March 28, 2024 / by 

 

Wilkes Will Get an Enemy Combatant Lawyer for His Extraordinary Rendition-Related Trial

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.


What Stephen Hayes Doesn’t Want You to Know about Cheney’s Involvment in Outing Valerie Wilson

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.


Rally Squads and Disappearing Demonstrators

In a post on the $80,000 settlement BushCo had to pay for ejecting two people wearing an anti-Bush (that is, pro-America) t-shirt from a presidential rally, Pam Spaulding links to the Advance Manual used to prepare for such presidential rallies; the government turned over a very heavily redacted copy of the Manual during the suit. The Manual makes for intriguing reason for those who have gotten bored with Orwell, in particular the description of the "rally squads"–college/young Republicans,  local athletic teams, or sororities/fraternities–recruited to drown out the voices of anti-Bush attendees. I don’t mean to suggest Democrats don’t contest negative messages in the same way. But please. Call them something besides "rally squads." (I may be particularly sensitive because, after I consistently kept the ultimate team up very late on a tournament trip once, and after he learned that my mother’s maiden name resembles "rally," mr. emptywheel dubbed me the "rally captain" for the rest of that season.)

But I noticed something else interesting about the manual. As is normal for a document redacted by the government, each of the redactions is marked as such (though the government did not provide explanations for the redactions). Except in one case:

Advance_manual


Tom Davis, On the Record Source

By far the most interesting thing (to me at least) in today’s WaPo story on how Karl Rove mobilized Administration resources to commit massive Hatch Act violations is this:

"He didn’t do these things half-baked. It was total commitment," said Rep. Thomas M. Davis III(Va.), who in 2002 ran the House Republicans’ successful reelectioncampaign in close coordination with Rove. "We knew history was againstus, and he helped coordinate all of the accoutrements of the executivebranch to help with the campaign, within the legal limits."

Tom Davis … Tom Davis. Gosh, isn’t he the ranking member of the House Committee on Oversight and Government Reform? By golly he is!

That’s awfully curious, because this article relies on materials before that Committee: it relies on details about the briefings that have already been released through the Committee, as well as emails and briefing invitations that would fit under Henry Waxman’s requests for information of government agencies.

An invitation to a March 12, 2001, political briefing for federalofficials — one of the Rove team’s earliest — framed the mission thisway: "How we can work together."

[snip]

Most of the political briefings, officials said, were held at theWhite House or Old Executive Office Building for the liaisons or theagency chiefs of staff. But once or twice a year, Rove’s team sought tospread the message beyond this core team. Attendees were presented aslide show with the latest polling data, election talking points andmaps identifying competitive media markets, congressional races andpresidential battleground states.

The subjects for such meetings– which involved at least 18 agencies — ranged from "a politicalupdate" and "mid-term election trends" to "outreach" and "coalitionactivities/organization," according to invitations gathered bycongressional investigators.

DeBerry requested one such meeting at the Agriculture Department about five months before the 2004 election.

"Wewould like to hold a briefing for our political appointees on thestrategy we should focus on over the next several months," he wrote onJune 15, 2004, to Barry Jackson, the White House chief of strategicinitiatives. "The briefing you gave the Asset Deployment team about ayear ago would be perfect."

DeBerry’s e-mail captures what administration officials said was theessence of Rove’s approach: making sure that political appointees atevery level of government pushed a uniform agenda in key media marketsand on behalf of White House-backed candidates.

[snip]

Some briefings targeted political appointees because of their race orethnicity. On Aug. 11, 2006, for instance, Hispanic politicalappointees were summoned to a meeting with Rove’s team to discuss theadministration’s accomplishments for Hispanic Americans.

Mind you, I’m not accusing Davis of leaking this information or of any impropriety with his quote. Indeed, Committee Chair Henry Waxman is quoted as well, in the money quote of the entire article.


Beached Whale

Funny. In the entire Peter Baker article entitled, "Rove: Departure Unrelated to Investigations," Peter Baker never once quotes Rove as saying, "my departure is unrelated to the multiple investigations in my conduct." Or anything similar. Sure, Rove talks a lot about Ahab and Moby Dick.

"I realize that some of the Democrats are Captain Ahab and I’m thegreat white whale," he said. "I noticed the other day some Democraticstaffers were quoted calling me the big fish. Well, I’m Moby Dick andthey’re after me."

