At 7:39 on Wednesday evening, Pool Boy and his friends posted this interview with Dick Cheney.

Also on Wednesday evening–though at an unknown time–the NYT informed the CIA it would reveal the CIA had destroyed tapes of interrogations of high value Al Qaeda detainees.

The New York Times informed the C.I.A. on Wednesday evening that it planned to publish an article in Friday’s newspaper about the destruction of the tapes. Today, the C.I.A. director, General Michael V. Hayden, wrote a letter to the agency workforce explaining the matter.

Given this exchange from Dick in his Pool Boy interview…

Cheney said the [NIE] was released because “there was a general belief that we all shared that it was important to put it out — that it was not likely to stay classified for long, anyway,” he said.

Cheney said that “especially in light of what happened with respect to Iraq and the NIE on weapons of destruction,” officials wanted to be “upfront with what we knew.”

He said he agreed that was “the right call.” So he thought it might leak? “Everything leaks,” he said with a chuckle.

…I wonder whether Dick had already learned that the news of the destruction of the terror tapes had leaked?

I guess this offers at least a trickle of hope that those that made up reasons to torture and wiretap and ignore the Constitution might be held to account?

The Justice Department has reopened a long-dormant inquiry into thegovernment’s warrantless wiretapping program, a major policy shift onlydays into the tenure of new Attorney General Michael Mukasey.

The investigation by the department’s Office of ProfessionalResponsibility was shut down after the previous attorney general,Alberto Gonzales, refused to grant security clearances toinvestigators.

"We recently received the necessary security clearances and are nowable to proceed with our investigation," H. Marshall Jarrett, counselfor the OPR, wrote to New York Rep. Maurice Hinchey. A copy of the letter, dated Tuesday, was obtained by The Associated Press.

Recall that the inquiry was designed to find out whether the Office of Legal Counsel acted improperly when it approved the illegal wiretapping program. Of course, none of the lawyers in question work at DOJ anymore, and OPR investigation results are not made public. But still, I’m happy to start with baby steps if you promise we’ll keep walking.

Update: TP notes this:

 In a response to an inquiry from Sen. DickDurbin (D-IL), Mukasey suggested that the decision to re-start the OPRinquiry had already been made prior to his confirmation. On Oct. 25,Durbin (D-IL) submitted this written question for Mukasey:

If you are confirmed, will you pledge to review thisissue and to make a recommendation to the President regarding whetherthe OPR investigation of the Justice Department’s role in the NSAprogram should be allowed to proceed?

On Oct. 30, Mukasey answered, “It is my understanding this issue hasalready been decided. I have committed, however, to reviewing theover-all circumstances of this matter.” (p.126)

I noted the same thing when I read Mukasey’s answers–but I took it to mean the exact opposite of what this means. That is, I took it to say, "Bush has already squelched this investigation, and I’m not going to promise to unsquelch it." But I see now it could mean any of several things: that Bush approved the clearances during the vetting and pre-nomination process (did Mukasey make Bush do it?), that Bush hadn’t done it and Mukasey has already made progress with Bush, or that AGAG did it in his last act as AGAG. Maybe the unsquelching of the investigation is tied more closely to AGAG’s departure than we know?

From which we can take the following lessons:

• It’s unclear that our political system has the fortitude to save itself anymore.
• If you’re running for President, it’s dangerous to take a stand against torture–even if, like John McCain, you’ve been tortured yourself.
• It takes a real beating–like the one Alberto Gonzales gave Richard (one good reason not to blog before coffee) Mark Pryor when he AGAG appointed Tim Griffin and attempted to "gum to death" that nomination–to convince a Senator that these votes matter (Pryor voted against confirmation).

And consider this: Muksaey, who played the same word games Gonzales did in his nomination hearings and who refused to say waterboarding is illegal, had a much greater margin of comfort than Gonzales had when he was approved for the same position (the difference is mostly due to the Presidentials not voting).

Update: pronoun clarified per JGabriel.

David Kurtz reports that the Mukasey nomination will come down to the Senate Judiciary Committee vote (and TPM is tracking votes so far). I believe this sets up some really interesting tension between Bush and Chuck Schumer.

You see, events thus far have made it very important for Bush to get Mukasey approved. While David Addington may have thought it in Bush’s best interest to push Mukasey to adopt the party line, they’re now at the place where, if Mukasey is rejected, it will be because of Bush’s torture policy. (Frankly, this is unfortunate from a principled perspective, since it means that the Senators don’t care about the unitary executive more generally, but it works to our advantage politically.) The press has spun the rising tension to be entirely about the issue of torture, which makes it inconceivable that, if Mukasey is rejected, the narrative will be anything but torture. Which will shine a bright light on the torture policy itself, and some Soccer Moms who might otherwise be ignorant that men are being tortured in their names may just discover that their government is doing reprehensible things.

Which is why Bush is so pissy about the doubts about Mukasey’s appointment.

President Bush today sought to ratchet up pressure on Senate Democratsconsidering his nomination of Michael B. Mukasey to be attorneygeneral, saying that it was unfair and unwise of lawmakers to requirethe nominee to opine on details of a classified interrogation program.

