Bush says he wants a new FISA bill, and he wants it now. 

The White House told Democratic congressional leaders Saturday that President Bush opposes a 30-day extension of an expiring eavesdropping law and instead wants an expanded version to be passed by Friday.

“The president would veto a 30-day extension,” a senior administration official said. “They’re just kicking the can down the road. They need the heat of the current law lapsing to get this done.” 

To which Reid appropriately pinned any blame on Bush.

Senate Majority Leader Harry Reid (D-Nev.) called the veto threat "shamefully irresponsible" and "simply posturing in advance of Monday’s State of the Union address."

"There will be no terrorism intelligence collection gap," Reid said. "But if there is any problem, the blame will clearly and unequivocally fall where it belongs: on President Bush and his allies in Congress."

Reid’s response is useful. But he needs to say one more thing. If Bush vetos a 30-day extension, he will be doing so for one reason and one reason only: because the existing legislationg, PAA, doesn’t offer immunity to telecoms–and with it, to Dick Cheney and everyone else in this Administration who pushed the telecoms to continue their spying even after the acting AG, Jim Comey, refused to certify the program for a period in 2004.

Bush is willing to forgo implementing new FISA programs (all the existing ones will continue for at least six months) all because he wants Dick to get his immunity … now. This is about Bush putting Dick’s interests–and his own–above the security of the country.

While Hillary and Obama were leaving the work of legislating to others, Chris Dodd stepped up to lay out the stakes for the FISA debate.

Senators are not entitled to see their amendments pass. But they are entitled to this: a good-faith debate, honest criticism, and, ultimately, a vote.

Last night, they didn’t get it. Our Republican colleagues, assuming that they would lose those votes, effectively shut down the work of the Senate. They’ve taken their ball and run home.

They won’t debate us on the merits. On the merits, they conceded, Republicans have lost.

And I don’t think I’m far off base, Mr. President, in seeing in this egregious shutdown a parallel to retroactive immunity itself. Both attitudes privilege power over deliberation, over consensus, over honest argument.

Like immunity, pulling these amendments shows a contempt for honest debate and a willingness to settle issues in the dark, in back rooms—rather than in the open, where the law lives, where the American people can see it.

President Bush wants to shut down courts whose rulings he doesn’t like; last night, Senate Republicans showed that when they don’t like the outcome of a debate, they’ll shut that down, too.

It’s one thing for a president to express that kind of contempt for the process of legislation. It’s another for the members legislative branch to express it themselves.

Mr. President, I’ve spoken repeatedly about the rule of law. The rule of law isn’t some abstract idea. It’s here with us—it’s what makes this body run.

It means we hear each other out, we do it in the open, and while the minority gets its voice, gets its right to strenuously object, the majority ultimately rules.

And standing for the rule of law anywhere means standing for it everywhere: in our courts, and in our Senate. The circumstances are different, of course; but the heart of the matter is the same. Last night, I believe, the Republican party forfeited its claim to good faith on this issue. They’re left to stake their case on fear. Whether that will be enough, the next few days will tell. [my emphasis]

Well, thank god someone’s in DC standing up for the rule of law.

Senators Dodd and Feingold aren’t waiting for Monday to keep fighting the good fight on FISA. Feingold has issued the following statement:

The conduct of Senate Republicans yesterday was shameless. After weeks of insisting that it is absolutely critical to finish the FISA legislation by February 1, even going so far as to object to a one-month extension of the Protect America Act, they obstructed all efforts to actually work on the bill. Now they want to simply ram the deeply flawed Intelligence Committee bill through the Senate. They refused to allow amendments to be offered or voted on, including my straight-forward amendment to require that the government provide copies of FISA Court orders and pleadings for review in a classified setting, so that Members of Congress can understand how FISA has been interpreted and is being applied. If the Republicans succeed in cutting off debate on Monday, the Senate won’t even get to vote on the amendment Senator Dodd and I want to offer to deny retroactive immunity to telecom companies that allegedly cooperated with the administration’s illegal wiretapping program.

