Obama “Looks Forward” on Financial Fraud, Too

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Obama just issued a signing statement to the bill establishing the "Pecora Commission," mandated to investigate the financial meltdown. The statement seems to signal a desire to "look forward" on financial fraud, in the same way he continues to try to "look forward" on torture an other abuses of power.

The complete statement reads,

Today I have signed into law S. 386, the "Fraud Enforcement and Recovery Act of 2009." This Act provides Federal investigators and prosecutors with significant new criminal and civil tools to assist in holding accountable those who have committed financial fraud. These legislative enhancements will help the Department of Justice to combat mortgage fraud, securities and commodities fraud, and related offenses, and to protect taxpayer money that has been expended on recent economic stimulus and rescue packages. With the tools that the Act provides, the Department of Justice and others will be better equipped to address the challenges that face the Nation in difficult economic times and to do their part to help the Nation respond to this challenge.

Section 5(d) of the Act requires every department, agency, bureau, board, commission, office, independent establishment, or instrumentality of the United States to furnish to the Financial Crisis Inquiry Commission, a legislative entity, any information related to any Commission inquiry. As my Administration communicated to the Congress during the legislative process, the executive branch will construe this subsection of the bill not to abrogate any constitutional privilege.

Which affects the following section, laying out the Commission’s investigative power. 

(d) Powers of the Commission-

(1) HEARINGS AND EVIDENCE- The Commission may, for purposes of carrying out this section–

(A) hold hearings, sit and act at times and places, take testimony, receive evidence, and administer oaths; and

(B) require, by subpoena or otherwise, the attendance and testimony of witnesses and the production of books, records, correspondence, memoranda, papers, and documents.

(2) SUBPOENAS-

(A) SERVICE- Subpoenas issued under paragraph (1)(B) may be served by any person designated by the Commission.

(B) ENFORCEMENT-

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Dick Cheney, Torture, Iraq, and Valerie Plame

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I’ve been reluctant to embrace suggestions that torture, Iraq, and Valerie Plame were all going to coalesce into one linked story. After all, it would be too easy for me, of all people, to argue these stories were linked. But I increasingly suspect they are.

First, let me pull together some data points.

Nancy Pelosi and Bob Graham are linking the non-briefings on torture with the Iraq NIE

Now that they are explicitly stating that CIA lied in its September briefings on torture, Nancy Pelosi and Bob Graham are also both linking those lies with the lies they were telling–at precisely the same time–in the Iraq NIE. Here’s Pelosi:

Of all the briefings that I have received at this same time, earlier, they were misinforming the American people there were weapons of mass destruction in Iraq and it was an imminent threat to the United States. I, to the limit of what I could say to my caucus, told them, the intelligence does not support the imminent threat that this Administration is contending. Whether it’s on the subject of what’s happening in Iraq, whether it’s on the subject of techniques used by the intelligence community on those they are interrogating, every step of the way, the Administration was misleading the Congress.

And that is the issue. And that is why we need a truth commission.

And here’s Graham:

Yes, they’re obligated to tell the full Intelligence Committee, not just the leadership. This was the same time within the same week, in fact, that the CIA was submitting its National Intelligence Estimate on weapons of mass destruction in Iraq which proves so erroneous that we went to war, have had thousands of persons killed and injured as a result of misinformation.

Now, it’s quite possible Graham and Pelosi are tying these two lies together just to remind reporters how unreliable the CIA is. Perhaps they’re doing it to remind reporters of how they got burned leading into the Iraq War, trusting the spin of the Administration.

But perhaps they’re trying to say there’s a direct connection, an explicit one, between the NIE and torture. We know Ibn Sheikh al-Libi’s claims appeared in there. Did anything that came out of Abu Zubaydah’s interrogation? Or Ramzi bin al-Shibh? 

Did CIA not reveal they were torturing detainees to dodge any question about the accuracy of claims about Iraq intelligence?

The proposal to waterboard Muhammed Khudayr al-Dulaymi

Then there’s not just the revelation, by Charles Duelfer, but the timing he describes of OVP proposals to waterboard Muhammed Khudayr al-Dulaymi, a Mukhabarat officer. Read more →

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Dick Cheney Out on a Limb Fourth Branch

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We’ve been laughing about this in threads, but I wanted to share the joke(s). Greg Sargent got the letter from the CIA telling the Archives that Dick Cheney can’t have his propaganda.

