Is Cheney Relying on Gonzales’ Retroactive Notes?

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Glenn picked up on Cheney’s recent reiteration of a claim that Alberto Gonzales has made (and may be in trouble for lying to Congress for): that he briefed Congressional leaders on the illegal warrantless wiretap program and they all agreed it should go forward without Congressional approval.  Glenn calls on those Congressional leaders who were at the briefing to respond to Cheney’s claims. But I’m more interested in the way Cheney’s willingness to repeat Gonzales’ story puts the notes Gonzales made to (presumably) back his side of the story back in play.

As I emailed Glenn and Barton Gellman explains to Rachel Maddow (at 6:30 and following), the meeting in question is the March 10, 2004 meeting at which Cheney tried to go around Jim Comey so as to get legal cover for their warrantless wiretap program.

Gellman: He’s talking about a meeting on March 10 of 2004. He’s never previously talked about it in public. And he’s backing up the official story which is that eight members of Congress–four Republicans and four Democrats–came in and were told "The Justice Department thinks this program is illegal, should we go ahead with it anyway, despite there’s no law in Congress authorizing it?"And that four Republicans and four Democrats said "Yes, go right ahead. Do the illegal thing." Now, I talked to four people who were in that meeting and not all of them were Democrats and all of them dispute that that’s the way it happened.

Maddow: Isn’t there some way that could be checked? Doesn’t somebody write down what happens at those things?

Gellman: Yeah, and it was Top Secret code word classified and remains so. 

First, let me correct Gellman. Cheney’s making a somewhat different claim–one apparently disproven by the facts. He’s claiming he briefed all nine Congressional leaders: that is, the Gang of Eight, plus Tom DeLay.

CHENEY: We brought in the chairman and the ranking member, House and Senate, and briefed them a number of times up until – this was – be from late ’01 up until ’04 when there was additional controversy concerning the program.

At that point, we brought in what I describe as the big nine – not only the intel people but also the speaker, the majority and minority leaders of the House and Senate, and brought them into the situation room in the basement of the White House.

I presided over the meeting. Read more →

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The Holder Delay, the OLC Delay, the SJC Delay

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I suggested last week that the Republicans have suddenly decided to challenge Eric Holder’s nomination in an attempt to postpone the time when AG Holder (if he is approved) would review the OLC opinions supporting warrantless wiretapping and torture.

It turns out that Patrick Leahy is also worried that BushCo are sitting on OLC opinions it has promised to the Senate Judiciary Committee (h/t Secrecy News).

Even in the final days of the Bush administration, the Department of Justice continues to stonewall congressional subpoenas for documents from the Office of Legal Counsel (OLC), according to the chairman of the Senate Judiciary Committee. Sen. Patrick Leahy (D-Vt.) on Friday underscored the Department’s continued obstruction and hit the Department on going back on its word to provide the Committee with copies of six documents related to a subpoena issued in October for OLC documents.

In a letter dated November 14, Justice Department officials said the Department was "prepared to make available for Committee staff review at the Department" two national security-related OLC opinions subpoenaed on October 21. The Department also wrote that it was "prepared to provide the Committee with copies of additional OLC memoranda on November 17, 2008." Upon receipt of the letter, followed by a verbal assurance on November 17 that the documents were being delivered to the Committee, Leahy postponed the return date of the subpoena, which was scheduled for November 18. To date, the Department has provided the Committee with copies of just two documents, one of which was not listed in the October 21 subpoena and was already widely available in the public domain. The remaining six documents have been made available at the Department only for staff review.

Here’s a list of the OLC opinions the Administration has been playing games with:

A. Memorandum for Alberto R. Gonzales, Counsel to the President, Re "Protected Persons" in Occupied Iraq (March 18,2004).

B. Any final OLC memorandum or written legal advice concerning applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49, including any March 19, 2004 memorandum, Re: Applicability of the Fourth Geneva Convention in Iraq, including but not limited to Article 49.

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The Thomas Tamm Legal Defense Fund

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images5.thumbnail.jpegAs Mike Isikoff has related in Newsweek, Tom Tamm was the critical tipping point behind Eric Lichtblau and Jim Risen’s New York Times expose the Bush Administration domestic surveillance program.

