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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.

In 2007, Rahm Opposed Indefinite Detention

On June 29, 2007, Congressman Norm Dicks sent George Bush an eloquent letter urging him to close Gitmo. It said, among other things,

Since the time that captured “enemy combatants” were first brought to Guantanamo Bay in 2002, the detainment facility has undermined America’s image as the model of justice and protector of human rights around the world. Holding prisoners for an indefinite period of time, without charging them with a crime goes against our values, ideals and principles as a nation governed by the rule of law. Further, Guantanamo Bay has become a liability in the broader global war on terror, as allegations of torture, the indefinite detention of innocent men, and international objections to the treatment of enemy combatants has hurt our credibility as the beacon for freedom and justice. Its continued operation also threatens the safety of U.S. citizens and military personnel detained abroad.

[snip]

The closure of the detention facilities at Guantanamo Bay would represent a positive first step toward restoring our international reputation as the leader of democracy and individual rights. [my emphasis]

Guess whose signature appears right at the top of the long list of those who signed this letter?

Then-Congressman Rahm Emanuel.

I wonder what changed between the time when Rahm recognized how unacceptable indefinite detention is and his willingness now, in cahoots with Lindsey Graham, to set up a system of indefinite detention? Heck, this Rahm has even called closing Gitmo a distraction.

Would I be foolish to ask for that other Rahm back?

Lindsey Graham: For McCarthyism before He Was Against It

Zachary Roth raises a really important point about Lindsey Graham (aka Rahm’s Attorney General). Though in recent days Graham has come out against Liz Cheney’s McCarthyism, he was one of the Republicans who started this whole witch hunt last November by signing a letter (authored by Chuck Grassley) asking for a details on those who had defended detainees in the past:

To better understand the scope of these apparent conflicts of interest, Senator Grassley asked for the following information:(1) The names of political appointees in the Department who represented detainees, worked for organizations advocating on behalf of detainees, or worked for organizations advocating on terrorism or detainee policy; (2) The cases or projects that these appointees worked on with respect to detainees prior to joining the Justice Department; (3) The cases or projects relating to detainees that they have worked on since joining the Justice Department; and (4) A list of all political appointees who have been instructed to, or have voluntarily recused themselves from working on specific detainee cases, projects, or matters pending before the courts or at the Justice Department.

Unfortunately, your response to Senator Grassley’s request was less than encouraging as you repeatedly stated you would merely “consider” the request. It is imperative that the Committee have this information so we can assure the American people that the Department is in fact formulating terrorism and detainee policy without bias or preconceived beliefs.

In addition to the information requested at the hearing, we ask that you also provide responses to the following related questions:

(1) Have any ethics waivers been granted to individuals working on terrorism or detainee issues pursuant to President Obama’s Executive Order dated January 21, 2009, titled “Ethical Considerations for Executive Branch Employees?” (2) What are the Department’s criteria for recusing an individual who previously lobbied on detainee issues, represented specific detainees, worked on terrorism or detainee policy for advocacy groups, or formulated terrorism or detainee policy? (3) What is the scope of recusal for each of the political appointees who have recused themselves from working on specific detainee cases, projects, or matters? (e.g. is an individual who previously represented a detainee recused only from matters related to that individual or from other detainees?) Please provide a detailed listing of the scope of each recusal.

Now, Zach says Graham’s office has not yet responded to his inquiry for clarification on this issue.

But Zach, like me, seems to think this is a significant issue given that Graham is apparently being treated like a good faith partner on efforts to close Gitmo. Are we really going to compromise on Constitutional issues with Graham, when in six months time he could be back scaremongering with the McCarthyites again?

Rahm’s Mouthpiece: White House to Cave on KSM Trial

Rahm’s mouthpiece is reporting that the White House is all set to cave on civilian trials for Khalid Sheikh Mohammed.

President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.

The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some terrorism suspects in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

If Obama accepts the likely recommendation of his advisers, the White House may be able to secure from Congress the funding and legal authority it needs to close the U.S. military prison at Guantanamo Bay, Cuba, and replace it with a facility within the United States. The administration has failed to meet a self-imposed one-year deadline to close Guantanamo.

