Scottish Haggis Lives Up to the Name, Backs Holder

Say, are you the least bit surprised that Arlen "Scottish Haggis" Specter has lived up to his name? As in "offal" and "sheep"? Once again? (h/t BSL)

 After making a huge fuss questioning the independence of Eric Holder, Specter just caved and said he’ll support the attorney general nominee.

"I can say with some confidence that there won’t be a successful filibuster," Specter told reporters at a press conference gathered to share his thoughts on Holder in advance of tomorrow’s Judiciary panel vote on the nominee.

Specter added that the strong recommendations Holder received from former FBI director Louis Freeh and former DoJ No. 2 James Comey were influential in swaying his vote.

"At no time did I challenge Mr. Holder’s integrity," the Pennsylvania senator concluded. (But he sure came close, according to Holder himself.) "It was a question of judgment."

Speaking of judgment, Holder also has resolved — to Specter’s satisfaction, at least — the GOP demand that he promise not to prosecute Bush administration intelligence officials who engaged in brutal interrogations at Guantanamo Bay and elsewhere.

"The gist of" Holder’s stance on the issue, Specter told me, "is that if you have an authoritative legal opinion, that’s a defense in terms of mens rea, of intent. That’s a broad generalization. I don’t think you can go any further than that until you examine the specific facts of a case."]

So the kabuki is off, as of tomorrow.

Well, that was nice. NOW can we get back to the business of governing again, little GOP boys?

FISA: Grill the Executives

Threat Level has posted an intriguing interview with Russell Tice from 2006. Tice provides a better idea of how some of the sorting might have happened.

Tice: Say you’re pretty sure you’re looking for terrorists, and you’re pretty sure that the percentage of women terrorists as opposed to men is pretty [small]. So you just filter out all female voices. And there’s a way to determine whether the signature of the voice is male or female. So, boom, you get rid of 50 percent of your information just by filtering there. Then from your intelligence work you realize that most terrorists never talk more than two minutes. So any conversation more than two minutes, you immediately filter that out. You start winnowing down what you’re looking for.

Q: Without really knowing what it is you’re looking for?

Tice: Right. And if you can develop a machine to look for the needle in the haystack and what you come out with from having the machine sift through the haystack is a box of straw, where maybe the needle’s in there and maybe a few bonus needles, then that’s a whole lot better than having humans try to sift through a haystack.

Sounds like a pretty easy system for determined terrorists to game.

The main point of the Threat Level post, though, is that 1) this involved more than just telecom (and email) providers. It also included our banks and whatnot, and 2) since former participants in this sytem will always invoke executive privilege (and state secrets) the only way to figure out what happened would be to subpoena the CEOs of the companies to testify.

I spoke with Tice extensively in the spring of 2006. With Bush still in power, the whistleblower was considerably more taciturn than on television last week. But looking back through the transcript of my interviews now, in the context of his new revelations, it seems clear that Tice was saying that credit card companies and banks gave the same kind of cooperation to the government that phone companies did.

"To get at what’s really going on here, the CEOs of these telecom companies, and also of the banking and credit card companies, and any other company where you have big databases, those are the people you have to haul in to Congress and tell them you better tell the truth," he said at the time. "Because anyone Read more

Powerline Blog Leads SJC’s Republicans Trolling through Parks, Public-Assistance Agencies, and Liquor Stores


William Ockham points to a new report on Rove and Bolten’s refusal to appear before the Senate Judiciary Committee to testify about the firing of nine US Attorneys. The report itself mostly repeats old arguments, integrated with the results of the DOJ Inspector General’s report on the firing.

Which means that the purpose of the report is more interesting–to me at least–than the content. The report basically advances the Senate case against Bolten and Rove, after the House’s attempts to get Bolten and Miers and, arguably, Rove to testify were thwarted by the Appeals Court’s stay on the House lawsuit. Since the House expires at the end of their term, their suit against the White House also expires. But the Senate doesn’t. In other words, I believe this report  lays the ground work for continuing the battle in January. Rove may not be out of the woods yet, for having to testify about his wrong-doing on the US Attorney purge.

That said, I’m just as interested in the Republican response to Leahy’s move, though.

Senators Arlen "Scottish Haggis" Specter and Chuck Grassley have decided that–though they originally voted to hold Bolten and Rove in contempt–they don’t want to be a part of this report moving forward.

Although we supported the Committee’s efforts in the U.S. Attorney removal investigation, including the contempt resolutions voted upon last year, we cannot join the Majority in this Report. We both voted in favor of the contempt resolutions regarding Messrs. Bolten and Rove after staff and Member consultation produced resolution text that: (1) had bipartisan support; (2) identified every fact and element necessary to charge contempt of Congress under 2 U.S.C. § 194; (3) was consistent with Committee precedent; (4) contained no surplussage that could arguably jeopardize or undermine the enforceability of the Committee’s action; and (5) was fair to the due process rights of the prospective contempt defendants. However, so much time has passed that the matter is now somewhere between moot and meaningless. Had there been any intention to pursue Senate action, these procedural steps would have been taken soon after the resolutions of contempt were approved. The filing of this report—fourteen months after Attorney General Gonzales resigned, eleven months after the contempt resolutions were approved and a mere two months before a new administration takes office—will likely prove superfluous.

