I laid out earlier all the details that Stephen Hayes suppressed for his hagiography of Dick Cheney. There are two areas in which his propaganda tract is useful, the second of which I’ll deal with in a later post.

Declassifying the Trip Report

The first is a consistent theme Hayes uses for his tale about OVP’s involvement in the Plame leak. He says that, from day one, OVP wanted to leak the trip report to rebut Wilson’s claims. In June, Hayes tells, they wanted to leak the details of the trip:

But they could give reporters few concrete reasons to be skeptical about Wilson’s allegations; the details of the trip were still classified.

Then, in response to Wilson’s op-ed, the White House wanted to declassify the details (watch this language closely, because Hayes completely obscures when the White House got the report):

White House officials were stunned. They had obtained from the CIA the Agency’s one-and-a-half-page report on Wilson’s trip.

"We were given the contents of what the report had said," says one White House official. "The guy goes over there and comes back and says Iraq was looking for uranium. We though, ‘Shit, we should declassify that and put it out.’"

After telling the Mayaki story, Hayes notes:

But journalists covering the story had no way to know this. So the White House considered declassifying the report and releasing it.

And then Hayes blames Hadley for not pressuring Tenet to declassify it.

Several of Bush’s advisers–a group that included such normally cautious officials as the White House Communications Director Dan Bartlett and Anna Perez of the National Security Council–wanted to declassify and release Wilson’s report. But there were risks. Confronting Wilson on his fabrications might further antagonize the CIA.

[snip]

The deputy national security adviser, Stephen Hadley, was on the phone several times a day with George Tenet, handling the sensitive diplomacy between the White House and the CIA. Hadley did not want to do anything to further antagonize the CIA leadership. So despite the fact that Joe Wilson was free to discuss and mischaracterize his report–the CIA never made him sign a nondisclosure agreement–Wilson’s report would remain classified.

Marty Lederman notes that Cheney’s latest dodge includes a reference to the ruling that limits Congress’ oversight over the Executive strictly to those areas where it pertains to legislation. From that, he argues that Cheney’s response was premised on the belief that FISA itself is an illegal restriction on the Executive.

Finally, the letter lists numerous reasons whythe VP’s office might not release the requested documents. The secondof those reasons is this:

The Office of the Vice President reserves the limitations on congressional inquiries set forth in Barenblatt v. United States, 360 U.S. 109 (1959), which makes clear that the power to inquire extends no further than the power to legislate.

Now,I happen to think that this so-called "limitation" on congressionalinquiries is not nearly so clear: Many of the earliest legislativeinvestigations were not for the purpose of designing statutoryamendments, but were instead "only" to investigate wrongdoing ormalfeasance in the Executive branch; and the better view is probablythat Congress has at least some such broad investigative power,unrelated to its lawmaking functions. (The Court has even indicatedthat Congress has an important interest in Executive branchtransparency simply in order to facilitate "the American people’sability to reconstruct and come to terms with their history." Nixon v. Administrator, 433 U.S. at 452-453.)

Buteven if it were the case that Congress can only investigate in areaswhere it can legislate, . . . so what? Such an objection would only bemeaningful in the context of this subpoena if there were some question about Congress’s power to legislate with respect to the relevant Executive branch conduct. 

Sothink about what the VP’s letter is suggesting — that perhaps Congresscan’t legislate on the topic of the government’s domestic electronicsurveillance!

This is, I think, a fairly audacious assertion tobe making at this late date. After all, just a few days ago thePresident himself insisted that Congress legislate forthwith on thisvery subject, and then showered praise on Congress for enacting the "Protect America Act," without suggesting any constitutional disability.

Whatthe letter is getting at here, of course, is the Vice President’slongstanding view that FISA is unconstitutional, and that Congresssimply can’t regulate the Commander in Chief’s collection ofintelligence. In other words, Who Needs the Protect America Act?:Nothing would or could stop us from warrantless surveillance, anyway.

Lederman may be correct in this particular instance. But his conclusion does not necessarily follow from the available evidence. As I have repeatedly shown, the Administration has made precisely the same argument when Congress subpoenaed testimony relating to the USA purge. And as with the warrantless wiretapping program, the claim that Congress had no legislative interest in the matter at hand came after the Administration had very happily accepted the legislation Congress had passed on precisely that matter (in the case of USA Purge, the legislation was the provision of the PATRIOT Act that gave the Attorney General the power to appoint interim USAs).

But unlike the FISA case Lederman examines, there can be no dispute–not even from the Unitary nuts–that Congress has the authority to legislate on interim USAs. The authority is inscribed in the Constitution. Nevertheless, the Administration wanted to contest Congress’ legislative interest in it anyway.

So while Lederman may be right, I don’t think he is. I think the Administration is making a grander argument, one that makes an expansive claim that Congress cannot legislate away any authority enjoyed by the Executive, even one limited by the Constitution.