Bush, in his most forceful remarks to date on the troubled nomination,strongly defended Mukasey for refusing to say whether he believed thatcoercive interrogation techniques, including waterboarding, wereillegal torture. The issue has become the defining question for SenateDemocrats in advance of Tuesday’s Senate Judiciary Committee vote onwhether to confirm the retired federal judge to succeed Alberto R.Gonzales.

[snip]

Bush today said it was wrong of Democrats to make the confirmationdependent upon "details of a classified program he has not been briefedon."

Though his temper tantrum is only going to make it worse–it’s going to make a Mukasey vote an upperdown vote on torture.

Unfortunately, I’m still pessimistic it’ll go the way we’d like.

That’s partly because DiFi pretty consistently disappoints Democrats at times like these.

But it’s also because of the underlying tension regarding Chuck Schumer’s role in this whole process. Chuck Schumer, of course, suggested Mukasey’s name in the first place–Mukasey was Schumer’s nominee first, and Bush’s only afterwards. Which will make it very difficult for him to vote against Mukasey, not least because he no doubt represented to the White House that Mukasey–unlike Ted Olson and Laurence Silberman–would be confirmed. For now, Schumer’s not showing his hand.

Most conspicuously silent was Mukasey’s fellow New Yorker,  Charles E. Schumer, who initially offered unusually warm praise for the nominee and didnot come out against him this week as other Democrats attacked. AskedWednesday about the nomination, Schumer would say only, “I’m readingthe letter, going over it.”

But Schumer is a natural deal-maker. He’s in the position where his role as dealmaker on judicial nominations will be in question if Mukasey is rejected. I suspect he’s as troubled by Mukasey’s head fake on torture as the other Senators (indeed, I suspect he’d be more concerned about the unitary executive issues than some other Senators). But he’s also got his own honor at stake.

Let’s hope he lets the Constitution trump his honor, just this once.

Remarkably, Sheldon Whitehouse asked Mukasey very few written questions. But I am intrigued by this one.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

Whitehouse, that sneaky guy, is not letting on which Executive Order he believes Bush may have violated, though it’s clear that’s the genesis of the question. I’d say it relates to Bush’s recent executive order on torture, since that’s the focus of so many questions for Mukasey. But the timing is off–Bush only signed that EO recently, so he hasn’t had much time to violate it.

Furthermore, the structure of the question doesn’t sound like Whitehouse is addressing torture. It’s not like Bush would act contrary to the torture EO; he’d authorize actions contrary to it.

So what do you think it is? The first thing that comes to mind, for me, is EO 13292, which governs classification and declassification. Cheney has violated that EO on a number of counts. There’s Cheney’s claimed exemption because he’s a Fourth Branch. And, of course, someone violated it when they insta-declassified Valerie Wilson’s identity the National Intelligence Estimate, though it’s not clear whether Bush did or Cheney did or Libby just lied about it (again).

But again, this gets us into grammar problems. Whitehouse is talking about Bush violating his own EO. I know it’s hard to keep Bush and his puppet-master straight sometimes, but Whitehouse is a pretty sharp cookie and I imagine he’s up to the task. Though, there have been so many instances where the White House insta-declassified classified information to serve their propaganda needs, I still think this is a leading candidate.

In any case, I suspect Whitehouse’s comment suggests two things. First, the Senator is sniffing around some instance of Bush violating his own EO (go Whitehouse). And second, my leading bet is on Bush’s rules governing classification and declassification.

Here’s a response from Mukasey that frankly stumps me. It comes in response to a Joe Biden question on extraordinary renditions.

If the purpose [of renditions] is to gather intelligence, why would the United States trust interrogations carried out by Egyptian or Syrian intelligence agencies–agencies that the United States has long acknowledged and criticized for engaging in torture and abuse?

ANSWER: I am not aware of the facts and circumstances concerning any rendition. It is my understanding that both United States law and policy prohibit the transfer of anyone in the custody of the United States to another country where it is "more likely than not" that the person would be tortured, and should I be confirmed as Attorney General, I would ensure that the Department of Justice provides legal advice consistent with that standard. That said, I understand that there are other departments, such as the Department of Defense or the Department of State, with more direct responsibility for carrying out our policies in this area.

The answer is carefully crafted to punt. First, as everyone else in the Administration does, Mukasey simply repeats the claimed standard–no rendition to countries that torture–without guaranteeing that the country as a whole fulfills this standard.

Then Mukasey makes an interesting move. He effectively says, "renditions are not done by DOJ, so I can’t be responsible for them." Which is true, as far as I know–the FBI does not carry out renditions. It’s as if Mukasey asserts he can’t guarantee the country doesn’t engage in renditions because he’s not in charge of that area. Fair enough–and likely a sound legal strategy, to avoid any liability for the renditions that are going on.

But then Mukasey lists those departments that–in his understanding–are in charge of renditions. DOD and State.

What flummoxes me here is the inclusion of State, and the exclusion of CIA, on this list. We’ve had direct reporting of CIA involvement in renditions (such as with al-Libi). And they’re the one with the funny airlines that have no owners and no apparent flight plans. Perhaps those renditions are being done by some intelligence branch of DOD now (which might explain why the numbers for renditions carried out by CIA always seem much lower than the known cases of renditions).

