We’ve been laughing about this in threads, but I wanted to share the joke(s). Greg Sargent got the letter from the CIA telling the Archives that Dick Cheney can’t have his propaganda.

As you are aware, a request for Mandatory Declassification Review is governed by Executive Order 12958, as amended, which was signed and executed by the President on March 25, 2003. Under section 3.5.(a)(3) of that Executive Order, a document is excluded from Mandatory Declassification Review if that document contains information that is the subject of pending litigation. This provision ensures that the Mandatory Declassification Review process is not used to disrupt simultaneous litigation proceedings that are already pending. In researching the information in question, we have discovered that it is currently the subject of pending FOIA litigation (Bloche v. Department of Defense, Amnesty International v. Central Intelligence Agency). Therefore, the requested document, which contains this information, is excluded from Mandatory Declassification Review.

There are two reasons I’ve been laughing my ass off for the last few hours.

First, those FOIAs? The CIA says Dick can’t have his propaganda until two liberal entities–some experts in bioethics wanting more details on the use of doctors in torture, and Amnesty International and Center for Constitutional Rights looking for more information on extraordinary rendition and ghost detainees–resolve their demand for these documents. But guess what? Cheney’s propaganda documents aren’t the only things that would be responsive under FOIA! So would the IG report, particularly the parts that describe how the CIA’s own IG didn’t think torture was all that effective and those that discuss the use of psychologist-contractors to conduct torture. So for Dick to get his documents, he may have to wait for these do-gooder torture opponents get a whole load of proof of just how ineffective and unethical Cheney’s torture program was.

I just can’t wait to see Dick Cheney asking the Center for Constitutional Rights nicely to give him his little propaganda documents. 

And what’s better? That EO the CIA cites, saying it cannot turn over these documents? EO 12958, as amended? That amendment is EO 13292–an amendment Dick had Bush sign on March 25, 2003, just at the beginning of the Iraq War. It’s a special amendment in Dick’s little bureaucratic evil, because it’s the basis that Dick used to claim he could insta-declassify the identity of a CIA spy and have it leaked to Judy Miller! Not only that, it’s the same EO that Dick Cheney appealed to when he was claiming to be a Fourth Branch of government (before Addington helpfully explained he was more of a barnacle, really). 

This is an EO, you see, that Cheney and Addington have abused wildly. 

Only now it’s coming back to bite Cheney–and his little plan for propaganda–in the ass. CCR? Valerie Plame? I hope you’re enjoying the little bureaucratic hell Cheney created for himself as much as I am.

The SSCI just released a narrative–originally requested by Jello Jay–of the general history of torture under the Bush Administration, including, purportedly, all the OLC memos that support torture (though it doesn’t include the 2003 one Michael Hayden referenced the other day). 

I’ll have a few more details in a bit. But this document reads to me like a mutual CYA for Gang of Eight members and the (former) Administration on torture. It is most interesting for the list of briefings it has.

In addition, the SSCI narrative confirms Spencer’s report that there’s an unreleased 2007 memo. Great work, Spencer!

One thing this narrative makes clear is that the July 10, 2002 intelligence from Abu Zubaydah came before the interrogation plan for Abu Zubaydah was done.

On July 13, 2002, according to CIA records, attorneys from the CIA’s Office of General Counsel met with the Legal Adviser to the National Security Council, a Deputy Assistant Attorney General from OLC, the head of the Criminal Division of the Department of Justice, the chief of staff to the Director of the Federal Bureau of Investigation, and the Counsel to the President to provide an overview of the proposed interrogation plan for Abu Zubaydah.

On July 17, 2002, according to CIA records, the Director of Central Intelligence (DCI) met with the National Security Adviser, who advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah. This advice, which authorized CIA to proceed as a policy matter, was subject to a determination
of legality by OLC.

Not that that means they weren’t already torturing him. But this confirms my earlier assertion that Abu Zubaydah’s information on running terrorist training camps either came before they tortured him, or without any legal authorization whatsoever. 

