As Christy has reported, Senators Schumer, DiFi, Feingold, and Whitehouse have called on Paul Clement to appoint a Special Counsel. I’m underwhelmed with the idea, for several reasons. First, Clement is clerkship spawn of Laurence Silberman and Antonin Scalia, both of whom have well-earned reputations for putting their partisan loyalties (and duck hunting hobbies) above their commitment to independent justice. So what’s to stop Clement from appointing Ken Starr, who I’m sure could declare Alberto Gonzales innocent before the end of August’s recess?

There is, of course, the outside chance that Clement would do the right thing and appoint someone who could bring some independence to the investigation. To offer a ray of support for the suggestion, Clement is many smart people’s first choice to be the answer to this Sidney Blumenthal puzzle.

Yet another Bush legal official, even now at thecommanding heights of power, admits that the administration’s policiesare largely discredited. In its defense, he says without a hint ofirony or sarcasm, "Not everything we’ve done has been illegal." Headds, "Not everything has been ultra vires" — a legal term referringto actions beyond the law.

At the time, I voted for Fred Fielding, but I think Clement a very like candidate. So if he is, indeed, willing to publicly declare the Administration to be breaking the law, then maybe he’d pick someone competent. And heck–DC’s a small place, maybe the four Senators calling on Clement know this.

But aside from the question of whether Clement will pick someone competent, I have these two complaints. First, the Senators endorse the ongoing IG/OPR investigation of the USA firings.

I find the list of briefings on the domestic wiretap program as instructive for what it tells us about the program itself (and Bush’s dealings with Congress) as it is as proof that Gonzales is full of shit. In no particular order or structure, here are some thoughts:

Citizens and Voters Need Not Know

This document was declassified on May 17, 2006, before the midterm elections. But this is the first we’re hearing of it. I rather think that John Laesch would have liked to be able to tell voters that Denny Hastert had approved warrantless wiretapping of American citizens three times. I’m sure that Marcy Winograd would have liked to be able to tell voters that Jane Harman had signed off on wireless wiretapping on eight separate occasions. Why didn’t we get this list earlier? (Nevermind … I think I know the answer to that.)

See cboldt for this correction. This list has been available…

Venue

They started having briefings on the Hill after Risen and Lichtblau revealed the program on December 16, 20065. Perhaps that’s because (as Gonzales likes to repeat endlessly) Bush had confirmed the program and it no longer had to be secreted away inside the situation room.

Funding

They’ve conducted three briefings for leaders of defense appropriations subcommittees:

• December 4, 2001, for Daniel Inouye (then-Chair of Senate Appropriations, Defense Subcommittee) and Ted Stevens (Ranking Member of the same subcommittee)
• February 28, 2006, for Bill Young (then-Chair of House Appropriations, Defense Subcommittee) and John Murtha (Ranking Member of the same subcommittee)
• May 11, 2006 for Young and Murtha again

I’m really curious about these briefings. How detailed were they (a particularly pertinent question since Murtha, Young, and Stevens are among the most corrupt members of Congress)? Why did the Senate get briefed once, close to the inception of the program, and the House get briefed almost five years later, when it was under fire (and when, because of Duke Cunningham, the Appropriations Defense Subcommittee was itself under fire)? I assume the program is funded out of some kind of black budget. So why brief the Appropriations leaders at all? Was there some kind of expenditure that was public, that needed approval?

I gotta say, this post yesterday from Josh Marshall,

As regular readers of this site know, I’ve always been against themovement to impeach President Bush. I take this position not because hehasn’t done plenty to merit it. My reasons are practical. Minor reasonsare that it’s late in the president’s term and that I think impeachmentitself is toxic to our political system — though it can be less toxicthan the high officials thrown from office. My key reason, though, isthat Congress at present can’t even get to the relatively low thresholdof votes required to force the president’s hand on Iraq. So to use ananalogy which for whatever reason springs readily to my mind at thispoint in my life, coming out for impeachment under presentcircumstances is like being so frustrated that you can’t crawl that youcome out for walking. In various ways it seems to elevate psychicsatisfactions above progress on changing a series of policies that aredoing daily and almost vast damage to our country. Find me seventeenRepublican senators who are going to convict President Bush in a senatetrial.

On balance, this is still my position. But in recent days, for thefirst time I think, I’ve seen new facts that make me wonder whether thecalculus has changed. Or to put it another way, to question whether myposition is still justifiable in the face of what’s happening in frontof our eyes.

[snip]

Whether because of prudence and pragmatism or mere intellectualinertia, I still have the same opinion on the big question:impeachment. But I think we’re moving on to dangerous ground right now,more so than some of us realize. And I’m less sure now under thesecircumstances that operating by rules of ‘normal politics’ isjustifiable or acquits us of our duty to our country.

Reminds me a lot of the posts he was writing in Fall 2002, such as this post, written on September 20, 2002.

