Jello Jay on bulk collection (time from opponents, this is a Feingold amendment).

Feingold argues amendment will prevent bulk collection by requiring govt to have some foreign intell interest in bulk info.

I believe will interfere with legitimate intelligence activities. I do not believe it provides additional protections. There important classified reasons underlying that concern.

Why it’s unnecessary: Bulk collection would be unreasonable by Fourth Amendment. Bill provides that collections have to be in accordance with 4th Amendment. Minimization. Cannot primarily target a US person.

Feingold only requires that it certify that bulk intelligence has foreign intelligence interest. But it already requires that the collection is targeted at people outside of the US. Remedy does not improve upon protection in bill. I thus oppose.

Bond

A number of inaccurate statements. It’s not an understatement to say they could shut down our intelligence collection.

3979, Feingold and Webb.

Amendment says that FISA is supposed to be foreign to foreign. Focus on foreign to foreign is misplaced. We cannot tell if a foreign terrorist is going to be communicating with another terrorist in another country. It does no good to only collect foreign to foreign. Impossible burden that FISC judges told us shut down their review. [That’s news, saying that it was the review of foreign to US that overwhelmed the FISC.]

This would stop collection. One intell professional said it would devastate the collection. Targetnet versus dragnet.

Blah blah blah; I’m going to misrepresent Feingold’s bill, so I can rebut it.

[Wow. Just looked at the screen. Bond has a whole lot of lilac on. Perhaps he knows that way more people turned out last night in his state for Democrats than Republicans?]

I’m sure the FISC judges would appreciate the notion that they’re doing a bad job. [wow that was dishonest]

Feingold

Bond referred to our concerns about privacy being "tired accusations." I reject that characterization. I consider the notion that our amendment would prevent our ability to listen in on OBL–that’s a tired accusation. He claims we wouldn’t be able to listen in on that amendment.

This amendment does not require a FISC warrant to wiretap any foreigner overseas. This merely requires the govt label communications that have one end in the US for oversight. I don’t know where Senator gets idea that somehow you can’t listen in on conversation of OBL.

And I don’t know why he says we’re insulting FISC. We’re just giving them the ability to do their job. Let’s worry less about the alleged feelings of a secret court and worry more about the privacy of innocent Americans.

Use limit. Gives FISC option of limiting govt use of information that the FISC later finds is illegal.

Twice M and M said this would put use limits on foreign info. That’s flat out false. There’s nothing ambiguous about this language. Patently false claims–shows the lengths to which the opposition to this amendment will go to defeat this amendment.

Want to address objections that Chair made, that this could affect thousands of intelligence. Under amendment FISC can allow govt to use even info obtained by unlawful procedures if the govt fixes the unlawful procedures.

Even more important, we have to remember what these thousands of communications are. The only things the govt can’t use is info collected through unlawful procedures. My amendment gives prohibition on US person collection some teeth. There ought to be a way to make sure this stuff happens, rather than let the Chair and Vice Chair says it has happened. Otherwise we’re gambling on whether the Administration would choose to comply. I’m not willing to gamble on that.

[Boy howdy, it’s purple day in the Senate.]

Jello Jay (opposing reverse targeting)

Feingold amendment goes too far. Problem is we are revising FISA because we want IC to have the capability to wiretap terrorists who call in the US. It is a significant purpose of this legislation.

[Jello Jay didn’t get the memo about purple day. I guess that’s because WV only gave votes to Huck yesterday.]

I’m going to keep blathering about how reverse targeting isn’t reverse targeting.

Feingold (reverse targeting)

I think that most of my colleagues would agree that this bill should not open up a back door to get around FISA.

The MM letter, which mischaracterizes the amendment underscores why the issue is needed.

Reverse targeting IS NOT prohibited by the bill. It prohibits direct targeting.

If a foreign terrorist is talking to someone in the US, the IC should get a warrant. Without it, they’ll never the full picture of what the American is doing or plotting. They’re saying they don’t want the communications of the domestic communications of a terrorist in the US. THe letter seriously mischaracterizes the amendment. Does not affect ability to collect terrorists calling into the US. Only when a significant purpose is to get info on a person within the US is the govt required to get a warrant. That is how the govt can most effectively protect us.

Bond

Interesting that the proponent of this bill says the letter supports his amendment. Call attention to my colleagues, statement from civil liberties office, says concerns have been raised that PAA result in interceptions of US person communication.

Jeff "Mututal Protection Racket" Sessions

Per his usual MO, Mutual Protection Racket is defending the Administration’s use of water-boarding.

"Not a single prisoner has died in our custody."

[WRONG!!! At least two died from exposure, plus the guy beaten to death.]

Shorter Mutual Protection Racket: Don’t say we torture, even though DNI admitted we did yesterday.

FISA is important.

Prevented attacks on "US saul." The people who spy on you "faul the law."

[Sessions is using a tactic that M-M did too–saying that because the SJC was voted down, then everything should be voted down, too. Apparently Specter is a Democrat now.]

[Ut oh. He just went off the ranch, and said the telecoms "helped" the govt–he’s supposed to say they may have helped. Line, please! But he at least has his "retroactive liability" language down.]

[Ut oh, Mutual Protection Racket forgot that Bush wasn’t duly elected.]

Lawsuits substituting fevered speculation and a fevered brow for fact. I don’t know who they are.

[Mutual Protection Racket: George Soros funded Lancet’s study of how many people died in Iraq, therefore it must be Soros who is funding the telecom lawsuits.]

Some say this amounts to amnesty. Amnesty is forgiveness for breaking the law, like forgiving people who broke the law by coming to this country. At no point during the telecom’s actions were they illegal. For heavens sakes. Great Anglo-American tradition, that when called upon by law officer, a citizen not held liable if responding to officer, if officer was wrong.

[Two things. First, Alberto Gonzales, who approved of the request after the hospital meeting, was not then a law officer. Secondly, are you saying the officer, in this case, was wrong?]

Saxby Chambliss

On immunity.

Telecoms good faith effort, determined by AG to be lawful, w/exception of less than 60 day period when AGAG approved it.

I believe program necessary and lawful. This is not a review on President’s program. Statement of importance of telecom assistance to our govt. There is too much at stake to strike Title II.

KayBee Hutchison

Talking up immunity–missed whether she’s hipped to the liability protection thing or not.

Jello Jay

Far and away most contentious issue is immunity [I mean liability protection]. Three amendments will be offered that relate to this issue. Dodd/Feingold. Specter.

Approach to immunity. Critics say it’s akin to Congressional endorsement of President’s wiretapping program. I understand this. Secret surveillance program that would cause suspicion. But anger should not prevent us from addressing the real problems the President has created. Companies that were once willing to help govt may be questioning that assistance. Corporations, no names at present time, have to make money, govt comes to them, as they have in the past on much smaller issues, advice of AG, saying this is legal, NSA require that you cooperate. And they do. Well, of course, they cooperated, but that was some years ago. Not in this Senator’s view. There is no difference between just after 9/11 and now, those who are plotting to do us harm. The fact that it has not happened in no way excuses the American sense of relaxation on the whole subject and therefore we don’t need to do something to keep those people that collect an enormous amount of intelligence. If that were to stop, there would be an enormous amount of intell that would stop. It happens to be true. What is it that telecoms get from this? They get 40 lawsuits. Maybe they’ve been sued $10 billion, maybe $40 billion, I won’t speculate on this at this time. They have no reward at all [well except for being paid to do it] they go ahead and they do it, shareholders get unhappy about it, it could be happening, who knows, at the present time, maybe they will be less willing to do this. Several have done that, several at the beginning have done that. Corporations are in business to help their country [!?!?], they’re in business to make money, they’re losing prestige, reputation, they have angry shareholders. People on my side of the aisle tend to be suspicious of corporations. They are losing they are being sued. It’s costly. It takes away from their energy to carry out their other missions.

[Perhaps the scion of a multi-millionaire family is not the person who should be making this argument.]

We’re not talking about people here, we’re talking about servers, whatever you want to call them, that send Xes and Os, if that stops, we will be in a very sorry situation. I don’t know how to say it better than that. If they have a reluctance to help the govt, in providing the little instruments, then they have a little side action that goes to a particular agency. They have been told they’re compelled to do it. And so they do start to do it. And they’re paying one heck of a price for it. What price do we pay? Nothing, they’re still doing it. What price might we pay, bc they are corporations. The price we would pay would be overwhelming.

Without true cooperation from these companies, the IC cannot collect the information it needs.

I’m not naive in these matters.

It is possible cases continue for years, this won’t result in any new information about Bush’s program. In meantime, poses serious risk to collection program. We’re not about being Courts, about balancing civil liberties as best as we can.

Many argue that those who acted unlawfully should be held accountable. I totally agree. Companies that deliberately seek to evade privacy laws can and should be subject to civil suit. That is not the issue. The intelligence committee spent plenty of time looking over what happened over the last six years.

[Note, they wrote the immunity provision after only having reviewed the letters for 24 hours.]

All activities authorized by President, and all but one (that was done by legal counsel) which stated that activities determined to be lawful by the Attorney General.

[Note, if true, this is huge. Jello Jay just twice implied that BushCO LIED when it told the telecoms the program had been found to be legal after March 10, 2004.]

