Coverage of the hearing is on CSPAN3, the Committee stream, and good coverage (featuring Scott Horton and Jane Mayer) on KPFA.

Scott; Yoo, any discussion of SERE techniques?

Yoo: Can’t discuss.

Nadler: We need to know why.

Yoo: According to DOJ, privilege both attorney-client privilege and classified.

Nadler: Attorney-client not valid here. Classified is valid if it applies.

Yoo: I have to follow it.

Nadler: It’s difficult to assert your assertion of privilege on this issue bc Bradbury testified earlier this year and said it was adapted from SERE. How can this be privileged?

Yoo: Recognize that a-c does not apply. It is their privilege to raise. If you and DOJ have disagreement.

Nadler: Bradbury is the one making the decision on these privileges, but he answered the question.

Scott; Addington, SERE?

ADD: no, I don’t think I did, but no reason to dispute what Bradbury said.

Scott: Is torture illegal?

ADD: as defined by statute, it would be illegal.

Scott: international agreement of when it’s torture and when it isn’t?

ADD: Is a treaty in effect …

Scott: Don’t people know when it’s torture and when it’s not.

ADD: Senate put in reservation.

Scott: 9/11 did not change definition of torture.

Schroeder: it’d be hard to prosecute on opinion.

Scott: Does Administration have ability to write up such an opinion and torture people based on ridiculous memo.

Schroeder: No.

Scott: is it an excuse to torture if you got good information.

Schroeder: Treaty admits no exceptions.

Scott: If you’re going to go around torturing based on your memo, how do you know beforehand whether you’re going to get good information.

Yoo: Disagree with the premise of question.

Scott: If you can’t get information via other techniques, can you use harsher techniques?

Yoo: Nothing in statute that says anything about that.

Watt: Schroeder. Comment on your testimony, policy and law. In 22 years I practiced law, I had a client, who when he didn’t like my advice, he would say the lord told him to do otherwise. Are there things that go beyond Yoo’s memo?

Schroeder: Hope I’m not joining ADD and Yoo, not able to answer your question. We’ve read reports that water-boarding used on some subjects.

Watt: Would that go beyond Yoo’s memo?

Schroeder: I’d need to know more on water-boarding.

Watt: Recourse that public and Congress would have would be impeachment?

Schroeder: [Pondering] It would be difficult under legal theory in August 2002, to think of what remedy would be available other than impeachment.

Watt: What recourse does the public have against an Attorney.

Schroeder; Not in position to suggest that the advice the individuals gave didn’t know it wasn’t the best advice they could give.

Watt: Is there some recourse that the public has if the advice was egregious?

Schroeder: Bar Association.

Watt: Public has little recourse.

Schroeder: Disciplinary proceeding regarding disbarment first.

Cohen: Yoo, you worked for Ashcroft. Did you consider yourself an employee of his?

Yoo: Yes sir.

Cohen: Did you communicate with ADD sometimes and not communicate with Ashcroft.

Yoo; I never did anything to keep Ashcroft out of the loop.

Cohen: So Ashcroft knew of everything you did.

Yoo: We notified the AG, AG dictated who we could discuss it with, we shared drafts. There’s not way that

Cohen: Did General Ashcroft express concerns about you keeping him out of the loop.

Yoo: Can’t discuss any particular conversation.

Nadler: What’s the privilege.

Yoo: Any information or conversations covered by instruction of DOJ, either attorney client, or deliberative.

Nadler: Which privilege are you asserting.

Yoo: Justice Department, and a-c.

Nadler: How is the a-c implicated in a question about your communication with a superior. Are you the attorney in your position of the AG? Was he your client?

Yoo: It’s the DOJ who’s saying.

Nadler: Not authorized to discuss deliberative comments. Or confidential pre-decisional advice. The question was, did AG express concerns about your relationship with Addington. Does not ask about deliberative comments.

Yoo: After consultation. My recollection is that no, I never had such a discussion with AG.

Cohen: Any discussion at all where he indicated concern that you were not within your authorities. If WaPo and General Ashcroft said that he had that conversation, then AG Ashcroft would not have proper recall.

Yoo: My answer is

Cohen: I’ve got that, you don’t recall. I’ve been here a while.

Cohen: Shocked the conscious. Do you believe that?

Yoo: Interpreting cruel and inhuamne treatment. Constitutional amendments use that phrase.

Cohen: Shocked conscience depends on whether it’s without justification. Do you recall that?

Yoo: Memo says that.

Cohen: Malice and sadism before prosecuted. Where did those words come from?

Yoo: Case law.

Cohen: are you saying the law states it depends on my intent?

Yoo: Memo does not say that. Quotes several cases among many factors.

Cohen: is there anything that you think the President cannot order?

Yoo: You’re asking my opinion now. Opinions do not address that question. Those questions not before us. Today, a number of things, I don’t think any American president would order, and one of those things is torture of detainees.

Nadler: Gentleman yield. Will you answer the question. Not would he, but could he, legally?

Yoo: Not fair to ask without any facts.

Nadler: So there is nothing conceivable to which you can answer no, without knowing facts and context?

Yoo: You’re trying to get me to answer a broad question.

Nadler: Yield back.

Cohen: What branch is the Vice President.

King? Objection

Cohen: What branch are we in.

ADD: Neither to executive nor legislative, attached by Constitution to latter. 1961.

Cohen: Legislative branch.

ADD: babbling on.

ADD: Attached by Constitution to the latter. Constitution further says that Congress consists of Senators and Representatives.

Cohen: So he’s a barnacle.

ADD: I don’t consider Congress a barnacle.

King: On behalf of ranking member, I object to participation of non-subcommittee. Subcommittee participation could lead to situation where 10 others want to participate.

Nadler: Gentleman’s objection is correct. Precedent has been set many times over, I regret that the gentleman insists on point of order. I apologize to gentleman from MA.

Nadler: You stated to WS earlier that your involvement in CIA program greater than military program?

ADD: A number of meetings. Participating in legal meetings.

Nadler: You just said you’re not a member of executive branch. Why was lawyer for VP in such a meeting?

ADD: VP’s provide advice.

Nadler: And participate in various agencies business.

ADD: Modern VPs provide assistance and they provide staff. When the President’s staff wishes to have us participate?

Nadler: President asked?

ADD: We were included because it’s the practice.

Nadler: Any involvement in destroy tapes.

ADD: No

Nadler: If CIA’s program illegal do you bear responsibility?

ADD: Legal or moral opinion? Legal opinions…

Nadler: Given your legal involvement with CIA, would your discussions have any bearings.

ADD: No I wouldn’t be responsible. [may have said "except for moral"]

Nadler: AG and DAG not aware of your memo on DOD memo?

Yoo: Notified that we received request?

Nadler: Did you notify and send them copy of memo.

Yoo: drafts.

Nadler: Your prepared testimony said that these offices received drafts.

Yoo: DOJ has directed me.

Nadler: Not to name particular individuals.

Yoo: My recollection at time was that in delivering drafts to OAG, Counselor.

Nadler: Who

Yoo: Chongoli. My recollection in DAG, principle ADAG, Chris Wray.

Nadler: Did those offices make comments or revisions.

Yoo: Comments Yes. I don’t recall revisions one way or another.

Nadler: Can you say who made those comments?

Yoo: Any comments we would have received would have come from the people I just mentioned.

Nadler: Did you understand DAG and AG approved this memo?

Yoo: Could not issue without approval of their office. I can’t remember whether they sent memo signing it.

Nadler: What do you mean approval by DAG or AG, besides them personally.

Yoo: We received comm from OAG.

Nadler: Why was opinion signed by you instead of by head of OLC?

Yoo: I don’t have the dates in front of me. Bybee just about to go onto the bench. Timing of memo were very close, couldn’t be certain still in office.