At least that’s what I infer from the comments of the lawyer from the public defender’s nonprofit that will now take on Wilkes’ defense in one of two cases (thanks to chrisc for sending this on) he has been charged on.

A lawyer from Federal Defenders of San Diego Inc., a nonprofit thatrepresents indigent people accused of federal crimes, will representWilkes in the criminal case with co-defendant Kyle “Dusty” Foggo, theformer third-highest-ranking official at the CIA.

[snip]

Federal Defenders of San Diego has several experienced lawyers who havecleared stringent background checks, Frank Mangan, the nonprofit’ssenior litigator said in an interview. The attorneys have worked oncases of enemy combatants accused of terrorism and who are being heldin Guantanamo Bay, Cuba, Mangan said.

One of the office’s 40 lawyers will appear with Wilkes at ahearing scheduled for next month. At that point, Burns is expected toset a new trial date in 2008.

At issue is that Wilkes’ selected lawyer, Mark Geragos, refused to get a security clearance in a case in which one of the charged crimes has to do with Wilkes and Foggo setting up an air service of the type the CIA uses to conduct its extraordinary renditions. The judge in the case, Larry Burns, threw Geragos off the case and, after reviewing Wilkes’ financial declaration, decided that Wilkes is now indigent and will have a government-paid lawyer. I kind of like the karma that Wilkes will likely be defended by a guy that has also defended the kinds of people Wilkes aspired to deliver unto torture.

I confess. I peeked ahead.

Today, we’re going to play a little quiz game. If you had to pick the parts of the CIA Leak story that Cheney’s hand-picked propagando-biographer would leave out, thereby leaving a picture that Dick Cheney was not centrally involved in the leak, what would you leave out?

The answers are after the jump.

It appears that Dan Eggen has gotten a copy  of the letter from Dick’s office, detailing which documents he has that respond to FISA subpoenas. Among other things, Eggen’s report appears to suggest that the warrantless wiretap program operated illegally for 9 days (and possibly as many as 22 days) before it was amended to satisfy DOJ; previously, we had only know it had operated illegally for one day.

Here’re the relevant details:

Nonetheless, Coffin identified by date a series of memos and ordersthat "may be responsive" to the Senate committee’s demands. Theyinclude 43 separate authorizations from President Bush for the program, which had to be renewed approximately every 45 days beginning on Oct. 4, 2001.

Theletter also lists dates, from October 2001 through February 2005, for10 legal memoranda from the Justice Department. Although Cheney’soffice has copies of the memos, none of them "was rendered to theOffice of the Vice President," Coffin wrote.

The disclosure ofthe existence of the documents and their dates sheds new light on someevents surrounding the NSA program, including a now-famous legaldispute in March 2004. A half-dozen senior Justice officials threatenedto resign if the White House did not agree to change parts of theprogram that Justice lawyers had determined were illegal. Coffin’sletter indicates that Bush signed memos amending the program on March19 and April 2 of that year. The details of the dispute have never beenrevealed publicly. [my emphasis]

By my very rough estimate, there should have been about 47 reauthorizations of the program–so 43 is at least close, if the documents cover up until today (though they shouldn’t–they should only cover up until January 10, 2007, since that’s when the authorization of the program changed). But very important: Eggen doesn’t say whether or not those reauthorizations include the March 10, 2004 one that would prove–presuming it bears Bush’s signature–that Bush reauthorized the program after DOJ told him it was illegal. This was the document Sheldon Whitehouse was seeking when Gonzales was last before the Senate.

The line "Cheney’soffice has copies of the memos, none of them "was rendered to theOffice of the Vice President" may well be the dodge mentioned earlier–that Cheney is once again claiming that OVP (as distinct from the Vice President himself), is independent of Executive Office of the President. If that’s what this line is about, it suggests the dodge they’re trying to pull is to pretend none of this is in OVP, so it’s all safely ensconced in EOP in some kind of faerie vault where they keep all the evidence of criminal wrong-doing.

And then there are details showing Bush signed memos amending the program on March 19 and April 2. Here’s how that fits into the chronology from Robert Mueller:

From TPMM, though no details about why or when:

Bradley Schlozman, a former Justice Departmentofficial who was at the center of the U.S. attorneys scandal and isunder investigation by the Departments inspector general for hisalleged efforts to politicize the Civil Rights Division, has finallyleft his post at the Department.

And while we’re counting people leaving DOJ, one of the good guys is leaving, too:

DLA Piper US LLP today announced that Peter Zeidenberg, a leading trialattorney, has joined the firm as a partner in the Washington, D.C.office. He comes to the firm from the U.S. Department of Justice (DOJ)where he served as trial attorney in the Public Integrity Section ofthe Criminal Division.

