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My Version of Pelosi’s Statement on Exclusivity

TPMM wrote up a summary of a response Speaker Pelosi gave to a question I asked at a blogger conference call today that has caused a stir. While I don’t disagree with McJoan’s take–if the Speaker had really said immunity was the issue, it would reflect a short-sighted view of FISA (though I’d say the same about other topics, such as segregation; after all, once the government can legally use information that has been improperly collected, that’s toothpaste out of a tube, too)–I’d like to give my version of the conversation, because I don’t think that’s what Pelosi said or meant.

The call was originally supposed to be focused on contempt. So after the Speaker finished telling about the Paul Wellstone Mental Health and Addiction Equity bill, someone (Mike Stark, I think) asked for reassurances that the Democrats would continue to pursue contempt after we win the White House and larger margins in both houses next year. Pelosi spoke at length about how important this contempt fight is because of the separation of powers issue–and stated that this is a better case than when GAO tried to get Cheney’s records on his Energy Task Force. Finally, in response to a follow-up, Pelosi stated that Democrats would continue to pursue the contempt issue after November.

Then, I piped in. I basically asked the idea laid out in this post.

Email providers argue that immunity will contribute to uncertainty. They speak of receiving "vague promises," they demand "clear rules" and "bright lines."

Given that complaints about uncertainty and unclear demands have led these email providers to strongly oppose retroactive immunity, it suggests the requests the email providers got were really murky–murky enough that the requests caused the email providers a good deal of trouble.

If the government was making such murky requests, don’t you think Congress ought to know what those requests were in more detail?

That is, since email providers just made a very strong statement against immunity, shouldn’t we be asking them why they’re opposed to it?

Pelosi, having just spoken at length about about separation of powers, then said that immunity wasn’t the only issue, exclusivity was important as well.

Note, I’m not sure I can dispute Paul Kiel’s description, though I don’t remember Pelosi emphasizing exclusivity in the way his post suggests at all. I certainly didn’t hear her say immunity is the issue, but then I was listening for my answer. Read more

Mukasey Wasn’t Bluffing

Well, at least he complied with my request that he make his decision quickly. I’m sure you’re not surprised that he said no?

Pelosi:

By ordering the U.S. Attorney to take no action in response to congressional subpoenas, the Bush Administration is continuing to politicize law enforcement, which undermines public confidence in our criminal justice system.

Anticipating this response from the Administration, the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly. The American people demand that we uphold the law. As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.

Conyers:

Our investigation into the firing of United States Attorneys revealed an Administration and a Justice Department that seemed to put politics first, and today’s decision to shelve the contempt process, in violation of a federal statute, shows that the White House will go to any lengths to keep its role in the US Attorney firings hidden. In the face of such extraordinary actions, we have no choice but to proceed with a lawsuit to enforce the Committee’s subpoenas.

Pelosi to Mukasey: Tag. You’re It.

The Speaker writes letters to the Attorney General.

In accordance with 2 U.S.C. § 194 and the attached House Resolution 979 (adopted on February 14, 2008), I have today sent a certification to the United States Attorney for the District of Columbia, Jeffrey Taylor, advising him of the failure of former White House Counsel, Harriet Miers, to appear, testify and produce documents in compliance with a duly issued subpoena of a subcommittee of the House Judiciary Committee and of the failure of Joshua Bolten, White House Chief of Staff and custodian of White House documents, to produce documents in his custody as required by a duly issued subpoena of the House Judiciary Committee.

Under section 194, Mr. Taylor is now required "to bring the matter before the grand jury for its action." The appropriate grand jury action is a criminal charge for violation of 2 U.S.C. § 192, which provides: "Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers . . . willfully makes default . . . shall be deemed guilty of a misdemeanor" and shall be subject to a fine and "imprisonment in a common jail for not less than one month nor more than twelve months."

According to the testimony of your predecessor, former Attorney General Alberto Gonzales, and your recent testimony before the House Judiciary Committee, the Justice Department intends to prevent Mr. Taylor from complying with the statute and enforcing the contempt citations against Ms. Miers and Mr. Bolten. You claimed that "enforcement by way of contempt of a congressional subpoena is not permitted when the President directs a direct adviser of his… not to appear or when he directs any member of the executive not to produce documents." Hearing on Oversight of the Dep’t of Justice Before the H. Comm. on the Judiciary, 110th Cong. 87-88 (Feb. 7, 2008). You purported to base your view on a "long line of authority," but cited no court decision that supports this proposition.

