClellan’s discussions with the President and the Vice President. [my emphasis]

Now, as I understand it, Mukasey didn’t actually turn over the transcripts themselves to the Oversight Committee–he just let them look at the reports. Nevertheless, some smart staffer on Waxman’s committee must have notes of the context of the redactions in McClellan’s FBI reports.

So the first thing HJC needs to do is get a copy of the notes that staffer took.

Then, they should address a question to Scottie that goes something like this:

Mr. McClellan, In the course of your interview with the FBI on November XX, John Eckenrode asked you about your discussions with Bush and Cheney regarding the Plame leak. Can you tell us what you said in response?

Now, there’s something odd I’ve been puzzling over. We know from Waxman’s letter that there are clear references to Bush and Cheney in McClellan’s FBI interview report. But in his book, McClellen describes being asked in the grand jury, for the first time, about Bush’s exoneration of Rove.

After hearing the second new question, I was momentarily taken aback. Zeidenberg asked if it was true the president told me in the Oval Office that Karl Rove told him he was not involved? It was the first time I’d been asked about something the president knew or said. Since the president had not been questioned yet, I knew that Andy must have discussed it with investigators at some earlier point. [my emphasis]

There are several possible explanations for this. Perhaps McClellan didn’t remember he had said something to the FBI earlier (doubtful). Perhaps the FBI questions focused primarily on Cheney, even, perhaps, asking whether McClellan knew that Cheney had first learned of Plame’s identity. Perhaps they asked McClellan about his Libby exoneration, but not his Rove exoneration. Or perhaps those FBI questions about Bush and Cheney were about another subject altogether.

In any case, some smart Congressman on HJC needs to walk McClellan through his FBI interview not–as John Dean would have it–because there’s much we don’t know in there, but because we want to be able to demonstrate that Mukasey is redacting information directly pertaining to Bush and Cheney’s cover-up of the leak of Plame’s identity.

At the same time, I would hope, another smart Congressman on HJC will be entering the abundant circumstantial evidence that Cheney ordered Libby to leak Plame’s identity into the Congressional Record.

And then, having demonstrated in a forum with a legal record that 1) Mukasey redacted information from McClellan’s FBI report that pertains to Bush and Cheney’s cover-up of the leak and/or their knowledge of Plame’s identity, and 2) circumstantial evidence indicates that Cheney ordered the leak of Plame’s identity, John Conyers sits down and writes a letter:

Dear Michael "No, I won’t investigate torture" Mukasey:

I understand my colleague Henry Waxman has been nagging you for FBI 302s and Bush and Cheney transcripts since last December. Since you have been unresponsive to Waxman’s requests, I can only assume you refuse to turn over selected materials because you deem them unrelated to the Oversight Committee’s investigation into White House treatment of classified information. In a hearing reviewing new revelations from Scott McClellan about the obstruction of the CIA Leak investigation within the White House, we have determined that there is credible evidence of such obstruction. We have reason to believe that the materials that you have refused to turn over to Congressman Waxman are directly relevant to our investigation of obstruction of a criminal investigation.

Having reviewed with Mr. McClellan the content of his FBI report, we have reason to believe that those redactions were made solely to hide clear evidence of Bush and Cheney’s role in this obstruction. We believe those redactions say, "Cheney called Bush and convinced him to ask me to make a public exoneration of Libby." That is, the redacted material indicates that the Vice President and President interceded–after being officially informed of a criminal investigation–to clear a chief suspect’s name, one who had been ordered by the Vice President to leak the information in question.

Since this material is central to our investigation and the withholding of this information would constitute further obstruction, I’m sure you see the importance of turning over that information to the House Judiciary Committee.

We believe those materials contain evidence of a potential crime–a crime of the magnitude that Congress is constitutionally empowered to investigate, particularly where the President or Vice President may be involved. As SCOTUS ruled in United States v. Nixon, the Executive Branch cannot withhold evidence of criminal behavior. Given that we are investigating whether obstruction did nor did not occur, we would consider anyone who withheld such information from the Committee to be party to the crime. Please provide us with hard copies of those documents by June 28.

