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The Silent Cast of Characters in the Very Noisy Recent Mueller Moves

A fuck-ton has happened in the Mueller investigation already this month. Amid the noisy pleas and indictments, we’ve seen indications of hidden cooperation from a range of people, cooperation that may point to where Mueller’s next steps are.

Here, arranged by the date of the development, are hints at who either was or soon is likely to be talking to Mueller’s team.

February 1: In a proffer to Mueller’s team, Rick Gates lied about a March 19, 2013 meeting with Paul Manafort, Vin Weber, and Dana Rohrabacher.

Rohrabacher’s statement in response to the guilty plea is inconsistent with the version laid out in the plea, suggesting he’s not the means by which Mueller’s team learned it was a lie.

After the guilty plea on Friday, a spokesman for Rohrabacher, who has sought better relations with Russia, said: “As the congressman has acknowledged before, the meeting was a dinner with two longtime acquaintances –- Manafort and Weber –- from back in his White House and early congressional days.”

“The three reminisced and talked mostly about politics,” the spokesman said. “The subject of Ukraine came up in passing. It is no secret that Manafort represented Viktor Yanukovych’s interests, but as chairman of the relevant European subcommittee, the congressman has listened to all points of view on Ukraine.”

This suggests someone else provided the version of the meeting the government included in the plea. While it’s possible the other version came from Gates’ former lawyers, it’s more likely the version came from someone else. Vin Weber is the most likely source of that information.

Back in August 2016, as news of the secret ledger was breaking,Weber suggested he may have been misled by Manafort, both as to the purpose of his lobbying and regarding the need to register as a foreign agent for Ukraine. If he felt that way in August 2016, I imagine he came to feel that even more strongly as Manafort’s legal woes intensified.

February 9: Returning a call from John Kelly but speaking to Don McGahn, Rod Rosenstein spoke of “important new information” about Jared Kushner that will delay his clearance.

Given all the evidence that suggests Jared faces very significant exposure in this investigation, this new information could be any number of things. But two possibilities are likely. First, it might reflect Jared’s January 3 disclosure of additional business interests in yet another update to his SF-86, or his family’s increasing debt over the last year.

More likely, it reflects things the government has learned from Mike Flynn (who has an incentive to burn Jared, given that the President’s son-in-law was asked for and didn’t provide exonerating information tied to Flynn’s own lies to the FBI). Indeed, that seems to be one theory of those who reported on this phone call.

Kushner’s actions during the transition have been referenced in the guilty plea of former Trump national security adviser Michael Flynn, who admitted he lied to the FBI about contacts with then-Russian Ambassador Sergey Kislyak. Prosecutors said Flynn was acting in consultation with a senior Trump transition official, whom people familiar with the matter have identified as Kushner.

All that said, there are two more possibilities. Given that she appears to have lied to the Senate Foreign Relations Committee in her confirmation process, KT McFarland would be an obvious follow-up interview after the Mike Flynn plea; she asked Trump to withdraw her nomination to be Ambassador to Singapore on February 3. And February 9 might be (though probably isn’t, quite) late enough to catch the first sessions of Steve Bannon’s 20 hours of interviews with Mueller, and Bannon has long had it in for Jared.

February 14: Alex Van der Zwaan got caught and pled guilty to lying about communications he had with Rick Gates, Konstantin Kilimnik, and Greg Craig in September 2016. On top of whatever he had to say to prosecutors between his second interview on December 1 and his plea on February 14, both Craig and Skadden Arps have surely provided a great deal of cooperation before and since September 2016. (As I was finishing this, NYT posted this story that details some, but not all, of that cooperation.)

February 16: As I noted in my post on the Internet Research Agency indictment, Rod Rosenstein was quite clear: “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” That said, there are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

Again, the DOJ convention of naming makes it clear these people have not been charged with anything. But we know from other Mueller indictments that those specifically named (which include the slew of Trump campaign officials named in the George Papadopoulos plea, KT McFarland and Jared Kushner in the Flynn plea, Kilimnik in the Van der Zwaan plea, and the various companies and foreign leaders that did Manafort’s bidding, including the Podesta Group and Mercury Public Affairs in his indictment) may be the next step in the investigation. As a reminder: Florida Republicans are those who most tangibly can be shown to have benefitted from Russia’s hack-and-leak, given that Guccifer 2.0 leaked a slew of Democratic targeting data for the state. (In perhaps related news, this week Tom Rooney became the third Florida Republican member of Congress to announce his retirement this cycle, which is all the more interesting given that he’s been involved in the HPSCI investigation into Russian tampering.)