Democrats should not allow the Republicans to ram this bill through the Senate without amendments. Monday’s cloture vote will be a test of whether the majority is willing to stand up to the administration and stand up for our rights. [my empahsis]

And Dodd just finished kicking some serious ass on the floor of the Senate. He has called those who claim the telecoms will go out of business "amateur economists" and pointed to AT&Ts huge profits. He explained, "the point of immunity is to challenge Bush’s assertion that he is the law." And he accused the telecoms of using the Nuremberg defense. Finally, after listing all the abuses of power that can’t be undone–including the destruction of the torture tapes and AGAG’s lies before Congress, he described immunity as one thread that we can use to combat the Administration’s abuses. "We can grab hold of the one thread left to use here and pull on it until the whole garment unravels."

Update: Whitehouse just finished speaking. Two of his best lines were, the Administration "couldn’t be troubled to get a court order, to protect these companies they’re so concerned about now" and if we pass telecom immunity, "we are taking away real rights of real Americans that are being litigated in courts right now. I don’t know if Congress has ever done before."

One of the things we’re fighting for now on FISA is to make sure the Republicans get pinned as the obstructionists here. Here was Reid’s first shot at doing so (a rough transcript of his speech, via email):

We want, if necessary, within the confines of the law, to do wiretapping of these bad people. But, Mr. President, Having said that we want to do it within the confines of our Law and our constitution. We want to make sure that this wire tapping does not include innocent Americans who just happen to be part of what they’re collecting. That’s what the American People expect us to do.

So I again say Mr. President, no one can question our patriotism, our willingness to keep our homeland safe. We have tried to move forward on this legislation. We have tried in many different ways. What we have been doing today and yesterday is moving forward on this legislation just as the distinguished Senator from California said. There are amendments that will make this legislation better. Now that’s in the eye of the beholder. We all understand that. But shouldn’t the Senate have the ability to vote on those amendments?

No matter what we do as a Senate it has to have a conference with the house. They have already passed their legislation. But we have been stalled every step of the way. Every step of the way, the Feingold Amendment, for example, was offered certainly it is germane. But he is being told, we’re being told he can’t get a vote on this amendment because it concerns the FISA court orders well, his amendment was discussed at length previously half of it was accepted on a bipartisan basis much the other half wasn’t. But certainly he is entitled to a vote Senator Whitehouse, Senator Feingold and I don’t want to embarrass him – he is really a legal scholar. He went to one of our highest Law Schools in the world, he is a Rhodes Scholar.

Senator Whitehouse has been Attorney General of the State of Rhode Island and is certainly, Mr. President, known all over the country as someone who understands the law. He has been a tremendously good person as a member of the United States Senate. He served on both committees – the intelligence committee on the Judiciary Committee. He is a thoughtful person. The legislation that came out of the intelligence committee should be improved and as a pen of the judiciary committee he worked to have that improved. He offered an amendment a short time ago, sough to offer an amendment, a major main amendment concerning – a germane amendment concerning minimization which means if you pick up by mistake an American you drop that you push that out of the way that isn’t going to be made public in any manner we want to vote on that. It seems everyone would vote for it. I would certainly hope it is but there is an objection to even having a vote on that amendment. Senator Cardin, a long time member of the congress relatively new member of the senate but a long time experience member of the congress of the United States sought to offer an amendment, a germane amendment shortening the sunset provision. The Bill that is before us that came out of the intelligence committee is for six years.

Now, Mr. President, things are changing rapidly in our country and in the world as it relates to things electronic. We don’t know what is going to take place in regard to terrorism, violence or what’s going to take place with our ability to do better jobs electronically to uncover some of the stuff we believe can be uncovered. He wants this legislation not to be for six years, for yours. That is – for six years but four years. He has been unable to offer that simple amendment. Senator Feinstein has just given a very fine statement seeking consent to offer a major main amendment on, excuse — A germane amendment on FISA. There have been editorials virtually in every state of the union in the newspapers saying that it should be the law, but she has not been able to offer that amendment. Senator Kennedy, Senator Kennedy, Mr. President, I wanted it would offer an amendment. That is so rational, so important, he says, let’s have the inspector general do an investigation about the whole wiretapping program to find out what has taken place who has been involved in it and report back to congress. He sets a reasonable time. Guess what? We can’t even vote on that. He can’t even offer the Amendment.