Jello Jay

3:05 Cardin Amendment, proceeding to vote.

DiFi tries to call up exclusivity, 3919

I voted for bill, indicated I had concerns, filed additional views. In Judiciary, the Judiciary filed amendment included wrt strengthening fact that FISA be exclusive means of electronic surveillance.

Severl co-sponsors. Jello Jay, Leahy, Whitehouse, Wyden, Snowe, Specter, [missed some]

Vice Chair approached her about a modification which would allow a time for Admin to operate outside of amendment.

[Bond wanted 45 days plus 45 more days]

Question is whether I would be able to modify my amendment to limit that time to 30 days, provide limits which our side could agree to, that has not been given to me, will rest my case on exclusivity. I’ll have an opportunity, I hope, to argue it later.

I would like to get another amendment, UC to call up 3919, FISA Court review of immunity.

Cardin

[Didn’t say anything he didn’t already say yesterday.]

Bond

This bill, PAA, had a six month sunset only bc not able to bring complete bill to the floor. This is a bill that should establish a permanent operating authority. As part of the compromise that we reached in passing the bill, we agreed on 6-year sunset.

The committee will protect Americans’ privacy, I promise.

You can see how long we had to fight to get this through.

Rockefeller

Would say to presiding officer that I find myself in disagreement with Vice Chairman, originally wanted 4, went to 6, bc of an accommodation. Wisdom on settling on 4, I urge adoption of amendment.

Cardin

Comments Bond made. Terrorists have no restrictions. No courts, no Constitution, no civil liberties. That’s what makes this nation the great nation it is. PATRIOT Act had a 4 year sunset, we’ve used sunsets that have been shorter.

Bond

IC says we must have the certainty of 6 year sunset. Bipartisan blah blah blah.

Specter

Introducing Specter/Whitehouse substitution bill, Levin and Cardin added as co-sponsors.

Substitute USG as defendant in suits.

Telecoms and high level intelligence. Substitution, accomplishes objective of continuation of getting this intelligence information and at same time protects constitutional rights. USG steps into shoes of telecom. Govt could not assert govtl immunity. Can assert state secrets. Vital that courts remain open. Congress totally ineffective on oversight and restraining exec authority. Courts have effectiveness to maintain balance. President has asserted authority under Article II to disregard statutes signed by President. Start by FISA, only way to wiretap with court order. President initiated wiretap program in violation of that statute.

President–let me say Exec Branch–violated National Security Act that requires House and Senate informed of matters like TSP. Chair and ranking member ought to be notified of program like that, I was surprised to read about it in newspaper. A long time, lot of pressure, really to get the confirmation of Hayden to notify intell committees. Courts have been effective.

Hamdan. President does not have blank check on WOT. Hamdi, due process includes meaningful opportunity to contest facts, this is America, balance maintained bc courts remain open. I believe it would be problem when courts remain only means of checking executive authority.

Whitehouse

Haggis shown exceptional courtesy to me as junior member of SJC.

Critical balance bet freedom and security.

We are proposing a sensible middle path, protects essential equities. Choice to give immunity and take away plaintiff’s case is not fair. Nothing yet suggests that this is not completely legitimate litigation. It is not fair to plaintiffs to take away their day in court. Huge separation of powers problem, intruding into ongoing litigation, taking away due process, without providing basis for judicial finding that the companies acted in good faith.

Whether they acted in good faith. Good faith determination. I hope we can all agree that if the companies did not operate in good faith. We should not be the judges of that. This is ongoing litigation. They have asserted they acted in good faith. We should not rely on one side’s assertion. Most Senators have not read the letters.

This body is literally incapable of making such a determination.

Substituting for the govt. If the govt directed them to break the law, the real actor is the govt. This is analgous to principal-agent directive. Principal is liable for acts of agent. Simple solution, follows law, first in rules of civil procedure. No one has due process summarily taken away. This is, after all, the US of A. Carriers get a judgment in their favor. No one is forbidden to defend themselves in litigation. No intrusion by Congress, no separation of powers trespass, if they acted reasonably in good faith, govt is morally operative party.

Separation of powers. We go all the way back to why we set up the separation of powers.

Quotes Scalia, same quote as yesterday.

I urge my colleagues to consider sensible matters, morally right way to go forward.

Jello Jay

I will oppose this bill for a series of very good reasons.  

Bond

Time allowed us by the proponents. (Bond a jerk.)

Permits lawsuits to go forward against govt. (Great, govt has immunity.)

There was notification of this program to the Big Eight.

If Specter doesn’t think Congress has been effective overseeing programs, he hasn’t seen Jello Jay’s committee.

A disaster for intelligence collection to have substitution.

[I wonder how Haggis is going to respond seeing that Bond is treating his amendment just as cynically and dishonestly as Feingold’s?]

Last month, just as CIA’s IG and Director learned of the DOJ investigation into the torture tape destruction, the CIA also announced that Helgerson and Hayden had agreed on some measures to make the IG process "more fair."

The CIA has completed a controversial in-house probe of its inspector general and plans to make a series of changes in the way the agency conducts internal investigations, according to U.S. intelligence officials.

CIA Inspector General John L. Helgerson has consented to more than a dozen procedural changes designed to address complaints that investigations carried out by his office were unfair to agency employees, the officials said.

Right on schedule, yesterday the CIA announced those "procedural changes." The IG’s office will have an ombudsman to act as a watchdog on the watchdog.

The CIA’s inspector general has agreed to tighter controls over its investigative procedures, agency officials revealed yesterday, in what appeared to be an attempt to soften resentments among agency officials over the watchdog’s aggressive probes into the legality and effectiveness of the CIA’s counterterrorism efforts and detention programs.

The revisions, which include the appointment of a special ombudsman to oversee the IG’s work, were disclosed by CIA Director Michael V. Hayden in an e-mail sent to employees, announcing the end of an unusual inquiry into the performance of Inspector General John L. Helgerson, a 36-year CIA veteran and the man chiefly responsible for the spy agency’s internal oversight.

Most interesting–or troubling, depending on how you look at it–is the requirement that the IG’s office keep senior CIA officers informed of the status of investigations.

The changes include measures intended to speed up investigations and require the watchdog to keep CIA employees and managers informed about both the process and results of investigations.

Call me crazy, but I would imagine that if you tell the CIA Director that you’re about to report that the "enhanced interrogation techniques" the CIA has been doing probably violate international law, then you’re never going to be able to write a report to that effect. And certainly never going to be able to circulate to anyone who can do something about the violations of international law.

Well, Championship Sunday was a bit of a letdown. No one claimed the much prized Hubcap, the Pack packed it in, LT was MIA, and nobody noticed that the asterisk was still in the title. There sure has been a lot that has happened since, most of it having to do with the most famous foot in the world. That foot would, of course, belong to Brady, Sir Tom. Uh oh, this just in, hot off the wire (Oh my, this is really rich, heh heh):

BREAKING NEWS: HAGGIS DEMANDS SENATE INQUIRY INTO PATRIOTS SPYGATE SCANDAL; COMPARES MATTER TO TORTURE TAPES DESTRUCTION!

The ranking Republican on the Senate Judiciary Committee wants N.F.L. Commissioner Roger Goodell to explain why the league destroyed evidence related to spying by the New England Patriots.
…
In a telephone interview Thursday morning, Senator Arlen Specter, Republican of Pennsylvania and ranking member of the committee, said that Goodell would eventually be called before the committee to address two issues: the league’s antitrust exemption in relation to its television contract and the destruction of the tapes that revealed spying by the Patriots.

“That requires an explanation,” Specter said. “The N.F.L. has a very preferred status in our country with their antitrust exemption. The American people are entitled to be sure about the integrity of the game. It’s analogous to the C.I.A. destruction of tapes. Or any time you have records destroyed.”
…
Mr. Specter first wrote Mr. Goodell about the tapes on Nov. 15. … The league responded to Mr. Specter late Thursday afternoon.
…
“It’s premature to say whom we’re going to call or when. It starts with the commissioner. He had the tapes, and he made the decision as to what the punishment could be. He made the decision to destroy them.”

Mr. Specter said it had not been determined when Mr. Goodell would be called before the committee.

Jeebus, I don’t even know what to say. I kind of thought we had seen governmental actors functioning at the outer boundaries of surreality yesterday with Mukasey, but I should have known better than to count out the Scottish Haggis; and boy did he ever come through. I guess, before moving on, we should note that the Haggis is a rabid Philadelphia Iggles fan and penned his first letter right before said Iggles were to play the Asterisks Patriots.

Okay, back to your regular programming. Scottsdale/Phoenix is currently the happening party central place to be in the world right now. Hollywood and New York must be flat out empty; because every celebrity you can imagine is running around here. Every bar, restaurant, nightclub and, ahem, gentlemen’s club is standing room only with long lines outside. Unless I have lost my ability to spot them, we also apparently are having a top shelf hooker convention too (not that there is anything wrong with that). Its not just the Super Bowl either, the Phoenix Open started today. For those of you not familiar with the Phoenix Open, it is, without any question, and by a large margin, the wildest and craziest golf tournament on the PGA Tour. It is also the largest, drawing over 500,000 drunken, amorous attendees every year. Not to mention Obama was here Wednesday night and Big Dog Clinton here Thursday night at ASU. It is absolutely nuts out and about. Every other car on the freaking road is a limo or town car chock full of beautiful people.

