Obama’s Signing Statement Disappears Whistleblowers

When I suggested the other day that Obama’s memo on signing statements was actually very troublesome–in that there’s no transparency for which of Bush’s signing statements Obama plans to keep and in that we never learn which of those Bush relied on to break the law–a few people suggested I was being cynical. Really, the most common interpretation of the memo went, the memo was a sign of change we can believe in, a new willingness to be bound by law.

As it turns out, the memo appears to have been released (almost two months into Obama’s term, after all) to lay the groundwork for Obama’s first signing statement.

Charlie Savage (who wrote the book on this stuff) lays out the contents–mostly statements saying Obama refuses to spend money with the oversight from Congress they’ve demanded.  

One of the budget bill’s provisions that Mr. Obama said he could circumvent concerns United Nations peacekeeping missions. It says money may not be spent on any such mission if it entails putting United States troops under a foreign commander, unless Mr. Obama’s military advisers so recommend.

“This provision,” Mr. Obama wrote, “raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as commander in chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority.”


But a majority of the challenged provisions are those allowing money to be reallocated to a different program only with the approval of a Congressional committee. Mr. Obama called the provisions “impermissible forms of legislative aggrandizement” and declared that while executive-branch officials would notify lawmakers of any reallocation, “spending decisions shall not be treated as dependent on the approval of Congressional committees.”

So much for power of the purse.

The provision I’m most worried about, however, is one on whistleblowers. You see, the President who has promised transparency, apparently doesn’t want transparency to Congress when an executive agency fucks up.

He also raised concerns about a section that establishes whistle-blower protections for federal employees who give information to Congress.

“I do not interpret this provision,” he wrote, “to detract from my authority to direct the heads of executive departments to supervise, control and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

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Dana Jill Simpson and Greg Craig

I’m not entirely sure what to make of this (written by Dana Jill Simpson’s lawyer to White House Counsel Greg Craig)–besides that this is what you get when you hire an uber-insider like Greg Craig to be your White House Counsel. And that if we can tie Richard Shelby to the Siegelman mess (remember, Jeff Sessions is already in deep), then I’d be okay with that.

I represent Dana Jill Simpson, an attorney in Rainsville, Alabama, who testified before Congress in September 2007, regarding Karl Rove’s involvement in the U.S. Justice Department prosecution of Gov. Don Siegelman.

She is very concerned that you have violated the Rules of Professional Conduct 1.6 , 1.7 and 1.10, while citing 1.9 to decline representation. She is equally concerned about the person or persons to whom you have divulged her confidential information. Your recent efforts on the part of negotiating a settlement between Congress and Karl Rove have been noted, as well as your efforts to delay matters before the D.C. Court of Appeals, regarding Rove and other Bush administration officers claiming executive privilege.

For this reason, she is asking that you step down from your position as White House Counsel, at least in all matters dealing with the Bush administration. Further, she is asking that you furnish her with a list of each and every person with whom you have communicated regarding this matter; that is, Miss Simpson’s affidavit, testimony, knowledge, research and any other matters touching or information furnished by Miss Simpson. In recapping the events linking you and
Miss Simpson:

1.) Upon information and belief, Gov. Don Siegelman or his agent made the direct call to you at your law firm, Williams & Connolly, soliciting your pro bono representation of Ms. Simpson, with regard to her affidavit about Karl Rove’s involvement in Siegelman’s prosecution.

2.) According to Ms. Simpson, you called her up to four times on or about March 16-17, 2007, and you faxed her your resume.

3.) She initially asked, “Before we really start this, do you have any contacts with George Bush, Karl Rove, Don Siegelman or Bob Riley?”

4.) You indicated you did not and said, “Tell me who this is about.”

5.) Your initial conversation with Ms. Simpson lasted about 10 to 15 minutes.

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Obama’s Response to the al-Haramain Smack-Down? Cheneyesque Reasoning

The Executive Branch’s Cheneyesque claim that it has a stranglehold on classified information is crumbling around Cheney’s rancid flesh.

Courts Get to Determine Classified Information for Their Trials

First there was the ruling, earlier this week, in the AIPAC case, which imagined mere jurors–as distinct from elites like Cheney–could determine what counted as classified information.