Nadler: Schroeder?

Schroeder: Jay Bybee went onto bench 10 days after. At the time, so far as public record he was still AAG in OLC.

Nadler: After he went on bench, who took that position?

Yoo: There was an acting AAG. Classified matters can only be discussed by people cleared to know about them.

Nadler: that person wasn’t cleared?

Yoo: My recollection is that they weren’t clear at that time.

Nadler; King has asked to pass.

Conyers: Schroeder, as former acting, any improprieties about how memos put together?

Schroeder: Unusual for memoranda as significant for 9/25 and March memo to be signed by Deputy. If assistant position vacant, I can understand. The kind of memoranda that would be issued by AAG. Practice as Yoo has said to solicit advice of other components where there is disagreement, so in this case there was either unanimity or some disagreements not noted for the record. WRT memoranda that deal with interrogation and torture, there is some expertise on what torture means, bc both State and INS apply decisions based on torture. In both contexts, two departments have adminsitrative understanding. I would have expected that those two reservoirs of internal knowledge. CIA didn’t allow State to be contacted. Highly unusual.

Conyers: Yoo has claimed lack of guidance on meaning of torture which was why he used health care statute. Do you have any comment on that circumstance.

Schroeder: To amplify on what I just said, working knowledge that would have provided more guidance. At least for some reference points.

Conyers: Schroeder, Yoo has claimed that August 2002 memo revoked that there’s a footnote in revocation memo stating that conclusions remain in force. Am I missing something?

Schroeder: Not my understanding. Levin has testified that’s an erroneous interpretation.

Ellison: Schroeder: When a person who’s at OLC drafts a memo advising on any legal matter, in your experience, is there an ongoing role?

Schroeder: Vary from topic to topic. Would not be unusual.

Ellison: In your experience, someone trying to carry out, memo doesn’t speak to this instance. Does it apply?

Schroeder: No, not unusual.

Ellison, I’d like to know, to what degree did people doing interrogation get directed on how to implement that memo.

Schroeder: Those questions would tend to go through their lawyer chain of command. Unusual to call OLC lawyer directly. Many questions come from GC. Lawyer to lawyer.

Ellison: any interrogation.

ADD: On one trip, saw someone, on a screen.

Ellison: any questions directly?

ADD: I don’t recall, don’t think it happened, it wouldn’t be appropriate.

Ellison: indirectly.

ADD: I spoke to GC office at CIA, but also at DOD.

Ellison: who in mind at CIA.

ADD: General Counsel, Muller. Acting GC, still acting [this is Rizzo].

Ellison: Did you witness going forward. Could you hear it.

ADD: Couldn’t hear it?

Ellison: group that made legal decisions on ongoing basis, Gonzales, Jim Haynes, and [yourself]

ADD Talked regularly with president and counsel, DOD GC, less frequently with CIA GC.

Ellison: Ongoing discussions with Haynes.

ADD: More monitoring what’s going on. If legal advice, ask OLC, typically would begin with Gonzales. Heads of agencies get legal advice.

Ellison: Do you deny being war council.

ADD: Never heard that label until Goldsmith wrote his book. I asked someone over here. I’m not a fan of cute names for meetings, it’s a habit in executive branch. I met on a range of issues, some of which dealt with interrogation. At DOD they would list those meetings as "War Council."

King: Back to this hearing purpose. I’m wondering what a person is thinking watching on CSPAN. Rhetorical question. Is it possible to precisely define torture in law.

ADD: Just off top of my head. About the only way I could think of doing is what happened with MCA, can’t do this can’t do this, and then catchall for dealing with certain things. Difficulty is thinking of everything. You would have a challenge.

Yoo: It is a difficult problem. Way statute was written was vague. it has become more specific, as in referring to Army Manual. We attached as appendix every decision we could find.

King Is it possible to precisely define. Is there room between manual and law, is there a level between manual and law?

Yoo: This all happened after I left govt. My understanding is that the statute refers to the manual.

ADD: Are there things that are not permitted by Army Manual but are short of torture? OLC has some opinions. So I believe yes.

King: I would agree with that answer.

ADD: Someone’s got to be able to rely on those opinions. I can think of five off the top of my head. Those people would not have engaged on their conduct without knowing that the AG had said this is lawful. They relied on that. THey need to be able to rely on that. We can’t leave folks in the field hanging on it.

Davis: Line of questions I pursued earlier. A lot of what we’re talking about is interpretation of statute. You’ve conceded there was a statute. I questioned you earlier why it would not have been important to reach out to the body that drafted the statute. Addington, you conceded that Specter and Sensenbrenner was not consulted. Why not reach out?

ADD: As a legal matter, I think you’re wrong. As a political matter, these were highly classified.

Davis: Very simple question. Let me make this a little bit easier. Yoo talks about an interpretation of anti-torture statute. I happen to think, from a policy standpoint and legal one, come to Congress, ask for statute to be clarified. You did that with PATRIOT. Was there anyone who advocated coming to Congress. Did you advocate it? Do either of you know of anyone who advocated coming to Congress asking for new statute, definition of torture.

ADD: No

Yoo: I don’t remember anyone doing that.

Davis: Anyone going to intelligence committees.

ADD: I’d recommend going to OLC which is what the law required.

Davis: Had you come to Congress, you would have shared responsibility. Sometimes you’ve had to, when SCOTUS told you had to. On your own, you’ve never done it. That’s what this committee ought to be focused on. Policy derived by executive branch didn’t feel need to share with Congress, left you with policy that has only your policy on it. Negative legacy for your administration.

ADD: Sounds like you’re implying that House and Senate didn’t know about interrogation.

Davis: You’re not saying intelligence committees knew about this definition of torture.

Watt: My time to Delahunt.

Delahunt; I don’t want to proceed unless staff has been able to communicate.  US signatory to torture convention. Domestic legislation to implement torture convention. Issue of what constitutes torture, what techniques are implicated, there are some techniques are per se considered torture, such as electric shocks?

Yoo: Electric shocks listed in appendix, violate other statute, torture victim protection act.

Delahunt: What about water-boarding?

Yoo: there is a description in appendix to 2002 memo that talks about trying to drown someone. People referring to lots of different things.

Delahunt: on three different occasions CIA used water-boarding.

Yoo: read same press accounts. Also in statement made by head of CIA.

Delahunt; Addington indicated you’ve had multiple conversations regarding interrogation with CIA. Did issue of waterboarding come up?

ADD: Not in position to talk about particular techniques.  

Delahunt: I’m glad that AQ has a chance to see you, Addington, given your penchant for being unobtrusive. There would be a question whether on those three occasions as to the technique used, whether it was a violation of convention against torture. Agree, Yoo?

Yoo:  One of problems, Convention against Torture different ways by different countries. As described by Hayden. May violate treaty as understood by some countries. Our understanding defined by torture victims protection act.

Delahunt: Whatever was used, I think we can agree, if they were used on American military personnel, it would still be an open question, whether violated Convention against Torture.

Yoo; Head of OLC, if we were using it as part of training, that it was his view that would not be violation of statute.

Delahunt: So if it was used by an enemy, an enemy would not be inviolation.

Yoo: I don’t remember whether Bradbury reached that conclusion. I want to make sure that it’s clear what Administration position was.

Nadler: If enemy interrogator used technique on American POW.

Yoo Would depend on circumstances. It would depend on circumstances. Appendix that lists trying to drown somebody.

Nadler Before we conclude. A number of unanswered questions, some on privilege, some on classification. We may need to revisit these questions. Can I get a commitment to make yourselves available.  

ADD: I didn’t invoke privilege. I said for the same reasons the President said in his speech.

Nadler if we determine we have to have an executive session?

ADD: If you issue a subpoena, we’ll got through this again.

