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The Administration Has Not Responded to Over 10 Congressional Requests for Targeted Killing Memo

Back in September 2010, when the Administration successfully argued that whether or not the government had the authority to kill Anwar al-Awlaki was a matter for the Executive and Congressional Branches to decide, it claimed Congress served as a check on that power.

The nonjusticiability of the plaintiff’s claims in this Court “does not leave the executive power unbounded.” Schneider, 412 F.3d at 200. “The political branches effectively exercise such checks and balances on each other in the area of political questions[,]” and “[i]f the executive in fact has exceeded his appropriate role in the constitutional scheme, Congress enjoys a broad range of authorities with which to exercise restraint and balance.” Id. Accordingly, “the allocation of political questions to the political branches is not inconsistent with our constitutional tradition of limited government and balance of powers.” Id.

The Administration’s behavior in the interim period has proven those assurances to be utterly false. Congress has asked the Administration on more than 10 separate occasions for the OLC memo authorizing the killing of Anwar al-Awlaki (many of these 10 documented requests refer to earlier requests, and Pat Leahy sent President Obama a letter that his office could not share).

And yet here we are, 22 months after the Administration assured Judge John Bates that Congress exercised some kind of check on the Executive, at least 17 months after members of Congress first started asking for the legal analysis, and the Administration has not responded to those requests.


Here are the requests.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program. (1)

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. (4)

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing. (7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

Targeted Killings: When John Cornyn Makes Better Sense than Democrats …

Things got a little crazy when the Senate Judiciary Committee FISA Amendment Markup turned to targeted killing.

John Cornyn used the opportunity of this must-pass intelligence bill to propose an amendment to require the Administration to share its authorization for targeting killing. Cornyn rather modestly said that “I think all of troubled w/o further explanation” for the authority. [All quotes in this post are my inexact transcription] Chuck Grassley went further, saying something to the effect of “We [the Administration] has got a license to kill, and we don’t know about that license and we won’t get it until we legislate it.”

But Democrats prevented Cornyn and Grassley from attaching legislation mandating the Administration share the authorization with Congress.

Now, Cornyn claimed (incorrectly, given his inaction on Bush’s torture and wiretapping) that he wasn’t pushing for legislation on this just because the President is a Democrat; he would have done so if the President were a Republican too. To which Dick Durbin reminded him of all the times he refused to back legislation requiring oversight and transparency under Bush.

Which was Dick Durbin’s opportunity to call for writing a letter on this issue rather than legislating. Pat Leahy suggested he could just use his letter, which was already sent and ignored. Then Grassley reminded he has sent a letter on this subject too, and been ignored.

It was a bunch of Senators recounting the number of letters demanding oversight into the President’s unchecked authority to kill, including American citizens, only to be blown off. America, fuck yeah!

Again, John Cornyn came off sounding like the adult. “We’re not mere supplicants of the Executive Branch. It is insufficient to say, “Pretty please, Mr President, please tell us about the legal authorization.”

Nevertheless, that didn’t prevent Dianne Feinstein from promising that the Senate Intelligence Committee would include language about this in their authorization, and insisting that they let SSCI, not SJC, impose requirements. She suggested (though did not make explicit) that such a requirement belongs in SSCI because targeted killing is a covert program. Which is how the entire effort got tabled, leaving everyone to write more letters.

Cornyn had one more measure, requiring the President provide notice to the Gang of Eight. Dianne Feinstein, as she has repeatedly, assured her colleagues that she and Saxby Chambliss provide all the oversight on this front that is needed. To which Cornyn asked, “Is notice of targeted killing given before or after killing?” DiFi responded, “Sometimes before, sometimes during, sometimes just after.” Cornyn replied, “I don’t think Congress should delegate all authority to one or two members. Make sure not just you, but bicameral gang of eight.”