There is no authority by which persons may wholly ignore a subpoena and fail to appear as directed because a President unilaterally instructs them to do so. Even if a subpoenaed witness intends to assert a privilege in response to questions, the witness is not at liberty to disregard the subpoena and fail to appear at the required time and place. Read more

FISA and the Warrantless Wiretap Briefings

As we await certain doom because the NSA has to rely on FISA to authorize any new warrantless wiretaps (though it can continue all the programs currently in place), I wanted to correct what appears to be a common mistake about the earlier warrantless wiretap program. I’ve seen a lot of people claim that all of Congress knew of the program, that the Gang of Eight got regular briefings about it, that Congress wants the telecoms to get immunity because leaders in Congress want immunity.

The reality–at least according to the published record of those briefed on Bush’s warrantless wiretap program–is much more narrow. And as this fight moves into the House, it’d pay to have a clear understanding of who got briefed and how they claimed to have responded.

The Gang of Eight was not briefed regularly on the program

Kit Bond likes to claim that the Gang of Eight–the majority and minority leaders of both houses of Congress and the majority and minority leaders of both intelligence committees–were briefed on the program. That’s a lie. In general, the Administration briefed the intelligence committee heads, but not the Majority and Minority leaders. The first time the entire Gang of Eight was briefed on the program was when, on March 10, 2004, the Administration tried to get them to authorize continuing the program even though Jim Comey said it was illegal. At the time, the following were members of the Gang of Eight:

  • Denny Hastert
  • Bill Frist
  • Tom Daschle
  • Nancy Pelosi
  • Porter Goss
  • Jane Harman
  • Pat Roberts
  • Jello Jay Rockefeller

After Harry Reid became Minority Leader of the Senate in 2005, he received a briefing on February 3, 2005–by himself, as did Crazy Pete Hoekstra when he became HPSCI Chair in September 2004. There was not any other briefing where the entire Gang of Eight got the same briefing. Though after Risen and Lichtblau exposed the program, Jello Jay received a briefing with the Republican half of the Gang of Eight, and then Reid, Pelosi, and Harman received a briefing (which Roberts also attended).

As Arlen “Scottish Haggis” Specter has pointed out, the Administration was in violation of the National Security Act when, with the exception of March 10, 2004, it limited its briefings to just the intelligence committee heads.

Read more

Dick’s Big Stick and the Democratic Alpha Male

Well, darnit. I got forwarded the Lizza column and assumed it was recent. It’s not. So Lizza should not remember the Cheney comment, because it happened after Lizza’s column. I apologize to Lizza, but not that the manly men Dingell and Murtha were, in fact, in Congress already when Lizza wrote the column. 

Ryan Lizza must have forgotten that Dick Cheney insinuated Nancy Pelosi had emasculated John Murtha and John Dingell.

Cheney, in an interview with Politico, said Murtha (Pa.) and Dingell (Mich.), two of the most powerful House Democrats, "march to the tune of Nancy Pelosi," adding that "they are not carrying the big sticks I would have expected."

That’s because Lizza has discovered, as if it were new, the Democratic Alpha Male.

The members of this new faction, which helped the Democrats expand into majority status, stand out not for their ideology or racial background but for their carefully cultivated masculinity.

"As much as the policy positions is the background and character of these Democrats," says John Lapp, the former executive director of the Democratic Congressional Campaign Committee who helped recruit this new breed of candidate. "So we went to C.I.A. agents, F.B.I. agents, N.F.L. quarterbacks, sheriffs, Iraq war vets. These are red-blooded Americans who are tough."

Mr. Lapp even coined a term to describe these manly — and they are all men — pols: "the Macho Dems."

The return of Democratic manliness was no accident; it was a carefully planned strategy. But now that the Macho Dems are walking the halls of Congress, it remains to be seen whether they will create as many problems for Democrats as they solved. After all, these new Democrats have heterodox political views that could complicate Democratic caucus politics, and their success may raise uncomfortable questions for those Democrats who don’t pass the new macho test.