February 23: Manafort’s superseding indictment (a version of which was originally filed February 16) added the description of the Hapsburg Group for former European officials who lobbied at the direction (to some degree via cut-outs) of Manafort.

MANAFORT explained in an “EYES ONLY” memorandum created in or about June 2012 that the purpose of the “SUPER VIP” effort would be to “assemble a small group of high-level European highly influencial [sic] champions and politically credible friends who can act informally and without any visible relationship with the Government of Ukraine.” The group was managed by a former European Chancellor, Foreign Politician A, in coordination with MANAFORT.

It may be that the government only recently obtained this document (meaning it was not among the 590,000 pages of documents obtained and turned over to Manafort in discovery thus far). But it’s likely this also reflects further testimony. Former Austrian Chancellor Alfred Gusenbauer denied he is Foreign Politician A to BBC, though that may be a non-denial denial tied to his claim he wasn’t directed by Manafort and only met him a few times (this Austrian story suggests only he doesn’t remember what American or English firm paid him). NYT reported that Gusenbauer’s lobbying during the relevant time period was registered under Mercury Public Affairs. This is another piece of evidence suggesting the group — and Vin Weber personally — has been cooperating since the original indictment.

Note, I assume that Mercury/Weber’s cooperation has been mirrored by Tony Podesta’s.

Konstantin Kilimnik’s PRISM-Accessible Communications

I doubt I’ll be done working my way through the new Paul Manafort and Rick Gates charges before such analysis would be overtaken by events (like the on-again flip of Gates). For now, Quinta Jurecic’s analysis is quite good.

Before I start, though, I want to go back and look at a detail from the Alex van der Zwaan plea materials (information, plea, statement of offense).

Best as we understand, former Skadden associate van der Zwaan pled guilty, with no forward cooperation requirement, for having hidden some communications he had with Rick Gates, Greg Craig (who must be the senior partner described), and Konstantin Kilimnik (believed to be Person A) in September 2016 about the aftermath of a report Skadden had done on the prosecution of Yulia Tymoshenko.

In or about September 2016, VAN DER ZWAAN spoke with both Gates and Person A regarding the Report. In early September 2016, Gates called VAN DER ZWAAN and told him to contact Person A. After the call, Gates sent VAN DER ZWAAN documents including a preliminary criminal complaint in Ukraine via an electronic application called Viber. VAN DER ZWAAN then called Person A and discussed in Russian that formal criminal charges might be brought against a former Ukrainian Minister of Justice, Law Firm A, and Manafort. VAN DER ZWAAN recorded the call. VAN DER ZWAAN then called the senior partner on the Report at Law Firm A and partially recorded that call. Finally, VAN DER ZWAAN called Gates and recorded the call. VAN DER ZWAAN also took notes of the calls.

Prior to the November 3, 2017, interview, VAN DER ZWAAN did not produce to Law Firm A and deleted and otherwise did not produce emails he possessed that he understood had been requested by either the Special Counsel’s Office or Law Firm A, or both, including an email in Russian dated September 12, 2016 in which Person A asked VAN DER ZWAAN to contact Person A and to use an encrypted application.

One thing Van der Zwaan would have hidden was that he communicated with Gates after Paul Manafort had left the campaign, September 2016, as the Trump campaign was trying to clean up their taint from Manafort’s Ukraine stench.

Given the details in the information, it appears that in his November 3, 2017 interview, after he lied about when he had most recently talked with Kilimnik and Gates, he was asked about the email he didn’t turn over to Skadden and the government.

During the November 3, 2017, interview, VAN DER ZWAAN knowingly and intentionally falsely stated the following:

a. his last communication with Gates was in mid-August 2016, which consisted of an innocuous text message;

b. his last communication with a longtime business associate of Manafort and Gates in Ukraine (Person A) was in 2014, when he talked with Person A about Person A’s family; and

c. he did not know why Law Firm A had not produced to the Special Counsel’s Office a September 2016 e-mail between him and Person A.

This seems to suggest that before the end of Van der Zwaan’s first interview, they already confronted him with the fact that he was lying.

But that wasn’t his only interview. Van der Zwaan had a second interview (where he apparently added to his lies) on December 1. (NYCSouthpaw made this observation.)

I’ll probably return to the second interview.