Marcy pointed out yesterday, the FBI/Justice Department has now been upending Mr. Tamm’s life for years now and, it appears, has been stringing out the matter seeking to get past Vaughn Walker’s consideration of the Constitutionality of the retroactive Congressional immunity grant in the consolidated cases in the Northern District of California (and, presumably, get past the five year statute of limitations on many of the Administration’s actions):

Delaying the decision until the Obama administration takes office would do more than dump the problem into Obama’s lap (just like the Gitmo detainees, of course). It would also delay the time when Tamm testified publicly about what he knows of the domestic surveillance program until after Vaughn Walker issues a ruling on immunity for the telecoms.

By coming forward now, Tamm has told Walker something–in no uncertain terms–that the government won’t tell him.

DOJ recognized that this program was illegal.

The bottom line is that Tom Tamm blowing the whistle is probably the linchpin behind us knowing what we do about the egregious unconstitutional and illegal actions of the Bushies. Tamm coming forward at this time may also prove to be critical in forming Judge Walker’s mind on his review of the immunity assertion.

A lot of readers have asked about how to donate to Tamm’s legal defense fund. In that regard, I contacted Mr. Tamm’s attorney, Paul Kemp and obtained the information; here is the response:

Hi [bmaz]. Thanks for your inquiry. The address of the defense fund
is:

Thomas Tamm Legal Defense Fund
Bank of Georgetown
5236 44th Street
Washington, DC 20015.

Tom appreciates your support and that of your readers. [Some
unrelated chit chat on another matter redacted]

Paul F. Kemp

Irrespective of his precise personal motivations, Tom Tamm has done the Constitution, the Fourth Amendment, the rule of law and all of us a favor by exposing the rank lawlessness of the elected leaders of this country. If you see fit, send him a few bucks to lighten the load he has taken on.

I don’t know about you, but if the wingnuts can pony up hundreds of thousands for the traitor Scooter Libby, I am sure as heck going to ante up a little to thank Tom Read more →

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Thomas Tamm to Vaughn Walker: They Knew It Was Illegal

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I’ll have a lot more to say about Isikoff’s excellent story on Thomas Tamm, the guy who tipped Eric Lichtblau off to the domestic surveillance program.

But for the moment, I’d like to elaborate on yesterday’s comments about timing. Tamm’s lawyer reveals that DOJ just recently told him that they were delaying a decision on whether or not to charge Tamm.

Paul Kemp, one of Tamm’s lawyers, says he was recently told by the Justice Department prosecutor in charge of Tamm’s case that there will be no decision about whether to prosecute until next year—after the Obama administration takes office.

Delaying the decision until the Obama administration takes office would do more than dump the problem into Obama’s lap (just like the Gitmo detainees, of course). It would also delay the time when Tamm testified publicly about what he knows of the domestic surveillance program until after Vaughn Walker issues a ruling on immunity for the telecoms.

By coming forward now, Tamm has told Walker something–in no uncertain terms–that the government won’t tell him. 

DOJ recognized that this program was illegal. 

Tamm provides the names of several people whom Walker might want to consult before he rules on the immunity law. There’s Lisa Farabee, who told Tamm that,

"Don’t even go there," and then added, "I assume what they are doing is illegal."

And there’s Mark Bradley, who told Tamm,

"This may be [a time] the attorney general gets indicted,"

If these two lawyers in the Office of Intelligence Policy and Review–the office that provides legal review of wiretaps on a logistical level–believed that this program was illegal, then how can Michael Mukasey now represent to Walker that it wasn’t?

And just for good measure, Tamm also reveals the code name for the program–Stellar Wind–which will help the Electronic Frontier Foundation and others argue that the existence of this program is publicly known.

I’m guessing that Vaughn Walker is reading this article very closely this morning.

One more point about timing: I don’t think Tamm coming forward now is due exclusively to noble motives. Consider how it might affect any potential trial. If Tamm can force two lawyers (plus the FISA judges who balked at the program) to go on the record that they, too, believed this was an illegal program, then it’s going to make it easier for him to argue that he came forward solely to expose illegal activities. Read more →

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Good Question

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The Bush Administration is in Vaughn Walker’s courtroom today, trying to convince him to just give the telecoms immunity with no further scrutiny.

But given the questions Judge Walker has posed to the Administration, it looks like it won’t be that easy. For example, there’s this question, which highlights just how nutty this retroactive immunity is:

What exactly has Congress created with § 802 (in Pub L No 110-261, 122 Stat 2467, tit II, § 201 (2008))? It does not appear to be an affirmative defense but rather appears to be a retroactive immunity for completed acts that allegedly violated constitutional rights, but one that can only be activated by the executive branch. Is there any precedent for this type of enactment that is analogous in all of these respects: retroactivity; immunity for constitutional violations; and delegation of broad discretion to the executive branch to determine whether to invoke the provision? 

