It seems the NYT was not the only one who knew that Addington, Gonzales, and Bellinger got a briefing on the terror tapes. It appears the whole SSCI knew that too.

CIA Director Michael V. Hayden told lawmakers privately last week that three White House lawyers were briefed in 2004 about the existence of videotapes showing the interrogation of two al-Qaeda figures, and they urged the agency to be "cautious" about destroying the tapes, according to sources familiar with his classified testimony.

The three White House officials present at the briefing were David S. Addington, then Vice President Cheney’s chief counsel; Alberto R. Gonzales, then White House counsel; and John B. Bellinger III, then the top lawyer at the National Security Council, according to Hayden’s closed-door testimony before the Senate intelligence committee.

When told that some high-ranking CIA officials were demanding that the tapes be destroyed, the White House lawyers "consistently counseled caution," said one U.S. official familiar with Hayden’s testimony. Another source said that Harriet E. Miers followed up with a similar recommendation in 2005, making her the fourth White House lawyer "urging caution" on the action.

The ambiguity in the phrasing of Hayden’s account left unresolved key questions about the White House’s role. While his account suggests an ambivalent White House view toward the tapes, other intelligence officials recalled White House officials being more emphatic at the first meeting that the videos should not be destroyed.

Also unexplained is why the issue was discussed at the White House without apparent resolution for more than a year.

But note what’s funny about this story (and therefore, about Hayden’s testimony). Hayden says this briefing took place in 2004, not 2003, when we know the Gang of Four got a briefing.

Yesterday’s NYT story suggested the discussions started in 2003.

At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

So which is it? Did the briefings start in 2003? And if so, did Hayden tell the SSCI about those briefings?

The NYT’s article has one more detail of note–again, reporting something that is intuitive, but not something that had been confirmed before, AFAIK. The torture tapes were stored in the country–singular–where the interrogations of Abu Zubaydah and al-Nashiri took place.

Until their destruction, the tapes were stored in a safe in the C.I.A. station in the country where the interrogations took place, current and former officials said. According to one former senior intelligence official, the tapes were never sent back to C.I.A. headquarters, despite what the official described as concern about keeping such highly classified material overseas.

Which raises some really interesting questions. Abu Zubaydah has been widely reported to have been taken from Pakistan to Thailand to be interrogated. Yet al-Nashiri’s trajectory has been less clear. He was reported to have been detained in the United Arab Emirates but it has never been clear where he was taken after he was captured (though I’ve seen unreliable sources say al-Nashiri was taken to Jordan).

But according to the NYT, al-Nashiri was apparently interrogated in the same country as Abu Zubaydah. So, presumably, Thailand, unless Abu Zubaydah was moved.

Though there is a distinct possibility that Abu Zubaydah was moved. From James Risen’s State of War:

The CIA assigned a group of agency officials to try to find alternative prison sites in countries scattered around the world. They were studying, said one CIA source, "how to make people disappear."

There were a number of third world countries, with dubious human rights records, willing to play host. One African country offered the CIA the use of an island in the middle of a large lake, according to CIA sources, and other nations were equally accommodating. Eventually, several CIA prisons were secretly established, including at least two major ones, code-named Bright Lights and Salt Pit. A small group of officials within the CIA’s Counterterrorist Center was put in charge of supporting the prisons and managing the interrogations.

[snip]

Bright Light is one of the prisons where top al Qaeda leaders–including Abu Zubaydah and Khalid Sheikh Mohammed, the cenral planner of the September 11 attacks–have been held. Bright Light’s location is secret, and it has been used for only a handful of the most important al Qaeda detainees. (30)

This passage follows Risen’s reporting that Abu Zubaydah was moved to Thailand not long after his capture. Which suggests, as far as Risen knows, Bright Light may not be in Thailand. And therefore, the country where Abu Zubaydah and al-Nishiri were tortured (and where their torture tapes were stored for three years) may not be Thailand.

That’s not much to go on. But I find this news particularly interesting considering the news that,

… the CIA came into possession of the three recordings [revealed to Leonie Brinkema in October] under unique circumstances involving separate national security matters unrelated to the Moussaoui prosecution.

On September 13, 2007, an attorney for the CIA notified us of the discovery of a videotape of the interrogation of [redacted]

The whole discussion of the destroyed torture tapes appears to be connected to the discovery, three months ago, of these other torture tapes, which were not destroyed. So it might suggest that the "separate national security matters" might have something to do with the location at which the torture tapes had been stored.

As Scarecrow pointed out in the last thread, the White House has done something colossally stupid: they’ve objected to the sub-heading of the NYT’s story revealing the involvement of David Addington and Alberto Gonzales (among others) in the destruction of the terror tapes.

The White House on Wednesday took the rare step of publicly asking The New York Times to change the sub-headline of a story on the destruction of CIA tapes showing the interrogations of suspected terrorists.

At issue is the story’s sub-headline that stated: “White House Role Was Wider Than It Said.” The White House called this sub-headline inaccurate and demanded that it be corrected.

[snip]

The White House argues that the newspaper article implies that “there is an effort to mislead in this matter,” adding that such a conclusion is “pernicious and troubling.”

They appear to be making a fairly narrow objection. Since they have not publicly, officially, responded to the news that someone destroyed the terror tapes, they can’t be described to have "said" anything. Never mind that someone has been shopping the cover story that only Harriet Miers was involved in the deliberations on the tapes.

And, as we might expect from the Bill Keller- and Pinch Sulzberger-led NYT, they have obliged with the White House’s request and changed the entire title to: "Bush Lawyers Discussed Fate of C.I.A.Tapes." Given that the point of the sub-headline was that the story had been floated, by someone, that Harriet was the only one involved in the terror tape deliberations, I think the more appropriate response would have been to demand that the source for those original allegations either publicly retract them, or consider his source confidentiality sacrificed. Because, as it is, the NYT’s change of headlines coddles the people who have been pitching the cover story about Harriet.