For now, what I’m primarily interested in is that on November 3, 2017, the government had the email between Van der Zwaan and Kilimnik where the latter told the former to move their conversation to an (unnamed) encrypted app, and by the end of the interview confronted him with that fact.

I previously noted (with surprise) that Kilimnik used Gmail for his November 2017 correspondence with Paul Manafort helping to edit an op-ed to push back against his charges. If Manafort didn’t already know the Feds had obtained a bunch of Gmail (and — as  yesterday’s superseding indictment makes clear, his own firm’s email), a sealed December 8 declaration that was unsealed on January 3 would have made that clear.

It continues to surprise me that these thugs never thought about how accessible PRISM-based communications were to the Feds, unless Kilimnik has reason to be happy that his American correspondents will be seen by the FBI.

I guess it’s not just Hope Hicks who underestimates how accessible email is to criminal investigators.

Harold Koh Relitigates the Argument He Already Lost

The NYT thinks the takeaway “news” of Harold Koh’s speech on Forever War is his call for more transparency on drone killing. Yet that Koh supports more transparency on drones is not news. Daniel Klaidman has been reporting that since January 2012.

What’s newsworthy about this call for transparency, though, is how shrill it is.

But since then, to be candid, this Administration has not done enough to be transparent about legal standards and the decisionmaking process that it has been applying. It had not been sufficiently transparent to the media, to Congress, and to our allies. Because the Administration has been so opaque, a left-right coalition running from Code Pink to Rand Paul has now spoken out against the drone program, fostering a growing perception that the program is not lawful and necessary, but illegal, unnecessary and out of control. The Administration must take responsibility for this failure, because its persistent and counterproductive lack of transparency has led to the release of necessary pieces of its public legal defense too little and too late.

As a result, the public has increasingly lost track of the real issue, which is not drone technology per se, but the need for transparent, agreedupon domestic and international legal process and standards.

Perhaps this shrillness is why Koh ends the speech with a grandiose invocation of our “better angels.”

Because I am an American who loves his country, I have served it for ten years of my professional career. My former professor and former Legal Adviser Abram Chayes once said, after he had sued the United States government from the academy, “I have always thought there is nothing wrong with an American lawyer holding the United States to its own best standards.” It is in that spirit that tonight, from this important podium, I call my country to its own best values and principles. As President Lincoln famously said, there is still time–indeed, it is high time– for Americans once again to answer to the “better angels” of our national nature.

Though it should be noted that Attorney Abe Lincoln appealed for us to answer to our better angels at the beginning of his service in the Executive Branch, not after he had left that position of influence (something John Wilkes Booth prevented in any case). Why is Harold Koh saying this now?

After all, this battle, the battles for transparency, for “discipline” in the drone program, and for closing Gitmo, are all battles he fought and lost while he was still in government.

It’s how Koh relitigates the last of those battles, closing Gitmo, I find most interesting. He calls for the appointment of a Greg Craig type to implement the plan Craig tried to implement himself in the first year of the Obama Administration.

First, and foremost, he must appoint a senior White House official with the clout and commitment to actually make Guantanamo closure happen. There has not been such a person at the White House since Greg Craig left as White House Counsel in early 2010. There must be someone close to the President, with a broad enough mandate and directly answerable to him, who wakes up each morning thinking about how to shrink the Guantanamo population and close the camp.

Second, this White House Envoy need not develop a new paradigm for closing Guantanamo. He or she merely needs to implement the National Archives framework that the President announced three years ago. The White House Envoy should lead the Administration’s efforts to implement the three-part framework for closure of the Guantanamo detention facility specified in the President’s 2010 speech at the National Archives. That speech described a framework for how this closure could happen: through diplomatic transfers of those individuals who could be safely transferred, prosecution of those who can be tried before civilian courts when possible and military commissions where that is the only option, and third, by commencing the long-overdue legally mandated periodic review of so-called Law of War Detainees to see if any can be released, because of changes either in their attitude or in the conditions of the country to which they could be transferred.

Now, I’m all in favor of closing Gitmo and this might be one way to do it. Koh actually improves on the prior plan by admitting the indefinite detainees will have to be released as the war is over, which is legally correct but misapprehends why they’re not being released and why we have to have a Forever War to justify keeping them silent and imprisoned forever.

