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DOJ Lies about Its FOIA Lies

Patrick Leahy just released a letter DOJ sent him and Chuck Grassley regarding DOJ’s effort to formalize their practice of lying in response to some FOIA requests. Now, Leahy claims the government has withdrawn its proposed rule–which I think overstates what DOJ has done.

I commend Attorney General Holder and the Obama administration for promptly withdrawing the Department’s proposed rule on the treatment of requests for sensitive law enforcement records under the Freedom of Information Act.  For five decades, the Freedom of Information Act has given life to the American value that in an open society, it is essential to carefully balance the public’s right to know and government’s need to keep some information secret.  The Justice Department’s decision to withdraw this proposal acknowledges and honors that careful balance, and will help ensure that the American people have confidence in the process for seeking information from their government. [my emphasis]

While the letter does say,

We believe that Section 16.6(f)(2) of the proposed regulations falls short by those measures [I think this refers to DOJ’s promise of transparency, but it’s not entirely clear], and we will not include that provision when the Department issues final regulations.

It also speaks conditionally of making changes to the practice itself.

Having now received a number of comments on the Department’s proposed regulations in this area, the Department is actively considering those comments and is reexamining whether there are other approaches to applying exclusions that protect the vital law enforcement and national security concerns that motivated Congress to exclude certain records from the FOIA and do so in the most transparent manner possible.

[snip]

That reopened comment period has recently concluded, and the Department is now in the process of reviewing those submissions. We are also taking a fresh look internally to see if there are other options available to implement Section 552(e)’s requirements in a manner that preserves the integrity of the sensitive law enforcement records at stake while preserving our continued commitment to being as transparent about that process as possible. [my emphasis]

In other words, DOJ has only committed to taking the language about exclusions out of the rule, not to changing the practice on exclusions it has followed for 20 years. It’s only going to make a change in the practice if it can find some new practice that works as well.

And there’s reason to doubt DOJ’s overall good faith with this letter. That’s because they claim their approach to exclusions “never involved ‘lying’.”

While the approach has never involved “lying,” as some have suggested, the Department believes that past practice could be made more transparent.

That’s an out and out “lie” (I’m guessing that DOJ thinks those scare quotes make “lie” mean something other than what we think it means). As Judge Cormac Carney laid out in his ruling on this practice, the government “lied” to him about what FBI documents existed on CAIR.

The Government previously provided false and misleading information to the Court. The Government represented to the Court in pleadings, declarations, and briefs that it had searched its databases and found only a limited number of documents responsive to Plaintiffs’ FOIA request and that a significant amount of information within those documents was outside the scope of Plaintiffs’ FOIA request. The Government’s representations were then, and remain today, blatantly false. As the Government’s in camera submission makes clear, the Government located a significant number of documents that were responsive to Plaintiffs’ FOIA request. Virtually all of the information within those documents is inside the scope of Plaintiffs’ FOIA request. The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.

And the letter’s claim that this process “never” involved “lying” is all the more suspect given that DOJ tells a “lie” in this letter. It says,

These practices laid out in Attorney General Meese’s memo have governed Department practice for more than 20 years.

But Meese’s memo envisioned judicial review.

Accordingly, it shall be the government’s standard litigation policy in the defense of FOIA lawsuits that wherever a FOIA plaintiff raises a distinct claim regarding the suspected use of an exclusion, the government routinely will submit an in camera declaration addressing that claim, one way or the other. Where an exclusion was in fact employed, the correctness of that action will be justified to the court. Where an exclusion was not in fact employed, the in camera declaration will simply state that fact, together with an explanation to the judge of why the very act of its submission and consideration by the court was necessary to mask whether that is or is not the case. [my emphasis]

DOJ, by “lying” to Carney (and probably a slew of other judges over the years) evaded any judicial review of its use of exclusions. DOJ was actually going beyond what even corrupt old Ed Meese laid out!

And then, if there were any doubt of DOJ’s bad faith here, there’s this:

As you know, the initial comment period on these regulations closed earlier this year, with no public comment on the provisions in question. As a result, however, of this Administration’s commitment to openness, the Department reopened the comment period on these regulations precisely so that it could receive additional input.