But I’m also interested in the White House’s ham-handed response to this. The last time they handled a public allegation this badly was, oh, around July 8, 2003, when on Dick Cheney’s apparent order, Scooter Libby outed a CIA spy to (the NYT again!) Judy Miller. Thus far, they haven’t tried to out any of the parties involved–at least as far as we know. But as with Joe Wilson’s allegations, they are responding in such a panicked mode that the most logical conclusion is that they are, truly, panicked by the possibility that they will have to answer for the destruction of the torture tapes.

Mr. Mukasey–can we return to the discussion of a Special Proescutor for this issue?

Update: Oh, this is rich. Here’s the White House statement:

The New York Times today implies that the White House has been misleading in publicly acknowledging or discussing details related to the CIA’s decision to destroy interrogation tapes.

The sub-headline of the story inaccurately says that the "White House Role Was Wider Than It Said", and the story states that "…the involvement of White House officials in the discussions before the destruction of the tapes…was more extensive than Bush administration officials have acknowledged."

Under direction from the White House General Counsel while the Department of Justice and the CIA Inspector General conduct a preliminary inquiry, we have not publicly commented on facts relating to this issue, except to note President Bush’s immediate reaction upon being briefed on the matter. Furthermore, we have not described – neither to highlight, nor to minimize — the role or deliberations of White House officials in this matter.

The New York Times’ inference that there is an effort to mislead in this matter is pernicious and troubling, and we are formally requesting that NYT correct the sub-headline of this story.

It will not be surprising that this matter will be reported with a reliance on un-named sources and individuals lacking a full availability of the facts — and, as the New York Times story itself acknowledges, some of these sources will have wildly conflicting accounts of the facts. We will instead focus our efforts on supporting the preliminary inquiry underway, where facts can be gathered without bias or influence and later disseminated in an appropriate fashion.

We will continue to decline to comment on this issue, and in response to misleading press reports. [my emphasis]

First, in response to "misleading press reports," you’re going to do what? Are you going to finish that sentence? Did someone forget to have this reviewed by someone smarter than Dana "Pig Missile" Perino?

And where does this Administration get off, after leaking Valerie Wilson’s cover as an un-named source, getting all skittish about the use of un-named sources? Not to mention the same Administration that brought us to war by laundering classified information through un-named sources. 

I speculated, a week ago, that the Directorate of Operations lawyers who gave Jose Rodriguez the green light to destroy the torture tapes did not know of the outstanding court orders that would have covered the tapes.

Most importantly, it sounds like the Directorate of Operations lawyer who purportedly authorized the destruction of the tapes only said there was no legal reason not to do so.

Included in the paper trail is an opinion from a CIA lawyer assigned to the Clandestine Service that advises that there is no explicit legal reason why the Clandestine Service had to preserve the tapes, according to both former and current officials. The document does not, however, directly authorize the tapes’ destruction or offer advice on the wisdom or folly of such a course of action, according to a source familiar with its contents, who declined to be identified discussing the controversial topic.

Which suggests this lawyer had no fucking clue that Judge Leonie Brinkema had asked the government about such tapes explicitly, within weeks of the time when the tapes were destroyed. I’m guessing that was by design–the only way they could figure out how to get a legal opinion defending the indefensible, the destruction of evidence.

Which is why I think the description in today’s NYT story on the torture tapes is so important.

The officials said that before [Jose Rodriguez] issued a secret cable directing that the tapes be destroyed, Mr. Rodriguez received legal guidance from two C.I.A. lawyers, Steven Hermes and Robert Eatinger. The officials said that those lawyers gave written guidance to Mr. Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.

The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.

Current and former officials said the two lawyers informed the C.I.A.’s top lawyer, John A. Rizzo, about the legal advice they had provided. But officials said Mr. Rodriguez did not inform either Mr. Rizzo or Porter J. Goss, the C.I.A. director, before he sent the cable to destroy the tapes.

“There was an expectation on the part of those providing legal guidance that additional bases would be touched,” said one government official with knowledge of the matter. “That didn’t happen.”

Look at the language of these two versions, taken together. Newsweek reports that Hermes and Eatinger offered "no explicit legal reason why the Clandestine Service had to preserve the tapes" but did not "directly authorize the tapes’ destruction." NYT reports that they told Rodriguez that "he had the authority to destroy the tapes and that the destruction would violate no laws." Whether or not Hermes and Eatinger knew of the court orders and inquiries about torture tapes, their advice seems much more limited, perhaps discussing only the DO’s obligations regarding interrogation evidence in general. And even within that context, these lawyers appear not to have commented on the wisdom of destroying evidence on interrogations, which even aside from the court orders is a stupid idea. In other words, the NYT article adds support for my intuition that the legal opinion that everyone is claiming legalizes the destruction of the tapes was offered by two lawyers who may have been compartmented away from the discussions about the reasons not to destroy the tapes, and at the very least, may authorize the destruction of interrogation tapes in general, but possibly not these particular tapes.

And it is in that context that I’m most interested in the scoop-we-already-knew the story reports–the news that David Addington, Alberto Gonzales, John Bellinger, and Harriet Miers all participated in discussions of the torture tapes. After all, use of compartmentalization to gain legal authority for legally dubious acts has the all the hallmarks of David Addington’s work. So I think this story is as much about how these White House lawyers operated to ensure the destruction of the terror tapes as it is about who.

As to the implication that, if Gonzales and Addington were involved in the torture tapes, then so were Bush and Dick? I think this passage implies that Dick, at least, was part of the discussion.

One former senior intelligence official with direct knowledge of the matter said there had been “vigorous sentiment” among some top White House officials to destroy the tapes. The former official did not specify which White House officials took this position, but he said that some believed in 2005 that any disclosure of the tapes could have been particularly damaging after revelations a year earlier of abuses at Abu Ghraib prison in Iraq.

