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Senate Passes Defense Authorization

The final vote was 86-13. No votes were Lee, Paul, DeMint, Risch, Crapo, and Coburn (the last three not on civil liberties grounds), and Cardin, Wyden, Sanders, Durbin, Franken, Harkin, and Merkley.

I’m sure Obama will sign this in time for us all to be indefinitely detained this weekend.

Update: Senator Franken sent out a statement explaining his no vote. It ends, “Today is the anniversary of the ratification of the Bill of Rights, and this wasn’t the way to mark its birthday.”

Is Mark Warner the Designated Social Security Killer?

The propaganda the Administration has put out to spin the debt capitulation as a win–“victory!” “bipartisan!” “compromise!”–would be amusing if the deal weren’t so dangerous. In addition to all the language claiming that cutting expenditures during a Depression–described here as “remov[ing] the cloud of uncertainty– will help the economy, there are these two bullets:

  • Establishes a bipartisan process to seek a balanced approach to larger deficit reduction through entitlement and tax reform;
  • Deploys an enforcement mechanism that gives all sides an incentive to reach bipartisan compromise on historic deficit reduction, while protecting Social Security, Medicare beneficiaries and low-income programs;

Bulllet 3 says this deal establishes a process to bring about entitlement reform. Bullet 4 claims the deal protected Social Security and Medicare. Both of these bullets can’t be true.

Which has set off a discussion about whether SuperCongress is only possibly going to cut Medicare and Social Security, or will almost certainly do so.

I wanted to look at how the membership of the predecessor committees to SuperCongress–the Catfood Commission and the Gang of Six–to suggest which is more likely.

As you recall, the Catfood Commission members voted 11-7 in favor of passing the Commission’s recommendations, which included raising the retirement age. The members of Congress on the Commission voted this way:

  • Tom Coburn: Yes
  • Judd Gregg: Yes*
  • Mike Crapo: Yes
  • Kent Conrad: Yes
  • Dick Durbin: Yes
  • Max Baucus: No
  • Paul Ryan: No
  • Jeb Hensarling: No
  • Dave Camp: No
  • Jan Schakowsky: No
  • Xavier Becerra: No
  • John Spratt: Yes*

Assuming for the sake of argument that the members who are still in Congress would be part of SuperCongress, that would make for a stalemate–though Republican opposition focused on Obama’s healthcare reform, not on the package of entitlement cuts and tax breaks for the rich that the commission recommended.

Both Judd Gregg and John Spratt are gone. Rather than replace Judd Gregg, the former Ranking Member of the Budget Committee with his functional equivalent, Jeff Sessions, Mitch McConnell will likely put Saxby Chambliss on SuperCongress, as Chambliss has been involved in the Gang of Six discussing a deficit reduction plan. John Spratt’s functional equivalent would be Chris Van Hollen, a not horrible addition for liberals. (Update: Or maybe he’s just like Durbin, a so-called liberal who will support this crap.)

But it’s not safe to assume Harry Reid will just pick the Senators who served on the Catfood Commission for SuperCongress. After Max Baucus voted no on the Catfood Commission, saying, “we cannot cut the deficit at the expense of veterans, seniors, ranchers, farmers and hard-working families,” he was replaced on the Gang of Six. Joe Biden and Harry Reid replaced him with Mark Warner, a man worth more than $200 million who has spent much of the tenure of the Gang of Six insisting that working Americans with whom he shares little in common won’t mind so much if they have to work another two years before they can retire.

In other words, one change we’ve already seen happen between the Catfood Commission and the Gang of Six is the replacement of Max Baucus, who proved unwilling to push through the $4 trillion deficit plan Obama has been chasing, with Mark Warner, who is all too willing to champion entitlement cuts for poor people.

If his newly central role in these discussions stands, we can be pretty sure we’ll see cuts to Social Security. And heck, if he won’t do the deed, then alleged liberal, Dick Durbin, and Kent Conrad seem prepared to do the work themselves.

Lindsey Graham Predicts Successful Terrorist Attack Followed by Harsh Resolution of Gitmo

Josh Gerstein provides Lindsey Graham a soap box to complain that his efforts to craft a grand compromise with the Administration on Gitmo stalled in May.