I’ll update with some comments. But for now, consider this a working thread. 

Update: So here are the briefings on torture this document lists:

April 2002: Rizzo begins conversations with Bellinger and Yoo/Bybee on proposed interrogation plan for Abu Zubaydah. Bellinger briefed Condi, Hadley, and Gonzales, as well as Ashcroft and Chertoff.

Mid-May 2002: Rizzo met with Ashcroft, Condi, Hadley, Bellinger, and Gonzales to discuss alternative interrogation methods, including waterboarding.

July 13, 2002: Rizzo met with Bellinger, Yoo, Chertoff, Daniel Levin, and Gonzales for overview of interrogation plan.

July 17, 2002: Tenet met with Condi, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

July 24, 2002: Bybee advised CIA that Ashcroft concluded proposed techniques were legal.

July 26, 2002: Bybee tells CIA waterboarding is legal.

August 1, 2002: Bybee Memos.

Fall 2002: CIA briefed Bob Graham and Richard Shelby on torture.

January 2003: Pat Roberts is briefed on torture, along with staff director and minority staff director of Committee; Jello Jay Rockefeller did not attend briefing.

After March 2003: Robers and Jello Jay  briefed on torture.

July 2003: Tenet and Muller meet with Cheney, Condi, Ashcroft, Acting head of OLC?, Yoo, Gonzales, and Bellinger to discuss torture. Principals reaffirmed that program was lawful.

September 16, 2003: Colin Powell and Rummy briefed on torture.

May 7, 2004: CIA IG report comes out.

May 2004: Muller meets with Gonzales, Addington, Bellinger, and "senior DOJ officials" about the IG report.

June 2004: Roberts, Jello Jay, and staff directors get copies of CIA IG report.

June 2004: OLC withdraws unclassified Bybee Memo.

July 2004: CIA briefs Roberts and Jello Jay on IG Report; CIA indicates it is determining whether program consistent with CAT.

July 2004: Principals meeting–all agree to seek new OLC memo.

July 14, 2004: Associate Deputy Attorney General (?) explains Senate reservation on CAT.

July 22, 2004: Ashcroft confirms to Acting DCI (McLaughlin?) that all techniques except waterboarding legal under CAT.

August 6, 2004: Daniel Levin advises that subject to reservations, CIA’suse of waterboarding not illegal. 

December 30, 2004: Daniel Levin opinion on torture, with footnote.

March 2005: CIA briefs Roberts and Jello Jay on torture.

May 2005: Bradbury opinions.

October 2005: Bradbury notes in QFR that we abide by Article 16.

December 2005: Condi and Hadley states US policy accords with Article 16.

December 30, 2005: Detainee Treatment Act. (No reference to Bush’s signing statement.)

June 2006: Hamdan v. Rumsfeld rules Article 3 applies to al Qaeda.

August 2006: Opinions on Detainee Treatment Act, "interpretation" of Common Article 3, both on confinement.

September 6, 2006: Bush admits we torture. CIA briefs all SSCI members about CIA’s torture program.

October 2006: Congress passes Military Commissions Act. [Jeebus our Congress is craven.]

July 2007: EO 13440 interprets Common Article 3. OLC issues legal opinion analyzing torture. Does not include analysis of anti-torture statute but refers to May 2005 opinions.  Does not address waterboarding.

January 30, 2008: Mukasey states waterboarding not used.

February 2008: Michael Hayden discloses waterboarding used on 3 detainees. Michael McConnell states waterboarding not used. SSCI discusses torture program with Hayden and McConnell in closed session.

January 22, 2009: Obama signs EO 13491 which revokes EO 13440 and all OLC opinions issued by DOJ between September 11, 2001 and January 20, 2009.

I’m still angry that you did not pardon Scooter. "I don’t think was appropriate," for you to have ordered Libby–on the morning of June 9, 2003, to respond to Joe Wilson’s assertions about our case for war against Iraq, and to have told me it was okay to "get the whole story out," just before Scooter tried to launder this through Judy Miller on July 8, 2003 and then Novak on July 9, 2003, only to let him take the fall for you when Patrick Fitzgerald started investigating who leaked Valerie Wilson’s name.