Conyers; On balance, I’d like to thank the witnesses for coming forward, they’ve been, from their perspective they’ve been as candid as they could, I think they sense they may be likely to return. I want to thank them.

Nadler: I made a hasty observation wrt a member’s not repeating objection on Delahunt’s being here. I didn’t want to cast aspersions on his absence.  

Here’s a post I did on David Addington’s testimony at the Libby trial.

Here is John Yoo’s prepared testimony.

Note this hearing is a Subcommittee Hearing–so it’s Jerrold Nadler’s baby, not Conyers’. That means a subset of HJC’s better questioners will appear today: Nadler, Davis, Wasserman Schultz, Ellison, Conyers, Scott, Watt, and Cohen, with Franks, Pence, Issa, King, and Jordan for the bad guys.

Nadler: Subject of utmost importance to integrity of nation. Will not be permitted to be disrupted–anyone will be expelled immediately. Legal memos defining torture out of existence. I speak for many of my colleagues when I say the more we hear the more appalled we become. One testifying voluntarily, one testifying under subpoena. We will not be deterred by unchecked delcaration of privilege.

Franks: Almost 60 hearings on detainee treatment. Torture banned by various laws. Severe interrogations do not involve torture and they are legal. Results of waterboarding KSM, Abu Zubaydah, and al-Nashiri valuable. Alan Dershowitz says we can torture, so everything’s okay.

Franks just asked to submit evidence into the record. Nadler went, whuh? Nadler complains about Addington stiffing the committee for written testimony, but then submitting his own exhibits.

Nadler: I want to defend Dershowitz against allegations he’s an ultra-liberal. He just wrote a book advocating torture through warrants.

Conyers: More concerned about what we’re going to do, not any individual citizen. I don’t know why giving someone a lawyer is shocking to anyone. We have reports stating that our witnesses played a central role in drafting legal opinions on torture.

[Note: both sides look unusually prepared today, with Franks and Conyers both showing video from earlier hearings.]

Addington: 3 points. Iran-Contra said I was working for Cheney, in fact designee for Broomfield of MI. An author of prep for minority views, I had left before the report was written. More important, Conyers mentioned, wanted to give benefit of doubt. There’s one subject in which there’s no doubt, I believe everyone on this committee want to defend this country, protect it from terrorism, differences on how that’s accomplished. Thank you.

Nadler: Sorry I gave you too much credit. Is that the entirety of your statement?

[Nadler seems befuddled by ADD]

Yoo: Thank you, appreciate Conyers open mind. Waive rest of my time.

Nadler: You don’t want to summarize it?

Yoo: I don’t need to.

Yoo: In response to comment about privilege, I have received instructions about what kinds of things I can talk about. I want to make clear, I have every desire to help committee, but also professional obligation to DOJ. There could be conflict between the committee…

[Shorter Yoo: Prepare for lots of stonewalling.]

Yoo: Remember the context. 9/11.

Schroeder: Not here to question anyone’s best faith efforts to protect the country. Events have taken place WRT detainees, military commissions, behind each of these occurrences, legal analyses have mistakes in them. Important to look back. Three points about memoranda. 1) Memoranda starkly reflect extreme view of absolute uncontrolled power. This power if applied to WOT is breathtaking in its scope. Defined that battlefield includes the US. Tactical decisions about how to go after terrorists, interrogate, detain, for the president to assert that in each and every respect that the president has unilateral and unreviewable authority is a position that’s far outside mainstream of jurisprudence. 2) Not a criticism simply raised by Bush’s opponents. Goldsmith. "Deeply flawed, sloppily reasoned, overbroad" Comey et al refused to agree that warrantless wiretap program was legal. Deeply flawed view of jurisprudence on strengths and limits of what president can do in face of statutory prohibitions. 3) Don’t seem to have followed internally within OLC good practices. Yoo supplied more details. Still leave a number of questions in mind.

Nadler: Addington. Did you play a role in analysis of August 1 interrogation memo?

Add: No. I didn’t say I had nothing to do with it. Let me read to you. Excerpt from a book. War by other means. Page 33. Various media reports that his (ADD) was so outsized. As the drafter of many of those opinions find this claim to be so erroneous.

Nadler: We don’t need these quotes. Tell us what your role was.

ADD: [Writing notes down.] I’d be interested in seeing doct you’re questioning me about in front of me. Assuming you and I are talking about the same opinion. Yoo coming over to see Gonzales. Gave us three subjects he was going to address. Goes off and writes opinion. [getting opinion] Mr. Yoo has not defended himself. I can as client on this opinion. [Huh? I thought Gonzales was opinion.]

Nadler: WaPo ADD advocated memo’s most radical claim, that the President may authorize any interrogation method even if it crosses into torture.

ADD: No, Yoo said, I’ll address COnstitutional authority of President.

Nadler: You didn’t advocate any position. Do you believe PResident can authorize violations of torture statute.

ADD: What we’re talking about are laws.

Nadler: Do you believe President can authorize violations of federal statute.

ADD: As general principle, no. But facts matter.

Nadler: When do you believe that President can violate certain statute.

ADD: I didn’t say that.

Nadler: Is there any set of facts that would justify president violating statute.

ADD: Not going to render an opinion on every law.

Nadler: Do you believe that torture can be justified out of self-defense.

ADD: I’ve relied on opinions issued by DOJ.

Nadler: Did issue an opinion that President can violate FISA.

ADD: Constitutional questions raised about whether execution of statutes.

Nadler: Torture child to get information

ADD: You’re seeking a legal opinion. I’m not here to give you legal opinions, you have your own lawyers to do that.

Nadler: What?

Nadler: Yoo. Severe pain, must rise to death, organ failure, or serious impairment. Where did you get that language from?

Yoo: August 1 memo? Your question is where did it come from?

Nadler: How did you come to that conclusion?

Yoo: When Congress passed that statute, no definition. No guidance.

Franks: Clinton authorized assassination of OBL. Do you believe this is one of the implausible theories of criminal defense?

Schroeder: I haven’t reviewed that opinion. The way the 2002 opinion are among the pieces of legal reasoning that are far-fetched. He says CrimDiv reviewed memo. He doesn’t say they approved the memo. I’d be surprised if they did. Unless necessity was explicitly, it wasn’t available. I’d be surprised to hear CrimDiv was in there.

Franks: It does appear interesting to me that Clinton could issue memo saying that assassinating someone is self-defense but now we’re debating waterboarding. Yoo, part of Esquire interview. Precise guidance. Very well stated. Didn’t want opinion to be vague. Clear line. Elaboration?

Yoo: Interview speaks for itself. Now, I think that when you’re called on to interpret statute that Congress hasn’t defined, people have to have clear definition.

Franks: Try as they might, majority should not be spinning life and death into soap opera. Interrogation was disclosed to Pelosi, she did not object. Was successful in preventing terrorist attacks.

ADD: Schroeder said not a good idea that Bybee memo addresses necessity. That’s what his client asked him to do. It is the professional obligation to render opinion on what his client asks.

Conyers: Yoo. Appreciate appearance. During public debate it was reported you were asked that a President could order a suspect’s child be tortured in grusome fashion.

Yoo: I continued to explain a number of things. It stops mid-sentence.

Conyers: Okay. Thank you. Is there anything that the president cannot order to be done to a suspect if he believed it necessary for national defense?

Yoo: It goes back to that earlier question. Can I make clear, I’m not talking about…

Conyers; Just answer the question counsel.

Yoo: My thinking right now is that, first, the question you’re posing

Conyers: What is the answer? You’re wasting my time. We’ve all practiced law. Could the president order a suspect buried alive.

Yoo: I don’t think that I’ve ever given the advice

Conyers: I didnt’ ask you that. Do you think

Yoo: My view right now is that no American president would feel it necessary to order that.

Conyers: ADD. Did Cheney sit around approving interrogation techniques.

