I’m reading the transcript of John Yoo’s side of the Esquire interview, and found this rather amusing bit.

Yoo explained that he had considered becoming a journalist. But didn’t do it because it was too ephemeral.

I gave a lot of thought to becoming a journalist. I was an intern at the Wall Street Journal under Al Hunt in the summer between college and law school. I gave that a lot of thought. It was very exciting. I had a great time. But there was something — no offense, but there was something about journalism that was very ephemeral. You write the story and then it’s gone and nobody remembers it.

I guess we ought to consider Yoo a success, then. Because it’ll be a long time before people forget his most famous writings. 

I highly recommend checking out this Media Matters database, which lists all 4500 appearances the Rent-A-Generals named in NYT’s article on the program (I hope Media Matters expands it to include other Rent-A-Hacks listed in the full document dump). Here, for example, are the appearances made by David Grange, the most prolific Rent-A-General, just as the Iraq War began (Update: as drational points out, Grange appears to be the most prolific in this sample because Media Matter’s methodology over-represents CNN).

Kind of hard to see, I know, but it basically reads CNN CNN CNN CNN CNN CNN CNN CNN CNN CNN.

Now, as it turns out, the last CNN appearance from David Grange was on April 25, just a few days after the NYT story. The other CNN favorite Rent-A-General, Donald Sheppperd, actually stopped appearing in March.

So what’s a poor cable news network to do, now that its Rent-A-General addiction (Lou Dobbs has a particularly bad habit) has been exposed?

I would suggest today’s finalization of the news–first announced about a week after the NYT story–that Fran Townsend is joining CNN as a Buy-A-Hack might answer your question.

Frances Fragos Townsend, who recently stepped down as President George W. Bush’s chief anti-terrorism and homeland security adviser, will join CNN as an on-air contributor providing analysis and insight on national security issues, it was announced by Jon Klein, president of CNN/U.S. Townsend, who has spent more than two decades in the fields of intelligence and criminal justice, has served during the past three administrations, most recently as assistant to Bush for homeland security and counterterrorism. She chaired the Homeland Security Council from May 2004 until January 2008. Prior to that, she was a deputy assistant to the president and deputy national security adviser for combating terrorism from 2003 to 2004. She has been at the center of America’s effort to fight terrorism through her work in the U.S. Coast Guard, the Justice Department under President Bill Clinton and the George W. Bush White House.

If you can’t continue to present Administration propaganda with the Rent-A-Generals anymore, I guess, you might have to suck it up and hire the Administration’s own security "expert" to present the Administration’s spin.

CNN has not announced whether Townsend will get favorable access to Administration briefings–beyond those available as a member of the PFIAB.

The AP reports that charges against Mohammed al-Qahtani have been dropped, suggesting that charges were dropped because he was tortured.

The Pentagon has dropped charges against a Saudi at Guantanamo who was alleged to have been the so-called "20th hijacker" in the Sept. 11 attacks, his U.S. military defense lawyer said Monday.

Mohammed al-Qahtani was one of six men charged by the military in February with murder and war crimes for their alleged roles in the 2001 attacks. Authorities say al-Qahtani missed out on taking part in the attacks because he was denied entry to the U.S. by an immigration agent.

But in reviewing the case, the convening authority for military commissions, Susan Crawford, decided to dismiss the charges against al-Qahtani and proceed with the arraignment for the other five, said Army Lt. Col. Bryan Broyles, the Saudi’s military lawyer.

[snip]

Officials previously said al-Qahtani had been subjected to a harsh interrogation authorized by former Defense Secretary Donald H. Rumsfeld.

But that’s not right. After all, the remaining 5 detainees were also tortured. Heck, the government has even admitted to water-boarding Khalid Sheikh Mohammed. But he’s still going to get a show trial.

I would suggest that two things contributed to al-Qahtani’s charges being dropped. First, the disqualification of Thomas Hartmann last week may be related. As I suggested in my post on the disqualification, Judge Allred made clear that the charges against Hamdan could go forward because those charges were finalized before Hartmann came on the scene. But the charges in which Hartmann was directly involved–notably of the group of high value detainees that until Friday included al-Qahtani–would be affected. The government is now going to have to prove that those 6 5 detainees would have been charged even without Hartmann making decisions about whether to include evidence gained by torture.

Note that Allred’s decision is dated May 9, Friday, the same day Susan Crawford decided to drop charges against al-Qahtani, so if this was a response to the Hartmann disqualification, it was a very quick response.

But there’s another reason why the charges against al-Qahtani were dropped while KSM will still be charged: evidence that the torture against al-Qahtani didn’t reveal anything. I’ve not yet read Phillipe Sands’ book which details this at more length, but his interview with Bill Moyers on Friday makes this clear:

PHILIPPE SANDS:Well, I remember that very well. And I appreciated very much everything that Representative Franks had to say. But I’ve described that to my friends in London as a sort of Monty Python moment in the hearing. Because he alleged that there had been three individuals water boarded. They had been water boarded for no more than one minute each. And they had spilled the beans. And I was sitting there watching him and thinking, well, that’s new information. I’ve never heard that before. Where on earth does that come from? Counterintuitively, I can’t imagine how a waterboarding of one minute is suddenly going to produce useful information. We don’t even know if it is useful. But also, imagine the scene. You’ve got guys there with stopwatches. We’re gonna waterboard him for one minute, and then we will stop. And in that one minute, everything will come up. I don’t know where he got all that from. I thought he sounded as though he made up on the stop. We don’t have any objective evidence that any of these interrogation techniques have produced any useful information. KSM, you’ve referred to, has owned up to virtually everything under the sun that has happened that is bad for the United States in the last five years. And I find that counterintuitive to common sense. I would say I don’t have actual information on KSM. I do have actual information on detainee 063. I spent time, as I describe in the book, with the head of Mohammed al-Qahtani’s Exploitation Team. And the bottom line of it was, contrary to what the administration said, they got nothing out of him.

