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.

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.

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.

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."

Wow. Judge Hellerstein is not amused with the CIA’s assertion that the torture tapes–which IG staffers flew to Thailand to view as part of their investigation into CIA interrogation methods–were not part of their investigation. Nor does he buy the assertion that the "special review" is not an investigation. He basically called Bull on the CIA’s assertions in about six different ways.

The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, said from the bench that he was stunned that the C.I.A. investigators had not kept records about the tapes, which were destroyed in 2005, even though the tapes were an important part of an internal C.I.A. review into interrogation methods.

“I’m asked to believe that actual motion pictures, videotapes, of the relationship between interrogators and prisoners were of so little value” that was no record of them was kept in C.I.A. investigative files, Judge Hellerstein said during a hearing over a freedom of information request involving the tapes.

“I just can’t accept it. If it came up in an ordinary case, it would not be credible,” the judge said, adding, “It boggles the mind.”

In fact, Judge Hellerstein even suggested what I did: that the CIA intentionally did not put any mention of the torture tapes in their IG report as a way to shield them from FOIA.

Judge Hellerstein raised the possibility that C.I.A. officials had intentionally not placed the tapes in the investigative files so as to avoid a freedom of information request.

“It seems to me that you were gulled,” he told Mr. Skinner, “and that the court was gulled.”

Gotta love a good skeptical judge.

Now, Hellerstein denied the ACLU’s request that he hold the CIA in contempt. But he did give them something worthwhile: the power of the court to get to the bottom of why the CIA didn’t turn over the torture tapes.

While Judge Hellerstein denied the A.C.L.U’s request to hold the C.I.A. in contempt of court for not producing information about the tapes, he said he was considering ways, including potentially subpoenas, to get to the bottom of why the C.I.A. has not turned the documents over to the A.C.L.U.

This is, IMO, very very important. With all the complaining coming from the leadership of HPSCI, they seem singularly uninterested in the relationship between the IG report and the torture tapes. If Hellerstein allows the ACLU to pursue why the CIA withheld information about the tapes (and the tapes themselves), it will ensure that the IG report becomes a central focus of the inquiry into the torture tapes. Which, in turn, may ensure that the inquiry itself goes further than Jose Rodriguez.

So sayeth one of Pincus and Warrick’s two sources describing the content of John Rizzo’s testimony. Mind you, that source remains anonymous, because "those in attendance were pledged to secrecy about the session." Of course, that didn’t prevent Crazy Pete Hoekstra from blabbing to the NYT and others about it, but he’s never believed that laws on secrecy should apply to him as well as staffers. Though, since I beat up Pincus yesterday for helping Bennett tamper with this investigation, let me just say that he offers, by far, the most interesting tidbit about Rizzo’s testimony.

Two of those at the hearing said that Rizzo said that after the tapes were made in 2002, lawyers at the CIA discussed the possibility that the FBI and the 9/11 Commission might want to see them.

If Rizzo has testified that lawyers at the CIA knew the 9/11 Commission might want to see the terror tapes, it strongly reinforces Tom Kean and Lee Hamilton’s claim that,

There could have been absolutely no doubt in the mind of anyone at the C.I.A. — or the White House — of the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations.

In fact, lawyers at the CIA knew that the 9/11 Commission would want to see these specific tapes. Which I guess is why George Tenet has lawyered up.

Meanwhile, the battle between Rodriguez, Rizzo, and Goss seems to be heating up. Bob Bennett specifically named Rizzo and Goss to the NYT as those who should have told Rodriguez to retain the tapes.

“Nobody, to our knowledge, ever instructed him not to destroy the tapes,” Mr. Bennett said. “Had the director or deputy director or general counsel told him not to destroy the tapes, they would not have been destroyed.”

Though, as the NYT points out, Rodriguez didn’t seek their permission specifically.

Mr. Bennett acknowledged that Mr. Rodriguez did not seek permission from Mr. Rizzo, Porter J. Goss, then the C.I.A. director, or from any other C.I.A. official before giving the destruction order.

I suspect this is where we get back into questions of timing–including Pincus’ love letter to Bennett, which neglected to date the request from the Thai Station Chief to destroy the tapes. That’s because, for some reason, Porter Goss was discussing the torture tapes with John Negroponte in summer 2005, and Negroponte told Goss, in apparently clear terms, that he should not destroy those tapes. Was that conversation related to the Thai Station Chief’s request? Rodriguez and Goss appear to be banking that they’ll be able to prove an interrupted chain of command between them, yet then why was Goss discussing the torture tapes with Negroponte in the first place?