This is going to be a two part post. In this post, I’m going to show a key discrepancy between Libby’s testimony about the questions he asked Addington on July 8, and Addington’s. Addington’s testimony suggests that (contrary to Libby’s claims), Libby was looking for general details about the paperwork behind Wilson’s trip, which would have exposed Valerie’s role at the CIA, potentially her status, as well as prior trips Joe Wilson had made for the CIA. In a following post, I’ll show that this question was probably asked in response to a conversation with Cheney based on Cheney’s scribblings on Wilson’s op-ed.

The Discrepancies between Libby’s and Addington’s Testimony

There are three pieces of testimony regarding the conversation that Scooter Libby and David Addington had on July 8, 2003, about insta-declassification and paperwork on a CIA spouse’s travel to the CIA:

• Libby’s notes recording both what he wanted to ask Addington and what Addington responded
• Libby’s grand jury testimony
• Addington’s trial testimony

However, there are significant discrepancies between Addington’s testimony and Libby’s–and Libby’s own notes only confuse the issue.

It looks like we’re approaching the point where some hack stands up and explains that the claim that any disagreements were not about the domestic wiretap program is no longer operative.

Documents indicate eight congressional leaderswere briefed about the Bush administration’s terrorist surveillanceprogram on the eve of its expiration in 2004, contradicting swornSenate testimony this week by Attorney General Alberto Gonzales.

[snip]

A Gonzales spokesman maintained Wednesday that the attorney general stands by his testimony.

At a heated Senate Judiciary Committee hearingTuesday, Gonzales repeatedly testified that the issue at hand was notabout the terrorist surveillance program, which allowed the NationalSecurity Agency to eavesdrop on suspects in the United States withoutreceiving court approval.

Instead, Gonzales said, the emergency meetings on March 10, 2004, focused on an intelligence program that he would not describe.

[snip]

"The dissent related to other intelligenceactivities," Gonzales testified at Tuesday’s hearing. "The dissent wasnot about the terrorist surveillance program."

I’m officially taking bets. Do you think Gonzales’ get-out-of-jail-card will come more quickly or more slowly than Libby’s did?

Well, that was quick work. Yesterday I suggested that the Gang of Eight who purportedly attended the March 10, 2004 meeting at which Alberto Gonzales claims to have developed consensus that they should ignore James Comey’s concerns and continue to tap American citizens anyway might have some enlightenment to offer about what went on at the meeting. So far, Nancy Pelosi, Jay Rockefeller, and Tom Daschle argue that Gonzales is full of shit. Jane Harman, however, engages in a little shiny-objecting.

Representative Jane Harman of California, who in 2004 was the topDemocrat on the House Intelligence Committee, insisted that there wasonly one N.S.A. program, making Mr. Gonzales’s assertions inaccurate.

“Theprogram had different parts, but there was only one program,” Ms.Harman said, adding that Mr. Gonzales was “selectively declassifyinginformation to defend his own conduct,” which she called improper.

Before I go on, let’s lay out the math. Speaker Pelosi reveals that a majority did agree the country should ignore little issues like legality and continue the program.

Speaker Nancy Pelosiof California, who attended the 2004 White House meeting as HouseDemocratic minority leader, said through a spokesman that she did notdispute that the majority of those present supported continuing theintelligence activity. But Ms. Pelosi said she dissented and supportedMr. Comey’s objections at the meeting, said the spokesman, Brendan Daly.

If I’m not mistaken, a majority of eight is, um, five. Which means at least one Democrat voted against the law and in favor of illegal wiretapping. Given the clear messages of the other three Democrats among the Gang, that leaves Jane Harman as the fifth vote for illegal wiretapping.

Look, I’m well aware that Gonzales is playing semantic games by claiming there is one program that is actually two or more programs (and semantic games about the meaning of "consensus"). But if that’s the way Harman wants to get out of responsibility for her vote, I’m not having it. Gonzales is lying and was violating the law–but Harman’s dissembling responses don’t make her apparent position correct, either. If she did, in fact, cast that fifth vote for illegal wiretapping, then that vote put the lipstick of "consensus" on the pig of illegality.

One more detail about the Ashcroft and Gonzales guidelines on contacts between DOJ and the White House. While the latter explicitly gives Cheney the authority to communicate with DOJ about ongoing cases, I don’t believe it gives Karl Rove–or any of the people who work in Office of Political Affairs save its head–that authority. When the more expansive Gonzales memo lays out whom the AG and his staff may communicate with, it says:

Notwithstanding any procedures or limitations set forth above, the Attorney General may communicate directly with the President, Vice President, their Chiefs of Staff, Counsel to the President or Vice President, Assistant to the President for National Security Affairs, Assistant to the President and Homeland Security Advisor, or the head of any office within EOP regarding any matter within the jurisdiction of the Department of Justice. Staff members of the Office of the Attorney General, if so designated by the Attorney General, may communicate directly with officials and staff of the White House Office, the Office of the Vice President, the National Security Council, the Homeland Security Council, and the Office of Management and Budget.

