I’m pooped so will have to return to this article. It explains how, after DOJ under Jack Goldsmith threw out John Yoo’s torture policies, Steven Bradbury came in and replaced them with still worse opinions.

When the Justice Department publicly declared torture “abhorrent” ina legal opinion in December 2004, the Bush administration appeared tohave abandoned its assertion of nearly unlimited presidential authorityto order brutal interrogations.

But soon after Alberto R. Gonzales’sarrival as attorney general in February 2005, the Justice Departmentissued another opinion, this one in secret. It was a very differentdocument, according to officials briefed on it, an expansiveendorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time providedexplicit authorization to barrage terror suspects with a combination ofpainful physical and psychological tactics, including head-slapping,simulated drowning and frigid temperatures.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey,the deputy attorney general, who was leaving his job after bruisingclashes with the White House. Disagreeing with what he viewed as theopinion’s overreaching legal reasoning, Mr. Comey told colleagues atthe department that they would all be “ashamed” when the worldeventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhumanand degrading” treatment, the Justice Department issued another secretopinion, one most lawmakers did not know existed, current and formerofficials said. The Justice Department document declared that none ofthe C.I.A. interrogation methods violated that standard.

I will return to this, probably Friday (I’ve got my timeline buzz going). But for now, I wanted to point out that the story reads like several different stories (which may party arise from having three authors). First is a story about Steven Bradbury, which sure reads like someone wants to discredit Bradbury for good; perhaps Bush is preparing to re-appoint him to be head of OLC? Another of the stories appears to be about Comey’s allies, fighting against these policies after his departure. And the last appears to be a legal chronology of what was on and off legal in our world of torture.

There are some interesting competing leak wars going on right now. I wonder why?

We already lost Abu Gonzales, Karl Rove, Monica Goodling, Kyle Sampson, Brad Schlozman, and Michael Elston. And now we’re losing Pete Domenici.

Veteran Sen. Pete Domenici (R-N.M.) is expected to announce tomorrowthat he will retire from the Senate in 2008, according to severalinformed sources, a decision that further complicates an alreadydifficult playing field for Republicans next November.

Domenicihas struggled with health problems over the last several years and hasbeen dogged by questions about the role he may have played in thefiring of U.S. Attorney David C. Iglesias in Albuquerque. As a result,he had been long been rumored as a potential retirement. Domenici’sSenate office did not return a call this afternoon, but sources closeto the senator say he will fly home to New Mexico tomorrow to make theannouncement that he is retiring.

[snip]

The Senate ethics committee is investigating Domenci for a phonecall he placed to then-federal prosecutor Iglesias last October in apossible attempt to pressure him to indict New Mexico Democrats in acorruption probe just before the November election. Shortly afterIglesias said he rebuffed Domenici, his name appeared on a list of U.S.attorneys to be fired that was compiled by top Justice Departmentaides. Iglesias was dismissed Dec. 7.

Republican insiders insist that Domenici’s decision to retire hadeverything to do with his health and nothing to do with poll numbers orthe U.S. attorney controversy. More to come on this opening tomorrow.

David lglesias, may your champagne tonight taste sweet.

I guess if you make sure your contractors can’t reveal what they’ve done in your name, it becomes harder for others to discover what it is that you, personally, have done. But not impossible. The IT companies for the White House are denying that their the company that missed 5 million missing emails in their daily audits.

When Congress asked about 5 million executive branch e-mails that wentmissing, a White House lawyer pointed the finger at an outside ITcontractor.

The only problem? No such IT contractor exists, according tosources close to the investigation of a possible violation of theFederal Records and Presidential Records acts.

[snip]

Contrary to Roberts’ statement to the Oversight Committee, severalsources, including an IT company currently doing contractual work forthe Executive Office of the President, have told ChannelWeb that nooutside company had a managed services contract to audit the Executive Office of the President’s e-mail archiving system daily during the period when the e-mails went missing.

"There are many contractors working for the [Information Assurance]Directorate and no single one provided audit and archive functions,"said a spokesperson for Unisys, an IT security and hardware firm whichhas provided the Executive Office of the President "with a variety ofIT services that support the Office of Administration."

"We don’t believe that Unisys is the Information AssuranceDirectorate contractor to which Deputy Attorney General Keith Robertsreferred when he briefed Rep. Waxman’s committee in May," said LisaMeyer, director of public relations for the Blue Bell, Penn.-basedcompany.