He admits that his departure won’t necessarily dissuade Democrats from investigating. But he never denies–certainly not in the any of the quotes included in the article–that he’s leaving because of the investigations.

Indeed, the whole thing reads like Rovian spin (and not very good spin at that) to try to suggest that Democrats will get hurt as they continue to pursue Rove’s actions.

In the interview, Rove criticized the Democrats for pursuing him andsaid their investigations have diminished their public support. "Thereis a reason," he said, "why the Congress has gone from high standingafter the ’06 election to being less popular than the president."

Mind you, Rove doesn’t provide any real data to prove his point. That’s probably for the best, though, because his "math" has been a little suspicious of late. Nevertheless, Rove never entertains the more plausible notion that Congress’ approval rating is declining because we’ve still got troops in Iraq.

Though I appreciate one thing. I noted, earlier, how the WSJ had botched the timing of the time when Rove first considered leaving the White House, suggesting he first floated the idea a year ago, rather than the 15 months ago when it looked likely he’d be indicted on the Plame investigation. He makes no such misrepresentation to Baker.

Still,Rove said he, too, was surprised that he was leaving now. Many of hiscolleagues had long assumed that he would stay until the end of theBush presidency in January 2009.

"So did I," he said. "I wantedto. But I just can’t. About a year and a half ago, it became apparenttalking to my family that there are things happening, that it was timeto go."

So by my reading, here we’ve got a report that the first time Rove thought of leaving was about the time when it looked likely he’d have to leave. "There are things happening," indeed. And, in spite of the title, we have no clear denial that Rove is leaving because the investigations into his activities may soon bear fruit.


A Thousand Words

13rove08

Remember this photo? This particular version is from Stephen Crowley of the New York Times–it’s part of a slideshow they’ve got up to commemorate the demise of Turdblossom. Go look through the slideshow and tell me whether you think they’re emphasizing the centrality of scandal to Rove’s tenure (there’s a hot picture of Rove and Luskin in there, for example, walking out of Prettyman).

In addition to Crowley’s, there are a number of other versions of this photo. I’ve always wondered whether the photo (all versions of it) wasn’t intended as a key to the secrets of the Administration, one the insider journalists all know the meaning of but won’t share it with us.

Indulge me, for the moment, and pretend that it is such a key. Let’s review the status of the people involved:

Scottie McClellan: Will go down in history as the least credible shill since Ron Zeigler,  Scottie had the unenviable role of telling the press that he had talked to Rove and Libby and they had assured Scottie they had nothing to do with the Plame leak. Scottie left the White House in April 20, at the same time Rove lost his policy portfolio, and just days before Karl Rove’s last appearance before the grand jury. For the record, Scottie’s departure was weepy, though not so weepy as Turdblossom’s was today.

Turdblossom: Say … did you hear that Turdblossom will be leaving the White House at the end of the month?

Scooter Libby: Libby, of course, was the first person in this picture to leave, back in October 2005 before he got his get-out-of-jail-free card. He’s now a convicted felon. Notably, Libby is the one person in this picture who’s not a member of the Texas Mafia (assuming they gave Cheney membership in his first paypacket while CEO of Halliburton).

Dan Bartlett: Remember Bartlett? He was the last member of Bush’s inner circle to step down unexpectedly, in his case at the beginning of June (not long after Rove’s right-hand chick Sara Taylor departed, it should be said). Just for kicks, look how closely Bartlett’s comments, upon stepping down, resemble Rove’s: the "spend more time with family" excuse, the focus on his long-standing ties to Bush, the denial he’ll work in any 2008 campaign. Though Bartlett, unlike Rove, isn’t going to write a book. When Bartlett left, they brought in Ed Gillespie, who has gotten the White House out of certain legal jams in the past.

Harriet Miers (she’s hiding behind Bartlett): Miers went from being glorified secretary to White House Counsel to SCOTUS nominee, but things went downhill from there. (Say, did you know Miers withdrew her name from consideration for SCOTUS just one day before Libby was indicted?) At the beginning of the year she resigned (effective the end of January), and after some time, she ended up back at the same firm she worked at before going to the White House. Like Rove, she was intimately involved in firing 9 or more US Attorneys, and also like Rove, when she was subpoenaed to appear before Congress, she refused.

