Security Clearances Two

by emptywheel

I'm stuck between three gallons of canned tomatoes, a soon-to-be gallon of canned peaches, and a big pot of borscht. Which means I'm too hot to deal with the Padilla verdict yet. So instead I'm going to point out that my reading of Gonzales' correction from a few weeks ago was correct. Back then I said:

But here's an interesting detail about the hospital visit:

I also recall that, prior to the time I departed, General Ashcroft briefly mentioned a concern about security clearances for members of his staff regarding the NSA activities that were the subject of the presidential order.

I find this interesting for several reasons. First, it suggests that Ashcroft was complaining that his staffers weren't given security clearances to be read into this program. Recall that Bush refused to give some Office of Professional Responsibilities investigators security clearances, which meant they couldn't investigate the program. We also know that Cheney and Addington were working directly with John Yoo, bypassing Ashcroft, to pull off their shredding of the Constitution. But this detail suggests they were also shrouding their program by preventing top DOJ officials from getting security clearances.

I'm also struck that Gonzales felt like he needed to clarify this point. Is this something that Comey--or Ashcroft himself--already testified to the Senate about? And what precisely was the issue? Why was it so important that Ashcroft was talking about it from his ICU bed?

Finally, why didn't Gonzales mention it the first time. Was this something else he was trying to hide?

Well, here's the relevant detail from Mueller's notes:

The AG also told [Card and Gonzales] that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.

Pretty remarkable time for Ashcroft to raise the issue with Card and Gonzales, huh? From the ICU ward? It's also remarkable how similar this complaint is to Jay Rockefeller's complaint about the program, that he couldn't get the advice he needed because of the secrecy rules.

Comments

[albert fall]

Just read the redacted notes at TPM.

Last meeting of the week is with Cheney.

I guess that is where the buck stops.

[bmaz]

I'm sorry. This discussion, by it's very nature, is a matter of national security and cannot be allowed under the Government's State Secrets Guidelines. This must be taken down at once, all evidence, including servers, written copies, and brain cells, seized and retained by the government. Furthermore, ANY discussion of the fact that this action and seizure has occurred is also a matter of national security and cannot be permitted in any manner or forum, subject to Federal prosecution and incarceration.

Sound crazy? That is effectively the position staked out yesterday, with arrogant impunity, by the United States Government in a Federal Circuit Court of Appeals.

[emptywheel]

albert

I left a question for you at the end of the last thread, in case you're not planning on going back there...

[Kagro X]

bmaz, your comment reminds me of this post from last October, pointing to an incredible story told at Balkinization by Brian Tamanaha.

The following cautionary tale will help make the risks more concrete. It is about a young federal public defender handling a case, United States v. Rewald, which involved the CIA and several hundred documents containing classified information. One day, about a month into the trial, following a grueling cross-examination by the defense attorney of a witness from the CIA, which clearly harmed the government’s case, the federal prosecutors asked the judge for a closed hearing. In the closed hearing, with only the lawyers and the judge present, the lead prosecutor, from the U.S. Department of Justice, requested that the judge hold the defense attorney in criminal contempt for asking questions of the CIA witnesses that elicited prohibited classified information in open court.

Despite the protestations to the contrary of the public defender, Federal District Judge Harold Fong immediately agreed with the prosecutor. At that very moment, he ordered that the public defender would be put on trial for three counts of criminal contempt 30 days after the completion of the ongoing trial. Judge Fong also ruled that the public defender would be entitled to representation by counsel, which signaled that the judge contemplated that the lawyer could be sentenced to a year or more in prison if found guilty. The ongoing trial was recessed for the remainder of the afternoon, but it resumed the next day as if nothing had happened.

And that was back in the mid-80s. Ramp that up to today's insanity levels, and you have a real horror show.

[tekel]

bmaz: please report to the nearest Ministry of Truth office for reprogramming.

[Sally]

Marcy,

"borscht"?

Ah huh. A code word for jihad taken from Padilla's playbook. Lock her up, storm troopers.

[bmaz]

Wow. I knew a bit about the Wilson case; but was not aware of Tramanaha and US v. Rewald. I sure would have like to have helped him sue after the dismissal with prejudice was issued. I didn't see any evidence of him having done so; he certainly should have and I hope he did. There is a fairly giant problem because of the initial judge, Fong, being in the middle of the probable cause/charging on the contempt; given enough time I could figure some way to get at them though.

[drational]

bmaz: [XXXXXXXXXXXXXXXXXXXXXXX]

[bmaz]

Heh heh. Laughter and frivolity is about all we have left. They will be coming for that soon; cause, you know, free speech in the form of laughter must give way to protecting the motherland in a time of war......

[John B.]

welcome to the machine
what did you dream?
we know
we told you what to dream

somebody please wake me up

[Neil]

EW, What's cooking beside tyranny-misu and the end of freedom fries as we know it? The cleanup is going to be a lot hardy than I ever imagined.

[Gary]

Did anyone else choke on "General Ashcroft?" I know it's a mis-spokement, but...

[emptywheel]

Gary

Actually, it's correct. The proper term for an Attorney General is General.

Which means AGAG is actually Judge General Gonzales. That, I choke on.

[John B.]

It's a mouthfull too...it sounds more appropriate for a third world dictator name...bleh.