Curiously, DiFI had no response to that, leaving the impression that the Obama Administration, even on the matter of targeted killing of US citizens, has continued the Bush Administration violation of the National Security Act by briefing just the Gang of Four, not the Gang of Eight (which would add Harry Reid, Nancy Pelosi, John Boehner, and Mitch McConnell to the Intelligence Committee heads being briefed).

But again, Democrats voted to table that amendment on a party line vote.

This is a problem. Not only is it taking legislation to even get the Senate Intelligence Committee adequately briefed on this topic, but Democrats are using partisan obstruction to prevent the Judiciary Committee from learning enough to assess for themselves whether the targeted killing of a US citizen violates the Constitution.

The FDA Demonstrates What “Targeting” Does

“They think they can be the Gestapo and do anything they want.” — Chuck Grassley, on learning his staffer’s emails had been surveilled by the FDA

It is utterly predictable that members of Congress only get concerned about heavy-handed surveillance when they get sucked up in the surveillance. And so it is that Chuck Grassley, who voted for the FISA Amendments Act, and Chris Van Hollen, who didn’t, are outraged that their offices have been dragged into the FDA’s invasive surveillance used to conduct a leak investigation.

The surveillance started in response to a belief that FDA scientists, upset that their concerns about the safety of medical diagnostic equipment had been overridden, leaked classified proprietary information to the NYT. But after targeting just 5 scientists suspected of the leak, the FDA developed profiles on 21 people thought to be conspiring against the agency.

What began as a narrow investigation into the possible leaking of confidential agency information by five scientists quickly grew in mid-2010 into a much broader campaign to counter outside critics of the agency’s medical review process, according to the cache of more than 80,000 pages of computer documents generated by the surveillance effort.

Moving to quell what one memorandum called the “collaboration” of the F.D.A.’s opponents, the surveillance operation identified 21 agency employees, Congressional officials, outside medical researchers and journalists thought to be working together to put out negative and “defamatory” information about the agency.

Mind you, Grassley and Van Hollen’s aides (and Van Hollen himself) were not themselves the targets of the leak investigation. The scientists were the targets. Read more

Anonymous DOJ Statement: “Trust Us”

The Senate Judiciary Committee is holding a hearing today to review the results of the Schuelke report on the prosecutorial misconduct in the Ted Stevens case and to entertain the Lisa Murkowski bill requiring disclosure. In response, DOJ submitted a statement for the record, opposing any legislation enforcing its discovery obligations.

When concerns were first raised about the handling of the prosecution of Senator Stevens, the Department immediately conducted an internal review. The Attorney General recognized the importance of ensuring trust and confidence in the work of Department prosecutors and took the extraordinary step of moving to dismiss the case when errors were discovered. Moreover, toensure that the mistakes in the Stevens case would not be repeated, the Attorney General convened a working group to review discovery practices and charged the group with developing recommendations for improving such practices so that errors are minimized. As a result of the working group’s efforts, the Department has taken unprecedented steps, described more fully below, to ensure that prosecutors, agents, and paralegals have the necessary training and resources to fulfill their legal and ethical obligations with respect to discovery in criminal cases. These reforms include a sweeping training curriculum for all federal prosecutors and the requirement–for the first time in the history of the Department of Justice–that every federal prosecutor receive refresher discovery training each year.

In light of these internal reforms, the Department does not believe that legislation is needed to address the problems that came to light in the Stevens prosecution. Such a legislative proposal would upset the careful balance of interests at stake in criminal cases, cause significant harm to victims, witnesses, and law enforcement efforts, and generate substantial and unnecessary litigation that would divert scarce judicial and prosecutorial resources.

In short, DOJ is saying, “trust us. We don’t need a law requiring us to do what case law says we need to.”

Right off the bat, I can think of 5 major problem with this statement:

No one has been held accountable

We are three years past the time when Stevens’ case was thrown out. Yet none of the prosecutors involved have been disciplined in any meaningful way.

No doubt DOJ would say that it will hold prosecutors responsible if and when the Office of Professional Responsibility finds they committed misconduct. But in the interim three years, DOJ as a whole has sent clear messages that it prefers protecting its case to doing anything about misconduct. And–as Chuck Grassley rightly pointed out at the hearing–thus far no one has been held responsible.