I say to my friends that it doesn’t matter what we try to do, we can’t do it. It appears that the majority [sic?], the president, and the republicans want failure. They don’t want a bill. So that’s why they’re jamming this forward. I am going to vote against cloture on this Mr. President. It is not fair that we have a major piece of legislation like this and were not even allowed to offer whether the bill should be four years or six years? Or an amendment on millions of Americans picked up by mistake are brought out in the public eye. Or senator Feingold’s amendment dealing with how court orders are issued. A real good amendment, an important amendment dealing with how court orders are issued. A real good amendment, an important amendment, if there were ever a catch 22, this is it. What were being asked to do is irrational, irresponsible and wrong. Where does this catch 22 come from.

[…]

I’ve said we will take a 30-day extension. We’ll take a two-week extension, we’ll take a 12-Month extension, we will take an 18-Month extension.

I tell all my friends I have been told and I appreciate very much my distinguished counterpart, Senator McConnell who has told me he has a cloture petition all signed. He will file it as soon as I yield the floor to him. I would say to all my friends that under regular order we will later that 1:00 Monday so the 30 hours runs out at its original time on Tuesday. If cloture is not invoked and I am not going to vote for cloture, unless the president agrees to some extension time, the program will fail.

I don’t know any way out of this. But I in good conscience cannot support this legislation and at least unless we have a vote on retroactivity of immunity, I can’t vote on it for cloture unless some of the very basic Amendments that people want to offer are allowed they would all agree on very short time lines.

No one is questioning spending a lot of time. We, the Democrats, are not in any way trying to stall this bill. We’ve been trying to expedite it for a long time now.

He needs to tighten those talking points and get onto every Sunday show. This is about the Republicans wanting failure–not about keeping our country safe.

Meanwhile, call these people and tell them to vote against cloture:

Bayh (202) 224-5623
Carper (202) 224-2441
Inouye (202) 224-3934
Johnson (202) 224-5842
Landrieu (202)224-5824
McCaskill (202) 224-6154
Mikulski (202) 224-4654
Nelson (FL) (202) 224-5274
Nelson (NE) (202) 224-6551
Pryor (202) 224-2353
Salazar (202) 224-5852
Specter (202) 224-4254 (What the hell–he had an amendment ignored today, too)

Say what you will about Senator Reid. But right now, he’s in a giant showdown with Mitch McConnell (and, disgustingly, Jello Jay Rockefeller), and I guarantee you’d rather have Reid win than McConnell.

The Republicans have refused to allow an "upperdown" vote on any amendment since the Leahy substitution amendment went through. They’ve called for a cloture vote to vote on the SSCI bill, with just one minor amendment. Which means, if cloture passes, we’ll get screwed by Jello Jay, and Bush will get his wet dream of a spying bill.

Reid, on the other hand, wants a fair hearing for the amendments being offered–including immunity, but also things like oversight on minimization and restrictions on wiretaps of Americans overseas. He basically wants the Senate to have a chance to improve on the work of the SSCI. And though he’s not saying it, several of these amendments, though they propose something the Administration has said would be okay, would really cause Bush to veto the bill.

The idea is cloture allows Bush to conduct his spying as he wants to, with Congressional approval. Whereas Reid wants to deliver what Bush has said he needs, rather than what he really wants but won’t admit to.

The cloture vote is scheduled for 4:30 on Monday. We’ve got three and a half days to get at least three of the following people to flip their votes from the vote on the Leahy substitution:

Bayh (202) 224-5623
Carper (202) 224-2441
Inouye (202) 224-3934
Johnson (202) 224-5842
Landrieu (202)224-5824
McCaskill (202) 224-6154
Mikulski (202) 224-4654
Nelson (FL) (202) 224-5274
Nelson (NE) (202) 224-6551
Pryor (202) 224-2353
Salazar (202) 224-5852
Specter (202) 224-4254 (What the hell–he had an amendment ignored today, too)

And to convince those Senators who want to be President that this is a vote they need to be present for. (This assumes Rockefeller won’t flip, since he’s co-sponsoring the bill with Bond.) It’s probably also a good idea to touch base with Senators DiFi (202-224-3841) and Whitehouse (202-224-2921) to make sure they remain on the side of the good.

Several years ago, when they were on the wrong side of a close Senate, Republicans insisted on the sanctity of an "upperdown vote." But now, they want to refuse that right to any legislative action save the one Bush supports.

We can win this one. And boy, do we need to.

