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Conyers Invokes the CIA Inspector General Report on Torture

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In a HuffPo column arguing for a Commission to look into Bush era crimes, John Conyers mentions something people on the Hill rarely talk about: the 2004 CIA Inspector General report on torture.

Nor do I agree that the relevant facts are already known. While disparate investigations by Committees of congress, private organizations, and the press have uncovered many important facts, no single investigation has had access to the full range of information regarding the Bush administration’s interrelated programs on surveillance, detention, interrogation, and rendition. The existence of a substantially developed factual record will simplify the work to come, but cannot replace it. Furthermore, much of this information, such as the Central Intelligence Agency’s 2004 Inspector General report on interrogation, remains highly classified and hidden from the American people. An independent review is needed to determine the maximum information that can be publicly released.

Conyers links to this Jane Mayer interview about the report by way of explaining the significance of the report.

One of the lingering mysteries in Washington has been what happened to the CIA internal probe into homicides involving the program. You note that CIA Inspector General (IG) John Helgerson undertook a study and initially concluded, just as the Red Cross and most legal authorities in the United States and around the world, that the program was illegal and raised serious war crimes issues. Helgerson was summoned repeatedly to meet privately with Vice President Cheney, the man who provided the impetus for the program, and it appears as a result of these meetings the IG’s report was simply shut down. Would those probes have brought into question the Justice Department’s specific approval of torture techniques used by the CIA–approval that involved not just John Yoo, but much more specifically Michael Chertoff and Alice Fisher, the two figures who ran the criminal division?

The fact that John Helgerson—the inspector general at the CIA who is supposed to act as an independent watchdog—was called in by Cheney to discuss his tough report in 2004 is definitely surprising news. Asked for comment, Helgerson through the CIA spokesman denied he felt pressured in any way by Cheney. But others I interviewed have described the IG’s office to me as extremely politicized. They have also suggested it was very unusual that the Vice President interjected himself into the work of the IG. Fred Hitz, who had the same post in previous administrations, told me that no vice president had ever met with him. Read more →

Rove Deadline Delayed

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John Conyers has delayed Rove’s deadline to give a deposition by three weeks–from February 2 to February 23.

But before he left office, Bush, acting through former White House Counsel Fred Fielding, decided not to respond to any congressional subpoenas. Bush, citing executive privilege, asserted an “absolute immunity” claim in responding to such subpoenas, meaning senior Bush aides were directed not to even appear when subpoenaed.

Obama and his legal advisors have rejected that view as an overbroad reading of the president’s authority, but they have yet to fully formulate their own response to the question.

Conyers had demanded that Rove comply with the subpoena by next Tuesday, Feb. 2, but the deadline has been extended to Feb. 23, according to sources close to the issue.

I realize at least one of you was planning your birthday around Rove’s testimony (though it’s not yet clear whether it’ll be public or not), but I think this is a good thing.

I expect Obama to reject at least some parts of what Rove is trying to do here–certainly the idea that former senior aides have absolute immunity from showing up before Congress if not the notion of absolute immunity in general (to say nothing of former aides of former Presidents). Pushing the deadline out gives Obama several additional ways to respond here. They can respond through their filing on the suit, which is due on February 18. And, presumably before this deadline, Dawn Johnsen will also be installed at OLC with the option to pull Steven Bradbury’s opinion authorizing "absolute immunity" for former aides, which (after all) literally contradicts the logic Rehnquist used to justify absolute immunity in the first place.

Bush’s legal team keeps pretending there will be some point at which Obama is forced to negotiate with the Bush Administration on this. And that’s probably true for Miers’ testimony. But given the sketchiness surrounding Bush’s claim to privilege for Rove, that may not be true at all for Turdblossom.

Rove's "Renewed" Privilege Assertion: Is It Absolute Immunity or Executive Privilege?

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Thanks to MadDog for finding someone besides Gloria Borger discussing Bush’s recent letter reasserting his support for Rove to blow off Congress.

It’s unclear, from the reporting, whether the letter reasserts absolute immunity or asserts, for the first time, old-fashioned executive privilege regarding the information Conyers subpoenaed Rove to testify about. The WSJ speaks clearly in terms of "renewed assertion," suggesting Bush is making the same argument that he did earlier for Rove, that presidential aides can simply blow off Congressional subpoenas pertaining to their official duties. 

Robert Luskin, Mr. Rove’s attorney, said Mr. Rove recently received a renewed privilege assertion from President Bush, before the president left office. Mr. Luskin said he would consult with Mr. Obama’s White House counsel to determine the Obama administration’s stance.

