I’m in the middle of some serious weeds on the Ghorbanifar meetings and then I’ve got to empty out a fridge again because Sears can’t deliver on what it says it can deliver on. So I’ll be a while this morning before I say anything interesting.

But in the meantime, please do me a favor and donate to Darcy Burner.

• Do it because AIPAC is beating Darcy up for sponsoring responsible policies in the Middle East rather than more war-mongering.
• Do it because Darcy has spoken out early and often against telecom immunity.
• Do it because her opponent is a sexist prick.
• Do it because her race is very tight, and winning this race will send almost as strong a message to the capitulation Dems in DC as Donna Edwards beating Al Wynn.

Today’s the last day of the funding quarter, so you should donate to as many better Democrats as you can. But please include Darcy among those you donate to today.

Okay, the words "Master Plan" in the title are a joke. So is the idea of criminal prosecutions, by a future Obama Administration, for Bush era FISA violations that has been hawked, to the point of near belligerence, by Keith Olbermann both on his show and in a running flame war with Glen Greenwald. The instant article will attempt to relate some of the glaring reasons, from a practical criminal justice perspective, that the Obama/Olbermann master plan is naive, almost to the point of being comical. Comical that is if we were not literally discussing the life and spirit of the Fourth Amendment and the health and well being of the Constitutional rule of law in this country.

This is the exchange between Olbermann and Dean from which Olbermann appears to have ginned up his Obama genius master plan narrative:

DEAN: Well, I spent a lot of time reading that bill today, and it‘s a very poorly-drafted bill. One of the things that is not clear is whether it‘s not possible later to go after the telecoms for criminal liability. And that something that Obama has said during this campaign he would do, unlike prior presidents who come in and really give their predecessor a pass, he said, “I won‘t do that.” And that might be why he‘s just sitting back saying, “Well, I‘m going to let this go through. But that doesn‘t mean I‘m going to give the telecoms a pass.” I would love it if he gets on the Senate floor and says, “I‘m keeping that option opened.”

OLBERMANN: In other words, let the private suits drop and get somebody in there who‘ll actually use the laws that still exist to prosecute and make the actual statement and maybe throw a few people in jail.

DEAN: Exactly. And it looks to me, as I read this bill and talk to a number of people in Washington familiar with the bill, some who are involved in the negotiations, and they say, “You know – we just didn‘t think about this issue.”

Notwithstanding Olbermann’s fiery preacher in a pulpit exhortations, it should be noted that John Dean himself has walked his statement back from Olbermann’s claims since his original offhand quote:

But even if the bill is unclear there is no question the Bush Administration is not going to do anything to the telecoms, so the question is whether a future DOJ could — and here there is case law protecting the telecoms. But there may be language buried in the bill that protects them as well but it can only be found by reading the bill with a half dozen other laws which I have not yet done.

I made no declarative statements rather I only raised questions that jumped at me when reading the 114 page monster.

In spite of the fact that Dean himself has rendered the putative operative basis of the Olbermann/Obama master plan meaningless, it appears that Olbermann intends to keep flogging it; having posted at DKos on the subject and having MSNBC incessantly advertising his upcoming petulant rant "Special Comment" on the subject set for Monday night June 30. So we can knock this turkey of an argument back to the contrived desperate corner it came from, let’s assume that prosecuting telcos criminally for their FISA violations under Bush really is the master stroke of genius behind Barack Obama’s recent inexplicable cave, capitulation and wholesale sellout of the Constitution, Fourth Amendment and rule of law for the American people. What would come of these criminal prosecutions? Absolutely nothing, and what follows is only a partial list of the numerous reasons why.