BILL MOYERS:There’s another witness who appeared this week when you did, David Rivkin, a lawyer, lots of government experience, lots of experience in the law. And he directly challenged you in his testimony.

DAVID RIVKIN: "I think that it is a moral copout to argue that coercive techniques did not work. Because if they don’t work, there would be nothing to debate. Coercive techniques do work. There’s plenty of evidence to that effect."

PHILIPPE SANDS:Look, Bill, I’ve spent 20 years during courtroom work as a litigating lawyer. I like to see evidence on things. I like arguments to be based on evidence. David Rivkin is unable to provide any evidence. I have honed in on the interrogation of one man, detainee 063. The administration has publicly declared they got a mass of information out of him that related to all sorts of extraordinarily important things to protect the Americans.

I then spoke to the people who were involved in his actual interrogation and the head of his Exploitation Team. That’s not what they told me. If the evidence I had been given had been different, then I would reach possibly a different conclusion. Not as to the legality or the utility of torture, but what do we do in the face of evidence that it works? But there isn’t evidence that it works.

[snip]

PHILIPPE SANDS:So take Diane Beaver. I had written a previous book where I treated her legal advice. She had been the person down at the bottom who’d signed off on aggressive interrogation. I didn’t like her legal advice at all. I thought it was really bad advice and wrong advice. And I was rather uncomplimentary, perhaps even rude about it, in my last book. And then I met her. And she explained to me the circumstances in which she found herself. I don’t think it justifies what happened. But she described to me the pressure she felt herself under, the anniversary of 9/11 coming up.

This man, detainee 063, al-Qahtani, present and caught. Tremendous pressure coming from the upper echelons of the administration. She described to me a visit that the administration has never talked about in which the three most important lawyers in the administration, Mr. Gonzales, who’s the president’s lawyer, Mr. Addington, who is the vice president’s lawyer, and Mr. Haynes, who is Secretary Rumsfeld’s lawyer– came down to Guantanamo at the end of September, talked to them about interrogations and other issues, watched an interrogation, and left with the message, do whatever needs to be done. Now, put yourself in Diane Beaver’s situation. You’re getting a signal from the main man at the top of the administration: do whatever needs to be done. That takes the lid off and opens the door.

[snip]

PHILIPPE SANDS:You’ve got different camps who are struggling down at Guantanamo. And I think it would be wrong in any way to give the sense that there was unanimity to move towards abuse or that there was even strong support towards moving towards abuse. There was a strong body of belief down at Guantanamo amongst the military community, amongst the military lawyers, with the FBI, with the Naval Criminal Investigation Service, that this is a bad thing. Abuse doesn’t work, abuse undermines authority, abuse undermines morale. We are going to stop it. Initially, they weren’t successful. But once the abuse began, a backlash followed. And the folks down at Guantanamo identified a man in Washington who was the general counsel of the Navy, a man by the name of Alberto Mora, who truly is a heroic individual, in my view, who intervened very courageously, no personal advantage, directly with Jim Haynes, and said, "This must stop. If it doesn’t stop, I’m going to reduce this into writing, and I’m going to cause a big fuss." And eventually, it did stop. But only after 54 days of abusive interrogation of Mohammed al-Qahtani, and not before the door had been opened, and the dogs had slipped their leash. [my emphasis]

Now, as the AP reminds us, al-Qahtani recanted the confession he signed after all this torture.

Al-Qahtani last fall recanted a confession he said he made after he was tortured and humiliated at Guantanamo.

Which, given that there are members of the Exploitation Team stating that "they got nothing" from al-Qahtani, suggests a key piece of evidence against al-Qahtani (his own confession) would be unusable. That means that, unlike KSM and the others, they probably don’t have enough evidence untainted by torture to try al-Qahtani (and possibly, the removal of Hartmann eliminated the one person who wanted to try anyway).

Just as important, look at how quickly al-Qahtani’s torture would introduce actions of top Bush Administration lawyers. Al-Qahtani was tortured because Alberto Gonzales and David Addington and Jim Haynes flew down to Gitmo and pushed Diane Beaver to write a memo authorizing torture. Al-Qahtani’s torture can be directly traced to Gonzales and Addington and Haynes and Rummy (and, thanks to Sands’ book, it’s all conveniently in one place). And that torture produced nothing.

They can’t try al-Qahtani because they have insufficient untainted evidence, but more importantly, they can’t try al-Qahtani because doing so will become a trial of Beaver and Haynes and Rummy, and doing so will expose that these people authorized torture even though it doesn’t work.

Update: Via email, here’s a statement from Center for Constitutional Rights, which is representing al-Qahtani:

The government is finally admitting what we have been saying all along, that the government’s claims against our client were based on unreliable evidence obtained through torture at Guantanamo. Using torture to string together a web of so-called evidence is illegal, immoral and cannot be the basis for a fair trial.

Mr. al Qahtani never made a single statement that was not extracted through torture or the threat of torture. The unconscionable techniques used on him are well-documented and were authorized directly by the White House. His torture log is a shameful window onto the depravity of this administration and the depths to which they have been willing to sink.

Mr. al Qahtani should be returned to the custody of the Saudi government, where they have a system in place to maintain custody of any former Guantanamo detainee who presents a danger, as well as a strong rehabilitation program supervising those that are released.

The Military Commissions are sham political show trials designed to do nothing but obtain convictions for the government. Col. Moe Davis testified to that effect in the Hamdan proceedings, and the presiding judge removed the legal advisor to the Commissions, Col. Hartmann, just this week for undue political influence. The Military Commissions allow secret evidence, hearsay evidence, and evidence obtained through torture, which violates every international and domestic legal principle of due process and fair trials. They are designed to hide the criminal conduct of U.S. personnel and to obtain nothing but convictions.

The White House will face the same legal and moral questions with any trial under this system.