But in an interview with the WaPo, Luskin clearly discusses executive privilege.

Robert D. Luskin, an attorney for Rove, said his client will "abide by a final decision from the courts." Luskin noted that Bush, in a letter to Rove, recently reasserted executive privilege.

"It’s generally agreed that former presidents retain executive privilege as to matters occurring during their term," Luskin said. "We’ll solicit the views of the new White House counsel and, if there is a disagreement, assume that the matter will be resolved among the courts, the president and the former president."

I wouldn’t make too much of that, though, because Luskin has very consistently tried to normalize the radical assertion of absolute immunity Rove relied on last year by talking in more general terms of privilege.

So thus far, we know Rove has a new piece of paper, but we don’t know what is on that paper.

And that could make all the difference between whether we get Rove testimony within hours of Holder taking over at DOJ, or whether Rove’s testimony gets litigated for some time going forward. Here’s why (for background read this post and this post). What follows is my NAL description–those of you with real credentials here, feel free to correct me where I screw this up.

Executive privilege is a constitutionally recognized privilege for the President to shield certain topics from the scrutiny of the other branches, the idea being that Courts or Congress should not be able to snoop into the Executive’s doings in matters that they have no constitutionally recognized business snooping in. Read more →

Conyers to Turdblossom: "Time's Up!!"

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Via email:

Today, House Judiciary Committee Chairman John Conyers, Jr. issued a subpoena to Karl Rove requiring him to testify regarding his role in the Bush Administration’s politicization of the Department of Justice, including the US Attorney firings and the prosecution of former Alabama Governor Don Siegelman.  The subpoena was issued pursuant to authority granted in H.R. 5 (111th Congress), and calls for Mr. Rove to appear at deposition on Monday, February 2, 2009.  Mr. Rove has previously refused to appear in response to a Judiciary Committee subpoena, claiming that even former presidential advisers cannot be compelled to testify before Congress.  That “absolute immunity” position was supported by then-President Bush, but it has been rejected by U.S. District Judge John Bates and President Obama has previously dismissed the claim as “completely misguided.”

"I have said many times that I will carry this investigation forward to its conclusion, whether in Congress or in court, and today’s action is an important step along the way,” said Mr. Conyers.  Noting that the change in administration may impact the legal arguments available to Mr. Rove in this long-running dispute, Mr. Conyers added “Change has come to Washington, and I hope Karl Rove is ready for it.  After two years of stonewalling, it’s time for him to talk." 

Tee hee hee! Here’s the subpoena.

February 2. You think maybe we’ll have an Attorney General by then?

Those Evil Dems Are Preventing Bush from Archiving Properly

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facade.gifI noted the other day that–after years of trying to limit the Bush Administration’s responsibilities under the Presidential Records Act–the Bush Administration had found religion and was insisting that it had to box up all the documents proving they acted improperly when they fired nine US Attorneys. Basically, the first thing they did after the new year was to send Judge Bates a status report describing their solemn duty to throw everything in boxes, hopefully to make it unavailable for five years (to be fair, DOJ–and not Dick Cheney–sent the status report, so this is only partly hypocritical).

Although the PRA generally restricts access to presidential records for a period of five years (or until the Archivist completes processing and organizing the records), and further restricts disclosure of certain categories of information for a period of up to 12 years when presidential records are requested under the Freedom of Information Act, see 44 U.S.C. § 2204, the PRA contains special-access provisions that are relevant here. First, “[n]otwithstanding any restrictions on access imposed pursuant to section 2204, . . . subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available . . . pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding[.]” 44 U.S.C. § 2205(2)(A). Second, the same exceptions to restricted access apply to requests for access to presidential records of a former President by “an incumbent President if such records contain information that is needed for the conduct of current business of his office and that is not otherwise available.” Id. § 2205(2)(B).[my emphasis]

As I noted earlier this week, HJC believed–and Bates concurred–that putting these documents in boxes and requiring legalese to open them again might cause a bit of delay (not that that was the idea, I’m sure).

Sure enough, Bates was carried through on his concerns, and got both sides to stipulate that these documents will remain at the White House until the suit is done (and/or HJC gets their grubby paws on it). 

Defendants will create a copy set of all materials responsive to the subpoenas, including both paper and electronic documents, in hard copy format to be stored, segregated, and maintained at the White House for use in this litigation until this litigation is finally resolved.

[snip]

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Oh, Now They're Trying to Insist on Their Responsibility to Archive

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It seems like BushCo–particularly Cheney–have been fighting for about 2 years to limit their responsibility under the Presidential Records Act to actually supply their papers to the National Archive in usable and timely fashion.