WHAT CRIMES? – Neither Olbermann, Dean, Obama, nor anybody else discussing this hypothetical pipe dream has indicated exactly what crimes they think might be charged. Let us be clear on one thing, simply because a proscribed activity is unconstitutional does NOT make it criminal. For a crime to be charged, there needs to be a specific provision of the US Code (USC), or other statutory provision, making said conduct a crime. It is crystal clear, from the collective record to date, that the participating telcos were compelled by the Bush Administration to assist and were given written assurances that their cooperation was necessary for national security, legal and authorized by the President of the United States in a supposed time of war. That pretty much eliminates any crime that requires criminal intent by the perpetrator, and leaves only what, in criminal law, are known as strict liability crimes, of which none come to mind. The only cogent possibility is the criminal offense defined under the FISA law (18 USC 1809) which, you guessed it, requires specific intent. How are you going to prove that here? Oh, and by the way, this assumes that the Obama Administration is willing to actually have the cojones to prosecute; Obama has shown absolutely nothing of substance to indicate that this is the case; in fact, he consistently indicates he wishes to move forward and not expend energy on the past, especially on contentious partisan issues.

STATUTE OF LIMITATIONS: – Even if you could identify specific crimes to charge telcos and/or their owners, directors and personnel with, the crime must be viable and ripe for prosecution. The first question any criminal defense attorney is going to ask is "Gee, is this crime within the statute of limitations"? FISA is subject to the Federal general statute of limitation contained in 18 USC 3282, which is five years. And, remember, the statute starts to run when the crime is committed and/or when the government becomes aware of the conduct; in this case the Department of Justice knew about the conduct as, or before, it was being committed. When we, as citizens learned about it is not the relevant test. Obama, assuming he is indeed elected, will not be issuing indictments at the end of his inaugural address. The FISA Amendment Act provides for an investigation and report of the Bush/telco wiretapping/datamining and snooping to be completed by applicable Inspectors General within one year of passage; assuming Bush signs the FAA in mid-July, that would be mid-July 2009 for the report. The Bush Administration will not be working diligently to effect this while they are still in office; any meaningful work will have to be reviewed and/or performed under the new administration It is unrealistic to expect that any charges could possibly be filed before said said report is due, so any act occurring prior to about July 15, 2004 will not be within the statute of limitations and will be barred from prosecution. That will eliminate the lion’s share of the overt acts and violations that are the subject of the currently pending civil lawsuits, pending in consolidated form in the Northern District of California in front of Judge Vaughn Walker, that are to be dismissed. Where will be the justice, rule of law, and equal protection of law guaranteed by the United States Constitution for these American citizens and subjects? How do Mr. Olbermann and Mr. Obama account for the rights and lives of these victims with their genius master plan; or are they simply expendable in the face of their petty political ambitions?

REASONABLE DOUBT: – Let’s assume the master plan makes it past the previously described hurdles. What happens when these putative criminal charges get tried to a jury? Well, as we all know, the standard of proof is "beyond a reasonable doubt". We already have established conclusively that the participating telcos are in possession of certifications and authorizations from the United States Government, authorized and demanded by the President of the United States and the Attorney General of the United States (except a single brief interlocutory period where it was counter signed by the White House Counsel) asserting and avowing that the requested conduct was legal, constitutional, and necessary for national defense and security. This was occurring after 9/11 and in a putative time of war and under repetitive terror alerts by the United States Government and Department of Homeland Security. Now, tack on to that evidence that Congressional leaders of both parties were briefed and consented to the activity to some extent. Then the clincher. Both houses of Congress, not one, not two, but three different times voted to ratify, approve, and legitimize the conduct in question via the Protect America Act, extension of the Protect America Act and, finally, passage of the FISA Amendment Act. Keep in mind that the FISA Amendment Act dismisses civil cases for the same conduct, which have a far lower standard of proof (preponderance of the evidence) than the criminal charges that will be under consideration, because it was deemed legal, proper and necessary by the Congress. Now, add all that up. Exactly what jury do you think is going to find a telco defendant guilty beyond a reasonable doubt? A monkey could successfully argue this defense to a jury; heck, Alberto Gonzales might could even pull it off (although I would take my chances with the simian).