“I thought we were close to getting a deal,” Graham told POLITICO last week. “I had some meetings where I walked out of the White House and said, ‘This is great.’ These were better meetings than I ever had with the Bush administration.”

But sometime around May, according to Graham, the line of communication with the White House shut down.

“It went completely dead,” Graham said. “Like it got hit by a Predator drone.”

The article as a whole suggests that Administration was fairly close to a deal, though even that deal was threatened by Graham’s inability to bring a number of Republicans along on the compromise as a whole, rather than a series of solutions. Efforts to craft a deal intensified following the Faisal Shahzad attempted Times Square bombing. Gerstein suggests that Eric Holder’s big appearance on the Sunday shows on May 9–to entertain thoughts of a Miranda compromise–was a sign of how close the Administration and Graham were to a deal.

“We had a great discussion on Miranda warning reform,” Graham recalled about an evening session with Bauer and Sen. Dick Durbin (D-Ill.). “I spent three hours down at the White House — it was probably the best meeting I’ve ever been in — where we game-planned this. … I left the meeting thinking we’re going to get a statute.”

Indeed, on May 9, Attorney General Eric Holder publicly embraced the idea on NBC’s “Meet the Press.” Calling Miranda-related legislation a “new priority,” he declared: “This is a proposal that we’re going to be making.”

And then the efforts to craft a compromise died (and, as a result, Miranda remains intact). Gerstein suggests Graham’s flip-flopping on other key legislation made it clear that Graham was not an honest broker.

Graham also may have lost credibility with the administration after he lashed out at the White House in disputes over the health care bill, climate legislation and immigration reform.

The timing certainly makes sense. During the last week of April, Graham threatened to kill the climate change bill he was crafting with the Administration as a way of keeping immigration reform from coming to a vote. By early June, he was promising to vote against any energy or climate bill. So the collapse of the grand “bargain” on Gitmo may have as much to do with Graham’s apparently successful effort to prevent Democrats from focusing on the legislative goals of a key constituency. And that may be why the electoral calendar is cited for killing the compromise as much as anything else: Graham’s yoking of immigration and climate change to Gitmo.

But I also wonder whether the Administration got a sense of just how bad Graham’s “compromise” really was. Negotiations on the grand compromise seem to have been at their height just as DOD was kicking four reporters out of Gitmo for making clear what was already in the public domain: that the interrogator who threatened a child with rape and possibly death in US prisons is the same guy who was convicted in relation to the death of another detainee. Since then (in July), Omar Khadr fired the lawyers who were crafting a plea deal, thus closing off one of the most palatable ways for the Administration to avoid making Khadr the poster child for America’s continued abuse of power at Gitmo.

I also suspect the nomination of Elena Kagan on May 10 may have played a part in the timing, not least because no Republicans would be willing to make a deal against the background of a SCOTUS nomination.

As it is, Graham seems to be using Gerstein’s article to issue two threats: first, that he will push for his own legislation in the next Congress, presumably with the votes of a few teabaggers to help him. And, his implicit threat that there will be another terrorist attack after which any decisions on Gitmo will be far worse than the policies being discussed now.

“There’s going to be an attack. That’s going to be the impetus. That’s going to be what it takes to get Congress and the administration talking; we have to get hit again,” the senator said, suggesting that passing a bill before that happens might be more reasonable than what would come afterward.

“If there is a successful attack, there is going to be a real violent reaction in the Congress, where we will react more emotionally than thoughtfully,” Graham said.

Let it be remembered–for the day when we’ve completely capitulated to those who want to use the threat of terrorism to establish a police state–that Lindsey Graham planned for it to happen.

Republicans Prepare to Kill Jobs; Democrats Angle for Majority Leader

Brian Beutler reports that the Republicans are prepping to make sure no additional support for jobs gets passed next week.

Senate Democrats want to vote on the first installment of a jobs package as early as Monday, amping up the pressure on Republicans to get aboard. But for the moment, they’re not biting.

“We’ll have a vote on a jobs bill on Monday,” Senate Majority Leader Harry Reid said at a press conference today.

There’s just one wrinkle: According to the Senate’s top vote counter, there is currently no Republican support for the proposal Democrats are putting forth–and with Scott Brown to be seated today as the 41st Republican Senator, they’ll need at least one member of the minority to come aboard.