We call on the government to send Mr. al Qahtani to Saudi Arabia, where he belongs, and end the failed experiment that is Guantanamo. [my emphasis]

News reports say that Obama will be visiting Michigan on Wednesday–with a visit to the heart of Republican territory in Grand Rapids, and a visit to the home of the Reagan Democrats in Macomb County. I would say that’s a pretty strong signal that the general election campaign started this week. I’m rather pleased with Obama’s choice of places to visit, too. Obama supporters in W Michigan did very well by him at District Conventions in April, which suggests he’s got a lot of strong support in Western Michigan. And while Obama can expect strong support from Washtenaw County and Detroit come November (both of which voted for Uncommitted in January), Obama will need to do some work with those Reagan Democrats. So why not go to the home of the Reagan Democrats and explain why McCain won’t improve the economy?

In other news that everyone still claiming Obama won’t seat MI’s delegation seems to have missed, Hillary rejected MI’s latest compromise solution.

Democratic presidential hopeful Hillary Rodham Clinton on Thursday rejected a compromise plan to seat Michigan’s delegates to the national convention that would give 69 delegates to Clinton and 59 to Barack Obama.

"This proposal does not honor the 600,000 votes that were cast in Michigan’s January primary. Those votes must be counted," Clinton spokesman Isaac Baker said.

The Michigan Democratic Party had approved the plan and intended to submit it to the Democratic National Committee meeting on May 31. Michigan Democratic Party Chairman Mark Brewer said in a statement that the plan was a "good step toward a solution that unites Democrats and ensures that our state will not face a McCain presidency."

This solution is, numerically, not far off the proposal I suggested. More important, though, is the fact that it was supported by MI’s Democratic Party, even loaded as it is with big Hillary supporters. Even Joel Ferguson (the DNC member who originally submitted a crazy plan punishing elected delegates but not supers), as I understand it, has accepted this proposal.

So what the traditional news isn’t telling you, and Terry McAuliffe isn’t telling you, but I’m gonna tell you is that MI has, for all intents and purposes, been resolved. Hillary supporters have effectively told her that they’re not going to support her scorched earth plans for seating MI. So even though Hillary’s still saying MI hasn’t been resolved, it doesn’t matter–because the people who need to support any scorched earth campaign have already told Hillary they’re not joining her. I presume that’s one of the reasons Obama will be here on Wednesday.

There’s one more tidbit I wanted to share, from a discussion of what the DNC rules committee memebrs–as distinct from the muckymucks in MI who support Clinton but support seating MI’s delegation more–want to do:

But the punishment that the rules committee secretly favors is to take away all superdelegates (54) from both states, since it is elected officials like Michigan’s Sen. Carl Levin and Gov. Jennifer Granholm, along with Sen. Bill Nelson from Florida, who encouraged these outlaw primaries.

Huh. Turns out my proposal might end up being the winning proposal after all.

In their Questions for the Record submitted after he testified, HJC managed to ask Patrick Fitzgerald one obvious question they didn’t manage to ask when he testified at their hearing on Special Counsels (h/t MadDog). What would have happened–or would happen to John Durham, investigating the torture tapes destruction–if a Special Counsel got fired during the course of the investigation? Actually, in the QFRs Fitzgerald got asked about 5 different versions of the question, only one of which elicited a really useful answer (at least as it might reflect on John Durham’s investigation):

13. If you had been fired as a U.S. Attorney, what impact would that have had on the CIA leak investigation? What impact would that have had on your appointment as Special Counsel?

During my tenure, this question did not present itself. It is not clear to me what the legal implications would have been had I been relieved of command as United States Attorney while serving as Special Counsel. (This might be an issue that should be specifically addressed if there is a delegation of power to a sitting United States Attorney in the future as it is entirely possible that a United States Attorney could be asked to resign after a change in administration.) It would appear that unless the United States Attorney were specifically retained in some other capacit (such as a Special Assistant United States Attorney), he or she could no longer serve as a Special Counsel who was employed by the Department of Justice and whose authority had been delegated by the Attorney General. It would be possible that a new appointment could be made for such a former United States Attorney which would provide that he or she would serve as a Special Counsel from outside the Department of Justice pursuant to the appropriate regulations.

Had I been relieved of command as United States Attorney while conducting the CIA leak investigation, even if a legal basis were established for me to continue as Special Counsel or in some other proper capacity, I would nevertheless have had to determine whether it would be appropriate for me to continue representing the government under all of the circumstances. I would have had to consider whether my ability to be effective had been undercut and whether any decision I made to prosecute or not prosecute a case (or whether to further investigate any matter) might reasonably subject the investigative team to the criticism that I (or others on the team) might harbor a bias against the administration which had relieved the prosecutor of his Presidential appointment. This would be a determination heavily dependent on the particular factual circumstances which led to the termination of my appointment as United States Attorney.

That is, since Rove never managed to get him fired, Fitzgerald never had to think these things all the way through. But if he had been fired as USA, he would have had to be reappointed to some other position to continue the investigation in a constitutional manner. In any case, though, the threat of firing would present the difficulty that, even if he were appointed to some other position, his investigation might be tainted by the appearance that his prosecutorial decisions might be biased because he had been fired.

In other words, the threat of firing a prosecutor investigating top Administration officials does present a possible problem.

But that’s not the version of the "what if you got fired" question that I find most interesting. Rather, there’s a question that asks specifically if Fitzgerald became aware of efforts to fire him during the course of the CIA Leak investigation. Fizgerald refuses to answer … because of the ongoing Rezko case.

11. When one U.S. Attorney concurrently serves as a Special Counsel, is it appropriate for the Justice Department or the White House to consider firing all 93 U.S. Attorneys? Please explain.

