Michael Roston asks an intriguing question: did the NYT refuse to print Shenon’s story about Rove’s back-channel communications with Philip Zelikow?

While some questions have been raised about the accuracy of Shenon’s report, there’s another matter that we need to address: why didn’t Shenon’s story run in the New York Times itself? Why was it saved for his book instead of run above the fold in America’s paper of record?

The Commission’s report came out in the Summer of 2004, and you’d have to think that some of this story about executive director Philip Zelikow’s dilution of the report would have been in Shenon’s hands sooner. It’s hard to imagine that he wouldn’t tell his Times’ editors about this. White House interference in such an esteemed commission, trying to make sense of the 9/11 attacks and their aftermath as it did, would be a story of the year in whatever year it emerged. So why 2008 instead of 2004 or 2005 or 2006? Did it really take so long for any of the disenchanted commission staff to be willing to come forward?

Now, Shenon has been off the 9/11 Commission beat for some time, publishing only one story on it since 2004. So maybe there’s a very simple answer. But as Roston reminds us, as I’ve posted before, and as Shenon himself reminds us in the other big NYT story of the week, the NYT has a history of leaving some of its reporters’ best scoops off the pages of the Gray Lady. In his story reporting that James Risen has been subpoenaed for the source for a chapter in his book, State of War, Shenon reveals that the chapter in question is one not included in the stuff the NYT printed.

Mr. Risen’s lawyer, David N. Kelley, who was the United States attorney in Manhattan early in the Bush administration, said in an interview that the subpoena sought the source of information for a specific chapter of the book “State of War.”

The chapter asserted that the C.I.A. had unsuccessfully tried, beginning in the Clinton administration, to infiltrate Iran’s nuclear program. None of the material in that chapter appeared in The New York Times.

Now, before I talk about this material in detail, let me first respond to questions those who can’t tell the difference between Judy Miller and James Risen might raise. I support Risen’s fight against this subpoena. After all, unlike Miller, he doesn’t have a recent history of outing his sources–including Libby, he hasn’t recently exposed another CIA affiliate, and there is not a great deal of evidence that Risen is protecting his source to cover up a deliberate crime. Further, consider the irony: Risen would most likely not be protected under the proposed Federal shield law, as there is an exception for National Security cases that (I suspect) will make it easier to pursue journalists for this kind of leak; whereas Judy might be protected.

Also, two interesting details. This subpoena came out of ED VA, not DC. So it’s almost certainly a CIA thing, and probably only secondarily out of DOJ. And note that Dave Kelley, Risen’s lawyer, resides at the intersection of Pat Fitzgerald (with whom Kelley fought terrorism in SDNY) and Floyd Abrams (his partner). So I imagine when Kelley says,

Jim has adhered to the highest traditions of journalism. He is the highest caliber of reporter that you can find, and he will keep his commitment to the confidentiality of his sources.

Those may be loaded words.

So now look at what the CIA/DOJ is likely after. The chapter in question has details about the US decision to support Iran’s MEK even though it’s a terrorist organization, Iranian attempts to help us on the GWOT (the same stuff that Flynt Leverett got censored on), and a description of a female officer inadvertently revealing all of CIA’s agents in Iraq. While any of these might be the sensitive information in question, and the exposure of CIA’s Iranian agents involved a double agent, by far the most likely item of interest is MERLIN, the operation in which the CIA used a Russian defector to provide Iran with nuclear blueprints. The Russian took one look at the blueprints and recognized they were faulty, so on his own initiative he included a note hinting the Iranians ought to consult experts before using the blueprint.

The operation, codenamed Merlin and approved by the Clinton administration, was intended to send Iranian scientists down a technological dead end, according to this account. They would spend years building a warhead which would fail to detonate. Instead, Risen writes, the operation may have helped Iran to "accelerate its weapons development" by extracting important information from the blueprints and ignoring the flaws.

This part of the chapter directly deals with sources and methods and the kinds of operations that, once exposed I would imagine, really hinder the CIA’s ability to pull the trick a second time (though ever since NK’s "nukes" went off in a fizzle I’ve wondered if they got dealt the crummy blueprint, too). So for the moment, let’s assume this is what they CIA/ED VA is looking for.

Risen focuses on the roles of three people: the Russian, about whom he says,

It is not known whether the Russian ever communicated again with the Iranians, or whether they tried to contact him.

The Russian’s CIA case officer, who,

… grew so concerned about whether he had aided the Iranian nuclear program that he went to the Senate Select Committee on Intelligence to tell congressional investigators about the problems with the program. But no action was ever taken.

And a "senior CIA officer" who sent the Russian out on the operation.

Risen also describes the roles of two agencies: how the NSA, which had broken the codes of the Ministry of Intelligence and Security, intercepted news that an Iranian had changed his schedule and flown home to Tehran. And how the "Z Division" of Los Alamos inserted the flaw into the blueprints; the flaw was supposed to be indetectible, but didn’t turn out that way. Given the interest focused on both the NSA (for its wiretapping programs) and Los Alamos (for its crummy security), either might be of interest.

Finally, Risen cites from "several former CIA officials."

So presumably, the grand jury investigation may interested in any of those sources.

All of which brings me back to how I started this post: this was not published in the NYT. The NYT spokeswoman gets very terse when asked about this subpoena:

Ms. Mathis would not say why the material about the C.I.A. program involving Iran appeared in Mr. Risen’s book but not in pages of The Times. “We don’t discuss matters not published in The Times,” she said.

Which makes me wonder, all the more, why this didn’t appear in the NYT. Is this another program that BushCo, after being alerted to the story, asked the NYT to spike (though I should reiterate–MERLIN was dreamt up under Clinton). Or did the NYT doubt the veracity of the story for some reason (though, as I’ve pointed out, Risen appears to have a number of sources for it)?

This article, from the man whose warnings about 9/11 Bush refused to believe, ought to be sent to every Senator.

For this president, fear is an easier political tactic than compromise. With FISA, he is attempting to rattle Congress into hastily expanding his own executive powers at the expense of civil liberties and constitutional protections.

I spent most of my career in government fighting to protect this country in order to defend these very rights. And I know every member of Congress – whether Democrat or Republican – holds public office in the same pursuit.

That is why in 2001, I presented this president with a comprehensive analysis regarding the threat from al-Qaeda. It was obvious to me then – and remains a fateful reality now – that this enemy sought to attack our country. Then, the president ignored the warnings and played down the threats. Ironically, it is the fear from these extremely real threats that the president today uses as a wedge in a vast and partisan political game. This is – and has been – a very reckless way to pursue the very ominous dangers our country faces. And once again, during the current debate over FISA, he continues to place political objectives above the practical steps needed to defeat this threat.

In these still treacherous times, we can’t afford to have a president who leads by manipulating emotions with fear, flaunting the law, or abusing the very inalienable rights endowed to us by the Constitution. Though 9/11 changed the prism through which we view surveillance and intelligence, it did not in any way change the effectiveness of FISA to allow us to track and monitor our enemies. FISA has and still works as the most valuable mechanism for monitoring our enemies.

In order to defeat the violent Islamist extremists who do not believe in human rights, we need not give up the civil liberties, constitutional rights and protections that generations of Americans fought to achieve. We do not need to create Big Brother. With the administration’s attempts to erode FISA’s legal standing as the exclusive means by which our government can conduct electronic surveillance of U.S. persons on U.S. soil, this is unfortunately the path the president is taking us down.

Click through for the rest–and then send copies to your Senators.

You think maybe Clarke is getting fed up with this false debate?