As you are aware, a request for Mandatory Declassification Review is governed by Executive Order 12958, as amended, which was signed and executed by the President on March 25, 2003. Under section 3.5.(a)(3) of that Executive Order, a document is excluded from Mandatory Declassification Review if that document contains information that is the subject of pending litigation. This provision ensures that the Mandatory Declassification Review process is not used to disrupt simultaneous litigation proceedings that are already pending. In researching the information in question, we have discovered that it is currently the subject of pending FOIA litigation (Bloche v. Department of Defense, Amnesty International v. Central Intelligence Agency). Therefore, the requested document, which contains this information, is excluded from Mandatory Declassification Review.

There are two reasons I’ve been laughing my ass off for the last few hours.

First, those FOIAs? The CIA says Dick can’t have his propaganda until two liberal entities–some experts in bioethics wanting more details on the use of doctors in torture, and Amnesty International and Center for Constitutional Rights looking for more information on extraordinary rendition and ghost detainees–resolve their demand for these documents. But guess what? Cheney’s propaganda documents aren’t the only things that would be responsive under FOIA! So would the IG report, particularly the parts that describe how the CIA’s own IG didn’t think torture was all that effective and those that discuss the use of psychologist-contractors to conduct torture. So for Dick to get his documents, he may have to wait for these do-gooder torture opponents get a whole load of proof of just how ineffective and unethical Cheney’s torture program was.

I just can’t wait to see Dick Cheney asking the Center for Constitutional Rights nicely to give him his little propaganda documents. 

And what’s better? That EO the CIA cites, saying it cannot turn over these documents? EO 12958, as amended? That amendment is EO 13292–an amendment Dick had Bush sign on March 25, 2003, just at the beginning of the Iraq War. It’s a special amendment in Dick’s little bureaucratic evil, because it’s the basis that Dick used to claim he could insta-declassify the identity of a CIA spy and have it leaked to Judy Miller! Read more →

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Obama and State Secrets

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Last night, Obama suggested that his Administration may be in the process of softening their Cheneyesque stance on state secrets.

Q Thank you, Mr. President. During the campaign you criticized President Bush’s use of the state secrets privilege. But U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s? And do you believe Presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition, if classified information is involved?

THE PRESIDENT: I actually think that the state secret doctrine should be modified. I think right how it’s over-broad. But keep in mind what happens is, we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what exactly should an overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House Counsel, and others are working on that as we speak.

Now, at one level, this is unsurprising. As I reported last week, Jerry Nadler reported that Eric Holder appeared to agree in principle with Nadler’s efforts to reform state secrets.

But the claim that, "we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up"? That I’ve got limited patience with. True, the Administration did have a bunch of state secrets cases come up right at the beginning of the term. True, many of those came up even before Eric Holder was confirmed.

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Russ Feingold: Repeated Assertion of State Secrets “Reminiscent of Bush Administration”

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picture-100.thumbnail.pngRuss Feingold just had a conference call to announce his release of a report card grading Obama’s first 100 days in office. (The report card gives Obama a "some good, some bad, some too early to tell" grade.)

While he applauded the efforts the Obama Administration has made to end torture and to restore a presumption of release under FOIA, there were two areas where Feingold had particular complaints: State Secrets and the disclosure of information to the intelligence committee.

Of State Secrets, he said the Administration’s repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program.

His second major complaint, while less specific (for obvious reasons), was more revealing. He said there was not yet enough disclosure to members and staffers on the intelligence committees. While he said the Obama Administration is clearly more open than the Bush Administration, he suggested the intelligence community was still "stonewalling and roadblocking" information to the committees. He did note, however, that he can’t assess whether the Obama Administration is using the Gang of Eight process properly as he’s not part of the Gang of Eight. He did argue, though, that there are few things that shouldn’t be briefed to the entire intelligence committees. It seems that’s not currently happening.

In a related point, he said the Administration has an opportunity–one it hasn’t taken yet–to fix overclassification problems. He suggested the Administration could–but hadn’t–return to policies practice on classification under the Clinton Administration.

A Milwaukee reporter–who seemed to reflect a divided local response on the release of the torture memos–asked about what he thought of the release. Feingold said the Administration got "real [high?] marks for having the courage to release these memos." He specified, however, that the Administration still should release the 2006 and 2007 memos on torture that we haven’t yet seen.

It sounds like those memos may be just as appalling as what we’ve seen so far.

He also made clear that the memos authorizing the warrantless wiretap program have not been released and remain in effect. I guess we shouldn’t be surprised, then, that the NSA continues to follow the same domestic wiretapping practices it did under the Bush Administration.

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Greg Craig and State Secrets

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Greg Sargent reports on Obama’s refusal to reveal whether he will support or oppose the State Secrets legislation in Congess. To which Mark Ambinder provides an even more telling response.