ADD: I wasn’t at a meeting of the description you’ve given.

Conyers: Does unitary theory allow President to do things above

ADD: We all take oath to protect and defend Constitution. I don’t know what unitary executive is. It’s all described as Addington’s. I’ve used it in quoting OLC opinions.

Conyers: You don’t know?

[some steam]

ADD: I know exactly what I mean by it. The use of word Unitary by me, all it refers to is the first sentence of Article II, One president. All executive power. Not the parts that Congress doesn’t want to exercise itself.

[Note: a friend in the audience says that Conyers rattled both Yoo and ADD]

King: Perhaps Chairman can bring down temperature.

ADD: Some things in Sands’ book that were accurate and some that weren’t.

Yoo: Sands said he had interviewed me for the book. He did not interview me.

King: At least WRT that statement, you find that to be a false statement.

Yoo: I can’t tell what’s in the book. He contacted me, I said, I wrote my own book. He told the committee he’d interviewed me.

King: We’re still in middle of war. Context of 2008 or 2001, smoking hole, reconstruction of Pentagon. Without regard to Constitution or statute, different context. If the President had said we were going to cuddle up to terrorists. If we had been attacked again, which we haven’t been, well, not on this soil.

ADD: Everyone wants to protect Americans. The Chairman lost several thousand in his district. We looked, I looked, through three filters, back when they were still smoking. First, was support and defend constitution. Everyone takes same oath. President has a different oath. Second filter is how within the law, within the law, I help maximize the President’s options in dealing with it. Third filter, when you go to war you ask a lot of people to do some tough things. Chairman served in Korean war period. You want to make sure whatever orders they’re given they’re protected. One thing I would add, things were different back then. Things are not as different today as people seem to think. There can be legitimate judgments and disputes. No American should think the war’s over. That’s wrong.

Davis: Yoo, have not read your book. Opening statement you make observation that it was your analysis that the anti-torture statute, the interpretation would depend not just on method, but on subjects metal and physical condition. Test for torture in part subjective? In response, that interpretation did not come from legislative, not judicial opinions, there was no Congressional guidelines. One good source of Congressional guidance, members of Congress. Did you consult with Sensenbrenner?

Yoo: I want to correct one thing I said.

Davis: Was Sensenbrenner consulted? ADD

ADD: I did not, and I don’t know whether anyone did or did not.

Davis: Was SPecter consulted?

ADD: That’s irrelevant to legal interpretation.

Yoo: I don’t know.

Davis; Process of consulting with intelligence committee. Yoo, did you consult?

Yoo: All I know is what I’ve read in the papers.

Davis: To your knowledge they were not. Addington.

ADD: no reason their opinion would be relevant.

Davis: Thank you for answering that w/o too much struggle. We’ve heard "Context" over and over again. You had a Congress that was a rubber stamp for your agenda. You got PATRIOT, Force resolution, bipartisan support for both of them. 107, 108, 109, not a single time Bush Administration rebuffed on nat Security. Got expansion of FISA. Got MCA. We wouldn’t be here today had you come to congress if you had said, give us an interpretation of what this meant. Tell us Sensenbrenner, Specter. The problem, I’ll address to ADD, when you’ve got a Congress that’s a rubber stamp for what you want. You ought not to be disrespectful of this branch of government. You didn’t even trust people who were rubber stamps for you.

Ellison: Did you write August memo.

Yoo: I contributed to drafting about it.

Ellison: You checked in with Addington about what you were going to cover.

Yoo: I’m not allowed to talk about any individuals. I gave draft of opinion to WHCO.

Ellison: Yes or no. I’m asking you to confirm whether what Addington reported was right or not right. I hope this isn’t coming out of my time.

Yoo: I have to follow guidance from DOJ.

Ellison: What privilege are you asserting? Who else was present when you checked in with Addington? Is that a repeat of your last answer?

Yoo: It’s not my choice.

Nadler: Are you asserting a privilege? What privilege are you asserting?

Yoo: I assume, I can’t say what the Justice Department’s belief.

Nadler: The DOJ cannot order you wrt your testimony. It can instruct you to take a privilege. If you are asserting a privilege, we’re entitled to ask you what privilege you’re asserting.

Yoo: I beileve it’s attorney-client privilege.

Nadler: since you’re not under subpoena, we’ll take that under advisement.

Ellison: What do you mean by implement?

Yoo: It can mean a wide number of things.

Ellison: You contributed to memo. Memo was implemented at some point. Guidance was followed and put into action.

Yoo: You’re asking whether the memo was followed.

Ellison: I need you to stop wasting my time.

Yoo: You’re asking me about things that other people would have done, not me.

Ellison: Schroeder, do you understand about what implement means?

Schroeder: prompted by CIA, once advice was forthcoming, some of the techniques that fell on legal side of line were employed.

Ellison: were the legal techniques employed?

Yoo: We did not make policy.

Ellison: Did interrogators ever come back and ask for interpretations?

Yoo: Again, I can’t tell you

Ellison: Shroeder, was memo in effect during Abu Ghraib.

Nadler: Gentleman will suspend, again. Yoo, are you asserting a privilege.

Yoo: Mr Ellison’s questions may involve classified information.

Nadler: You’re asserting that in order to answer Ellison’s questions you might have to reveal classified information.

Yoo: As I understand question, I’d have to discuss classified information.

Davis: Parliamentary inquiry. After come back from break, if the chair would consider addressing Yoo and Addington, I’ve never seen two witnesses struggle so much with ordinary language. I’ve never seen it like this before.

Ellison: When the ones who were addressing the witnesses, did those individuals have a lawyer they could go to ask about memo that you contributed to?

Yoo: CIA has about 100 lawyers. I assume you believe CIA conducted interrogations.

Ellison: Were you ever asked questions about whether techniques were permissible.

Yoo: I can’t answer your question.

Nadler: You can’t answer without revealing classified information?

Ellison: Did your memo allow for use of siccing dogs on interrogated individuals.

Yoo: Same answer.

Nadler: Question was did your memo allow for that.

Yoo: Memo speaks for itself. Does not discuss what you just mentioned.

King: Help! I can’t keep flow when the chair asks questions of the member that was recognized. Chair trying to ask what privilege was invoked.

Wasserman Schultz: Addington. September 2002 visted Gitmo. A JAG attorney, Beaver, said the message was do whatever needs to be done. Did you visit Gitmo?

ADD: I went there a number oftimes.

Add: I don’t remember dates. I don’t know what period you’re describing. I’ve been there 5 times. Three or four

WS: Did you meet with JAG attorneys.

ADD: I don’t remember meeting her. Met her at DOD GC much later. Invited by DOD and thought it’d be a good idea. I don’t know about methods, I remember they would show us interrogation room, look through one way mirror.

WS: Did yo discuss interrogation methods?

ADD: I’m not sure this memo has methods.

WS: Did you discuss specific methods?

ADD: I don’t recall doing it.

WS You didn’t, or you don’t recall?

ADD: I don’t recall.

WS Did you discuss specific interrogation methods.

ADD: I don’t recall.

WS Any discussions about Augsut 1 memo that offered advise on interrogations.

ADD: Fairly certain I did not.

WS Do you deny that you said, do whatever needs to be done?

ADD: Yes I do deny that, that quote was wrong.

WS: What kind of interrogation did you observe?

ADD: Orange jumpsuit.

WS: No phsyical contact with interrogators.

ADD: No.  

Senator Feingold made an important argument in the Senate today. He explains how the FISA immunity provision invites telecoms to cooperate with illegal government programs.

For starters, current law already provides immunity from lawsuits for companies that cooperate with the government’s request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. But if requests are not properly documented, FISA instructs the telephone companies to refuse the government’s request, and subjects them to liability if they instead decide to cooperate. This framework, which has been in place for 30 years, protects companies that act at the request of the government while also protecting the privacy of Americans’ communications.