WHAT IF BUSH PARDONS ALL TELCO CORPORATE AND INDIVIDUAL DEFENDANTS? – Yep, as you may recall, there is an easy way for criminal perps to Scoot out of responsibility for their criminal conduct performed for the Bush Administration. The Constitutional pardon power, which, under Article II, Section 2, is unfettered. That would completely remove any ability of a successor Obama Administration to prosecute under the vaunted, Olbermann/Obama genius master plan.

WHAT IF OBAMA LOSES AND McCAIN IS THE NEXT PRESIDENT? – This one is fairly self explanatory. Curiously, I have not heard it addressed in the Olbermann/Obama secret master plan.

Well folks, there you have it. These are just a few of the glaring problems. Telcos hire the best, most persistent, and most capable lawyers available. Always. They will not be being represented by some sleepy, understaffed and overworked public defenders; they will have the best criminal defense talent in the world. It will not be necessary; a child could win these proposed Olbermann/Obama master plan prosecutions. So easy that even Alberto Gonzales could carry the day. Bottom line, this is one of the most ridiculous non-starters I have ever heard. If this is the "Master Plan", we are in a world of hurt.

In addition to showing how the Iran hawks have evaded oversight over their Special Forces war plan against Iran, Sy Hersh seems intent on generating pressure on Democrats to withhold funding now being used to start a covert war with Iran.

Hersh notes that the Gang of Eight has been briefed on the CIA–but not the Special Forces, assassination of high value targets–part of the plan.

Although some legislators were troubled by aspects of the Finding, and “there was a significant amount of high-level discussion” about it, according to the source familiar with it, the funding for the escalation was approved. In other words, some members of the Democratic leadership—Congress has been under Democratic control since the 2006 elections—were willing, in secret, to go along with the Administration in expanding covert activities directed at Iran, while the Party’s presumptive candidate for President, Barack Obama, has said that he favors direct talks and diplomacy.

I love how Hersh feels the need to remind Democrats they are in the majority.

Then, after recalling all the opposition to Administration plans from within the military, Hersh returns to Democrats’ failure to prevent policies they oppose.

The Democratic leadership’s agreement to commit hundreds of millions of dollars for more secret operations in Iran was remarkable, given the general concerns of officials like Gates, Fallon, and many others. “The oversight process has not kept pace—it’s been coöpted” by the Administration, the person familiar with the contents of the Finding said. “The process is broken, and this is dangerous stuff we’re authorizing.”

Now, the problems with oversight seem to focus on two things. First, the Democrats once again got punked by Administration lies when, three years ago, David Obey backed off an attempt to withhold funding for such operations.

On March 15, 2005, David Obey, then the ranking Democrat on the Republican-led House Appropriations Committee, announced that he was putting aside an amendment that he had intended to offer that day, and that would have cut off all funding for national-intelligence programs unless the President agreed to keep Congress fully informed about clandestine military activities undertaken in the war on terror. He had changed his mind, he said, because the White House promised better coöperation. “The Executive Branch understands that we are not trying to dictate what they do,” he said in a floor speech at the time. “We are simply trying to see to it that what they do is consistent with American values and will not get the country in trouble.”

Obey declined to comment on the specifics of the operations in Iran, but he did tell me that the White House reneged on its promise to consult more fully with Congress. He said, “I suspect there’s something going on, but I don’t know what to believe. Cheney has always wanted to go after Iran, and if he had more time he’d find a way to do it. We still don’t get enough information from the agencies, and I have very little confidence that they give us information on the edge.”

So Congressional Dems aren’t doing the most efficacious thing to prevent BushCo from starting their war with Iran, defunding such efforts.

Democrats who have been briefed on the Presidential Finding (which appears to be restricted to the Gang of Eight), are just now figuring out that Cheney has the assassinations hidden behind Bush’s EO giving Special Forces a blank check.