Now, since this is coming from the WaPo, the newspaper that has been all-Rahm all the time in the last week, I’m curious whether this discussion of Obama’s advisors’ readiness to recommend that Obama cave on civilian trials is the same thing as Obama himself being prepared to cave on civilian trials. In other words, this might just be Rahm presenting this as a fait accompli to make his job of persuading Obama easier. He did it once before with the NYT, after which the claims were quickly walked back.

But for the moment, let’s pretend this story reflects actual reality, and not Rahm’s reality.

If so, this is a colossal mistake on the White House’s part.

That’s because the Military Commissions are going to have big problems that civilian trials are not going to have. And if Obama caves on this point without being forced to do so by Lindsey Graham wearing a Speedo and a semi-automatic, then Obama, not Lindsey, will own the shortcomings of the MCs. If MCs fail to give KSM either a quick guilty verdict or a real prison term, then Obama, not Lindsey, will be responsible.

But Obama seems to have given up advocating for the most efficacious solution to any problem, it seems.

The Latest Rahmlinology

I wonder how Greg Craig–ousted from the Administration because he tried to do the right thing on Gitmo–feels about this.

In December 2008, Obama, Emanuel and Republican Sens. John McCain (Ariz.) and Lindsey O. Graham (S.C.) met in Obama’s transition headquarters in Chicago to discuss detainee policy. According to Graham, Obama turned to him at one point and said, ” ‘I’m going to need your help closing Guantanamo Bay. . . . I want you and Rahm to start talking.’ ” They did, and as the discussions progressed, Emanuel grew wary that closing the U.S. military prison in Cuba was possible without opening a slew of other politically sensitive national security problems ” ‘This stuff is like flypaper,’ ” Graham recalled Emanuel saying. ” ‘It will stick to you.’ ”

Graham said Emanuel was well aware that his and any other Republican support for closing Guantanamo Bay hinged on keeping alleged Sept. 11 mastermind Khalid Sheik Mohammed out of civilian court.

According to a person familiar with the conversations, who discussed the confidential deliberation on the condition of anonymity, Emanuel made his case to Obama, articulating the political dangers of a civilian trial to congressional Democrats. Attorney General Eric H. Holder Jr. presented a counterargument rooted in principle, for civilian trials.

The implication, of course, is that Rahm met with the two Republicans on his own. If so, at the very time Rahm was letting Lindsey Graham demand the shredding of the Constitution, Greg Craig was executing the ham-handed report that, though transparently lame, managed to free Rahm of the taint of Rod Blagojevich.

Rahm wouldn’t have survived into the first days of this Administration without Craig’s work. Some gratitude, Rahm.

And remember how one of the reasons why Craig was ousted was because he wasn’t consulting with Congress enough? Well, it sounds like that was a problem, for Rahm, because that’s how he fancied he’d control the process.

“During this whole civilian-trial debate, Rahm’s gut instincts knew that taking KSM to New York for civilian trials was going to be a misstep,” Graham said. “He has a better ear for domestic politics on this issue than anybody in the administration, quite frankly.”

With the Justice Department in charge, Emanuel tried to keep tabs on the process through Graham. “He’d say: ‘How’s it going? Did you tell them they were going to lose you?’ And in terms a sailor could understand.”

One administration official close to Emanuel did not dispute that Obama had overruled Emanuel on some key policy issues. “It’s not germane what the discussion was beforehand, what his idea was, because once a decision is made, he puts himself whole-hog behind it,” the official said of Emanuel. “It would be difficult for people to discern what his [original] position was.”

Except that it was not difficult at all. It has been clear since August that Rahm has been actively undermining Craig and Holder’s efforts to hew to the rule of law. Doing so, in fact, with the guy who lost the election in 2008, John McCain, who still behaves at every turn like someone trying to take down his political opponent. That’s who Rahm has been sleeping with in his efforts to thwart the rule of law.

No wonder we’re seeing so many artificial “Save Rahm!!” stories.

Fresh Off Negotiations w/Rahm, Lindsey Graham Demands Military Commissions AND Indefinite Detention

I guess, once Rahm Emanuel designated him the Acting Attorney General, Lindsey Graham realized he could demand even more from the Administration. Because now he is saying he will only support closing Gitmo if he can also pass a law authorizing indefinite detention.

“I’ve been talking to the administration for the last couple of days. I’m encouraged that we’re going to sit down and do some of the hard things we haven’t done as a nation after September 11.”“I think we need to change our laws to give our judges better guidance— rules of the road,” Graham said. “We need a statute to deal with that.”