Some other officials assert that no one at the White House advocated destroying the tapes. Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal. [my emphasis]

There are relatively few people who would merit the "top White House officials." Add in the consideration that those people would have a national security role, and you’re talking people like Condi, Scooter, Stephen Hadley. And Dick Cheney. If not Bush himself. So at least some sources are out there saying someone in the White House was actively lobbying to destroy this evidence. (Incidentally, it might be worth mentioning that Alberto Gonzales implemented the email policy that resulted in millions of lost emails, so he has a history of advocating the destruction of evidence.)

One more really important aspect of this story. Many stories that came out when this first broke named Harriet as the sole White House lawyer involved in the discussion of the torture tape. This story is perhaps most extensive in this same Newsweek article, which says that Harriet was involved for two years.

The CIA repeatedly asked White House lawyer Harriet Miers over a two-year period for instructions regarding what to do with "very clinical" videotapes depicting the use of "enhanced" interrogation techniques on two top Al Qaeda captives, according to former and current intelligence officials familiar with the communications (who requested anonymity when discussing the controversial issue).

Now, that story doesn’t make sense entirely. After all Harriet wasn’t in a legal position for most of the two years in question, she was Deputy Chief of Staff for Policy. Isikoff and Hosenball explained away that seeming oddity by saying the CIA wanted to deal with the political staff at the White House on this issue.

The reason CIA officials involved the White House and Justice Department in discussions about the disposition of the tapes was that CIA officials viewed the CIA’s terrorist interrogation and detention program—including the use of "enhanced" interrogation techniques—as having been imposed on the agency by the White House. "It was a political issue," said the former official, and therefore CIA officials believed that the decision as to what to do with the tapes should be made at a political level, by Miers—a former personal lawyer to President Bush and later White House staff secretary and counsel—or someone else directly representing the president. [my emphasis]

Which amounts to a claim that the White House never engaged with this issue (at least not until 2005, when Harriet became White House Counsel) legally. The early Harriet story suggested–falsely–that the only White House involvement with the torture tapes was on the part of Harriet, and that primarily in a political role. It was a story that claimed the White House never weighed in, legally, on the destruction of the torture tapes. 

The NYT tells a different story. Not only does it list several lawyers–including Addington, who is really this Administration’s chief lawyer–who were involved in the discussion. But it states that Harriet may not have been involved until she became White House Counsel.

The only White House official previously reported to have taken part in the discussions was Ms. Miers, who served as a deputy chief of staff to President Bush until early 2005, when she took over as White House counsel. While one official had said previously that Ms. Miers’s involvement began in 2003, other current and former officials said they did not believe she joined the discussions until 2005.

It seems an early cover story for the torture tape destruction was to blame it–and any of the crappy legal advice–on Harriet Miers. Doing so makes her into the scapegoat and implies that the White House did not engage legally with this issue until she ascended to White House Counsel. But the NYT story debunks that cover story.

Now who do you think would want to pin this on poor Harriet?

Arlen "Scottish Haggis" Specter took the opportunity yesterday to enter a letter exchange he had with Dick Cheney into the Congressional Record. Here’s that exchange (see below the letters for my analysis; h/t for Selise to alerting me the transcripts were up):

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC, June 7, 2006.
Hon. Richard B. Cheney,
The Vice President,
Washington, DC.

Dear Mr. Vice President: I am taking this unusual step in writing to you to establish a public record. It is neither pleasant nor easy to raise these issues with the Administration of my own party, but I do so because of their importance,

No one has been more supportive of a strong national defense and tough action against terrorism than I. However, the Administration’s continuing position on the NSA electronic surveillance program rejects the historical constitutional practice of judicial approval of warrants before wiretapping and denigrates the constitutional authority and responsibility of the Congress and specifically the Judiciary Committee to conduct oversight on constitutional issues.

On March 16, 2006, I introduced legislation to authorize the Foreign Intelligence Surveillance Court to rule on the constitutionality of the Administration’s electronic surveillance program. Expert witnesses, including four former judges of the FISA Court, supported the legislation as an effective way to preserve the secrecy of the program and protect civil rights. The FISA Court has an unblemished record for keeping secrets and it has the obvious expertise to rule on the issue. The FISA Court judges and other experts concluded that the legislation satisfied the case-in-controversy requirement and was not a prohibited advisory opinion. Notwithstanding my repeated efforts to get the Administration’s position on this legislation, I have been unable to get any response, including a “no”.

The Administration’s obligation to provide sufficient information to the Judiciary Committee to allow the Committee to perform its constitutional oversight is not satisfied by the briefings to the Congressional Intelligence Committees. On that subject, it should be noted that this Administration, as well as previous Administrations, has failed to comply with the requirements of the National Security Act of 1947 to keep the House and Senate Intelligence Committees fully informed. That statute has been ignored for decades when Presidents have only informed the so-called “Gang of Eight,” the Leaders of both Houses and the Chairmen and Ranking on the Intelligence Committees. From my experience as a member of the “Gang of Eight” when I chaired the Intelligence Committee of the 104th Congress, even that group gets very little information. It was only in the face of pressure from the Senate Judiciary Committee that the Administration reluctantly informed subcommittees of the House and Senate Intelligence Committees and then agreed to inform the full Intelligence Committee members in order to get General Hayden confirmed.

When there were public disclosures about the telephone companies turning over millions of customer records involving allegedly billions of telephone calls, the Judiciary Committee scheduled a hearing of the chief executive officers of the four telephone companies involved. When some of the companies requested subpoenas so they would not be volunteers, we responded that we would honor that request. Later, the companies indicated that if the hearing were closed to the public, they would not need
subpoenas.

I then sought Committee approval, which is necessary under our rules, to have a closed session to protect the confidentiality of any classified information and scheduled a Judiciary Committee Executive Session for 2:30 P.M. yesterday to get that approval.

I was advised yesterday that you had called Republican members of the Judiciary Committee lobbying them to oppose any Judiciary Committee hearing, even a closed one, with the telephone companies. I was further advised that you told those Republican members that the telephone companies had been instructed not to provide any information to the Committee as they were prohibited from disclosing classified information.