In his capacity as Trial Attorney,Zeidenberg was engaged in the investigation and prosecution of local,state and federal public officials. His trial experience includesprosecution of some of the highest profile criminal cases handled bythe DOJ.

In addition to winning the "Who’s Your Daddy" contest at the Libby trial, Zeidenberg won the first trial conviction, of David Safavian, in the Abramoff case. Our country will miss the services of Zeidenberg much more acutely than those of Schlozman.

As ThinkProgress reports, the Senate Judiciary Committee was about to issue subpoenas on the warrantless wiretapping program. And then Cheney told Specter no. And Specter did what Cheney told him to do. Lesson number 383,947 in why Specter is the most pathetic piece of haggis in the Senate.

In fact, we were about to issue subpoenas then and one of thesenators came to our meeting and said that the vice president had metwith the Republican senators and told them they were not allowed toissue subpoenas.

Not quite sure that’s my understanding of the separation of powers, but it seemed to work at that time.

I’m just guessing outtamyarse, but what do you want to bet the subpoenas in question were ones Schumer wanted to issue to John Ashcroft, James Comey, and Jack Goldsmith back in February 2006? You know, the ones that would have elicited the hospital story from Comey before the PATRIOT Act got renewed? You think maybe Cheney told Specter that he couldn’t solicit the very same testimony that has gotten the Administration in such hot water this year?

Nah.

I only caught the tail end of Pat Leahy’s uneventful press conference. But apparently, I didn’t miss much. The deadline for the White House still stands–but they’re going to miss it. And Leahy–he says he can’t do anything until everyone returns in September.

But there is something he can do now. Why don’t those on the Senate Judiciary Committee–and anyone else in the Senate who’d like to join in–submit a friend of the court brief in support of the ACLU’s motion to unseal the FISC rulings. It seems that the Administration’s defiance of a Senate subpoena–for which they’re not making a blanket claim of privilege–is reason enough to intervene. It makes the issues the ACLU raised more pressing, since the Administration is defying normal oversight. And it supports the ACLU argument that the Administration is playing games.

Is there a downside to this? Any reason it’d not be beneficial?

Update: Oh, one thing I forgot. Twenty-seven members of Congress signed on to an a.c. brief to the Pentagon Papers case. A very close parallel to a lot of the issues here.

We’ve been hearing inklings of a BushCo plan for a veerrrrryyy slooowwww draw-down of troops. Scott Horton explains the reasoning more clearly than "serious" journalists would.

A major point driving the move has been the Congressional G.O.P. Bushwas told that if he pushed a straight continuation of the Surgestrategy after this fall, he would lose most of the CongressionalG.O.P. One senior Republican Congressional figure is said to have toldhim that the G.O.P. would be “committing suicide” if it went into the2008 elections with the Iraq War as the lead issue and no draw-down insight. Bush has been assured that he can hold the G.O.P. in Congresstogether with an extended, slow paced draw-down.

Now, I’m not surprised, nor will I be surprised when Duncan boasts of telling me so when this proposed draw-down turns into a mirage that gets vetoed by Dick.

But I do find it curious that Rove leaves–all the while promising glorious success in Iraq. Republicans–even Fox News–is surprisingly and publicly gleeful at his departure. And all of a sudden news of a draw-down is floated.

It would be logical for the Republican House to start demanding some changes, after their big losses last year. I guess the GOP Senate has already given up.

Now that I’ve finally gotten around to the ACLU motion to unseal the FISC opinions on the warrantless wiretap programs, I’d like to recommend the original motion submitted by the ACLU. The motion catalogs a good deal of the Orwellian games the Administration is playing and collects, in one place, many of the Administrations evasive tactics regarding the warrantless wiretap program. [I’ve removed all citations from the excerpts below.]

Pushing the Envelope

For example, the motion captures the way the Administration seems to have played the FISC, and with FISC, the clock.

The President reauthorized the NSA Program repeatedly between 2001 and 2007. In January 2007, however, just days before the United States Court of Appeals for the Sixth Circuit was to hear the government’s appeal from a ruling that had found the NSA Program violative of FISA and the Consitution, the Attorney General stated in a letter to the Chairman and Ranking Minority Member of the Senate Judiciary Committee that "any surveillance that was occurring as part of the [NSA Program would] now be conducted to subject to the approval of the Foreign Intelligence Surveillance Court." In the same letter, the Attorney General explained that the changed was made possible because of orders issued on January 10th by "a Judge of the Foreign Intelligence Surveillance Court." The Attorney General characterized the January 10th orders as "complex" and "innovative," and in subsequent testimony to Congress he stated that this Court issued them after the executive "pushed the envelope." He also stated that it had taken "some time for a judge to get comfortable" with the government’s proposal.

If the FISC wasn’t already cranky about being used by the Administration, the ACLU reminds them that they pushed them to breaking point in January, overstepped that breaking point, then complained after FISC objected.