WSJ and the AP Finally Get Their Windmill!

Pow wow is right. One of the best parts of today’s Appeals Court order releasing more of the grand jury material from the Plame investigation is this paragraph:

Even if the Armitage revelation created a compelling public interest in them—and it
is unclear to us why, as Dow Jones asserts, the Special Counsel’s knowledge that one individual leaked Plame’s identity calls into question the validity of his continuing investigation into others who may have unlawfully leaked this same information—this is irrelevant given that there is no First Amendment right of access to secret grand jury matters.

The Appeals Court judges are basically telling the AP and WSJ the same thing I said months ago–they’re being dumb when they claim that Armitage’s involvement in the leak touches on Libby and Rove’s guilt at all.

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Congress Has a Legislative Need to Understand Bush’s Intent

Nope, I still haven’t stopped obsessing over Clement’s opinion on the subpoenas.

As I pointed out yesterday, Clement makes one claim that I believe is false and probably disingenuous. He claims that Bush has a nondelegable power to appoint US Attorneys, inscribed in the Constitution.

These confidentiality interests are particularly strongwhere, as here, the communications may implicate a "quintessential andnondelegable Presidential power," such as the authority to nominate orto remove U.S. Attorneys.

[snip]

The Senate has the authority to approve or reject the appointment ofofficers whose appointment by law requires the advice and consent ofthe Senate (which has been the case for U.S. Attorneys since thefounding of the Republic), but it is for the President to decide whomto nominate to such positions and whether to remove such officers onceappointed. [my emphasis]

As I pointed out yesterday, the Constitution explicitly allows Congress to legislate how and who appoints inferior officers, including US Attorneys.

but the Congress may by law vest the appointment of such inferiorofficers, as they think proper, in the President alone, in the courtsof law, or in the heads of departments.

But we don’t even have to go to the Constitution to prove that this is the case–after all, this whole scandal started after Brett Tolman snuck a provision into the PATRIOT Act that took the right to appoint US Attorneys away from judges and gave it to the Attorney Gonzales. This whole scandal started when Congress exercised its right to legislate how US Attorneys get appointed–even if Congress claims it didn’t know it was doing so at the time.

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Timing

This bears mentioning.

Congress subpoenaed the White House for information on the USA Purge on June 13, just 15 days ago. Already, OLC has done its review, Paul Clement has written his opinion, and Fred Fielding has provided a response to Congress. 15 days.

Bill Leonard, head of ISOO, wrote Alberto Gonzales on January 9 for an opinion on whether Cheney was indeed exempt from Bush’s own Executive Order. On June 4, DOJ responded to a FOI request and as much as said that DOJ had not done any work on Leonard’s request. A DOJ spokesperson has since said there has been no work done. (Though on June 22, DOJ said it was reviewing the matter.)

Leonard first made his request 170 days ago, more than 10 times as long as it has taken DOJ to review the question of executive privilege. And still, DOJ has not provided its opinion as to whether Cheney has to follow the rules.

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TSA versus Booz Allen

I’d like to use some details from the WaPo’s story on Booz Allen’s no-bid contract this morning to put some things in perspective. The article cites the SSCI with a price tag for each contract employee:

The average annual cost ofa contract employee is $250,000, almost twice that of a federalemployee, according to an estimate recently cited by the Senate SelectCommittee on Intelligence.

I’m guessing that, since so many federal employees are unionized, this is comparing mostly non-union contract employees with a union government employees. And the contract employee is making twice as much as the government union employee.

DHS is paying those obscene rates, they would argue, because those employees provide a crucial service at the front-line of protecting our nation.

So can someone explain to me why it is that Bush is promising to veto the bill finally implementing the changes recommended by the 9/11 Commission because he wants to prevent TSA’s workers from getting collective bargaining rights? Bush apparently thinks it is a bigger risk to our country to have airport screeners–our first line of defense against something like 9/11–earn one half of what we pay for contract employees, than to let airplane baggage compartments and shipping containers go uninspected.