We had the Super Bowl here before, and truth be told, the actual game is almost secondary to all the hoopla going on leading up to it. Super Bowl XXX. I went to that one, and here is what I remember: My friend and I had pretty good seats, but were right behind some child TeeVee star named Joey Lawrence; I had never heard of him, but he sure did attract a lot of attention from girls too young to be of any use to my friend and I. Very annoying. Oh yeah, I think Diana Ross landed on the field in a heeliocoptah to do the halftime show, and the ‘Boys beat the Stillers, but I didn’t actually see much of that. Here’s whats up this year.

THE PATRIOTS* – The first injury report of Super Bowl week came out Wednesday, and Tom Brady was on it — for his shoulder. No mention was made of the world famous ankle sprain that set off paparazzi pandemonium when Brady was spotted in the boot. Brady practiced fully both Wednesday and Thursday, and his ankle was not heavily taped, as it supposedly had been Monday. Brady has been listed with a shoulder injury since the opener of the 2003 season, which is Coach Bill Belichick’s tweak (Really? He would do such a thing? Shocking!) at the NFL injury reporting system he abhors. Receiver Jabar Gaffney was limited in practice Wednesday, though, with what is apparently a legitimate shoulder injury. Roidney Harrison has a slight thigh twitch, but reportedly is juiced and ready. Thats about it. The 18-0 killing machine that is the New England Patriots is healthy, rested and ready to rock and roll.

THE GIANTS – I can’t tell you how bad it burns to not be talking about the Packers here (Phred knows). There has been a little Plaxico Duress caused by his – gasp – trash talking; and Michael Strahan has been a walking talking sideshow, but a darned amiable and funny one. You gotta love the guy. Jeremy Shockey is out; and as far as I know, he isn’t even here. Plaxico now has a swollen left knee in addition to the ankle injury he had that kept him out of in the conference championship game where he caught 11 passes for a gazillion yards. He’ll be fine. Cornerback Aaron Ross had some kind of undisclosed bug, but will be fine for the game.

THE BATTLEGROUND – Super Bowl XLII is being played in University of Phoenix Stadium, located in a suburb known as Glendale, on the west side of Phoenix. From the outside, the thing looks like the Jupiter 2 spaceship from Lost In Space. Seriously. Inside, it is almost exclusively granite gray and cardinal red. I am told that some local football team, semi-pro I believe, plays there. I can’t personally attest to that, but it was a fine place to see the Rolling Stones on their last tour; that I can vouch for (Keith makes Dick Cheney look healthy, but he sure hasn’t lost much of his edge). In fairness, despite the garish color scheme, it is a pretty cool joint. The link above has a lot of neat links and information about the stadium, and is worth checking out. The weather forecast is for sunshine and partly cloudy Friday and Saturday, with clouds and possible rain by Sunday night. No worries mates, the Jupiter 2 University of Phoenix Stadium has a retractable roof and is extremely well climate controlled. There will be none of those turf issues like at Heinz Field or the frozen tundra of Lambeau. You see, they have the whole field on some kind of fancy dan plate on wheels and literally roll it, in one piece, into and out of the stadium to maximize the quality and maintenance of the turf. It will be immaculate and the logos are painted and ready to go.

Well, thats it. Oh yeah, I was at a gig with Paris Hilton and Pam Anderson earlier today. Neither seemed particularly impressed that I was bmaz from Emptywheel. My wife was disappointed; she was hoping they would take me off her hands. Look for further updates either here or in the comments. This is, sadly, our last dance for the season; so don’t be like Nancy Pelosi, put it all on the table, let it all hang out, enjoy and hoop it up. Beer thirty starts now and runs until the fat lady is done singing. Show Time Baby! Crack open a cool one and start trashing up the joint!

Update from emptywheel (and thanks to bmaz for all the great trash): ESPN has asked a bunch of famous people for their picks. Most of them, being pop culture icons, are completely obscure to me.  But my favorites are:

GEN. MIKE HAYDEN
Director of the CIA Giants, 28-24. The spread favors the Pats, but careful intelligence work looks beyond the obvious. The Giants are hot now. Three playoff wins on the road (like the Steelers before Super Bowl XL). Regular season finale shows they match up well against the Pats. Besides, nobody’s perfect!

SERENA WILLIAMS
Tennis player/Venus’ little sister Giants, because of Eli Manning being the younger brother.

BILL O’REILLY
FOX TV host Giants, 31-30. Destiny.
[In case there was any doubt about which was the Republican team] 

SEN. CHUCK SCHUMER
D-NY I’ve been a Giants fan since I was five years old. I can remember watching Charlie Connerly, Sam Huff, and Alex Webster. Back then, the two most important Roosevelts to me were Brown and Grier.

Update II from bmaz Saturday morning: This live report is coming in from EW’s Senior Snarlgate Correspondent, bmaz, on location near the ESPN command center at the Southbridge Waterfront in Old Town Scottsdale Arizona. Reports are flying fast and furious about illegal signal stealing by the Patriots in previous Super Bowls; most notably Super Bowl XXXVI between the Pats and Rams, and Super Bowl XXXIX between the Pats and Eagles. There now appears to be corroboration, at least as to SB-XXXVI, where the Patriot’s former video coordinator, Matt Walsh, reportedly has evidence in the form of inculpatory tapes on the Rams and is willing to testify, but wants a subpoena because he is concerned about retaliation from the Patriots and rabid fans. This matter is getting serious, is not going away, and is really starting to affect and tarnish the credibility of the Patriots and what they have accomplished according to many fans, especially fans of the New York Giants and, of course, the Philadelphia Eagles’ fans like Snarlen Spectre.

There are two scandalously hot rumors that have surfaced just this morning and are burning through the whole scene here in Old Town Scottsdale as I type this report. The first involves the Patriots using secret Russian spy/surveillance technology acquired by the team in a surreptitious deal with Vladimir Putin that was negotiated by Rupert Murdoch. The second involves a collaboration between Senators Arlen Spectre and Kitty Bond to instigate a formal investigatory commission, similar to baseball’s Mitchell commission, to investigate the exploding SnarlSpyGate controversy and that will be headed up by respected former Senator Ricky Santorum. It is unclear, at the time of this posting, how strongly these shocking and destructive rumors will take hold and spread through the sports and traditional media that the scene here is absolutely saturated with.

In two striking exchanges yesterday, Sheldon Whitehouse tried to get AG Mukasey to explain why DOJ was not conducting an investigation into the activities portrayed on the torture tapes. Whitehouse wondered whether DOJ had refrained from investigating the underlying conduct because those who engaged in the torture had authorization to use it. That amounts to the Nuremberg Defense, Whitehouse insisted correctly. In response, Mukasey suggested there simply was no reason to do an investigation. DOJ had never seen any facts, Mukasey claimed, that would warrant an investigation.

Whitehouse: Process question. In terms of advisory responsibilities, not going to investigate. You’ve disclosed waterboarding not part of CIA interrogation regime. Still leaves open torture statute whether there are concrete facts or circumstances, given that that evaporates, whatever it is it is. I’m trying to determine if that is taking place (the analysis), if you’re waiting for Durham’s investigation to look more into what happened. Or if there has been a policy determination made, that bc there has been a claim of authority, there will be no investigation. What is the process for coming to this decision.

MM: Facts come to the attention to the Department that warrant investigation.

But that’s not true, of course. We know DOJ received the results of the IG’s report on the CIA’s interrogation techniques.

OIG notified DOJ and other relevant oversight authorities of the review’s findings.

And we know that that report stated that the conduct depicted on the tapes amounted to cruel and inhuman treatment.

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

[snip]

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

[snip]

In his report, Mr. Helgerson also raised concern about whether the use of the techniques could expose agency officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to C.I.A. interrogations because they take place overseas on people who are not citizens of the United States.

This is a report from the CIA itself, asserting that the interrogation methods depicted on the tapes may well violate an international agreement to which the US is party. The report explains that those who conducted the torture may well face legal liability.

But the Attorney General claims DOJ has never received any facts that warrant an investigation.

And did he do it to protect Dick?

I admit. I can’t help myself. By some strange force, I found myself back at Prettyman this week, wading through the million-dollar CIPA battle that Libby waged in his graymail attempts (for the record, Fitz must say "graymail" about 20 times by the second day of these hearings). And in a December 29, 2005 defense filing (I haven’t scanned it yet, either because I was liveblogging all day or I’m just trying to torture Jeff) asking for further information to be declassified in response to the Jencks information they got, I found this footnote clarifying the sentence, "According to [Libby’s CIA briefer, Craig] Schmall, ‘Since I had no knowledge of the ambassador or his wife, I presume Libby gave me [the names Joe Wilson and Valerie Wilson].’"