Mind you, I’m sure Bush re-nominated Steven Bradbury, the second incarnation of John Yoo, because Bradbury has dutifully shredded the Constitution on demand, and Bush would like to reward him. But the National Journal’s coverage of the Bradbury re-nomination raises an interesting point. It notes, as does everyone else, that Bradbury’s nomination is a big "Cheney yourself" to the Democrats who have refused to approve Bradbury’s nomination in the past.

In the latest example of the continuing partisan rifts over CIA interrogation techniques, Bush renominated lawyer Steven Bradbury to a senior post at the Department of Justice yesterday, despite years of Democratic resistance to his nomination.

[snip]

Bush’s previous attempts to install Bradbury permanently as head of the OLC stalled during the confirmation process, when the DOJ refused to provide senators with copies of Bradbury’s legal opinions on terrorism issues. His previous nominations have expired, and last year Democrats pressed Bush to withdraw Bradbury’s candidacy for the post. But the administration refuses to yield, claiming that Bradbury’s opinions on interrogation techniques do not contradict the law.

But then it points out that Mukasey promised to review the existing OLC opinions to make sure they don’t shred the Constitution.

During his own confirmation hearings last fall, Attorney General Michael Mukasey pledged to review the controversial OLC opinions and "change them" if need be.

Now, I have no idea whether Bush re-appointed Bradbury with Mukasey’s approval; John Ashcroft was able to scuttle John Yoo’s appointment to the OLC, which led to the appointment of Jack Goldsmith. But I imagine Bush (and more importantly, Cheney) wasn’t too happy with the way that worked out.

Certainly, when Mukasey visits the Senate Judciary next week, they ought to ask him whether Bush consulted with him before he re-appointed Bradbury.

Whether Mukasey approved that re-appointment or not, though, the re-appointment guarantees that Bradbury can continue to act as OLC head through the end of Bush’s term. It ensures that Dick and Addington have their stool (in both senses of the word, I suspect) in the heart of DOJ, preventing any real roll-back of Dick’s Constitutional atrocities.

No matter what Mukasey’s intentions, it seems, Bush and Dick now have their insurance that Mukasey can only do so much to fix this Administration’s shredding of the Constitution.

What wizard of political strategy decided that Dick Cheney was the appropriate person to harangue Congress about approving immunity for himself and all the other Admin folks who pushed illegal wiretapping the telecoms?

The unfortunate aspect of the Protect America Act is a sunset provision, which makes the law expire on the first of February –- just 10 days from now. That leaves Congress only nine days in which to act to keep the intelligence gap closed. And with the day of reckoning so close at hand, we’re reminding Congress that they must act now to modernize FISA.

First, our administration feels strongly that an updated FISA law should be made permanent, not merely extended again with another sunset provision. We can always revisit a law that’s on the books –- that’s part of the job of the elected branches of government. But there is no sound reason to pass critical legislation like the Protect American Act and slap an expiration date on it. Fighting the war on terror is a long-term enterprise that requires long-term, institutional changes. The challenge to the country has not expired over the last six months. It won’t expire any time soon –- and we should not write laws that pretend otherwise.

Second, the law should uphold an important principle: that those who assist the government in tracking terrorists should not be punished with lawsuits. We’re asking Congress to update FISA and especially to extend this protection to communications providers alleged to have given such assistance any time after September 11th, 2001. This is an important consideration, because some providers are facing dozens of lawsuits right now. Why? Because they are believed to have aided the U.S. government in the effort to intercept international communications of al Qaeda-related individuals.

We’re dealing here with matters of the utmost sensitivity. It’s not even proper to confirm whether any given company provided assistance. But we can speak in general terms. The fact is, the intelligence community doesn’t have the facilities to carry out the kind of international surveillance needed to defend this country since 9/11. In some situations there is no alternative to seeking assistance from the private sector. This is entirely appropriate. Indeed, the Protect America Act and other laws allow directives to be issued to private parties for intelligence-gathering purposes.

[snip]

Actions by Congress sometimes have unexpected consequences. But a failure to enact a permanent FISA update with liability protectionswould have predictable and serious consequences. Our ability to monitor al Qaeda terrorists will begin to degrade –- and that, we simply cannot tolerate. So I’m confident that my colleagues on Capitol Hill will join together to make sure this nation has every tool it needs to fight and to win the war on terror.