“You need two to tango. And you need Republicans for bipartisanship,” said Senate Majority Whip Dick Durbin (D-IL).

Now, there’s an interesting subplot to this.

Current Majority Leader (and very endangered incumbent) Harry Reid says no Republicans currently support the bill.

Majority Whip and second-most senior Democratic Senator Dick Durbin suggests there are no Republicans supporting the bill.

Meanwhile, Vice Chairman and third-most senior Democratic Senator Chuck Schumer has been working on a deal–at least for tax credits for businesses that create jobs–with Republican Orrin Hatch.

Sens. Chuck Schumer (D-N.Y.) and Orrin Hatch (R-Utah) released a plan Wednesday to give tax breaks to companies that add new workers, a proposal that is likely to become a key component of the jobs bill Senate Democratic leaders are hoping to unveil this week.President Obama has called for employers to receive a $5,000 tax credit for each new employee they hire, while other lawmakers have floated different proposals for a job tax credit. The Schumer-Hatch plan, which would allow companies to avoid paying Social Security taxes for the duration of 2010 on each unemployed worker they hire, appears to have the most momentum in the Senate.

“Our payroll tax cut is a simple, cost-effective and bipartisan solution. It will help put more Americans to work right away,” Schumer said in a press release. Hatch added: “While Senator Schumer and I disagree on most issues, we’ve been able to come together on an affordable, effective and targeted proposal to get the American people back to work.”

Democratic leaders emphasize that they haven’t yet settled on an exact combination of items that will go in the Senate’s jobs package, but Senate Majority Leader Harry Reid (D-Nev.) suggested Wednesday that he was taking a close look at the Schumer-Hatch bill.

Mind you, the Schumer-Hatch deal only deals with one aspect of the deal, not with things like COBRA subsidy extension. And I’ve got concerns about any plan that defunds social security.

Nevertheless, it seems that the drama over whether Democrats will squabble themselves into irrelevance–and/or whether Republicans will sacrifice the interests of their constituents for partisan gain is playing out large on the jobs front.

Whatever is happening, it is preventing Americans from getting back to work.

OPR Report Timeline

In response to the news that David Margolis spiked the misconduct conclusion in the OPR Report on OLC justifications for torture, I wanted to put together a timeline of its construction. Two things stick out. First, the role of Mary Patrice Brown–who replaced Marshall Jarrett at a time when OPR was backing off its offer of transparency–deserves further scrutiny in this report. When she presented the report to Holder in August, she apparently recommended that he reopen investigations into torture.

Also, I still think the timing suggests DOJ delayed its release to protect Yoo in the Padilla suit.

January 4, 2008: Padilla sues Yoo.

February 12, 2008: Senators Durbin and Whitehouse request that OPR investigate torture authorizations

February 18, 2008: Marshall Jarrett informs Durbin and Whitehouse that torture authorizations included in OPR investigation of OLC, agrees to share report with them and–possibly–release an unclassified public version

Late December 2008: Draft of OPR submitted, Michael Mukasey and Mark Filip demand that Yoo, Bybee, and Bradbury get to respond

February 14, 2009: Isikoff reports that OPR report came to harsh conclusions of OLC lawyers’ work; reports Mukasey and Filip allowance for lawyer response

February 16, 2009: Whitehouse and Durbin inquire about process used with OPR report

March 6, 2009: Hearing in Padilla-Yoo law suit

March 25, 2009: OPR response (signed by M. Faith Burton, Acting AAG) to Whitehouse and Durbin states Mukasey/Filip comments already integrated, OLC lawyer counsel in process of reviewing report; it doesn’t mention “career prosecutor” review:

When the review and comment [from Yoo, Bybee, and Bradbury’s lawyers] is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the department will determine what disclosures should be made.

The letter backs off Jarrett’s earlier promise to release the report:

In determining appropriate disclosures, we will be mindful of the considerable interest that Congress has previously expressed in connection with this matter and will seek to accommodate the information needs of our oversight committees in response to requests from their chairmen. While we appreciate your request for a disclosure commitment, we can only fully evaluate the scope of appropriate disclosures once the review process is completed. We trust you understand that those decisions depend in part on the content and conclusions of the OPR final report and the outcome of any further Departmental review.