The reason they got no comments in the first period, of course, is that they snuck through the rule just before Carney would make his ruling public.

March 21, 2011: Government first issues its rule on lying in FOIA

March 30, 2011: The 9th rules that Carney may only release a redacted version of his opinion

April 20, 2011: Original end of comment period for rule

April 27, 2011: Carney releases his redacted opinion, including a link to the Ed Meese memo on which the government relied

That is, they only opened the second comment period because they got caught pulling a fast one, trying to push through the rule before the risks behind the rule became apparent.

Which is probably what they’re doing here.

Of course they have to change the rule now. That’s because every denial must now be assumed to be a “lie” which can only be exposed by litigating the issue. The rule is going to lead to a lot more FOIA lawsuits.

So in addition to assuming that they’re “lying” in response to FOIA requests, it’s probably safe to assume they’re misleading with their suggestion that because they’re going to take this practice out of their rule, they’re ending the practice.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

SJC to Consider Re-Confirmation of Guy Who Let Major Domestic Terror Attack Go Unsolved

At 10, the Senate Judiciary Committee will consider the extension of Robert Mueller’s term at FBI by two more years. You’ll no doubt hear Ranking Member Chuck Grassley make all sorts of complaints about FBI in his wonderful grouchy Iowa voice. You’ll hear Jim Comey recount the dramatic hospital confrontation from 2004.

But you’re unlikely to hear Chairman Patrick Leahy ask Mueller why he has let Leahy’s own attempted murder in the 2001 anthrax attack go unsolved.

Oh sure, the FBI claimed they had solved the anthrax attack last year when they closed the investigation. But as I first reported in 2008, Leahy doesn’t (or at least didn’t) believe that accused anthrax killer Bruce Ivins acted alone.

The FBI’s case against Ivins started eroding right after his death, as Ivins’ own will made it clear that the motive the FBI had attributed to him made no sense. Then it became more and more clear that FBI claims about the record and anthrax keeping standards at USAMRIID were overly optimistic, meaning their assertion that Ivins had control of a flask of anthrax couldn’t be trusted. But the real blow for the FBI’s claims about the anthrax came after–having spent three years waving the shiny object of the cool science they used to “solve” the case–the National Academy of Science poked a bunch more holes in their case. Not only were the FBI’s claims about Ivins’ flask not as certain as the FBI claimed they were, but the FBI had never answered lingering problems about the chemicals involved in the anthrax, which made the FBI’s failure to talk about how Ivins could have made the anthrax all the more problematic, not to mention made one of FBI’s most compelling pieces of evidence against Ivins–his time in his lab–meaningless.

Pretty much what the FBI is left with are a few suspicious incidents and Ivins’ weird obsession about a probably unrelated sorority, which a bunch of self-interested shrinks have helpfully sensationalized.

And the failure to really solve the anthrax case comes on top of the earlier failure in targeting Steven Hatfill for several years.

Now, I wouldn’t necessarily hold the FBI’s failure to solve the most serious terrorist attack in the US since 9/11 against Mueller–it is a tougher case to solve, after all, than 9/11 itself.

But rather than allow Congressional overseers to examine the FBI’s work to both see what went wrong and what leads they may have ignored, Mueller has been refusing such oversight. He (and the FBI generally) have stonewalled and lied when members of Congress asked questions about the weak points in the FBI case against Ivins. More galling still, to me, is that he out and out lied to Chuck Grassley in 2009, telling Grassley that an independent review of the investigation would be detrimental to ongoing litigation. What Mueller didn’t tell Grassley is that he had already secretly engaged the Shrinks-4-Hire to do their own purportedly independent review of the investigation, a report apparently designed to rebut the obvious weaknesses the NAS would find.

Mueller was fine to do an “independent” review, apparently, so long as the FBI could game the outcome.

Mind you, Mueller’s refusal to accept any real oversight on this case has been assisted by President Obama, who used a veto threat to discourage a true congressional inquiry.

In short, under Mueller’s leadership, the FBI badly fucked up the anthrax investigation. And rather than review why the FBI fucked up so badly, Mueller has been obfuscating to prevent any real review of the that fuck up.