Apparently, Reid has brokered a Unanimous Consent agreement that everyone, from Feingold and Dodd to Jeff "Mutual Defense" Sessions, have bought off on.

cboldt’s description is, not surprisingly, the best description of what we’re looking at. What the UC sets up is the following:

• Four uncontroversial amendments that will pass with the UC. These cover getting the FISC rulings for the past five years, emphasizing prohibitions on domestic targeting, and eliminating a 7-day deadline.
• Two Bond amendments that will receive very little debate (20 minutes) and will pass–and I do believe they will pass–with a 50 vote margin. One of these permits wiretapping those proliferating in WMDs without a warrant. From CQ:

One by the vice-chairman of the Intelligence panel, Christopher S. Bond, R-Mo., would change definitions in the law to allow surveillance without a warrant in cases that involve the proliferation of weapons of mass destruction. Its adoption would require a simple majority vote.

• Three Feingold amendments that shouldn’t be controversial–basically two just raising the bar on whether nor not the government is really after foreign intelligence or not, and another allowing FISC to require the government to stop wiretapping if their application sucks (though via a Bond amendment, they still get to tap for 90 days). I assume they’re accorded a 50 vote margin because the Republicans don’t find them controversial.
• Two of the three immunity provisions–both the one striking immunity altogether, and the one substituting the government for the telecoms. I assume they’ve been subject to a 50 vote margin because the Republicans know they won’t win 50 votes. In other words, our chances of using the courts to learn what Bush did will almost certainly lose.
• One Feingold/Whitehouse amendment on sequestration–probably a better guarantee on minimization than is in the bill. I’m guessing the Republicans have wagered this won’t get the votes to pass, since they’ve agreed to a 50 vote margin.
• Two bills which will almost certainly gain majority support, but may not get the 60 votes that will be required to pass them. These are Whitehouse’s amendment requiring the FISC to determine whether the government is meeting the minimization procedures they say they’re meeting, and DiFi’s amendment making FISA the exclusive means of foreign surveillance. It appears that the Republicans, recognizing that these should be uncontroversial, but are probably poison pills that will draw a Bush veto, just raised the bar with these to avoid having them pass and having Bush veto the whole mess.
• Two more amendments that probably fall in the same category: Cardin’s amendment making the sunset on this 4 years, and DiFi’s amendment allowing FISC to review the AG’s declaration that the telecoms acted in good faith before they get their immunity. These may not be poison pills, like exclusivity and minimization, but they may well get majority, but not super-majority, support.

So what should we do? IMO, there are three votes that we may be able to affect in the limited time we’ve got:

Get the votes for exclusivity
While it seems innocuous, this amendment is fundamentally a fight for basic separation of powers. If there are any real limits put on wiretapping, Bush will be inclined to go his own route, declare that under Article II he can do whatever he wants, and declare his ability to wiretap outside of FISA. This amendment basically says, "George Bush, this is the law, and you have to follow it." Many Republicans see this amendment as an assault on their little unitary executive theory. So it needs to be a priority.

The amendment already has three Republican co-sponsors (Hagel, Snowe, and Specter), plus Jello Jay. We need to keep the Dem turncoats (Ben Nelson, Mary Landrieu, Mark Pryor, in particular), get Lieberman, and get several more Republicans to make sure this passes. Some Republicans to focus on are Sununu, Voinovich, Smith, Coleman, Dole, and Collins.

Pressure for minimization
I’m not sure yet what the 50-vote sequestration amendment is, but Whitehouse’s minimization amendment very simply gives a court the ability to make sure the government does what they say they’re doing. This is the amendment that will prevent them from saving your data until such time as they decide that they want to use it–and the amendment that will prevent them from spying on journalists because they speak to people associated with terrorism. It is the amendment that would do the most to prevent the government from abusing its ability to wiretap going forward.

You’d want to call the same people as you would for the DiFi exclusivity amendment, as well as anyone with a libertarian streak. Republicans always support minimization in theory (because it’s the only thing reining big government), we need to press them to do it in fact.

Lobby for immunity
I am absolutely pessimistic that we’ll be able to reject immunity outright. We’re almost certainly at least 5 votes short of doing that, and probably about 5 votes short of passing DiFi’s much more conservative FISC option. But if we do our job well enough on immunity proper, than we might generate more votes in favor of DiFi’s amendment, and we might pull votes off the vote for the overall bill. 

Plus, we need to make this a costly vote for the authoritarians. This is about whether the rule of law takes precedence over covering up for Dick Cheney. That line might be useful in defeating people like John McCain and Norm Coleman come November.

Well, Championship Sunday was a bit of a letdown. No one claimed the much prized Hubcap, the Pack packed it in, LT was MIA, and nobody noticed that the asterisk was still in the title. There sure has been a lot that has happened since, most of it having to do with the most famous foot in the world. That foot would, of course, belong to Brady, Sir Tom. Uh oh, this just in, hot off the wire (Oh my, this is really rich, heh heh):

BREAKING NEWS: HAGGIS DEMANDS SENATE INQUIRY INTO PATRIOTS SPYGATE SCANDAL; COMPARES MATTER TO TORTURE TAPES DESTRUCTION!

The ranking Republican on the Senate Judiciary Committee wants N.F.L. Commissioner Roger Goodell to explain why the league destroyed evidence related to spying by the New England Patriots.
…
In a telephone interview Thursday morning, Senator Arlen Specter, Republican of Pennsylvania and ranking member of the committee, said that Goodell would eventually be called before the committee to address two issues: the league’s antitrust exemption in relation to its television contract and the destruction of the tapes that revealed spying by the Patriots.

“That requires an explanation,” Specter said. “The N.F.L. has a very preferred status in our country with their antitrust exemption. The American people are entitled to be sure about the integrity of the game. It’s analogous to the C.I.A. destruction of tapes. Or any time you have records destroyed.”
…
Mr. Specter first wrote Mr. Goodell about the tapes on Nov. 15. … The league responded to Mr. Specter late Thursday afternoon.
…
“It’s premature to say whom we’re going to call or when. It starts with the commissioner. He had the tapes, and he made the decision as to what the punishment could be. He made the decision to destroy them.”

Mr. Specter said it had not been determined when Mr. Goodell would be called before the committee.

Jeebus, I don’t even know what to say. I kind of thought we had seen governmental actors functioning at the outer boundaries of surreality yesterday with Mukasey, but I should have known better than to count out the Scottish Haggis; and boy did he ever come through. I guess, before moving on, we should note that the Haggis is a rabid Philadelphia Iggles fan and penned his first letter right before said Iggles were to play the Asterisks Patriots.

Okay, back to your regular programming. Scottsdale/Phoenix is currently the happening party central place to be in the world right now. Hollywood and New York must be flat out empty; because every celebrity you can imagine is running around here. Every bar, restaurant, nightclub and, ahem, gentlemen’s club is standing room only with long lines outside. Unless I have lost my ability to spot them, we also apparently are having a top shelf hooker convention too (not that there is anything wrong with that). Its not just the Super Bowl either, the Phoenix Open started today. For those of you not familiar with the Phoenix Open, it is, without any question, and by a large margin, the wildest and craziest golf tournament on the PGA Tour. It is also the largest, drawing over 500,000 drunken, amorous attendees every year. Not to mention Obama was here Wednesday night and Big Dog Clinton here Thursday night at ASU. It is absolutely nuts out and about. Every other car on the freaking road is a limo or town car chock full of beautiful people.