March 31, 2009: Durbin and Whitehouse reply to OPR letter

April 8, 2009: Holder names Mary Patrice Brown to replace former OPR head, Marshall Jarrett

April 29, 2009: Leahy invites Bybee to testify to Senate Judiciary Committee; Bybee panics in response

May 4, 2009: According to AAG Ronald Welch, deadline for Yoo, Bybee, and Bradbury response to OPR report; on that day, Welch responds to Durbin and Whitehouse laying out the following as “normal” process for OPR reports:

In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office. A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else. Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made. This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process. While the Department has previously released public summaries of OPR reports under some circumstances, public release of the reports themselves has occurred only rarely. In the past, the release of a public summary occurred only after the subjects were afforded an opportunity to appeal any adverse findings.

The May 4 letter also informed the Senators of the CIA review.

May 6, 2009: WaPo reports OPR report still recommends sanctions against Yoo and Bybee

June 12, 2009: Judge rules Padilla suit can move forward

June 17, 2009: Whitehouse reveals that CIA conducting “substantive comment and classification review”

July 9, 2009: Yoo appeals decision on Padilla suit–and DOJ stops representing Yoo; Miguel Estrada would take on that role

July 12, 2009: Scott Horton reports that reading OPR Report was one thing that convinced Eric Holder to launch criminal review of torture

Prior to August 24, 2009: OPR submits report to Holder, recommends reopening criminal investigation into torture

August 24, 2009: Holder announces criminal investigation, citing (among other things) OPR report

November 16, 2009: Yoo submits opening brief in Padilla suit appeal

November 18, 2009: Holder announces OPR report due out “this month;” Court grants government extension to December 3 to submit amicus brief

November 20, 2009: Padilla requests extension–because of delay in government brief–until January 15

December: Margolis, purportedly reviewing OPR report, out sick (though reports say Yoo’s lawyer making last appeal for changes)

December 3, 2009: DOJ submits amicus brief claiming that OPR can address Padilla’s concerns

December 29, 2009: Yoo starts book publicity

January 18, 2010: Padilla submits response to appeal

January 29, 2010: Klaidman and Isikoff report OPR conclusions have been altered

Feingold, Durbin, and Wyden Demand the OLC Opinion on Exigent Letters

As I reported yesterday, the Dawn Johnsen-less OLC wrote an opinion on January 8 retroactively authorizing the FBI’s inappropriate use of the exigent letters to snoop on Americans’ telecomm records.

Now, Senators Feingold, Durbin, and Wyden, have demanded that opinion from Eric Holder. Of note, they tie their demand into DOJ IG Glenn Fine’s comment that DOJ should notify Congress of the opinion and this use of exigent letters so it can consider legislation on that count.

We write specifically because we believe the Department should immediately provide to Congress a copy of the January 8, 2010, Office of Legal Counsel (OLC) opinion that is referenced in the OIG report and that apparently interprets the FBI’s authority to obtain phone records. Although much of the information about the OLC opinion is redacted in the public version of the OIG report, the opinion appears to have important implications for the rights of Americans. The report states that “the OLC agreed with the FBI that under certain circumstances [REDACTED] allows the FBI to ask for and obtain these [phone] records on a voluntary basis from the providers, without legal process or a qualifying emergency.” (p. 264) It further states that “we believe the FBI’s potential use of [REDACTED] to obtain records has significant policy implications that need to be considered by the FBI, the Department, and the Congress.” (p. 265) And finally, it states that the OIG recommends “that the Department notify Congress of this issue and of the OLC opinion interpreting the scope of the FBI’s authority under it, so that Congress can consider [REDACTED] and the implications of its potential use.” (p. 268)

In light of the OIG’s recommendation, please provide Congress with the January 8 OLC opinion immediately.

Remember, as members of the Senate Judiciary Committee, Feingold and Durbin (and probably Senate Intelligence Committee member Wyden) have seen the unredacted report, including a description of the OLC’s agreement of the FBI’s use of the letters. And now they’re demanding the opinion itself.

Though, you’d think that, given Fine’s recommendation that DOJ “notify Congress … of the OLC opinion,” the Senate wouldn’t have had to ask.

Why We Can’t Fix Wall Street

There are two articles out that provide the beginning of an explanation of why even good progressives like Dick Durbin and Barney Frank can’t fix our finance system.

