The Next Hurrah

Shorter 4 Top Lawyers: To Hell with the Courts

by emptywheel

Here's the letter from Ashcroft, Comey, Goldsmith, and Philbin that came up so often in today's SJC hearing. The key graf is this one, in which four top lawyers say, "to hell with the Courts, we've got two branches plus Cheney, who needs a third?"

Finally, we note that we are familiar with the legal analysis conducted within the Executive Branch of intelligence activities allegedly connected to the lawsuits against telecommunications carriers and with debates within the Executive Branch about that analysis. Given our experiences, we can certainly understand that reasonable people may question and wish to probe the legal bases for such intelligence activities. We firmly believe, however, that the best place for that examination and debate is not in a public lawsuit against private companies that were asked to assist their Nation, but within the Executive branch, where intelligence-gathering decisions are made, and in joint efforts between the Executive Branch·and Congress to ensure appropriate oversight.

The paragraph pretty much says it all. It comes as close as they ever do to saying, "you've got to listen to use because we're the four people who objected to the illegalities of this program in the first place." Elsewhere, they don't acknowledge why a letter from these four people might carry such weight.

But then, in their solution, they say, "to hell with the Courts. We've got the Executive branch and Congress"--which thus far have proved unable to "probe the legal bases for such intelligence activities" much less something they don't mention, "hold those accountable who broke the law."

Which seems to me, at least, as a really nice way of saying, no, trust us, we started this, we assure you it'll get taken care of.

Update: See Stoller for Ashcroft's financial conflicts of interest in writing this letter, and Big Tent Dem for the conflict of interest of the bigwigs who wrote the WSJ article cited so commonly in today's hearing.

Hey bigwig lawyer types: when you're being paid to say something, it makes what you say a whole lot less credible.

Jane Harman Responds

by emptywheel

Jane Harman sent a response to this post via a staffer.

What rubbish!  For those like me who insist that the President’s domestic surveillance program must comply fully with the Constitution and the 4th Amendment, the only way for Congress to get there is with a veto-proof majority.  That's why I'm working with Republicans.  Got a better idea?

I opposed the FISA-gutting Protect America Act last August and supported the much-improved H.R. 3773, which did not include retroactive immunity for telecommunications companies.  I call on the White House to do more than share selected documents with a handful of Senators – how do we know what the White House is not providing?  In my view, the question of retroactive immunity cannot even be considered until Congress is fully informed about what happened and under what authority.

It's the same response she posted to drational's diary at DKos, which responds to the same WaPo passage I used, but takes a different approach than I did in discussing it.

Given that Harman is sending the same response to both drational and I, it's unclear what she means with her response. What, precisely, is rubbish? I can think of several things she might be labeling rubbish, but it's unclear which possibility she intended.

• The report from the WaPo, that Harman is "quietly exploring avenues of compromise with Pete Hoekstra"?
• That, as the WaPo implied, Harman is among those centrist Dems who "hope those talks can dovetail with the Senate intelligence committee's own bipartisan measure on surveillance of suspected terrorists"--which of course includes immunity for the telecoms?
• That her negotiations include the provision of immunity for the telecoms, something both drational and I implied--which I, at least, took to be a clear implication from the WaPo coverage, since it listed the SSCI bill as the basis for compromise?
• That she is bypassing HPSCI and HJC, which have been tasked by party leadership to come up with a revision to FISA, an assertion made by me but not by drational?
• That it is appropriate to consider primary challenges for someone who effectively turns us back into a minority party by working with Republicans on her own compromise rather than working to build support for the bills supported by the party?
• That Harman, "appears to have been one of the only Democrats (if not the only Democrat) to have approved uncritically" of the domestic wiretap program, an assertion made by me but not by drational?
• That Harman, with Jello Jay and Pelosi, are "willing to compromise on every surveillance concession demanded by the White House," an assertion made by drational but not by me?
• That Harman and Jello Jay and Pelosi are seeking immunity for themselves, also an assertion made by drational and not by me?

Like I said, given her comments it's not clear what she's thinking. If she is saying it's rubbish that she was one of the only Dems to have approved uncritically of the program, I'd love to hear it, because every other Dem who was briefed on the program has either said they expressed criticism during the process or that the Administration allegations about "majority approval" don't include them.