So why State? Perhaps it’s as simple as State negotiating with countries before we steal their citizens (did Colin Powell’s State negotiate with Berlusconi’s government in the case of Abu Omar?). But I wonder. Is the State Department–and it’s beefy Blackwater contracts–currently involved in renditions in a way we don’t know about?

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

As the NYT broke the other day, General Michael Hayden is conducting an investigation of the CIA’s Inspector General, John Helgerson. Their first report on the story intimated the reason why Hayden was conducting such an unusual investigation.

A report by Mr. Helgerson’s office completed in the spring of 2004warned that some C.I.A.-approved interrogation procedures appeared toconstitute cruel, inhuman and degrading treatment, as defined by theinternational Convention Against Torture.

Some of the inspectorgeneral’s work on detention issues was conducted by Mary O. McCarthy,who was fired from the agency last year after being accused of leakingclassified information. Officials said Mr. Helgerson’s office wasnearing completion on a number of inquiries into C.I.A. detention,interrogation, and “renditions” — the practice of seizing suspects anddelivering them to the authorities in other nations.

Last year’s coverage of McCarthy’s firing strongly suggest her firing was related to her opposition to the CIA’s torture policies.

I’m pooped so will have to return to this article. It explains how, after DOJ under Jack Goldsmith threw out John Yoo’s torture policies, Steven Bradbury came in and replaced them with still worse opinions.

When the Justice Department publicly declared torture “abhorrent” ina legal opinion in December 2004, the Bush administration appeared tohave abandoned its assertion of nearly unlimited presidential authorityto order brutal interrogations.

But soon after Alberto R. Gonzales’sarrival as attorney general in February 2005, the Justice Departmentissued another opinion, this one in secret. It was a very differentdocument, according to officials briefed on it, an expansiveendorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time providedexplicit authorization to barrage terror suspects with a combination ofpainful physical and psychological tactics, including head-slapping,simulated drowning and frigid temperatures.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey,the deputy attorney general, who was leaving his job after bruisingclashes with the White House. Disagreeing with what he viewed as theopinion’s overreaching legal reasoning, Mr. Comey told colleagues atthe department that they would all be “ashamed” when the worldeventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhumanand degrading” treatment, the Justice Department issued another secretopinion, one most lawmakers did not know existed, current and formerofficials said. The Justice Department document declared that none ofthe C.I.A. interrogation methods violated that standard.

I will return to this, probably Friday (I’ve got my timeline buzz going). But for now, I wanted to point out that the story reads like several different stories (which may party arise from having three authors). First is a story about Steven Bradbury, which sure reads like someone wants to discredit Bradbury for good; perhaps Bush is preparing to re-appoint him to be head of OLC? Another of the stories appears to be about Comey’s allies, fighting against these policies after his departure. And the last appears to be a legal chronology of what was on and off legal in our world of torture.

There are some interesting competing leak wars going on right now. I wonder why?

I’m still following up on the question of the way in which the Rather complaint invokes the debate on Hamdi. I wanted to draw extended attention to this article. In it, Tim Grieve susses out precisely what seems to be the reason Rather included the Abu Ghraib details in his complaint.

Did Clement know he was misleading the justices, or was he kept out ofthe loop so that he could avoid revealing truths that would underminethe administration’s "trust us" arguments in the enemy combatant cases?Did Joint Chiefs of Staff Chairman Richard Myers persuade CBS to delaybroadcasting the photographs from Abu Ghraib to protect the lives ofU.S. soldiers — or to spare the administration embarrassing questionsduring the Supreme Court arguments in the enemy combatant cases?

[snip]

Clement was a natural choice to appear on behalf of Rumsfeld whenthe Supreme Court took up the cases of Padilla and his fellow "enemycombatant," Yaser Hamdi, in April. The question is,what did Clement know when he climbed the steps of the Supreme Courtbuilding on the morning of April 28? Did he know what his client knew– that the Department of Defense was investigating grave abuses at AbuGhraib, that the brigadier general in charge of the prison had alreadybeen removed from her post? Did he know what his client’s staff knew –that Joint Chiefs chairman Myers had been working to keep CBS frombroadcasting photographs of the abuse?

And we wouldn’t be fun if we weren’t remembering Monica Goodling, um, "fondly."

The Justice Department won’t say. An employee in Clement’s officereferred a call from Salon last week to Justice Department spokespersonMonica Goodling. Asked what Clement or Ashcroft knew of the Abu Ghraibsituation at the time of oral arguments in the Hamdi and Padilla cases,Goodling said: "We wouldn’t have any comment." Pressed further,Goodling said the Justice Department would not have any comment at allabout the Padilla or Hamdi cases.

I’ll remind you, Goodling was the protege of Barbara Comstock, who blackballed Eric Lichtblau for getting too close to the truth.

Go read the whole Grieve article–I had forgotten that Padilla was argued at the same time as Hamdi. In other words–it may not have been Hamdi’s torture Clement was covering up, it may have been Padilla’s.