Trade Organizations as a Wing of the Republican Party

First, there’s the smoking gun proof that–at a moment when big banks were preparing to negotiate with Dick Durbin on cramdown legislation–banking’s trade organization was attacking that cooperation in conjunction with Republicans. HuffPo’s Sam Stein has posted the email from Tanya Wheeless, president & CEO of Arizona Bankers Association.

Subject: Cramdown Update

Hi All–

Just a quick update in case you were not aware. I’m sorry to say that Chase, Wells, and B of A have been working with Durbin on a cramdown compromise since last week. So far, none of the national trades are at the table. I’ve been told that ICBA is working on a press release to admonish them for trying to cut a deal. The good news is, they aren’t there yet. Apparently, they gave Durbin a wish list awhile back and in his desperation to get something, he’s given on most everything. Reid told Durbin he had until the end of recess to get something done, but it looks like Reid may be willing to wait a little longer if they’re at the table.

I have contacted the market presidents for each of the three banks and explained that in my humble opinion it’s a big mistake to cut a deal with Durbin and alienate our (in Arizona) Senator. I also told them that I thought this would drive a wedge in our industry. Kyl has pointedly told them not to make a deal with Durbin and then come looking to Republicans when they need help on something like regulatory restructuring or systemic risk regulation.I know the [sic] every state association will have to do what’s best for its members, but I have told my largest three members that if they cut this deal, AzBA will fight them on it. They may be willing to alienate Republican leadership, but I’m not quite there yet.

This is the President of a trade association, bullying her largest members, to serve the command of John Kyl. (Arizona, of course, is one of the leading states for foreclosure rates, so Kyl is basically working directly against the interest of his constituents.) And, voila, we still don’t have cramdown. Or, for that matter, regulatory reform (yet).

Hiding the Banks behind the Airplanes

Meanwhile, this Michael Hirsh article explaining how Barney Frank failed to close some loopholes in derivatives legislation describes Main Street companies fronting the lobbyist efforts of the banks–so basically Main Street appears to be fighting to keep the customized derivatives that their bankers charge them extra for.

According to insiders and industry e-mails obtained by NEWSWEEK, the banks have sought to stay in the background and put their corporate customers—a who’s who of American business, including Apple, Whirlpool, and John Deere—out in front of the campaign. Read more

DiFi and Pat Leahy, Silencing the Librarians

librarian-shh.thumbnail.jpgThere’s a cynical passage in the new PATRIOT language that DiFi put forward the other night. It basically creates an exception in the worsened Section 215 language just for libraries.

‘‘(B) if the records sought pertain to libraries (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), including library records or patron lists, a statement of facts showing that there are reasonable grounds to believe that the records sought—‘‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against inter-national terrorism or clandestine intelligence activities; and ‘‘(ii)(I) pertain to a foreign power or an agent of a foreign power; ‘‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ‘‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

This language requires that before investigators demand libraries turn over records, they must first prove that the person to whom the records pertain is either an intelligence investigation suspect, or is in contact with one. So for library records, and library records only, the new language requires some showing of reasonable cause first before the investigators can request the information.

During the hearing, Ben Cardin asked why there was a special standard for libraries (at about 108:30 in the hearing). Kyl offered this explanation for the exception (one he disagrees with):

Kyl: There was such a–I would say–unwarranted and irrational, and I certainly don’t apply that word to anyone here but from some folks out in the country–concern about library records as the result of blogs and so on, it was simply easier to say, okay, cut it loose, it’s important but not that important to hold up the rest of the legislation.

[snip]

In order to get rid of the political argument that was, essentially, irrelevant in almost all investigations, it was simply easier to cut that lose and have a different standard for it.

Durbin then calls Leahy and Kyl on their cynicism, arguing that the exception just for libraries proves that the underlying principle of Section 215, as written, is unsound.

Durbin: Senator Kyl raised an interesting question. Why aren’t more people complaining about this if it is such a problem? Read more

On PATRIOTs and JUSTICE: Feingold Aims for Justice

Over the last two days, I described what Patrick Leahy’s bill renewing the PATRIOT Act does and noted Russ Feingold’s complaints that, thus far, the debate on PATRIOT is happening without we citizens knowing how PATRIOT (and FISA) have been used. Today, I wanted to talk about how I think Leahy’s PATRIOT renewal (and a bill to reverse retroactive immunity) appears to be an attempt to forestall Feingold’s efforts to roll back those unrevealed uses of PATRIOT and FISA.