Well, all of a sudden, they’re arguing the contrary–that the papers have to go immediately.

The new Congress on Thursday asked a federal judge to force the Bush White House to keep documents on the controversial firings of nine federal prosecutors instead of turning them over to the National Archives.

[snip]

They asked U.S. District Judge John Bates to order the administration to leave the documents at the White House in the custody of President-elect Barack Obama’s aides in case the information is needed.

Justice Department lawyers argued that the White House is required to turn the material over to the National Archives.

[snip]

The National Archives has already agreed to segregate the subpoenaed material from the rest of Bush’s documents in case it is needed by the courts or the Obama administration, lawyers said.

"If they want the documents, they can request them from NARA," lawyer Carl Nichols said.

But Bates said he had no doubt "there will be some delay if the materials are sent" to the Archives. The judge suggested that he may order the administration to make copies of the documents so they can send the originals to the Archives and make the copies available to the incoming administration.

He said he would make a final ruling on Friday.

This is all follow-up to the rule passed on Tuesday that allows the House Judiciary Committee to pick up its pursuit of testimony in the US Attorney firing investigation right where they left off.

I guess Conyers didn’t want to have any down time during the early days of this Congress.

Update: And in somewhat related move, a different District Court Judge ruled that BushCo doesn’t get to hide what kind of wingnuts were visiting Cheney’s house.

A federal judge on Friday rejected the Bush administration’s latest attempt to keep secret the identities of White House visitors and declared that it engaged in illegal record-keeping practices.

[snip]

A watchdog group, Citizens for Responsibility and Ethics in Washington, asked for the records to determine whether nine conservative religious leaders visited the White House and Vice President Dick Cheney’s residence in October 2006.

Lamberth’s decision means the government will have to find other legal grounds if it wants to block release of the Secret Service logs.

 All this transparency Read more →

No Wonder the Siegelman Prosecutor Didn’t Want an Investigation of the Juror Emails

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One of the key grounds for appeal in the Don Siegelman case is that there was evidence of juror misconduct–two jurors plotting how to get a conviction–that the prosecution had the US postal inspectors investigate even while insisting any investigation would taint the jury process.

At issue is a series of e-mails that arose in 2006 suggesting that two jurors had outside influence as they decided Siegelman’s bribery conviction. After he was found guilty, Siegelman sought a new trial over the e-mails, printed copies of which had been mailed to defense attorneys.

U.S. District Judge Mark Fuller denied the motion for a new trial, ruling that the allegations were unsubstantiated. Siegelman has cited the issue as a central point in his ongoing appeal.

Two weeks ago, the head of the Justice Department’s appellate division, Patty Merkamp Stemler, informed Siegelman’s attorneys that the department had discovered undisclosed information about the controversy as attorneys prepared for the appeal. In a July 8 letter, Stemler wrote that while Siegelman’s mistrial proceedings were pending, acting U.S. Attorney Louis Franklin asked U.S. postal inspectors to try to determine who sent the e-mails through the mail.

U.S. Marshals later informed Fuller that the inspectors had concluded the e-mails were fakes. They determined, for example, that one e-mail didn’t match up with the corresponding juror’s e-mail account.

But the information produced for prosecutors and given to the judge was never passed along to Siegelman’s attorneys for cross-examination. [my emphasis]

A letter John Conyers just sent to Michael Mukasey reveals that the prosecution team allegedly knew that one of these jurors was sending flirty messages to the prosecution team during the trial. In other words, when the prosecution team fought any investigation into improper juror conduct, they had reason to believe that there had been improper contact between jurors and the prosecution team.

Those are contacts, of course, that would remain hidden in any investigation the US postal inspectors would do.

The Whistleblower

Conyers explains that Tamarah Grimes, a member of the Siegelman prosecution team, turned over emails reflecting a conversation about juror contacts with the prosecution team.

This email chain is dated June 15, 2006–the day the Siegelman/Scrushy case was submitted to the jury for its decision. The key email in the chain was written by Ms. Patricia Watson, 

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Conyers Notices the Similarities to US Attorney Purge, Too

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John Conyers has not missed what we’ve been seeing: a replay of the US Attorney scandal. He talks about the attacks on ACORN, the improper use of prosecutorial resources to intimidate voters, the waste of investigative resources when the FBI is already failing to investigate mortgage-related fraud, and the seeming preferential use of federal investigative resources to target Democrats. But here’s my favorite bit:

Furthermore, it is deeply troubling that, just weeks after the Department’s own watchdogs documented the role that specious agitating on alleged vote fraud matters by New Mexico Republicans played in the firing of United States Attorneys in 2006, in this controversy we see the same figures cropping up again and apparently obtaining a new FBI investigation just in time for the 2008 election. Thus a lawyer named Pat Rogers–described in the local press as "an attorney who advises the state GOP" is apparently playing a key role in pressing these current claims. Mr. Rogers, however, appears repeatedly in the report on the U.S. Attorney firings prepared by the Department’s Offices of the Inspector General and Professional Responsibility, which documented his actions making flawed claims of voter fraud and brining unwarranted pressure to bear on law enforcement officials, including Mr. Iglesias, in 2006.