Call me crazy, but to suggest that John Murtha isn’t a manly man is as much a slight to his long-term service in the Marines as when Mean Jean called Murtha a coward. And one of the biggest reasons why I have John Dingell representing me in the House, rather than Lynn Rivers, is because Dingell is a hunter’s hunter–a better shot than Dick Cheney, I’d wager.

Somehow, these two manly men have survived–even flourished–in the House for a combined eighty-five years. Yet Lizza would have you believe the Democratic Alpha Male is a recent fad.

Mark Foley Falls into Pelosi’s Lap

Not literally, of course. She’s not his type. But the Blotter is reporting that Florida investigators have asked the Speaker’s help in accessing Foley’s Congressional computer, which they had been prevented from subpoenaing because of the William Jefferson ruling extending Speech and Debate to Congressional materials.

Florida law enforcement officials investigating former Republican Rep. Mark Foley, whose e-mails and instant messages to teenage former congressional pages shocked the country, are hoping Speaker of the House Nancy Pelosi will grant them access to Foley’s House computers.

"We are respectfully requesting access to any and all computer equipment that the U.S. Government possesses that former Representative Foley utilized during his time in office," Florida Department of Law Enforcement Commissioner Gerald Bailey wrote to the speaker last month.

What makes this request particularly interesting is that Republicans have been trying to drum up a page scandal (yup, you guessed it, a consensual blow job) to blame Pelosi for. Thus, while Congress in general seems to want to use the Jefferson precedent to expand their own prerogatives, the new page scandal offers Pelosi cover for turning over Foley’s computer files.

The early indication, at least, is that Pelosi would very much like to do that–turn over materials to the Florida investigative team.

Spokesman Brendan Daly also said the office wants to cooperate with Florida investigators and will consult with House lawyers.

If she were smart, she’d craft an approach that would make it difficult for all Congressmen to use the Jefferson precedent to hide their legal improprieties. But it’s so much easier to get people in DC to take action to punish sex than bribery.

Is Pelosi Planning on Picking Bush’s Pocket?

Remember Bush’s surly claimed pocket veto on military pay raises, just in time for New Years? We pretty much dismissed its claim to legality when it happened (See especially PhoenixWoman’s link, which has gotten far too little attention for its apparent precedent on precisely the issues in question). But now I’m increasingly intrigued by the political possibilities, particularly with the news that Speaker Pelosi is calling bullshit on Bush’s claim to have used a pocket veto specifically to reject the bill.

The White House on Monday said it was pocket-vetoing the measure, but a spokesman for House Speaker Nancy Pelosi (D-Calif.) said the president cannot use such a measure when Congress is in session. The distinction over whether the president can pocket-veto the bill is important because such a move would prevent Congress from voting on an override.

Congress vigorously rejects any claim that the president has the authority to pocket-veto this legislation, and will treat any bill returned to the Congress as open to an override vote,” said Nadeam Elshami, a spokesman for Pelosi. He said the Speaker is keeping all legislative options on the table. [my emphasis]

As soon as Bush announced he planned to veto the bill, I grew enticed by what some of those "legislative options" might be–and Nancy’s cry of "bullshit" makes me even more enticed.

As I see it, if Congress insists that Bush could not have pocket vetoed the bill, then the first thing it should do is aim for an override. As the Hill points out, Democrats are likely to lose the huge majorities who supported the bill last month. But if they can credibly show that they might be able to override Bush’s veto, things would get interesting.

See, I believe that Bush has now placed Democrats in the position he has tried to place himself in with his threat to veto all the appropriations bills. That is, if Bush vetos the appropriations bills, then that’ll put the Democrats in a position where they need to negotiate quickly, or risk shutting down the government (Kagro X laid this all out in a couple of posts last September, but I can’t seem to find them right away).

The position Democrats are in now is similar: They can do a whip count, and if they’ve proven they have the votes, then can threaten to simply override the veto and negotiate from there.

Or, more tantalizingly, they can re-open the whole Defense Appropriations bill. All of it. Read more

Seeing a Catfight Where There Is None

Spencer Ackerman has a more complete version of Nancy Pelosi’s statement about when she was briefed on torture techniques.

On one occasion, in the fall of 2002, I was briefed on interrogation techniques the Administration was considering using in the future. The Administration advised that legal counsel for the both the CIA and the Department of Justice had concluded that the techniques were legal.