You asked Scooter to "stick his neck in the meat-grinder" to rebut Joe Wilson’s criticisms, and now you have "in effect left Scooter hanging in the wind" for something you ordered.

Let this be a warning to you. I consider this fair game [oh wait–that’s Rove’s word] for my memoir, which I’m currently shopping.

Love,

Dick

Toensing

As TPM has reported (and a number of you have emailed) Scooter Libby’s press flack, Barbara Comstock, is running for office. Honestly, given the Democratic tilt of Virginia of late, I had been inclined to keep just half an eye on Comstock. After all, so long as she looks likely to lose, why give her any attention?

But news like this makes me rethink that. After all, what better way to undercut Comstock’s network of purportedly independent resources than to establish that they were on the host committee for Comstock’s earliest fund-raisers?

A who’s who of conservative women showed up at the home of Mildred Webber to register their support. Among them: the Ashcroft Group’s Juleanna Glover, National Review’s Kate O’Bierne and former Homeland Security official Fran Townsend.

Also on the host committee: Victoria Toensing, Jeri Thompson, Cathy Gillespie, Maria Cino and Kellyanne Conway.

Now, I know that there has been no doubt since the Clinton wars that Toensing is a Republican hack. But Toensing was able to attempt jury nullification with articles like this during the Libby trial, all under the claim that she was an independent entity.

And here we come to "find out" she’s one of Comstock’s closest buddies.

I hate to keep harping on Politico’s blowjob for Cheney. But I’ve been obsessing all morning by this picture accompanying the story, showing the sole picture hanging on the wall of Cheney’s office (click to enlarge; the other Politico pictures show a lot of family pictures on furniture, but this appears to be the only one on the wall).

How odd, first of all, that an article trying to redeem the Bush-Cheney failed presidency gives pride of place to an earlier historically unpopular President, Gerald Ford. And how odd that this picture accompanies this statement–highlighted by Peterr. 

Not content to wait for a historical verdict, Cheney said he is set to plunge into his own memoirs, feeling liberated to describe behind-the-scenes roles over several decades in government now that the “statute of limitations has expired” on many of the most sensitive episodes. [my empahsis]

See, I’m interested in Cheney’s focus on statute of limitations and on that picture for several different reasons.

Cheney talks about statutes of limitations going back decades. But of course, the ones that would be expiring now would be those for crimes he committed (he seems to be admitting) during the Bush Administration–those crimes committed about five years ago, in many cases.

A number of smart lawyers have been reminding me via email of late that, while the statute of limitations on things like FISA violations may be expiring in the coming weeks, the statute of limitations on any conspiracy to cover up those crimes would not expire until the conspiracy to cover-up those crimes was over. 

Except.

Except that that is only true for as long as Bush and Cheney tried to hide their crimes from law enforcement. You know–from people over at DOJ like Alberto Gonzales and John Ashcroft. If, for example, Cheney ordered the future AG to go to then-current AG John Ashcroft and tell him they were going to violate FISA even though Jim Comey told them not to, then they couldn’t very well be accused of covering up the crime from DOJ, could they? Keeping DOJ in the loop at each stage of the process seems to innoculate the White House–to some degree–from this kind of cover-up charge.

Maybe the smart lawyers can explain in comments how this works.

In any case, it sure looks like Cheney learned his lessons from the Nixon-Ford era well.

The other reason I’m interested in Cheney’s focus on statutes of limitations and that damn picture on the wall is this. The picture appears to be fairly recent; the apparent flag pin in Cheney’s lapel would seem to date the picture to some time between 9/11 and Ford’s passing at the end of 2006. But I’m struck that Cheney’s picture of Ford in the White House may have been taken the same night as this picture (note, in particular, Ford’s tie). That is, I’m wondering whether the sole picture on Cheney’s wall is a picture of him with President Ford from the night of Ford’s 90th birthday party at the White House–on July 16, 2003.