Which leaves one person, in this entire photo, still employed by the White House: Dick Cheney. Now, have no idea what this photo means even if it is some kind of key to the Administration. But I find it awfully curious that Dick alone remains in this Administration.


TSP and FISA

Yup, still mono-focused on FISA, but mr. emptywheel is clamoring for dinner, so maybe once I step away from the computer, I’ll remember all the other things I’ve been meaning to write on.

I want to object to the way Kevin Drum is referring to the new details of FISA:

Originally, FISA allowed warrantless wiretapping of anycommunication between two foreigners. It also allowed warrantlesssurveillance of "foreign powers" (including those on U.S. soil) as longas there was no substantial likelihood that the surveillance wouldinclude conversations with U.S. persons. "Foreign powers" did notinclude terrorist groups.

Democrats and Republicans were both willing to amend FISA to allowlimited surveillance of terrorist groups, and both were willing toamend FISA to overcome technical problems that had made it difficult tomonitor certains kinds of foreign-to-foreign communications. So whatwas the disagreement? Originally I thought it was mainly about how tofix one of the technical problems: namely, given modern communicationsnetwork architecture, what procedures do you need to put in place toensure a high likelihood that U.S. persons won’t be surveilled while atthe same time allowing NSA the widest possible latitude to monitorgenuine foreign-to-foreign communications?

However, that appears not to be the case.  Rather, NSA (and the White House) were specifically looking for newauthority to monitor communications that included U.S. persons. And notjust communications related to terrorism. They wanted a free hand forwarrantless surveillance of any communication between foreigners andAmericans that was related to foreign intelligence in any way.

It’s not that Drum is, strictly speaking, wrong (though see AL’s cautions in the comments). But he’s setting a false, two-part comparison: Pre-Amendment FISA and Post-Amendment FISA, with the only thing that intervened as the Administration’s wishes to "modernize" FISA.

This comes, I think, out of the Administration’s head-fake, which consisted of naming a small part of the warrantless wireless program the "Terrorist Surveillance Program," which (when we entered into this most recent debate) the Administration claimed it wanted to legalize. Bush affirmed, on repeated occasions, that the "TSP" only consisted of taps that the Administration could ensure were targeted to those with ties to Al Qaeda. And it only consisted of taps for which one of the parties was outside of the country.

But we know the whole "TSP" thing was just a head-fake. While that is all Bush admitted to, we know there are several other aspects the warrantless wiretap program included. These are, at a minimum:

  1. The tapping of communication that the Administration can’t guarantee involves one party outside of the United States
  2. The tapping of communication for which the Al Qaeda tie is tenuous at best
  3. The use of data-mining to select the targets of interest
  4. The collection of the PEN data from a huge chunk of the communications passing through our country’s telecom networks

Drum suggests that the Administration wasn’t asking for 1 and 2–that those things just got thrown into the pot at the last minute. Well, perhaps not in so many words. But that is, in fact, the program the Administration was trying to make legal, so the mistake or confusion arises solely because we treated this debate as one strictly about modernization. Had we treated this debate as one about legalizing the Administration’s illegal program, including those aspects that Bush never admitted but we knew were included anyway, those two items would clearly have figured prominently on the list. (Though it’s unclear whether the Administration’s broad use of "Foreign Intelligence" to describe the target of the taps is designed solely to authorize tapping people whose ties to Al Qaeda are tenuous, or, more likely, whether they want to include intelligence of all stripes, presumably including international industrial intelligence.)

As to the last two, those are the elements that I suggest we really scrutinize this law for. AL suggests, in the comment linked above, that they may have, in fact, thrown in a thin legalization of the data-mining by treating that as surveillance that "concerns" foreign intelligence. Perhaps.

The point is, though, not to let Bush’s Orwellian TSP head-fake continue its power. It was never just about tapping Al Qaeda. Treating it as such simply buys the BushCo line about "TSP."


Feingold’s Questions

I’m still working through AGAG’s answers to a bunch of questions the Senate Judiciary Committee asked him last year (he only answered early this year). There’s an exchange involving Russ Feingold that is, I think, very instructive for understanding the recent FISA amendment.

You indicated at the hearing that the Administration has agreed to “submit” the program to the FISA court to rule on it if Congress passes the bill the Administration agreed to. If the FISA court were to review the program, would it do so in secret, and with only the government participating? Who would argue the case on the other side?