For the record, we might want to distrust Unisys on this point. After all, they’re the company supposedly in charge of monitoring Homeland Security’s computer system. And they seemed to have missed basic things–like installing security devices on Homeland Security’s networks.

So AT&T says they’ll cut off your broadband if you say anything mean about them. But they say they don’t really mean that.

However, an AT&T spokesperson tells Ars Technica that thecompany has no interest in engaging in censorship but stopped short ofsaying that AT&T could not in fact exercise its ability to do so.

"AT&T respects its subscribers’ rights to voice their opinions andconcerns over any matter they wish.  However, we retain the right todisassociate ourselves from web sites and messages explicitlyadvocating violence, or any message that poses a threat to children(e.g. child pornography or exploitation)," the spokesperson told ArsTechnica. "We do not terminate customer service solely because acustomer speaks negatively about AT&T."

Note the tense of the verb. "Do not," not "Will not."

Meanwhile, my guy Dingell is getting impatient with waiting for lawsuits to reveal what the telecoms gave to the government on us.

The House Energy and Commerce Committee, which has jurisdiction over the telecom industry, yesterday sent letters to three major carriers, AT&T, Qwest and Verizon, posing questions aimed at understanding what consumer information is being shared with the government.

"Congress has a duty to inquire about whether [the governmentsurveillance program] violates the Constitution, as well as consumerprotection and privacy laws," said Chairman John D. Dingell (D-Mich.).

AT&T is going to regret that Dingell could only use one carrier with his new I-phone.

The most important bit from this story is that HPSCI seems reluctant to give the telecoms immunity without, first, knowing what we’re giving them immunity for.

Although Democrats on the Senate Intelligence Committee have said thereis consensus that the companies should have some form of relief, HouseDemocrats have voiced a reluctance even to consider retroactiveimmunity at least until they have an understanding of the program thatthe telecoms are charged with aiding. The administration has resistedsubpoenas for such information.

Given how frequently the Republicans have p3wnd the Democrats this year, HPSCI’s reluctance may not be enough to prevent immunity from going through. But it’s a start.

And in the meantime, why not give DiFi and Jay Rockefeller a call to see if you can talk some sense into them?

I’m still following up on the question of the way in which the Rather complaint invokes the debate on Hamdi. I wanted to draw extended attention to this article. In it, Tim Grieve susses out precisely what seems to be the reason Rather included the Abu Ghraib details in his complaint.

Did Clement know he was misleading the justices, or was he kept out ofthe loop so that he could avoid revealing truths that would underminethe administration’s "trust us" arguments in the enemy combatant cases?Did Joint Chiefs of Staff Chairman Richard Myers persuade CBS to delaybroadcasting the photographs from Abu Ghraib to protect the lives ofU.S. soldiers — or to spare the administration embarrassing questionsduring the Supreme Court arguments in the enemy combatant cases?

[snip]

Clement was a natural choice to appear on behalf of Rumsfeld whenthe Supreme Court took up the cases of Padilla and his fellow "enemycombatant," Yaser Hamdi, in April. The question is,what did Clement know when he climbed the steps of the Supreme Courtbuilding on the morning of April 28? Did he know what his client knew– that the Department of Defense was investigating grave abuses at AbuGhraib, that the brigadier general in charge of the prison had alreadybeen removed from her post? Did he know what his client’s staff knew –that Joint Chiefs chairman Myers had been working to keep CBS frombroadcasting photographs of the abuse?

And we wouldn’t be fun if we weren’t remembering Monica Goodling, um, "fondly."

The Justice Department won’t say. An employee in Clement’s officereferred a call from Salon last week to Justice Department spokespersonMonica Goodling. Asked what Clement or Ashcroft knew of the Abu Ghraibsituation at the time of oral arguments in the Hamdi and Padilla cases,Goodling said: "We wouldn’t have any comment." Pressed further,Goodling said the Justice Department would not have any comment at allabout the Padilla or Hamdi cases.

I’ll remind you, Goodling was the protege of Barbara Comstock, who blackballed Eric Lichtblau for getting too close to the truth.

Go read the whole Grieve article–I had forgotten that Padilla was argued at the same time as Hamdi. In other words–it may not have been Hamdi’s torture Clement was covering up, it may have been Padilla’s.