Now, Karl Rove is Senior Advisor to the President and I think he retains the title Deputy Chief of Staff, but he lost his Policy portfolio in April 2006, when Josh Bolten was named Chief of Staff. He has headed Political Affairs, Office of Public Liaison, and Office of Strategic Initiatives. As the head of these offices ("head of any office," he presumably could interact with the Attorney General if the AG initiated the communication. But he doesn’t serve in that role anymore, and the Deputy Chief of Staff (unlike the Chief of Staff) is not named among those the AG can choose to communicate with. Nor does Karl fall under the subordinate offices (NSC, HSC, OMB) with which AG staff members can communicate. And Karl certainly doesn’t fall under the list of people who can communicate about an ongoing criminal investigation.

…all initial communications that concern or may concern such an investigation or case pending at the trial level should take place only between the Office of the Counsel to the President and the Office of the Deputy Attorney General (ODAG)…

Now, before I move on to the ways that Karl can communicate with DOJ, let me point out that what holds true here for Karl also holds true for Scott Jennings and other other lower ranking members of the Office of Political Affars. If I’m reading Gonzales’ memo correctly, the only people who get to communicate with the AG are heads of offices. So Sara Taylor would have counted, back when she headed the Office of Political Affairs, but her subordinates like Jennings would not.

In light of the news that Alberto Gonzales granted Cheneypresidential powers to snoop into ongoing investigations in May 2006, I thoughtit was time to update my chronology of the CIFA side of the Cunningham scandal.

• September 2002, then Deputy Secretary of Defense for Counter-Intelligence Burtt establishes CIFA to oversee counterintelligence units of the armed services; consulting on the new agency was James King, recently retired director of National Imagery and Mapping Agency and MZM vice president
• Late 2002, Cunningham gets Mitchell Wade a data storage contract worth $6 million, of which $5.4 was profit
• January 2004, Cunningham adds $16.5 million to defense authorization for a "collaboration     center" that appears to include business for Wade’s company
• June 27, 2005, James King takes over MZM
• August 2005 Veritas announces takeover of MZM–will become Athena
• November 28, 2005, Cunningham pleads guilty to bribery
• November 30, 2005, USNORTHCOM JPEN deletes all TALON reports
• December 2005, Pincus reveals a CIFA database contains raw intelligence data on peace activists (and, presumably, Jesus’ General)
• March 2006, prosecutors in the Cunningham case are reviewing CIFA contracts to MZM
• March 2006, Stephen Cambone announces an investigation of CIFA’s contracting
• Goss implicated in Cunningham scandal
• May 4, 2006, Gonzales gives himself authority to "communicate directly … regarding any matter within the jurisdiction of the Department of Justice" to the Vice President, his Counsel, and Chief of Staff
• May 5, 2006, Porter Goss resigns under allegations of ties to the Wilkes/Wade bribery ring
• May 11, 2006, Kyle Sampson emails
• May 2006, House Intelligence Committee (Peter Hoekstra‘s Committee) first moves to exercise oversight on CIFA (Hoekstra would eventually refuse to release the report on Cunningham)
• June 15, 2006, Commander USNORTHCOM signs order to terminate JPEN program
• August 2006, CIFA director David Burtt and deputy director Hefferon (who were instrumental in overriding staff complaints about Cunningham earmarks) resign

The point is this: the JPEN database disappeared just two days after Cunningham signed his plea agreement. Gonzales gave Cheney peeking rights into ongoing criminal investigations just as Goss and Foggo and MZM became targets. And all the earmarks that had supported the JPEN database dried up, just in time to close the program and hide the evidence of spying on Bush’s enemies.

Think about it. This was a domestic spying program instituted under Rummy (and therefore Cheney) favorite Steven Cambone. If there are guardian angels for domestic spying programs in this administration, they are Cheney and Addington. And they got the ability to guard domestic spying a lot more closely just about the time it had to be dismantled  for legal reasons.

And par for the course, Alberto Gonzales doesn’t remember  giving Cheney and Addington that power at all!

DiFi has a habit of using hearings to introduce new allegations against DOJ and she has done so again today. Here’s Christy’s version of the interchange:

Read to you what has been dropped from the earlier addition of the DOJmanual.  (1) restriction on bringing a voter fraud case close to anelection.  (2)  Care for overt investigations in the pre-electionperiod and while election is underway.  “Most if not all prosecutionsand investigations should await the end of the election.” — underlinedin the prior volume — has been removed.  Reason for that was to notimpact the election.  Gonzales, predictably, has no idea what Feinsteinis talking about and can’t answer why those changes were made.

The issue is that DOJ has recently revised the US Attorney’s (I think) manual. And they weakened–and in one important case–removed the restrictions on taking voting rights cases in the days leading up to an election.

In other words, DOJ just made it easier to tamper with elections by taking political cases against organizations like ACORN.