In this post I trace the tangled web in which Tom Davis is investigating Scott Bloch (head of the Office of Special Counsel) at the same time as Bloch may be investigating Tom Davis. The short logic goes like this:

• Tom Davis is investigating Scott Bloch (and collecting all Bloch emails that refer to any legislator)
• The WaPo story on Sunday looks like it was based primarily on leaks from OSC
• It included details that extend back to the time Davis worked with Rove on these issues
• This suggests Bloch may include Davis among his targets
• But Waxman, when he sent out a fresh request for this information today, did not request documents that might incriminate Davis

The Leaks to WaPo Appear to Come from OSC

I said on Sunday that someone on the Government Reform Committee might be a source for the material in the WaPo’s story on Rove’s asset deployment teams. But today, Waxman cites that story as a preface to his request for more documents from the agencies that were part of the program.

On Sunday, The Washington Post reported that these politicalbriefings were part of a systematic and coordinated effort by WhiteHouse officials to leverage the resources of the federal government “toensure the maximum promotion of Bush’s reelection agenda and theRepublicans in Congress who supported him.” The Post reportedthat Karl Rove, the President’s political advisor, organized an “assetdeployment team” that enabled the White House “to coordinate the travelof Cabinet secretaries and senior agency officials, the announcement ofgrant money, and personnel and policy decisions” with the chief WhiteHouse liaison from each Cabinet agency. According to the Post, the meetings of the asset deployment team occurred sometimes as often as once a month.

In today’s letter, Waxman cites one letter that may be one of the ones cited in the WaPo. Here’s Waxman:

According to the documents, the White House invited 18 federal agencies, including yours, to asset deployment meetings in 2003.

And here’s the WaPo:

Several people noted the announcement that DOD was shutting down the TALON database, wondering if the database was just going to be renamed down the line, as TIA seems to have morphed. Apparently they missed this detail:

It will be closed on Sept. 17 and information collected subsequently on potential terror or security threats to Defense Departmentfacilities or personnel will be sent by Pentagon officials to an FBIdatabase known as Guardian, according to Army Col. Gary Keck, aPentagon spokesman.

Give credit to William Arkin, who actually listed this database when he appeared on Democracy Now to talk about the Talon database:

AMY GOODMAN: Does this concern you?

WILLIAM ARKIN: What do you think? Of course, itconcerns me. I mean, I think that this is just one tiny picture of theactual amount of information which is collected by the F.B.I. and theintelligence community. We know that there are dozens of thesedatabases, Cornerstone, TALON, [inaudible], the Coast Guard ICCdatabase, the F.B.I. Guardian database, the F.B.I. TRRS database, theJoint Intelligence Task Force Counterterrorism Homeland Defensedatabase, the SSOMB database, the BTS summary, the C.I.A. TD database,the NSA traffic database called Criss-Cross. I mean, we know that thesedatabases are out there and that they all deal with domestic issues.

What is particularly worrisome right now is that the NationalCounterterrorism Center, which was set up as part of the Office of theDirector of National Intelligence, is now working to conglomerate allof these databases and that the Counterintelligence Field Activities,CIFA of the Department of Defense, is working to ensure that themilitary gains access to all of these databases, as well. So each ofthese, which goes into the creation of various watch lists and varioustip-offs for the military or the intelligence community to surveilcertain people, that determine the key words that the NSA or the F.B.I.then uses in its surveillance to catch certain emails or certaintelephone conversations or certain international communications, all ofthese are now becoming more and more efficiently employed, the notionbeing that somehow we’re going to catch the next Mohammed Atta, but thereality being that huge numbers of innocent, non-threatening Americancitizens are being sweeped up in this gigantic swirl.

So while this particular database is out of control of CIFA and under control of the FBI (anyone thinking of how well FBI managed the National Security Letters), that may just mean the data is now accessible to more people. And like the TALON database, the Guardian database is apparently not very well-suited to perform its function (or at least wasn’t, last year).

While the FBI has created the Guardian Threat Tracking System(Guardian) to manage the resolution of threats and suspiciousincidents, this system is neither easily searchable nor a useful toolfor identifying trends in types of incidents. As a result, during ouraudit the FBI could not identify the number of maritime-related threatsfrom 2002 to the present.

I can’t decide which is worse. That they have these databases. Or that they can’t build them to be effective.

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.