I was surprised, to say the least, that you sought to influence, really determine, the action of the Committee without calling me first, or at least calling me at some point. This was especially perplexing since we both attended the Republican Senators caucus lunch yesterday and I walked directly in front of you on at least two occasions enroute from the buffet to my table.

At the request of Republican Committee members, I scheduled a Republican members meeting at 2:00 P.M. yesterday in advance of the 2:30 P.M. full Committee meeting. At that time, I announced my plan to proceed with the hearing and to invite the chief executive officers of the telephone companies who would not be subject to the embarrassment of being subpoenaed because that was no longer needed. I emphasized my preference to have a closed hearing providing a majority of the Committee agreed.

Senator Hatch then urged me to defer action on the telephone companies hearing, saying that he would get Administration support for my bill which he had long supported. In the context of the doubt as to whether there were the votes necessary for a closed hearing or to proceed in any manner as to the telephone companies, I agreed to Senator Hatch’s proposal for a brief delay on the telephone companies hearing to give him an opportunity to secure the Administration’s approval of the bill which he thought could be done. When I announced this course of action at the full Committee Executive Session, there was a very contentious discussion which is available on the public record.

It has been my hope that there could be an accommodation between Congress’s Article I authority on oversight and the President’s constitutional authority under Article II. There is no doubt that the NSA program violates the Foreign Intelligence Surveillance Act which sets forth the exclusive procedure for domestic wiretaps which requires the approval of the FISA Court. It may be that the President has inherent authority under Article II to trump that statute but the President does not have a blank check and the determination on whether the President has such Article II power calls for a balancing test which requires knowing what the surveillance program constitutes.

If an accommodation cannot be reached with the Administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement of that compulsory process if it appears that a majority vote will be forthcoming. The Committee would obviously have a much easier time making our case for enforcement of subpoenas against the telephone companies which do not have the plea of executive privilege. That may ultimately be the course of least resistance.

We press this issue in the context of repeated stances by the Administration on expansion of Article II power, frequently at the expense of Congress’s Article I authority. There are the Presidential signing statements where the President seeks to cherry-pick which parts of the statute he will follow. There has been the refusal of the Department of Justice to provide the necessary clearances to permit its Office of Professional Responsibility to determine the propriety of the legal advice given by the Department of Justice on the electronic surveillance program. There is the recent Executive Branch search and seizure of Congressman Jefferson’s office. There are recent and repeated assertions by the Department of Justice that it has the authority to criminally prosecute newspapers and reporters under highly questionable criminal statutes.

All of this is occurring in the context where the Administration is continuing warrantless wiretaps in violation of the Foreign Intelligence Surveillance Act and is preventing the Senate Judiciary Committee from carrying out its constitutional responsibility for Congressional oversight on constitutional issues. I am available to try to work this out with the Administration without the necessity of a constitutional confrontation between Congress and the President.

Sincerely,
Arlen Specter.

Here’s Dick’s response:

THE VICE PRESIDENT,

Washington, June 8, 2006.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.

Dear Mr. Chairman: This is in response to your letter of June 7, 2006 concerning the Terrorist Surveillance Program (TSP) the Administration has described. The commitment in your letter to work with the Administration in a non-confrontational manner is most welcome and will, of course, be reciprocated.

As recently as Tuesday of this week, I reiterated that, as the Administration has said before, while there is no need for any legislation to carry out the Terrorist Surveillance Program, the Administration will listen to the ideas of legislators about terrorist surveillance legislation and work with them in good faith. Needless to say, that includes you, Senator DeWine and others who have ideas for such legislation. The President ultimately will have to make a decision whether any particular legislation would strengthen the ability of the Government to protect Americans against terrorists, while protecting the rights of Americans, but we believe the Congress and the Administration working together can produce legislation to achieve that objective, if that is the will of the Congress.

Having served in the executive branch as chief of staff for one President and as Secretary of Defense for another, having served in the legislative branch as a Representative from Wyoming for a decade, and serving now in a unique position under the Constitution with both executive functions and legislative functions, I fully understand and respect the separate constitutional roles of the Congress and the Presidency. Under our constitutional separation between the legislative powers granted to Congress and the executive power vested exclusively in the Presidency, differences of view may occur from time to time between the branches, but the Government generally functions best when the legislative branch and the executive branch work together. And I believe that both branches agree that they should work together as Congress decides whether and how to pursue further terrorist surveillance legislation

Your letter addressed four basic subjects: (1) the legal basis for the TSP; (2) the Administration position on legislation prepared by you relating to the TSP; (3) provision of information to Congress about the TSP; and (4) communications with Senators on the Judiciary Committee about the TSP.

The executive branch has conducted the TSP, from its inception on October 4, 2001 to the present, with great care to operate within the law, with approval as to legality of Presidential authorizations every 45 days or so by senior Government attorneys. The Department of Justice has set forth in detail in writing the constitutional and statutory bases, and related judicial precedents, for warrantless electronic surveillance under the TSP to protect against terrorism, and that information has been
made available to your Committee and to the public.

Your letter indicated that you have repeatedly requested an Administration position on legislation prepared by you relating to the TSP program. If you would like a formal Administration position on draft legislation, you may at any time submit it to the Attorney General, the Director of National Intelligence, or the Director of the Office of Management and Budget (OMB) for processing, which will produce a formal Administration position. Before you do so, however, it might be more productive for executive branch experts to meet with you, and perhaps Senator DEWINE or other Senators as appropriate, to review the various bills that have been introduced and to share the Administration’s thoughts on terrorist surveillance legislation. Attorney General Alberto
R. Gonzales and Acting Assistant Attorney General for the Office of Legal Counsel Steven G. Bradbury are key experts upon whom the executive branch would rely for this purpose. I will ask them to contact you promptly so that the cooperative effort can proceed apace.