Did they see enough in the DOJ Inspector General’s report to get worried about where this is leading? Read more

The Attorney General Thinks It’s Okay for the Vice President to Have Ordered the Outing of a Spy

Now we know why Attorney General Mukasey is willing to write such ridiculous letters in the service of hiding Vice President Cheney’s role in the outing of CIA spy: he apparently thinks it’s no big deal that the Vice President ordered the outing of a CIA spy.

At least that’s the implication of this exchange between Mukasey and Arlen "Scottish Haggis" Specter (34:00 to 36:01):

Specter: Moving to reporters privilege in the limited time left. Attorney General Mukasey what was the justification for keeping reporter Judith Stern [sic] in jail for 85 days when the source of the leak was known to be Deputy Attorney General [sic] Richard Armitage?

Mukasey: As you know I was not on duty when that case came to the fore, and it’s my own view that that case may very well be a better argument against the Special Counsel than it is in favor of legislation of the sort that’s been proposed.

Specter: I’m not prepared to deal with the Special Counsel because he’s not here. If I had Senator Leahy’s gavel, I would have brought him in here a while ago, once the case was finished. But it’s very germane in evaluating public policy on whether the Department of Justice ought to have the authority to issue a subpoena in the context and move for a contempt citation and hold a reporter [sic] in jail under very unpleasant circumstances. I can attest to that first hand–I went to visit her.

Mukasey: There’s no such thing as jail under pleasant circumstances. It is an inherent contradiction. It is something that therefore we use as a last resort, and we’re gonna continue to use as a last resort.

Specter: Well, why’d you need a resort when you know the leak? When you know who the leaker is, why go after a reporter or keep her in jail?

Mukasey: As I said, that was not…

Specter: I know that would be better addressed to the Special Counsel.

Mukasey: It would.

Specter: Someday we may have an opportunity to do that. But right now, you’re the one we’ve got, Attorney General Mukasey. You’re the guy who’s pushing a policy. So I think it’s a fair question to say to you, why maintain a policy that gives whoever the prosecutor is the power to do that when you know who the leaker is.

Mukasey: We don’t give that power to a prosecutor, for precisely that reason. Read more

Omnibus Liveblog

Two things going on today: the FISA debate, viewable on CSPAN2, and an oversight hearing, on CSPAN3 or the Committee feed.

And I’m gonna do my best to cover them both (that is, until Christy can pick up one of them).

Here’s the UC for today on the FISA debate–final votes will be around 11:30.

On Wednesday, July 9, 2008, after the Senate convenes at 9:30am, it will resume consideration of the FISA Amendments Act of 2008 (H.R. 6304). There will be one hour and forty-five minutes of debate, with 30 minutes under the control of Senator Feingold; 15 minutes under the control of Senator Dodd; 10 minutes under the control of Senator Bingaman; 10 minutes under the control of Senator Leahy; 10 minutes under the control of the Majority Leader; and 30 under the control of the Republican Leader or his designee.

Upon the use or yielding back of this time, the Senate will proceed to roll-call votes in relation to the pending amendments. Upon disposition of these amendments, the Senate will proceed to a roll -call vote on the motion to invoke cloture on H.R. 6304, as amended if amended.

If cloture is invoked on H.R. 6304, all post-cloture time will be yielded back, and the Senate will proceed to a roll-call vote on passage of H.R. 6304, as amended if amended.

Right now, Leahy is talking at SJC about how this Administration is more politicized than Watergate. And Mitch McConnell is speaking on the Senate floor–so I’ll stick with Leahy for now.

Leahy is reminding Mukasey that he promised to review the OLC opinions. "We look forward to obtaining these memos. We look forward to learning which aspects of the OLC memos have been modified or withdrawn by AG."

Specter (in SJC) talks about FISA as an unchecked expansion of executive authority.

Specter discussing attorney-client privilege–has a bill pending on this. He’s complaining about corporations being asked to waive privilege. (Apparently, he’s okay with the DOJ practice of spying on defense attorneys for people accused of terrorism.)

Now Specter complaining that Judy Miller went to jail when Richard Armitage was the source of the leaks. Apparently he just slept through all the dark clouds hanging over Cheney’s head.

A leak in the investigation of Curt Weldon. A very distinguished Congressman, led directly to his defeat. Never mind that he’s now an arms dealer.

Read more

FISA Liveblog: Kit “I think red ties look great with pink shirts” Bond

CSPAN’s stream is being a bit cranky, but I’ve got Kit Bond on the old style teevee, and boy I’m not a fashion maven, but I wouldn’t wear a red tie with a pink shirt.