Eric Edelman, whom the government recently decided not to call as a witness, contradicts Mr. Schmall on this point. According to Mr. Edelman, sometime before June 6, 2003 (when Mr. Edelman left the OVP), Mr. Schmall "identified the former envoy as Joseph Wilson" and "advised Edelman that the CIA’s Counterproliferation Division sent Wilson to Niger to conduct the inquiry, not the OVP." 6/23/04 Edelman FBI 302 at 2. According to Mr. Edelman, Mr. Schmall showed him internal CIA emails about the Wilson trip. 8/6/04 Edelman Grand Jury T. at 16. In addition, Mr. Schmall may have told Mr. Edelman during this period that Ambassador Wilson’s mission to Africa was suggested by his wife. 6/23/04 Edelman FBI 302 at 2; see also 7/7/04 Edelman FBI 302 at 2-3 (same); 8/6/04 Edelman Grand Jury T at 15-19 (same). Apart from the fact that Mr. Edelman contradicts Schmall on a significant point, the government may have elected not to call him because he makes clear in his grand jury testimony that he does not recall any mention of Ms. Wilson in his discussion with Mr. Libby following the June 19 New Republic article (see Indictment at 5-6 12-13) , and he never discussed with Mr. Libby the nature of the "complications" to which Mr. Libby referred. 8/6/04 Edelman Grand Jury T. at 29-30.

Now, as to the substance of Edelman’s denial that he was talking about Plame when he advocated leaking "information" to rebut Joe Wilson, here’s what the indictment said. It clearly relies on a witness or some other evidence that is not named Scooter Libby.

Shortly after publication of the article in The New Republic, LIBBY spoke by telephone with his then Principal Deputy and discussed the article. That official asked LIBBY whether information about Wilson’s trip could be shared with the press to rebut the allegations that the Vice President had sent Wilson. LIBBY responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure telephone line.

And in his grand jury testimony, Edelman told a story that did not directly contradict the substance of testimony apparently given about that conversation, but conveniently denies everything for which there was no apparent witness (that is, if you thought Edelman were trustworthy, you might just think Edelman dropped the issue after the witness stopped following it).

That’s interesting. But I’m much more interested in this part of the footnote.

According to Mr. Edelman, Mr. Schmall showed him internal CIA emails about the Wilson trip.

For those who’ve forgotten, I wrote a long post in July speculating that the source of Dick’s knowledge that Plame worked at CPD (and that she had some role in his trip) was the emails that Valerie sent relating to Joe’s trip.

This is the post I’ve been promising for weeks, in which I will speculate wildly as to the source of Cheney’s knowledge about Plame’s role at CPD and in her husband’s trip. Here’s the argument, in brief:

• Cheney learns during the week of June 9 that "Defense and State expressed a strong interest in the Niger intelligence"
• At a time when Cheney presumably already knew that information, he tried to get CIA to repeat it in such a way that it could be published
• This suggests he could not use his original source for that information (either because the source refused to publish that information or because he wanted to hide the source itself)
• One possible explanation (this is speculation, mind you) is that Cheney saw Valerie Wilson’s emails leading up to Wilson’s trip to Niger–which would have informed him of key information–and would have made it clear that Valerie’s identity was protected

My general point was that the only known document that has some of the information that Dick communicated to Libby in Libby’s purportedly June 12 note (pictured above)–particularly the interest of DOD and State in the intelligence–are two emails that Valerie sent in support of Joe’s trip.

Valerie Wilson’s memo to Niger is one of two known documents where the DOD/State information appears

Understand something about the DOD/State talking point: it comes from CPD. The SSCI report reports CPD officials repeating that detail:

Officials from the CIA’s DO Counterproliferation Division (CPD) told Committee staff that in response to questions from the Vice President’s Office and the Departments of State and Defense on the alleged Iraq-Niger uranium deal, CPD officials discussed ways to obtain additional information. [my emphasis]

Grenier also describes learning that information from someone in CPD. He first calls "Kevin," the Deputy Chief of the unit working on Iraqi WMD (this may or may not be the JTFI). Kevin doesn’t call back–someone Grenier didn’t know called back, but still within CPD. And that person tells Grenier (who tells Libby) of the interest on the part of DOD/State.

Now it’s possible that the people in CPD were just working from memory, from having been intimately involved. But if they learned this information from documents, there are two known documents within CPD that mention the interest of State and DOD. There is the report, written by the reports officer, forwarded to Valerie and others, about the rising interest in the Niger intelligence. From the latest SSCI:

The report was forwarded in an e-mail from a CIA reports officer to Mrs. Wilson and a number of other recipients which said that the DO had received a number of calls from the Intelligence Community about the Iraq-Niger uranium report, citing the Department of State’s Bureau of Intelligence and Research (INR), the Defense Intelligence Agency (DIA), and SOCOM, specifically. [my emphasis]

[Note, the report by the minority of the minority goes on to claim that CPD didn’t tell SSCI about DOD/State’s interest … I guess they didn’t read their own report.]

But this report doesn’t use precisely the terms used in Cheney’s talking point–State and DOD. Rather, it is more specific, mentioning INR and DIA and SOCOM.

However, Valerie Wilson’s cable, sent to Niger to get concurrence for Wilson’s trip, does include precisely that language.

Mrs. Wilson sent a cable that was sent overseas requesting concurrence with Ambassador Wilson’s travel to Niger. … the cable drafted by Mrs. Wilson was sent … on February 13, … Interestingly, the cable states that "both State and DOD have requested additional clarification and indeed, the Vice President’s office just asked for background information. [my emphasis]

In other words, if Cheney’s talking point came from a document (and not someone’s direct memory), then it may well have come from this cable.

Now cable is often (and I’ve confirmed that is the case here) spook-speak for email. That is, one possible source for Dick Cheney’s talking points he gives to Libby (and subsequently tries to get CIA to cough up publicly via other channels) is an "internal CIA email about Wilson’s trip," one written by Valerie Wilson. An email, I might add, that makes some precautions to prevent revealing Valerie’s real identity.

Which is why I find it mighty interesting that, in the same grand jury appearance where Eric Edelman gives testimony that appears to dispute the sense of with one other witness or piece of evidence, as well as the testimony that (this filing makes clear) contradicts the testimony of Craig Schmall, he also claims (in yet more testimony that contradicts the testimony of Craig Schmall) that Schmall showed him internal CIA emails from which he learned certain things about the trip.

In short, two witnesses challenge Edelman’s account, so we should be mighty dubious of his testimony.

What do I think happened? If Edelman lied about Schmall showing him emails–and if he claimed those emails were the ones written by Plame–then what does it mean for the Plame leak?

In my previous post on this, I suggested that one likely motive for Dick’s and Libby’s attempts to get CIA to cough of information that Dick already knew was that Dick reviewed those emails via an illicit source and couldn’t just leak it wildly. [It probably pays, at this point, to remind that this is all wild-arsed speculation.]

Reasons why Cheney needed a new source

There are a number of reasons why Cheney might need a new source to spread the DOD/State talking point, including:

• McLaughlin refused to state the talking point on the record
• Cheney’s original source wasn’t someone in the CIA
• Cheney’s original information came from a source that made it clear Plame was covert

These are not necessarily exclusive: after all, McLaughlin may have refused to state the talking point on the record because the only source for it was classified and/or made it clear that Plame’s identity was classified. Or Cheney’s original source–someone assigned outside of CIA like David Shedd or Fred Fleitz, perhaps–may have had learned the information via a source that made it clear that Plame was covert.

Now, if Cheney really saw those emails, and if Cheney needed to hide that fact, and if Edelman was as dutifully protecting Cheney as Libby ultimately was, then you might imagine that Edelman might lie about having seen those documents, to hide the fact that Cheney was the one who saw them, by some illicit means. I mean, WTF, it appears that Edelman may have been lying in everything else he said to the grand jury, why not lie to protect Cheney (well, and those other lies, if they were lies, sort of protected Cheney, too).

In other words, I’m wondering if Edelman lied to invent an alternate means for OVP to know the content of Valerie’s emails, one that conveniently implicated CIA, to protect Dick.

It’s all wild-arsed speculation, mind you. But it might be worth noting Edelman’s current position: Undersecretary of Defense for Policy. One might call that post the "Dougie Feith Propaganda Office," in honor of Edelman’s predecessor at the position. Edelman was one of the deeply conflicted people who submitted a leniency letter on behalf of Libby. And it appears that he may have been the first one to suggest leaking Plame’s identity, not many days before Libby did so to Judy Miller.

There’s reason to believe that Edelman might lie about this subject.

Leahy: Updates people in the stimulus package, and 15-day extension. So that’s why not everyone is here right now.

"Box Turtle" Cornyn: Office of Government Information Services, FOIA reform. Concerns about moving that office to DOJ, or somewhere else. I wanted to let you know I have reservations. My opinion is that the legislation forecloses moving the office.

"Box Turtle": FISA reform. 15-day extension is kicking the can down the road. Let me just talk about this in human terms. Talked to the father of soldiers who had been kidnapped by Al Qaeda. And his father says if we had an easy FISA law, his son might be alive. Do you think we need to make it easier for people to go through FISA?

[Shorter Box Turtle: I’m going to pretend, once again, that FISA forced a delay of wiretapping, when in fact it was just DOJ disorganization.]

MM: You put a human face on the problem we’re trying to prevent from recurring. We want to lower the burden on the govt in all its presentations to FISA just to make sure that what gets approved are procedures. I hope that DOJ acted with all the speed it could act.