National Public Radio has reported that, according to "someone who’s had conversations with White House officials, the plan to fire all 93 U.S. Attorneys originated with political adviser Karl Rove. It was seen as a way to get political cover for firing the small number of US Attorneys the White House actually wanted to get rid of." Ari Shapiro, Documents Show Justice Ranking US Attorneys, NPR, April 13,2007. Many have speculated that Mr. Rove’s goal in proposing the U.S. Attorney firings was to pressure and intimidate you. When Mr. Rove made the suggestion to fire the U.S. Attorneys, he had already been before the grand jury several times in the Scooter Libby case. To your knowledge, is this account correct? Please explain why or why not.

During the CIA leak investigation, were you aware of any conversations that you might be asked to resign? If so please describe all such conversations, including the substance of the conversations, when they occurred, and the names of those who participated.

I do not know if the referenced account of events is correct or not.

As to whether I was aware during the relevant time period of the investigation that I might be asked to resign, I will respectfully decline to discuss matters currently at issue in a trial ongoing in the Northern District of Illinois.

Fitzgerald is referring, of course, to the multiple times during the Rezko trial when a witness has testified that Rezko and Bob Kjellander talked about having Rove fire Fitzgerald to scuttle the investigation into Chicago corruption. But that’s not, of course, what HJC asked him–they asked him about the CIA Leak case, and they made a reference specifically to coverage of the USA Purge.

To understand why this is interesting, consider the timing. These QFRs almost certainly went out within a week of February 26, when Fitzgerald testified before HJC. While there had been speculation that Rezko and Kjellander might have tried to get Fitzgerald fired, that speculation wasn’t confirmed during the Rezko trial until April 23. Now, the date on Fitzgerald’s repsonse (which went through DOJ’s minder) is May 2–after, but not long after, the revelations in the Rezko trial. And here HJC has it, conveniently before the closing arguments finish in the Rezko trial, so Fitzgerald can’t legitimately answer when he learned–over the course of the Rezko investigation–that Kjellander was working with Rove to get him fired.

But unless Fitzgerald learned that fact "during the CIA leak investigation," the answer wouldn’t be on point at all. That is, as Fitzgerald suggests with his other answers, he didn’t learn he was on the USA Purge list until the media started asking DOJ about it last year:

I first learned about an evaluation of me by Mr. Sampson at the time of an inquiry by the media to the Department of Justice indicating that the media was aware of such evaluation. A colleague from the Department of Justice told me about the media inquiry and the substance of the document inquired about.

But, by his answer to this question, Fitzgerald suggests he did learn of efforts by Kjellander and Rove "during the CIA Leak investigation." Now, I’m not convinced that means Fitzgerald learned of Kjellander’s efforts before he gave Rove the all-clear in June 2006–but it sure suggests that’s a possibility.

Update: fixed basic grammar per watercarrier. 

A number of you have pointed to smintheus’ excellent post on Bush’s new classification, Controlled Unclassified Information.

On Friday afternoon, with George Bush in Texas for his daughter’s wedding, the White House finally released its new Executive Branch rules for designating and disseminating what used to be known as "sensitive" information. The most common term in the past for such material has been "Sensitive But Unclassified" (SBU), though there was an alphabet soup of competing classifications in various agencies. In part, the new rules create a uniform standard across the Executive by replacing SBU etc. with a new classification, "Controlled Unclassified Information" (CUI).

The Friday memo states that its purpose "is to standardize practices and thereby improve the sharing of information, not to classify or declassify new or additional information." The initial impetus for change came in a December 2005 memo in which Bush called for a new policy for information sharing between agencies. The alphabet soup of "sensitive" designations too often played into the hands of officials who sought to hoard information rather than to share it.

[snip]

Though the material to be regulated is nominally "unclassified", this new system is in fact a much more sweeping program for keeping information secret than the ostensibly higher grades of secrecy for "classified" material. And at the same time, the system for designating "unclassified" information is in significant ways far less regulated than for "classified" information. This new memo represents the opposite of reform.

I agree with smintheus that this classification is simply an invitation for bureaucratic games that result in less information sharing rather than more.

But at the same time, with the increasing evidence that it doesn’t matter what Bush says the classification guidelines are, key players in his Administration will just do as they please anyway, I’m not sure the CUI is the worst of our worries.

Consider the example offered by Bill Leonard in his statement for Russ Feingold’s April 29 30 [thanks selise] hearing on Secret Law. Leonard focused most of his attention on the improper classification of the Yoo Torture Memo authorizing the military to torture; he offered quite a striking soundbite about the memo:

To learn that such a document was classified had the same effect on me as waking up one morning and learning that after all these years, there is a "secret" Article to the Constitution that the American people do not even know about.

But I found the details of Leonard’s discussion even more interesting. He lists the several ways in which the classification of the memo violates the guidelines for classification (much of which he had already explained–as noted in this post).

• The original classifier of the memo was not identified
• The original classifier may not be one of the 4000 people authorized to classify information
• The memo lacked declassification instructions
• The memo lacked an explanation for why it was classified
• The memo did not indicate which portions of the memo were classified and which were unclassified
• DOD declassified a memo apparently originally classified by DOJ

But it was not just the original classifier and eventual declassifier that violated the written rules on classification. So did Jim Haynes, Alberto Gonzales, and David Addington.

In addition, the memo was addressed to the most senior legal official within the DoD and was reportedly shared with some of the most senior officials in the Executive branch, including the then White House Counsel as well as the then Counsel to the Vice President. Like all people with a security clearance, per the President’s direction in the governing Executive Order, each of these government officials had the affirmative responsibility to challenge the inappropriate classification of information.

[snip]

… the President’s governing Executive Order makes it abundantly clear that people who "classify or continue the classification of information in violation of [the] order or any implementing directive … shall be subject to sanctions … [to] include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions…" There is no evidence to suggest that such sanctions have been imposed in this instance. Failure to apply sanctions makes it increasingly difficult to preserve the integrity and credibility of the classification system, a process that is an essential national security tool. [first ellipsis mine, remaining brackets and ellipses original]

If the Scooter Libby trial taught us anything (aside from the fact that Dick Cheney apparently ordered Libby to expose a CIA spy), it’s that the Administration is not going to punish its own for violating rules on classification and declassification.