This statement may claim DOJ is serious about prosecutorial misconduct. But its actions (and inaction) says the opposite.

Even after this training, discovery problems remain

As the DOJ statement lays out, in response to the Stevens debacle, DOJ rolled out annual training programs for prosecutors to remind them of their discovery obligations.

And yet, last year, Leonie Brinkema found that prosecutors in the Jeff Sterling case had failed to turn over critical evidence about prosecution witnesses–one of the problems with the Stevens prosecution. The prosecutor involved? William Welch, whom Schuelke accused of abdicating his leadership role in the Stevens case (note, DOJ says the CIA is at fault for the late discovery; but Welch is, after all, the prosecutor who bears responsibility for it).

If William Welch can’t even get discovery right after his involvement in this case and, presumably, undergoing the training DOJ promises will fix the problem, then training is not enough to fix the problem.

Eric Holder won’t run DOJ forever

The statement focuses on Holder’s quick decision to dismiss the case against Stevens, as if that, by itself, guards against any similar problems in the future. But before Holder was AG, Michael Mukasey was–and Judge Emmet Sullivan grew so exasperated with Mukasey’s stonewalling on this case, he ordered him to personally respond to questions about the case.

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DOJ Admits It Has Been “Lying” for 24 Years; Journalists Applaud

I’m sort of mystified by yesterday’s reporting on the DOJ letter to Chuck Grassley and Pat Leahy regarding FOIA. Basically, the letter announced that DOJ has been “lying” on FOIA responses for 24 years, and that DOJ will only change its approach if it finds a good alternative. And yet report after report said DOJ had decided to drop their “new” approach to FOIA (TPM is the sole exception I saw, though the article’s title appears to reflect an earlier mistaken version).

As a reminder, the in question instructed FOIA respondents to respond to a FOIA request on ongoing investigations, informants, and classified foreign intelligence information as if the information didn’t exist.

(2) When a component applies an exclusion to exclude records from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component utilizing the exclusion will respond to the request as if the excluded records did not exist. This response should not differ in wording from any other response given by the component.

The letter everyone is celebrating says this about DOJ’s FOIA practice over the last 24 years.

Since 1987, the Department has handled records excluded under [FOIA’s Section 552(c)] according to guidance issued by Attorney General Meese. The Meese Guidelines provided, among other things, that where the only records responsive to a request were excluded from FOIA by statute, “a requester can properly be advised in such a situation that ‘there exist no records responsive to your FOIA request,'” and that agencies must ensure that its FOIA responses to requests that involve exclusions and those that do not involve exclusions “are consistent throughout, so that no telling inferences can be drawn by requesters.” The logic is simple: When a citizen makes a request pursuant to FOIA, either implicit or explicit in the request is that it seeks records that are subject to the FOIA: where the only records that exist are not subject to the FOIA, the statement that “there exist no records responsive to your FOIA request is wholly accurate. These practices laid out in Attorney General Meese’s memo have governed Department practice for more than 20 years.[my emphasis]

This paragraph makes it clear that the practice “proposed” in the “new” rule is actually the practice DOJ has followed for 24 years.

Here’s the language from the Meese Guidelines, which makes it clear DOJ has not been using Glomar’s “We can neither confirm nor deny” language for these exclusions–as some of the reports on this yesterday claimed–but has instead been denying any records exist.

In addition to expanding the protective scope of the FOIA’s principal law enforcement exemptions, the FOIA Reform Act creates an entirely new mechanism for protecting certain especially sensitive law enforcement matters, under new subsection (c) of the FOIA. These three new special protection provisions, referred to as record “exclusions,” now expressly authorize federal law enforcement agencies, for certain especially sensitive records under certain specified circumstances, to “treat the records as not subject to the requirements of [the FOIA].” 5 U.S.C. � 552(c)(1), (c)(2), (c)(3), as enacted by Pub. L. No. 99-570, � 1802 (1986). In other words, an agency applying an exclusion in response to a FOIA request will respond to the request as if the excluded records did not exist.