As I glossed the other day, 

Republicans are already under criminal investigation for this stuff. Don’t let them get away with the same kind of criminal conduct again.

Of course, as Kagro X has pointed out, Mukasey can blow off Conyers (as he has Conyers’ request for more urgency on voter protection) precisely because we didn’t get the evidence from Miers and Turdblossom to make this case legally before we got back into election fever.

So here we are, with the subpoenas still unenforced in the case that was supposed to crack the "administration’s" engineering of bogus "voter fraud" allegations against Democrats immediately preceding critical elections wide open, and now witnessing… the "administration" engineering bogus "voter fraud" allegations against Democrats immediately preceding a critical election. 

Like Alberto Gonzales, Mukasey seems to have lost all shame about allowing the GOP to play these games. 

Conyers to Luskin: We Told You So

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Today it’s Conyers’ turn to take a victory lap with Harriet Miers, Josh Bolten, and Karl Rove. This time, it’s the letter to Luskin that is the most enjoyable, particularly for the paragraph that basically says, "Remember when we said this absolute immunity stuff was bullshit? Well, Judge Bates agrees."

 As your July 29, 2008, letter points out, the "precise legal issue" raised by Mr. Rove’s claim of immunity from our subpoena as a former White House official was before Judge Bates in Committee on the Judiciary v. Miers. Yesterday’s decision in that case provides an unequivocal answer. In accordance with the ruling by Chairwoman Sanchez rejecting your immunity assertion, the court found that the absolute immunity claim is "entirely unsupported by existing case law" and explicitly "reject[ed] the Executive’s claim of absolute immunity for senior presidential aides." Opinion at 78. 

Then, Conyers makes the most of Lamar Smith’s blabby mouth, reminding Luskin that Smith has promised Rove would abide by Bates’ decision.

In his letter to me of July 29, 2008, Committee Ranking Member Lamar Smith also noted the pendency of the District Court case and stated that "Mr. Rove assuredly will abide by the court’s decision when it issues." 

Then again, long ago Luskin assured Dan Abrams that Rove would testify. And we see how that worked out.

Rove’s Contempt: For All the Reasons We’ve Been Talking About

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As many of you noted while we were having our little server issues this morning, HJC just recommended Rove be held in contempt by a vote of 20-14. The big challenge at this point will be convincing Speaker Pelosi–whose phone number is (202) 225-0100–to take up this recommendation immediately, and do so with the goal of holding Rove in inherent contempt. The ruling from Judge Bates–on Miers’ and Bolten’s contempt–should be forthcoming, which may or may not accelerate this process.

While we’re waiting for Bates’ ruling, I thought I’d look at Conyers’ report on the contempt vote for Rove–not least because it hits on many of the points I’ve hit on here–but which journalists seem to be missing. Among other points Conyers makes are:

Rove Didn’t Deny the Central Allegations against Him in the Siegelman Case

As I pointed out in this post, Rove doesn’t even answer the jerry-rigged questions Lamar Smith gave him to try to get him out of testifying. In particular, Rove refused to answer questions about whether he had spoken with "any individual" aside from DOJ or Alabama officials regarding the Siegelman prosecution. As Governor Siegelman pointed out when he did our live chat last week, that doesn’t even exclude conversations with Rob Riley or Bill Canary!

First, Mr. Rove’s written answers to the questions posed by ranking Member Smith do not appear to resolve the questions about his possible role in the matter. For example, Mr. Rove was asked if he ever communicated with “any Department of Justice officials, State of Alabama officials, or any individual” about the investigation or prosecution of Governor Siegelman. He answered only that he had not communicated with “Justice Department or Alabama officials” about the matter. The failure to address whether he communicated with any other “individual” suggests that Mr. Rove may have communicated with political operatives such as Bill Canary, the Governor’s son Rob Riley, non-Department of Justice Executive Branch officials such as his White House colleagues, or even members of the federal Judicial branch.

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