He goes from there to ask several more questions getting at that pesky separation of powers thing. You know–separation of powers, which says that the courts have the ajudicatory function?

In making the certification called for by section 802(a)(5), is the Attorney General performing an adjudicatory function? That is, is he not making a determination that only a court can make?

They are all good questions. And they suggest that Walker is not going to simply roll over and abdicate his Article III function. Which probably means this will be appealed beyond the time when the Bush Administration leaves office.

Which I guess means we ought to be preparing some questions for Eric Holder about FISA at his confirmation hearing.

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Well, This Should Make the President-Elect More Anxious to Overturn Domestic Spying

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Getting snooped on by Verizon employees…

Some Verizon Wireless employees accessed billing records from a cell phone President-elect Barack Obama had used, the Obama transition and Verizon Wireless said Thursday.

[snip]

Verizon Wireless CEO Lowell McAdam issued a statement apologizing to Obama. He also said that whether they were authorized or not, the employees who breached the president-elect’s account face possible disciplinary action and were immediately put on leave without pay. [my emphasis]

I’m sorry, Mr. McAdam. Are you suggesting these Verizon employees may have been authorized to access Obama’s records? By whom?

I’m preparing my Book Salon review for James Bamford’s Shadow Factory right now. (Bamford will be at FDL Sunday at 5PM ET.) And his story of Verizon’s Israeli-connected spooky side is way more troubling than the already troubling AT&T Israeli-connected spooky side.

Update: The CNN story on this makes it sound like the authorized v. unauthorized question pertains more to whether people had any business with Obama’s call records. Also note it says those involved were suspended with pay.

Verizon Wireless, meanwhile, has launched an internal probe to determine whether Obama’s information was simply shared among employees or whether "the information of our customer had in any way been compromised outside our company, and this investigation continues," McAdam said in an internal company e-mail obtained by CNN.

"Employees with legitimate business needs for access will be returned to their positions, while employees who have accessed the account improperly and without legitimate business justification will face appropriate disciplinary action," McAdam said, "up to and including termination." [my emphasis]

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Eyes On The Spies: What Obama Can Do About Illegal Surveillance

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With all the commotion and hubbub surrounding the personalities and gossip of Obama’s cabinet formation, and expression of everyone’s opinion on how that should proceed, little has been said about the actual policies and actions (other than Iraq) that should be implemented right out of the gate. One area that has been neglected is that of the illegal wiretapping and surveillance policies and practices that were instituted in the country’s name by the Cheney/Bush regime.

Our friends at the Electronic Frontier Foundation (EFF) have some ideas for the incoming Obama Administration in this regard, and they are pretty good.

President Obama can end the immunity process. Consistent with his previous opposition to immunity — then-Senator Obama voted in favor of Senator Dodd’s amendment to strip the immunity provisions out of the FAA altogether — Obama could instruct his new Attorney General to withdraw the government’s motion to dismiss the lawsuits based on the immunity statute. Or,

President Obama can temporarily freeze the immunity process until he has learned all the details about the NSA program. Read more →

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Greg Craig as White House Counsel

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You might remember Greg Craig–the guy Obama just named his White House Counsel–from the FISA fight. Craig, who I guarantee you gets paid a lot more for his lawyering than I get paid to do whatever it is I do here, and who I’m certain has a lot more training and experience in the law than me, explained Obama’s cave on FISA this way.

Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.

“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.” [my emphasis]

As I pointed out at the time, 

FISA is not expiring anytime soon. Last I checked, FISA’s been on the books for 30 years, and I have every expectation it will remain on the books for the next 30 years, regardless of how Obama votes on July 8.

Either Craig or Obama is making the common–but ignorant–mistake of conflating the Protect America Act with FISA. The former does expire in early August. The latter does not.

I might be accused of pedantry by maintaining this distinction. But it[‘]s useful to maintain the distinction because it focuses on the differences between FISA and PAA. FISA provides a way for the government to wiretap individuals legally, while providing real protections for American citizens. Whereas PAA provides the government the ability to get basket warrants based on the say so of the Attorney General, dramatically eroding the protections for American citizens.

When someone erroneously claims that FISA is going to expire shortly, it’s a good bet that that person is thinking about retaining the basket warrant provisions of the PAA and not–as the spin suggests–simply "modernizing" FISA so the government can wiretap foreigners via telecom circuits in the United States. 