Since the earliest days of the TSP, the executive branch has ensured that, consistent with the protection of the sensitive intelligence sources, methods and activities involved, appropriate members of Congress were briefed periodically on the program. The executive branch kept principally the chairman and ranking members of the congressional intelligence committees informed and later included the congressional leadership. Today, the full membership of both the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence (including four Senators on that Committee who also serve on your Judiciary Committee) are fully briefed on the program. As a matter of inter-branch comity and good executive-legislative practice, and recognizing the vital importance of protecting U.S. intelligence sources, methods and activities, we believe that the country as a whole, and the Senate and the House respectively, are best served by concentrating the congressional handling of intelligence matters within the intelligence committees of the Congress. The internal organization of the two Houses is, of course, a matter for the respective Houses. Recognizing the wisdom of the concentration within the intelligence committees, the rules of the Senate (S. Res. 400 of the 94th Congress) and the House (Rule X, cl. 11) creating the intelligence committees mandated that the intelligence committees have cross-over members who also serve on the judiciary, foreign/international relations, armed services, and appropriations committees.

Both in performing the legislative functions of the Vice Presidency as President of the Senate and in performing executive functions in support of the President, I have frequent contact with Senators, both at their initiative and mine. We have found such contacts helpful in maintaining good relations between the executive and legislative branches and in advancing legislation that serves the interests of the American people. The respectful and candid exchange of views is something to be encouraged rather than avoided. Indeed, recognizing the importance of such communication, the first step the Administration took, when it learned that you might pursue use of compulsory process in an attempt to force testimony that may involve extremely sensitive classified information, was to have one of the Administration’s most senior officials, the Chief of Staff to the President of the United States, contact you to discuss the matter. Thereafter, I spoke with a number of other Members of the Senate Leadership and the Judiciary Committee. These communications are not unusual–they are the Government at work.

While there may continue to be areas of disagreement from time to time, we should proceed in a practical way to build on the areas of agreement. I believe that other Senators and you, working with the executive branch, can find the way forward to enactment of legislation that would strengthen the ability of the Government to protect Americans against terrorists, while continuing to protect the rights of Americans, if it is the judgment of Congress that such legislation should be enacted. We look
forward to working with you, knowing of the good faith on all sides.

Sincerely,
DICK CHENEY.

And here are my comments:

First, have I mentioned that Dick Cheney is an asshole? Oh, you already knew that?

Scottish Haggis accuses Dick of several things:

• Blowing him off at a luncheon and then going behind his back to conspire with (presumably) Orrin Hatch and others
• Refusing to fulfill the law mandating that the Administration inform Congress of its activities
• Violating FISA with the Administration’s warrantless wiretap program

And Cheney’s response is a breathtaking "go fuck yourself."

• He pretty much says, "yeah, I’m lobbying other Republicans behind your back–what are you going to do about it?"
• He ignores the laws regarding informing Congress and says simply that "inter-brach comity" requires that only the Intelligence Committees get to exercise any oversight.
• He states simply that the Administration doesn’t need any legislative sanction for his warrantless wiretap program (it’s as if Obi Ben Kenobe said, "these aren’t the legislative droids you’re looking for," and Haggis was appropriately swayed).
• And oh, by the way, if Haggis doesn’t like Dick’s interpretation of the Constitution, then tough, because Dick is the Fourth Branch and that gives him superior wisdom.

Like I said. Dick’s an asshole.

Two more details I highlighted that appear important, given the current debate on whether or not the telecoms had adequate reason to believe the warrantless wiretap program is legal.

• The telecom companies would have happily come and testified to Congress, but Dick wouldn’t let them.
• Dick says that the warrantless wiretap program was run "with approval as to legality of Presidential authorizations every 45 days or so by senior Government attorneys."

If find that last bit particularly curious, since it suggests that there’s more than one authorization signed not by the AG, but by "senior Government attorneys," which could mean Alberto Gonzales as White House Counsel, or could mean John Yoo as Dick’s personal Unitary Executive Handmaiden.

Oh. And have I mentioned that Dick is an asshole?

Dan Eggen and Walter Pincus have an interesting article describing the debate between CIA and FBI over whether waterboarding worked with Abu Zubaydah. If the timeline they describe is accurate, then it means that Abu Zubaydah may have given up his most important intelligence before they started torturing him (save, perhaps, fingering Ramzi bin al-Shibh). As to the information he gave up under torture, the CIA and FBI dispute whether it was useful or not. The article suggests the possibility that the CIA may have destroyed the torture tapes to hide the fact that the water-boarding was ineffective (which also might explain why Kiriakou so far hasn’t gotten scolded for telling the world that the United States tortures, since he claims it was effective).

The article explains that Abu Zubaydah was first detained on March 28, 2002 and describes him undergoing traditional interrogation methods from April and August. And apparently, using those traditional methods, they were able to get two of the most public pieces of information from Abu Zubaydah.

There is little dispute, according to officials from both agencies, that Abu Zubaida provided some valuable intelligence before CIA interrogators began to rough him up, including information that helped identify Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11 attacks, and al-Qaeda operative Jose Padilla.

[snip]

Other officials, including Bush, have said that during those early weeks — before the interrogation turned harsh — Abu Zubaida confirmed that Mohammed’s role as the mastermind of the Sept. 11 attacks.

But then, the CIA and Bush wanted more, so they started water-boarding Abu Zubaydah, apparently in August (at least according to the CIA).

Whether harsh tactics were used on Abu Zubaida prior to official legal authorization by the Justice Department is unclear. Officials at the CIA say all its tactics were lawful. An Aug. 1 Justice document later known as the "torture memo" narrowly defined what constituted illegal abuse. It was accompanied by another memo that laid out a list of allowable tactics for the CIA, including waterboarding, according to numerous officials.