But Koh’s map for closing Gitmo also misrepresents why appointing Greg Craig himself to carry out the Gitmo task didn’t work. Read more

“The President Ultimately Made the Call”

GQ has another of those articles describing Eric Holder’s failed efforts to restore DOJ’s independence and sustain rule of law as Attorney General. There are a few new details in there — such as details of what torture was described in the CIA IG Report but must be among the redactions (notably, strangling of one prisoner).

As he flipped through the pages of one report, Holder told me, reading descriptions of field agents holding a power drill to the head of one prisoner, strangling another, battering some, waterboarding others, and threatening to rape their wives and children, he was filled with “a combination of disgust and sadness.”

The piece is more rich in capturing Holder’s self-denial, his attempts to ignore that his actions directly violate principles he laid out before he became Attorney General.

“But before the inauguration,” I said, “both you and the president said that habeas should apply to enemy combatants.”

“I’m not sure I ever opined on that,” Holder said.

“I could read you a quote.”

Holder laughed uncomfortably.

“Here’s the quote: ‘Our government authorized the use of torture, approved secret electronic surveillance without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants,’ and a few other things.”

Holder was silent. “But I was talking about Guantánamo,” he said. “I’m pretty sure I was talking about Guantánamo.”

But I’m most interested in a fairly subtle moment, when a former White House official (it might be someone like Greg Craig) made it clear that Obama, not Rahm, made the decision to have the White House pick the venue for Khalid Sheikh Mohammed’s trial.

“It was wildly unfortunate,” says David Ogden, Holder’s former deputy attorney general. “The president gave that decision to the attorney general. The attorney general made it. Then the White House had to deal with a political reality in Congress. And the situation was assessed as being politically untenable.” Others are less forgiving, calling Obama’s capitulation an insult to Holder and a regression to the arbitrary policy of the Bush years. “There is an important principle at stake here,” Holder told me. “You don’t shy away from using this great system for political reasons. It hampers our ability as we interact with our allies if we don’t stand for the rule of law when it comes to a case that is politically difficult to bring.” Among Holder’s political allies, the blame for KSM lay not with Rahm but Obama. “Rahm was critical,” says one former White House official. “But the president ultimately made the call.”

The whole piece seems to lay out Holder’s angst as he decides to stick around after being stripped of his independence. Given this detail — the the President himself replaced justice with politics — he really ought to think seriously about regaining his principle by leaving.

As Axe Slams Rahm from One Side, Greg Craig Slams from the Other

I trust it’s not a coincidence that at the same time David Axelrod is skewering Rahm from within the White House, Greg Craig is getting picked up on a live mike (oops!) skewering him from the outside.

“The great thing about it, if Rahm goes to run for mayor, is that Eric survived,” Craig said, according to an audio recording of the Sept. 21 event.

The National Law Journal requested a copy of the recording from the law school, and the school provided one. The recording includes Craig’s speech and a question-and-answer session, as well as two and a half minutes of pre-speech banter between Craig and Trevor Morrison, a Columbia law professor who introduced Craig to the audience. They touched on Holder’s relationship with Emanuel and on the case of accused terrorist Ahmed Khalfan Ghailani.

As Craig suggests, Emanuel’s departure would mean Holder will have outlasted an internal rival with whom, according to news reports, Holder has repeatedly clashed on subjects like the venue for trying terrorism suspects. And it would mean Emanuel wouldn’t be around to attempt to force Holder out if tensions flared again.

[snip]

A questioner asked Craig why he left. Craig responded that he did so for “a number of different reasons,” and then he focused squarely on Emanuel.

“One of the reasons was that I did not get along with the chief of staff well,” Craig said, “and I think that the coordination between the White House counsel and the chief of staff is vital to the success of the working of the White House.”

Though, I’d challenge Craig: What good has Holder’s outlasting Rahm done after Friday’s audacious claim to unlimited power? There’s no indication at all that Rahm was pushing Holder to submit a motion basically saying, “the President can kill any American, and he doesn’t have to show the Courts any justification for why, which is good because we can’t even make a good argument to support it.” I mean, sure, Rahm had a big hand in pissing away Obama’s bid to moral standing. But Holder’s DOJ has simply embraced the disdain for law that Rahm handed them and run with it, all on their own now.

The Things Bob Bauer Was Doing before Taking over Ethics

The White House Ethics Czar, Norman Eisen, has gotten himself nominated to serve as Ambassador in one of the greatest places on earth, Prague, Czech Republic. To replace the function of Ethics Czar, the White House has announced that White House Counsel Bob Bauer will take over, and Steven Croley (who worked on the campaign) will lead a team of six to oversee ethics.