[Interesting dodge by Mukasey, not agreeing that DOJ moved as fast as it could.]

"Box Turtle": I’m okay with a relative basis for torture.

MM: There are clearly circumstances where waterboarding is illegal. I’m not going to get into an abstract discussion of when it’d be legal. Nor am I going to call into question what people do or have done, when it’s not necessary to do so.

Whitehouse: In your analytical stance in your letter, you have assumed the role of a corporate counsel to the Executive Branch. You have taken steps to make sure nothing illegal has happened, but you are unwilling to look back and dredge up anything that may be a problem. That’s not a proper stance, you are also a prosecutor, Prosecutors do look back, dredge up the past, in order to do justice. It’s the mission statement of the DOJ to seek just punishment of those guilty of illegal behavior. Duty of USG, whose interest is that justice shall be done. The president has said we will investigate all acts of torture, you have said if someone is guilty of violating the law. [Cites code on torture] You are the sole prosecuting authority for that statute, the DOJ.

MM: Yes, DOJ is.

Whitehouse: You have two hats. In the prosecutor hat, could you tell me in what way there is an absence of concrete facts about waterboarding to even look to see whether this statute should apply.

MM: There is no divided loyalty.

Whitehouse: Let’s talk about the two duties when it comes to being an independent prosecutor.

MM: One of the many questions wrt past conduct is what authorizations were given. My analysis has only tangentially to do with that. Because I can’t say "your authorization is good only as long as the tenure of the person who gave it."

[Shorter Mukasey: I can’t prosecuting people for relying on the Yoo Memo]

Whitehouse: the message you send otherwise is, "I was only following orders" is alright.

MM: No, it didn’t work at Nuremberg.

Whitehouse: Has there been an analysis of whether or not any national of the US is in violation of torture statute.

MM: I start investigations after some indication that someone might have improper authorization.

Whitehouse: The destruction of the taping of torture is a criminal issue. But whether the underlying criminal act is not entitled to investigation.

MM: The way that started is that we were told there was destruction. Preliminary inquiry found that some statute may have been violated. We were required to and did a criminal investigation.

Whitehouse: Shouldn’t that be applied in this case.

MM: You elided one point when you said there was evidence of an interrogation.

Whitehouse: you said there was evidence of a destruction. There isn’t a principal distinction between the two.

MM: Head of CIA said someone destroyed a tape without proper authorization. Probability of crime.

Whitehouse: I don’t see how that solves the Nuremberg problem. If the reason that you’re given is that it appears that the interrogators were following orders.

MM: No, you’re assuming that what was on the tapes.

Whitehouse: I’m not assuming any such thing. There should be somebody that investigates this. If what you’re telling me is that this hasn’t been investigated, it seems to me there is a split standard.

MM: The investigation may disclose what was on the tapes.

[Well why not bring up the CIA OIG report which found that the torture was cruel and inhuman.

Schumer: Good and bad, you’re what I expected. Worked on politicization, but you opinion on waterboarding is different than most of the American people. Given that waterboarding is repulsive to you, do you support a ban on waterboarding, whether by statute or executive order?

MM: As a matter of principle, I try to avoid the blank canvass over past or future laws on which to paint my morality. The question is a question on which other people own a substantial part of the answer, namely the people who gather intelligence, who explain our position abroad. One of the things I’d like to do as the junior member of the assemblage I’ve just made, is to ask them.

Schumer: That answer’s not up to what I expect of you. I know you’d like to hear from a lot of people, one of your roles as AG is as an advisor on policy. I find it hard to understand how you personally would not be able to say that something is repugnant should be outlawed. I’m asking you, there’s a statute that’s likely to get to the President’s desk. I’m asking you in terms of the advice you’d give the President, should it be outlawed.

MM: I don’t want to trivialize the question so I’ll refrain from telling you all the other things that I find repugnant. I want to be able to analyze it, I want to imagine all the facts and circumstances in which it’ll arise.

Schumer: You were talking about a standard with Durbin. You didn’t say that to us, you said, it’s repugnant. I just find it, you have an opportunity to be something of a leader. You are going to be asked whether we should pass a law. We have an opportunity to pass a law.

MM: I haven’t done all the things I have to do.

Schumer: I can’t tell you how profoundly disappointed I am.

Haggis Specter: Stephen Bradbury. I want to give you my endorsement of Mr. Bradbury. I’ve had considerable interaction with him. I think he’s a first rate lawyer. I hope he’ll be confirmed by the Senate.

[Shorter Haggis: I’m still Haggis, don’t worry]

Haggis: Reporter shield and McNulty memorandum attorney client privilege. I’d appreciate if we can get your opinion bc we’re going to be moving forward on shield and attorney-client. Shield, very strong support. Letter to Grassley: 88 subpoenas, I’d like to have Grassley’s letter matter of record. It all comes down to Judy Judy Judy, and it was disclosed that it was Richard Armitage, so I’m wondering what was done.

Haggis: On subject of McNulty memorandum. Govts conduct shocking conscience. When you start with two propositions, commonwealth has burden of proof. And Constitutional right to counsel and involves privilege. Why should there be inducement to secure waivers.

MM: I don’t condone any coercion to waive attorney-client privilege.

[Does this mean you will stop wiretapping conversations between attorneys and their clients, as DOJ has done with CCR?]

Haggis: Investigation into subprime problems. Please prioritize that. With your administration can we take a new look at those contempt citations. Those individuals are just the messengers. Leahy and I have been trying to work out a formula where we could question Miers and others. If we could come to terms on the transcript that we might be able to unlock the controversy. The transcript issue is indispensible more for protection of witness than anything else. Would you be willing to revisit this? You’d say contempt to USA of DC would not be authorized.

MM: Opinions going back many administration immune when privilege invoked otherwise serious separation of powers issues. Long been deferred or avoided by accommodation.

Haggis: isn’t that a matter for the Courts, not for the executive. It ought to be a judicial determination. Not a decision for the executive giving immunity for himself.

MM: It’s my understanding that if they have an order.

Haggis: where does that immunity come from? Executive order?

MM: It has been recognized in Constitution, though it’s not mentioned, just as congressional oversight is not mentioned.

Haggis: Can we find an accomodation?

MM: I’d be willing to find an accommodation. I’m not going to overturn long-standing opinions.

Haggis: There’s no long-standing rule about a transcript.

MM: I don’t know that.

Haggis: You don’t know that? How can that be a long-standing rule against transcript.

MM: Different than Congressional oversight. Senior Presidential aides.

Haggis: But the President has offered to make them available.

Leahy: When you look into this, you’ll find that at least one of the witnesses who testified, also said she had never discussed this matter with the President, never had discussion with those who were going to discuss with the President. We found Executive Privilege to be a tad broad. I don’t want to use the word cover-up, but it’s the first thing that came to me. It’s also the second thing that came to me.

Leahy: Torture tapes. Say we found a backup tape (you often find a backup tape), how do were determine whether there was a crime, if you refuse to state an opinion.

MM: John Durham is doing an investigation.

Leahy: Why’d USA ED VA recuse?

MM: Over issues relating to a case he had and that he generally has a relationship with the CIA bc they’re located in district.

Leahy: How do we determine whether others have a conflict.

MM: They are. When people appear in ED VA, they have to be members of bar.

Leahy: In recusal request, did he lay out why he was recusing.

MM: Facts were teased out that made us consider the recusal.

Leahy: Can you assure us that the people working with Durham won’t have conflict.

MM: They won’t have the same conflict.

Leahy: We sent a letter, asking when and how did attorneys first become aware of torture tapes? Do you have an answer?

MM: No, I don’t.

Leahy: Did they ever view any of these tapes?

MM: I don’t know that. What was done within department is not something I would disclose if I knew it.

Leahy: wouldn’t that be fairly important. It would mean DOJ was looking at torture tapes prior to their destruction.

MM: I didn’t say I wouldn’t review them, I said I wouldn’t disclose that here.

Leahy: Well, perhaps you should get together with Haggis and I.

MM: Discussion of whether they viewed it is separate.

Leahy: Was anyone asked about advisability to destroy the tape.

MM: I’ve seen a report on that. I’ve seen no evidence that anyone in department saw the tapes [this may be wrong, he may have said "discussed destroying tapes]

MM: I became aware when I picked up WaPo.

Leahy: Makes joke that they would be more likely to find things if they just marked the NYT secret. Plus, they’d get a crossword puzzle.

Leahy: Did you have communication between DOJ and WH? Was there any communication between DOJ and WH about that?

MM: Durham will look at.

Leahy: And when he’s finished, would you have problem with him testifying.

MM: USAs have not testified as to pending cases, I don’t see a reason to make an exception here.

Leahy: We may come back to that if we’re unable to find these other answers. You doubtless heard about how WH, even though they’re required to maintain emails, now say they’ve destroyed many over period of two years.

MM: I saw a story that there are emails that should have been there but aren’t.

Leahy: Also that they were using RNC server. If they were not following the law on maintaining records, laws are fairly clear, you may recall that Congress asked extensive questions about that in last Admin. Is that something department would look into.

MM: I’d need to know circumstances under which not retained.