The Government is the only party to the ex parte proceedings for electronic surveillance orders under FISA (as is the case with respect to wiretap orders in criminal investigations under Title III and generally in proceedings to secure search warrants). Proceedings before the FISA Court are held in secret because of the nature and sensitivity of the information presented to the Court.

Feingold is talking about a different bill (Specter’s proposed bill from last year), but I think the answer is instructive. Not because it tells us anything we don’t know–yes, FISC’s proceedings are secret, yes, in a review before FISC, there will be no antagonist to the government arguing in favor of civil liberties.

But I think Feingold gets to the heart of issues that are also true for the amended FISA program. The review we’re talking about is inadequate because it doesn’t allow the public, or even another lawyer, to challenge the government’s program.


Warrantless Wiretapping and the IG Loophole

I’m working on a massive post on how the Administration has gamed the system to sustain their wireless wiretapping program. For the moment, though, I’d like to make a discrete point about the aborted Office of Professional Responsibility (OPR) inevstigation into the program.

When Senator Spector asked Alberto Gonzales last year why BushCo refused to give OPR the clearance to investigate the wireless wiretapping program because OPR included many career employees, this is how he responded (note–he didn’t actually respond to these questions until some time after January 17 of this year).

Did the Department treat reject OPR’s request for clearances because OPR has only career appointees?

No. The request of the Office of Professional Responsibility (OPR) for access to classified information about the Terrorist Surveillance Program (TSP) was not treated differently than similar requests for access by other Department components. Nor was OPR’s request denied because OPR has only career appointees.

Indeed, the Department of Justice’s Office of the Inspector General, which – other than the Inspector General, who was appointed by President Clinton – is made up entirely of career appointees, has been granted access to classified information about TSP. Similarly, many of the Department employees in other components who have been granted access to classified information about TSP are career, not political, employees.

Moreover, as the Attorney General mentioned in his opening statement before the Senate Judiciary Committee’s hearing on February 6, 2006, career lawyers at the National Security Agency’s Office of General Counsel and Office of the Inspector General have been intimately involved in the oversight of the program.

Gonzales answers the specific question–whether the Administration was afraid of career employees–but he doesn’t answer the underlying question–why the Administration refused the clearance. He does, however, offer a really lame explanation for that general question to a later follow-up question:


What Happened to the FISC Appeal?

Both the WaPo and the NYT have stories today explaining how the crisis in the warrantless wiretap program got so bad that Congress got punked into passing a shitty bill. The story is simple, on its face. The FISC rejected a government subpoena in March, another in May, and those two rulings resulted in the government losing the ability to wiretap a great deal of foreign communication. Voila! The President gets to tell Congress it can’t take vacation.

But something’s missing from this process: the appeals process.

Like most legal decisions, FISA allows for a review process. If the FISC rejects a subpoena, the government can appeal that decision to the Foreign Intelligence Surveillance Review Court (FISRC). And if they uphold the rejection, the government can appeal to SCOTUS. Here’s how it works:

If [FISC] judge so designated denies an application for an orderauthorizing electronic surveillance under this chapter, such judgeshall provide immediately for the record a written statement of eachreason of his decision and, on motion of the United States, the recordshall be transmitted, under seal, to the court of review established insubsection (b) of this section.

[snip]

If [FISCR] determines that the application was properly denied, thecourt shall immediately provide for the record a written statement ofeach reason for its decision and, on petition of the United States fora writ of certiorari, the record shall be transmitted under seal to theSupreme Court, which shall have jurisdiction to review such decision.

But we get no details of such an appeal in today’s stories. So what happened? Did the Administration appeal these rejections on up to Roberts and Scalia and Alito? And if so, did a very conservative SCOTUS rule that the Administration was–and has been–violating the law? Or did they choose not to appeal, and instead create the kind of crisis that results in shitty legislation?

In either case, they seem to have gamed the process of court review, for the future. Here’s how the amendment describes the review process if the courts decide the Administration hasn’t provided adequate safeguards for American citizens’ privacy:

Any acquisitions affected by the order issued under subsection (c) of this section may continue during the pendency of any appeal, the period during which a petition for writ of certiorari may be pending, and any review by the Supreme Court of the United States.’’.

That is, if, in the future a court tells the Administration they’re not fulfilling the intent of the law, the Administration gets to keep up what they’ve been doing until Roberts and Scalia tell them to stop.

Copyright © 2024 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/emptywheel/page/180/