[snip]

While Graham has long favored closing Guantanamo, he said Monday that his support for doing so is contingent on a new law to govern the detention of those the government wants to keep in custody outside the criminal justice system. He also said that, with such a statute in place, he could support Obama’s plan to convert a state prison in Illinois to a federal facility for former Guantanamo inmates.

“I think Thomson, Ill., in the hands of the military, could become a secure location,” he said. “My view is we can start to close Guantanamo only after we reform our laws.” [my emphasis]

I mean, if a person as all-powerful as Rahm Emanuel gives you unlimited powers to rewrite our Constitution, why not up the ante and eliminate habeas corpus while you’re at it?

Dealing Away Civilian Law

In her piece on Holder’s efforts to uphold the rule of law last week, Jane Mayer explained that Rahm Emanuel opposed the idea of civilian trials for the 9/11 plotters because it would piss off Lindsey Graham.

Emanuel, who is not a lawyer, opposed Holder’s position on the 9/11 cases. He argued that the Administration needed the support of key Republicans to help close Guantánamo, and that a fight over Khalid Sheikh Mohammed could alienate them. “There was a lot of drama,” the informed source said. Emanuel was particularly concerned with placating Lindsey Graham, the Republican senator from South Carolina, who was a leading proponent of military commissions, and who had helped Obama on other issues, such as the confirmation of Supreme Court Justice Sonia Sotomayor. “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people,” the informed source said. “Rahm had a good relationship with Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

At Emanuel’s urging, Holder spoke with Graham several times. But they could not reach an agreement. Graham told me, “It was a nonstarter for me. There’s a place for the courts, but not for the mastermind of 9/11.” He said, “On balance, I think it would be better to close Guantánamo, but it would be better to keep it open than to give these guys civilian trials.” Graham, who served as a judge advocate general in the military reserves, vowed that he would do all he could as a legislator to stop the trials. “The President’s advisers have served him poorly here,” he said. “I like Eric, but at the end of the day Eric made the decision.” Last week, Graham introduced a bill in the Senate to cut off funding for criminal trials related to 9/11. [my emphasis]

Josh Gerstein has two pieces (one, two)–elaborating on the WaPo’s piece this morning–describing the degree to which the Administration may well be in the process of dealing away civilian trials in exchange for Lindsey Graham’s love (and with it, a means to close Gitmo, Rahm believes).

Josh has the full quote of something Holder said to the WaPo, which seems to show Holder setting up a rationale for using military commissions.

WaPo: When you talk about the symbolic nature of such a trial, both to al Qaeda and maybe as importantly to the allies and to the nation having gone through what it has gone through for 10 years – 8 years, is it eroded somewhat if this trial winds up happening on a military base or in a federal prison complex instead of a federal courthouse?

AG: No, I don’t think so. I think that at the end of the day whether, wherever this case is tried, whatever forum, what we have to ensure is that it is done in as transparent a way as possible with as close as is possible adherence to the rules that we traditionally use in criminal cases. And if we do that, I’m not sure that the location or even ultimately the forum is going to be as important as what it is the world sees when whoever it is stands up and says I represent the United States, what the world sees in that proceeding.

WaPo: Is that an opening to say this may not be an article III court trial after all?

AG: I expect it’s going to be in article III court but what I’m saying is that if for whatever reason, I don’t know what it would be, but if for whatever reason it ended up as a military commission trial, given the reformed status of those military commissions, I think that we could have a trial that would be, that would stand up to the test that I was talking about before, in terms of transparency, adherence to the traditions that we have a nation. I continue to think though that this case, to bring the strongest case, there are reasons why you want to bring it in an article III setting. [my emphasis]

And against the background of Holder seeming to cede on the issue of civilian trials, Josh describes Lindsey Graham meeting with Rahm on this issue.

Sen. Lindsey Graham (R-S.C.) has told colleagues that he’s negotiating with the White House over legislation aimed at heading off the possibility of civilian criminal trials for suspects in the Sept. 11 attacks, according to congressional sources.

Graham met White House chief of staff Rahm Emanuel last week to discuss the issue, sources said.