It sure seems like we ought to be hearing about Porter Goss being asked to testify to Congress. But strangely, for all Crazy Pete’s blabbing, he doesn’t seem to be talking about getting Goss to testify.

One more point about timing. I noted yesterday that Warrick and Pincus’ sources, at least, appear to be obscuring a meeting involving Harriet Miers regarding the tapes, a meeting that almost certainly took place in 2005 when she was White House Counsel. Which is why this comment is so curious.

One of the two sources present said that White House officials did not seem as involved "as they might have or should have been" in 2005 decision making about the tapes.

How is it that folks are determining the involvement of the White House in 2005? Because there seems to be some fudging of facts about it, and I have a suspicion that there is White House involvement in 2005 that we’re not hearing about.

I’ve already ranted about how irresponsible it was for Walter Pincus and Joby Warrick to publish Bob Bennett’s statement on behalf of Jose Rodriguez–a statement that Rodriguez refused to give under oath without immunity–on the same day that John Rizzo testifies before Congress. Nothing like assisting the obstruction of an ongoing investigation. But now that I’ve done my ranting (and enjoyed the sun), here is another rant about the dubious timeline offered in Pincus and Warrick’s article.

The article alternates between vague and specific in curious fashion. For example, the article specifies that the taping started in August and ended in December 2002.

According to interviews with more than two dozen current and former U.S. officials familiar with the debate, the taping was conducted from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee’s death.

That detail directly contradicts the date offered in the CIA’s previous attempt to straighten out its story on the terror tapes, which claimed the taping started in spring 2002.

If Abu Zubaydah, a senior operative of Al Qaeda, died in American hands, Central Intelligence Agency officers pursuing the terrorist group knew that much of the world would believe they had killed him.

So in the spring of 2002, … they set up video cameras to record his every moment: asleep in his cell, having his bandages changed, being interrogated.

Now, there are two big reasons why the CIA might want to change that date. First, the CIA wasn’t authorized to torture until August 2002–so the later date magically makes any torture that happened legal, at least according to OLC. In addition, we know that Abu Zubaydah identified Padilla in the first several weeks of his captivity. By claiming no tapes were taken before August, the CIA pretends that any claim from Padilla regarding the tapes is irrelevant, since (if they really weren’t taken until August), the tapes would have no evidence relevant to Padilla’s case.

But here’s the problem with the new dates, beyond just the contradiction with the CIA’s earlier story: the CIA still wants you to believe they took the tapes to prove they weren’t killing Abu Zubaydah. But by August, he had already been under medical treatment for four months, presumably well beyond the time they needed to prove they weren’t killing Zubaydah.

And the changing date is all the more suspicious since Zubaydah’s health remains one of the chief reasons the WaPo’s sources give for stopping the taping.

By December 2002, the taping was no longer needed, according to three former intelligence officials. "Zubaida’s health was better, and he was providing information that we could check out," one said.

If the tapes were precipitated on Zubaydah’s health, then why didn’t they start until August, according to this latest iteration of the CIA story?

Interestingly, the article suggests another possible reason why the taping ended in December 2002: the departure of Cofer Black from the CIA.

… after the Sept. 11, 2001, terrorist attacks, [Jose Rodriguez] was promoted to deputy director of the fast-expanding counterterrorism center. He served under the center’s director then, J. Cofer Black, who had been his subordinate in the Latin America division.

When Black — who played a key role in setting up the secret prisons and instituting the interrogation policy — left the CIA in December 2002, Rodriguez took his place. Colleagues recall that even in the deputy’s slot, Rodriguez was aware of the videotaping of Zubaida, and that he later told several it was necessary so that experts, such as psychologists not present during interrogations, could view Zubaida’s physical reactions to questions.

Note that the taping started when Black was director of CTC, but ended when Rodriguez–the same guy who would eventually order their destruction–took over as director. And, at least according to Bennett’s statement for Rodriguez (which of course Rodriguez refused to give under oath), "the CIA" wanted to destroy the tapes as early as 2002, conveniently less than a month before the CIA IG investigation began.