[snip]

To be sure, the protection afforded through “Glomarization” can adequately shield sensitive abstract facts in certain categorically defined situations. However, the “Glomarization” principle, by its nature, operates necessarily on the basis of (and openly connected with) specified FOIA exemptions, and it is limited in such a way as to mask only an abstract fact related to a defined record category. See FOIA Update, Spring 1983, at 5; see, e.g., FOIA Update, Spring 1986, at 2. Thus, mere “Glomarization” simply is inadequate to guard against the harm caused by the very invocation of a particular exemption, nor is it capable of being applied realistically where the “category” of threatening requests can be as broad as, in effect, “all FOIA requests seeking records on named persons or entities.” It is precisely because “Glomarization” inadequately protects against the particular harms in question that the more delicate exclusion mechanism, which affords a higher level of protection, sometimes must be employed.(47)

By the same token, the utilization of the exclusion mechanism requires extremely careful attention on the part of agency personnel, lest it be undermined, even indirectly, by the form or substance of an agency’s actions. Agencies should pay particular attention to the phrasing of their FOIA-response communications in light of the new exclusions. Where an exclusion is employed, the agency is legally empowered to “treat” the excluded records as not subject to the FOIA at all. Accordingly, a requester can properly be advised in such a situation that “there exist no records responsive to your FOIA request.” Such phrasing — as opposed to any more detailed statement that, for example, any records specified in a particular request “could not be located” — most rationally and fairly implements an exclusion’s effect.

The DOJ letter, combined with the Meese Guidelines, makes it clear: DOJ has been responding for FOIAs throughout that period with the misleading language. There is nothing “new” about the practice whatsoever.

DOJ’s prior use of this practice should be clear from the history of this rule–which was basically rushed through as Judge Cormac Carney’s ruling made it clear that the FBI had used this practice in a response to CAIR. Contrary to DOJ’s claim that it tried to push through this rule out of some concern for transparency, they only drafted it once it became clear their long-standing practice would be exposed in the Carney ruling.

And as I noted yesterday, while DOJ has dropped the language formalizing this from the rule…

We believe that Section 16.6(f)(2) of the proposed regulations falls short by those measures, and we will not include that provision when the Department issues final regulations.

…it has not promised to drop the practice. On the contrary, it says it will only change the practice–the practice it has used for the last 24 years–if it can find something that works as well.

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]

And why should it drop the practice? It doesn’t need a rule to authorize it, it already has authority in the FOIA amendment passed in 1986, which the 9th Circuit referenced in its opinion on the Carney ruling just this spring with no complaint.

In addition, Congress added section 552(c) to the FOIA in 1986 to allow an agency to “treat the records as not subject to the [FOIA] requirements” in three specific categories involving: (1) ongoing criminal investigations; (2) informant identities; and (3) classified foreign intelligence or international terrorism information. 5 U.S.C. § 552(c) (1)-(c)(3)4; see Benavides v. Drug Enforcement Admin., 968 F.2d 1243, 1246-47 (D.C. Cir. 1992) (discussing the legislative history of the “three exclusions of § 552(c)”). Only subsection (c)(3) deals with classified information, while subsections (c)(1) and (c)(2) apply to law enforcement records. Therefore, plaintiffs’ contention that only classified information can be withheld under the FOIA is belied by the statute.

The 9th Circuit was not asked to review the constitutionality of this practice. But it certainly showed no discomfort with it. If the law endorses this practice and Appeals Courts have found no problem with it, what are the chances, really, that DOJ will change it substantially?

All yesterday’s letter did was announce that DOJ will once again not explicitly describe how it is applying exclusions–it will return to the practice it has followed for 24 years. Sure, it may find a new way to handle exclusions. But all we have now is a promise that it is considering doing so.

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.

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.

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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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?

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?