They no-commented me last week, and they’re stonewalling Greg Sargent this week: the White House refuses to say whether the President supports the State Secrets Protection Act in Congress.  As a candidate, Obama supported the principles espoused in a similar piece of legislation, but he did not sign on to the bill as a cosponsor.  My reporting leads me to believe that senior administration officials, including the White House counsel, Gregory Craig, oppose the current version of the legislation because they believe it would overturn an important, established precedent and weaken the ability of the president to protect national security. [my emphasis]

Yeah … Greg Craig … you think maybe he’s opposed to rolling back state secrets?

Mind you, Obama is 100% responsible for the policies his crappy advisors implement, so ultimately, Ambinder might as well have said, "Obama and his White House counsel" are opposed to the new bill. But Greg Craig was the guy reiterating the state secrets Bush had declared at a time before Eric Holder had been read into some of those questions. Greg Craig is the guy who refuses to go on the record to explain to what degree he’s got Obama following Bush on signing statements, too. 

Now, frankly, I don’t think it much matters what Clinton throwback Greg Craig (or for that matter, Obama) thinks about state secrets. As I suggested here and here, the courts are heading in precisely the same direction as Congress on this issue, and that’s before Vaughn Walker gets done with Obama’s Cheneyesque argumentation. So regardless of whether this is done via legislation or the courts, I suspect it will be done.

That said, Greg Craig has been a bumbling disaster since well before Obama won this election, putting a face of dishonesty on Obama’s stated better intentions. Along with this backwards embrace of state secrets, Obama’d do well to get rid of his reactionary White House counsel, too. 

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Cheney’s Stay Behind

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By now, you’ve heard Sy Hersh’s explanation for why he hasn’t yet gotten the flood of revelations about the Bush Administration he had expected.

HERSH: I’ll make it worse. I think he’s put people left. He’s put people back. They call it a stay behind. It’s sort of an intelligence term of art. When you leave a country and, you know, you’ve driven out the, you know, you’ve lost the war. You leave people behind. It’s a stay behind that you can continue to contacts with, to do sabotage, whatever you want to do. Cheney’s left a stay behind. He’s got people in a lot of agencies that still tell him what’s going on. Particularly in defense, obviously. Also in the NSA, there’s still people that talk to him. He still knows what’s going on. Can he still control policy up to a point? Probably up to a point, a minor point. But he’s still there. He’s still a presence. [my emphasis]

This is not remotely surprising. We discussed the likelihood this was happening just days after Obama took over, as dead-enders tried to spike Obama’s promise to withdraw from Iraq. And there has been a ton of reporting on the burrowing of loyal appointees that Cheney accomplished before leaving.

But Hersh’s report that such stay behind includes NSA is of particular concern.

Not only does this raise concerns about the warrantless wiretap program and its use (particularly given reports that the NSA was segregating contacts with journalists, like Hersh, who has lots of contacts in the Middle East). But it raises concerns about whether or not Cheney sustains the practice–publicized during the John Bolton confirmation hearings–of getting the US person end of NSA intercepts (I have no idea whether Cheney would do this through dead-enders, whether he’s getting that much more directly, or whether he’s getting help from Israelis involved in our wiretap programs). A number of people suspected that Bolton had used NSA intercepts to undermine North Korean diplomacy (among other things). Such a practice obviously fits Cheney’s MO.

Yet more reason we need to reassess our use of electronic wiretapping  within the US.

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What the Scope of the IG Report on Warrantless Wiretapping Tells Us

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Remember how when Congress passed the FISA Amendment Act last year, they required that the Inspectors General of the various agencies involved in the warrantless wiretapping produce a report on the program? They did an interim report–basically describing the scope of the report–last September (and produced in unclassified form last November). It took Secrecy News pulling teeth to get this released (six months after the fact), but here is the interim report.

General Scope

I’m going to show you the whole scope-related section, then unpack it line by line.

The DoJ IG is completing work on a broadly-scoped review of the Program, which the DoJ IG has been conducting over the past 18 months. In accord with its normal procedures and consistent with classification requirements, the DoJ IG will release its report when completed. The DoJ IG’s review examines the involvement of the DoJ and the Federal Bureau of Investigation (FBI) in the Program, including the use of and control over Program information; compliance with relevant authorities governing the Program as these authorities changed over time; and the impact and effectiveness of Program information on DoJ’s and FBI’s counterterrorism efforts. The review also describes various legal assessments of the Program, legal and operational changes to the Program, any use of Program information in the FISA process, and the transition to Foreign Intelligence Surveillance Court orders related to the Program.