But Leonard’s statement goes on to illustrate the fundamental hypocrisy of the Administration when it comes to classification. Leonard points out (as I also did) that all these fancy Administration lawyers violated the EO on classification they were writing even as they were improperly classifying the Yoo Torture Memo.

What is most disturbing is that at the exact time these officials were writing, reviewing, and being briefed on the classified nature of this memorandum, they were also concurring with the President’s reaffirmation of the standards for proper classification, which was formalized the week after the OLC memo was issued when the President signed his amended version of the Executive Order governing classification.

Leonard is too polite to say it, but basically the Administration was reiterating rules about classification for others that they had absolutely no intent of following themselves.

Such rank hypocrisy is only possible when you’ve got a lackey like John Yoo around to do your dirty business. As Leonard also points out, this improperly classified memo happened to be written by the same people who were responsible for interpreting that same EO on classification.

What is equally disturbing is that this memo was not some obscure, meaningless document written by a low-level bureaucrat who did not know any better and had inadequate supervision. Rather, the memo was written by the Deputy of the OLC, the very entity which has the responsibility to render interpretations of all Executive Orders, a responsibility that includes interpretating the governing order that distinguishes between the proper and improper classification of information.

Now I don’t yet have proof that Bush’s top lawyers formally used Pixie Dust to exempt themselves from the EO on classification even while they were writing it. Or whether they just don’t care, whether they simply believe that rules are for other people and it doesn’t matter what rationale they invent for ignoring their own rules, they’ll find some way to squirm out of responsibility just as they did with the CIA Leak.

But one thing is clear. No one should accept a memo on classification from George Bush as anything more than a bunch of hypocritical posturing. This President doesn’t give a damn what happens to information so long as he can selectively expose or hide information in ways that hurt his political enemies and hide his own law-breaking.

Update: transcription error fixed per MarkusQ. 

Marty Lederman links to the important opinion disqualifying General Thomas Hartmann from any involvement in Salim Ahmed Hamdan’s–Osama bin Laden’s driver–military tribunal. (Kudos to Marty Lederman for thwacking the traditional media for touting an opinion’s limited availability–and then not providing a link to that opinion.)

As Marty notes, the opinion does much more than the traditional press coverage of the opinion lets on–though as always, Carol Rosenberg’s coverage of the show trials is quite good. The opinion basically affirms that the Gitmo show trials under Hartmann have been just that–trials driven by political motivations rather than legal evidence. Go read the opinion, written by Judge Keith Allred, for the timeline it offers of Hartmann’s (and others’) attempts to tailor the show trials to political considerations.

I’m particularly interested in the coincidence of timing the opinion reveals. The Bush Administration started crafting its show trials at precisely the same time–fall 2006–when it was engineering the firing of 8 US Attorneys for political reasons.

5. About 28 September of 2006, [Colonel Morris Davis] attended a meeting of the Senior Oversight Group, held in the office of Deputy Secretary of Defense Gordon England. During one of these meetings, Mr. England said "there could be strategic political value in getting some of these cases going before the [November 2006–editorial comment original] elections. We need to think about who could be tried" or words to that effect. The commission takes judicial notice that the Supreme Court issued Hamdan v. Rumsfeld in June 2006 and that the Military Commissions Act was not signed until late October 2006. Consequently, there was no possible way in which any military commission case could be referred, much less brought to trial, before the November 2006 elections.

[snip]

Colonel Davis viewed [England’s] remark as an opinion, rather than a command. Colonel Davis affirmatively denies that this statement had any effect on any decision he made with respect to Mr. Hamdan’s case.

7. During the same meeting, then-Under Secretary of Defense for Intelligence Mr. Steve Cambone opined that Department of Defense (DoD) attorneys were not sufficiently experienced to handle these cases, and that they needed to get some Department of Justice (DOJ) attorneys involved. Although no DOJ attorney had made an appearance in a military commission hearing before that date, they have since been assigned to military commission trial teams.

Now, this fall 2006 meeting was not the first moment the show trials were conceived as such. After all, Jim Haynes’ famous statement that "We can’t have acquittals. We’ve got to have convictions" occurred in September 2005, when Haynes first interviewed Davis for the job of Chief Prosecutor. And Hartmann didn’t get involved until much later–he started as the Legal Advisor to the trials on July 2, 2007, after which he started calling for "sexy" trials and the use of evidence gained through torture. The bulk of Allred’s opinion focuses on how, by inserting Hartmann into Morris’ chain of command and then reinforcing that chain of command in October 2007, the Administration required Davis to meet Hartmann’s political and legally suspect demands. (Note, much of Allred’s opinion pertaining to Hamdan will have much broader effect over other Gitmo detainees. Allred points out that Hamdan was already charged before Hartmann started mucking things up. For those who weren’t yet–but have since been–charged, this opinion will have much greater consequences because it’ll mean Hartmann’s influence may be more central to the decision to charge. Rosenberg, for example, reminds that Hartmann just signed off on the plan to prosecute Khalid Sheikh Mohammed.)

But I find it instructive that at this meeting in fall 2006, top Administration officials were concerned not about complying with SCOTUS’ ruling in Hamdan, but with a way to gain political advantage from the show trials. Further, I find it mighty interesting that–at precisely the same time as Bush was trying to purge DOJ of the US Attorneys who wouldn’t bring politically sensitive cases on demand–Stephen Cambone was getting DOJ more involved in the Gitmo show trials.

There’s one more very fascinating detail in the opinion. In the explanation why Judge Susan Crawford–the Convening Authority–didn’t need to be removed from the Hamdan case, Allred argues that Crawford had not been given detailed instructions about individual cases. The opinion also notes that Crawford had little interaction with Jim Haynes about the cases. But then it goes on to note that Crawford has had no interactions with two people outside the chain of command that led to problems for Morris Davis.