Love, John Conyers

Of course, all this presumes that Congress is willing to at least pretend that they are constitutionally authorized–indeed, even obliged–to investigate such abuses of power. Which is a pretty big presumption, I know. But it seems that, if they really want to, they can tell Mukasey he either turns over the materials or he commits an act that–just seven months before a new AG comes in–appears to be criminal obstruction.

Wishful thinking, I know.

Update: Fixed abundant typos per Funnydiva.


A Response to Dean: The Failure, So Far, Has Been Congress’

John Dean thinks Patrick Fitzgerald may have gone soft on the White House.

If McClellan’s testimony suggests that Special Counsel Patrick Fitzgerald, for any reason, gave Karl Rove and Dick Cheney a pass when, in fact, there was a conspiracy – which is still ongoing – to obstruct justice, then these hearings could trigger the reopening of the case. But this is a pretty large “If.”

[snip]

As experienced a prosecutor as Fitzgerald is, he was playing in a very different league when investigating the Bush White House. These folks make Nixon’s White House look like Little Leaguers – and based on what is known about the Plame investigation, I have long suspected that Fitzgerald was playing out of his league. (See, for example, here and here.)

I would counter Dean and suggest it was not Fitzgerald, but Congress, which dropped the ball.

Dean suggests that we don’t know what Fitzgerald found.

Yet since no one knows what Fitzgerald learned, except those who cannot speak of what they know, it is not possible to determine whether he might have been outfoxed by the White House.

Um, not quite. While it is true we don’t know the contents of Rove’s grand jury appearances nor those of many other key players, we do know quite a bit beyond the details surrounding Libby’s narrow perjury charge. With the caveat that some of the following can only be supported with circumstantial evidence, here’s what we do know:

  • Dick Cheney declassified Valerie Wilson’s identity (either with Bush’s implicit or explicit approval) and told Libby to leak it to Judy Miller. He may have instructed Libby to leak details about her name and status to Novak during his July 9 conversation as well. But since he declassified Valerie’s identity, the legal status of that leak is–at best–unclear. After that leak, those in the White House who knew about it operated as if it was a legal leak of non-classified information.
  • The stories of Rove, Armitage, Novak, and Libby have significant discrepancies, meaning (in spite of what the Administration’s backers claim) we don’t yet have an adequate explanation for the leak to Novak. Probably, some of Rove’s testimony was perjurious, but there is no credible witness to that fact (since Armitage was himself either lying or a terrible witness), so it would be difficult to charge.
  • Libby and Cheney coordinated their story in fall 2003 at Cheney’s place in Jackson Hole. Libby told Cheney he was going to claim he had learned Valerie’s identity "as if it were new" on July 10, thereby shielding Libby’s conversations with Ari Fleischer, David Addington, Judy Miller, and Robert Novak from scrutiny. If that lie had been successful (assisted by two friendly "journalists") the White House would have been hiding activities they claim are legal, albeit politically catastrophic. While at Jackson Hole, Libby and Cheney also collaborated to make sure Scottie publicly exonerated Libby–public exoneration that had no effect on the prosecution (in that the FBI and prosecutors always considered Libby a chief suspect, regardless of what Scottie said); further, the exoneration was, in some key ways, consistent with White House claims that the leak was legal.
  • There are at least three piece of evidence that point to Bush’s involvement in the leak: his comment to Libby on June 9 that he was concerned about the Niger allegations, his authorization of the leak to Judy Miller, and Cheney’s aborted claim that Bush asked Libby to stick his neck in a meat-grinder.
  • Large amounts of OVP email have disappeared, under extremely dubious technical circumstances, for the days when Cheney and Libby were concocting their cover story.

Scottie’s book (and, therefore, presumably, his testimony) brought out two additional key details. First, McClellan revealed that Cheney talked to Bush directly to make sure he exonerated Libby and McClellan assigned a date to that call–October 4. And second, McClellan reported that Rove and Libby had a suspicious meeting in July 2005 to which McClellan was not a direct witness. Beyond that, much of McClellan’s book makes it clear he is either ignorant or deliberately evasive about any other pertinent details. Clearly, some of the details McClellan can be brought to admit (such as when the White House became aware there’d be an investigation). But there’s not much more than what is already out there.