Note, there appears to be some debate about this detail. But the assertion by the CIA that it started in August implies that they didn’t start waterboarding Abu Zubaydah until the Bybee memo authorized it. And that the intelligence used to arrest Padilla was gathered without using torture. Of course, the CIA has a big big incentive to say that they didn’t start torturing Zubaydah until they were authorized to, so take that detail with motivation in mind.

Bush, at least, claims the water-boarding led to the capture of Ramzi bin al-Shibh.

"We knew that Zubaida had more information that could save innocent lives, but he stopped talking," Bush said in September 2006. "And so the CIA used an alternative set of procedures," which the president said prompted Abu Zubaida to disclose information leading to the capture of Sept. 11, 2001, plotter Ramzi Binalshibh.

But the FBI holds that the information gathered from Abu Zubaydah got increasingly crummy as the torture continued.

But FBI officials, including agents who questioned him after his capture or reviewed documents seized from his home, have concluded that even though he knew some al-Qaeda players, he provided interrogators with increasingly dubious information as the CIA’s harsh treatment intensified in late 2002.

Abu Zubaydah himself maintains as much, too.

In legal papers prepared for a military hearing, Abu Zubaida himself has asserted that he told his interrogators whatever they wanted to hear to make the treatment stop.

So that appears to be the big debate. Did Abu Zubaydah give up useful intelligence under torture, or just crap? Did he give up Ramzi bin al-Shibh before or after they started torturing him?  

Now, one of the most interesting details of this article, given the debate, is that Abu Zubaydah identified al-Nashiri under torture, and then al-Nashiri was in turn tortured.

According to the 9/11 Commission, which had access to FBI and CIA summaries of the interrogation, after August 2002 — when the harsh questioning is said to have begun — Abu Zubaida identified Abd al-Rahim al-Nashiri as a productive recruiter for al-Qaeda. Nashiri was subsequently captured and subjected to harsh interrogation, including waterboarding, but videotapes of that questioning were also destroyed by the CIA

I find this particularly interesting. If Zubaydah gave up  al-Nashiri under torture, was the intelligence any good? If not, it might explain why they’d eliminate Abu Zubaydah’s and al-Nashiri’s torture tapes, among all the tapes I presume they have. Or, there’s another possibility. The evidence about what Abu Zubaydah said when comes from the 9/11 Commission. Is it possible they got false information about what was gained under torture and what was gained before the torture started?

This rather snotty article from the WaPo says that Reid didn’t pull the FISA bill yesterday because of Dodd’s efforts.

Reid spokesman Jim Manley said the decision had nothing to do with the efforts of Dodd and his allies. Indeed, for most of yesterday, Dodd appeared to be fighting a losing battle. His initial filibuster effort was steamrolled when the Senate voted 76 to 10 to take up the measure at noon.

Manley is, of course, full of shit. At the very least, Reid did the math to see that Dodd could filibuster this issue until the Christmas break, and since Reid intended to get funding done before the break, he was faced with postponing the break or punting the appropriations bills to the next year. So whatever else caused Reid to pull the bill, Dodd’s demonstration that he was willing to hold the Senate floor was one factor (apparently, Dodd only left the floor once during yesterday’s debate).

Snotty article also points to the amendments as one of the reasons Reid pulled the bill.

But in the face of more than a dozen amendments to the bill and guerrilla tactics from its opponents, Reid surprised his colleagues when he announced there would not be enough time to finish the job.

Now, best as I can count, I think I know of at least five amendments:

1. Dodd’s amendment to pull immunity from the bill
2. DiFi’s amendment to declare FISA the exclusive means of electronic tapping
3. DiFi’s amendment to have the FISA Court review the authorizations the telecoms got before they received immunity
4. [I think] A Whitehouse amendment to prohibit wiretapping of US Persons abroad
5. [I think] A Whitehouse amendment to provide oversight of minimization
6. Update: Beth Meacham says Leahy’s amendment–to substitute the SJC bill–came up just before Reid pulled the bill (thanks Beth).

I’ll try to clarify these later today. In addition, I’m sure there were going to be Republican amendments seeking to allow Bush to wiretap each and every Dirty Fucking Hippie and similar authoritarian fun.

Now, here’s what I understand would have happened last night: at some point, Reid would have called for the amendment fun to start. The Dodd crowd didn’t expect Reid to allow the full 30 hours of debate, but we got through about 8 of them, and no one expected even that much time to elapse. As I understand it, Reid was busy trying to figure out how to proceed after Dodd refused to agree to the unanimous consent. Had it come to it, Dodd’s amendment would have been the first to be considered, and it would have failed. At that point, Dodd’s filibuster would have officially started, which would have lasted roughly 24 hours, before he collapsed and we moved onto the other amendments. Presumably, once Dodd got some sleep, he could launch another filibuster. So one of the problems, for Reid, with all those amendments, is that they gave Dodd multiple opportunities to filibuster, with breaks in between.

DiFi’s Amendment

But here’s the other thing. I’m fairly certain DiFi said she was supporting Whitehouse’s amendments (though I need to check this). She also said, quite clearly, that she would have a hard time voting for immunity if her own amendment didn’t pass. In other words, a key block from the "bipartisan" crowd who had originally supported the SSCI bill was going soft on it, threatening to vote against the bill if it didn’t have some kind of compromise on immunity. Now, DiFi is famous for disappointing Democrats–but she did seem to be sending a clear message, at a time when the debate was still quite public.

So what was DiFi’s amendment? As I understand it (again, I’ll try to get clarification later), her amendment would have added one wrinkle to the immunity provision as currently written. It would have required the FISA Court to review the authorizations the telecoms received, to see whether they were legal, before the telecoms got immunity. If the FISA Court determined that those authorizations were not adequate under the law, then the telecoms would not get immunity. I have no idea what would happen then–I presume they would just revert back to non-FISA Courts to rule on and we’d get back into the State Secret dance we’re currently doing. Though with the added information that the FISA Court had reviewed all the stuff the Bush Administration was claiming State Secrets over, and determined that the telecoms had indeed broken the law. But DiFi’s amendment would provide a way for a Court (albeit a secret one) to determine that the telecoms had broken the law when they complied with the Administration’s request.