We had the Super Bowl here before, and truth be told, the actual game is almost secondary to all the hoopla going on leading up to it. Super Bowl XXX. I went to that one, and here is what I remember: My friend and I had pretty good seats, but were right behind some child TeeVee star named Joey Lawrence; I had never heard of him, but he sure did attract a lot of attention from girls too young to be of any use to my friend and I. Very annoying. Oh yeah, I think Diana Ross landed on the field in a heeliocoptah to do the halftime show, and the ‘Boys beat the Stillers, but I didn’t actually see much of that. Here’s whats up this year.

THE PATRIOTS* – The first injury report of Super Bowl week came out Wednesday, and Tom Brady was on it — for his shoulder. No mention was made of the world famous ankle sprain that set off paparazzi pandemonium when Brady was spotted in the boot. Brady practiced fully both Wednesday and Thursday, and his ankle was not heavily taped, as it supposedly had been Monday. Brady has been listed with a shoulder injury since the opener of the 2003 season, which is Coach Bill Belichick’s tweak (Really? He would do such a thing? Shocking!) at the NFL injury reporting system he abhors. Receiver Jabar Gaffney was limited in practice Wednesday, though, with what is apparently a legitimate shoulder injury. Roidney Harrison has a slight thigh twitch, but reportedly is juiced and ready. Thats about it. The 18-0 killing machine that is the New England Patriots is healthy, rested and ready to rock and roll.

THE GIANTS – I can’t tell you how bad it burns to not be talking about the Packers here (Phred knows). There has been a little Plaxico Duress caused by his – gasp – trash talking; and Michael Strahan has been a walking talking sideshow, but a darned amiable and funny one. You gotta love the guy. Jeremy Shockey is out; and as far as I know, he isn’t even here. Plaxico now has a swollen left knee in addition to the ankle injury he had that kept him out of in the conference championship game where he caught 11 passes for a gazillion yards. He’ll be fine. Cornerback Aaron Ross had some kind of undisclosed bug, but will be fine for the game.

THE BATTLEGROUND – Super Bowl XLII is being played in University of Phoenix Stadium, located in a suburb known as Glendale, on the west side of Phoenix. From the outside, the thing looks like the Jupiter 2 spaceship from Lost In Space. Seriously. Inside, it is almost exclusively granite gray and cardinal red. I am told that some local football team, semi-pro I believe, plays there. I can’t personally attest to that, but it was a fine place to see the Rolling Stones on their last tour; that I can vouch for (Keith makes Dick Cheney look healthy, but he sure hasn’t lost much of his edge). In fairness, despite the garish color scheme, it is a pretty cool joint. The link above has a lot of neat links and information about the stadium, and is worth checking out. The weather forecast is for sunshine and partly cloudy Friday and Saturday, with clouds and possible rain by Sunday night. No worries mates, the Jupiter 2 University of Phoenix Stadium has a retractable roof and is extremely well climate controlled. There will be none of those turf issues like at Heinz Field or the frozen tundra of Lambeau. You see, they have the whole field on some kind of fancy dan plate on wheels and literally roll it, in one piece, into and out of the stadium to maximize the quality and maintenance of the turf. It will be immaculate and the logos are painted and ready to go.

Well, thats it. Oh yeah, I was at a gig with Paris Hilton and Pam Anderson earlier today. Neither seemed particularly impressed that I was bmaz from Emptywheel. My wife was disappointed; she was hoping they would take me off her hands. Look for further updates either here or in the comments. This is, sadly, our last dance for the season; so don’t be like Nancy Pelosi, put it all on the table, let it all hang out, enjoy and hoop it up. Beer thirty starts now and runs until the fat lady is done singing. Show Time Baby! Crack open a cool one and start trashing up the joint!

Update from emptywheel (and thanks to bmaz for all the great trash): ESPN has asked a bunch of famous people for their picks. Most of them, being pop culture icons, are completely obscure to me.  But my favorites are:

GEN. MIKE HAYDEN
Director of the CIA Giants, 28-24. The spread favors the Pats, but careful intelligence work looks beyond the obvious. The Giants are hot now. Three playoff wins on the road (like the Steelers before Super Bowl XL). Regular season finale shows they match up well against the Pats. Besides, nobody’s perfect!

SERENA WILLIAMS
Tennis player/Venus’ little sister Giants, because of Eli Manning being the younger brother.

BILL O’REILLY
FOX TV host Giants, 31-30. Destiny.
[In case there was any doubt about which was the Republican team] 

SEN. CHUCK SCHUMER
D-NY I’ve been a Giants fan since I was five years old. I can remember watching Charlie Connerly, Sam Huff, and Alex Webster. Back then, the two most important Roosevelts to me were Brown and Grier.

Update II from bmaz Saturday morning: This live report is coming in from EW’s Senior Snarlgate Correspondent, bmaz, on location near the ESPN command center at the Southbridge Waterfront in Old Town Scottsdale Arizona. Reports are flying fast and furious about illegal signal stealing by the Patriots in previous Super Bowls; most notably Super Bowl XXXVI between the Pats and Rams, and Super Bowl XXXIX between the Pats and Eagles. There now appears to be corroboration, at least as to SB-XXXVI, where the Patriot’s former video coordinator, Matt Walsh, reportedly has evidence in the form of inculpatory tapes on the Rams and is willing to testify, but wants a subpoena because he is concerned about retaliation from the Patriots and rabid fans. This matter is getting serious, is not going away, and is really starting to affect and tarnish the credibility of the Patriots and what they have accomplished according to many fans, especially fans of the New York Giants and, of course, the Philadelphia Eagles’ fans like Snarlen Spectre.

There are two scandalously hot rumors that have surfaced just this morning and are burning through the whole scene here in Old Town Scottsdale as I type this report. The first involves the Patriots using secret Russian spy/surveillance technology acquired by the team in a surreptitious deal with Vladimir Putin that was negotiated by Rupert Murdoch. The second involves a collaboration between Senators Arlen Spectre and Kitty Bond to instigate a formal investigatory commission, similar to baseball’s Mitchell commission, to investigate the exploding SnarlSpyGate controversy and that will be headed up by respected former Senator Ricky Santorum. It is unclear, at the time of this posting, how strongly these shocking and destructive rumors will take hold and spread through the sports and traditional media that the scene here is absolutely saturated with.

Thanks to Faiz, who watches Rush, so I don’t have to.

Once again, the Administration has trotted out Dick to lobby for immunity for himself telecom immunity. All the things I said last week about the inappropriateness of sending the guy who would most directly benefit from immunity out to lobby for it still hold.

So someone decided that they would get the person least willing to cooperate with Democrats, the person who single-handedly could eliminate the legal problem they allege the telecoms have, and the person who stands to benefit most from an immunity provision for telecoms, to head out to pressure Congress? And they thought this would work to persuade Democrats to put aside all the troubling legal issues to grant immunity?

But I’m interested in slight changes to Dick’s spiel over the last eight days of legislative wrangling. As an aside, you’d think that some of these differences might stem from the fact that your average Heritage Foundation member has about four times the IQ of your average Rush listener, but Dick’s statements to Rush are much more measured.

One thing I hadn’t noticed in Dick’s Heritage Foundation speech is that it already included (and was perhaps the roll-out of) the Orwellian "liability protection" in lieu of the more accurate "retroactive immunity."

Actions by Congress sometimes have unexpected consequences. But a failure to enact a permanent FISA update with liability protections would have predictable and serious consequences.

It must have polled well, because Dick is developing into an elaborate metaphor including a dig at trial lawyers.

One of the main things we need in there, for example, is retroactive liability protection for the companies that have worked with us and helped us prevent further attacks against the United States —

[snip]

RUSH: The opposition in the Senate is primarily from Democrats, correct?