[snip]

This cause is bigger than the quarrels of party and the agendas of politicians. And if we in Washington, all of us, can only see our way clear to work together, then the outcome should not be in doubt. We will do our part to keep this nation safe. We will press on despite any difficulty. And we will prevail. [my emphasis]

If I can think of one person from whom an appeal to bipartisanship should be dismissed as farcical, it’s Dick Cheney, particularly as he mobilizes all this fear-mongering as a tactic to exert partisan political pressure on people in Congress. Further, this Administration’s history of lying about details of the FISA program–and of refusing to share key documents with Congress–further mocks Dick’s appeal to bipartisanship and cooperation with Congress.

More importantly, as we have discussed repeatedly, immunity isn’t going to do shit for the telecoms (particularly since they’re cutting off wiretaps anyway, since the FBI isn’t paying its bills). They will be indemnified for anything that they’ve done with AG approval (though there is that tricky bit about the period following the hospital incident, when then-White House Counsel Alberto Gonzales approved it, but never mind). Rather, any immunity is immunity for those who decided it was a swell idea to illegally wiretap Americans. And that list of people begins with Dick Cheney.

Plus, Dick Cheney has a way to eliminate the problem he says the telecoms have: Stop declaring State Secrets every time someone sneezes in a court room. The entire logic to Administration (and, sadly, Jello Jay’s) claims that the telecoms need immunity is that they can’t defend themselves in Court. Well, that’s Dick Cheney’s fault, because he and the Administration have declared State Secrets even in the face of abundant public evidence that the telecoms did what they’re accused of doing.

So someone decided that they would get the person least willing to cooperate with Democrats, the person who single-handedly could eliminate the legal problem they allege the telecoms have, and the person who stands to benefit most from an immunity provision for telecoms, to head out to pressure Congress? And they thought this would work to persuade Democrats to put aside all the troubling legal issues to grant immunity?

And if that’s not pathetic enough, consider this: rather than laughing at Dick’s little harangue, as the Democrats should do, they’ll probably cow to him and pass immunity.

We’ve had a bit of discussion whether the White House has lost all its email because of some nefariousness–or because of rank incompetence. I’m still not claiming to know the answer to that question. But there are two data points I want to remind everyone of.

First, remember that the White House all of a sudden decided that the Office of Administration was no longer an agency at precisely the time when CREW started asking questions about the disappearing emails.

The Justice Department said Tuesday that records about missing White House e-mails are not subject to public disclosure, the latest effort by the Bush administration to expand the boundaries of government secrecy.

Administration lawyers detailed the legal position in a lawsuit trying to force the White House Office of Administration to reveal what it knows about the disappearance of White House e-mails.

They did so to support a claim that OA was not subject to FOIA, and therefore they could tell CREW to go Cheney itself. This, in spite of the fact that OA had FOIA materials on its website and responded to over 60 FOIA requests the previous year! (They tried to fix that little problem by throwing their website down the memory hole, though they have since recanted grudgingly, still claiming that they’re not subject to FOIA, but retaining the proof that they’re subject to FOIA on their website to comply with the Presidential Records Act.)

The argument is reminiscent of Cheney’s Pixie Dust argument, in which rewrote an Executive Order after the fact, also claiming he was not an agency, so as to claim he didn’t have to tell anyone about his classification and declassification activities. Dick also apparently used this logic to explain how he insta-declassified a CIA spy’s identity so he could out that spy to Judy Miller.

You see, this Administration does use such arguments for nefarious purposes.

The other data point to keep in mind, regarding the White House use of emails, is the RNC’s attempts to hide damaging emails by use of rather silly search terms.

… the RNC counsel has proposed to limit the Committee’s request by using narrow "search terms" to identify e-mails relevant to the Committee’s investigation. On Monday, RNC counsel proposed eight search terms, such as ‘political briefing," "Hatch Act," and "2008." While the "search term" approach was offered in good faith by the RNC counsel, it presents some serious problems. For example, the search terms proposed by the RNC would not have located a January 19,2007, e-mail from an official in Karl Rove’s office to an official at the General Services Administration transmitting a copy of PowerPoint slides prepared by the White House that list the top 20 Democratic targets in 2008. That e-mail read: "Please do not email this out or let people see it. It is a close hold and we’re not supposed to be emailing it around."