But Rodriguez’ attorney said he acted in the belief that he was carrying out the agency’s stated intention for nearly three years. "Since 2002, the CIA wanted to destroy the tapes to protect the identity and lives of its officers and for other counterintelligence reasons," Bennett said in a written response to questions from The Washington Post.

Though I’m not sure I buy it, particularly given the squirrelly way they refer to the CIA IG investigation, which we know started before the CIA informed Congress that they were going to destroy the tapes.

An internal probe of the interrogations by the CIA’s inspector general began in early 2003 for reasons that have not been disclosed. In February of that year, then-CIA General Counsel Scott W. Muller told lawmakers that the agency planned to destroy the tapes after the completion of the investigation. That year, all waterboarding was halted; and at an undisclosed time, several of the inspector general’s deputies traveled to Bangkok to view the tapes, officials said. [my emphasis]

Pincus, don’t you think you could have pushed Bennett to ask Rodriguez why that IG investigation got started if you were going to do him the favor of helping to obstruct the investigation into the torture tape destruction? At least according to the IG, their investigation began in January, perhaps just weeks or even days after the claimed "December" intention to destroy the torture tapes. And not like it matters, but OIG says they saw the torture tapes in May.

The vagueness surrounding dates regarding the OIG investigation that are already (albeit just recently) in the public domain suggests that Pincus and Warrick didn’t talk to anyone in IG–presumably part of the anti-torture CIA faction–for their story. Which might be why this story makes absolutely no mention that the report concluded that the interrogations might be illegal.

Note to journalists covering this story: the one thing that can discredit you almost as much as printing up a witness’s statement that he refuses to give under oath in perfect timing to align testimony with another witness, it’s to ignore the CIA IG report and its conclusion that seems to be at the center of the decision to destroy the tapes. Just as an example, when you discuss the events surrounding the May 2004 discussion over whether to destroy the tapes or not, you might mention that the CIA IG had just concluded that the interrogation program might violate the law.

In May 2004, CIA operatives became concerned when a Washington Post article disclosed that the CIA had conducted its interrogations under a new, looser Bush administration definition of what legally constituted torture, several former CIA officials said. The disclosure sparked an internal Justice Department review of that definition and led to a suspension of the CIA’s harsh interrogation program.

The tapes were discussed with White House lawyers twice, according to a senior U.S. official. The first occasion was a meeting convened by Muller and senior lawyers of the White House and the Justice Department specifically to discuss their fate. The other discussion was described by one participant as "fleeting," when the existence of the tapes came up during a spring 2004 meeting to discuss the Abu Ghraib prison abuse scandal, the official said.

And while I’m not certain, I think that that May 2004 is actually the June 8, 2004 WaPo article revealing the contents of the Bybee memo–which wouldn’t have factored into the reported May briefing at the White House, but which would have alerted the CIA that people–probably within the CIA–were leaking the justifications for torture, presumably in an attempt to get the CIA out of the torture business.

Also, that claim that the White House was involved in discussions about destroying the tapes just twice? That’s impossible, given other details in the story. Given the description above, the discussions with the White House would have included the May 2004 briefing, and another one that happened before Scott Muller left in July 2004 (it was probably in February 2003, since I doubt CIA would tell Congress it was destroying tapes without first alerting the White House). But if that’s true, and those were the only two briefings the White House participated in, then this statement cannot also be true.

Those known to have counseled against the tapes’ destruction include John B. Bellinger III, while serving as the National Security Council’s top legal adviser; Harriet E. Miers, while serving as the top White House counsel; George J. Tenet, while serving as CIA director; Muller, while serving as the CIA’s general counsel; and John D. Negroponte, while serving as director of national intelligence. [my emphasis]

Harriet did not become White House Counsel until late 2004, after Muller had already left the CIA. So if she participated in discussions about the torture tapes as White House Counsel, then there was at least one more discussion involving the White House before the tapes were destroyed.

One final detail about the timeline presented in the WaPo story. Note how vague it is regarding precisely when the Thai station chief asked to destroy the videotapes.

In late 2005, the retiring CIA station chief in Bangkok sent a classified cable to his superiors in Langley asking if he could destroy videotapes recorded at a secret CIA prison in Thailand that in part portrayed intelligence officers using simulated drowning to extract information from suspected al-Qaeda members.