She has never met Stephen Cambone or had any communications with him. She has never spoken to the Vice President or anyone in his office about military commissions.

Mind you, the sole reference to Cambone in this opinion is the one I noted above–discussing the September 2006 meeting. There are no references to Dick Cheney at all.

Yet for some reason, Allred goes out of his way to note that Crawford (who started more than a month after Cambone resigned) had not been tainted by Cambone, Cheney, or anyone else in Cheney’s office. I find that particularly interesting given the allegation that OVP did some selective leaking (just like they did with Judy Miller) to make sure evidence about a different Gitmo show trial defendant would be released to the public.

I wanted to focus some attention on one tiny part of the interchange I highlighted yesterday. In the guise of explaining to Administraton apologist David Rivkin the Kafkaesque process by which he has gotten some of the Office of Legal Counsel’s opinions declassified, Sheldon Whitehouse revealed he has been trying to get one more opinion declassified–one relating to exclusivity:

I’d be delighted to show you the whole rest of the opinion [stating that the President tells DOJ how to interpret law] but I’m not allowed to. It’s classified. I had to fight to get these declassified. They made me take … they kept my notes. They then delivered them to the intelligence committee where I could only read them in the secure confines of the intelligence committee and then I had to, again, in a secure fashion, send this language back to be declassified. I’m doing it again with a piece of language that relates to exclusivity. There is a sentence that describes whether or not the FISA statute’s exclusivity provision is really exclusive enough for the OLC and that is, we’re still going through this process. I’d like to be able to tell you more about this.

Exclusivity, you’ll recall, refers to the language in the original FISA bill that requires that FISA be the only means under which the executive branch conducts domestic surveillance. Here’s Anonymous Liberal on exclusivity:

Perhaps the most important provision in the entire FISA legal framework is 18 U.S.C. § 2511(2)(f)–commonly known as the exclusivity provision–which states that the "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

It is through this provision that Congress made it clear that FISA’s warrant requirement and other procedures were mandatory and that it did not intend to leave the president with any residual authority to conduct warrantless surveillance outside of the FISA framework.

Now, as AL points out, the Protect America Act introduced a loophole by which the Administration could get around the exclusivity provision, one DiFi has been trying to ensure stays closed in the amended FISA, and which the Administration hopes to keep open. But what Whitehouse seems to be pointing to is the means by which the Administration dismissed the clear requirement that FISA be the only (that is, exclusive) means by which the Administration could tap Americans. We know the Administration, when pushed, claimed that the Authorization for Military Force was legislation that superseded FISA, but Tom Daschle has clearly debunked that cute little legal theory.

Given this little tidbit from Whitehouse, it appears there’s some more John Yoo (presumably) sophism designed to suggest that exclusivity doesn’t mean exclusivity.

Updated with Selise’s YouTube. Thanks Selise!

As a number of you pointed out in comments discussing Russ Feingold’s secret law hearing that took place while I was on my trip, NYT believes that Pixie Dust–the process by which the President can "modify" his own executive orders by simply ignoring them–has never before been publicized.

At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation. [my emphasis]

By "unpublicized," I guess they mean "never before scarred a dead tree," because Sheldon Whitehouse gave a great speech about it, I wrote a whole series of posts about it, and Selise’s YouTube of Whitehouse’s speech got a whole bunch of views.

Which, I guess, is a great way to introduce the news I just got today: my Guardian column on Pixie Dust is a finalist for Project Censored from last year–one of the twenty-five most important but under-covered stories from last year.

Woohoo!

Which makes the following exchange all the more ironic. When I reviewed the Senate webcast from the hearing, I couldn’t help but appreciate the drama of Sheldon Whitehouse discussing the shoddy bases on which Bush’s three assertions of Presidential super-legality depend. As designated Adminsitrative Unitary Executive David Rivkin apologist tried to defend these opinions, he complained that he couldn’t see the whole opinion.

Uh huh. Now you’re getting it!

Here’s Whitehouse, describing the precedents on which these opinions rely (my transcript, all mistakes my own).

Then you see something like this [points to the Executive Order opinion]; I won’t go through it it’s been in the testimony already. That’s a pretty alarming proposition, that an executive order is just ignorable willy-nilly with no reporting. And when it became apparent that I was going to release this and I had it declassified, I was told it stands on precedent, and when they told me what the precedent was, the precedent was a Griffin Bell opinion that said the President can legally revoke or supersede an executive order at will.

Of course the President can legally revoke or supersede an executive order at will! There’s a process for doing that. That’s a completely different proposition than saying that the executive can use the executive orders of this country as a screen behind which they can operate programs directly contrary to the text of the executive order.

So there’s one example. The other one that I declassified was the proposition that the President has … exercising its constitutional authority under Article II can determine whether an action is a lawful exercise of the President’s authority under Article II. I mean, aside from the pulling yourself up by your own bootstraps nature of that argument it stands on an earlier opinion that says the executive branch has an independent constitutional obligation to interpret and apply the Constitution. Well, of course they do in the exercise of their duties. But among the things that that opinion goes on to say is that it requires deference to legislative judgments. Once you hang it off Article II, which the executive under this Unitary Executive theory claims is immune from either legislative or judicial intrusion, you’re now saying a very different thing. When you actually see the opinion and see how the extra steps have been taken, you know, you know it’s a little bit, something else is going on other than just plain legal interpretation.

The last one, this is my justice bound, the Department of Justice is bound by the President’s legal interpretations. I thought we’d cleared that when President Nixon told an interviewer than if the President does it, it’s not illegal. That stands on the proposition that the President has the constitutional authority to supervise and control the activities of subordinate officials within the executive branch. But the idea that the Attorney General of the United States and the Department of Justice don’t tell the President what the law is and count on it, but that rather it goes the other way opens up worlds for enormous mischief.