Senior Democrats in Congress told me that they had concerns about the possibility that their understanding of what the new operations entail differs from the White House’s. One issue has to do with a reference in the Finding, the person familiar with it recalled, to potential defensive lethal action by U.S. operatives in Iran.

[snip]

The defensive-lethal language led some Democrats, according to congressional sources familiar with their views, to call in the director of the C.I.A., Air Force General Michael V. Hayden, for a special briefing. Hayden reassured the legislators that the language did nothing more than provide authority for Special Forces operatives on the ground in Iran to shoot their way out if they faced capture or harm.

Yet it appears that Dems are doing the same thing they did in response to the warrantless wiretap program: writing letters into the black hole of the White Hous email system.

The legislators were far from convinced. One congressman subsequently wrote a personal letter to President Bush insisting that “no lethal action, period” had been authorized within Iran’s borders. As of June, he had received no answer.

(Note, there’s a strong chance that this "congressman" is Silvestre Reyes, since he’s the only Congressman briefed on the full Finding; the other Congresswoman would be Speaker Pelosi.)

And an aide for what appears to be Senator Reid (the only male in leadership briefed on the program), suggests Reid is just claiming he’s powerless to do anything about the Iran war-mongering.

An aide to one member of the Democratic leadership responded, on his behalf, by pointing to the limitations of the Gang of Eight process. The notification of a Finding, the aide said, “is just that—notification, and not a sign-off on activities. Proper oversight of ongoing intelligence activities is done by fully briefing the members of the intelligence committee.” [my emphasis]

So that’s it. Reyes (presumably) sending notes into the void again and Reid (presumably) simply despairing of the intelligence oversight process. That’s what has become of the the power to declare war.

I’ll have several things to say about Sy Hersh’s latest. For the moment, though, I just wanted to lay out his central argument: that Dick Cheney is abusing the structure of command and Congressional oversight to launch a covert campaign against Iran.

Hersh reports that President Bush signed a Finding authorizing broad actions against Iran. Here’s how Andrew Cockburn described the finding, in a piece cited by Hersh:

Six weeks ago, President Bush signed a secret finding authorizing a covert offensive against the Iranian regime that, according to those familiar with its contents, "unprecedented in its scope."

Bush’s secret directive covers actions across a huge geographic area – from Lebanon to Afghanistan – but is also far more sweeping in the type of actions permitted under its guidelines – up to and including the assassination of targeted officials. This widened scope clears the way, for example, for full support for the military arm of Mujahedin-e Khalq, the cultish Iranian opposition group, despite its enduring position on the State Department’s list of terrorist groups.

Similarly, covert funds can now flow without restriction to Jundullah, or "army of god," the militant Sunni group in Iranian Baluchistan – just across the Afghan border — whose leader was featured not long ago on Dan Rather Reports cutting his brother in law’s throat.

Other elements that will benefit from U.S. largesse and advice include Iranian Kurdish nationalists, as well the Ahwazi arabs of south west Iran. Further afield, operations against Iran’s Hezbollah allies in Lebanon will be stepped up, along with efforts to destabilize the Syrian regime.

The fans of regime change have managed to implement such a plan while evading oversight in a couple of ways. First, the hawks pushed out Admiral William Fallon on March 11 rather than reading him in on some of the stuff they were doing with Specials Ops forces in the Middle East.

Fallon’s early retirement, however, appears to have been provoked not only by his negative comments about bombing Iran but also by his strong belief in the chain of command and his insistence on being informed about Special Operations in his area of responsibility.

[snip]

“He was charged with coming up with an over-all coherent strategy for Iran, Iraq, and Afghanistan, and, by law, the combatant commander is responsible for all military operations within his A.O.”—area of operations. “That was not happening,” [Marine General Jack] Sheehan said. “When Fallon tried to make sense of all the overt and covert activity conducted by the military in his area of responsibility, a small group in the White House leadership shut him out.”