Some supporters of retroactively expanding this already existing immunity provision argue that the telephone companies should not be penalized if they relied on a high-level government assurance that the requested assistance was lawful. Mr. President, as superficially appealing as that argument may sound, it utterly ignores the history of FISA.

Telephone companies have a long history of receiving requests for assistance from the government. That’s because telephone companies have access to a wealth of private information about Americans – information that can be a very useful tool for law enforcement. But that very same access to private communications means that telephone companies are in a unique position of responsibility and public trust. And yet, before FISA, there were basically no rules to help the phone companies resolve the tension between the government’s requests for assistance in foreign intelligence investigations and the companies’ responsibilities to their customers.

This legal vacuum resulted in serious governmental abuse and overreaching. The abuses that took place are well documented and quite shocking. With the willing cooperation of the telephone companies, the FBI conducted surveillance of peaceful anti-war protesters, journalists, steel company executives – and even Martin Luther King Jr.

Congress decided to take action. Based on the history of, and potential for, government abuses, Congress decided that it was not appropriate for telephone companies to simply assume that any government request for assistance to conduct electronic surveillance was legal. Let me repeat that: a primary purpose of FISA was to make clear, once and for all, that the telephone companies should not blindly cooperate with government requests for assistance.

At the same time, however, Congress did not want to saddle telephone companies with the responsibility of determining whether the government’s request for assistance was a lawful one. That approach would leave the companies in a permanent state of legal uncertainty about their obligations.

So Congress devised a system that would take the guesswork out of it completely. Under that system, which was in place in 2001, and is still in place today, the companies’ legal obligations and liability depend entirely on whether the government has presented the company with a court order or a certification stating that certain basic requirements have been met. If the proper documentation is submitted, the company must cooperate with the request and will be immune from liability. If the proper documentation has not been submitted, the company must refuse the government’s request, or be subject to possible liability in the courts.

The telephone companies and the government have been operating under this simple framework for 30 years. The companies have experienced, highly trained, and highly compensated lawyers who know this law inside and out.

In view of this history, it is inconceivable that any telephone companies that allegedly cooperated with the administration’s warrantless wiretapping program did not know what their obligations were. And it is just as implausible that those companies believed they were entitled to simply assume the lawfulness of a government request for assistance. This whole effort to obtain retroactive immunity is based on an assumption that doesn’t hold water.

That brings me to another issue, Mr. President. I’ve been discussing why retroactive immunity is unnecessary and unjustified, but it goes beyond that. Granting companies that allegedly cooperated with an illegal program this new form of automatic, retroactive immunity undermines the law that has been on the books for decades – a law that was designed to prevent exactly the type of actions that allegedly occurred here.

Remember, telephone companies already have absolute immunity if they complied with the applicable law. And they have an affirmative defense if they believed in good faith that they were complying with that law. So the retroactive immunity provision we’re debating here is necessary only if we want to extend immunity to companies that did not comply with the applicable law and did not even have a good faith belief that they were complying with it. So much for the rule of law.

Even worse, granting retroactive immunity under these circumstances will undermine any new laws that we pass regarding government surveillance. If we want companies to follow the law in the future, it sends a terrible message, and sets a terrible precedent, to give them a "get out of jail free" card for allegedly ignoring the law in the past.

I find it particularly troubling when some of my colleagues argue that we should grant immunity in order to encourage the telephone companies to cooperate with the government in the future. They want Americans to think that not granting immunity will damage our national security. But if you take a close look at the argument, it doesn’t hold up. The telephone companies are already legally obligated to cooperate with a court order, and as I’ve mentioned, they already have absolute immunity for cooperating with requests that are properly certified. So the only thing we’d be encouraging by granting immunity here is cooperation with requests that violate the law. Mr. President, that’s exactly the kind of cooperation that FISA was supposed to prevent.

And let’s remember why. These companies have access to our most private conversations, and Americans depend on them to respect and defend the privacy of these communications unless there is clear legal authority for sharing them. They depend on us to make sure the companies are held accountable for betrayals of that public trust. Instead, this immunity provision would invite the telephone companies to betray that trust by encouraging cooperation with illegal government programs.

That pretty much sums it up: this immunity provision is an effort to incent telecoms to participate in illegal spying programs.

I’ve got a call into John Ensign’s Communications Director for confirmation now, but it sounds like John Ensign is the one Senator referenced in Harry Reid’s statement last night and Dodd’s statement a few minutes ago on the Senate floor. That is, because John Ensign has refused to a unanimous consent agreement on the housing bill, he is holding up everything the Senate is doing right now.

That means Ensign is preventing the thousands of Nevadans facing foreclosure–Nevada’s foreclosure rate rivals even Michigan’s–from the relief that the housing bill in the Senate will give them.

But because Reid has said the Senate has to get housing done before it gets anything else done, it means Ensign is also standing between a bunch of veterans and the expanded GI bill included in the supplemental bill. And a bunch of people who’ve been looking for jobs hoping to get an extension on their unemployment benefits. And doctors hoping to be compensated fairly, in a new Medicare bill, for treating our nation’s seniors.

Of course, it’s not all bad. We FISA bloggers owe Ensign a debt of gratitude, it looks like. Because he’s blocking unanimous consent on housing, we may be able to push out FISA beyond the July 4 break. So thank you, John Ensign, for standing in the way of the shredding of the Constitution.

If you’re a Nevada resident, you might want to call Ensign at (202) 224-6244 and ask him why he’s preventing Nevada homeowners from getting some alternatives to losing their house.

But if you’re not a Nevada resident, you might want to call Ensign and thank him for standing up to the evil telecoms who illegally spied on American citizens.

Update: Corrected Medicare language per cboldt.

Folks are seeing a glimmer of hope in the FISA battle based on Harry Reid’s suggestion that we might not get FISA done before the July 4 recess.

Before I look closely at what Reid said, let me lay out a few points:

• Unless something remarkable happens, FISA will eventually pass the Senate with about a 72-25 margin. The bad SSCI bill passed in February with a 68-29 margin, and Steny’s capitulation was tailor-made to pick up the votes of people like DiFi and Amy Klobuchar–not to mention Obama. So there’s absolutely no reason to think a filibuster would be successful or to think that the bill won’t pass.
• The Senate is close to passing a Housing bill that–though imperfect–would do some concrete things to help Americans stay in their homes and help communities devastated by foreclosures. If Bush signs it. If Bush doesn’t, then the Republicans will have their refusal to do something about the foreclosure crisis to contend with this fall, along with everything else they’re dealing with.
• The Senate is close to passing the equally imperfect funding supplemental which includes Webb’s GI bill and an extension to unemployment benefits.

As you look at Reid’s comments, remember that Reid is dealing with all three of these playing pieces, not just the one we’re most focused on, FISA. And to the average American, the other two pieces are way more important than the FISA piece. As well-versed as I’ve become in FISA, frankly, I can’t imagine telling my neighbors facing foreclosure that defeating immunity is more important than them keeping their house.

I’m just making an outtamyarse guess, but I’m guessing that Reid’s delay comment last night may be tailored to get action on the housing bill, by holding the two things the Administration wants–FISA and the supplemental–hostage until a hold-out Republican and Bush agree to the housing compromise.

Reid starts by clearly pressuring one Senator on the housing bill–basically saying that if this one Senator doesn’t flip, then the Senate will stay through the weekend and get some housing bill passed.

I know of only one holdup on our being able to complete the housing legislation. If we can’t get that Senator to sign off on this, then we only have one alternative and that is we’ll file cloture tomorrow on another arm of this housing legislation. We will have cloture on that two legislative days later and then we still have one more to do. Now, that would mean we would have to be here over the weekend. Now, that was not anticipated we would do that. In the meantime, having done that, we are not going to be able to — it will hold up our being able to do FISA. We wanted to do a consent agreement on that tonight. That was — I was told that would not be possible.

