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Mukasey Oversight: HJC Edition

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Coming in at the end of the opening statements. Conyers’ emphasis is on questions on torture and voting rights. Lamar Smith says crack dealers who have already served longer than coke dealers should stay in jail. And Mukasey says the telecoms need [ut oh, he’s got his talking points wrong] retroactive immunity and those crack dealers need to stay in jail.

Conyers

Any additional comments about waterboarding now that Hayden confirmed it?

MM: Do you have a particular question?

JC: Are you ready to start a criminal investigation?

MM: That’s a direct question. No, I am not. Whatever was done as part of the CIA program, was part of DOJ opinion, through OLC, permissible under law as it existed then. For me to use occasion of disclosure that that was once an authorized part of the CIA program would be for me to tell that they will now be subject to criminal investigation. That would put into question not only that opinion, but also any other opinion from DOJ. That’s not something that would be appropriate and not something I would do.

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

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(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.

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Dick’s Big Stick and the Democratic Alpha Male

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Well, darnit. I got forwarded the Lizza column and assumed it was recent. It’s not. So Lizza should not remember the Cheney comment, because it happened after Lizza’s column. I apologize to Lizza, but not that the manly men Dingell and Murtha were, in fact, in Congress already when Lizza wrote the column. 

Ryan Lizza must have forgotten that Dick Cheney insinuated Nancy Pelosi had emasculated John Murtha and John Dingell.

Cheney, in an interview with Politico, said Murtha (Pa.) and Dingell (Mich.), two of the most powerful House Democrats, "march to the tune of Nancy Pelosi," adding that "they are not carrying the big sticks I would have expected."

That’s because Lizza has discovered, as if it were new, the Democratic Alpha Male.

The members of this new faction, which helped the Democrats expand into majority status, stand out not for their ideology or racial background but for their carefully cultivated masculinity.

"As much as the policy positions is the background and character of these Democrats," says John Lapp, the former executive director of the Democratic Congressional Campaign Committee who helped recruit this new breed of candidate. "So we went to C.I.A. agents, F.B.I. agents, N.F.L. quarterbacks, sheriffs, Iraq war vets. These are red-blooded Americans who are tough."

Mr. Lapp even coined a term to describe these manly — and they are all men — pols: "the Macho Dems."

The return of Democratic manliness was no accident; it was a carefully planned strategy. But now that the Macho Dems are walking the halls of Congress, it remains to be seen whether they will create as many problems for Democrats as they solved. After all, these new Democrats have heterodox political views that could complicate Democratic caucus politics, and their success may raise uncomfortable questions for those Democrats who don’t pass the new macho test.

Call me crazy, but to suggest that John Murtha isn’t a manly man is as much a slight to his long-term service in the Marines as when Mean Jean called Murtha a coward. And one of the biggest reasons why I have John Dingell representing me in the House, rather than Lynn Rivers, is because Dingell is a hunter’s hunter–a better shot than Dick Cheney, I’d wager.

Somehow, these two manly men have survived–even flourished–in the House for a combined eighty-five years. Yet Lizza would have you believe the Democratic Alpha Male is a recent fad.

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Dick’s Evolving Demands for Immunity

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Thanks to Faiz, who watches Rush, so I don’t have to.

Once again, the Administration has trotted out Dick to lobby for immunity for himself telecom immunity. All the things I said last week about the inappropriateness of sending the guy who would most directly benefit from immunity out to lobby for it still hold.

So someone decided that they would get the person least willing to cooperate with Democrats, the person who single-handedly could eliminate the legal problem they allege the telecoms have, and the person who stands to benefit most from an immunity provision for telecoms, to head out to pressure Congress? And they thought this would work to persuade Democrats to put aside all the troubling legal issues to grant immunity?

But I’m interested in slight changes to Dick’s spiel over the last eight days of legislative wrangling. As an aside, you’d think that some of these differences might stem from the fact that your average Heritage Foundation member has about four times the IQ of your average Rush listener, but Dick’s statements to Rush are much more measured.

One thing I hadn’t noticed in Dick’s Heritage Foundation speech is that it already included (and was perhaps the roll-out of) the Orwellian "liability protection" in lieu of the more accurate "retroactive immunity."