Why DiFi’s Amendment Would Be a Poison Pill

Now, before Orrin Hatch started accusing "partisan blogs" of fear-mongering on this debate, he had an apoplectic fit about DiFi’s amendment, lumping it in with more generalized DFH opposition to immunity. He strongly suggested DiFi’s amendment would be a poison pill for him–and presumably the other Republicans following Dick Cheney’s orders dutifully.

And there’s a reason for that. When the SSCI passed their immunity bill, they did so only by inventing the fiction that it was legal for telecoms to wiretap at the behest of the government if they had the authorization of the Attorney General or "certain other officers." They did so because they know–having read the authorization letters–that one of the letters (presumably the one for March 11, 2004), was signed by White House Counsel Alberto Gonzales. Here’s part of a post I did explaining this dodge.

As SSCI points out, the telecoms would be immune from prosecution if they had been authorized to conduct wiretaps under 18 U.S.C. § 2511(2)(a)(ii).

Under the existing statutory scheme, wire or electronic communication providers are authorized to provide information and assistance to persons with authority to conduct electronic surveillance if the providers have been provided with (1) a court order directing the assistance, or (2) a certification in writing signed by the Attorney General or certain other officers that ―no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required.‖ See 18 U.S.C. § 2511(2)(a)(ii).

I’ve bolded those words, "or certain other officers," to emphasize that Jello Jay and the Republicans didn’t actually specify what the law says. So let’s look at the law, shall we?

(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

(A) a court order directing such assistance signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

The law says that only the AG or someone specified in 2518(7) may provide the telecoms with the certification that their actions are legal. Here’s what 2518(7) says:

(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that— [my emphasis]

So the only people who may give telecoms the authorization that their eavesdropping is legal are: the AG, the DAG, the AAG, and any principal prosecuting attorney, such as the State AG [corrected per LHP] USA [Actually, maybe this means a State AG].

Yet, as the report informs us, for a period of time (a period of time, I might add, at some remove from 9/11), none of those people had signed off on the wiretapping program. After the Deputy Attorney General, as the Acting Attorney General, refused to endorse the legality of the program, Alberto Gonzales authorized it.

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]

In other words, DiFi’s amendment would introduce the very real possibility that the FISA Court would rule that the White House Counsel could not legally authorize the telecoms to wiretap, and that therefore the wiretapping that occurred immediately after March 10, 2004–precisely the time period when the AG and the Acting AG determined that the wiretapping was not legal–was not legal. DiFi’s amendment was poison for Hatch because it threatens to hold the telecoms responsible for continuing the wiretap program during the period when the AG refused to authorize the program. And, of course, it therefore threatens to certify in a court that Bush’s actions following the hospital confrontation were illegal. In other words, DiFi’s amendment threatens to scuttle the real intent of the immunity provision, protecting Bush from any legal consequences for wiretapping illegally.

Reid’s Request for the Authorization Letters

Now consider the fact that Harry Reid made a belated attempt on Sunday to get Mike McConnell to turn over the authorization documentation for the warrantless wiretap program to all of the Senate.

Dear Admiral McConnell:

As you know, the Senate will begin debate on the FISA Amendments Act of 2007 this week. Among the issues the Senate will consider is whether to grant retroactive immunity to telecommunications companies that are alleged to have assisted the government in its warrantless wiretapping program. You recently wrote in the New York Times that immunity is one of the three most critical issues in this bill.

We appreciate that you have provided access to the documents necessary for evaluation of this issue to the Senate Intelligence and Judiciary Committees, as each has in turn considered it. As the debate now moves to the full Senate, I believe it is of critical importance that all Senators who will be called upon to vote on this important question have an opportunity to review these key documents themselves so that they may draw their own conclusions. In my view, each sitting Senator has a constitutional right of access to these documents before voting on this matter.

I strongly urge you to make the documents previously provided to the Intelligence and Judiciary Committee regarding retroactive immunity available in a secure location to any Senator who wishes to review them during the floor debate.

Who knows whether, faced with a rejection from Congress, McConnell is going to be more willing to share those authorizations than he has been up to this point. But if he is, then the Senate will know what SSCI already knows–and already told us. The warrantless wiretap program operated outside the plain text reading of the laws governing wiretapping, at least for the period following the hospital confrontation. If I can figure that out, then I suspect the FISA Court can figure that out.

Pulling the Bill

So how does this result in Harry Reid having to pull the bill? I’m not sure. But I suspect that, if he really believed that DiFi and all the other moderate Dems refused to pass a bill with immunity without FISA Court review (and presume that we might trade Specter for Lieberman to gain a majority). Reid may well be at the point where there are three factions in the Senate (No Immunity, FISA Review before Immunity, Bush Apologists), which would prevent a bill from ever passing.

For all his faults, Michael Isikoff is certainly a reliable journalist through whom people can launder leaks. Take his story (with Hosenball) today (h/t bmaz). Note the grammar of these first two paragraphs:

In the summer of 2005, then CIA director Porter Goss met with then national intelligence director John Negroponte to discuss a highly sensitive matter: what to do about the existence of videotapes documenting the use of controversial interrogation methods, apparently includ­ing waterboarding, on two key Al Qaeda suspects. The tapes were eventually de­stroyed, and congressional investigators are now trying to piece together an extensive paper trail documenting how and why it happened.

One crucial document they’ll surely want to examine: a memo written after the meeting between Goss and Negroponte, which records that Negroponte strongly advised against destroying the tapes, according to two people close to the investigation, who asked for anonymity when discussing a sensitive matter. The memo is so far the only known documentation that a senior intel official warned that the tapes should not be destroyed. Spokespeople for the CIA and the intel czar’s office declined to comment, citing ongoing investigations. [my emphasis]

This article is framed in terms of what Congressional investigators want, not in terms of what the DOJ investigation is finding. Indeed, the leak about the Negroponte memo appears to come from two people involved in the investigation in some manner–whatever that investigation may be–who want to make sure news of this memo comes out and who seem to have little faith that news of Negroponte’s clear instructions to Goss will come out otherwise.