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Fred’s Fuck You and Clement’s Conflict of Interest

Congresswoman Sanchez is right. Fred Fielding’s letter telling Congress to fuck off is not so much a legal notice, but a lecture. It spends two paragraphs saying "no," one paragraph spinning the White House as cooperative, and then seven paragraphs talking about the exalted tradition of executive privilege.

More troubling, however, is what Fielding attaches: an opinion written by Solicitor General Paul Clement, explaining that OLC has reviewed Congress’ requests and found that those requests fall squarely within the realm of executive privilege.

Dear Mr. President,

You have requested my legal advice as to whether you may assert executive privilege with respect to the subpoenaed documents and testimony concerning the categories of information described in this letter. It is my considered legal judgment that you may assert executive privilege over the subpoenaed documents and testimony.

Paul Clement, as you’ll recall, is the guy currently in charge of any investigation into the US Attorney firings, since Alberto Gonzales recused himself some months ago. He’s the one who technically oversees the Office of Special Counsel investigation into whether politics played an improper part in Iglesias’ firing or the hiring of career employees in DOJ, he’s the one who oversees the joint Office of Professional Responsibility and Inspector General investigations into whether anything improper–including obstruction of justice–occurred in the hiring and firing of USAs. And now, he’s the guy who gets to tell the President that he doesn’t have to turn over what might amount to evidence of obstruction of justice in the Foggo and Wilkes case, among others.

Of course, to some degree this makes sense. When this goes to court, it is Clement who will have to defend the White House position on refusing to turn over the documents.

But that just demonstrates how hopelessly compromised Clement is. He is–already, even before we hit the courts–in a position where he is simultaneously defending the White House, and investigating it. And all the while, Team Libby is intent on having Libby’s conviction thrown out because, they insist, it’s perfectly feasible for an investigation into high level Administration officers to report to some of those same high level officers.

Do you see where this is going?

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Grossly Beyond the Scope

Booz_contract

The WaPo has a story today about how a $2 million DHS no-bid contract with Booz Allen awarded in May 2003 turned into $30 million by the end of 2004 and into a $48 million contract in June 2005 and into $73 million and finally $124 million. I’m going to return to the whole question of outsourcing after McCaffrey the MilleniaLab and I get back from our walk.

But I wanted to point out a few things.

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Shall

Did I mention that it was thunderstorming something fierce here in SE Michigan? Yes, raining and pouring, too.

This morning, when I read the famous Executive Order that Cheney claims to have exempted himself from, I noticed a key paragraph:

The Attorney General, upon request by the head of an agency or the Director of the Information Security Oversight Office, shall render an interpretation of this order with respect to any question arising in the course of its administration. [my emphasis]

You see, I’m no lawyer, but I have written enough pretty hardcore business and government documents to know there’s a crucial difference between "shall" and "should." Shall is mandatory, with legal umph. Should is kind of wishy-washy, if you feel like it, ought to. So I was wondering when the Democrats were going to point out to Alberto Gonzales that he shall provide a response to Bill Leonard’s request for a ruling on whether or not Cheney is, indeed, exempt from this Executive Order.

Ask and you shall receive:

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Subpoenas

It has been kind of wrath of god-y over here for the last hour. Just as I heard that OVP, NSC, DOJ, and WH have been subpoenaed, a big (much needed) thunderstorm took out my Toobz. Let’s hope the wrath of god thing continues for the bad guys, as this is the move that will either give Anthony Kennedy the opportunity to roll up our Constitution … or begin (four months down the line, at the earliest) to shed some light on the Administration.

Here’s what SJC is looking for:

The subpoenas seek documents related to authorization and reauthorization of the program or programs; the legal analysis or opinions about the surveillance; orders, decisions, or opinions of the Foreign Intelligence Surveillance Court (FISC) concerning the surveillance; agreements between the Executive Branch and telecommunications or other companies regarding liability for assisting with or participating in the surveillance; and documents concerning the shutting down of an investigation of the Department of Justiceâs Office of Professional Responsibility (OPR) relating to the surveillance.

And if you care, the stated timeline (which is practically meaningless, since BushCO is sure to refuse this) is three weeks:

The deadline for providing the Committee the information is July 18.