As Hersh explains, post-9/11 the Bush Administration weakened Goldwater-Nichols, largely by giving Special Ops its own command and reporting structure.

The law cited by Sheehan is the 1986 Defense Reorganization Act, known as Goldwater-Nichols, which defined the chain of command: from the President to the Secretary of Defense, through the chairman of the Joint Chiefs of Staff, and on to the various combatant commanders, who were put in charge of all aspects of military operations, including joint training and logistics. That authority, the act stated, was not to be shared with other echelons of command. But the Bush Administration, as part of its global war on terror, instituted new policies that undercut regional commanders-in-chief; for example, it gave Special Operations teams, at military commands around the world, the highest priority in terms of securing support and equipment. The degradation of the traditional chain of command in the past few years has been a point of tension between the White House and the uniformed military.

So the first thing the war hawks did was put in a bunch of operations controlled centrally, outside the traditional chain of command, largely with Dick Cheney’s paws on it.

The problem, though, is that Special Ops still relies on CIA for certain capabilities–language skills and local ties–which meant CIA had to be brought into the operations.

But the borders between operations are not always clear: in Iran, C.I.A. agents and regional assets have the language skills and the local knowledge to make contacts for the JSOC operatives, and have been working with them to direct personnel, matériel, and money into Iran from an obscure base in western Afghanistan.

And the CIA, because covert actions must be approved by a Presidential Finding, and because the plans included targeting of high value targets, demanded that Bush sign a finding authorizing the CIA to be associated with operations that will kill high profile figures.

One issue has to do with a reference in the Finding, the person familiar with it recalled, to potential defensive lethal action by U.S. operatives in Iran.

[snip]

The language was inserted into the Finding at the urging of the C.I.A., a former senior intelligence official said.

The Finding was signed some time around March 21–just ten days after Fallon’s resignation.

Yet according to the Barnacle Branch and Unitary Executive rules, the Bush Administration doesn’t have to tell Congress what Special Ops is doing.

Under the Bush Administration’s interpretation of the law, clandestine military activities, unlike covert C.I.A. operations, do not need to be depicted in a Finding, because the President has a constitutional right to command combat forces in the field without congressional interference.

[snip]

“This is a big deal,” the person familiar with the Finding said. “The C.I.A. needed the Finding to do its traditional stuff, but the Finding does not apply to JSOC. The President signed an Executive Order after September 11th giving the Pentagon license to do things that it had never been able to do before without notifying Congress. The claim was that the military was ‘preparing the battle space,’ and by using that term they were able to circumvent congressional oversight.

And one of the things Bush has authorized without telling Congress about it is the targeting of high value targets.

One of JSOC’s task-force missions, the pursuit of “high-value targets,” was not directly addressed in the Finding.

[snip]

“Everybody’s arguing about the high-value-target list,” the former senior intelligence official said. “The Special Ops guys are pissed off because Cheney’s office set up priorities for categories of targets, and now he’s getting impatient and applying pressure for results. But it takes a long time to get the right guys in place.”

So apparently, Dick’s got a list of people he wants assassinated before he leaves office–and he’s getting impatient.

I’m curious. One high-value Iranian-associated target, Imad Mugniyah, was assassinated in Lebanon just over a month before this Finding was signed, on February 12. And Ahmadinejad is intent on proving that the US tried to assassinate him when he was in Iraq in early March. Are these the (one successful, one attempted) assassinations that got the CIA worried enough to demand a Finding?

Update: Changing my "saw say" per Leen. 

Via TP, the Telegraph reports that Cheney’s in a snit over North Korea being taken off the Axis of Evil list.

Vice President Dick Cheney fought furiously to block efforts by Secretary of State Condoleezza Rice to strike a controversial US compromise deal with North Korea over the communist state’s nuclear programme, the Telegraph has learned.