Mueller’s single biggest job as FBI Director in the last decade has been to make sure the FBI is able to investigate terrorism. And yet his FBI has badly screwed up the second biggest terrorist attack in the US–and he doesn’t think Congress should know why.

And yet SJC will no doubt vote to reconfirm Robert Mueller for another two years today.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Terrorist Sympathizers Grassley Doesn’t Mention: Chiquita

Predictably, Politico piles onto the latest installment of the McCarthyist attacks on DOJ, largely repeating the attack as made by Dana Perino and Bill Burck. The one thing it does add is some discussion of what Eric Holder should have disclosed at his confirmation hearings last year.

Holder didn’t mention the brief during his confirmation hearings to be Attorney General, even though the Senate Judiciary Committee questionnaire required him to list all Supreme Court amicus briefs he was party to. His questionnaire lists briefs in only three cases: Miller-El v. Cockrell, Johnson v. Bush and D.C. and Fenty v. Heller.

A Justice Department spokesman, Matthew Miller, said “the brief should have been disclosed,” but had been “ unfortunately and inadvertently” left out in the documents submitted to the committee.

“ In any event,” he said, “ the Attorney General has publicly discussed his positions on detention policy on many occasions, including at his confirmation hearings.

Justice Department officials also didn’t mention the briefs in the letter they sent to Sen. Chuck Grassley (R-Iowa) informing Congress that nine of the department’s political appointees either “represented detainees [or] … either contributed to amicus briefs in detainee-related cases or were otherwise involved in advocacy on behalf of detainees.”

Now, I agree that Holder should have disclosed all this.

But I’m also interested in the tizzy surrounding whether Holder should have disclosed himself in response the questions Chuck Grassley posed on terrorist sympathizers at DOJ. Granted, originally asked were definitely targeted toward creating this witchhunt–that is, to detainees at Gitmo, rather than to the representation of terrorists and their affiliates generally.

But if we’re going to discuss Holder’s “biases,” shouldn’t we start with Holder’s representation of Chiquita, and particularly his success at getting several white Republican men off of charges that they knowing supported right wing Colombian terrorists? Particularly given the way Bush’s DOJ facilitated that process?

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Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Lindsey Graham: For McCarthyism before He Was Against It

Zachary Roth raises a really important point about Lindsey Graham (aka Rahm’s Attorney General). Though in recent days Graham has come out against Liz Cheney’s McCarthyism, he was one of the Republicans who started this whole witch hunt last November by signing a letter (authored by Chuck Grassley) asking for a details on those who had defended detainees in the past:

To better understand the scope of these apparent conflicts of interest, Senator Grassley asked for the following information:(1) The names of political appointees in the Department who represented detainees, worked for organizations advocating on behalf of detainees, or worked for organizations advocating on terrorism or detainee policy; (2) The cases or projects that these appointees worked on with respect to detainees prior to joining the Justice Department; (3) The cases or projects relating to detainees that they have worked on since joining the Justice Department; and (4) A list of all political appointees who have been instructed to, or have voluntarily recused themselves from working on specific detainee cases, projects, or matters pending before the courts or at the Justice Department.

Unfortunately, your response to Senator Grassley’s request was less than encouraging as you repeatedly stated you would merely “consider” the request. It is imperative that the Committee have this information so we can assure the American people that the Department is in fact formulating terrorism and detainee policy without bias or preconceived beliefs.

In addition to the information requested at the hearing, we ask that you also provide responses to the following related questions:

(1) Have any ethics waivers been granted to individuals working on terrorism or detainee issues pursuant to President Obama’s Executive Order dated January 21, 2009, titled “Ethical Considerations for Executive Branch Employees?” (2) What are the Department’s criteria for recusing an individual who previously lobbied on detainee issues, represented specific detainees, worked on terrorism or detainee policy for advocacy groups, or formulated terrorism or detainee policy? (3) What is the scope of recusal for each of the political appointees who have recused themselves from working on specific detainee cases, projects, or matters? (e.g. is an individual who previously represented a detainee recused only from matters related to that individual or from other detainees?) Please provide a detailed listing of the scope of each recusal.

Now, Zach says Graham’s office has not yet responded to his inquiry for clarification on this issue.