Leahy: Law is clear that records have to be retained, but they were lost. Does that raise any questions.

MM: That’s something I’d like to know more about.

Grassley: Whistleblowers exposed many scandals in FBI crimelab. Youssef another whistleblower, FBI requires neither language skills or knowledge of Arabic culture. Sounds too much like history where FBI didn’ t think scientists had to be in charge of labs. You said this would be among your highest priorities to familiarize yourself with Youssef. Youssef provided a October 11, 2007 letter to your office, describing threats against those trying to hire experts. I’d like to have that letter included in record. What action has your office taken to investigation.

MM: Youssef’s letter is in litigation.

Grassley: Will you seek an independent review?

MM: I think we ought to wait for the progress of that litigation, which raises that and other issues.

Grassley: We’ve got someone in FBI saying our terrorism threats are being weakened and we’re going to wait for a court.

MM: FBI has been improving counter-terrorism, a process in which I’m actively involved and Director involved.

Grassley: Youssef also involved in exigent letters. Where terror letters were used. Counsel said her office did not know of the letters. IG report, a division of counsel’s office knew as early as 2004. The committee requested all emails related to exigent letters last year, we have received one small batch of heavily redacted documents. When are these coming.

MM: I’ll find out about review of documents. My understanding is that there were changes in the oversight. Problem was lack of oversight.

[Gosh, then don’t you think you ought to support oversight of FISA]

Grassley: Will DOJ pursue employers who knowingly hire illegal aliens.

MM: Yes.

Grassely: Prouty, fundraisers for terrorist organizations. FBI provided briefings, FBIs background investigation failed to find sham marriage and overstay of visa, bro-in-law had Hezbollah ties. FBI will be reinvestigating background of all agents from foreign countries. How many will be investigated? Will all non-native born agents be re-examined.

MM: I can’t tell you how many. I believe it was more than just reliance on Prouty having become citizen.

Grassley: Hanssen. FBI resisted dedicating a unit to internal security. Finally did this years after Hanssen case. How long until this unit up and running?

MM: Will discuss with director.

Leahy: Thanks, Grassley.

Whitehouse: Process question. In terms of advisory responsibilities, not going to investigate. You’ve disclosed waterboarding not part of CIA interrogation regime. Still leaves open torture statute whether there are concrete facts or circumstances, given that that evaporates, whatever it is it is. I’m trying to determine if that is taking place (the analysis), if you’re waiting for Durham’s investigation to look more into what happened. Or if there has been a policy determination made, that bc there has been a claim of authority, there will be no investigation. What is the process for coming to this decision.

MM: Facts come to the attention to the Department that warrant investigation. As of now, investigation into destruction of tapes, if what was on the tapes was barred by torture statute.

Whitehouse: Couldn’t you and I engage in discussion that would at least give cause for discussion.

MM: It would not be concrete discussion.

Whitehouse: In a classified setting it may or may not an "if."

[Booyah]

[Long pause]

MM: Not entirely true what that suggests.

[Let me traslate, Mike. Whitehouse has seen evidence of torture. And he’s happily to examine that in a classified setting. Are you man enough for that??]

Whitehouse: I’m trying to not disclose classified information. I don’t think it’s fair to say that nobody has any basis from anywhere. If that’s not enough to raise the first red flag, I don’t know what on earth that could be. Where do we stand, anybody who has a public view says there’s something that might merit investigation.

Whitehouse: no Nuremberg defense built into criminal statute. If you were going to apply it, you’d want to say, what here’s what took place. You’re telling me that nothing in that process bc the certification obviates any investigation regardless of what the facts are.

MM: My position is that there is an ongoing investigation, I’m not going to speculate on what was authorized.

Whitehouse: The investigation has nothing to do with the underlying interrogation.

MM: Depends on Durham.

Whitehouse: Let’s hypothesize.

MM: Let’s not. It’s a question of telling agents out there that we’re investigating CIA based on speculation of what happened.

Whitehouse: I would like to thank you for the re-erection of the firewall between DOJ and WH. Manner in which it was done was excellent. Sorry that we seem to be at loggerheads again on this subject.

MM: This is a good faith exchange. I appreciate that you said.

Kisses all around, Whitehouse and MM make up.

Leahy: I don’t expect an answer here. FOIA, required the office of government information services, which is national archives and record admin, ombudsmen, all those things we talked about, 2009 budget for Administration, attempt to move it into DOJ. Law says to keep it in archives. Those taking notes of our conversation. Would you please look at that.

DiFi: I’ve been reading your letter. For the first time you disclose that waterboarding is not part of the approved methods. You disclose the method by which a new method is approved. Was this the case in the past?

MM: I’m not authorized to say what happened in the past.

DiFi: It is widely alleged that at least three people were waterboarded. Did the President approve that?

MM: I can’t speak to that.

DiFi: Both MCA and Detainee Treatment act, loophole is CIA. I proposed amendment that would put the entire govt under Field Manual. Accepted by House and Senate. If it comes to floor and remains in bill, once and for all, waterboarding be prohibited by govt.

MM: CIA director becomes aware, however he becomes aware of a technique, describes circumstances by which it’ll be done, to me, I consult with whomever I have to consult with, then it goes to President.

DiFi: I know how they say it works, I don’t know if it’s legal or not.

DiFi: What about contractors?

MM: I don’t know?

DiFi: I’d like to know if it’s legal to contract out enhanced techniques to a contractor.

DiFi: Why hasn’t DOJ responded to Scott Bloch?

MM: There are investigations going on by OPR and OIG into those subjects. A response has gone out to Mr. Bloch is in process.

DiFi: After receiving no cooperation for four months, Mr. Bradbury reiterates the request that we step down. I assume there is some conflict with this.

[So this is coming from OLC? Wow]

MM: Bloch is in an office that is not within the department. I will see to it that he gets a response.

DiFi: Will you copy us on that?

Kyl: Thanks for writing us a letter. Can you send up a list of all vacant slots that this committee needs to act on? [plus lots of stuff about putting brown people in jail]

Leahy: In addition to the list of empty spots, will you also send a list of those spots for which we have not nominee, and a list of letters to which DOJ has not yet responded.

Feingold: Thanks for call regarding treatment of GLBT employees at department. You appear to be embracing the Administration’s position without judgment. You say you don’t want to say whether waterboarding is torture, bc it would tip off our enemies. We have a system of public laws. Your statement suggests you’d not prosecute a govt official for violating such laws.

MM: I don’t see inconsistency. Requires elaborate justification. That’s different than saying that bc we prosecute crimes every day. I go to work every day, follow the law, go home, and fall asleep.

Feingold: How do you prosecute situation like this without tipping off enemy?

MM: If somebody is guilty of violating laws of US, they get prosecuted. That is different from talking about circumstances of particular interrogation technique.

Feingold: You indicated that you believe current program is legal. As a member who has been briefed I disagree. What I asked on Dec. 10 is your reasoning and analysis. When will you explain your view of the interrogation technique?

MM: Those letters are classified. What I undertook to do was review the letters. They analyze the techniques and to see whether they comply with the law. What you’ve asked me to do is to do something different in the letters.

Feingold: You won’t explain your analysis?

MM: The letters are classified. The letters explain it, in far more detail that I could do.

Feingold: this seems unacceptable. You promised to explain to Congress. You’d explain your analysis. It’s important to us than have more than a one-way conversation. I’d urge you to reconsider.

Feingold: Retroactive immunity is important to encourage cooperation in the future. You wouldnt’ encourage telecoms to break the law. Correct? Let’s take a situation where following an order would break the law.

MM: We don’t want anyone to violate the law. That covers, say, helping a policeman to rob a bank.

Feingold: Congress prevents telecom without court order or proper certification from the AG. That law’s been on the books for 30 years; it hasn’t been repealed or modified.

MM: That law remains on the books.

Feingold: Should the telecoms be expected to comply with this law.

[Very long pause.]

MM: The telecoms have complied with that law, all of this has been put under the FISA court.

Hatch: Good job working with Congress while preserving the unitary executive! Good job, dude! You separated hypotheticals and facts. The WaPo said it was a lawyerly response, and gosh, that’s great, IMO.

Hatch: FISA reform tops the list. You and I feel that, most important piece of legislation that we will consider in 110 Congress. I agree with you that stopping terrorists requires understanding their intention. Your letter describes grave concerns that take a short-term approach to modernizing FISA. No sunset. And let me set you up so you can shoot down Haggis’ compromise.

Hatch: Now let me set you up to shoot down limits on tapping Americans overseas and reverse targetting. If the govt was interested in tapping an American, they’d get a warrant, wouldn’t they??? FISA makes reverse targeting illegal.

[Shorter Hatch, I’m arguing that reverse targeting isn’t a problem, but I will fight to my death to make sure it doesn’t become the law.]

Hatch: Has DOJ seen a change in willingness of private sector to assist govt. [Well, I would change it I discovered that Bush overrode the AG and misrepresented that.]

MM: War unlike any other. Our only weapon is intelligence. [shit, with Bush in charge, that means we’re screwed.]