Now, I know many here will disagree with me. But to charge the White House with obstruction, you need several things:

  • A credible witness against Rove–there appears to be no witness who couldn’t himself be accused of lying.
  • A credible witness against Libby and Cheney. I suspect Jenny Mayfield could tell how she herself obstructed the investigation (by not turning over documents relating to the Niger claim, for example, and possibly by mis-dating one of Libby’s notes, and possibly stamping every piece of evidence that implicated Bush or Cheney with "Treated as TS/SCI"). On this point, I have no idea how much evidence against Mayfield there is. Just as importantly, though, the only witnesses to the key cover-up between Libby and Cheney are Bush, Cheney, and Libby–the "secret mission" that Bill Jeffress described.
  • A credible witness against Bush. Again, perhaps there’s another witness–perhaps Condi Rice? But the chief witness to Bush’s involvement was convicted of perjury in March 2007.
  • Proof that the disappearing emails were deliberate, and proof that some emails were deliberately withheld. This one is, I think, in progress, though I certainly wonder whether Fitzgerald should have pressed harder on this issue.

So perhaps, if there was evidence, Fitzgerald should have indicted Jenny Mayfield to see if that loosened some lips. Perhaps he should have more aggressively pursued the disappearing emails. Perhaps there was a way to make Condi Rice or Stephen Hadley testify more fully to Bush’s involvement.

But thus far, the biggest failure to prosecute the chief obstruction came because there was no witness to it who would speak. Perhaps Libby would have, had he seen prison time. There were certainly stories that his wife threatened to go with his story of he was actually imprisoned.

But that gets to the fundamental obstruction: the commutation. By commuting Libby’s sentence, Bush virtually guaranteed the most likely witness to the obstruction would never talk. Why should he? He doesn’t need tha law license anyway.

Which brings us to the commutation hearing. All the information I’ve recited here–save details about the inconsistencies between the stories of the Novak leak and a few details about Cheney’s research at CIA in early June I didn’t include above–were all publicly available at the time of HJC’s hearing on commutation. There was at that time abundant evidence that the President and Vice President and a top aide had conspired to obstruct an investigation. And, since the legal status of this leak is–as I said–unclear, Congress was the necessary place to investigate further. With Cheney’s claim to have declassified what he told Libby to leak, the leak of Plame’s identity necessarily becomes a political problem, not a legal one.

And none of this evidence–none of it–was entered into the record during the commutation hearing.

I’ll go further. As Kagro X has repeated so often he’s now blue in his face, our Founders made it crystal clear what needs to be done in such a case–where the President’s abuse of his own legal authority would otherwise be a crime.

The 1974 post-Watergate report of the House Judiciary Committee sez:

In the [Virginia constitutional ratifying] convention George Mason argued that the President might use his pardoning power to "pardon crimes which were advised by himself" or, before indictment or conviction, "to stop inquiry and prevent detection." James Madison responded:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty…63

And footnote 63?:

3 Elliot 497-98. Madison went on to [say] contrary to his position in the Philadelphia convention, that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected. Id. 49

There is little better description for what appears to have gone on than the President–who appears to have advised Libby about responding to Joe Wilson on June 9, 2003 and appears to have authorized what would have otherwise been a crime sometime before July 8, 2003–using his pardon power to "stop inquiry and prevent detection."

This is a political issue. It has been for 15 months. In spite of that, Congress had done next to nothing to take the abundance of evidence that–sorry, Mr. Dean–we do know, and pursue the appropriate political remedy.