Actions by Congress sometimes have unexpected consequences. But a failure to enact a permanent FISA update with liability protections would have predictable and serious consequences.

It must have polled well, because Dick is developing into an elaborate metaphor including a dig at trial lawyers.

One of the main things we need in there, for example, is retroactive liability protection for the companies that have worked with us and helped us prevent further attacks against the United States —

[snip]

RUSH: The opposition in the Senate is primarily from Democrats, correct?

CHENEY: Correct. People who don’t want to — I guess want to leave open the possibility that the trial lawyers can go after a big company that may have helped. [my emphasis]

I wonder how the ACLU and EFF feel about being labeled trial lawyers? Read more →

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Did Bush Re-Nominate Bradbury to Control Mukasey?

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Mind you, I’m sure Bush re-nominated Steven Bradbury, the second incarnation of John Yoo, because Bradbury has dutifully shredded the Constitution on demand, and Bush would like to reward him. But the National Journal’s coverage of the Bradbury re-nomination raises an interesting point. It notes, as does everyone else, that Bradbury’s nomination is a big "Cheney yourself" to the Democrats who have refused to approve Bradbury’s nomination in the past.

In the latest example of the continuing partisan rifts over CIA interrogation techniques, Bush renominated lawyer Steven Bradbury to a senior post at the Department of Justice yesterday, despite years of Democratic resistance to his nomination.

[snip]

Bush’s previous attempts to install Bradbury permanently as head of the OLC stalled during the confirmation process, when the DOJ refused to provide senators with copies of Bradbury’s legal opinions on terrorism issues. His previous nominations have expired, and last year Democrats pressed Bush to withdraw Bradbury’s candidacy for the post. But the administration refuses to yield, claiming that Bradbury’s opinions on interrogation techniques do not contradict the law.

But then it points out that Mukasey promised to review the existing OLC opinions to make sure they don’t shred the Constitution.

During his own confirmation hearings last fall, Attorney General Michael Mukasey pledged to review the controversial OLC opinions and "change them" if need be.

Now, I have no idea whether Bush re-appointed Bradbury with Mukasey’s approval; John Ashcroft was able to scuttle John Yoo’s appointment to the OLC, which led to the appointment of Jack Goldsmith. But I imagine Bush (and more importantly, Cheney) wasn’t too happy with the way that worked out.

Certainly, when Mukasey visits the Senate Judciary next week, they ought to ask him whether Bush consulted with him before he re-appointed Bradbury.

Whether Mukasey approved that re-appointment or not, though, the re-appointment guarantees that Bradbury can continue to act as OLC head through the end of Bush’s term. It ensures that Dick and Addington have their stool (in both senses of the word, I suspect) in the heart of DOJ, preventing any real roll-back of Dick’s Constitutional atrocities.

No matter what Mukasey’s intentions, it seems, Bush and Dick now have their insurance that Mukasey can only do so much to fix this Administration’s shredding of the Constitution.

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Dick Wants His Immunity, and He Wants It Now

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What wizard of political strategy decided that Dick Cheney was the appropriate person to harangue Congress about approving immunity for himself and all the other Admin folks who pushed illegal wiretapping the telecoms?

The unfortunate aspect of the Protect America Act is a sunset provision, which makes the law expire on the first of February –- just 10 days from now. That leaves Congress only nine days in which to act to keep the intelligence gap closed. And with the day of reckoning so close at hand, we’re reminding Congress that they must act now to modernize FISA.

First, our administration feels strongly that an updated FISA law should be made permanent, not merely extended again with another sunset provision. We can always revisit a law that’s on the books –- that’s part of the job of the elected branches of government. But there is no sound reason to pass critical legislation like the Protect American Act and slap an expiration date on it. Fighting the war on terror is a long-term enterprise that requires long-term, institutional changes. The challenge to the country has not expired over the last six months. It won’t expire any time soon –- and we should not write laws that pretend otherwise.