I find that particularly curious, since the next precipitating factor for the destruction of the tapes is the appointment of Porter Goss and the assumption, by John Rizzo, of the acting Counsel role, both events that happened in 2004.

The CIA had a new director and an acting general counsel, neither of whom sought to block the destruction of the tapes, according to agency officials. The station chief was insistent because he was retiring and wanted to resolve the matter before he left, the officials said. And in November 2005, a published report that detailed a secret CIA prison system provoked an international outcry.

Now, I suspect these details come from Jose Rodriguez (have I mentioned that he wouldn’t testify to these details under oath?) so who knows how reliable they are. The detail about Goss and Rizzo might be an attempt to throw blame their way, as this statement from appears to do as well.

"In 2003 the leadership of intelligence committees were told about the CIA’s intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover."

And the three factors Bennett lists for Rodriguez’ decision to finally order the tapes be destroyed obscure the congressional debate on torture, the multiple court orders and 9/11 Commission inquiries regarding torture tapes, and the ongoing leaks from the CIA anti-torture faction. All of which suggests the timeline–the entire timeline, with all its contradictions and vagueness–is suspect.

Today’s article from Joby Warrick and Walter Pincus answers a lot of questions we’ve been asking about the torture tapes–the biggest being that the tapes were stored and destroyed in Thailand. And it has a lot of interesting details I’ll return to in a follow-up post, after I enjoy some rare MI sun with my dog. But the most important detail readers should take away is its function, as suggested by the following two passages. First, the recognition that John Rizzo will testify before HPSCI today.

John A. Rizzo, the CIA’s acting general counsel, is scheduled to discuss the matter in a closed House intelligence committee hearing scheduled for today.

And second, the incorporation of long excerpts from a written statement from Bob Bennett to present Jose Rodriguez’ justifications for his actions.

Those three circumstances pushed the CIA’s then-director of clandestine operations, Jose A. Rodriguez Jr., to act against the earlier advice of at least five senior CIA and White House officials, who had counseled the agency since 2003 that the tapes should be preserved. Rodriguez consulted CIA lawyers and officials, who told him that he had the legal right to order the destruction. In his view, he received their implicit support to do so, according to his attorney, Robert S. Bennett.

[snip]

Rodriguez, whom the CIA honored with a medal in August for "Extraordinary Fidelity and Essential Service," declined requests for an interview. But his attorney said he acted in the belief that he was carrying out the agency’s stated intention for nearly three years. "Since 2002, the CIA wanted to destroy the tapes to protect the identity and lives of its officers and for other counterintelligence reasons," Bennett said in a written response to questions from The Washington Post.

"In 2003 the leadership of intelligence committees were told about the CIA’s intent to destroy the tapes. In 2005, CIA lawyers again advised the National Clandestine Service that they had the authority to destroy the tapes and it was legal to do so. It is unfortunate," Bennett continued, "that under the pressure of a Congressional and criminal investigation, history is now being revised, and some people are running for cover." [my emphasis]

Much as I love Walter Pincus and usually respect Joby Warrick’s work, this article is no better than the Steno Sue and Pool Boy article that appeared on the day Judy Miller testified, outlining in detail how Scooter Libby would like her testify. Pincus and Warrick allowed themselves to be used by Bennett (who, incidentally, was apparently leaking strategic bullshit to Pincus back in the Iran-Contra days, too–see Firewall, p. 422) to present his client’s perspective after that client refused to go before Congress and present that perspective under oath. The article basically allowed John Rizzo and Jose Rodriguez to coordinate the stories they’ll tell to Congress and John Durham, which may well have hurt the chances that either Congress or John Durham will be able to get to the truth about the terror tapes.

Jeebus, Pincus. Congress, thus far, appears to have learned the lesson of Iran-Contra, not to taint criminal investigations by offering immunity willy-nilly. But here you are, more than fifteen years later, doing Bob Bennett’s dirty work once again.

A number of you sent me the AP article reporting that the White House will have to ‘fess up to whether or not the millions of missing emails are on the back-up tapes.

A federal magistrate ordered the White House on Tuesday to reveal whether copies of possibly millions of missing e-mails are stored on computer backup tapes.

[snip]

Facciola gave the White House five business days to report whether computer backup tapes contain e-mails written between 2003 and 2005.