Ethics wonks are mixed about whether this arrangement will meet the high standards Obama set when he came into the White House. POGO’s Danielle Brian takes Bauer’s appointment as a good sign that ethics will continue to be a priority. OMB Watch’s Gary Bass is happy the White House worked so quickly to implement a plan to replace Eisen. But Sunlight Foundation’s Ellen Miller views the appointment of Bauer–who has a history of supporting bad ethics habits–as a setback.

This concern is magnified manifold when Eisen’s key successor – Bauer — can hardly be described as having the DNA of a ‘reformer.’  This is the man who invented the rationale for the acceptance of “soft money’’ – unregulated (chiefly corporate) funds that flooded elections to the tune of $1.5 billion between 1992 and 2002, and the man who sided with arch conservatives in their defense of lack of transparency.

[Update: CREW has concerns as well.]

I’ll leave it to the ethics wonks to decide whether Bauer can do the job–on ethics–well or not. And FWIW, the one time I’ve seen Bauer’s work close up (during an election-related suit here in MI in 2008), I thought he was the kind of fighter Dems need more of.

But I am worried about what this says about the Administration’s focus on two other critically important functions. You see, when Bauer took over for Greg Craig, he was hailed as the kind of guy who could solve two problems Craig had failed to: judicial confirmations and closing Gitmo.

Read more

When Kagan Defenders Hurt Her Case

Greg Craig, who was ousted from the Obama Administration because he’s too much of a purist on archaic things like the Constitution, reassures us that Elena Kagan is largely a “progressive” in the mold of the guy who ousted him.

David Iglesias: Obama’s Used Car Salesman For Gitmo Show Trials

In January of 2009, right after Obama’s inauguration, there was a swell feel good buzz about the fact David Iglesias, the media darling face of Bush US Attorney Purgegate victimology, had been tapped to be part of a special team of prosecutors to bring sanity to the detention and prosecution of Guantanamo detainees. Iglesias said:

We want to make sure that those terrorists that did commit acts will be brought to justice — and those that did not will be released.

As with so many other facets of the nascent Obama Administration’s promise on the interests of justice, it appears to have been shiny window dressing for the same old story, same old song and dance. A year and change later the same duplicity, bad faith, and specious claims based on vapor and evidence from torture permeates the Obama handling of Gitmo detainees as it did under Bush and Cheney. That is not my conclusion, not that of the “far left progressives”, but that of impartial Federal judges like Henry H. Kennedy.

And today we have yet another reminder that nothing has changed. Iglesias, the photogenic exemplar of A Few Good Men is being walked out once more to shill for the return of Gitmo Show Trials. From Carol Rosenberg:

For hearings on whether U.S. forces tortured confessions out of a Canadian teenager accused of killing an American soldier in Afghanistan, the Pentagon Monday unveiled a new face to advocate military commissions:
Fired former Bush-era prosecutor David Iglesias, a key figure in the so-called Attorney-Gate scandal. He was mobilized last year to the war court as a U.S. Navy Reserves captain.
…..
Monday, Capt. Iglesias was part of a Pentagon prosecution team going to Guantánamo for up to two weeks of hearings on which, if any, of Omar Khadr’s confessions cannot be presented to a jury at his summertime trial.
….
The chief war crimes prosecutor, Navy Capt. John F. Murphy, is leading the Khadr team in court. So the Pentagon tapped Iglesias to brief 35 reporters leaving from Andrews Air Force Base on Monday for the remote U.S. Navy base in Southeast Cuba, a larger than usual number of worldwide media traveling to the base for this week’s hearings. Many are Canadian.

Earlier in his Navy lawyer career, Iglesias has said, he worked on a hazing case that became a basis for the Hollywood hit set in Guantánamo, A Few Good Men, starring Tom Cruise and Jack Nicholson. Since then he has emerged a telegenic critic of Bush era policies.

So there you have it, the white knight Iglesias is not leading the legal charge cleaning up the detention/Habeas cases and prosecution status of the rickety and ill defined military commission effort, he is serving as the used car huckster for the old status quo. I guess Cal Worthington and his dog Spot were not available.