"The exchanges between Cheney’s office and Rice’s people at State got very testy. But ultimately Condi had the President’s ear and persuaded him that his legacy would be stronger if they reached a deal with Pyongyang," said a Pentagon adviser who was briefed on the battle.

Mr Cheney’s office is believed to have played a key role in the release two months ago of documents and photographs linking North Korea to a suspected nuclear site in Syria that was bombed by Israeli jets last year.

[snip]

Mr Cheney was so angry about the decision to remove North Korea from the terrorism blacklist and lift some sanctions that he abruptly curtailed a meeting with visiting US foreign experts when asked about it in the White House last week, according to the New York Times "I’m not going to be the one to announce this decision. You need to address your interest in this to the State Department," he reportedly said before leaving the room.

I’m not surprised that Cheney’s pissed, mind you. One of the reasons he planted John Bolton at State, after all, was to scuttle any attempts at diplomacy with North Korea. Rather, I’m interested that Condi, not Dick, won this battle to influence the President. While Bush has allowed Condi some leeway in the Middle East, he has not backed Condi’s diplomacy over Dick’s belligerence on such a big issue thus far (though, you might consider the fact that we haven’t nuked Iran yet to be a sign of Condi’s influence).

It made me think of two details about Addington’s testimony the other day. First, when asked by Nadler at one point why the fuck the Barnacle Branch is represented in torture meetings, Addington noted that it was the practice of the Administration to include the Barnacle Branch in such meetings.

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.

The crappy liveblogger didn’t catch it, but after describing that the President’s practice was to include the Barnacle Branch in such meetings, he noted that the level of inclusion the President gives the Barnacle Branch changes at times. It’s the kind of off-hand comment Addington makes which tend to be pregnant with meaning (and also tend to be really surly). So I wondered whether Addington wasn’t publicly tweaking Bush about leaving the Barnacle Branch out of something.

And then there’s the puzzle of why Addington had to testify Thursday at all–why he wasn’t able to invoke privilege, but instead had to wave around the letter Harriet got, but he didn’t. It would be just like the petulant President to refuse to allow Addington to invoke privilege, when he had helped Miers and everyone else avoid testifying, if he was pissed about something. (Though note, thus far, Rove has not been allowed to invoke privilege on the Siegelman stuff).

At this point, these are just a bunch of data points. But boy, if Cheney and Bush were getting in a tiff, we might have some real fun. After all, Cheney made sure to record Bush’s involvement in "asking Libby to stick his neck in a meat-grinder" when he felt Bush was hanging Libby out to dry. And given the fact that Addington included the three pieces of evidence that tie George Bush personally to the nation’s torture policies, it seems like Cheney and Addington would be prepared to threaten Bush on some other counts, as well.

Steven Hatfill will no longer have to complain that he can’t get a job anymore because he was once the leading suspect to be the anthrax terrorist. The government just signed a $5.8 million settlement with him, which includes a cash payment now and then $150,000 annual payments for the next 20 years.

The Justice Department has agreed to pay $5.8 million to settle a lawsuit with former Army scientist Steven Hatfill, who was named as a person of interest in the 2001 anthrax attacks.

Hatfill claimed the Justice Department violated his privacy rights by speaking with reporters about the case.

Settlement documents were filed in federal court Friday. Both sides have agreed to the deal, according to the documents, and as soon as they are signed, the case will be dismissed.

Jeebus, between this and his federal monitoring contracts, former AG Ashcroft, who really really wanted you to believe the DOJ was closing in on a suspect in the still-unsolved anthrax case, is sure proving expensive for the US taxpayer, huh?

Meanwhile, Valerie Wilson, who had her career ruined by the Vice President and his lackey Scooter Libby, gets nothing in compensation.

Just to put some persepective on things, you know… 

Is here.

I’m going to run out to do battle with Sears again (they’ve got a new dehumidifer for me, and boy is it muggy here in the Midwest), so I won’t get a chance to analyze the full–and long–laundry list till I win (!) my next battle with Sears.