That said, like Dean I think Scottie’s testimony may be an opportunity for Congress to do what they failed to do last year–to pursue the clear evidence, uncover further evidence, and implement the appropriate political solution. Here’s what–if I had my way–HJC would accomplish next week as a step towards taking the proper political action:

  • Establish the clear legal necessity for Mukasey to release the 302s and Bush and Cheney transcripts to Waxman and–while he’s at it–to HJC. We know those transcripts have further evidence pertaining to Bush and Cheney’s cover-up. To not turn them over would amount to further cover-up. That case needs to be made strongly.
  • Lay out the necessity to call further Bush Administration officials. Since Andy Card is the one other person involved in the fall 2003 cover-up, he should be called (and I note that he was ousted at the same time as McClellan and he has not attacked McClellan, so I rather suspect he may be willing to testify). And while you’re calling former White House officials, Ari Fleischer has already received immunity for his actions in this leak (though he may well have lied about his leak to Pincus), why not call him, too? When Fitzgerald was accused of having gotten a proffer from Ari, Fitzgerald made it clear that he understood Ari to have information that implicated someone else. (My guess is Rove or Bush.) So bring Fleischer in, since he’s already immunized to tell us about that someone else.
  • Enter the abundant circumstantial evidence that Cheney ordered the leak of Plame’s identity into the Congressional Record. In doing so, force the Republicans and the Bush Administration to decide, once and for all, who ordered the leak, who authorized it, and whether they’re really claiming they did so legally.
  • Pit Bush and Cheney against each other. One way or another, Cheney’s and Bush’s interests on this issue do not coincide. It would take very little to force Bush to throw Cheney over the side in an attempt to preserve his own reputation. And that’s a fight I’d like to see–not least, because it would uncover many new details about what happened.

So John Dean, I would invite you to go beyond claiming we don’t know what Fitzgerald learned and actually look at what we do know. There is enough in the public domain already to take this much further towards the political conclusion required. Whatever Fitzgerald’s failings in the investigation, it’s awfully stupid to attack him while ignoring the abundance of evidence that he dropped in Congress’ lap–which has just rotted there.


$225,000 in Credit Card Debt

Cindy McCain is carrying more debt on credit cards than 80% of Americans’ total net worth.

Mr. McCain and his wife had at least $225,000 in credit card debt and that Mr. Obama and his wife had put more than $200,000 into college funds for their daughters.

The bulk of the McCains’ obligations stemmed from a pair of American Express credit cards that are held in Cindy McCain’s name. According to the disclosure reports, which present information on debts in a range rather than providing a precise figure, Mrs. McCain owed $100,000 to $250,000 on each card.

Another charge card, held by what was described as a “dependent child,” had also accumulated debts of $15,000 to $50,000. In addition, a credit card held jointly by the couple was carrying $10,000 to $15,000 in debt, the filing indicated, at a stiff 25.99 percent interest rate.

I know she’s a rich heiress and all. I know she tends to be well coiffed and nicely dressed. But this strikes me as an astounding amount of money.

And it raises several questions for me:

  • Are some of these expenses campaign fees? That would explain the high balances, obviously, but wouldn’t that be another case of McCain riding the Sugar Momma Express? (And I’m curious, is the "dependent child" the 23-year old Meghan McCain, in which case that credit card would also be campaign expenses?)
  • Are these monthly expenses? Again, if they’re campaign related, I guess they wouldn’t be a surprise. But if Cindy McCain is spending $200,000 a month on luxury goods … well, at least she’d be doing her part to keep the American economy afloat.
  • Or are these credit cards carried balances (normally on Amex, you can’t do that, but they tend to make exceptions for people who spend that much)? In which case you’d think the McCains would spend of that $225,000 on an accountant who would help them pay their bills monthly.
  • Does anyone else remember the $2,500 campaign credit card charge at Barney’s? The campaign explained away the charge to a stolen credit card. Funny, though, the way both the stolen credit card and the one still in possession have such expensive tastes, huh?

I’m obviously just a DFH blogger, so I can’t really fathom how much I could spend if I put my mind to it. Does this strike anyone as excessive?


At the Risk of Being Churlish

My father died when he was 56–he was way too young to die, but he had lived a full life. And unlike Tim Russert’s family, we had 8 months’ notice that he was going to die, so we had the opportunity to put our relationships in order and say goodbye in a meaningful way.