It’d be useful if someone asked the Obama campaign which of these authorities Obama is really intent on maintaining. 

Granted, that was just one teeny tiny little issue–you know, our Fourth Amendment rights, and the willful abuse of the law by the Bush Administration?

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No One Could Have Imagined an IG Report on Warrantless Wiretapping Would Suck

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In an article claiming, inaccurately, that few people noticed the debates over the requirement for an Inspector General’s report on the illegal warrantless wiretap program…

The little-noticed provision for a public inspectors-general report was crucial to gaining the support of some liberal Democrats—including Sen. Barack Obama—for last summer’s bill, which allowed a modified version of the program to continue.

…and along with the news that the CIA Inspector General John Helgerson–who will be managing this investigation–did not submit an unclassified report that was not required by the law…

But when the inspectors general recently submitted their first "interim" report to Congress under the measure, it wasn’t made public. Instead, the brief document, written by CIA inspector general John Helgerson, was marked classified—a move that has drawn a stiff protest from House Intelligence Committee Chairman Silvestre Reyes.

Isikoff and Hosenball reveal what I argued some time ago–there are functional problems having an IG conduct this investigation instead of (as the House originally demanded) an independent commission with subpoena power. Most importantly, while Inspectors General of the relevant agencies can inspect their own agencies, they’ve got no jurisdiction to investigate the White House.

Reyes’s letter also included a request that the inspectors general issue a "preservation order" preventing White House or intelligence community officials from removing or destroying documents relating to the warrantless-surveillance program. With barely three months left in the administration, Reyes wanted to make sure that "they don’t destroy anything before they walk out the door," Littig says.

[snip]

As for the demands for a preservation order, the official said: "Directives have been issued to preserve records relating to this surveillance program. But, as Congress is aware, intelligence community inspectors general have clearly defined authorities. Those authorities don’t, as a rule, extend to giving orders to the White House." [my emphasis]

And as we know–from Barton Gellman’s Angler among other sources–most of this stuff is safely in Cheney’s man-sized safe in the White House. And as we saw with Glenn Fine’s investigation into the US Attorney firings, the White House can blow off the Inspectors General with glee. 

Golly. Who would have imagined that an IG report on warrantless wiretapping wouldn’t accomplish what it was promised to accomplish???

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The Illegal Wiretappers in John McCain’s Backyard

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The WaPo reports on yet another example of how John McCain has abused his position on the Commerce Committee and his stable full of telecom lobbyists to make sure he got cell phone coverage in the desert.

Early in 2007, just as her husband launched his presidential bid, Cindy McCain decided to resolve an old problem — the lack of cellular telephone coverage on her remote 15-acre ranch near Sedona, nestled deep in a tree-lined canyon called Hidden Valley.

By the time Sen. John McCain’s presidential bid was in full swing this summer, the ranch had wireless coverage from the two cellular companies most often used by campaign staff — Verizon Wireless and AT&T.

Verizon delivered a portable tower know as a "cell site on wheels" — free of charge — to Cindy McCain’s property in June in response to an online request from Cindy McCain’s staff early last year. Such devices are usually reserved for restoring service when cell coverage is knocked out during emergencies, such as hurricanes.

In July, AT&T followed suit, wheeling in a portable tower for free to match Verizon’s offer. "This is an unusual situation," said AT&T spokeswoman Claudia B. Jones. "You can’t have a presidential nominee in an area where there is not cell coverage."

Over the course of the past year, Cindy McCain had offered land for a permanent cell tower and Verizon embarked on an expensive process to meet her needs, hiring contractors and seeking county land-use permits even though few people other than the McCains would benefit from the tower.

Ethics lawyers said Cindy McCain’s dealings with the wireless companies stand out because Sen. John McCain is a senior member of the Senate Commerce Committee, which oversees the Federal Communications Commission and the telecommunications industry. He has been a leading advocate for industry-backed legislation, fighting regulations and taxes on telecommunications services.

Now, I wouldn’t be surprised if McCain’s people were evenly split between AT&T and Verizon. I’m not surprised that the McCains were looking for coverage on these two networks.

But at the same time, I can’t help but remember that AT&T and Verizon are the two companies who–according to reports–collaborated most enthusiastically on Cheney’s illegal warrantless wiretap program. Sure, Jello Jay and even Barack Obama have given those telecom companies immunity. Still, I can imagine there are reasons–aside from just wanting to schmooze up a Senator on the Commerce Committee–to stay on the good side Read more →

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