But just as a teaser, here’s how Conyers worded the demand for the Bush and Cheney interviews.

All documents from the office of former Special Counsel Patrick J. Fitzgerald described below for which the former Special Counsel has not determined that disclosure would be barred by Federal Rule of Criminal Procedure 6(e) governing grand jury secrecy:

a) Complete and unredacted versions of transcripts, reports, notes, and other documents relating to any interviews outside the presence of the grand jury of President George W. Bush.

b) Complete and unredacted versions of transcripts, reports, notes, and other documents relating to any interviews outside the presence of the grand jury of Vice President Richard Cheney.

c) Complete and unredacted versions of 302 interview reports relating to interviews of the following witnesses in the investigation: Karl Rove, Scooter Libby, Scott McClellan, Dan Bartlett, and Andrew Card.

I wonder if Bush and Cheney are rethinking their decision not to appear before the grand jury yet?

Remember how, in lieu of an opening statement, David Addington entered a bunch of "exhibits" into the record yesterday?

Well, it looks like Addington was trying to do a couple of things with his collection of exhibits. First, and least interesting, was to make sure he had three documents in which President Bush directly guided the nation’s torture policy ready at hand:

• February 7, 2002 Bush memo calling for detainees to be treated humanely–but without Geneva Convention rights
• September 6, 2006 press conference in which Bush admitted to water-boarding Al Qaeda detainees
• July 20, 2007 Bush Executive Order establishing guidelines for interrogations

More interesting, Addington was making sure that the correspondence between HJC and OVP regarding his own testimony was readily available. And I think he did that for two reasons. The correspondence includes a fairly narrow description of what the expected testimony would include:

• No representations about "the nature and scope of Presidential power in time of war" or US "policies regarding interrogation of persons in the custody of the nation’s intelligence services and armed forces"
• Only "personal knowledge of key historical facts" relating to interrogation and presidential power
• No details about Vice Presidential communications to the President
• No details "relating to the Senate functions of the Vice Presidency"
• The availability of applicable legal privileges (don’t miss the bit of snark where footnote 11 in the April 28 Conyers letter reminds, "I assume that counsel’s citation to the’state secrets’ privilege was an oversight as that is a judge-made litigation privilege that has no application before a Committee of Congress")

In other words, Addington wanted to be ready to show his hall pass and prove that certain questions–about Dick’s role in outing a CIA spy or Dick’s role in killing most of the salmon in the Northwest; or about whether Dick ever told Bush that the warrantless wiretapping program was illegal; or why Dick voted to drown the federal government in a bathtub on December 21, 2005–would be out of bounds.

In addition, Addington seems to have wanted evidence of a little squabble over the Fourth Barnacle Branch, such as this argument:

The Committee request seeks authoritative representation on the three subjects identified in the Committee request. The Chief of Staff to the Vice President is an employee of the Vice President, and not the President. With respect to Presidential power in wartime and related issues under U.S. and international law, the Attorney General or his designee would be the appropriate witness. Regarding interrogation of persons by U.S. intelligence agencies or the armed forces, the Director of National Intelligence or his designee and the Secretary of Defense or his designee, respectively, would be the appropriate witness. You may wish to invite the appropriate subordinates of the President in lieu of your invitation o the Chief of Staff to the Vice President.

[snip]

Congress lacks the constitutional power to regulate by a law what a Vice President communicates in the performance of the Vice President’s official duties, or what a Vice President recommends that a President communicate in the President’s official duties, or what a Vice President recommends that a President communicate in the President’s performance of official duties, and therefore those matters are not within the Committee’s power of inquiry.

[snip]

… questions of privilege may arise with respect to information sought by questions, such as respect to privileges protecting state secrets, attorney-client communications, deliberations, and communications among Presidents, Vice Presidents, and their advisers. For example, the amount of useful information a Committee of Congress would be likely to receive from a person who served as Counsel to the Vice President and then Chief of Staff to the Vice President concerning official duties is quite limited, given that a principal function of such a person is engaging in privileged communications, such as the giving of privileged advice. Also, inquiry by a House Committee concerning the Senate functions of the Vice President would not, in any event, be appropriate.