But the actual order is more interesting than that. Here’s what Facciola ordered:

With that understanding, the court will order the defendants to provide answers to the following questions:

1. Are the back-ups catalogued, labeled or otherwise identified to indicate the period of time they cover?

2. Are the back-ups catalogued, labeled or otherwise identified to indicate the data contained therein?

3. Do the back-ups contain emails written and received between 2003-2005?

4. Do the back-ups contain the emails said to be missing that are the subject of this lawsuit?

See, I’m guessing the answer to the more general question–whether the missing emails are on the backup tapes–will be "no." But consider what it would mean if the four questions are answered as follows:

1. Yes, the back-ups are labeled to indicate the period of time they cover.

2. Yes, the back-ups are labeled to identify the data contained there-in.

3. Yes, the back-ups contain e-mail written between 2003 and 2005.

4. No, the back-ups do not contain the emails that are the subject of this lawsuit.

I’m really not sure of number 2 [see the update below for smarter speculation]–or, for that matter, any of my suggested answers. But I think it quite likely the White House will respond (or not respond) in the next 5 days to say that, yes, they know what are on the tapes, but no, most of the missing emails are not on there.

I say that for two reasons. First, review this speculative piece I wrote about when Fitzgerald got particular emails (you know, incriminating ones from Rove to Hadley) during his Plame investigation. I speculated then that Fitzgerald was suspicious about the dearth of emails at least as early as March 2004 (he asked Libby about it), didn’t get the Rove-Hadley email until October 2004 (when Rove explained why he forgot but then remembered talking to Cooper), but didn’t start pursuing the missing emails aggressively until October 2005 (which is precisely when the Office of Administration "discovered" there were a bunch of emails missing). Then, in January 20006, Fitzgerald told Libby’s lawyers that,

In an abundance of caution, we advise you that we have learned that not all email of the Office of Vice President and Office of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.

But he didn’t have the emails yet, not until February 6. So in spite of the fact that (via whatever means) Office of Administration "discovered" in October 2005 that they hadn’t been archiving email properly, they hadn’t gotten Fitzgerald the missing email until January to February 2006, three months later.

So they certainly weren’t able to waltz down to the basement and find the backup tape to reconstruct Rove’s (and Libby’s) missing emails–at least not very easily.

But then there’s this bit, from Gold Bars Luskin (the CNN link on which this was based is dead, but here’s a similar Luskin statement).

The prosecutor probing the Valerie Plame spy case saw and copied all of Rove’s e-mails from his various accounts after searching Rove’s laptop, his home computer, and the handheld computer devices he used for both the White House and Republican National Committee, Luskin said.

The prosecutor, Patrick Fitzgerald, subpoenaed the e-mails from the White House, the RNC and Bush’s re-election campaign, he added.

[snip]

Rove voluntarily allowed investigators in the Plame case to review his laptop and copy the entire hard drive, from which investigators could have recovered even deleted e-mails, Luskin said.

As the investigation was winding down, Luskin said, prosecutors came to his office and reviewed all the documents — including e-mails — he had collected to be sure both sides a complete set.

Now what’s unclear is whether Fitzgerald found any additional emails doing all those hard drive scans, or whether the Office of Administration was able to reconstruct them all themselves (though Jeffress said that Office of Administration is the entity which discovered the OVP emails, at least–does that mean they used a backup tape??). But it seems clear that it was no easy task in October 2005 to just go find emails missing from Rove’s and OVP’s document production.

Which suggests that 1) Office of Administration knows what they’ve got, and 2) at least in 2005, the missing emails weren’t immediately accessible.

Again, the stuff related to Fitzgerald’s investigation is all speculative. But it might suggest that OA is going to have to come back, just in time for the hearing on the destroyed torture tape on January 16, and explain that they do have backup tapes, but that the missing emails are remarkably missing from the backup tapes, too.

In any case, we should know a good deal more in just five days, unless BushCo tells yet another Federal Judge to go fuck himself.

Update: MadDog, who knows a thing or two about computers, says the backup tapes would most likely not be labeled (that is 1 and 2 would be "no").

Based upon my techie experiences, no, the backups are not “catalogued, labeled or otherwise identified to indicate the data contained therein.”

Backups are typically only identified by the date and the system backed up. Content would be unknown other than something as generic as “WH system emails” or “OVP My Document folders”.