Shorter Mike Duncan: Honest, I’m sure if Scott Jennings or Karl Rove used the RNC emails to hide their illegal political activities, they would have labeled their emails, "Hatch Act Violation." That’s just the kind of nice guys they are. Though maybe you should also include the search term, "super double secret background." I hear that’s what Rove uses when he illegally leaks the name of a CIA NOC.

As I pointed out last week, David Addington at least tried similar tactics when proposing search terms relating to the Plame investigation.

Neither of these data points proves the emails are missing for nefarious reasons. But it does suggest there’s a pattern of behavior.

When I read Tony Fratto’s aggressive denials that the White House had lost millions of emails today …

Q Tony, on the subject, could you address the missing White House emails and the law suit? It is a subject of reports this morning. Are there in fact the emails missing? What’s the likelihood of their recovery versus the —

MR. FRATTO: I think our review of this, and you saw the court filing on this, and our declaration in response to the judge’s questions — I think to the best of what all the analysis we’ve been able to do, we have absolutely no reason to believe that any emails are missing; there’s no evidence of that. There’s no — we tried to reconstruct some of the work that went into a chart that was entered into court records and could not replicate that or could not authenticate the correctness of the data in that chart. And from everything that we can tell, our analysis of our backup systems, we have no reason to believe that any email at all are missing.

Q So where are they?

MR. FRATTO: Where are what?

Q Where are part of —

MR. FRATTO: Which email? Look, no one will tell you categorically about any system — any system, whether it’s your system at Bloomberg or our system here at the White House, past and present, categorically that data cannot be missing. All of our review of it and all of the our understanding of the way that the backup system works, it’s a backup system that captures existing data, it captures things that are stored and archived. We have no reason to believe that there’s any data missing at all — and we’ve certainly found no evidence of any data missing.

Q So that would mean that if you were asked, you would be in a position to comply with a request to produce those documents?

MR. FRATTO: Yes, which documents? I mean, if someone has a specific request for documents and they would like us to search for particular emails, of course we could search for emails — and we have. And we have been responsive to requests in the past.

Q And they have been produced? They do exist?

MR. FRATTO: We have produced emails upon request, either for our own internal review or sometimes in response to investigations that have taken place on the Hill. I mean, we have been able to go back and find email. The question is, have we been able to find a large mass of missing email? No, we have not located somewhere in the system the absence of something. We have not been able to note the absence of anything in our databases.*

Q You’re saying they’re there, you just haven’t located them yet?

MR. FRATTO: No, I’m saying we have no evidence that shows that anything at all is missing. And you’re saying, well, have you found the missing emails — and we say we have no evidence that anything is missing.

Q So you’re saying that would include emails that were erased from the Republican National Committee system that was used by some White House officials?

MR. FRATTO: I can’t speak to the RNC’s system of archiving and storing email. All I can tell you is that the email on the White House computers, we have no reason to believe that any email or other data are missing.

I said to myself, "Tony, you just got the White House in a heap of trouble with your big fat mouth." After all, I reasoned to myself, the White House has previously represented to people, including Patrick Fitzgerald, that they had lost email. That’s how they kept Jenny Mayfield and Cathie Martin out of jail for not turning over what appears to be email responsive to subpoena. So if you now say that there are no emails missing, it means all that legal testimony the White House has given–some of it under oath–is incorrect. If you say that, Tony, you’re just inviting someone to respond.

And respond Henry Waxman did.

Dear Mr. Fielding:

At today’s White House press briefing, Deputy Press Secretary Tony Fratto was asked about allegations that White House e-mails have been lost from White House servers. He stated in response: “we have absolutely no reason to believe that any e-mails are missing.”

This statement is contrary to information that the White House provided to the Committee staff in a briefing on September 19, 2007. At this briefing, the White House showed staff a chart indicating that there were 473 days for which various entities in the Executive Office of the President had no archived e-mails. According to the chart, the days with no archived e-mails included:

For the White House Office: December 17, 2003, December 20, 2003, December 21, 2003, January 9, 2004, January 10, 2004, January 11, 2004, January 29, 2004, February 1, 2004, February 2, 2004, February 3, 2004, February 7, 2004, and February 8, 2004.