Second, the law should uphold an important principle: that those who assist the government in tracking terrorists should not be punished with lawsuits. We’re asking Congress to update FISA and especially to extend this protection to communications providers alleged to have given such assistance any time after September 11th, 2001. This is an important consideration, because some providers are facing dozens of lawsuits right now. Why? Because they are believed to have aided the U.S. government in the effort to intercept international communications of al Qaeda-related individuals.

We’re dealing here with matters of the utmost sensitivity. It’s not even proper to confirm whether any given company provided assistance. But we can speak in general terms. The fact is, the intelligence community doesn’t have the facilities to carry out the kind of international surveillance needed to defend this country since 9/11. In some situations there is no alternative to seeking assistance from the private sector. This is entirely appropriate. Indeed, the Protect America Act and other laws allow directives to be issued to private parties for intelligence-gathering purposes.

[snip]

Actions by Congress sometimes have unexpected consequences. But a failure to enact a permanent FISA update with liability protectionswould Read more →

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“The 9/11 Commission Wants Internal Emails”

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I found something rather interesting in Scooter Libby’s notes for July 8, 2003 (here’s the transcription of his chickenscratch). At the tail end of a conversation about the 9/11 Commission (which may have taken place at the White House’s Senior Staff Meeting that morning), and at the beginning of more obsessive notes about Joe Wilson [on how these notes work, see the update below], Libby wrote:

9/11 Commission wants internal e-mails, mark-up drafts of President’s speech, materials for President’s discussions with Blair, etc.

Now, I have no idea what they wanted internal emails pertaining to–though the reference to a Bush speech and discussions with Blair indicates it was a speech about war, most likely the September 20, 2001 speech announcing his response to the 9/11 attacks. Though, the Commission briefly reviewed the early (2001) discussions about hitting Iraq, as well as Afghanistan, and Libby’s note appeared just one day before the Commission held a hearing on Al Qaeda’s relationship with other parts of the Arab world, including Iraq (Laura Mylroie even testified!).

But I find the mention interesting, given all the attention to the White House’s faulty email archiving system. Libby’s note presumably reflects discussions of the 9/11 Commission’s First Interim Report, released on the same day. In the report (and at the press conference accompanying it), Commission described the status of EOP’s document requests as follows:

First, the executive office of the president. The document requests have been filed with the executive office. Those documents cover every major part of the executive office of the presidency, including, of course, the National Security Council. We will not go into detail on the substance of these or other requests. We can say that we have received and are in the process of receiving access to a wide range of sensitive documents, and that to date no requested access has been denied. Many more documents are being requested. Conditions have been imposed, in some cases, with respect to our access to and usage of materials, and our discussions will continue.

Though the same interim report bragged that the Commission had received detainee interviews, and we know from Phillip Zelikow’s recent report on the CIA’s stonewalling regarding any tapes of detainee interrogations that as soon as June 2003, the CIA was withholding responsive materials.

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Two Reminders: Not an Agency and Search Terms

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We’ve had a bit of discussion whether the White House has lost all its email because of some nefariousness–or because of rank incompetence. I’m still not claiming to know the answer to that question. But there are two data points I want to remind everyone of.

First, remember that the White House all of a sudden decided that the Office of Administration was no longer an agency at precisely the time when CREW started asking questions about the disappearing emails.

The Justice Department said Tuesday that records about missing White House e-mails are not subject to public disclosure, the latest effort by the Bush administration to expand the boundaries of government secrecy.

Administration lawyers detailed the legal position in a lawsuit trying to force the White House Office of Administration to reveal what it knows about the disappearance of White House e-mails.

They did so to support a claim that OA was not subject to FOIA, and therefore they could tell CREW to go Cheney itself. This, in spite of the fact that OA had FOIA materials on its website and responded to over 60 FOIA requests the previous year! (They tried to fix that little problem by throwing their website down the memory hole, though they have since recanted grudgingly, still claiming that they’re not subject to FOIA, but retaining the proof that they’re subject to FOIA on their website to comply with the Presidential Records Act.)

The argument is reminiscent of Cheney’s Pixie Dust argument, in which rewrote an Executive Order after the fact, also claiming he was not an agency, so as to claim he didn’t have to tell anyone about his classification and declassification activities. Dick also apparently used this logic to explain how he insta-declassified a CIA spy’s identity so he could out that spy to Judy Miller.