You might remember, that’s the party the guest list of which Patrick Fitzgerald had to subpoena in 2004, at the time when he was honing in on Scooter Libby and Dick Cheney. The party at which–we have reason to believe–Dick Cheney told the wife of that night’s honoree, Alan Greenspan, that the story she should be covering was not the way in which Libby and Cheney had used propaganda to get us into the Iraq war, but the role that Valerie Wilson played in trying to crack down on nuclear proliferation. What was Joe Wilson’s reaction, Andrea Mitchell asked him four days after the party, to "what White House sources were telling her about the real story being not the sixteen words but Wilson and his wife."

"Here’s the night I outed a CIA spy," that picture seems to be saying.

Mind you, I’m sure Dick’s got Ford on his wall for completely different reasons. I’m sure Dick’s got it up as a tribute to the President under whom he learned his considerable bureaucratic skills, which have served him masterfully ever since. 

So I’m not trying to argue anything about this picture–this post is mostly free association based on it. Nevertheless, I find it an interesting choice for pride of placement in his office. 

Update: Thanks to JimWhite for finding the original of the picture, which is indeed from the day Cheney was probably actively pushing the outing of a CIA spy.

Laura linked to this story on Charles Duelfer’s new book. And boy did my hackles rise up when I read this passage:

After he left the United Nations in 2000, Duelfer went to a Washington think tank, the Center for Strategic and International Studies, where he began working informally with a unit in the CIA’s Near East division, the Iraq Operations Group, which was tasked with regime change.

Duelfer assembled a list of more than 40 high-level officials who could help run Iraq following an invasion. He cultivated old contacts in the oil industry and the Iraqi government, meeting secretly with a top Iraqi official at New York’s Metropolitan Museum of Art. He traveled to Vienna for OPEC meetings that included key Iraqi oil officials. But the plan to put together a team that would form the basis of a future government was shelved.

"Once U.S. forces were in Iraq, they used the lists as targets," he writes. "Those named would find their homes raided, and they would be thrown in jail. . . . We continued to make more enemies." [my emphasis]

Basically, the CIA worked with Duelfer to pull together a list of top Iraqis who could take over the country. And–this story doesn’t say directly, but suggests–once DOD took over in Iraq, those on the list were targeted for harassment and arrest. 

I couldn’t help but think of something I noted when reporting on Judy Miller’s work in Iraq. She was writing, recall, at a time when DOD was undercutting State’s efforts to set up a broad-based Iraqi government, incorporating representatives of all constituencies in Iraq. DOD did so by carting Ahmed Chalabi and his band of would-be warriors around Iraq, always pre-empting State’s efforts. At precisely that time, Judy may have outed her first CIA spy, revealed in the name of de-Baathification, just 6 weeks before Valerie Wilson would be outed as a spy.

First, Judy writes an article for Chalabi that tries to discredit Saad Janabi by highlighting his ties to the CIA. As I mentioned in Part Three, as part of Judy’s coverage of Chalabi’s case for de-Baathification, Judy included the following passage:

Mr. Chalabi declined to name names, but other representatives of the Iraqi National Congress, said that the Central Intelligence Agency had retained Saad Janabi as a key adviser. The opposition members identified Mr. Janabi as a former assistant to Hussein Kamel, Mr. Hussein’s son-in-law who oversaw weapons programs, defected to Jordan in 1995, and was killed by Mr. Hussein’s government when he later returned to Iraq.

A C.I.A. spokesman in Washington said he had no comment on whether Mr. Janabi was advising the agency. [emphasis mine]

Now, before we get to the realationship between CIA and Janabi, a little background. Janabi, it seems, is a direct rival to Chalabi’s position as a top returned-exile-businessman. From a June 2, 2003 profile on Janabi we learn Janabi has returned at about the same time as the Chalabi profile appears–and that Janabi is already critical of Chalabi for the same reasons the State Department was:

Janabi returned a month ago from eight years of exile in California and has quickly emerged as a quiet but harsh critic of the well-funded exile opposition groups like Ahmed Chalabi’s Iraqi National Congress, which enjoys the support of key Bush administration officials. Though Janabi insists that he does not want to run for office himself, he often speaks like a budding politician (even mentioning his connections to California Republicans and Arnold Schwarzenegger). He says the INC and the two largest Kurdish parties have limited constituencies. "The Iraqi people need their own choices," says Janabi. "They are educated, but they have no education in democracy."