[karen bowling]

In your post regarding the AG not having access to info on NSA, I remember reading at the beginning of this story that Ashcroft and the man who he delegated to check on the NSA original certification were both denied any access to the "classified" materials and for 2 years Ashcroft continued to go ahead and sign the certification sight unseen. Only when Comey and Goldsmith took over their new duties and Goldsmith pursued the info to make a determination did they find out that they too were not going to be allowed to see info. They pushed back and after finally getting to see some of the nuts and bolts went to Ashcroft and they all decided that the DOJ would not recertify as it was. I can't remember where I read it and have mentioned this first 2 years of "blind" certification, without ever seeing the program, to many politicians but nobody has followed up on it. Now Conyers says he is "particularly disconcerted" as if he wasn't aware of the hiding of the NSA program from DOJ for 2 1/2 years. This is the really crux of the story! http://uspolitics.about.com/b/a/208099.htm
This has some inferences to that affect but I can't find the original story I read.

[Mad Dogs]

"Just read the redacted notes at TPM.

Last meeting of the week is with Cheney.

I guess that is where the buck stops."

One other interesting thing that strikes me is that the only time Junya gets involved is on Friday, 03/12/04 after FBI Director Robert Mueller finishes his daily morning briefing.

It seems that the Puppet gets wound up by Cheney, Gonzo and Card just this one time to use his Texas bullsh*t schmooze to try and get these friggin' DOJ lawyers back in line.

And we all know how well that worked out.

[A.L.]

EW,

I just finished a post on this subject. You may have already highlighted this in a previous post, but there's a key exhange been Sen. Whitehouse and Gonzales on this point in his July testimony. I think the DOJ was kept in the dark for two years about key aspects of this program, and that's a big deal.

[bmaz]

A.L. - I have to run out to Bank and FedEx (there are aspects of self employment that suck) so i will read your post later; but if this hypothesis is true, I have a real problem with the certifications made by DOJ during that period (on the order of false swearing when you know you are making it with incomplete information) and the knowing proffer of the same by the Executive with not only the knowledge that the DOJ was making the cert with incomplete info and, knowing that they (the Administration) are the ones malevolently withholding the accurate information (which undoubtedly indicates unconstitutional and/or illegal behavior). If this is truly the case, it is hard to describe how serious it is.

[albert fall]

EW--

I put some more detail at end of last thread, but I do not know the specific Office that you mentioned.

[emptywheel]

Yeah, AL, I think I called attention to that in the liveblog. The "Angler series" and a few more things make it clear that Cheney was working around Ascroft by going directly to Yoo, so that wasn't really news at the time, but still, they could have pushed AGAG even further.

[bmaz]

EW - I remember your stuff, but I did not believe the restricted information necessarily included Ashcroft, or the actual person signing off on the cert, themselves. I guess my supposition was that it was just difficult because they didn't have the assistance of staff, not that they, themselves, were operating in the dark.

[orionATL]

it's late summer. time for canning. a wonderful, if very demanding, old custom that is fading fast.

there used to be, in appalachia at least, community canneries with giant boilers and stainless steel prep tables, dating from the new deal era i believe. families and neighbors would go there to "work up a batch" and "process" two or three dozen quart jars at a time in those boilers (think very large pressure cookers) - tomatoes, green beans, shelley beans, corn, peaches, apples, pickles of all kinds, tomato sauce/ketchup, etc.

i remember canning as a very social activity, mainly because doing it by yourself was like building a house by yourself, intolerably hard and tedious work.

congrats on keeping the tradition alive, e'wheel. what's mr. e'wheel's job?

[Mary]

AL - I only skimmed through the part of the exchange you had up, but didn't see the other part that I remember - something along the lines of Whitehouse saying to Gonzales "if there was a program operating in secret without the AGs knowledge that would be a serious matter, wouldn't it?" or something like that. Whitehouse is on Intel as well as judiciary.

bmaz
I have a real problem with the certifications made by DOJ during that period (on the order of false swearing when you know you are making it with incomplete information) and the knowing proffer of the same by the Executive with not only the knowledge that the DOJ was making the cert with incomplete info and, knowing that they (the Administration) are the ones malevolently withholding the accurate information (which undoubtedly indicates unconstitutional and/or illegal behavior). If this is truly the case, it is hard to describe how serious it is.

Now factor in what it would be if the "certifications" were being made by the AG bc they were being passed on to the FISA court, bc of a demand by the FISA court for certain kinds of certifications so they could be certain the orders they were issuing were not being tainted by the illegal programs.

Bc really - why else would there be certifications, if they weren't going to anyone? Are there "certifications" that go out every 45 days, reaffirming the President's rights to hold people at GITMO? Reaffirming his ability to engage in extreme renditions? I have to believe that the 45 day renewals and certifications were being given to/had an impact on someone outside the oval office.

And if it was a court - and involved mistatments to the court by the AG, ...

[emptywheel]

bmaz

The Ashcroft avoidance program was not me--I believe it was from the Angler piece and one other article, though perhaps I should track it down. The idea being NOT that DOJ was not read into the program, but that someone besides the AG was the one getting read into the program. We also know that Larry THompson NEVER got read into the program. Comey likely did because 1) he had been involved in some of these cases, and 2) Goldsmith went apeshit.

That said, I will do a post tomorrow, but I don't think this--or Whitehouse's questioning, amounts to full non-disclosure to DOJ. That is, what has been said is more consistent with AG not being read in, and other allies being read in. Still means AG should not sign off on the program, though, as bmaz suggests.

[bmaz]

Oh, that was my assumption. They do not execute sworn certifications and affidavits unless absolutely forced to do so. There is no evidence Congress required the certs; had to be judicial.