He then states what I’ve just said–the FISA bill will eventually pass the Senate with a large majority–even while reminding that Feingold and Dodd may filibuster. Yet note that Reid also says that Feingold and Dodd–the drafter of the housing bill–know how the Senate works.

Now, Mr. President, on that, there are people who don’t like the FISA legislation. Now, I recognize that the majority of the Senate does. But some people don’t like it. But in spite of that, I have found the two people that speak out mostly against that — and there are others — but Senator Feingold and Senator Dodd have been very — Senator Feingold and Senator Dodd have been very diligent in their opposition to the legislation. But, of course, they understand the Senate very well. They understand the Senate very well.

This highlights that Dodd is at the center of two of Reid’s three playing pieces–housing and FISA–and suggests that the filibuster may be negotiable.

Having all-but-noted that Dodd and Feingold are prepared to filibuster, Reid then concludes that the only way the Senate can proceed to FISA is with consent–that is, by convincing Dodd and Feingold not to filibuster.

And so what we would like to do is have a cloture vote on the motion to proceed to that. Well, we can’t do that unless it’s by consent. So, therefore, we’re going to have to do cloture on the motion to proceed to FISA at some later time. And then that only allows us to proceed to the bill. And then we still have to do cloture on the bill.

Reid then reiterates that the Senate will pass housing legislation before it breaks, even while he states that he will not keep the Senate in session to pass FISA.

Now, Mr. President, FISA is a product of the administration. It’s passed the House and that’s fine. But we’re not going to stop people from going home for the 4th of July recess over FISA. If people don’t want to do it, then we’re not going to do it. It’s not because we’re holding it up over here, is what I’m saying. It’s being held up by the minority. Now, we’re going to — we’re going to proceed and we’re going to stay here and finish this housing bill. Mr. President, the Case-Schiller home price index registered the largest decline in home prices in that index’s history. That’s more than 40 years. Consumer confidence is at an all-time low. So we’re going to finish the housing bill. It may knock a few people out of parades on July 4th, or whatever — however long it takes us to do this.

Note the threat: while you and I may be happy to miss the local Fourth of July parade, the Norm Colemans of the world simply can’t afford to, not if they want to be re-elected this fall.

So Reid is laying out a very clear message: he will hold the Senate to get housing (a bill the Democrats want) but he won’t hold the Senate to get FISA (a bill the Republicans want). And then he throws more onto the bargaining table: the military appropriations bill.

Now, the other product we have that we want to finish before we go home is the supplemental appropriation bill. Again, Mr. President, there’s been a delicately crafted piece of legislation that has come from the House on this. They’ve worked very hard to get the House leadership to approve that, Democratic and Republican, the President of the United States has signed off on this.

Is it everything that I want? Is it everything we want over here? The answer is no. But I think, Mr. President, it’s something that will pass with a very large margin over here. But we can’t get to it unless people allow us to get to it. And so that, too, would have to wait until we get back after the July 4th recess. I think that would be a shame. We’ve been [told] that the Pentagon can pay the bills until about the middle of February. Then they’re out of money.

Having laid out his terms–Reid will recess without passing FISA and the supplemental, but he won’t recess without passing housing–Reid then clarifies who he is sending this message to.

Now, that — the President — I want the President, all of his people to hear what I’m saying. We are not holding up the supplemental. We, the Democrats, are not holding it up. We, the Democrats, are not holding up FISA.

Effectively, Reid is saying that Bush can’t get his supplemental or his FISA until Reid gets his housing bill.

Now call me crazy. But I don’t think Reid’s speech was really a promise that we’ll have another delay on FISA and one more chance to try to defeat immunity. I read this as Reid using FISA–a bill he knows will eventually pass, but one that has great support for a filibuster–to get what he needs on housing. Bush can have his supplemental and FISA so long as the one Republican hold-out on housing flips, and so long as Bush agrees to the housing bill (goddamn, I hope that Reid has determined to hold up FISA and the supplemental until he gets Bush’s signature on housing). It sounds like he has even secured agreement from Dodd (the author of the housing compromise) and Feingold not to filibuster if the Senate can push through the housing bill.

So I’m not holding out great hope that we’ll get a reprieve on FISA. Rather, I’m guessing this means Reid is holding the supplemental and FISA hostage to get the housing bill passed.

Here’s what Jim Comey had to say about the illegality of the warrantless wiretap program:

SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.

COMEY: I’m not saying — again, that’s why I kept avoiding using that term. I had not reached a conclusion that it was.

The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.

SPECTER: OK.

Well, now I understand why you didn’t say it was illegal. What I don’t understand is why you now won’t say it was legal.

COMEY: Well, I suppose there’s an argument — as I said, I’m not a presidential scholar — that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal.

I disagreed with that conclusion. Our legal analysis was that we couldn’t find an adequate legal basis for aspects of this matter. And for that reason, I couldn’t certify it to its legality.

Comey’s a pretty conservative lawyer. Even still, he obviously struggled seriously to figure out whether, if the President said something that had no basis in law was legal, it was legal, or not.

You might think that’s the kind of challenging legal assessment Attorney General Mukasey is doing, preparing (as he surely is) to deliver the immunity the FISA capitulation will give the telecoms within the next week.

But you’d be wrong. As a reminder, here’s what the immunity language in the FISA capitulation says.

[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that

[snip]

(4) the assistance alleged to have been provided by the electronic communication service provider was —

(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and

(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.

Look at the language carefully. It doesn’t say, "Michael Mukasey, a conservative and complicit–but still a once-respectable–lawyer, must review the program and certify that the program was legal." Rather, it says that, for the telecoms to receive their immunity, the Attorney General (Mukasey) only has to certify that at the time the Administration requested the telecoms’ assistance, they were told, in writing, that the program was "(i) authorized by the President, and (ii) determined to be lawful." There’s no "determining to be lawful" going on now. There’s simply the assertion, on a piece of paper, that someone–they don’t even have to say a lawyer did the determining!!!–someone determined the program to be lawful. It could have been Jenna Bush, on a bender, "determining the program to be legal." So long as she could manage to put pen to paper to certify as such–that’s the only standard the FISA capitulation requires!! Me, you, my dog McCaffrey–anyone of us could determine the program to be legal; had we done so, and told the telecoms as much, they go scot free.

And, in fact, it’s almost that bad. We know, after all, that on one of the certifications, someone almost as incompetent as Jenna on a bender (though not quite as competent as my dog McCaffrey) "determined the program to be lawful."

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]

For a period of time, only the President’s own lawyer, Alberto Gonzales "determined the program to be lawful." The President said, "If the President says it’s legal, it’s legal." And then, the hack lawyer who had protected Bush from legal consequences going back to Texas days said "If the President says it’s legal, it’s legal." And voila! Based on the President and then his Fredo declaring the illegal wiretap program to be legal–after a bunch of competent lawyers had already said it was not legal–the telecoms get their immunity.

Now, just as a reminder, here’s what a bunch of Republicans think of Alberto Gonzales.

Chuck Hagel: Gonzales can no longer meet the standard where his "honesty and capability are beyond question" and "has lost the moral authority to lead”

John McCain: "I am very disappointed in his performance"

Tom Coburn: There "has to be consequences" for Gonzales’ leadership failure

Kit Bond: Having Alberto Gonzales at DOJ "is doing more harm than good"

Tom Tancredo: "Misplaced priorities, political miscalculation, and a failure to enforce the laws which he has sworn to uphold"

No moral authority … questionable honesty and capability … doing more harm than good … failure to enforce the laws which he was sworn to uphold. Based on this man’s word, Congress is preparing to violate the separation of powers and sweep a whole bunch of law-breaking under the rug.