Lest anyone mistake the cravenly serious nature of what is really at stake here, Iglesias is being trotted out to sell a return to military commissions with few established known standards, that have been scorned and blasted by a conservative Supreme Court and, just for kicks, the government is fighting tooth and nail – complete with Holywood Iglesias – for the admissibility of tortured confessions from a child, Canadian Omar Khadr, in a military tribunal to be convened at Guantanamo. Gitmo, the gulag Obama railed on while a candidate and promised to close within Read more

Koh v. Johnson: Material Support in Far Away “Battlefields”

I don’t know about you. But I’m sort of bored with the Holder v. Rahm fight over torture and Gitmo. My hope is they’ll start a military commission trial, it’ll get delayed and challenged, and Holder will be able to demonstrate in terms even Rahm understands that civilian trials are not just a question of politics–they are also clearly more efficacious.

Ah well.

Lucky for us, there’s a new debate to watch, this one between State Department Legal Advisor Harold Koh and DOD General Counsel Jeh Johnson, over whether Presidential wartime powers are limited to those actually in al Qaeda, or include those more loosely affiliated with the organization. As Charlie Savage describes, both have written secret memos advocating a position on the issue.

But behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia — far from the active combat zone — and was being held without trial by the United States at Guantánamo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such “direct support” was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.

The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.

That view was amplified after Harold Koh, a former human-rights official and Yale Law School dean who had been a leading critic of the Bush administration’s detainee policies, became the State Department’s top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.

Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

Part of me actually wonders whether the debate stems at least partly from Johnson’s greater familiarity with whom we’re already keeping–which includes a bunch of people whose “material support for terrorism” is really quite tenuous. That doesn’t justify holding them, but this may be a question about whom we have already held for 9 years.

Still, the ramifications of holding those who materially supported al Qaeda are pretty ominous, given the fairly expansive notion this country has used to claim material support.

And meanwhile, David Barron–Dawn Johnsen’s stand-in–basically punted on this question, seemingly hoping that some judge who is not a radical Bush appointee will make the decision for him.

The Anonymous Coward Calling Holder Weak

Time has another one of those Rahm v. Holder profiles. It is notable from the slew of other ones for two reasons.

The anonymous source calling Holder a coward

First, the story features several main sources for this story: Lindsey Graham, speaking on the record.

Holder, issuing no-nonsense statements like this, on the record:

And it’s Holder’s experience in the law-enforcement system that makes him such a strong believer in its ability to put terrorists like KSM away forever. “We should have great faith in the resilience of our systems, the resilience of our people, the toughness that has always separated Americans from other peoples in this world, and that’s what’s made this country great,” he says.

And at least one anonymous White House aide (AKA Rahm).

What I especially love about about that anonymous White House aide is that the guy who is too chicken to speak on the record seems to be parroting GOP attacks calling Holder weak on terror.

Republicans, meanwhile, were busy turning Holder into the poster child for White House weakness on terrorism, and some polls showed that most Americans agreed with them. “The only two people who still believe in civilian trials,” says one of the meeting’s attendees, “are Holder and the President.”

Brave anonymous White House aide!! Singlehandedly fighting terrorism by hiding behind anonymity!!

Lindsey’s July (?) meeting with Holder and December meeting with Obama

The article also provides a useful timeline for two meetings Lindsey had with the Administration, first an July (or August) meeting with Holder.

By July, Obama had asked Holder to decide whether it was feasible to prosecute KSM in a civilian court. Holder chewed on that question for weeks. Meanwhile, Obama’s chief of staff, Rahm Emanuel, who opposed civilian trials, asked Holder to meet with Republican Senator Lindsey Graham of South Carolina, a key centrist vote on matters of counterterrorism. Graham told Holder he strongly opposed civilian trials for the alleged 9/11 conspirators and that they could affect his support for closing Guantánamo Bay prison, a key Obama goal.

And then a December meeting with Obama.

When Obama met with Graham in early December, the Senator laid out his case against civilian trials. But the President said he thought Holder had the better side of the argument. “I just agreed to disagree with the President on that issue,” Graham told TIME.

Those meetings are interesting both for the way they match up to the timeline of the attacks on Holder and Greg Craig (which started in earnest around the time of the first meeting, and culminated in the December meeting after Craig had been ousted.

I’d really love to know the logic for the Obama meeting. After all, this was before the Christmas day bombing, when the Administration was still basking in the success of the foiled Zazi plot. And it came at a time when the Democrats had 60 votes in the Senate.

So why meeting with Lindsey?

It sure suggests the push against civilian trials is more about politics than efficacy.

But we knew that.