Archive for category: emptywheel

In an email to Laura Rozen and Jeff Lomonaco this morning, I predicted Henry Waxman would be mightily interested in the news that the Blackwater guards involved in the September 16 shooting had been granted immunity.

In any case, I suspect Condi will regret that she didn’t mention thiswhen visiting Congress last week. I assume we’ll have a letter fromWaxman at about 1:00 PM today.

Sure enough, at 1:23, the Committee sent out the letter.

Apparently, Waxman wrote it before CNN started reporting yet more anonymous sources saying the whole thing is a big joke, that the guards didn’t get immunity. Or rather, they try to dodge the issue by pretending the claim pertained to blanket immunity (which it never did).

No blanket immunity deal was offered to Blackwater guards for theirstatements regarding a shootout in Iraq last month that left 17 Iraqicivilians dead, two senior State Department officials told CNN Tuesday.

However, some kind of limited immunity was apparently offered by StateDepartment investigators when they questioned the Blackwater personnelapparently involved in the shootings, the officials said.

In any case, Waxman (as you’d expect) asks the money question:

5. When did you, Deputy Secretary of State John Negroponte, former Assistant Secretary of
State Richard Griffin, Ambassador David Read more →

Kagro X has a post focusing, again, on Michael Mukasey’s evasions about the Constitution. Kagro focuses not on Mukasey’s confusion about whether water-boarding is torture, but whether the President can ignore existing laws.

Any president — and I mean any president — ought to beable to depend on a certain amount of deference from his or herAttorney General, of course. This ordinarily goes without saying, butin this case must be said because it sets up an irreconcilable paradox.Is it even possible to serve an administration that regularly assertsconstitutional interpretations like the one Judge Mukasey did andprotect the fundamental rule of law which underlies our entireconstitutional system of government? How could it be so?

[snip]

An "administration" that sends distinguished federal judges toCapitol Hill and puts them in a position requiring them to hedge onanswers to such basic questions as must a president obey federalstatutes is operating so far outside the bounds of normalcy already,that it hardly seems worth anyone’s time to pretend that an AttorneyGeneral is necessary to the functioning of the government at all.

I’d like to reinforce Kagro’s point by pointing to the consistency, across time and nominees, of the Administration’s AG candidates on this Constitutional question. Here’s the complete context of the Mukasey comment that Kagro is focused on.

LEAHY: And,lastly, where Congress has clearly legislated in an area, as we’ve donein the area of surveillance with the FISA law, something we’ve amendedrepeatedly at the request of various administrations, if somebody — ifit’s been legislated and stated very clearly what must be done, if youoperate outside of that, whether it’s with a presidential authorizationor anything else, wouldn’t that be illegal? 

MUKASEY: Thatwould have to depend on whether what goes outside the statutenonetheless lies within the authority of the president to defend thecountry.

LEAHY: Where does the president get that authority? Ithinking of the Jackson opinion and others. Where does he get theauthority if it’s clearly enunciated what he can do, law that hesigned, very clearly enunciated? I mean, the president say, Thisauthority, I’m going to order the FBI to go in and raid 25 housesbecause somebody told me they think someone’s there. We’re not going towait for courts, we’re not going to do anything else. There’s nourgency, but we’d just kind of like to do that.

MUKASEY: We’d kind of like to do that is not any kind of legitimate assertion of authority.

AndI recognize that you’ve posited the case that way for a reason. But thestatute, regardless of its clarity, can’t change the Constitution.That’s been true since the Prize cases. And it was true before that.

LEAHY:Can a president authorize illegal conduct? Can the president — can apresident put somebody above the law by authorizing illegal conduct?

MUKASEY:The only way for me to respond to that in the abstract is to say thatif by illegal you mean contrary to a statute, but within the authorityof the president to defend the country, the president is not puttingsomebody above the law; the president is putting somebody within thelaw.

Can the president put somebody above the law? No. The president doesn’t stand above the law.

But the law emphatically includes the Constitution. It starts with the Constitution. [my emphasis]

Leahy is concerned about whether Bush can just decide to operate outside of FISA–or any other law that explicitly limits the behavior of the Executive Branch. But he’s also concerned about whether the Administration can offer immunity for someone who follows the President’s orders in operating outside of statute.

This exchange looks remarkably similar to one between Pat Leahy and Alberto Gonzales–back before we knew the extent of Gonzales’ craven willingness to put law aside for politics. The topic is different–Leahy is asking about torture, not wiretapping. But the response is almost the same.

Laura links to a CQ story based on this SSCI report on FISA. As Starks noted in his CQ article, the report reveals that the telecom companies did not have the requisite approval from the Attorney General for the period following the hospital confrontation; rather, they had White House Counsel Alberto Gonzales’ approval.

The committee’s published report on legislation (S 2248) that wouldrewrite the rules for government surveillance states thattelecommunications companies participating in the NSA program receivedregular letters affirming President Bush had authorized the program.

But all but one of the letters also stated that the attorney generalhad determined the program to be lawful, according to the report. Thatletter, which covered a period of “less than sixty days,” insteadstated that “the activities had been determined to be lawful by thecounsel to the president.”

I’ll have my own excerpts of the report in a post shortly. But for now, consider some implications of this:

• Bush did not authorize the program personally after Comey refused to authorize it; Gonzales did. Presumably, they were trying to protect the President (and the Vice President) from responsibility for having done so. But where, then, does the legal responsibility for having violated the Telecommunications Act lie? With the telecoms, for Read more →

The White House must be trying to peel Scottish Haggis away from the Democrats on the SJC who oppose granting the telecoms immunity for illegally spying on citizens. Why else show Leahy and Specter the family jewels–the justification for the domestic wiretap program–without sharing them with the rest of SJC?

The White House has offered leaders of the Senate JudiciaryCommittee access to legal documents related to the National SecurityAgency’s warrantless surveillance program, senators said Thursday.

But Senate Judiciary Chairman Patrick J. Leahy, D-Vt., said while the White House had offered the documents to both him and the panel’s ranking Republican, Arlen Specter of Pennsylvania, he was pushing for the entire committee to receive access to the documents. But he also said he would take advantage ofthe offer and review the documents.

[snip]

Theentire Senate Intelligence Committee and its staff did receive accessto the documents prior to its approval of draft surveillancelegislation last week, and had conditioned its own markup of getting toview them. That committee’s draft legislation includes retroactivelegal immunity.

If they could bring Scottish Haggis back into the camp of Republican rubber stamps (and at least get Leahy to agree to let the bill move through the committee), they should be able to get Read more →

There are a number of clues that reveal how panicked the State Department–and Condi and those parts of the Administration not trying to undercut Condi at every turn–is about the threats to Blackwater’s continued presence in Iraq. For the first time as Secretary of State, Condi is making the rounds of Congressional committees, even deigning to visit her arch-nemesis Henry Waxman. The State Department has issued new guidelines for Blackwater–basically giving our contractors babysitters to make sure they don’t do more harm than good. And then issued still more guidelines–basically teaching those thugs how to act like guests in someone else’s country. And somehow, on the night before Condi testifies before Waxman’s committee, the Assistant Secretary of State who was a jerk when he testified before the committee unexpectedly, um, resigns. We have not had such a concerted effort–at anything beyond propaganda–since the start of this Administration.

And then consider this factoid. Turkey is starting a low intensity waragainst Kurdistan, which pits the US’ most reliable allies in Iraq (inthe most stable area of the country) against a member of NATO. Butbefore visiting Turkey and trying to bribe them not to start the regional war we’ve all been fearing, Condi is Read more →