The Republicans and Democrats in Congress are preparing to trade our legal rights away based on the word of someone even the most conservative politicians recognize failed to enforce the laws he swore to uphold.

That’s how cheap our laws have become. When the word of a hack like Alberto Gonzales is enough for Congress to trade our legal rights away, our laws have become very cheap indeed.

The Great Orange Satan points to John McCain, admitting that offshore drilling will provide nothing but "psychological" benefits:

At a town hall in Fresno, CA, McCain admitted that the offshore drilling proposal he unveiled last week would probably have mostly “psychological” benefits, NBC/NJ’s Adam Aigner-Treworgy notes. “Even though it may take some years, the fact that we are exploiting those reserves would have psychological impact that I think is beneficial." Uh oh.

But this isn’t the first time that McCain has treated his presidential campaign as an exercise in tilting at windmills psychological affirmation. As a Mid-Western gal, I still cannot believe McCain flew his Sugar Momma Express into Youngstown, Ohio and told a bunch of struggling manufacturing workers that the shitty economy, like the benefits of offshore oil drilling, is just psychological. Here’s McCain telling that to Fox News:

"But I think psychologically – and a lot of our problems today, as you know, are psychological – the confidence, trust, the uncertainty about our economic future, ability to keep our own home," he added.

McCain explained that his proposal to eliminate the federal gas tax for three months would provide Americans the necessary ‘psychological boost’ to deal with their economic problems.

Given McCain’s professed ignorance about economic issues, I guess this isn’t really surprising. But jeebus–isn’t it time for him to admit that his chief domestic policy is to fool Americans with a bunch of psychological hocus pocus?

Is here.

It shows that not just Monica Goodling, but Mike Elston and Bill Mercer and others at DOJ "crossed the line" into illegal behavior, using political affiliation in the hiring for a summer intern and AG’s Honors programs.

I’ll update as I read.

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The report names Robert Coughlin–of the Abramoff corruption ring–as one of the people who may have used political affiliation in hiring–but the report ultimately does not conclude that he did.

Three career employees told us they were concerned that on one occasion Deputy Chief of Staff Robert Coughlin, a political official on the hiring committee, may have taken into account candidates’ political or ideological affiliations. One career employee wondered whether Coughlin rejected one highly qualified candidate because of the candidate’s liberal affiliations. Two other career employees wondered whether Coughlin voted to accept a less qualified candidate because of the candidate’s conservative and Republican Party affiliations. The candidate with liberal affiliations was rated highly by the career employees who interviewed him, but he did not receive an offer. Conversely, the candidate with conservative and Republican Party affiliations was not rated highly by the career employees who interviewed him yet received an offer of employment.

The career employees also told us that when they questioned Coughlin about his ranking of candidates during the group meeting in which the candidates were ranked, Coughlin stated that he was basing his recommendation on his reactions to the candidates’ interview demeanor and interview skills.

In our interview of him, Coughlin told us he never considered political or ideological affiliations in evaluating Honors Programcandidates. While Coughlin said he did not recall any details concerning the specific candidate with liberal affiliations, he recalled that he recommended the candidate with conservative affiliations because the candidate had received a strong recommendation from a previous internship with the Criminal Division and not because of the
candidate’s ideological affiliations.

We reviewed the two candidates’ applications and determined both candidates had been ranked as having strong credentials, such as federal appellate clerkships or high grades that indicated the candidates were qualified. In addition, Coughlin’s stated reasons to his colleagues and to us for his decisions – the strength of the candidates’ performances in interviews and high recommendations from a previous internship with the Department – can be appropriate bases to choose between two otherwise qualified candidates. Further, our other witness interviews and our review of documents and e-mails did not reveal evidence that Coughlin considered political or ideological affiliations when making his recommendations. Accordingly, we did not conclude that Coughlin used inappropriate factors in choosing between the two candidates.

Shorter DOJ IG: Coughlin talked himself out of further legal problems, even though there were six people who found his hiring decisions suspicious.

---

Here’s a list of the people on the working group who originally changed the hiring practices in 2002: Andrew Hruska, then Senior Counsel to the Deputy Attorney General,
Adam Ciongoli, then Counselor to the Attorney General; Paul Clement, then Principal Deputy Solicitor General; David Higbee, then Deputy Associate Attorney General; Howard Nielson, then Counselor to the Attorney General; and Christopher Wray, then Principal Associate Deputy Attorney General. A couple of names of interest there. Hruska, Higbee, and possibly Ciongoli and Nielson made up the screening committee that year.

---

This is no doubt why Bill Mercer was a candidate to be AAG:

My initial reaction is that the guy is probably quite liberal. He is clerking for a very activist, ATLA-oriented justice. His law review article appears to favor reintroduction of wolves on federal lands, a very controversial issue here which pits environmentalists against lots of other interests, including virtually all conservative and moderate thinkers.

Incidentally: any bet that we find Mercer making much more politicized comments in this IG report than we found in the emails turned over to HJC? Not that DOJ refused to turn over the really damning emails, of course, but if Mercer would say this about a new hire, I’m sure he’d say worse about a US Attorney.

---

Incidentally, DOJ IG considers ACLU a liberal organization. What would Bob Barr say?

---

Here are the results from just 2002, when DOJ IG said the hiring wasn’t all that political as compared to 2006.

As the chart indicates, the Screening Committee deselected 80 (80 percent) of the 100 applicants with liberal affiliations, 4 (9 percent) of the 46 applicants with conservative affiliations, and 223 (29 percent) of the 765 candidates with neutral affiliations.

[snip]

The data indicates that the candidates with liberal affiliations were deselected at a much higher rate (15 out of 18) than candidates with conservative affiliations (0 out of 5) or candidates with neutral affiliations (11 out of 48), even though all candidates met the same criteria.

[snip]

We found that all 7 applicants who indicated that they were American Constitution Society members were deselected by the Screening Committee for interviews, while 2 of the 29 applicants who indicated that they were members of the Federalist Society were deselected.

Wingnut welfare at its finest.

---

And here’s some data from 2006, when Mike Elston was in charge of the process:

Overall, based on the results of our data analysis, we found that Honors Program candidates whose applications reflected liberal affiliations were deselected at more than three times the rate (55 percent) of candidates whose applications reflected conservative affiliations (18 percent) and more than twice the rate of candidates whose applications reflected neutral affiliations (23 percent).

We found a similar trend when we examined a subset of highly qualified candidates. Highly qualified candidates meeting the Fridman academic criteria whose applications reflected liberal affiliations were deselected at a substantially higher rate (40 percent) than highly qualified candidates whose applications reflected conservative affiliations (6 percent) or neutral affiliations (13 percent). In addition, candidates whose applications reflected a Democratic Party affiliation were deselected at a significantly higher rate (48 percent) than candidates whose applications reflected a Republican Party affiliation (27 percent) or who did not show any party affiliations (30 percent). Similarly, highly qualified candidates who had Democratic Party affiliations were deselected at a much higher rate (37 percent) than candidates who had Republican Party affiliations (7 percent) or who did not show any party affiliation (18 percent).

---

The kinds of candidates Mike Elston didn’t want (or maybe he just wanted to piss off Carol Lam):

Elston replied by e-mail that most deselections were for poor grades. He acknowledged, however, that poor grades did not appear to be the issue with this candidate, and he offered to check into the application and let Lam know whether an appeal would be successful. Elston replied later that day: “I have reviewed her application materials, Carol. I do not think an appeal will be successful. If it helps, she was not selected by the other components to which she applied.” Lam responded: “Thanks Mike. Just curious, though – I don’t see anything unacceptable in her online application that was made available to us. Do the other components see something that I don’t?” Elston replied: “Not that I know of, Carol.”