In spite of his denials, Janabi ends up being a worthy enough candidate that he was briefly floated to be President of interim government.

At the very least, Janabi was almost certainly involved in Duelfer’s efforts to draw up a list of future leaders of Iraq, as he had reached out to various Iraqi generals before the war started to attempt to gain their assistance. But he, too, was floated to take on a leadership role in Iraq. And in return for that, the INC branded him as a Baathist.

These efforts could, of course, be totally separate, one officially undertaken by the US government (I look forward to figuring out whether this was done by DOD or what), and one undertaken by Janabi’s rival, Ahmed Chalabi. 

But I do wonder whether there was a more concerted effort undertaken by those close to Cheney to not just hoist Ahmed Chalabi on the Iraqi people, but to make way for him by undercutting all natural Iraqi leaders, conveniently identified on one centralized list put together by the CIA.

I guess Mikey Isikoff is on a roll with his old lovers. First Dick Cheney and Isikoff’s super secret legal source–Dick Cheney’s lawyer. And now Rove and Isikoff’s super secret "White House source," Rove’s lawyer.  (h/t lllphd)

But then why should Isikoff feel any shame at carrying water for his old lovers?

In any case, Isikoff is doing just that, as for the first time, Fred Fielding (without any specific review from DOJ) is declaring Executive Privilege for Rove’s testimony. You’d think a hotshot reporter like Isikoff would note that this is a new stance from Fielding’s previous stance–which extended exclusively to "absolute immunity." But then, you wouldn’t be talking about Mikey Isikoff, then, would you?

To be fair, the bulk of Fielding’s letter still focuses on absolute immunity (otherwise known as "blow off Congress for free"). But when Isikoff claims in his "reporting" that,

A nearly identical letter (.pdf) was also sent by Fielding the day before to a lawyer for former White House counsel Harriet Miers, instructing her not to appear for a scheduled deposition with the House Judiciary Committee.

He of course is spinning in precisely the manner that Luskin and Fielding would like him to spin. (Mwahhh!!!)

The difference between the two letters is this paragraph, which appears in Miers’ letter, but not Rove’s:

In letters dated June 28, 2007 and July 9, 2007, I notified you of the President’s direction that Ms. Miers was not to provide documents in this matter and not to provide testimony to the Committee.

That is, whereas Fielding cites his earlier letters to Miers–in both of which he explicitly invokes Executive Privilege, with the support of a Paul Clement letter (which seems to ignore the Constitution, but nevermind)–he does not cite his earlier letter to Rove, which makes no mention of executive privilege (and which certainly doesn’t include a review of whether or not Rove’s role in both firing the US Attorneys and pursuing a witch hunt of Governor Siegelman constituted privileged advice). Indeed, had Isikoff referred to that earlier letter he might have noticed ("might") that this letter is "almost identical" to this one–except in this one he has added the language of Executive Privilege.

Which is, of course, a notable addition, coming as it does without any review by DOJ.

But which is, of course, consistent with Luskin’s attempt to pretend that his client has had the same kind of privilege invoked as has Harriet Miers. To be fair, in a way, Luskin’s client has, finally. But this time without the review by DOJ that even Miers got, adding another layer of impropriety to Rove’s privilege claim that is not there in Miers’.

But then why would Mikey Isikoff want to report that? 

Image by Twolf

It was bound to happen. Matt Cooper, to whom Karl Rove leaked Valerie Wilson’s identity, is now reporting on Karl Rove again (at his new digs over at TPM). Better yet, Matt suggests Turdblossom may have miscalculated in his efforts to avoid testifying before the House Judiciary Committee.