Update: Indie Voter made an important point. Either this is a bipartisan action, or Orrin Hatch has snuck away and joined the Democratic Party, along with Chuck Grassley and Arlen Specter. Because those three Republicans voted along with all the Democrats on the Committee in favor of the subpoenas.

Update II: From TPMM, the subpoena requires the testimony of four people:

  • White House chief of staff Josh Bolton
  • Attorney General Alberto Gonzales
  • Cheney chief of staff DavidAddington
  • National Security Counsel executive director V. PhilipLago

That’s nice, for several reasons. First, it gives us a chance to hold individual people in contempt, rather than just get cranky as we have been doing with the DOJ subpoena. And if they refuse to testify, it means we can hold people in contempt of court.

Plus, as I repeat all too often, David Addington was my favorite witness from the Libby trial. You think they’d be willing to invite Fitzgerald in to do the questioning? Because then you’d all get to see on CSPAN what I keep babbling about.

Though my best guess is they’ll come and repeat over and over and over and over "deliberations in the executive" and "classified program." Besides Bolten, of course, who will have the convenient excuse that most of the fun precedes his tenure at the position.

Update III: Kickass!! I just remembered something, as I looked at the subpoena. I was bemoaning the fact that David Addington could just invoke Attorney-Client privilege and say exactly nothing.

Except that he’s no longer Cheney’s Counsel (thanks to PatFitz for the indirect assist). As Cheney’s Chief of Staff, I’d imagine he’d have things to say about what he’s been up to for the last year and a half…

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It Depends on What the Definition of “Agency” Is

I get the feeling that someone in the White House told OVP that their claim to be a Fourth Branch of government carried some serious risk to the White House. After all, if Cheney now claims he’s not in the Executive Branch, then he’s got to hand over the Energy Task Force documents, right?

So now David Addington has revised his rationale, claiming that OVP is simply not an agency.

"Dear Senator Kerry," Addington writes. "The executive order onclassified national security information — Executive Order 12958 asamended in 2003 — makes clear that the Vice President is treated likethe President and distinguishes the two of them from ‘agencies.’"

No longer satisfied with the Vice President’s office’s claim thatCheney is actually an admixture between the legislative and executivebranch, Addington now posits that the Vice President’s office is not an"agency."

"The executive order gives the [Information Security OversightOffice], under the supervision of the Archivist of the United States,responsibility to oversee certain activities of ‘agencies,’ but not ofthe Vice President or the President."

Luckily, we can revert to Clinton for clear language as to what an "agency" is in the relevant Executive Order:

     (i) "Agency" means any "Executive agency," as defined in 5 U.S.C.105, and any other entity within the executive branch that comes intothe possession of classified information. [my emphasis]

Bush adds a bit to Clinton’s clear language when he amends the EO in 2003. But there’s still that funny clause encompassing any entity within the executive branch that comes into possession of classified information.

     (b)  "Agency" means any "Executive agency," as defined in 5 U.S.C. 105; any "Military department" as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.[my emphasis]

So either Addington is still relying on the "not within the executive branch" gag, or he’s making an even more ridiculous argument than Clinton made about his blow job.

And I bet Clinton’s blow job was a lot more fun than the one Addington is giving us.

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Judge Huvelle Was Not Amused

I did some coverage of the cynical games Steve Griles played to try to get the 5 months prison time turned into a bunch of community service for his own fake non-profit. I suspected such games would not go over well with Judge Huvelle–who, after all, is the one who tacked 3 months on top of Bob Ney’s plea agreement because of his violation of the trust of public service.

So I’m not surprised she went tough on the cynical Griles, doubling the prison time in his plea agreement.

"You held a position of trust as number two in the Department ofInterior and I will hold you to the highest standard," she told Griles."I find that even now you continue to minimize and try to excuse yourconduct and the nature of your misstatements."

Good for Huvelle–Griles not only lied to the Senate, but he sold away our nation’s resources to his closest friends, the resource industry.

I’m curious whether getting a harsh sentence might make Griles think seriously about cooperating on the other, more serious side of the affairs he’s involved in. He is surely a subject of interest in the investigation into the royalties games that DOI played, not least since he Read more

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