My condolences go out to Russert’s family for this sudden and premature loss. I’m sorry.

But as to the media’ coverage of his death, I agree with John Cole

MSNBC has been running nothing but a 5 hour (and presumably it will go until 11 pm or beyond) marathon of Russert remembrance. CNN has done their due diligence, and Fox news has spent at least the last half hour talking non-stop about him.

But let’s get something straight- what I am watching right now on the cable news shows is indicative of the problem- no clearer demonstration of the fact that they consider themselves to be players and the insiders and, well, part of the village, is needed. This is precisely the problem. They have walked the corridors of power so long that they honestly think they are the story. It is creepy and sick and the reason politicians get away with all the crap they get away with these days.

Tim Russert was a newsman. He was not the Pope. This is not the JFK assassination, or Reagan’s death, or the Space Shuttle Challenger explosion. A newsman died. We know you miss him, but please shut up and get back to work.

Best as I remember, the only man or woman who died in Afghanistan or Iraq who got this kind of eulogy was Pat Tillman. Maybe. And we know that was based on a bunch of propagandistic bullshit spewed by the Pentagon (which doesn’t make Tillman’s sacrifice–or Tillman himself–any less honorable).

With about five exceptions, all the men and women who have died in George Bush’s wars have died before they turned 58–many of them at half that age. Many of them have young children they never saw grow up. Many of them never lived the full life that Tim Russert lived–except insofar as they served this country.

It seems that sacrifice–the men and women who died for this country–deserve at least this kind of tribute. 


Revenge of Article III

We’ve talked about this in threads, but I just wanted to pull out all the bits of Anthony Kennedy’s opinion that really address separation of powers and rule of law, in addition the question of Gitmo and Habeas more directly. Kennedy bases much of his argument on separation of powers on the reminder that since Marbury v. Madison, it has been the Court’s duty–and not that of Congress or the President–to determine what the law is.

Our basic charter cannot be contracted away like this [claiming the US had no sovereignty over Gitmo because we ceded it to Cuba then leased it back]. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

Within that context, he describes habeas corpus as a mechanism which has been historically designed to check the power of the political branches.

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

As such, only the Court can determine the proper boundaries of habeas corpus, not Congress or the President.

Kennedy’s opinion raises the role of the President in this opinion on several occasions, notably when it points out that these men have been detained solely through executive order.

They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history.

[snip]

Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. In this context the need for habeas corpus is more urgent. [my emphasis]

Kennedy suggests that the procedures the Bush Administration put into place might be designed with interests other than independent review in mind. Golly. You think he’s thinking of the way the Show Trials are being timed with the presidential election in mind?

To anticipate and undercut the cries of "Article II Article II!!!" Kennedy argues (not all that convincingly) that their judicial review of Bush’s power to imprison people indefinitely makes him stronger.

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.

Somehow, I don’t think David Addington was convinced by this argument.

Tough.

Kennedy’s opinion was slightly less direct in its criticism of Congressional overreach. He starts by pointing out how unusual it is for Congress to attempt to curtail habeas corpus.

Our case law does not contain extensive discussion of standards defining suspension of the writ or of circumstances under which suspension has occurred. This simply confirms the care Congress has taken throughout our Nation’s history to preserve the writ and its function. Indeed, most of the major legislative enactments pertaining to habeas corpus have acted not to contract the writ’s protection but to expand it or to hasten resolution of prisoners’ claims.

And then describes the ways–the several ways–in which Congress has passed unconstitutional laws. First, he describes what would be required for any legal substitution of something else for habeas corpus.

We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law. St. Cyr, 533 U. S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted. See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where imprisonment is unlawful, the court “can only direct [the prisoner] to be discharged”); R. Hurd, Treatise on the Right of Personal Liberty, and On the Writ of Habeas Corpus and the Practice Connected with It: With a View of the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It cannot be denied where ‘a probable ground is shown that the party is imprisoned without just cause, and therefore, hath a right to be delivered,’ for the writ then becomes a ‘writ of right, which may not be denied but ought to be granted to every man that is committed or detained in prison or otherwise restrained of his liberty’ ”). But see Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (remanding in a habeas case for retrial within a “reasonable time”). These are the easily identified attributes of any constitutionally adequate habeas corpus proceeding. But, depending on the circumstances, more may be required.