You see, this Administration does use such arguments for nefarious purposes.

The other data point to keep in mind, regarding the White House use of emails, is the RNC’s attempts to hide damaging emails by use of rather silly search terms.

… the RNC counsel has proposed to limit the Committee’s request by using narrow "search terms" to identify e-mails relevant to the Committee’s investigation. On Monday, RNC counsel proposed eight search terms, such as ‘political briefing," "Hatch Act," and "2008." While the "search term" approach was offered in good faith by the RNC counsel, it presents some serious problems. Read more →

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Plame Investigation and Missing Emails: Analysis on Emails

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This is the post I promised, in which I’ll analyze what the timeline of the missing dates shows. As I said in that post, this exercise makes several assumptions, some of which clearly are not true:

  • It assumes all the missing emails have some tie to the Plame leak; we know this is not true because of the volume of email missing from offices uninvolved in the leak, and there is at least one period when no archive of OVP email exists for which I can think of no Plame leak correlation.
  • It assumes we’re seeing all the missing emails; we’re not. There’s a bunch of dates on which there is a very small amount of email archived, and if we were to do this analysis properly, we’d need to know those dates, too.
  • It assumes the email archives were destroyed deliberately to hide legally dubious acts. While that might be a fair assumption with this administration, we don’t know for sure that is true, so by trying to find correlations between missing emails and known events, we may end up imagining motivations on the part of the White House that didn’t exist.

So understand that this is as much a thought experiment as useful analysis. It basically tries to answer the question, "Assuming most of the WH and OVP email gaps during this period relate to the Plame investigation, why might the WH have been deleting archives? What were they trying to hide?"

Also, consider some limits about the content of the email. We’re assuming the email was dangerous enough to make it worthwhile to delete. Yet, given that Fitzgerald got at least 250 pages of the missing OVP emails (and presumably a similar amount of missing WH emails), one of the following must be true:

  • The emails were not damaging enough to support an indictment for anyone beyond Libby. Only one of these emails was ever even introduced at Libby’s trial–and it was nowhere near the most incriminating piece of evidence. So the emails Fitzgerald received, at least, either contain no smoking gun or he chose not to pursue the smoking gun. Read more →
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Plame Investigation and Missing Emails Timeline

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Okay, what follows is an uber-timeline, matching the dates for which OVP and WH don’t have any email archives to the Plame investigation, as well as laying out further details on how the investigation proceeded over time. Before you read further, a couple of important comments:

  • It would be completely irresponsible to assume that the email losses are entirely related to the Plame investigation. The large number of emails missing from CEQ, CEA, OMB, and OTR shows that, even if the emails were disappeared deliberately (which is a big assumption), they were disappeared for a myriad of reasons, many of them completely unrelated to the Plame investigation. That’s part of the reason I did the Medicare Part D post–while that post, like this one, is completely speculative, it shows there may be any number of explanations for the missing emails.
  • This post relies on information about the investigation revealed during the Libby trial. With one exception (the WHIG subpoena), those materials cover only subpoenas to OVP. There are undoubtedly subpoenas to the White House that we don’t know about that may pertain to these dates.
  • Remember that, in addition to the days for which no email archives exist for a given office, there are a large number of days for which offices don’t have archives of all the emails (that is, days when an archive includes vastly fewer emails than the office would have sent). So this timeline probably leaves out a large number of days which might be interesting or pertinent, because some significant number of emails are missing from the archives.
  • Even if all the connections you could might draw from this timeline were valid, they still wouldn’t explain all the funkiness with email pertaining to the Plame investigation. It still doesn’t describe possible funkiness with the Rove-Hadley email, and the search terms used to find emails may have led to further funkiness.
  • I will do a speculative post on some of the connections we might draw (probably tomorrow or Monday, I’m toast). But understand that this whole examination is one big experiment, which has the potential of drawing completely bogus conclusions. By looking solely at two discrete events, we presume a connection between them that ignores the complexity of the White House, or even the sheer number of potential scandals! Read more →
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