Before I get into what is in Feingold’s JUSTICE bill, first understand the timing. Feingold introduced his bill before Leahy (with Ed Kaufman, the Vice President’s stand-in, co-sponsoring) introduced PATRIOT renewal. Leahy explicitly integrated select aspects of Feingold’s bill into the PATRIOT renewal. And tomorrow, the Senate Judiciary Committee will mark up the PATRIOT renewal.  Since Feingold’s JUSTICE is premised on improving FISA while renewing PATRIOT, Feingold’s measures that don’t get included in tomorrow’s markup will be much more difficult to pass.

As a reminder, here was my summary of Leahy’s bill:

So to summarize, the Leahy bill (which is co-sponsored by Ben Cardin, Ed Kaufman, and Bernie Sanders) would do the following:

  • Extend the roving wiretap, Section 215 (tangible things), and “lone wolf” provisions of the PATRIOT Act to 2013
  • Mandate further audits of some of these provisions, such as the use of pen registers
  • Give the Court oversight over the minimization procedures for the use of Section 215 and pen register and trap and trace devices
  • Require that Section 215 and pen registers only be granted if authorities can show that the requested information has ties to terrorism
  • Gives recipients of NSLs and Section 215 orders greater means to appeal the gag order associated with it

In his testimony at least week’s hearing, Leahy had the following to say about Feingold’s bill:

I have consulted with Senators Feingold and Durbin, who introduced a more expansive bill last week, and, with their encouragement, borrowed a few accountability provisions from their proposal.

[snip]

Requiring FISA Court approval of minimization procedures would simply bring Section 215 orders in line with other FISA authorities — such as wiretaps, physical searches, and pen register and trap and trace devices — that already require FISA court approval of minimization procedures. This is another common sense modification to the law that was drafted in consultation with Senators Feingold and Durbin. Read more

Philip Zelikow: How BushCo Gamed the Briefing Process

One more important point on the briefing process.

In this exchange between Dick Durbin and Philip Zelikow, Zelikow makes clear how the briefing process is supposed to work.

ZELIKOW: Formally, what’s supposed to happen is, a memorandum of notification is prepared that lets key members of Congress know that a program is being undertaken with the authorization of the president, pursuant to some prior presidential finding.

And therefore, members of Congress are being informed…

DURBIN: After…

ZELIKOW: … pursuant to this finding, we are now doing certain things.

DURBIN: After the fact?

ZELIKOW: It could be after the fact. It should be at the time the program is initiated and before the program is implemented, so that it appears that you’re taking the congressional consultation seriously, which the administration should.

The President prepares a memorandum of notification for "key members" of Congress to let them know a program "is being undertaken with the authorization of the president, pursuant to some prior presidential finding." So: a finding, then authorization.

Durbin presses him on whether Congressional notification should be before or after and Zelikow states that–so "it appears" that you’re taking Congressional consultation seriously–the notification should happen at the time the program is initiated (which, in the case of the torture program, would have been no later than July 2002). 

Now, when Durbin asks Zelikow directly whether Congress got that before the fact briefing in this case, Zelikow claims ignorance. 

DURBIN: So, when members of Congress were briefed of this, was it before the fact? Were they being asked to authorize these techniques and give their approval?

ZELIKOW: Sir, I think Senator Feinstein mentioned, SSCI is apparently really trying to break down the chronology. The Office of the Director of National Intelligence has been publicizing chronologies of briefings, which then need to be matched up against when we were actually doing things.

And so, the honest answer is, I don’t know whether folks were briefed before the fact.

Yes, Zelikow, you do know whether folks were briefed before the fact. There’s the SSCI narrative (to which DiFi’s work–alluded to by Zelikow–is follow-up), which states clearly that Congress got briefed after Abu Zubaydah had already been tortured.

In the fall of 2002, after the use of interrogation techniques on Abu Zubaydah, CIA records indicate that the CIA briefed the Chairman and Vice Chairman of the Committee on the interrogation. [my emphasis]

Or, you can compare this passage from the Bradbury memo

The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah.

… with the CIA briefing list showing the first Congressional briefing on September 4, 2003. Read more