[snip]

Several leaders of groups who favor civilian trials said they were aware that Graham was in discussions with the White House about a legislative proposal that would effectively force the Sept. 11 suspects into military courts by barring civilian trials. The proposal failed on a 54-45 vote in November, but Graham and other senators held a news conference last week vowing to introduce the measure again in the near future.

So among all the other reporting on Rahm’s central position on issues best left to the Attorney General, it appears he’s trying to craft a deal with Lindsey Graham on where and how to try Khalid Sheikh Mohammed.

Remind me. Didn’t Rove and the Bush White House get in trouble for this kind of tampering with DOJ issues?

Mayer on Rahm

I first teased out Rahm Emanuel’s role in reversing Obama’s early efforts to reclaim our country from torture last July. In August, my comments at Netroots Nation focused on Rahm’s role in preventing accountability for torture. I kept tracking Rahm’s campaign to prevent accountability here, here, and here.

Today, Jane Mayer has an extended profile of Eric Holder that fleshes out what we’ve all known: Rahm’s the guy who killed accountability for torture.

Emanuel viewed many of the legal problems that Craig and Holder were immersed in as distractions. “When Guantánamo walked in the door, Rahm walked out,” the informed source said. Holder and Emanuel had been collegial since their Clinton Administration days. Holder’s wife, Sharon Malone, an obstetrician, had delivered one of Emanuel’s children. But Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions. Holder authorized Durham to determine whether the agency’s abuse of detainees had itself violated laws. Emanuel worried that such investigations would alienate the intelligence community. But Holder, who had studied law at Columbia with Telford Taylor, the chief American prosecutor in the Nuremberg trials, was profoundly upset after seeing classified documents explicitly describing C.I.A. prisoner abuse. The United Nations Convention Against Torture requires the U.S. to investigate credible torture allegations. Holder felt that, as the top law-enforcement officer in the U.S., he had to do something.

Emanuel couldn’t complain directly to Holder without violating strictures against political interference in prosecutorial decisions. But he conveyed his unhappiness to Holder indirectly, two sources said. Emanuel demanded, “Didn’t he get the memo that we’re not re-litigating the past?”

That’s what human rights are to Rahm Emanuel–mere distractions, speed bumps on his road to nine wins or–in the case of health care reform–epic failure.

Where Mayer breaks real news in her description of Rahm’s role in preventing accountability is her description of why Rahm opposed so many of Holder’s decisions: because they offended Lindsey Graham.

At the White House, Emanuel, who is not a lawyer, opposed Holder’s position on the 9/11 cases. He argued that the Administration needed the support of key Republicans to help close Guantánamo, and that a fight over Khalid Sheikh Mohammed could alienate them. “There was a lot of drama,” the informed source said. Emanuel was particularly concerned with placating Lindsey Graham, the Republican senator from South Carolina, who was a leading proponent of military commissions, and who had helped Obama on other issues, such as the confirmation of Supreme Court Justice Sonia Sotomayor. “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people,” the informed source said. “Rahm had a good relationship with Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

At Emanuel’s urging, Holder spoke with Graham several times. But they could not reach an agreement. Graham told me, “It was a nonstarter for me. There’s a place for the courts, but not for the mastermind of 9/11.” He said, “On balance, I think it would be better to close Guantánamo, but it would be better to keep it open than to give these guys civilian trials.” Graham, who served as a judge advocate general in the military reserves, vowed that he would do all he could as a legislator to stop the trials. “The President’s advisers have served him poorly here,” he said. “I like Eric, but at the end of the day Eric made the decision.” Last week, Graham introduced a bill in the Senate to cut off funding for criminal trials related to 9/11. [my emphasis]

All along Rahm’s campaign against Greg Craig and Holder he left complaint after complaint that they had ruined the relationship with Congress. This, I suppose, is what Rahm means: doing anything–even those actions dictated by international law–that offend poor Lindsey’s sensibilities is a mistake, tantamount to ruining the President’s relationship with Congress. And I guess Rahm is okay with that–ceding the President’s authority on national security and legal issues to Lindsey Graham.

And look what you get out of that: Lindsey in a snit, pouting that the Attorney General of the United States determined to try criminals in a civilian court. And in response, refusing to close Gitmo.

In other words, we can’t close Gitmo because Obama’s “crack” Chief of Staff has willingly ceded the authority of the Attorney General of the United States to one Senator from the opposing party, and that single Senator is pouting because the Attorney General might choose law over Kangaroo Courts.