CHENEY: Correct. People who don’t want to — I guess want to leave open the possibility that the trial lawyers can go after a big company that may have helped. [my emphasis]

I wonder how the ACLU and EFF feel about being labeled trial lawyers?

Now perhaps it’s because Rush asked the question–whether the opposition was "primarily from Democrats"–but Dick’s pitch this time around has none of the appeal to bipartisanship that his Heritage Foundation speech did.

This cause is bigger than the quarrels of party and the agendas of politicians. And if we in Washington, all of us, can only see our way clear to work together, then the outcome should not be in doubt.

That kind of makes me happy–because it suggests that BushCo recognizes that they’re going to have to do more than rely on Jello Jay to roll over for them to get immunity passed.

As Faiz notes, Dick even offers a ridiculous claim that no one’s civil liberties were violated.

We haven’t violated anybody’s civil liberties.

As with Dick’s adoption of a much more partisan stance, I’m pretty happy to see Dick explicitly denying that they violated civil liberties. That suggests BushCo believes that some of Rush’s listeners do believe this is about civil liberties. One of the things Russ Feingold noted the other day is that even his more conservative Wisconsin constituents see this clear as a matter of civil liberties (which was the point of Feingold’s comments on the YouTube clip). It seems that the appeal to civil liberties is beginning to make some progress.

I also find it instructive that in the Heritage Foundation speech, Dick described precisely how the telecoms assisted the government.

Because they are believed to have aided the U.S. government in the effort to intercept international communications of al Qaeda-related individuals.

With Rush, Dick for the most part avoids mentioning what the telecoms did, instead simply saying they "helped."

… the companies that have worked with us and helped us prevent further attacks against the United States —

[snip]

a big company that may have helped. Those companies helped specifically at our request, and they’ve done yeoman duty for the country, [my emphasis]

Aren’t those big telecoms such nice little helpers?!?!?! (Insert remark about hillbilly heroin here.)

In short, Dick seems to have replaced the fear-mongering he did at the Heritage Foundation for a partisan appeal. And he has very very carefully tried to hide anything that might scare a civil libertarian.

All the more reason we ought to be hammering a civil libertarian line for the next two weeks.

One more thing. I don’t know if this is a slip or not, but look at the way Dick describes the program to Rush (and this is as detailed as he gets):

It’s just absolutely essential to know who in the United States is talking to Al-Qaeda.

Of course, that’s not what the Administration has claimed the program is for–identifying those in the US who might talk to Al Qaeda. Remember, it’s supposed to be for figuring out what terrorists say among themselves. Dick’s description of the purpose of the program seems to violate the standards for minimization that require non-relevant conversations with US persons to be ignored and destroyed. But since we know they’re wiretapping Pulitzer Prize winning journalists (in addition to Lawrence Wright, Christiane Amanpour has reportedly been tapped), and allegedly tapping lawyers representing Gitmo detainees, I guess this shouldn’t surprise us.

As I said, Dick seems to be trying hard not to scare the civil libertarians. All the more reason to point out that Dick has admitted that BushCo has forgone traditional standards of minimization and simply helped themselves to the conversations of anyone they think is talking to Al Qaeda.

In two striking exchanges yesterday, Sheldon Whitehouse tried to get AG Mukasey to explain why DOJ was not conducting an investigation into the activities portrayed on the torture tapes. Whitehouse wondered whether DOJ had refrained from investigating the underlying conduct because those who engaged in the torture had authorization to use it. That amounts to the Nuremberg Defense, Whitehouse insisted correctly. In response, Mukasey suggested there simply was no reason to do an investigation. DOJ had never seen any facts, Mukasey claimed, that would warrant an investigation.

Whitehouse: Process question. In terms of advisory responsibilities, not going to investigate. You’ve disclosed waterboarding not part of CIA interrogation regime. Still leaves open torture statute whether there are concrete facts or circumstances, given that that evaporates, whatever it is it is. I’m trying to determine if that is taking place (the analysis), if you’re waiting for Durham’s investigation to look more into what happened. Or if there has been a policy determination made, that bc there has been a claim of authority, there will be no investigation. What is the process for coming to this decision.

MM: Facts come to the attention to the Department that warrant investigation.

But that’s not true, of course. We know DOJ received the results of the IG’s report on the CIA’s interrogation techniques.

OIG notified DOJ and other relevant oversight authorities of the review’s findings.

And we know that that report stated that the conduct depicted on the tapes amounted to cruel and inhuman treatment.

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

[snip]

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

[snip]

In his report, Mr. Helgerson also raised concern about whether the use of the techniques could expose agency officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to C.I.A. interrogations because they take place overseas on people who are not citizens of the United States.

This is a report from the CIA itself, asserting that the interrogation methods depicted on the tapes may well violate an international agreement to which the US is party. The report explains that those who conducted the torture may well face legal liability.

But the Attorney General claims DOJ has never received any facts that warrant an investigation.

And did he do it to protect Dick?

I admit. I can’t help myself. By some strange force, I found myself back at Prettyman this week, wading through the million-dollar CIPA battle that Libby waged in his graymail attempts (for the record, Fitz must say "graymail" about 20 times by the second day of these hearings). And in a December 29, 2005 defense filing (I haven’t scanned it yet, either because I was liveblogging all day or I’m just trying to torture Jeff) asking for further information to be declassified in response to the Jencks information they got, I found this footnote clarifying the sentence, "According to [Libby’s CIA briefer, Craig] Schmall, ‘Since I had no knowledge of the ambassador or his wife, I presume Libby gave me [the names Joe Wilson and Valerie Wilson].’"

Eric Edelman, whom the government recently decided not to call as a witness, contradicts Mr. Schmall on this point. According to Mr. Edelman, sometime before June 6, 2003 (when Mr. Edelman left the OVP), Mr. Schmall "identified the former envoy as Joseph Wilson" and "advised Edelman that the CIA’s Counterproliferation Division sent Wilson to Niger to conduct the inquiry, not the OVP." 6/23/04 Edelman FBI 302 at 2. According to Mr. Edelman, Mr. Schmall showed him internal CIA emails about the Wilson trip. 8/6/04 Edelman Grand Jury T. at 16. In addition, Mr. Schmall may have told Mr. Edelman during this period that Ambassador Wilson’s mission to Africa was suggested by his wife. 6/23/04 Edelman FBI 302 at 2; see also 7/7/04 Edelman FBI 302 at 2-3 (same); 8/6/04 Edelman Grand Jury T at 15-19 (same). Apart from the fact that Mr. Edelman contradicts Schmall on a significant point, the government may have elected not to call him because he makes clear in his grand jury testimony that he does not recall any mention of Ms. Wilson in his discussion with Mr. Libby following the June 19 New Republic article (see Indictment at 5-6 12-13) , and he never discussed with Mr. Libby the nature of the "complications" to which Mr. Libby referred. 8/6/04 Edelman Grand Jury T. at 29-30.

Now, as to the substance of Edelman’s denial that he was talking about Plame when he advocated leaking "information" to rebut Joe Wilson, here’s what the indictment said. It clearly relies on a witness or some other evidence that is not named Scooter Libby.

Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy and discussed the article. That official asked LIBBY whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.

And in his grand jury testimony, Edelman told a story that did not directly contradict the substance of testimony apparently given about that conversation, but conveniently denies everything for which there was no apparent witness (that is, if you thought Edelman were trustworthy, you might just think Edelman dropped the issue after the witness stopped following it).

That’s interesting. But I’m much more interested in this part of the footnote.

According to Mr. Edelman, Mr. Schmall showed him internal CIA emails about the Wilson trip.