It’s a sweeping proposition, and the three of them as precedent open enormous avenues for further mischief if you’re going to climb out and out and out further on your own precedent.

Rivkin states that he sees no cost to making these propositions public, and–attempting to recuperate them–complains that he has only one sentence to use to assess the opinions. To which, of course, Whitehouse responds that he’d love to give Rivkin the full opinions (thus proving the central point of the entire hearing).

I’d be delighted to show you the whole rest of the opinion but I’m not allowed to. It’s classified. I had to fight to get these declassified. They made me take … they kept my notes. They then delivered them to the intelligence committee where I could only read them in the secure confines of the intelligence committee and then I had to, again, in a classified fashion, send this language back to be declassified. I’m doing it again with a piece of language that relates to exclusivity. There is a sentence that describes whether or not the FISA statute’s exclusivity provision is really exclusive enough for the OLC and that is, we’re still going through this process. I’d like to be able to tell you more about this.

John Elwood, the OLC lackey, pipes in at this point, to try to salvage the opinion on executive orders.

You should also have been provided an opinion that has been public for twenty years and was put out by the office and provided to Congress in 1987 which reads as follows: EO 12333, like all executive orders, is a set of instructions from the President to his subordinates in the executive branch. The activities authorized by the President cannot violate an executive order in any legally meaningful sense because this authorization creates a valid modification of or exception to the executive order. So this is not secret law, this is as public as it can get.

Whitehouse, once again using the Republican shills to make his point, responds,

There’s an important piece missing from that.

Which is, not telling anybody.

And running a program that is completely different from the executive order without ever needing to go back and clean it up.

But that’s okay. Elwood makes it all right!

This opinion involved a secret modification. It involved Iran-Contra.

Oh, okay. That worked out so well. That was such a constitutionally sound action. And twenty years later, as the Administration continues to skulk around meeting with the same joker that robbed them blind during Iran-Contra, I can totally see the value of keeping that game secret. Not.

Hopefully, with the NYT and Project Censored picking up on Pixie Dust, it won’t remain such a mysterious concept anymore. Secret law, I’m hoping, won’t be so powerful a tool anymore if it is no longer secret.

I’m going to revise what I said yesterday when I suggested there was no method to Scott Bloch’s madness. After reading the longer document summarizing the Office of Special Counsel’s Task Force investigations, several key patterns stick out:

• For investigations pertaining to DOJ, the Task Force’s investigations got caught up in the turnover between Alberto Gonzales and Michael Mukasey
• For the investigations pertaining to the politicization of federal agencies, the Task Force was presented with real jurisdictional issues that presented challenges for the inevstigation

This doesn’t mean Bloch is a particularly good manager or investigator. It appears, rather, that he got in over his head when he attempted to take on this high level investigation in May 2007 and, certainly by November 2007, had made these investigations personal.

Timing

The timing reflected in the document reveals some of the problems with the Task Force itself. It was formed in May 2007 to conduct larger investigations–primarily the politicization of government agencies (arising out of Henry Waxman’s own investigation of Lurita Doan), and the politicization of DOJ. Thus, it was started after both those events had significantly played out and (in the case of DOJ) many of the players had quit. The Task Force also inherited a couple of investigations started earlier–primarily an investigation into Rove’s travel started in March 2006.

That means the Task Force didn’t really get started until June 2007. On August 27, 2007, Alberto Gonzales resigned. Michael Mukasey was nominated on September 17, 2007, and approved by the Senate on November 8, 2007. Then this document was drafted on January 18, 2008. So what we’re seeing in the document–particularly as it relates to anything pertaining to DOJ–are the activities taking place after the trauma resulting from the USA Purge and through the period of transition between Gonzales and Mukasey. This explains at least some of the issues surrounding the investigations into DOJ.

For example, OSC had already begun an investigation into the Iglesias firing on May 4, 2007. Remember–that investigation was originally started because the Administration stated publicly that they fired Iglesias because he was an "absentee landlord" because he traveled so much in connection with his service in the Naval Reserve. Firing Iglesias for such a reason would violate the Uniformed Services Employment and Reemployment Rights Act, which prohibits firing a service member for absences due to military service. Somehow, by May 17, the newly-created Task Force was also investigating his firing as a possible Hatch Act violation, and by May 22, it was investigating the firing of all the USAs. So the OSC took an investigation over which OSC had clear jurisdiction and broadened it into one in which it didn’t.

As early as May 4 (that is, even before the Task Force was created), this investigation conflicted with DOJ’s joint Inspector General (OIG)/Office of Professional Responsibility (OPR) investigation into the firings. On May 4 and May 29, DOJ complained about jurisdictional issues, even involving unnamed people in Office of Legal Counsel (OLC).

Now, at this point, I don’t necessarily fault Bloch for pursuing this investigation. Alberto Gonzales was attempting to bury the investigation by giving OPR sole jurisdiction, meaning the investigators would report directly to him and not produce a public report. And given the crap that has come out of the Bush OLC, who knows what OLC was saying to Bloch to justify their argument that he should drop his investigation?

The problem, though, is that OSC only would have jurisdiction if Bloch could prove that an executive branch employee–as distinct from a legislative branch employee or a local politico–pressured the USAs to conduct politicized investigations. In other words, if it was clear that Monica Goodling was pressuring Iglesias et al to prosecute Democrats, then Bloch would have jurisdiction; but if Senator Domenici and Heather Wilson did so, Bloch wouldn’t have jurisdiction. And the only way Bloch might get evidence that executive branch employees were involved would be to get the kind of information that DOJ and–especially–the White House refused to turn over to Congress.