Now the interesting thing here is that the court is accepting that classified information, whether or not it ought to be classified, and whether or not it will necessarily harm the United States if made public, is not the exclusive domain of the Executive, but may be intruded upon by the court.

Or, as the al-Haramain lawyers described it in their brief to the 9th Circuit, Courts get some say over what is classified.

A new decision further confirms 1 Judge Walker’s authority to allow plaintiffs’ counsel to use a redacted version of the Sealed Document to demonstrate standing. In United States v. Rosen, No. 08-4358, 2009 WL 446097, at *6 (4th Cir. Feb. 24, 2009), the Fourth Circuit held that, in proceedings under the Classified Information Procedures Act to determine whether classified evidence was relevant and admissible, the district court did not abuse its discretion in determining the extent to which the evidence should be redacted. Similarly here, Judge Walker has discretion to make that determination.

(Someone’s been reading their bmaz.)

Lawyers Get to See Classified Information Their Clients Need for Their Defense

Then, in a ruling that came out earlier this week, Judge Gladys Kessler held that a person with active concerns (not just a legal case, but also an OIG investigation) must be able to share classified information with his lawyer, even if the executive branch tries to prevent that. 

So the whole principal, cherished by Dick Cheney and David Addington as if it were their own children, that the Executive gets ultimate say over what is and what is not classified is crumbling.

Back to al-Haramain: Obama Argues against Article III Review

And in that environment, just hours after the Appeals Court ruled that Judge Walker can review the wiretap log that says al-Haramain was illegally wiretapped to affirm that is the case, the Obama/Dead-Enders are back, trying to prevent Judge Walker from deciding how to deal with classified information going forward.

Read the whole thing. Read more

Darrell Issa’s Burning Concern about White House Emails? Not So Hot…

Last Thursday, Darrell Issa wrote an urgent letter to Greg Craig, expressing concern about reports that White House staffers, in the days after Bush left the White House IT system in perma-crash mode, were temporarily resorting to Gmail.

Dear Mr. Craig:

Last month, several media outlets reported the existence of Gmail accounts issued to incoming members of the White House staff.[1] According to Politico, Deputy Press Secretary Bill Burton was "rocking three BlackBerrys . . . one for his Gmail, one for the transition and one for the White House."[2]

As you know, any e-mail sent or received by White House officials may be subject to retention under the Presidential Records Act (PRA).[3]


The challenges posed by retaining e-mail as required under the PRA have proved vexing for the last two White Houses. You may recall the extraordinary problems the Clinton White House had with its e-mail archiving system.[6] Such problems have led to costly expenditures of taxpayer dollars. For example, earlier this month it was disclosed that the Bush White House reportedly spent "more than $10 million to locate 14 million e-mails reported missing."[7] These e-mails were restored after a costly search of approximately 60,000 back-up server tapes.[8]

In order to prevent similar taxpayer-funded e-mail restoration projects, it is incumbent that the new White House implement policies and processes to minimize the risk of losing e-mail subject to the Presidential Records Act. 

I ask that you answer the following questions for the Committee by March 4, 2009. 

One day after Issa sent that urgent letter calling for strict adherence to the Presidential Records Act, the National Security Archive and CREW announced that the Obama Administration would not deviate from Bush’s legal strategy on lost White House emails, which was basically to argue that the Federal Records Act requires only that an agency found to have allowed destruction of Federal Records must initiate efforts to restore those records. Neither a court nor an NGO can force an agency to completely restore records, Bush (and now Obama) argued, they can only order an agency to initiate attempts to restore them.

This administrative scheme is exclusive; a court cannot itself order the recovery or retrieval of records that may have been removed or destroyed, but must instead rely on the detailed processes set forth in the FRA and initiated by the agency heads, Archivist and Attorney General. See Armstrong, 924 F.2d at 294 Read more

CREW: Obama and Greg Craig Stand with the Dead-Enders

This morning, I noted that the January 21 filing supporting Bush’s crazy notions about email might well be the work of Dead-Enders. We know Dead-Enders submitted a brief in another suit naming the President as defendant during the week of the inauguration. And DOJ has added a new lawyer to the team, suggesting it intends to continue the litigation. 

From CREW, one of the plaintiffs in the email suit, we’ve got confirmation that the Obama White House intends to continue the litigation. 