For those who’ve forgotten, I wrote a long post in July speculating that the source of Dick’s knowledge that Plame worked at CPD (and that she had some role in his trip) was the emails that Valerie sent relating to Joe’s trip.

This is the post I’ve been promising for weeks, in which I will speculate wildly as to the source of Cheney’s knowledge about Plame’s role at CPD and in her husband’s trip. Here’s the argument, in brief:

• Cheney learns during the week of June 9 that "Defense and State expressed a strong interest in the Niger intelligence"
• At a time when Cheney presumably already knew that information, he tried to get CIA to repeat it in such a way that it could be published
• This suggests he could not use his original source for that information (either because the source refused to publish that information or because he wanted to hide the source itself)
• One possible explanation (this is speculation, mind you) is that Cheney saw Valerie Wilson’s emails leading up to Wilson’s trip to Niger–which would have informed him of key information–and would have made it clear that Valerie’s identity was protected

My general point was that the only known document that has some of the information that Dick communicated to Libby in Libby’s purportedly June 12 note (pictured above)–particularly the interest of DOD and State in the intelligence–are two emails that Valerie sent in support of Joe’s trip.

Valerie Wilson’s memo to Niger is one of two known documents where the DOD/State information appears

Understand something about the DOD/State talking point: it comes from CPD. The SSCI report reports CPD officials repeating that detail:

Officials from the CIA’s DO Counterproliferation Division (CPD) told Committee staff that in response to questions from the Vice President’s Office and the Departments of State and Defense on the alleged Iraq-Niger uranium deal, CPD officials discussed ways to obtain additional information. [my emphasis]

Grenier also describes learning that information from someone in CPD. He first calls "Kevin," the Deputy Chief of the unit working on Iraqi WMD (this may or may not be the JTFI). Kevin doesn’t call back–someone Grenier didn’t know called back, but still within CPD. And that person tells Grenier (who tells Libby) of the interest on the part of DOD/State.

Now it’s possible that the people in CPD were just working from memory, from having been intimately involved. But if they learned this information from documents, there are two known documents within CPD that mention the interest of State and DOD. There is the report, written by the reports officer, forwarded to Valerie and others, about the rising interest in the Niger intelligence. From the latest SSCI:

The report was forwarded in an e-mail from a CIA reports officer to Mrs. Wilson and a number of other recipients which said that the DO had received a number of calls from the Intelligence Community about the Iraq-Niger uranium report, citing the Department of State’s Bureau of Intelligence and Research (INR), the Defense Intelligence Agency (DIA), and SOCOM, specifically. [my emphasis]

[Note, the report by the minority of the minority goes on to claim that CPD didn’t tell SSCI about DOD/State’s interest … I guess they didn’t read their own report.]

But this report doesn’t use precisely the terms used in Cheney’s talking point–State and DOD. Rather, it is more specific, mentioning INR and DIA and SOCOM.

However, Valerie Wilson’s cable, sent to Niger to get concurrence for Wilson’s trip, does include precisely that language.

Mrs. Wilson sent a cable that was sent overseas requesting concurrence with Ambassador Wilson’s travel to Niger. … the cable drafted by Mrs. Wilson was sent … on February 13, … Interestingly, the cable states that "both State and DOD have requested additional clarification and indeed, the Vice President’s office just asked for background information. [my emphasis]

In other words, if Cheney’s talking point came from a document (and not someone’s direct memory), then it may well have come from this cable.

Now cable is often (and I’ve confirmed that is the case here) spook-speak for email. That is, one possible source for Dick Cheney’s talking points he gives to Libby (and subsequently tries to get CIA to cough up publicly via other channels) is an "internal CIA email about Wilson’s trip," one written by Valerie Wilson. An email, I might add, that makes some precautions to prevent revealing Valerie’s real identity.

Which is why I find it mighty interesting that, in the same grand jury appearance where Eric Edelman gives testimony that appears to dispute the sense of with one other witness or piece of evidence, as well as the testimony that (this filing makes clear) contradicts the testimony of Craig Schmall, he also claims (in yet more testimony that contradicts the testimony of Craig Schmall) that Schmall showed him internal CIA emails from which he learned certain things about the trip.

In short, two witnesses challenge Edelman’s account, so we should be mighty dubious of his testimony.

What do I think happened? If Edelman lied about Schmall showing him emails–and if he claimed those emails were the ones written by Plame–then what does it mean for the Plame leak?

In my previous post on this, I suggested that one likely motive for Dick’s and Libby’s attempts to get CIA to cough of information that Dick already knew was that Dick reviewed those emails via an illicit source and couldn’t just leak it wildly. [It probably pays, at this point, to remind that this is all wild-arsed speculation.]

Reasons why Cheney needed a new source

There are a number of reasons why Cheney might need a new source to spread the DOD/State talking point, including:

• McLaughlin refused to state the talking point on the record
• Cheney’s original source wasn’t someone in the CIA
• Cheney’s original information came from a source that made it clear Plame was covert

These are not necessarily exclusive: after all, McLaughlin may have refused to state the talking point on the record because the only source for it was classified and/or made it clear that Plame’s identity was classified. Or Cheney’s original source–someone assigned outside of CIA like David Shedd or Fred Fleitz, perhaps–may have had learned the information via a source that made it clear that Plame was covert.

Now, if Cheney really saw those emails, and if Cheney needed to hide that fact, and if Edelman was as dutifully protecting Cheney as Libby ultimately was, then you might imagine that Edelman might lie about having seen those documents, to hide the fact that Cheney was the one who saw them, by some illicit means. I mean, WTF, it appears that Edelman may have been lying in everything else he said to the grand jury, why not lie to protect Cheney (well, and those other lies, if they were lies, sort of protected Cheney, too).

In other words, I’m wondering if Edelman lied to invent an alternate means for OVP to know the content of Valerie’s emails, one that conveniently implicated CIA, to protect Dick.

It’s all wild-arsed speculation, mind you. But it might be worth noting Edelman’s current position: Undersecretary of Defense for Policy. One might call that post the "Dougie Feith Propaganda Office," in honor of Edelman’s predecessor at the position. Edelman was one of the deeply conflicted people who submitted a leniency letter on behalf of Libby. And it appears that he may have been the first one to suggest leaking Plame’s identity, not many days before Libby did so to Judy Miller.

There’s reason to believe that Edelman might lie about this subject.

By this point, it should surprise no one that Karl Rove does a lot of dirty business using his phone and blackberry. Apparently, that extends to softening the reports of the 9/11 Commission: a Philip Shenon book coming out in February will reveal that Rove carried on back-channel discussions with Philip Zelikow, the Commission’s Executive Director (h/t Steven Aftergood), for some time after the Commission told him to stop speaking with Senior Administration Officials.

In a revelation bound to cast a pall over the 9/11 Commission, Philip Shenon will report in a forthcoming book that the panel’s executive director, Philip Zelikow, engaged in “surreptitious” communications with presidential adviser Karl Rove and other Bush administration officials during the commission’s 20-month investigation into the 9/11 attacks.

[snip]

Karen Heitkotter, the commission’s executive secretary, was taken aback on June 23, 2003 when she answered the telephone for Zelikow at 4:40 PM and heard a voice intone, “This is Karl Rove. I’m looking for Philip.” Heitkotter knew that Zelikow had promised the commissioners he would cut off all contact with senior officials in the Bush administration. Nonetheless, she gave Zelikow’s cell phone number to Rove. The next day there was another call from Rove at 11:35 AM.