Read more

Why Did CIA Hide Dick Cheney’s Role in Briefing?

Thanks to the WaPo for confirming something I guessed last month. Back then, I wrote,

I’m going to make a wildarsed guess and suggest that when the CIA lists "not available" in a series of 2005 torture briefings to Republicans in Congress, they really mean "Dick Cheney attended, but we don’t want to tell you that."

Today, the WaPo reports,

Former vice president Richard B. Cheney personally oversaw at least four briefings with senior members of Congress about the controversial interrogation program, part of a secretive and forceful defense he mounted throughout 2005 in an effort to maintain support for the harsh techniques used on detainees.

[snip]

The CIA made no mention of his role in documents delivered to Capitol Hill last month that listed every lawmaker who had been briefed on "enhanced interrogation techniques" since 2002. For meetings that were overseen by Cheney, the agency told the intelligence committees that information about who oversaw those briefings was "not available."

[snip]

The CIA declined to comment on why Cheney’s presence in some meetings was left out of the records.

[snip]

Several members of Congress who took part in the Cheney meetings declined to comment on them, citing secrecy concerns.

In one of my most unsurprisingly correct wildarsed guesses ever, Cheney was working with the CIA to keep his little torture program, and neither the CIA nor the Republicans he was arm-twisting want to talk about it.

But that ought to be worth some closer attention. WTF did the CIA hide Cheney’s role in these briefings (not to mention the date of their briefing with McCain)? It reveals not only a desire to hide the degree to which these "briefings" under Porter Goss became active lobbying in support of torture, but also the degree to which the CIA is working actively, with a former Administration official (Cheney) to hide their collaboration.

The article does provide two more important details that add to the damning story.

Cheney’s briefings on interrogations began in the winter of 2005 as the top Democrats on the Senate and House intelligence committees,  Sen. John D. Rockefeller III (W.Va.) and  Rep. Jane Harman (Calif.), publicly advocated a full-scale investigation of the tactics used against top al-Qaeda suspects.

On March 8, 2005 — two days after a detailed report in the New York Times about interrogations — Cheney gathered Rockefeller, Harman and the chairmen of the intelligence panels,  Sen. Pat Roberts (R-Kan.) and  Rep. Peter Hoekstra (R-Mich.), Read more

“If You’re Trying to Commit a Crime,” You Wouldn’t Brief Democrats

I’ve been meticulously tracking the erroneous claims made about whether or not Democrats got briefed on torture because:

  • The known briefing schedule makes it clear that CIA broke the law requiring them to inform Congress of their actions
  • Some of the arguments rely on either illiteracy or willful ignorance of the public record in their claims

But in today’s hearing Lindsey Graham makes clear why the Republicans are arguing this point so aggressively.

Now. I don’t know what Nancy Pelosi knew and when she knew it. And I really don’t think she’s a criminal if she was told about waterboarding and did nothing. But I think it is important to understand that members of Congress, allegedly, were briefed by … about these interrogation techniques. And again, it goes back to the idea of what was the Administration trying to do. If you’re trying to commit a crime, it seems to me that’d be the last thing you’d want to do. If you had in your mind and your heart that you’re going to disregard the law, and you’re going to come up with interrogation techniques that you know to be illegal, you would not go around telling people on the other side of the aisle about it. 

Ahem.

Yes.

That’s the point now, isn’t it?

Because no one in Congress was told that the CIA was going to start torturing in 2002, until it was too late. Pelosi and Goss were told, after CIA had waterboarded Abu Zubaydah 83 times, that CIA might waterboard in the future. Bob Graham was not told of waterboarding at all, according to him. Jello Jay was not at the briefing at which CIA told Pat Roberts "in considerable detail" about waterboarding. The CIA doesn’t even say Jane Harman was told about waterboarding specifically in February 2003 (though I assume she was). 

The first time CIA can say for certain that any Democratic members of Congress at all were briefed on waterboarding was in July 2004, after CIA had waterboarded for what ended up being the last time, and after their own Inspector General determined they were breaking the law.

And then, in 2005, when CIA was trying to sustain their ability to torture against Congressional wishes, CIA had briefings for Ted Stevens and Thad Cochran with no Democrats in attendance. They had a briefing for John McCain with no Democrats in attendance. Read more