But Zach, like me, seems to think this is a significant issue given that Graham is apparently being treated like a good faith partner on efforts to close Gitmo. Are we really going to compromise on Constitutional issues with Graham, when in six months time he could be back scaremongering with the McCarthyites again?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Hey Specter, How’s Your Persuasion of Grassley Coming Along?

photo.thumbnail.jpgIn my recap of Netroots Nation, I forgot to mention that I was the asshole first swinging a cell phone around, asking Arlen "Scrapple" Specter to call Chuck Grassley from the stage to try to convince him to stop claiming the death panels he once voted for are death panels.

Specter did try Grassley backstage, but didn’t get him. And then he and Grassley had a twitter exchange, one on which Grassley has followed up on twice now

Distortion of end-of-life debate is atempt 2avoid debate:govt takovr,xplodin deficit,cost of Pelosi bill Focus shld b viabl nonGovt plan

Sounds like Grassley doesn’t want to talk about his fear-mongering on death panels, now that he has been outed as supporting it in the past. And of course, Grassley wants to find a way to oppose a real bill even if he supports it. His job is about obstruction, and nothing but obstruction, at this point.

Meanwhile, Specter hasn’t provided an update on his promises to persuade Grassley to be less obstructionist since Friday at 5:01 PM.

I will try to persuade Senator Grassley that the availability of counseling is appropriate and should be included in health care reform.

So, how about it, Specter? You told us that one of the reasons we should support you to be elected a Democratic Senator from PA was because you would be able to persuade your Republican colleagues.

Are you conceding defeat?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Senate Stimulus: Steal from the Poor to Give to the Affluent

ProPublica has done a comparison of the House and Senate stimulus packages. It shows, in striking fashion, how much the Grassley-Isakson-Coburn-Collins-Bad Nelson bill skews spending away from the poor–the most stimulative kind of spending, since these people need this money badly and would spend it right away–to the upper middle class:

Aid to Low-Income Families Total $124,186,000,000 $97,230,900,000 ▼$26,955,100,000
Health insurance aid   $2,272,000,000 ▲$2,272,000,000
Unemployment benefits $36,000,000,000 $39,490,000,000 ▲$3,490,000,000
COBRA healthcare for unemployed $30,300,000,000 $20,000,000,000 ▼$10,300,000,000
Hunger programs $21,176,000,000 $17,100,000,000 ▼$4,076,000,000
Housing $13,510,000,000 $8,600,000,000 ▼$4,910,000,000
Medicaid for unemployed $8,600,000,000   ▼$8,600,000,000
Job training and placement $5,120,000,000 $4,300,000,000 ▼$820,000,000
Disabled and elderly programs $4,200,000,000   ▼$4,200,000,000
Other $5,280,000,000 $5,468,900,000 ▲$188,900,000

 The Senate bill took out $27 billion in spending for the poor, ending with a total of $97 billion.

Tax Cuts Total $282,284,000,000 $358,162,000,000 ▲$75,878,000,000
Manufacturing   $1,603,000,000 ▲$1,603,000,000
Individuals $184,637,000,000 $302,198,000,000 $117,561,000,000
State and local governments $42,957,000,000 $14,272,000,000 ▼$28,685,000,000
Businesses $29,483,000,000 $17,546,000,000 ▼$11,937,000,000
Energy projects $19,961,000,000 $17,682,000,000 ▼$2,279,000,000
Other $5,246,000,000 $4,861,000,000 ▼$385,000,000

The Senate bill put in $117 billion in new tax cuts for individuals–more money than the entire $97 billion they give for those items ProPublica classifies as "Aid to Low-Income Families."

Those tax cuts consist primarily of two things: the AMT patch ($64 billion), which affects primarily upper middle class people in areas with high home prices, and the house flipping subsidy (up to $48 billion), the full credit of which is only available if inidviduals pay at least $7,.500 in taxes a year (there’s also $10-11 billion for auto sales incentives).

There are other reasons to oppose including these two tax cuts in the stimulus. The AMT patch, which isn’t really stimulative in the first place, would get passed and properly off-set in the budget appropriations process anyway. And the house flipping subsidy does little else than put money in realtor’s pockets. 

But the biggest reason is this: we’re taking food, housing, and medical care away from those who desperately need it, to put more money in the pockets of the upper middle class.