The Civil Division also attempted to obtain from Elston the rationale for the deselection of certain candidates with strong academic records before it submitted any appeals. Elston responded to the Civil Division that the “vast majority were cut for poor grades. I cannot speak to the individual applicants you named at this point.” However, when the Civil Division pointed out the excellent academic credentials of a deselected candidate who was sixth in his law school class and was currently clerking for a federal judge, Elston responded: “There was a committee (which was not made up of exclusively ODAG staffers) . . . so I am not in a good position to give you reasons others may have had for their decision.” This candidate had been an intern with the Public Defender Service and had written a paper on the detention of aliens under the Patriot Act. After this exchange, the Civil Division appealed the deselection of this candidate, along with other candidates. Elston denied the appeal of this candidate without explanation.

Because god forbid we have men and women who were sixth in their law school class working for the Federal Government.

---

Apparently, the destruction of the materials related to the hiring process (noted in the thread below) occurred after a contentious December 5, 2006 meeting at which it became clear the politicized hiring was a problem.

We had difficulty reconstructing the decisions and reasoning of the Committee members with regard to specific candidates because virtually no written record of the Screening Committee members’ votes and views remains. The Committee used paper copies of the applications on which Fridman and McDonald made handwritten notations about the applicants, but those documents were destroyed prior to the initiation of our investigation. Elston’s staff assistant told
us that her office did not have room to store the hundreds of applications and, because they contained personal information about the applicants, she placed them in the burn box for destruction shortly after the review process was completed in early 2007. The staff assistant said she did not recall consulting Elston or anyone else before destroying the applications.

And given the early 2007 timing, the destruction of these materials may well have taken place after HJC started asking for evidence of politicization at DOJ.

But I’m sure it’s not related.

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William Ockham pointed out this one below:

For example, Fridman recalled that one candidate was at the top of his class at Harvard Law School and was fluent in Arabic. McDonald’s written notations indicated that she had concerns about the candidate because he was a member of the Council on American Islamic Relations and that she had placed the application in the questionable pile. Fridman said he wrote on the application that this candidate was at the top of his class at Harvard and was exactly the type of person DOJ needed.

I hope this person recognizes himself and sues DOJ.

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Jeebus! Talk about getting out of Dodge:

McDonald declined to be interviewed during our investigation. When we first contacted her in September 2007 for an interview, she was a Counsel to the Associate Attorney General. She initially agreed to a tentative date for her interview, but she later asked us to postpone the interview while she retained counsel. We agreed. After McDonald retained an attorney, and after allowing time for the attorney to familiarize himself with the matter, a new date for the interview was set, October 25, 2007. However, at 5:15 p.m. on October 24, McDonald’s attorney e-mailed our investigators to advise them that his client was canceling the interview. The attorney added that McDonald was no longer employed by the Department.

We learned that McDonald had resigned from the Department, effective October 24. On the evening of October 23, she had told her supervisor, Acting Associate Attorney General Katsas, that the next day would be her last day at the Department.

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Elston begins to realize he’s in trouble when he realizes he was rejecting Arab speakers:

We asked Elston about another deselected Honors Program candidate who had graduated from Yale Law School, had been a member of the Yale Law Journal, graduated summa cum laude with a Bachelor of Arts degree from Yale College, was clerking for a judge on the U.S. Court of Appeals for the Second Circuit, had studied Arabic, and had worked with a human rights organization. Elston said he looked for people with Arabic language skills and that he also knew the judge this candidate was clerking for, so he believed he would have been enthusiastic about this candidate. Elston could not explain why the candidate was deselected and said he was “starting to get concerned that some ‘yes’ pile [applications] got in the ‘no’ pile.”

Shorter Elston: "I’m all out of plausible excuses for rejecting these people."

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OIG gets snarky:

We note that Elston’s statement that the Criminal Division does not prosecute sex offenders is incorrect. The Child Exploitation and Obscenity Section of the Criminal Division prosecutes violations of federal law related to producing, distributing, receiving, or possessing child pornography, transporting women or children interstate for the purpose of engaging in criminal sexual activity, and traveling interstate or internationally to sexually abuse children. In addition, this Section has jurisdiction to prosecute cases of child sexual abuse on federal and Indian lands.

Of course, one of the reasons why Elston and the rest of the clique claimed to have fired Daniel Bogden was because Bogden wasn’t enthusiastic enough about prosecuting obscenity

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Who could have imagined? I’ve been arguing for over a year that all the Hatch Act violations in the world will be just swept under the carpet now that everyone who committed those violations has left government.

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.

See. it’s okay to politicize hiring, so long as the people who do so are cycled into corporate sinecures after they’ve thoroughly reloaded the civil service with wingnuts.

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So Mukasey, who was hired because the Department had obviously been politicized, took five months to get around to writing a memo to tell people to stop.

Attorney General Mukasey issued a memorandum on March 10, 2008, requiring all political appointees to acknowledge that they have read the Department regulations that hiring must be merit based and that political affiliations cannot be considered.

Nice job, Chuck.

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I’m in a wretched mood because Sears just called and told me, after assuring me last week they could get me a fridge this week, and after they sent me a badly damaged fridge yesterday, and after then promising I’d have a fridge today, then kept me on the phone for an hour and a half to tell me they won’t actually have my replacement fridge to me until Monday and oh by the way would you like a gift card for the trouble of having to unload and reload three different fridges so you can shop at our crappy store some more?

I tell you, always buy local or you’ll end up looking like a chump like me.

So I thought I’d put my crappy mood to some use to try to brainstorm the appropriate moniker for what the telecoms after they receive their Congressional pardon sometime next week. They won’t really be "pardoned felons," because we never got to the point of a jury trial to certify them as felons. I guess "pardoned lawbreakers" might work, but it’s not very catchy.

Once we figure out a catchy name for what you call corporations after the President and Congress decide to put aside separation of powers in order to make sure they avoid any consequences for their law-breaking, I figure we can do some google-bombing and make their legislative win a PR disaster.  

You’ve no doubt heard that Cindy McCain got caught–again–plagiarizing someone else’s recipes.

Frankly, I’m not really sure why we insist our candidates’ spouses prove their authenticity by whipping out family recipes they may or may not have (though you’d think Cindy might just avoid getting in trouble the next time by revealing Budweiser’s recipe for piss-water).

But I do think there’s something to be said for candidates who can negotiate the banal world of everyday existence. When the spouse of the $100,000,000 Sugar Momma tells Ohioans that the crummy economy is all in their heads, and when the President needs the press corps to tell him that gas is (was) approaching $4 a gallon, it’s gratifying to know that some politicians can still negotiate the little errands that you and I run on a daily basis.

Which is why I think this video of Blue America-endorsed candidate for MI’s 7th Congressional District, Mark Schauer, is so cool. Mark’s making his wife’s pasty recipe (for the uninformed, a "pasty"–with a soft "a": paasty–is the hand-held pot pie that MI’s Upper Peninsula is famous for). And doing so damned competently. If you had any doubt he’s used this recipe once or twice before, those doubts will be answered by the way he crimps the pie-crust.

And just as importantly, he does the shopping too, knowing from experience which onion to get for the recipe (if this were mr. emptywheel, at the point he got the onion bin, he’d be likely to call me to figure out exactly what we needed).

Now, they’ve re-released this YouTube as part of a fundraising gig: Mark’s going to pick one donor out of a hat; not only will he make pasty for that donor, but he’ll do the dishes, too. So if you’re local to MI’s 7th CD, see if you can win a pasty from MI 7th’s next Congressman. But if you’re just feeling the need to support better Democrats this week (I know I am), donate through Blue America.

Cindy’s abject failure to produce her own cookie recipe will likely have little effect on whether her husband decides to "bomb bomb bomb, bomb bomb Iran." But having a Congressman who knows his way around the average grocery store would sure be a welcome addition to MI’s congressional delegation.