Recognizing the incoming Obama administration may not have had an opportunity to fully evaluate the merits of the motion to dismiss, even though it was filed on behalf of the Executive Office of the President, one of the named defendants, on January 21, we waited several weeks before reaching out to the White House to suggest they consider withdrawing their motion. The response from the White House, on the afternoon of February 20 (the day our brief was due) was that we should go ahead and file. Thus, at least at this point, the new administration has indicated quite clearly it plans to continue litigating this issue.  

The lack of confirmed appointees at the Justice Department does not suggest this is an interim position, given that the White House is the defendant here with a fully-staffed White House Counsel’s Office. As for the change in DOJ counsel, it is simply the result of the trial attorney previously assigned to the case departing DOJ for a detail (in the White House Counsel’s Office). 

The CREW argument that this is not an interim position doesn’t hold much weight, given the al-Haramain example (the President is also the defendant in that suit and their stance has changed since the January 22 filing). 

But, for the moment, it does say that Greg Craig is not only continuing Bush’s legislation, but he’s hiring one of the DOJ Dead-Enders that got us to this point. We’re not going to get very far if Greg Craig sees fit to hire the Dead-Enders into the White House.

Is the Obama White House Caving (Again) on Presidential Privileges?

I had this post mostly written as a screed against Greg Craig, who appeared to be caving again on Obama’s stated principles on presidential privileges. But after checking with three data points, I’m not so sure what is going on.

I covered the first data point on Friday: John Conyers’ letter, dated Friday, to Bob Luskin, refusing to give Rove yet another delay until such time as he feels the whim to testify before HJC.

I also cannot agree to your request for a delay to accommodate Mr. Rove’s schedule. As you know, the deposition was originally scheduled for February 2. On January 29 I in good faith acceded to your request for a delay since you were scheduled to be out of town at the time and requested more time to prepare. I also notified your office of the new February 23 date at that time. Thus, absent an actual commitment by Mr. Rove to comply with the subpoena, I am not in a position to agree to yet a further delay. In essence, given Mr. Rove’s public statements that he does not intend to comply with the subpoena, I am puzzled as to why Mr. Rove needs a mutually convenient date to appear.

The letter suggested that as of Friday, Conyers was unwilling to wait until the Appeals Court ruled on the Miers/Bolten (with Rove added) suit–he wanted to get a date with Rove for a week from Monday.

But then there was this report, revealing that Greg Craig is trying to make a deal.

White House lawyers and representatives for former president George W. Bush are engaged in discussions that could clear a path for congressional testimony by onetime Bush aide Karl Rove, three sources familiar with the talks said yesterday. 


"The president is very sympathetic to those who want to find out what happened," Craig said in a statement yesterday. "But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So, for that reason, he is urging both sides of this to settle."

There’s a CBS report on this statement–but the reporter seems to be confused as much by the underlying issues as by Craig’s ambivalence. Both, however, suggest that Craig is granting Rove’s position with entirely too much credibility. Further, it hints that Craig might try to defend the utterly ridiculous absolute immunity claim so as to not "weaken the institution of the presidency." Read more

What Jane Mayer Tells Us about Warrantless Wiretapping

Jane Mayer’s excellent piece on Obama’s Executive Orders banning torture is about just that–the end of the torture regime. (Incidentally, kudos to Greg Craig, whom I beat up yesterday, for giving his first interview to Mayer.) But it offers some useful insight on a debate we’ve been having over the last couple of days–whether or not Obama could have intervened in the al-Haramain trial (and other pending litigation on warrantless wiretapping) in the same way he intervened in the pending habeas petitions.

First, off, Mayer confirms a point I made–that Obama was not about to take on the most politically charged legal decisions in his first day in office.

Moreover, Craig noted in his first White House interview that the reforms were not finished yet and that Obama had deliberately postponed several of the hardest legal questions. Craig said that, as he talked with the president before the signing ceremony, Obama was “very clear in his own mind about what he wanted to accomplish, and what he wanted to leave open for further consultation with experts.”