[snip]

In late 2003, around the time his involuntary recusal was imposed, Zelikow called executive secretary Karen Heitkotter into his office and ordered her to stop creating records of his incoming telephone calls. Concerned that the order was improper, a nervous Heitkotter soon told general counsel Marcus. He advised her to ignore Zelikow’s order and continue to keep a log of his telephone calls, insofar as she knew about them.

Although Shenon could not obtain from the GAO an unredacted record of Zelikow’s cell phone use—and Zelikow used his cell phone for most of his outgoing calls—the Times reporter was able to establish that Zelikow made numerous calls to “456” numbers in the 202 area code, which is the exclusive prefix of the White House. [my empahsis]

Click through for a description of how Zelikow was able to prevent the Commission from describing Condi as incompetent (I know–we all know it to be true, but it’d have been nice to get it in writing).

I’m particularly interested in the timing of this. Apparently, Zelikow’s executive secretary figured out Zelikow had ongoing discussions with Rove on June 23, just when the whole Plame leak was brewing. As I pointed out last week, the White House was contemplating having to turn over emails to the Commission on the day Libby would do so in some depth on July 8; did they learn they would have to turn over emails through formal–or back-channel–means? And then Zelikow was trying to cover up the evidence of his ongoing communications with the 9/11 Commission at the same time that a bunch of emails started not showing up in the CIA Leak investigation.

Don’t get me wrong–I highly doubt there is any connection between the two investigations. But I do think it curious that Karl Rove was trying to obstruct one investigation during the same time frame as he appears to have obstructed another.

And I wonder whether Karl was the only one Zelikow heard from?

Update: cinnamonape makes a really good point. One of the topics of discussion might have been the terror tapes that George Tenet never told the 9/11 Commission about.

Zelikow has asserted he was never told about the waterboarding of Al Qaeda detainees like al-Zubaida and Sheik Khalid Mohammed either. Makes one really wonder what Zelikow actually was told and what he (and the WH) were filtering away from the Commission. Many folks have said that they told Commission staff information that never made it up to the Committee.

Cardin: Sorry I’m late, Junior Senator from VT was babbling on.

[That’s okay, Bernie gets all the time he wants.]

Cardin: thanks for communicating. Waterboarding cannot be justified. If we try to justify it, it’ll be hard to defend American interests. I believe clarity is needed. It’s very difficult for us on Helsinki commission to explain what we’re doing.

Cardin: Immunity, I’d urge you to the precedent of giving retroactive immunity of further abuses, whether it would have a permanent damage on role of courts in protecting civil liberties of American people. We need to preserve the rights of our courts. I’d urge you to take a look at this to see if accommodation.

Cardin: Third point, sunset, you’re urging against. The Senate has a six year sunset, House two year, I have an amendment for four year sunset, I believe next administration needs to have a position on this.

Cardin: It’s important to keep Congress engaged in this to give whoever is engaged in FISA more cover.

Cardin: Election issues and Civil Rights, not enough attention. If 2006 is any indication, there will be efforts made to suppress minority voting. We’ve seen in past elections fraudulent material to intimidate minority voting. How will you make sure such things do not go unchallenged. We have a bill that would strengthen DOJ role. I would hope you’d give fair warning that such tactics will be challenged.

MM: Monitors to make sure there is access to ballots. Also a memo indicating that their sensitivities have to be heightened, and also bringing prosecutions that might be perceived as a prosecution to affect an election. Want to make sure it’s based ONLY on the facts of the investigation, not the timing of the election.

[Are you saying it was done in the past, Mike?]

Cardin: If your office finds activity where someone says they’ll be arrested if they vote if they’ve got unpaid tickets.

MM: You and I have discussed statements that are clearly fraud. This is a matter of opinion about one candidate or another. We are going to make every effort to make sure that does not happen.

Cardin: One more comment about Civil Rights. Head is subject to confirmation. I ask you to give your personal attention to Civil Rights division to return it to its historic role to protect rights of minorities.

MM: We observed the 50th Anniversary of Civil Rights division, that has become emblematic of division, met with nominee, unit chiefs, to encourage them in historic interest.

Whitehouse: I’ll put it in form of letter. Has to do with Office of Legal Counsel, has been legal compass, some of the declassified sections of opinions, give me cause to worry that it has become hothouse of ideological opinions protected by shield classification.

[Pixie Dust!]

Leahy: I realize some of these we may have to discuss in classified section. We’ve read of disarray in OLC. Perhaps that’s something we can meet privately.

MM: I know that when you comment when there’s no question. A book that you’ve referred to says that regardless of what you think or don’t think, nobody ever believed they were violating the law or intended to violate the law.

Leahy: I’m not suggesting they were breaking the law. I’m suggesting that opinions shouldn’t be ideological. I want to make sure that someone looks at law.

Leahy: One other area: Nat Hentoff, Durham’s lack of independence. Durham to DAG to AG, thereby will not be autonomous. Fein, who served in Reagan DOJ, raised similar questions is that AG is still entrusted to invoke state secrets to determine what evidence to give prosecutor. I read those articles–why wasn’t he given authority SC PatFitz was given?

MM: There is a regulation regarding when you appoint SC and when you don’t. To suggest every time a big case comes up, that there is a conflict does something pernicious.

Leahy: you say there may have been a conflict with CIA Leak, but not on this.

MM: I don’t want to tell DOJ "we don’t have faith in you."

Leahy: raises the question of what the conflict was in USA ED VA.

MM: Possible facts.

Durbin: Are you familiar with Jim Comey?

MM: Yes. He had occasion to be before me as a lawyer and as USA. I’ve had occasion to take counsel from him, to talk about DOJ.

Durbin: You respect his judgment?

MM: Yes.

Durbin: Let me ask about Bradbury. Before you said you didn’t know about him. You’re probably familiar that he’s been involved in some of the most controversial opinions in DOJ. It has raised questions about his fitness to serve in OLC. When Comey was asked about these memoranda, he said DOJ would be ashamed if the opinions became public. You said he was a fine lawyer. I’d last to ask you whether you’ve reviewed all his opinoins.

MM: I’ve reviewed some of them. You asked about Comey. I also have come to know Bradbury. Had some limited contact before confirmation. To say that Jim Comey has good judgment is not to say he is inevitable about every judgment or the judgment about one document is a permanent scar to the author of that document.

Durbin: Interrogation and warrantless wiretapping. Have you reviewed those opinions?

MM: Reviewed his opinion about the current program. Did you happen to review the opinion where he spoke of combined effects which authorized CIA to use multiple techniques.

Durbin: AG approved this over objection of Comey, who said DOJ would be ashamed if opinion became public.

MM: If the opinion that I reviewed is dated in 2007. So I don’t think the timing works out.

Durbin: Could I ask you if you would consider reviewing that opinion and perhaps get back to me if you believe he is a man of good judgment.

MM: I will look at it again.

Durbin: You said you would review it, he appears to be serving in violation of Vacancies Reform Act. Do you feel like he is effective head of Legal Counsel at this point?

MM: I have dealt with him in this context.

Durbin: The time has lapsed, that violates spirit of law. He appears to be serving in violation of law. I will ask you again if you have read Bradbury’s opinions. I expect his nomination will depend on your review of his opinions.

MM: Those opinions would be considered principally whether they relate to current programs.

Durbin: I don’t think that’s adequate. Some of those opinions have been disavowed.

MM: His opinion was not a bad opinion.

Durbin: It deserves your close scrutiny.