And then gives a list of other ways the DTA is constitutionally "infirm."

The DTA might be read, furthermore, to allow the petitioners to assert most, if not all, of the legal claims they seek to advance, including their most basic claim: that the President has no authority under the AUMF to detain them indefinitely. (Whether the President has such authority turns on whether the AUMF authorizes—and the Constitution permits—the indefinite detention of “enemy combatants” as the Department of Defense defines that term. Thus a challenge to the President’s authority to detain is, in essence, a challenge to the Department’s definition of enemy combatant, a “standard” used by the CSRTs in petitioners’ cases.) At oral argument, the Solicitor General urged us to adopt both these constructions, if doing so would allow MCA §7 to remain intact.

The absence of a release remedy and specific language allowing AUMF challenges are not the only constitutional infirmities from which the statute potentially suffers, however. The more difficult question is whether the DTA permits the Court of Appeals to make requisite findings of fact. The DTA enables petitioners to request “review” of their CSRT determination in the Court of Appeals, DTA §1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review” provision confines the Court of Appeals’ role to reviewing whether the CSRT followed the “standards and procedures” issued by the Department of Defense and assessing whether those “standards and procedures” are lawful.

The argument I find most interesting–because it applies to other abuses of executive power, like the Administration’s warrantless wiretap program–is the Court’s insistence that judicial review must constitute more than simply a review of whether 1) the standards and procedures developed by an executive agency are lawful and 2) whether those standards were followed. As Kennedy points out, Congress has narrowly circumscribed the role of the courts to reviewing the execution of a plan implemented by the executive branch.

Congress has granted that court jurisdiction to consider

“(i) whether the status determination of the [CSRT] . . . was consistent with the standards and procedures specified by the Secretary of Defense . . . and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” §1005(e)(2)(C), 119 Stat. 2742.

Under DTA, the courts only have the authority to affirm what the executive branch does; they don’t have the authority to make judgments concerning the legality of the detention itself.

The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful.

And that is the core of the problem for Kennedy–that the DTA does not permit the courts to intervene except pursuant to certain actions by the Secretary of Defense, which does not constitute adequate judicial review. The courts must have the ability to judge the evidence presented in CSRT proceedings itself.

For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.

Now, as I pointed out, this argument is significant beyond the Boumediene decision. That’s because Congress is as we speak debating implementing a similar circumscribed review process for wiretapping Americans.

The idea behind the Protect America Act and–to a large degree–the FISA amendment, after all, is that the Attorney General writes a set of procedures surrounding a given wire-tapping method. The FISC gets to review those procedures to see if they’re legal. And it gets to review individual cases of wiretaps to see if they followed procedures.

But the FISC never gets to review the actual wiretap evidence to see if the programs themselves were legal, to see if the evidence underlying the decision to wiretap a bunch of Americans was sufficiently credible to justify the program.

So you can take the complaint the court made about DTA…

The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful.

… Rewrite it to apply to FISA…

The FISC has jurisdiction not to inquire into the legality of the wiretap program generally, but only to assess whether the government complied with the "standards and procedures specified by the Attorney General" and whether those standards are lawful.

And you’d have a direct parallel in which Congress was proposing a law which took legal review out of the hands of Article III Courts and put it instead into the hands of the executive.

Now, I realize that the Court’s ruling applies only to detention and only explicitly to Gitmo. But the court has laid out an argument–that Article III cannot be legislated into a review function of the executive branch–that has much wider applications. Having just glanced at Roberts’ dissent and seen the prominence of his defense of such a role for the courts, I imagine the Administration has seen this argument too.

And I expect David Addington is even less happy about that argument than he is by the Court’s half-hearted nod to the power of the Commander in Chief.