Obviously, one of those questions is how to approach legal consequences for those who ordered torture–or warrantless wiretapping. The EOs Obama signed last week don’t commit him to an approach on that score. Furthermore, he seems inclined to insulate himself from such decisions by putting them in the hands of Eric Holder, to make it a prosecutorial decision. Though Holder has intimated he’d hold both the architects of our torture regime and of our warrantless wiretapping responsible (lucky for him, he could do it all in a giant 2-for-1 deal), I’m not holding my breath on that score. But we won’t know what he’ll do until he becomes Attorney General.

That said, Mayer makes it clear just how much lobbying has gone into Obama’s evolving policy on torture.  She describes a meeting that must have taken place in December 2007 or January 2008 with a bunch of officers–including four star Generals–at which the officers lobbied Obama to end our torture regime. That high-level lobbying continued up until last month. Mayer specifically describes the role of retired Marine General Chuck Krulak who promised to "fly cover" for the Obama Administration after they pushed this through.

Who, might I ask, is doing similar lobbying to restore civil liberties for Americans?

Oh, I know there has been similar lobbying–on the part of civil liberties groups, high profile individuals, and DFH bloggers like you and me. Read more

Change Pixie Dust We Can Believe In

Apparently, Greg Craig (who IMHO thus far is batting about 0-3 in his tenure as White House Counsel, counting his erroneous response on FISA, his juvenile cover-up of Rahm’s calls, and his response to the botched Oath) believes in Pixie Dust.

A day before Obama signed executive orders closing Guantánamo Bay and banning torture, the White House’s top lawyer privately indicated to Congress that the new president reserved the right to ignore his own (and any other president’s) executive orders. In a closed-door appearance before the Senate intelligence committee, White House counsel Gregory Craig was asked whether the president was required by law to follow executive orders. According to people familiar with his remarks, who asked for anonymity when discussing a private meeting, Craig answered that the administration did not believe he was. The implication: in a national-security crisis, Obama could deviate from his own rules. A White House official said that Craig’s remarks were being "mischaracterized." [my emphasis]

Note Craig said this in response to a question–presumably from one of the Senators. As a reminder, both Sheldon Whitehouse and Russ Feingold sit on the SSCI. They’re the two guys trying to legislate away this kind of Pixie Dust, the claim that the President can just ignore his own executive orders. Whitehouse, of course, is the guy who first pointed out the way Bush had used Pixie Dust to wish away Saint Ronnie’s prohibitions on spying on Americans. And Whitehouse asked this very question of Michael Mukasey before he was confirmed, only to have Mukasey flip-flop on it as Attorney General. 

So I’m guessing that the question, at least, was asked by Whitehouse with Feingold the second most probable.

Someone ought to tell Mr. Greg "0-4" Craig, though, that once you espouse Pixie Dust you’ve lost all credibility to claim your remarks were "mischaracterized." 

Greg Craig as White House Counsel

You might remember Greg Craig–the guy Obama just named his White House Counsel–from the FISA fight. Craig, who I guarantee you gets paid a lot more for his lawyering than I get paid to do whatever it is I do here, and who I’m certain has a lot more training and experience in the law than me, explained Obama’s cave on FISA this way.

Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.

“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.” [my emphasis]

As I pointed out at the time, 

FISA is not expiring anytime soon. Last I checked, FISA’s been on the books for 30 years, and I have every expectation it will remain on the books for the next 30 years, regardless of how Obama votes on July 8.

Either Craig or Obama is making the common–but ignorant–mistake of conflating the Protect America Act with FISA. The former does expire in early August. The latter does not.

I might be accused of pedantry by maintaining this distinction. But it[‘]s useful to maintain the distinction because it focuses on the differences between FISA and PAA. FISA provides a way for the government to wiretap individuals legally, while providing real protections for American citizens. Whereas PAA provides the government the ability to get basket warrants based on the say so of the Attorney General, dramatically eroding the protections for American citizens.

When someone erroneously claims that FISA is going to expire shortly, it’s a good bet that that person is thinking about retaining the basket warrant provisions of the PAA and not–as the spin suggests–simply "modernizing" FISA so the government can wiretap foreigners via telecom circuits in the United States. 

It’d be useful if someone asked the Obama campaign which of these authorities Obama is really intent on maintaining. 

Granted, that was just one teeny tiny little issue–you know, our Fourth Amendment rights, and the willful abuse of the law by the Bush Administration?

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