For the Office of the Vice President: September 12, 2003, October 1, 2003, October 2, 2003, October 3, 2003, October 5, 2003, January 29, 2004, January 30, 2004, January 31, 2004, February 7, 2004, February 8, 2004, February 15, 2005, February 16, 2005, February 17, 2005, May 21, 2005, May 22, 2005, May 23, 2005.

For the Council on Environmental Quality: 81 days, including the entire period between November 1, 2003 through January 11, 2004.

For the Council of Economic Advisers: 103 days, including the entire period between November 2, 2003 through January 11, 2004.

For the Office of Management and Budget: 59 days, including the entire period between November 1, 2003 through December 9, 2003.

For the U.S. Trade Representative: 73 days, including the entire period between February 11, 2004 through April 18, 2004.

The White House officials conducting the briefing took this chart with them. They also indicated that the White House was doing an additional analysis to determine whether the information in the chart was accurate. In a letter I sent to you on December 20, 2007, I asked for any new information or analyses about the problem of missing e-mails. I have not received a response to this letter.

Mr. Fratto’s statements have added to the considerable confusion that exists regarding the status of White House efforts to preserve e-mails. To help clarify the situation, I request your testimony and the testimony of Alan Swendiman, the Director of the Office of Administration, at a hearing on February 15, 2008, at 10:00 a.m. in 2154 Rayburn House Office Building.

See, I told you you were going to get the White House in trouble. Poor Fred Fielding, who survived the 18 minute gap, is going to have to come and testify about why all the legal representations the White House made in the past about missing emails are no longer operative.

Update: Jeff says I can’t forget Tony’s asterisk.

*As has previously been stated in the Declaration filed with the court on January 15, 2008, "a chart was created by a former employee within OA that purports to identify certain dates and EOP components for which the chart’s creator appears to have concluded that certain EOP components were missing emails on certain dates in the 2003-2005 period." However, as we have also previously said, the Office of the Chief Information Officer (OCIO) "has reviewed the chart and has so far been unable to replicate its results or to affirm the correctness of the assumptions underlying it. Accordingly, th[e] [OCIO] has serious reservations about the reliability of the chart," which is why there is currently an independent effort to examine this issue further.

Wow. Judge Hellerstein is not amused with the CIA’s assertion that the torture tapes–which IG staffers flew to Thailand to view as part of their investigation into CIA interrogation methods–were not part of their investigation. Nor does he buy the assertion that the "special review" is not an investigation. He basically called Bull on the CIA’s assertions in about six different ways.

The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, said from the bench that he was stunned that the C.I.A. investigators had not kept records about the tapes, which were destroyed in 2005, even though the tapes were an important part of an internal C.I.A. review into interrogation methods.

“I’m asked to believe that actual motion pictures, videotapes, of the relationship between interrogators and prisoners were of so little value” that was no record of them was kept in C.I.A. investigative files, Judge Hellerstein said during a hearing over a freedom of information request involving the tapes.

“I just can’t accept it. If it came up in an ordinary case, it would not be credible,” the judge said, adding, “It boggles the mind.”

In fact, Judge Hellerstein even suggested what I did: that the CIA intentionally did not put any mention of the torture tapes in their IG report as a way to shield them from FOIA.

Judge Hellerstein raised the possibility that C.I.A. officials had intentionally not placed the tapes in the investigative files so as to avoid a freedom of information request.

“It seems to me that you were gulled,” he told Mr. Skinner, “and that the court was gulled.”

Gotta love a good skeptical judge.

Now, Hellerstein denied the ACLU’s request that he hold the CIA in contempt. But he did give them something worthwhile: the power of the court to get to the bottom of why the CIA didn’t turn over the torture tapes.

While Judge Hellerstein denied the A.C.L.U’s request to hold the C.I.A. in contempt of court for not producing information about the tapes, he said he was considering ways, including potentially subpoenas, to get to the bottom of why the C.I.A. has not turned the documents over to the A.C.L.U.

This is, IMO, very very important. With all the complaining coming from the leadership of HPSCI, they seem singularly uninterested in the relationship between the IG report and the torture tapes. If Hellerstein allows the ACLU to pursue why the CIA withheld information about the tapes (and the tapes themselves), it will ensure that the IG report becomes a central focus of the inquiry into the torture tapes. Which, in turn, may ensure that the inquiry itself goes further than Jose Rodriguez.