Matt Apuzzo Pushes Back

If Matt Apuzzo doesn’t watch out, he’s going to be given DOJ’s silent treatment, as TPM once was. It seems Apuzzo (who covered the Libby trial) was none too happy being told that the "press conference" DOJ had organized to talk about the Boumediene decision was totally off the record.

Justice Department media representatives set up a briefing with department lawyers, but insisted the question-and-answer session be off-the-record. They acknowledged it was an unusual demand, but said they couldn’t discuss the decision because they were still reviewing it.

But that meant that nothing from the briefing could be used — not even comments from the obligatory nameless Justice Department officials who usually appear in such stories. Note to readers: You didn’t miss much.

That’s because Associated Press reporter Matt Apuzzo quickly objected, saying the off-the-record rule "does nothing to help anybody understand anything."

When he said he would consider the discussion on the record, he was told he should get off the call. Apuzzo refused, saying "there’s just no reason for this to be an off-the-record call." A conference call mute button prevented 40 other reporters from chiming in.

But Justice Department officials wouldn’t budge and the call was cut short. A follow-up call was hastily rescheduled with a warning: "If you are not able to accept the off-the-record ground rules, please do not join the call."

Without explanation, officials appeared to relent by issuing a terse statement — eight hours after the ruling came down.

Good for you, Matt.

The big story–as Taylor and Youssef point out–is that this nation’s highest ranking lawyers, when faced with a resounding slapdown from the highest court in the land, could do nothing more than pout.

Remember when I speculated why Paul Clement, who left just 10 days ago, might not want to stick around? You think maybe he knew how pouty folks at DOJ were going to get when they got pwned by SCOTUS?


The Rule of Law Prevailed

I’m just getting off a conference call with the Center for Constitutional Rights, one of the organizations that has been pushing for Habeas at Gitmo for years. Gita Gutierrez, one of the CCR lawyers that’s been fighting this fight the longest, said of the ruling that "unambiguously, the rule of law prevailed."

Here’s some of what they believe the opinion to mean:

  • The 40 to 60 people who have already been determined not to be enemy combatants will now have court assistance in finding a way and a place to be released. One of the key issues for these men is that they often come from countries like Syria where, if they were to return, they would be tortured. A number of them have petitioned to be released to third countries, in some cases where they have family. DOD has refused to consider this up until now. This ruling gives courts the ability to provide for relief to those being held even after they were determined not to be enemy combatants.
  • There are roughly 260 people at Gitmo who have not received a Combat Status Review. Over a hundred have already petitioned for Habeas, and a number of those have been stayed awaiting this ruling. Some of those stays require the petitioners to restart their petition within 10 days of the ruling, so you’re going to see them move into a Habeas process within the next two weeks.
  • Michael Ratner, the head of CCR, stated that he believes in many of these cases, the government will be unable to prove it has reason to detain these people–either because the evidence is tainted or because there is no evidence. So the government may be forced to release many of these men as well.
  • It’s unclear where and how these Habeas petitions will be heard–so it’s an open question whether detainees will be able to come to DC to present their case.
  • Carol Rosenberg, my favorite journalist covering the show trials, asked if the government will rush to charge detainees under the Military Commissions Act. Gutierrez responded that they’re really limited by whom they can charge; she put the number at around 60-80 people who they have enough evidence to charge.

Finally I asked (with McCaffrey the MilleniaLab barking in the background–oops) about whether this ruling applied to the prison at Bagram, or the floating prisons. Gutierrez stated that it’s not clear. The deciding issues for Gitmo are that the US has control over the territory of the Gitmo base, as well as complete control of the detainees. The ruling, Gutierrez said, left open that Habeas would apply to detainees held elsewhere, but does not do that explicitly. The CCR attorneys on the call did say that the ruling prevented the government from creating "law-free zones" in which they rule, but without the rule of law.

So, for 260 people rotting away at Gitmo, this is a very important ruling. And it pretty much eliminates the reason for Gitmo–the government’s attempt to create a space that was US territory not subject to US law.

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