As it happens, OSC requested those documents on August 13, 2007, just two weeks before Gonzales resigned. DOJ didn’t turn anything over by the OSC due date, September 13, after Gonzales resigned and just after Mukasey was nominated. The Task Force and Bloch spent the next several months wavering about whether to negotiate cooperation with DOJ or whether to subpoena documents. By the time they actually got into a real conversation with the now-Mukasey led DOJ about cooperating on January 16, DOJ was (according to public reports) deep into an OIG-led investigation into the firings. Since this document was published on January 18, just two days after DOJ asked OSC once again to hold off, we don’t know from the document what has happened in the last four months.

Now, the timing concerning the politicized hiring (Monica Goodling’s "over the line" stuff and civil rights hiring) is a little more curious. The Task Force apparently did not consider investigating this crystal clear violation of the Hatch Act until August 20. For some indication of how late that was, I first figured out that Goodling was issuing loyalty oaths on March 29, and Goodling testified to "crossing the line" on May 23. Bloch told the Task Force not to open an investigation into the politicized hiring on August 29, just two days after Gonzales resigned. Now, it appears that OSC did not move on the investigation because of the DOJ investigation into these issues. But it also appears they were learning about the DOJ investigation second-hand, via David Iglesias. In other words, unlike with the USA purge investigation, Bloch did not choose to fight with DOJ over this investigation, even though this one fits more squarely into OSC’s jurisdiction.

That obviously ought to raise questions–why investigate the firings, when jurisdiction is a stretch, and not the hirings, where jurisdiction is clear? That’s where I stop understanding Bloch’s decision. Still, given all the rest of his decisions, it wouldn’t surprise me if he was just struggling to turn these investigations into something meaningful with little real consideration of what his real mandate was.

There are two more investigations that fall under this timing: Siegelman and Schlozman. Both, though, fall into that grey transition time between the resignation of Gonzales and the start of Mukasey. The Task Force started investigating the Siegelman case in September 2007, and was told not to convene the investigation in October 2007. The Task Force started investigating the Schlozman case in November 2007 and was told not to open a case a week later.

Jurisdiction

The decisions surrounding OSC’s investigation of the politicization of executive branch agencies seem to come from jurisdictional issues created by the way BushCo hid their politicization on the RNC server.

The short history of the OSC investigation into the politicization of executive branch agencies goes like this:

June 2007: The Task Force begins the investigation by requesting information from 25 executive branch agencies and the White House

September 2007: The Task Force begins to receive information in response to requests to agencies

October 2007: The Task Force receives information from White House

November 14, 2007: Bloch directs the Task Force to do some consolidation of investigations–and to close some other investigations

November 14, 2007: Bloch directs the Task Force to go after RNC emails–the Task Force registers an objection based on jurisdictional grounds

November 14, 2007: Bloch directs the Task Force to go after a large range of information wrt the Office of Public Affairs (Rove’s old shop)–"the Special Counsel wants us to draft a ‘hard hittting’ [request] that will explain everything there is to know about OPA"–the Task Force again expresses concerns about the breadth of the requests

November 21, 2007: Bloch tells the Task Force to request all grant awards–Task Force objects that there is no evidence that suggests such information is necessary

November 26, 2007: The Task Force begins to go after RNC emails released to Congress pertaining to the USA purge

November 28, 2007: WSJ reports on Office of Personnel Management investigation of Bloch (updated per WO’s comment)

December 14, 2007: The Task Force submits a draft subpoena for the RNC emails released to Congress pertaining to the USA purge

January 16, 2008: Bloch tells the Task Force to go much broader with its request for RNC emails–to cover 10 different topics

January 18, 2008 (the day this summary was completed): The Task Force subpoenas all RNC emails concerning grants and other executive branch agencies

I find this investigation a lot more curious than the investigations related to DOJ. At one level, after the OSC started receiving a bunch of information in November, it appeared that investigators judged there wasn’t much there, and got uncomfortable with the scope of the requests Bloch was forcing them to submit. That suggests that Bloch was determined to find something, even if there was no evidence there. At around the same time, Bloch was pushing the Task Force to push a second investigation into Lurita Doan, so it appears that in November, Bloch was desperate to prove that his signature investigations had real substance.

There’s one thing I don’t particularly buy about that reading, though. One of the biggest smoking guns from the Lurita Doan/GSA investigation was the treatment of email from Scott Jennings (Rove’s lackey) to Doan. The email, remember, went through the RNC server. And those involved wanted to keep it hush hush. In other words, BushCo deliberately tried to hide the way it was politicizing agencies by keeping all communication about it off of government servers.

Which is why I find the investigators’ proposed actions surrounding the RNC emails inexplicable. While I respect their contention that asking for all emails sent by OPA employees using the RNC server may be too much, I also think there’s ample reason to believe that those emails were deliberately used to hide stuff. And remember, we already knew by this time–in November 2007–that the RNC said it didn’t have a bunch of these. So part of me wonders whether the investigators–and not Bloch–were trying to cover up BushCo Hatch Act abuses. Add in the fact that the Task Force’s first request was even more inexplicable. How are emails turned over relating to the USA purge going to reveal anything about political briefings? In other words, after complaining that the Bloch’s request for emails from the RNC was too broad, investigators then tried to request only emails that had nothing to do with the subject of the investigation!

So I don’t know what to make of Bloch’s big requests in November 2007. On one hand, they appear to be the work of a man obsessed, who found nothing on first glance and then decided to make hugely ambitious requests. On the other hand, his investigators seem–either out of genuine concern for their jurisdiction or because they don’t want to find anything–unwilling to go after the most likely evidence of politicization.

And since they only made the big request from the RNC on January 18, 2008–the day this draft was written–we can’t tell from the document what happened after they made that request.

Update: I was too deep into the timeline of the document. As William Ockham points out, Bloch starts ramping up this investigation in November just as it becomes clear the Office of Personnel Management was investigating him. That doesn’t explain why his investigators wouldn’t pursue the most likely potential evidence of Hatch Act violations, but it does explain why he ramped up his investigations in November. Thanks WO.

Update: Spelling typo fixed per MadDog.