Leahy: Mr. AG. I appreciate that you have kept in touch on a number of issues. We’re still not getting enough clarity on a lot of opinions. Our system depends on the law being public. Quotes from letters from generals rejecting waterboarding. I’m afraid that when the Admin doesn’t declare waterboarding off limits, it undermines our moral authority of the US. We see repressive regimes pointing to the US. At Davos, I heard from a number of friends of ours wondering why we can’t declare it to be illegal. It’s unfortunate reflection of our law and values that AG cannot say waterboarding of American is illegal. Oversight makes govts work better, something that Grassley has said. Accountability moments. I think that while we want accountability, we’re short on it. We want this DOJ to be the best in the world, we’ll work with you to make it that.

MM: Yesterday you and I had conversation in which I said that in spite of our disagreements that we could continue to work together. It has been. That allows me to do my job.

Leahy: I will work with you on those things that will make it better.

Leahy: Updates people in the stimulus package, and 15-day extension. So that’s why not everyone is here right now.

"Box Turtle" Cornyn: Office of Government Information Services, FOIA reform. Concerns about moving that office to DOJ, or somewhere else. I wanted to let you know I have reservations. My opinion is that the legislation forecloses moving the office.

"Box Turtle": FISA reform. 15-day extension is kicking the can down the road. Let me just talk about this in human terms. Talked to the father of soldiers who had been kidnapped by Al Qaeda. And his father says if we had an easy FISA law, his son might be alive. Do you think we need to make it easier for people to go through FISA?

[Shorter Box Turtle: I’m going to pretend, once again, that FISA forced a delay of wiretapping, when in fact it was just DOJ disorganization.]

MM: You put a human face on the problem we’re trying to prevent from recurring. We want to lower the burden on the govt in all its presentations to FISA just to make sure that what gets approved are procedures. I hope that DOJ acted with all the speed it could act.

[Interesting dodge by Mukasey, not agreeing that DOJ moved as fast as it could.]

"Box Turtle": I’m okay with a relative basis for torture.

MM: There are clearly circumstances where waterboarding is illegal. I’m not going to get into an abstract discussion of when it’d be legal. Nor am I going to call into question what people do or have done, when it’s not necessary to do so.

Whitehouse: In your analytical stance in your letter, you have assumed the role of a corporate counsel to the Executive Branch. You have taken steps to make sure nothing illegal has happened, but you are unwilling to look back and dredge up anything that may be a problem. That’s not a proper stance, you are also a prosecutor, Prosecutors do look back, dredge up the past, in order to do justice. It’s the mission statement of the DOJ to seek just punishment of those guilty of illegal behavior. Duty of USG, whose interest is that justice shall be done. The president has said we will investigate all acts of torture, you have said if someone is guilty of violating the law. [Cites code on torture] You are the sole prosecuting authority for that statute, the DOJ.

MM: Yes, DOJ is.

Whitehouse: You have two hats. In the prosecutor hat, could you tell me in what way there is an absence of concrete facts about waterboarding to even look to see whether this statute should apply.

MM: There is no divided loyalty.

Whitehouse: Let’s talk about the two duties when it comes to being an independent prosecutor.

MM: One of the many questions wrt past conduct is what authorizations were given. My analysis has only tangentially to do with that. Because I can’t say "your authorization is good only as long as the tenure of the person who gave it."

[Shorter Mukasey: I can’t prosecuting people for relying on the Yoo Memo]

Whitehouse: the message you send otherwise is, "I was only following orders" is alright.

MM: No, it didn’t work at Nuremberg.

Whitehouse: Has there been an analysis of whether or not any national of the US is in violation of torture statute.

MM: I start investigations after some indication that someone might have improper authorization.

Whitehouse: The destruction of the taping of torture is a criminal issue. But whether the underlying criminal act is not entitled to investigation.

MM: The way that started is that we were told there was destruction. Preliminary inquiry found that some statute may have been violated. We were required to and did a criminal investigation.

Whitehouse: Shouldn’t that be applied in this case.

MM: You elided one point when you said there was evidence of an interrogation.

Whitehouse: you said there was evidence of a destruction. There isn’t a principal distinction between the two.

MM: Head of CIA said someone destroyed a tape without proper authorization. Probability of crime.

Whitehouse: I don’t see how that solves the Nuremberg problem. If the reason that you’re given is that it appears that the interrogators were following orders.

MM: No, you’re assuming that what was on the tapes.

Whitehouse: I’m not assuming any such thing. There should be somebody that investigates this. If what you’re telling me is that this hasn’t been investigated, it seems to me there is a split standard.

MM: The investigation may disclose what was on the tapes.

[Well why not bring up the CIA OIG report which found that the torture was cruel and inhuman.

Schumer: Good and bad, you’re what I expected. Worked on politicization, but you opinion on waterboarding is different than most of the American people. Given that waterboarding is repulsive to you, do you support a ban on waterboarding, whether by statute or executive order?

MM: As a matter of principle, I try to avoid the blank canvass over past or future laws on which to paint my morality. The question is a question on which other people own a substantial part of the answer, namely the people who gather intelligence, who explain our position abroad. One of the things I’d like to do as the junior member of the assemblage I’ve just made, is to ask them.

Schumer: That answer’s not up to what I expect of you. I know you’d like to hear from a lot of people, one of your roles as AG is as an advisor on policy. I find it hard to understand how you personally would not be able to say that something is repugnant should be outlawed. I’m asking you, there’s a statute that’s likely to get to the President’s desk. I’m asking you in terms of the advice you’d give the President, should it be outlawed.

MM: I don’t want to trivialize the question so I’ll refrain from telling you all the other things that I find repugnant. I want to be able to analyze it, I want to imagine all the facts and circumstances in which it’ll arise.

Schumer: You were talking about a standard with Durbin. You didn’t say that to us, you said, it’s repugnant. I just find it, you have an opportunity to be something of a leader. You are going to be asked whether we should pass a law. We have an opportunity to pass a law.

MM: I haven’t done all the things I have to do.

Schumer: I can’t tell you how profoundly disappointed I am.

Haggis Specter: Stephen Bradbury. I want to give you my endorsement of Mr. Bradbury. I’ve had considerable interaction with him. I think he’s a first rate lawyer. I hope he’ll be confirmed by the Senate.

[Shorter Haggis: I’m still Haggis, don’t worry]

Haggis: Reporter shield and McNulty memorandum attorney client privilege. I’d appreciate if we can get your opinion bc we’re going to be moving forward on shield and attorney-client. Shield, very strong support. Letter to Grassley: 88 subpoenas, I’d like to have Grassley’s letter matter of record. It all comes down to Judy Judy Judy, and it was disclosed that it was Richard Armitage, so I’m wondering what was done.

Haggis: On subject of McNulty memorandum. Govts conduct shocking conscience. When you start with two propositions, commonwealth has burden of proof. And Constitutional right to counsel and involves privilege. Why should there be inducement to secure waivers.

MM: I don’t condone any coercion to waive attorney-client privilege.

[Does this mean you will stop wiretapping conversations between attorneys and their clients, as DOJ has done with CCR?]

Haggis: Investigation into subprime problems. Please prioritize that. With your administration can we take a new look at those contempt citations. Those individuals are just the messengers. Leahy and I have been trying to work out a formula where we could question Miers and others. If we could come to terms on the transcript that we might be able to unlock the controversy. The transcript issue is indispensible more for protection of witness than anything else. Would you be willing to revisit this? You’d say contempt to USA of DC would not be authorized.

MM: Opinions going back many administration immune when privilege invoked otherwise serious separation of powers issues. Long been deferred or avoided by accommodation.

Haggis: isn’t that a matter for the Courts, not for the executive. It ought to be a judicial determination. Not a decision for the executive giving immunity for himself.

MM: It’s my understanding that if they have an order.