The NSA IG’s review will examine the evolution of the Presidential authorization as it affected NSA, the technical operation of the Program, the preparation and dissemination of the product of the Program, and communications with and representations made to private sector entities. The review will address access by NSA to legal reviews and information concerning the Program and will also examine NSA’s interaction with the Foreign Intelligence Surveillance Court and the transition of Program activities to operations under court orders. The review will also include a description of NSA’s oversight of the Program. To conduct the review of the Program, the NSA IG will both initiate new work and draw upon a substantial body of completed evaluations.

The DoD IG will examine the involvement of the Office of the Secretary of Defense in the establishment and implementation of the Program.

The ODNI IG will examine the involvement of DNI senior leadership in the Program and DNI communication with private-sector entities concerning the Program. Read more →

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Durbin and Whitehouse: Why Did Mukasey Give OLC a Peek at the Yoo/Bradbury Results?

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Dick Durbin and Sheldon Whitehouse want to know why the Office of Professional Responsibility gave OLC a chance to review their report on John Yoo’s and Steven Bradbury’s torture memos.

Just last week, they got a response from DOJ on the process the OPR review has gone through, revealing that the report already integrated comments from Mukasey and "OLC" (whose acting head was Steven Bradbury), and was giving Bradbury, Yoo, and Jay Bybee an opportunity to comment, as well. It will take "substantial time" before this review process is done, DOJ says.

OPR has completed its investigation of this matter and in late December 2008, provided the draft report to Attorney General Mukasey and invited comment. Attorney General Mukasey shared the report with Deputy Attorney General Filip and OLC. Thereafter, Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments, and OPR revised the draft report to the extent it deemed appropriate based on those comments.

In addition, during the course of the investigation, counsel for the former Department attorneys asked OPR for an opportunity to review and comment on the report prior to any disclosure of its results to Congress or the public. Attorney General Mukasey and Deputy Attorney General Filip likewise requested that OPR provide the former Department attorneys with such an opportunity. For these reasons, OPR is now in the process of sharing the revised draft report with them. When the review and comment period is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the Department will determine what disclosures should be made. Due to the complexity and classification level of the draft report, the review process described above likely will require substantial time and effort.

Which of course raises a whole slew of questions, some of which Durbin and Whitehouse have now posed to DOJ. Such as whether OLC’s review of the document influenced Steven Bradbury’s January 15 OLC memo withdrawing certain earlier opinions. 

Your letter does not indicate whether Steven Bradbury was recused from reviewing and providing comments on the draft report.  Mr. Bradbury, who was then the Principal Deputy Assistant Attorney General of OLC, is reportedly a subject of the OPR investigation. Read more →

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John Hannah: Unitary Executives Can Assassinate Enemy Leaders

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In his appearance tonight on Wolf Blitzer, Sy Hersh said the same thing I said about his "revelation" that JSOC had assassination squads that bypassed normal reporting channels–Hersh pointed out that he had reported all that previously, last July. The biggest news in that part of his appearance is that Hersh revealed the number of countries–twelve–in which JSOC could work its assassination teams.

After Hersh appeared, Wolf had John Hannah, Cheney’s replacement Scooter and by far the biggest hack witness at the Libby trial, to try to rebut Hersh’s reporting.

Though Hannah didn’t really do that.

Instead, he dismissed Hersh’s concerns about the legality of the operations by insisting that the Chairs of the Intelligence and Armed Services committees, and Congressional leadership, could learn about these operations. Aside from the fact that Hannah admitted he didn’t actually know that to be true, he’s working on the assumption that they’ll come and ask about something that Hannah admits is a very close hold. 

Wolf: And when he says this JSOC, the Joint Special Operations Command has this authority that they don’t even tell Congress about?

Hannah: It is extremely hard for me to believe, I, I, don’t know exactly what the consultations are with the Congress but it’s hard for me to believe that those committee chairmen and the leadership on the Hill involved in intelligence and armed services, if they want to know about these operations, cannot get this information from the Defense Department.

Wolf: And so this would be, from your perspective–and you worked for the Bush Administration for many years–it would be totally constitutional, totally legal to go out, find these guys, and to whack them. 

Hannah: There’s no question, in a theater of war, when we are at war–and there’s no doubt, we are still at war against Al Qaeda in Iraq, Al Qaeda in Afghanistan. and on that Pakistani border–that our troops have the authority to go out after and capture and kill the enemy, including the leadership of the enemy. 

Ultimately, though, Hannah resorts to the Cheneyesque justification for all abuses of power, the AUMF, arguing that troops "in the theater of war" can capture and kill the enemy. 

Of course, we’ve already seen that, until last November at least, the Bush Administration considered the US to be in the theater of war.  And Hannah pretends these assassinations are only going on in Iraq (if you’re Nuri al-Maliki or Read more →

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