I spoke with a Washington lawyer who has dealt with many presidential privilege issues and he (or is it she?) raised some interesting questions and offered a prediction.

The first interesting point the person raised is that Rove’s attorney, Robert Luskin, may have made a tactical mistake in writing to White House Counsel Greg Craig for an opinion. "Be careful what you ask for," the source said. After all, Craig could come up with a rationale for Rove testifying. And why rush to Craig at all when you might prevail in the courts? True, the courts have been loathe to offer hard and fast rules in these cases but it would seem worth pursuing such a legal avenue before going to the Democratic White House for solace. My source predicted that in the end there probably will be some kind of accomodation with Rove answering questions on some topics and not on others rather than a showdown that drags on endlessly. Interestingly, the source thought Obama’s executive order on presidential records differed enough from the question of testimony that it probably would not be determinative in the end. [my emphasis]

See? I’m not crazy!! There’s a difference between Executive Prvilege and Absolute Immunity (otherwise known as the claim that you can just blow off Congress). And Rove may not be playing this one correctly, not least because Greg Craig has a great deal of leeway in how he responds to Rove.

Jeebus, I hope Matt’s source is right that Luskin screwed up tactically. Because, thus far, Luskin has been really lucky (and, I have to begrudgingly admit, good) with his defense of Rove.

At some point the luck has to start turning against Turdblossom, doesn’t it?

Catalog of records the Bush Administration kept in such disorganized fashion that no one could reconstruct WTF BushCo had been doing on that subject:

• Gitmo detainee records
• Torture tapes
• Finance records from the NRCC for 2002-2006 
• Database of US citizens surveilled under CIFA
• Emails pertaining to Medicare Part D passage
• Records showing oil companies cheated the federal government out of royalties for drilling on federal land
• Emails from the period when Dick Cheney and Scooter Libby were planning their Plame cover-up
• The talking point document Scooter Libby used to leak Valerie Wilson’s identity to Judy Miller on July 8, 2003
• Almost all the emails (stored on RNC servers) documenting illlegal politicization of government
• Karl Rove’s collected works

(What am I missing?)

You see, historically, authoritarians usually happen to be superb record-keepers. That has been their undoing, once historians got to them. One thing the Bush fuckers got right (from their perspective, mind you) was to avoid leaving usable records.

I’ve seen a lot of celebratory posts about the effect of Obama’s Executive Order on Presidential Documents, but I fear it distracts attention from an equally important focus: the House Judiciary Committee lawsuit.

The posts all focus on Obama’s order that Executive Privilege claims must be reviewed by the incumbent President, not the former President.

(a)  Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.  Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.

(b)  In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.  The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations.  Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel).  The copy of the notice for the former President shall be delivered to the former President or his designated representative.

So, commentators say, this means we’ll be able to get a bunch of documents–the US Attorney scandal documents and the Plame documents are the most frequently mentioned–that Bush has been withholding.

But of course, particularly with respect to those documents, there’s already a pending case–the HJC case that was reinstated under the House rules (and now includes Turdblossom for the USA purge documents and Mukasey for Siegelman documents and Plame documents).

Now, I’ve asked some folks on the committee and they’re sure Obama’s EO won’t moot their suit. And, presuming AG Holder approves it, Obama’s administration can presumably release the documents right to the Committees (also note: there are some other pending subpoenas from last Congress, particularly subpoenas of the EPA from Waxman when he was still at Oversight). Voila! We’re done, right?

No. Because the lawsuit is more general than the subpoenas for documents. The lawsuit seeks to make Harriet Miers and Turdblossom come before the committee to testify. That suit seeks to laugh the entire concept of absolute immunity from showing up before Congress out of existence. That’s a concept I don’t want the Obama Administration to use any more than I wanted the Bush Administration to use it–because it totally guts the concept of Congressional oversight. 

So while I am thrilled that Obama reversed one of Bush’s more onerous policies on transparencies, it does not give us everything we need to ensure proper oversight of any Presidential Administration, Bush or Obama.