I had no further briefings on the techniques. Several months later, my successor as Ranking Member of the House Intelligence Committee, Jane Harman, was briefed more extensively and advised the techniques had in fact been employed. It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred.

And then he makes what I consider a gross misreading of the statement.

One: Pelosi isn’t saying that she knew how detainees were interrogated. She’s saying she was told that all techniques used in those interrogations were considered legal. So did she know what those techniques were, and what they entailed? We’ll find out, or get stonewalled trying.

Two: Never mind the brief mention of Jane Harman’s protest. Pelosi just threw Harman under the bus. It’s no secret that the two Californians don’t get along. But she didn’t need to put the blame on her committee successor in her statement on this controversy.

Let’s take the key clauses from Nancy’s statement. I’ve bolded them up there in the statement so it’s crystal clear that they’re direct quotes, written in plain language.

  1. I [Nancy Pelosi] was briefed on interrogation techniques
  2. Jane Harman, was briefed more extensively and advised the techniques had in fact been employed
  3. Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred

Read more

The Revolt of the Spooks

(Or Is it Civil War?)

There has been a lot of hand-wringing in this post, suggesting that the story revealing some Democratic members of the Gang of Four was a hit piece by Republicans (or, specifically, Porter Goss). That strikes me as an overly Manichean view of things, in which an article that makes Democrats look bad could only be a Republican hit piece. There’s another party in this equation–the Intelligence Community. The events of the last ten days make more sense, it seems to me, if you consider all of those events as a revolt on the part of the Intelligence Community.

Start with the release of the NIE. Pat Lang passes on the explanation that the NIE was declassified after "intelligence career seniors" threatened to leak the NIE to the press, legal consequences be damned.

The "jungle telegraph" in Washington is booming with news of the Iran NIE. I am told that the reason the conclusions of the NIE were released is that it was communicated to the White House that "intelligence career seniors were lined up to go to jail if necessary" if the document’s gist were not given to the public. Translation? Someone in that group would have gone to the media "on the record" to disclose its contents.

Dafna Linzer and Peter Baker provide the polite version–but still point to a senior intelligence officer who describes making the decision in the first person plural.

By last weekend, an intense discussion broke out about whether to keep it secret. "We knew it would leak, so honesty required that we get this out ahead, to prevent it from appearing to be cherry picking," said a top intelligence official. So McConnell reversed himself, and analysts scrambled over the weekend to draft a declassified version.

So somewhere in the ranks of the "career seniors" and the "top intelligence officials" some folks made a decision to confront Dick Cheney’s war-mongering directly. That’s a pretty serious escalation of the long-brewing conflict between Cheney and the Intelligence Community.

Then there’s the blockbuster by Mark Mazzetti (NYT’s intelligence reporter) revealing the destruction of the torture tapes. He sources it to:

current and former government officials

several officials

current and former government officials

former intelligence official who was briefed on the issue

But not Porter Goss (who would otherwise qualify as a "former government official"); Goss declined to comment through a spokesperson. And also not Michael Hayden, who wrote a letter to pre-empt Mazzetti’s story that provides a laughable party line for CIA officers to parrot. Read more

Nancy Pelosi: Congressional Leaders Do Expect the Spanish Inquisition

Ximinez: NOBODY expects the Spanish Inquisition! Our chief weapon is surprise…surprise and fear…fear and surprise…. Our two weapons are fear and surprise…and ruthless efficiency…. Our *three* weapons are fear, surprise, and ruthless efficiency…and an almost fanatical devotion to the Pope…. Our *four*…no… *Amongst* our weapons…. Amongst our weaponry…are such elements as fear, surprise…. I’ll come in again.

The WaPo is out today confirming something Mary suspected: Nancy Pelosi was briefed on–and raised no objection to–our methods of torture.

In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

[snip]

Pelosi declined to comment directly on her reaction to the classified briefings. But a congressional source familiar with Pelosi’s position on the matter said the California lawmaker did recall discussions about enhanced interrogation. The source said Pelosi recalls that techniques described by the CIA were still in the planning stage — they had been designed and cleared with agency lawyers but not yet put in practice — and acknowledged that Pelosi did not raise objections at the time.

Meanwhile, it’s time for me to, once again, applaud Jane Harman for doing the right thing. She was apparently the only known Congressperson who raised a formal objection to the practices. Read more