Durbin: Politics and Language. [Woohoo! I was waiting for someone to do this.] Mr. Orwell was critical of misleading political speech, concrete melts into abstract, on subject of waterboarding, some of your words have melted into the abstract. Can you name your reasonable people who think waterboarding is torture? If waterboarding would not shock the conscience, why did we discontinue it? Your refusal to take a position on torture bc our troops wear uniforms. But there are American personnel who don’t wear uniform (Special Forces, CIA), who are in danger if there is uncertainty on position of waterboarding.

MM: The reasonable people? There have been people in this chamber who have disputed. That’s a matter of record.

Durbin: This chamber has voted on a bipartisan basis against torture.

MM: And the chamber voted down a prohibition on waterboarding.

Durbin: If the detainee treatment act is clear, and even went so far as to offer amnesty to employees of the govt, you still think that the jury’s out on whether the Senate believes that waterboarding is torture.

[Lots of long silences on Mukasey’s part.]

MM: The question is whether the Senate has spoken clearly enough on that issue.

Durbin: Where’s the lack of clarity in the McCain legislation?

MM: Words that are general, words that people on both sides of the debate have already disagreed. To point to this language or that language is to pick nits.

Durbin: As the Chairman has noted here, McCain, Warner, and Graham, lead sponsors of this legislation, have said waterboarding is a war crime.

Durbin: Standard so far has depended on circumstances. Do you see a problem with your ambivalence. It’s due caution.

[mumble mumble mumble]

MM: Your second question. I said waterboarding would not shock the conscience. I described a situation where it would. So far as it would be, that was something put into place by the person who wrote the opinion. [Is this the Bradbury opinion??] The use of such techniques to discover information that was only historical information would not shock the conscience.

Durbin: if it would save many lives, would that shock the conscience. Under the military interrogation standards. They are not interested. You’re saying that when it comes to non-military, it is still unresolved.

MM: It is unresolved.

Recess until 2.

I haven’t liveblogged in a while, so what the heck. Watch along here or here.

Leahy

Leahy starts by highlighting civil liberties violations, naming Bradbury.

We join together to press for accountability and that led to a change in leadership. Today we continue our efforts to restore DOJ.

[Leahy mentions the torture tapes, but focuses on the CIA’s unwillingness to tell the 9/11 Commission.]

Today we will get some kind of indication whether the AG will restore checks and balances. It is not enough to say that waterboarding is not currently authorized. Torture has no place in America. Tragically, this Administration has so twisted our values that top officers are instructed by the WH not to say that torture is illegal.

[Lists the people we’ve prosecuted for waterboarding.]

That is not America.

Arlen "Scottish Haggis" Specter [incidentally, the first person I ran into when I walked into Congress on Monday was Specter, just coming off the floor having voted against cloture. I contemplated thanking him for his no vote. But then I doubted that "Scottish Haggis, I appreciate that you finally voted your conscience" would go over very well.]

Scottish Haggis agrees that Bush has pushed Article II. Discussion torture, still focusing on Article II powers.

Leahy swears Mukasey in.

Mukasey’s statement. Suggests Bush’s stonewalling just a sign of how well the Constitution works. [Remind me to tell you about Schumer’s comment on Mukasey, an attempt to justify his picking him.]

"Committed to review CIA interrogation program. Carefully reviewed limited set of methods authorized, concluded they are lawful. Aware that you address specifically address waterboarding. I have been authorized to say waterboarding is not among techniques currently used. Passing on its legality is not among the scope of what I promised to review."

ARGH!!

CIA Director would have to ask to use waterboarding, would have to outline its use, the issue would have to go the President.

Leahy: First question, brings up Ridge’s and McConnell’s comments that waterboarding is torture. Mukasey dodges, says he can’t say anything because he’s AG.

MM: I know that if I address a complex legal question without having concrete circumstances before me, yadda yadda yadda.

Leahy: I think the failure to say something puts some of our people in more danger.

Mukasey: Our military won’t be affect by what I say. They’re legal soldiers.

[Mukasey’s logic here is that we’re allowed to torture people who are illegal combatants.]

Leahy: I’m afraid this would put them in more danger.

Leahy: The telecoms cut off their FISA wiretaps when we don’t pay the bill. You and the Admin talk about how critical FISA is to national security. So why are we not paying our bill and having this get cut off?

Leahy: What payments were made in the five years prior to it coming under FISA?

MM: If that is not classified I can get it. But whether or not a telecom participated is classified.

Leahy: CIA torture tapes. Are you looking into question of destruction or conduct shown?

MM: That investigation is going to go fact by fact, witness to witness. If it leads to showing motive, I’m sure it’ll lead to showing motive.

Leahy: You were in line to receive monitoring contract. Some of these contracts concern me. Chris Christie directed a multi-million dollar one to Ashcroft. I’m waiting for an answer to the letter I’ve got. How did you come to be considered?

MM: I was proposed by the company. [Interesting, that. When did they offer.] Deferred prosecution agreements have become more prevalent so corporations can break the law but not be punished for it. [He didn’t say that, exactly.] So far as it being a no-bid contract, we’re not talking about public money.

Arlen "Scottish Haggis": Oops, I missed a bit–but he tried to get MM to admit that Bush had violated the law with his warrantless wiretap program. MM got into some parsing about "electronic communications." I do hope they come back to this.

Haggis: Torture tapes. You told us we would be interfering with political issues. Do you intend to comply with Kennedy’s request on the torture tapes.

MM: Considerations underlying declination to provide Congress with information based on fact that …

Haggis: You say it’s not never, it’s certainly not now. Pitches his immunity "compromise" again. Courts provide a balance to review executive overstep.

MM: It would continue to make conduct of companies front and center.

[Well, goddamned it, why not let us punish Dick, then??]

Haggis: Why shouldn’t it be front and center. Why should the courts be foreclosed?

Haggis still pissed Cheney went behind his back.

MM: It puts means and methods in the courts. It casts in doubt the question of whether they acted in good faith. They had every reason to believe they acted in good faith.

[No, they ignored the fact that for some reason Gonzales signed the authorization rather than Comey or Ashcroft.]

Haggis: There’s a much greater danger in having Congress bail out the companies.

Teddy: I want to thank you for a number of positive steps. [Always start with a positive…] These steps show sensitivity to appearance of conflicts, I’m troubled that you didn’t make Durham an independent counsel. Waterboarding, Civil Rights Division and voting.
Waterboarding has become worldwide symbol of America’s torture. Even though you claim to be opposed to torture, you refuse to say anything about what constitutes torture. It’s like saying you’re opposed to stealing but not sure whether bank robbery would qualify. [Nice framing, Teddy.] You once again refuse to state the obvious. You refused to discuss that the Administration did use waterboarding and no one is being held accountable. CIA continues to use stress positions, every bit as abusive as waterboarding, illegal and ineffective. Would waterboarding be torture if it were done to you?

MM: I would feel that it was. You’re assuming that waterboarding is torture. I point out that this is an issue on which people of equal intelligence and equal good faith have differed. I should not go into bc of the office I have the detailed way in which department would apply general language to particular situation.

[I’m going to nickname this the Michael Mukasey Good Faith show. Note, he dodged the "how do we hold people responsible" issue.]

Teddy: Under what facts and circumstances would it be lawful.

MM: I said I should do this.

Teddy: Are there any interrogation techniques that you would find to me fundamentally illegal.

MM: We may not rape.

[Then why haven’t the guys who were filmed raping Iraqi boys and women prosecuted?]

Teddy: Naturalization backlog. Potential US citizens hoping to vote in upcoming elections. Basic fairness dictates that these applications are processed to allow these individuals to vote. Fees have been increased. Lines growing longer. Hundreds of thousands qualified to vote that will note vote.

MM: That’s Michael Chertoff’s deal. We’ll do everything we can to make sure those authorized to vote will vote.

Teddy: What is the department doing to give a sense of urgency to move ahead on this?

MM: I will find out what contacts have been and I will work with you.

Grassley: [This is about whistleblowers] Unanimous consent, opening statement be part of statement. During confirmation hearing you assured me you’d assist my oversight efforts. Prior to this hearing dept provided requests going back to March 2007, got them on Friday, 4 days to digest 250 pages of answers. Buried in the responses, response to Qs 64-83, answers will be provided separately. They were not. I’m troubled that I get responses stating one thing. When can I expect this response from FBI that I’ve been waiting for since March 2007. Can I expect them before a full year has passed.

MM: I don’t know what the questions are. Will talk to Director.

Grassley: Whistleblowers from FBI, ought to be encouraged to come forward and ought to be protected. Most difficult with Nat Security security clearances. Can report wrong-doing to supervisors, or can sit silent.

Grassley: Why not report to Congress on whistleblowing.

MM: Partly security clearance, but that cuts off the President.

[He’s basically saying the President can prevent whisteblowers to report to Congress on issues that might reflect on Bush’s behavior.]

Grassley: if they’ve got security clearance, they’ve got security clearance.

MM: Maintaining Executive’s right to supervise employees up to and including President.

Grassley: You’ve got a problem reconciling chain of command that wants to hide wrong-doing in the first place, you’re talking going all the way up to the President, you’ve got plenty of people that don’t want Congress to know if something has gone wrong, because they’ve got egg on their face.

Biden: You’re speaking of torture as if its relative.