Boy, Kit Bond must be really tired of having to manage a debate against the very much smarter Russ Feingold. He just tried to refute Feingold’s point that 70 people shouldn’t vote for immunity when they don’t know what they’re voting immunity for. He said, "that’s okay, that’s why SSCI is there." Ah, but Mr. Red Tie, if SSCI can’t award immunity on their own (as if Congress can, but nevermind), then I guess it’s not enough, huh?

Bond just said Judge Walker’s opinion doesn’t stand up.

Shorter Kit "Mr. Red Tie": I realize a judge has said Cheney’s whole notion of inherent authority is bunk. But I disagree. And while I’m happy to let Article II boss me around, I’ll be damned if I let Article III boss me around.

Kit Bond: IGs will not determine whether the illegal program was legal or not.

House and Senate Intelligence Committees are all the oversight you need, little boys and girls. Never mind the Courts!

Specter: A member’s constitutional duty cannot be delegated to another member. The full body has to act. The question for the Senator with the red tie is, how can 70 members of the US Senate expect to grant retroactive immunity in light of the clear cut rule that we cannot delegate our Constitutional responsibilities.

[Is this the day Haggis returns to US law?!?!?!?!]

Bond: well, SSCI predates me.

Specter: Uh, yeah, I know. I used to chair it, remember?

Specter: SSCI hasn’t even all been briefed on the stuff they’re supposed to be briefed on. Judge Walker with his 56 page opinion that bears on the telephone case. Have the telecoms had problems with their reputation? Perhaps. They can recover from that.

Specter: Does the Senator from Missora know of any case involving constitutional rights where Congress has stepped in and taken it away from the Courts where there’s no other way of getting a judgment on the constitutionality of it?

Mr. Red Tie: What Specter fails to understand, it’s not a question of carriers being held liable, what they would do is disclose the most secretive methods used by our intelligence community. Read more

But … But … What about Oversight?

"Scottish Haggis" Specter, letting his better judgment get the better of him, has decided he has better things to do with his time.

Sen. Arlen Specter said he won’t call for congressional hearings on the NFL’s investigation of the Spygate scandal after previously threatening to do so.

Specter’s office confirmed Tuesday his comments a day earlier to the Philadelphia Daily News editorial board, in which he said "I’ve gone as far as I can" with his office’s investigation of the matter. Specter, the ranking Republican on the Judiciary Committee, had written in a Senate floor statement earlier this month that "I believe the NFL should step forward and embrace an independent inquiry."


"I haven’t pulled back. There’s not much more I can do at this point," the senator said Monday, according to his office. "We’ve exposed a lot. … But the public attention span is so limited. I’m not going to call for hearings because the mood is not right and we’ve got too many other bigger problems to deal with."

No mention of whether those "bigger problems" have to do with the government’s spying on Americans, rather than Bill Belichick’s spying on the Eagles or not.

Arlen “Scottish Haggis” Specter Enumerates Bush’s Law-Breaking

(Thanks to Selise for the YouTube)

Yesterday, Scottish Haggis went even further than he did the other day the other day in asserting that Bush broke the law when he instituted his illegal wiretapping program. He asserted flatly that Bush had violated two statutes (FISA and the National Security Act).

I believe it is vital that the courts remain open. I say that because on our delicate constitutional balance of separation of powers, the Congress has been totally ineffective on oversight and on restraining the expansion of executive authority. But the courts have the capacity, the will, and the effectiveness to maintain a balance.

But we find that the President has asserted his constitutional authority under article II to disregard statutes, the law of the land passed by Congress and signed by the President.

I start with the Foreign Intelligence Surveillance Act, which provides that the only way to wiretap is to have a court order. The Executive Branch initiated the Terrorist Surveillance Program in flat violation of that statute. Now, the President argues that he has constitutional authority which supersedes the statute. And if he does, the statute cannot modify the Constitution. Only a constitutional amendment can. But that program, initiated in 2001, is still being litigated in the courts. So we do not know on the balancing test whether the Executive has the asserted constitutional authority.

But if you foreclose a judicial decision, the courts are cut off. Then the executive branch has violated the National Security Act of 1947, which mandates that the Intelligence Committees of both the House and the Senate be informed of matters like the Terrorist Surveillance Program. I served as chairman of the Judiciary Committee in the 109th Congress. The chairman and the ranking member, under protocol and practice, ought to be notified about a program like that. But I was surprised to read about it in the newspapers one day, on the final day of argument on the PATRIOT Act Re-authorization. It was a long time, with a lot of pressure–really to get the confirmation of General Hayden as CIA Director–before the executive branch finally complied with the statute to notify the full Intelligence Committees.

Read more

SJC Mukasey Hearing, Part Three

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. Read more

SJC Mukasey Hearing

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


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."


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.] Read more