That is, Addington wanted to be ready to pick another fight about the Fourth Barnacle Branch of government, arguing that it somehow escapes all oversight even while having available all the privileges of the Executive Branch.

That Addington came prepared to be belligerent is no surprise. But reading these documents made me wonder why he testified in the first place. Which brings me to the last document included in his stash, Stephen Bradbury’s opinion arguing that Harriet Miers is immune from testifying before HJC. Presumably, Addington was preparing to wave around a document stating that Harriet didn’t have to testify because, "The President is head of one of the independent Branches of the federal Government." Presumably, Addington, if pressed, was going to argue that since the Vice President is head of the barnacle branch of the federal government his former counsel–Addington himself–didn’t have to testify either.

But how pathetic is that? Addington made it pretty clear yesterday that he didn’t want to testify … but he did. I sort of wonder whether Addington couldn’t get Stephen Bradbury–no opponent of the Barnacle Branch, really–to write him a letter excusing him from testifying. And so instead he brought Harriet’s letter, ready to argue that
the Barnacle Branch and an independent branch of government are just the same legally.

Come to think of it, maybe that’s why he brought all those torture documents with Bush’s signature on them–just in case the Barnacle Branch argument didn’t work, he could start threatening Bush.

As I understand it, Dodd and Feingold have signed off on a unanimous consent agreement to hold debate on three amendments (one of them immunity) on July 8, and then hold the vote then.

Here’s Feingold’s short statement on the delay.

I’m pleased we were able to delay a vote on FISA until after the July 4th holiday instead of having it jammed through. I hope that over the July 4th holiday, Senators will take a closer look at this deeply flawed legislation and understand how it threatens the civil liberties of the American people. It is possible to defend this country from terrorists while also protecting the rights and freedoms that define our nation.

And here’s Dodd’s statement on it.

I’m pleased that consideration of the FISA Amendments Act has been delayed until after the 4th of July recess. I urge my colleagues to take this time to listen to their constituents and consider the dangerous precedent that would be set by granting retroactive immunity to the telecommunications companies that may have engaged in President Bush’s illegal wiretapping program.

When and if FISA does come back to the Senate floor, I will offer my amendment to strip the retroactive immunity provision out of the bill. I implore my colleagues to support the rule of law and join me in voting against retroactive immunity.

So we’ve got 12 days to convince our Senators to stop channeling the barnacle and protect our Constitution.

Update: Here’s what’s going to happen on the 8th.

This evening Senator Reid filed cloture on H.R. 6304. Under the agreement at a time to be determined on Tuesday, July 8, the Senate will proceed to Calendar #827, H.R. 6304, FISA. The following amendments are the only amendments in order:

Dodd-Feingold-Leahy amendment to strike immunity;

Specter amendment which is relevant; (60-vote threshold); and

Bingaman amendment re: staying court cases against telecom companies (60-vote threshold).

Debate on the amendments is limited to the times listed below with the time equally divided and controlled:

Dodd- 2 hours, with Senator Leahy controlling 10 minutes;

Specter- 2 hours; and

Bingaman- 60 minutes.

Upon the use or yielding back of time, the Senate will proceed to vote on the amendments.

Prior to the cloture vote, there will be up to 60 minutes for debate equally divided and controlled between the Leaders or their designees, with Senator Leahy controlling 10 minutes. Senator Feingold will control an additional 30 minutes and Senator Dodd will control an additional 15 minutes. Upon the use or yielding back of time, the Senate will proceed to a vote on the motion to invoke cloture on the FISA bill. If cloture is invoked, all post-cloture debate time will be yielded back and the Senate will proceed to vote on passage of the bill.

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.