MM: Only partly. Heinousness, cruelty balanced against the value.

Biden: Value of what?

MM: The information you get.

Biden: Shocking of conscience relates to purpose. Waterboarding to save humanity v. waterboarding to find out the leader. I don’t think shocking the conscience had to do with basic societal values. You’re the first person I’ve ever heard saying what you just said. I’ve never heard that discussion.

Biden went off on violent crime. I was trying to catch up on my email.

Biden: As Ronald Reagan said, if it ain’t broke, don’t fix it. You guys broke it. [wrt violent crime.]

Jeff "Mututal Protection Racket" Sessions: The military never waterboarded, correct? And the CIA only waterboarded a few select people, right?

MM: I can’t say that. Abu Ghraib was not torture, it was prison abuse. And they were prosecuted.

[News to me, aside from the bad apples implementing orders.]

MM: DOJ has prosecuted one contractor for prisoner abuse.

"Mutual Protection Racket": Widescale abuse is not true. [This is our new measure, whether we torture a lot or just a little.]

"Mutual Protection Racket": Illegal entry is a crime. Zero tolerance on illegal immigration. And it works.

Zero tolerance zero tolerance zero tolerance zero tolerance zero tolerance.

[LOL! Mutual Protection Racket is complaining that we’re spending more money prosecuting corporate bribery than illegal entry. I wonder why he’d prefer prosecution of illegal entry than bribery…??]

MM: The border difficulties are different at different parts of the border.

[MM basically says, "Carol Lam was right."]

"Mutual Protection Racket" interrupts, to stop MM from saying Lam was right: Will you commit to expanding this?

MM: Yes.

Leahy: Letter from a bunch of top JAGs into the record. They all say waterboarding is torture. And a letter sent to you from three of our colleagues, McCain, Graham, Warner, saying they consider it torture.

Kohl: Local law enforcement programs.

MM: Funding of targeted programs is certainly a priority.

Kohl: On Gitmo. Are you ready to add your name to the list of those who want to close Gitmo.

MM: The President wants to close Gitmo if we can do it responsibly. Whether there is some alternative to Habeas that would be sufficient.

Kohl: Court secrecy. Secret settlements in courts. Judges continue to provide court-endorsed secrecy, in many cases has led to injuries that could have been prevented. Should courts be required to take a look at protective orders on public health and safety?

MM: Courts should always take a look at protective order when it involves public safety. I don’t know of any case where court sweeping public safety under the rug, I would not want a court to do that.

[MM: how can you say that, answering a hypothetical, when you want do the same with torture?]

Kohl: Should we require judges to consider public safety.

MM: A judge should consider public safety.

Brownback: Gitmo. People are talking about moving Gitmo detainees to Leavenworth, and as a Kansan, we’re not ready for them to move. I don’t think it’s prepared for the detainees coming from Gitmo. [Brownback, consider it your version of Yucca Mountain] Beyond that, top military leaders go very closely to Leavenworth.

MM: Practical considerations. No representative from any state would say his state is ready to accept Gitmo detainees. Then there’s the legal effect of bringing them state-side.

[Pretending that the lawsuits are about releasing people rather than just getting them a review.]

MM: Before we move Gitmo to Leavenworth, I will come visit Leavenworth.

Brownback: Govt considering in intervening in PLO case. Let US citizens receive their awards from PLO. [interesting, does that mean BushCO are going to do the same thing they’ve done for Iraq for the PLO, in yet another attempt to prop up the PLO against Hamas??]

Brownback: Human trafficking.

[You know, MM is parsing the Republicans as much as he is the Democrats. He won’t commit to do what Brownback and "Mutual Protection Racket" want either]

MM: trying to explain the DC handgun case. Would allow us to continue to enforce federal firearm laws.

Brownback: FISA, substitute ["some people want to substitute"–Is Browback saying this at Dick’s behest as well??] I want to thank you for stepping into this job at a hard time. If these are uncomfortable topics, we all look at and rather not deal with it.

MM: Susbtitution, the conduct of the companies will be subject of dispute, would open up their conduct to scrutiny, they can’t cooperate without a court order. The overarching point, this is limited immunity, doesn’t apply to companies that didn’t participate, and only those that did so after a request to President.

Keith Olbermann notes, with great dismay, that Michael Mukasey chose to hang a portrait of George Orwell in his office (the other portrait is Chief Justice Robert Jackson, which makes me quite happy).

This would be the original Reuters story. The operative part would seem to be the AG’s insistence that he esteems Eric Blair, AKA Orwell, for the clarity, not the subject, of his writing.

I’m still not sure I haven’t gotten a very specific "Your Worst Fear Suddenly Materializes In Real Life As A Matter-Of-Fact Wire Story" moment going on here. Or maybe it’s some sort of "You’ve Been A Good Boy: Here Is Six Weeks Worth Of Jokes, No Lifting Involved" thing.

For the record, I’m willing to take Mukasey at his word–that he esteems Orwell for the clarity of his prose and, just as importantly, for his understanding of the way politics demeans language.

In our time, political speech and writing are largely the defense of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism., question-begging and sheer cloudy vagueness. Defenseless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.

I also fancy, with absolutely no basis, that Mukasey might also value the Orwell of Homage to Catalonia, in which Orwell described his experience fighting fascism in Spain. The book is a narrative of how an idealistic fight founders on the real ugliness of ideological struggle and war, how even individuals fighting a just war with good intentions will fall victim to the human failings of their allies.

I take some comfort in the notion that this Attorney General, presiding over the last year of the corrupted expression of purportedly idealist neoconservatism that is the Bush Administration, might recognize that politics corrupts language and ideological purity always cedes to corruption.

But then, I don’t know how to square that understanding with the way that Mukasey answered a question I recently asked, whether or not he supports the re-nomination of Stephen Bradbury (via Marty Lederman).

He can also expect to be questioned in the hearing about the White House’s renomination this week of Steven G. Bradbury to run the Justice Department’s Office of Legal Counsel as an assistant attorney general.

The new nomination was seen as a snub to Senate Democrats who had called for the White House to find another candidate for the job after the disclosure in October that Mr. Bradbury, who is running the office without Senate confirmation, had written classified legal memorandums in 2005 that authorized the use of interrogation methods that human rights groups define as torture.

“Steve Bradbury is one of the finest lawyers I’ve ever met,” Mr. Mukasey said when asked if he supported the White House move. “I want to continue working with him.”

I mean, on its face, this is quite plain. Mukasey has no problem with the tactical or ideological implications of Bradbury’s renomination, he’s happy to work with Bradbury even while he promised to review the OLC opinions Bradbury wrote justifying torture. And, as Lederman suggested to me via email, perhaps Bradbury helped Mukasey during the nomination process.

But I’m struck that this self-declared fan of the clarity of Orwell’s prose didn’t answer the question. Do you support the White House’s nomination of Stephen Bradbury, he was asked. Rather than saying "yes" or "no," Mukasey instead asserted that "Bradbury is one of the finest lawyers I’ve ever met." Only marginally more clear than Mukasey’s response to the question, "Is waterboarding torture?"

Mukasey apparently assigned the DOJ speechwriter to read Orwell’s essay. I’d suggest to the Senate Judiciary Democrats that, if Mukasey still sounds like he hasn’t reviewed his own favorite essay when he comes before them this week, they ought to remind him.

Senators Dodd and Feingold aren’t waiting for Monday to keep fighting the good fight on FISA. Feingold has issued the following statement:

The conduct of Senate Republicans yesterday was shameless. After weeks of insisting that it is absolutely critical to finish the FISA legislation by February 1, even going so far as to object to a one-month extension of the Protect America Act, they obstructed all efforts to actually work on the bill. Now they want to simply ram the deeply flawed Intelligence Committee bill through the Senate. They refused to allow amendments to be offered or voted on, including my straight-forward amendment to require that the government provide copies of FISA Court orders and pleadings for review in a classified setting, so that Members of Congress can understand how FISA has been interpreted and is being applied. If the Republicans succeed in cutting off debate on Monday, the Senate won’t even get to vote on the amendment Senator Dodd and I want to offer to deny retroactive immunity to telecom companies that allegedly cooperated with the administration’s illegal wiretapping program.

Democrats should not allow the Republicans to ram this bill through the Senate without amendments. Monday’s cloture vote will be a test of whether the majority is willing to stand up to the administration and stand up for our rights. [my empahsis]

And Dodd just finished kicking some serious ass on the floor of the Senate. He has called those who claim the telecoms will go out of business "amateur economists" and pointed to AT&Ts huge profits. He explained, "the point of immunity is to challenge Bush’s assertion that he is the law." And he accused the telecoms of using the Nuremberg defense. Finally, after listing all the abuses of power that can’t be undone–including the destruction of the torture tapes and AGAG’s lies before Congress, he described immunity as one thread that we can use to combat the Administration’s abuses. "We can grab hold of the one thread left to use here and pull on it until the whole garment unravels."

Update: Whitehouse just finished speaking. Two of his best lines were, the Administration "couldn’t be troubled to get a court order, to protect these companies they’re so concerned about now" and if we pass telecom immunity, "we are taking away real rights of real Americans that are being litigated in courts right now. I don’t know if Congress has ever done before."