Also, note the curious no comment in this paragraph. "Spokespeople for the CIA and the intel czar’s office." You might assume, forgetting the last year of jostling within the Bush Administration, that it means that Isikoff called Negroponte’s office and got a no comment. But while Negroponte was "intel czar" when he wrote this memo, he’s not now; he’s at State running things for Condi. So unless Isikoff forgot all these details, I’d suggest this article only appears to record a "no comment" from Negroponte, and it certainly doesn’t exclude a pretty big comment from him. As in, "Mikey, I’d like you to write about this memo I wrote to Porter, because I’m afraid it’s getting buried in the DOJ investigation."

There’s another candidate to be one of Isikoff’s sources. The article also includes a clear signal from the masterful press manipulator, Bob Bennett, that he intends to advise his client John Jose Rodriguez to plead the Fifth.

Bennett told NEWSWEEK that his client had been "a dedicated and loy­al public servant for 31 years" and "has done nothing wrong." But he warned that Rodriguez may refuse to cooperate with investigators if he concludes that the probes are a "witch hunt." "I don’t want him to become a scapegoat."

In case you missed it, Bennett uses the same phrase Monica Goodling’s lawyer, John Dowd, used, "witch hunts," just before he snookered Congress into offering her immunity for a bunch of stuff that Congress already had evidence she was doing. As a reminder, Monica said almost nothing that incriminated Rove or Harriet and only sort of incriminated AGAG. But she managed to get herself immunity for "crossing the line" and politicizing DOJ’s hiring practices. Bennett’s use of precisely same language as Monica’s lawyer may be no accident.

Now, as I said, Bennett is clearly sending a message that Rodriguez will invoke the Fifth pretty readily. Is it possible, though, that Rodriguez knows about this memo, too? That is, is it possible that Bennett (who has been using leaks as a primary legal tool since at least Iran-Contra) is trying to trade the Negroponte memo–or at least a description of it–for immunity for his client?

Which is, frankly, about the only reason Michael Mukasey is correct in asking the House Intelligence Committee to back off. Crazy Pete Hoekstra is pretty close to Porter Goss, who appears to know more about the destruction of the torture tapes than he is letting on. And I could see Hoekstra doing the same favors–of impeding an investigation by manipulating the less than crafty chair of the House Intelligence Committee–that Dick Cheney did when he was in the same position during Iran-Contra. In other words, I’m not sure we can trust Crazy Pete to want to get to the bottom of this, and if HPSCI starts offering immunity as incautiously as they did with Monica, then I worry their investigation will stall any real investigation by DOJ–if it exists.

Update: Rodriguez’ first name corrected per rxbusa. 

The Rocky Mountain News has a good summary of the issues the Tenth Circuit will consider this week in Joseph Nacchio’s appeal. It’s worth reading the whole thing to get an idea of all the issues. But I’m most interested in the representation the RMN makes of the government’s claim regarding Nacchio’s claim that he lost business because he refused to wiretap Americans.

The judge should have let Nacchio present his classified, national security defense. Previous filings indicate Nottingham ruled the defense was irrelevant.

Defense argument

The CEO was optimistic about Qwest in early 2001 because he knew the company was in line to receive top-secret government contracts. Redacted court documents suggest Nacchio planned to argue that Qwest didn’t get the contracts because he refused to participate in a phone spying program.

Prosecution argument

Nacchio’s version of events was "a lie," said First Assistant U.S. Attorney Cliff Stricklin, lead prosecutor on the case, while speaking at a Denver luncheon in October. He said prosecutors were ready to discredit the defense if Nacchio presented it.

Now compare that to what a government source told the NYT for last night’s article.

A government official said the N.S.A. intended to single out only foreigners on Qwest’s network, and added that the agency believed Joseph Nacchio, then the chief executive of Qwest, and other company officials misunderstood the agency’s proposal. Bob Toevs, a Qwest spokesman, said the company did not comment on matters of national security.

One source is saying Nacchio’s lying, the other is saying Nacchio just misunderstood the ask.

Of course, these sources aren’t exactly commenting on the same thing. I presume Stricklin is claiming Nacchio is lying about his expectation that Qwest would get lots of NSA business. Whereas, given the NYT report that Nacchio was asked to give the government access to the local Qwest network (and therefore to traffic that was undoubtedly in the US), the anonymous government source is likely addressing that issue–saying that Nacchio misunderstood which circuits the government was after.

Furthermore, it’s not like the distinction matters for the case. Nacchio can’t very well call "that guy who was an anonymous source for James Risen" to testify that he was asked to do something, even if he misunderstood what that ask was for.

But I am struck by the seeming admission, on the part of a government source, that Nacchio was indeed asked to do something, but there was just a big misunderstanding about what he was asked to do. Because that kind of misunderstanding (real or imaginary) is the kind of thing that might make a government contractor lose business.

Because they’re leaking–and leaking big–to James Risen, Eric Lichtblau (and Scott Shane) again. Almost two years to the day since their first big scoop.

For months, the Bush administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program.

But the battle is really about something much bigger. At stake is the federal government’s extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime. The N.S.A.’s reliance on telecommunications companies is broader and deeper than ever before, according to government and industry officials, yet that alliance is strained by legal worries and the fear of public exposure.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified. But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

I need to go hang at FDL for the book salon thread (come meet Bob Drogin!). Afterwards, I’ll come back and fill this thread out some.

One comment though: this story says the change came bc everyone went on fiber. David Kris has shown pretty persuasively that’s not true–the wire/air split wasn’t that different in 1978 when FISA was written. The difference, I suspect, is that now everything is digital.