I’ve been meaning to go back to compare the chronology laid out by Dan Rather in his complaint as it pertains to Abu Ghraib with the chronology of the Taguba investigation and the Hamdi case. Two things stick out. First, Myers pretended to be ignorant of the details of the abuse on May 6, several weeks after he called Dan Rather personally to spike–or delay–the story. Second, it appears the news of the abuse leaked to 60 Minutes and others at about the time the military put Major General Geoffrey Miller in charge of responding to the abuse–suggesting the leak may well have been a response to the military’s attempt to cover up the abuse and investigation. And finally, as lysias noted, the attempts to postpone the story would have delayed the Abu Ghraib revelation after the time when Paul Clement assured SCOTUS there was no torture.

Scribe noted in his comment that Rummy probably also called CBS to get them to spike the story. If Rather gets Rummy under oath, he may well have to reveal who in the Administration knew of the torture–and either didn’t tell Ted Olson and Paul Clement. Or did.

August 31 to September 9, 2003: Major General Geoffrey Miller ordered to Abu Ghraib from Gitmo

October 1, 2003: Hamdi petition filed with SCOTUS

Fall 2003: General Sanchez visits Abu Ghraib regularly

January 9, 2004: SCOTUS agrees to hear Hamdi

January 13, 2004: Joseph Darby gives CID a CD of images of abuse

January 15, 2004: General Craddick receives email summary of story

January 19, 2004: General Sanchez requests investigation of allegations of abuse

January 20, 2004: Craddick and Admiral Keating receive another notice of abuse

January 2004: General Myers learns of abuse

January 31, 2004: Taguba appointed to conduct investigation

February 2 to 29, 2004: Taguba’s team in Iraq, conducting investigation

March 9, 2004: Taguba submits his report

Late March, 2004: 60 Minutes II starts on story

April 2004: General Miller ordered to Abu Ghraib to fix problems

April 7, 2004 (approximately): 60 Minutes II acquires photos authenticating Abu Ghraib story

Mid-April, 2004: General Myers calls Dan Rather to ask him to delay story

Mid-April, 2004: Taguba begins to brief officers on his report ("weeks" before his May 6 meeting with Rummy)

April 28, 2004: Hamdi v. Rumsfeld argued before SCOTUS; Paul Clement assures SCOTUS that the Administration doesn’t torture

QUESTION: May I ask just one other question, I think it’s just relevant. But do you
think there is anything in the law that curtails the method of interrogation that may be employed?

MR. CLEMENT: Well, I think there is, Justice Stevens. I mean —

QUESTION: And what is that?

MR. CLEMENT: Well, just to give one example, I think that the United States is signatory
to conventions that prohibit torture and that sort of thing. And the United States is going to honor its treaty obligations. The other thing that’s worth mentioning of course —

QUESTION: But you said something about self-executing. In connection with the Geneva
Convention, you said, well, it’s not self-executing. Would you say the same thing about the torture convention?

MR. CLEMENT: Justice Ginsburg, I actually have the sense that the torture victims — you have the Torture Victim Protection Act, of course, which I think doesn’t actually apply to the United States. So I’m not sure that there would be any other basis for bringing a private cause of action against the United States. But as this Court noted in footnote 14 of the Eisentrager opinion, the idea that a treaty is going to be enforced through means other than a private cause of action doesn’t mean that it’s not a binding treaty, doesn’t mean that it’s not going to constrain the actions of the executive branch. Just to finish up my answer to Justice
Stevens’ question, I wouldn’t want there to be any misunderstanding about this. It’s also the judgment of those involved in this process that the last thing you want to do is torture somebody or try to do something along those lines.

April 28, 2004: Abu Ghraib story airs on 60 Minutes II

May 6, 2004: Taguba meets with Rummy, Wolfowitz, Cambone, Myers, and others

In the meeting, the officials professed ignorance about Abu Ghraib. "Could you tell us what happened?" Wolfowitz asked.

[snip]

“Here I am,” Taguba recalled Rumsfeld saying, “just a Secretary ofDefense, and we have not seen a copy of your report. I have not seenthe photographs, and I have to testify to Congress tomorrow and talkabout this.”

May 7, 2004: Rummy testifies before Congress

June 28, 2004: Hamdi decision

Larry Johnson does the math, so I don’t have to. Fitzgerald’s total costs to investigate the deliberate outing of a CIA spy, through March 31, amount to $2,396,283. Ken Starr’s total costs, to investigate a failed land deal and a blow job, amount to $59,463,703. I guess all those cocktail weenies Starr bought for the press really add up, huh?

Now that Larry pulled all these numbers together, though, I’d like to take a look at what Fitzgerald spent when–or rather, how much time he spent when. Here’s the total spent on personnel for each reporting period (click through to Larry’s post for the total amounts–I’m using personnel to get a sense of how much time these activities took). The total amount for all personnel time reported to date is $1,876,570.