The Senate "Moderates’" reverse Robin Hood: Steal from the poor and give to the affluent!

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Grassley-Isakson-Coburn-Collins-Bad Nelson Bill

I explained yesterday how the people who crafted the crappy Senate compromise bill were, to a significant degree, Republicans. Republicans who won’t even vote for the bill.

But I forgot to credit the guy who really put the stupid in this bill: Johnny Isakson. Isakson is the former realtor who threw a huge sop to his realtor buddies into the bill, one that does little to actually stimulate the economy (aside from realtors, who after all got us into this mess), and which costs more than promised. The amendment, a $15,000 credit for those buying new or existing homes, will basically encourage more people to move houses–but will not necessarily incent new home building (because it applies to existing homes) nor will it encourage new buyers who would otherwise not have bought (because it’s for all buyers, not just first-time buyers).

Here’s Calculated Risk on how stupid this amendment is:

The sponsors and supporters of this tax credit believe this will support house prices – a mistake because this will mostly just shuffle homeowners between homes, and not reduce the excess supply.

If the incentive was for new homes only, the credit would probably help create some construction jobs. However, the job creation would be limited because of the competing oversupply of existing homes.

The tax credit for existing homes does almost nothing to help the economy. Some might argue that this is more work for agents and home inspectors, and might help with furniture sales, but the impact will be minor. Remember existing home sales are already at a normal level compared to the stock of owner occupied units, so agents are doing fine already (just not compared to the bubble years).

[snip]

The key problem for housing is prices are too high. How does this tax credit help reduce prices? Why are we trying to artificially increase the turnover rate? And why are we targeting a tax credit at higher income individuals?

Dean Baker, more succinctly, simply calls it the House Flipping Subsidy. And oh, by the way, it costs $30 billion more than Isakson originally claimed it would cost. The amendment is still in the "compromise bill" (the cowardly Senate voted it through on a voice vote), and Isakson is not about to vote for the final bill.

So to recap, here’s how this crappy bill came about.

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Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

“Bipartisan”

I avoided today’s debate on the simulus package (I shouldn’t have, because real Dems actually spoke, unlike last night, but I had to make an apple pie for mr. ew). But both in last night’s "debate" and the media today, it’s clear Republicans are pushing one meme above all others.

In spite of the fact that this bill was heavily crafted by Susan Collins, has the support of Arlen "Scottish Haggis" Specter, and probably Olympia Snowe, Republicans claim, it’s not a bipartisan bill. Whereas having Sanctimonious Joe vote with Republicans two years ago qualified as a bipartisan bill, this one doesn’t because, they say, they were locked out of the room where this was crafted. (In reality, a bunch of "moderates" left on their own accord, but truth is not a Republican strong point.)

But that’s not the most offensive part of their claim that this is not a bipartisan bill. AFAIK, Tom Coburn’s amendment remains a part of this bill, which basically prohibits these funds from going to support things like museums and parks.

Tom Fricking Coburn, one of the most conservative members of the Senate, has contributed to this bill. But that doesn’t qualify it as a bipartisan bill, for these fuckers.

And that’s not all. As Lithium Cola points out, using the work of Haley Edwards, the reason the Senate had to cut education and funds for states and Head Start is because Chuck Grassley insisted on putting the annual patch for the Alternative Minimum Tax in this stimulus package.

Haley Edwards at the Columbia Journalism Review points out a big part of why the Senate version of stimulus bill was more expensive than the House version and so "needed" to be cut back by scrapping projects to build schools and so on. The House version didn’t include the standard annual modification of the Alternative Minimum Tax, and the Senate version does.

But why, you might ask, is the Senate package so much more expensive than the House bill?

It’s got much to do with a single $64 billion tax cut benefitting the wealthiest 20 percent of Americans—a fact that was largely buried in reporting about the squabbling over which spending programs to cut.

Haley adds, "that’s one of the reasons why the House’s stimulus measure seemed to be $80 billion dollars cheaper than the Senate’s. It was really only about $30 billion cheaper—after you subtract the $64 billion revenue loss that happens every year when lawmakers curtail the scope of the AMT."

This raises an interesting question. Read more

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

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

picture-57.png

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

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

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

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.