Haggis: where does that immunity come from? Executive order?

MM: It has been recognized in Constitution, though it’s not mentioned, just as congressional oversight is not mentioned.

Haggis: Can we find an accomodation?

MM: I’d be willing to find an accommodation. I’m not going to overturn long-standing opinions.

Haggis: There’s no long-standing rule about a transcript.

MM: I don’t know that.

Haggis: You don’t know that? How can that be a long-standing rule against transcript.

MM: Different than Congressional oversight. Senior Presidential aides.

Haggis: But the President has offered to make them available.

Leahy: When you look into this, you’ll find that at least one of the witnesses who testified, also said she had never discussed this matter with the President, never had discussion with those who were going to discuss with the President. We found Executive Privilege to be a tad broad. I don’t want to use the word cover-up, but it’s the first thing that came to me. It’s also the second thing that came to me.

Leahy: Torture tapes. Say we found a backup tape (you often find a backup tape), how do were determine whether there was a crime, if you refuse to state an opinion.

MM: John Durham is doing an investigation.

Leahy: Why’d USA ED VA recuse?

MM: Over issues relating to a case he had and that he generally has a relationship with the CIA bc they’re located in district.

Leahy: How do we determine whether others have a conflict.

MM: They are. When people appear in ED VA, they have to be members of bar.

Leahy: In recusal request, did he lay out why he was recusing.

MM: Facts were teased out that made us consider the recusal.

Leahy: Can you assure us that the people working with Durham won’t have conflict.

MM: They won’t have the same conflict.

Leahy: We sent a letter, asking when and how did attorneys first become aware of torture tapes? Do you have an answer?

MM: No, I don’t.

Leahy: Did they ever view any of these tapes?

MM: I don’t know that. What was done within department is not something I would disclose if I knew it.

Leahy: wouldn’t that be fairly important. It would mean DOJ was looking at torture tapes prior to their destruction.

MM: I didn’t say I wouldn’t review them, I said I wouldn’t disclose that here.

Leahy: Well, perhaps you should get together with Haggis and I.

MM: Discussion of whether they viewed it is separate.

Leahy: Was anyone asked about advisability to destroy the tape.

MM: I’ve seen a report on that. I’ve seen no evidence that anyone in department saw the tapes [this may be wrong, he may have said "discussed destroying tapes]

MM: I became aware when I picked up WaPo.

Leahy: Makes joke that they would be more likely to find things if they just marked the NYT secret. Plus, they’d get a crossword puzzle.

Leahy: Did you have communication between DOJ and WH? Was there any communication between DOJ and WH about that?

MM: Durham will look at.

Leahy: And when he’s finished, would you have problem with him testifying.

MM: USAs have not testified as to pending cases, I don’t see a reason to make an exception here.

Leahy: We may come back to that if we’re unable to find these other answers. You doubtless heard about how WH, even though they’re required to maintain emails, now say they’ve destroyed many over period of two years.

MM: I saw a story that there are emails that should have been there but aren’t.

Leahy: Also that they were using RNC server. If they were not following the law on maintaining records, laws are fairly clear, you may recall that Congress asked extensive questions about that in last Admin. Is that something department would look into.

MM: I’d need to know circumstances under which not retained.

Leahy: Law is clear that records have to be retained, but they were lost. Does that raise any questions.

MM: That’s something I’d like to know more about.

Grassley: Whistleblowers exposed many scandals in FBI crimelab. Youssef another whistleblower, FBI requires neither language skills or knowledge of Arabic culture. Sounds too much like history where FBI didn’ t think scientists had to be in charge of labs. You said this would be among your highest priorities to familiarize yourself with Youssef. Youssef provided a October 11, 2007 letter to your office, describing threats against those trying to hire experts. I’d like to have that letter included in record. What action has your office taken to investigation.

MM: Youssef’s letter is in litigation.

Grassley: Will you seek an independent review?

MM: I think we ought to wait for the progress of that litigation, which raises that and other issues.

Grassley: We’ve got someone in FBI saying our terrorism threats are being weakened and we’re going to wait for a court.

MM: FBI has been improving counter-terrorism, a process in which I’m actively involved and Director involved.

Grassley: Youssef also involved in exigent letters. Where terror letters were used. Counsel said her office did not know of the letters. IG report, a division of counsel’s office knew as early as 2004. The committee requested all emails related to exigent letters last year, we have received one small batch of heavily redacted documents. When are these coming.

MM: I’ll find out about review of documents. My understanding is that there were changes in the oversight. Problem was lack of oversight.

[Gosh, then don’t you think you ought to support oversight of FISA]

Grassley: Will DOJ pursue employers who knowingly hire illegal aliens.

MM: Yes.

Grassely: Prouty, fundraisers for terrorist organizations. FBI provided briefings, FBIs background investigation failed to find sham marriage and overstay of visa, bro-in-law had Hezbollah ties. FBI will be reinvestigating background of all agents from foreign countries. How many will be investigated? Will all non-native born agents be re-examined.

MM: I can’t tell you how many. I believe it was more than just reliance on Prouty having become citizen.

Grassley: Hanssen. FBI resisted dedicating a unit to internal security. Finally did this years after Hanssen case. How long until this unit up and running?

MM: Will discuss with director.

Leahy: Thanks, Grassley.

Whitehouse: Process question. In terms of advisory responsibilities, not going to investigate. You’ve disclosed waterboarding not part of CIA interrogation regime. Still leaves open torture statute whether there are concrete facts or circumstances, given that that evaporates, whatever it is it is. I’m trying to determine if that is taking place (the analysis), if you’re waiting for Durham’s investigation to look more into what happened. Or if there has been a policy determination made, that bc there has been a claim of authority, there will be no investigation. What is the process for coming to this decision.

MM: Facts come to the attention to the Department that warrant investigation. As of now, investigation into destruction of tapes, if what was on the tapes was barred by torture statute.

Whitehouse: Couldn’t you and I engage in discussion that would at least give cause for discussion.

MM: It would not be concrete discussion.

Whitehouse: In a classified setting it may or may not an "if."

[Booyah]

[Long pause]

MM: Not entirely true what that suggests.

[Let me traslate, Mike. Whitehouse has seen evidence of torture. And he’s happily to examine that in a classified setting. Are you man enough for that??]

Whitehouse: I’m trying to not disclose classified information. I don’t think it’s fair to say that nobody has any basis from anywhere. If that’s not enough to raise the first red flag, I don’t know what on earth that could be. Where do we stand, anybody who has a public view says there’s something that might merit investigation.

Whitehouse: no Nuremberg defense built into criminal statute. If you were going to apply it, you’d want to say, what here’s what took place. You’re telling me that nothing in that process bc the certification obviates any investigation regardless of what the facts are.

MM: My position is that there is an ongoing investigation, I’m not going to speculate on what was authorized.

Whitehouse: The investigation has nothing to do with the underlying interrogation.

MM: Depends on Durham.

Whitehouse: Let’s hypothesize.

MM: Let’s not. It’s a question of telling agents out there that we’re investigating CIA based on speculation of what happened.

Whitehouse: I would like to thank you for the re-erection of the firewall between DOJ and WH. Manner in which it was done was excellent. Sorry that we seem to be at loggerheads again on this subject.

MM: This is a good faith exchange. I appreciate that you said.

Kisses all around, Whitehouse and MM make up.

Leahy: I don’t expect an answer here. FOIA, required the office of government information services, which is national archives and record admin, ombudsmen, all those things we talked about, 2009 budget for Administration, attempt to move it into DOJ. Law says to keep it in archives. Those taking notes of our conversation. Would you please look at that.