Now, I’m assuming that some of the costs associated with the initial grand jury testimony of everyone and their mother in February and March 2004 was cleared after March 31, and therefore shows up in the 9/30/04 report. And that therefore that figure for the 9/30/04 period–higher than any period save the actual trial period–includes activities that took place earlier. Let’s just say half that cost reflects February and March grand jury interviews. That still means roughly half a million dollars in personnel costs–well over a quarter of all total personnel costs–was spent obtaining the testimony of primary journalist witnesses. (Though note: given the logic that it may take more than a month for charges to clear, there will probably be significant charges reported in the period ending 9/30/07.)

I’m sure people will use that factoid in a variety of ways, both to criticize and celebrate Fitzgerald. But the next time some media outlet talks about the expensive Fitzgerald investigation, you might point out that it was expensive largely because of the media outlets.

Via chrisc, Judge Burns has severed the trials of Brent Wilkes and John Michael, on account of the health problems of the latter.

Ajudge Monday severed the trials of ex-defense contractor Brent Wilkesand banker John Michael, who are charged in connection with thecorruption scandal that sent former Rep. Randy "Duke" Cunningham toprison.

U.S.District Judge Larry Burns postponed Michael’s trial indefinitely afterattorney Raymond Granger said his client had been diagnosed with viralmeningitis.Pretrialmotions are scheduled in Wilkes’ case Tuesday, with jury selection setto begin Wednesday. Opening statements are scheduled for Oct. 9.

Given that Michael seems intent on avoiding conviction by exposing all of Tommy K’s crimes, and Wilkes seems intent on avoiding conviction by … who knows, exposing all of Congress’ crimes? I don’t think the separate trials will help either one overly much. Though it may mean that no prostitutes will show up at John Michael’s trial.

One lingering suspicion that they’re just moving this off the books:

After several requests from the Homeland Security Committee callingfor a moratorium on the controversial use of spy satellite imagery fordomestic purposes, the Department has heeded the call and delayed itsplanned October 1st launch of its new National Applications Office(NAO). The Department has cited the need to address unanswered privacyand civil liberties questions from Congress – as addressed in theCommittee’s September 6th hearing on the matter and also in lettersfrom August 22nd and September 6th from Committee Members.

Rep.Bennie G. Thompson (D-MS), Chairman of the Committee on HomelandSecurity, released the following statement regarding the decision:

“Whilewe are pleased by the Department’s decision to go back to the drawingboard and get it right, we are troubled by its silence on the secondpart of our request: that Congress also be provided ‘a full opportunityto review the NAO’s written legal framework, offer comments, and helpshape appropriate procedures and protocols.’

Even putting aside my suspicion this is just another head fake to move surveillance beyond the grasp of Congress, Thompson’s point remains. The Administration thus far refuses to allow Congress some input into what appropriate use of satellite surveillance of civilians would be.

Well, at least for the moment Chertoff says he’s not going to use satellites to peek into my bedroom. That’s one victory, anyway.

Paul Kiel reported this morning that Brent Wilkes doesn’t want the government to mention the prostitutes that Wilkes engaged as part of his bribe scheme to influence Duke Cunningham (here’s the filing). And if the Court doesn’t exclude the testimony about prostitutes, Geragos threatens, he’s going to haul the prostitute whose calendar has been submitted as a business record into court so he can delve into her record-keeping practices. That might be fun.

But I’m more interested in the possibilities presented by two of Wilkes’ other filings. The first objects to the government’s attempt to exclude duress as a defense. Geragos argues that the case law the government cites doesn’t apply, either because the cases pertained to evidence excluded during jury instructions, or because the case wasn’t directly on point.

Here, without having seen the government’s case, the defense has no way of knowing whether the prosecution’s theories of liability and evidence will necessarily foreclose a necessity or duress defense. Tellingly, the government cannot cite controlling authority holding that extortion is not a defense to the offenses charged against Mr. Wilkes. Instead, the government makes its argument through meandering statutory construction analysis and metaphor. Indeed, the only case it cites for a holding regarding the application of federal law does not address whether extortion is a defense to bribery, but rather whether extortion and bribery charges brought in the same case are mutually exclusive.

It’s unclear whether Geragos is just objecting to the government’s attempt to exclude a defense based on extortion for kicks, or whether the government was correct in anticipating that that may be what Wilkes intends to argue. In any case, though, Geragos seems intent on postponing any decision about the appropriateness of a duress defense until after he presents his case.