The only way that content would be identified would be if someone personally examined each backed-up record or constructed a software program to scan for certain keywords (kinda like how one would imagine the NSA would scan for stuff on all the databases that were warrantlessly eavesdropped upon).

Which brings one to the real hot fact: If someone in the WH is claiming that specific stuff is missing (i.e. Rove’s Abramoff involvement, various parties including Rove’s involvement in Valerie Plame Wilson’s betrayal, etc.), then be sure that they have done that scanning to arrive at that position.

You can’t have that kind of specificity without having done the dirty work to find out just what is on the backups.

And here’s William Ockham, who also knows a thing or two about computers:

The answers to 1 and 2 should be straightforward. The answer to 3 will be interesting. I would expect by this time the answer to 4 would be some of them.

Btw, the WH has spent some money this year on consultants who should have been able to help them.

Thanks to both MD and WO.

The Chief Judge in Boston just sent Michael Mukasey a letter suggesting DOJ’s process for investigating and responding to misconduct from government prosecutors isn’t working.

The chief federal judge in Boston has urged the new US attorney general to crack down on prosecutors who commit misconduct and to force Justice Department lawyers to be truthful in court.

Chief Judge Mark L. Wolf, in an extraordinary letter to Attorney General Michael B. Mukasey, skewered the Justice Department’s mild and secret discipline of Assistant US Attorney Jeffrey Auerhahn in 2006 for misconduct that Wolf said required him to order the "release from prison of a capo and associate of the Patriarca family of La Cosa Nostra."

After a closed disciplinary hearing, US Attorney Michael J. Sullivan gave Auerhahn a letter of reprimand for withholding evidence while handling a racketeering case in the 1990s against members of the New England Mafia.

"The [Justice] Department’s performance in the Auerhahn matter raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors," wrote Wolf, who last July, after expressing frustration with his punishment, took the unusual step of asking the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against Auerhahn.

Wolf also wrote that "the department’s failure to be candid and consistent with the court has become disturbingly common in the District of Massachusetts."

[snip]

Wolf wrote Mukasey that he hoped the Justice Department "will soon again discharge its duties in a manner that commands the trust of federal judges and the people of the United States." [my emphasis]

The rebuke is interesting not for the details surrounding Auerhahn’s misconduct (though I am concerned that Auerhahn has been assigned to the antiterrorism unit, since terrorism prosecutions are already prone to misconduct in Bush’s post-9/11 nightmare), but for the way it relates to several other recent events:

• DOJ Inspector General Glenn Fine has argued to Congress that DOJ’s continued use of the Office of Professional Responsibility to investigate legal wrong-doing subjects lacks transparency and exposes such investigations to political influence
• OPR has a number of important ongoing investigations–including the investigation of whether OLC violated legal ethics in its advice regarding Bush’s illegal wiretap program
• In developments that seem to be associated with the torture tape destruction, DOJ recently got caught lying to Leonie Brinkema in the Moussaoui case

In other words, Judge Wolf is not the only one who believes the government is acting improperly. And the suggestion that OPR is not doing its job to punish legal wrong-doing ought to raise real concerns about OPR’s more high-profile investigations.

And, just to pre-empt Looseheadprop’s mention of this, here are some pertinent words from James Comey’s farewell speech (which, incidentally, DOJ appears to have moved or taken off their website [Update: Thanks to MadDog for finding a copy).

Fifth, and last, I expect that you will appreciate and protect an amazing gift you have received as an employee of the Department of Justice. It is a gift you may not notice until the first time you stand up and identify yourself as an employee of the Department of Justice and say something – whether in a courtroom, a conference room, or a cocktail party – and find that total strangers believe what you say next.

• That gift – the gift that makes possible so much of the good we accomplish – is a reservoir of trust and credibility, a reservoir built for us, and filled for us, by those who went before – most of whom we never knew. They were people who made sacrifices and kept promises to build that reservoir of trust.
• Our obligation – as the recipients of that great gift – is to protect that reservoir, to pass it to those who follow, those who may never know us, as full as we got it.
• The problem with reservoirs is that it takes tremendous time and effort to fill them, but one hole in a dam can drain them. The protection of that reservoir requires vigilance, an unerring commitment to truth, and a recognition that the actions of one may affect the priceless gift that benefits all.

It looks like Judge Wolf believes DOJ has sprung a hole in that dam. And I doubt he’s the only one who thinks so.