And if Harman is trying to say that she is not, in fact, considering immunity in back channel discussions with Hoekstra--or even that those back channel discussions aren't going on--I'd love to know that, too.

But I will say this. Telecom immunity is an issue about which Democrats might be able to withstand Administration demands. If its caucus goes along. Therefore I still object to back channel discussions--if they're taking place--if they put telecom immunity on the table.

State Loses Its Army

by emptywheel

I've imagined (and it's largely imagination) that Condi's little PR campaign of the last week was a desperate attempt to stave off DOD control over State's bodyguards--an attempt to retain an army for the exclusive use of the State Department. Condi went to (for her) unheard of lengths to try to play nice and pretend that State could manage a very large band of mercenaries.

Is it just coincidence that that effort ends as it becomes clear that State tried to cover-up the September 16 killings?

All State Department security convoys in Iraq will now fall under military control, the latest step taken by government officials to bring Blackwater Worldwide and other armed contractors under tighter supervision.

Secretary of State Condoleezza Rice and Secretary of Defense Robert M. Gates agreed to the measure at a lunch on Tuesday after weeks of tension between their departments over coordination of thousands of gun-carrying contractors operating in the chaos of Iraq.

Mr. Gates appears to have won the bureaucratic tug-of-war, which accelerated after a Sept. 16 shooting in central Baghdad involving guards in a Blackwater convoy who Iraqi investigators say killed 17 Iraqis. Military coordination of contractor convoys will include operations of not only Blackwater, formerly known as Blackwater USA, but also those of dozens of other private firms that guard American diplomats, aid workers and reconstruction crews. [my emphasis]

Much as I may believe that Condi is an incompetent jerk, this is not a good thing. It means that anything State tries to do will be beholden to the political interests of those running DOD. This was a fatal problem in summer 2003--when Rummy was able to pre-empt Colin Powell's more mature plans for Iraqi reconstruction by withholding logistical support. And it may become a fatal problem to Condi's attempts to support diplomacy over bombing. I've long believed this fight was about retaining the mercs in Iraq long enough to defend the military in the event of bombing campaign in Iran, and DOD control over the mercenaries makes this an easier scenario.

In other words, Condi's charm offensive appears to have failed. Gates has won the round. And that may well mean the advocates of diplomacy have lost the critical round.

John Tanner Doesn't Know Jack

By Mimikatz

John Tanner is the head of the Voting Rights section at DOJ,  He's the one who believes Georgia's voter ID law discriminates against whites because fewer elderly have photo ID's and Black people "don't age like white people, they die first."  It is ugly but entertaining to watch him squirm under questioning by Artur Davis and Keith Ellison.  Artur Davis pointed out that in Alabama actually a higher percentage of Black people vote than white people, and got Tanner to admit that he did not look at actual statistics, he is going by his prejudices.  Ellison tries to get him to see what was wrong with his comment, but Tanner just doesn't get it, except that his "tone" and "clumsy phrasing" hurt people.

But what no one seems to realize is that Tanner is just dead wrong statistically.  You can look it up.

It is commonly known that at birth the life expectancy of white people is higher than Black people, about 6.4 years for men, 4.5 years for women), although the difference has been shrinking and the discrepancies between men and women within each race are about as high (+5 years for white women, +7 years for Black women).  The differences between the races persist at about the same rate into the mid thirties.  But then they begin to shrink, year by year, and by age 65 are down to about a year and a half.  By age 80 the difference has disappeared, and after 80, Black people actually have a higher life expectancy than whites within each gender.  And the life expectancy for Black women is actually higher than white men at every age.  (But we all know women don't really count.)  So Tanner is not only insensitive, but wrong.

Just another example of the Bush-Cheney regime making policy based on prejudice and with GOP dominance as their goal.  And just another example that things that "everyone knows" sometimes aren't really true.

Oh Madame Secretary...?

by emptywheel

In an email to Laura Rozen and Jeff Lomonaco this morning, I predicted Henry Waxman would be mightily interested in the news that the Blackwater guards involved in the September 16 shooting had been granted immunity.

In any case, I suspect Condi will regret that she didn't mention this when visiting Congress last week. I assume we'll have a letter from Waxman at about 1:00 PM today.

Sure enough, at 1:23, the Committee sent out the letter.

Apparently, Waxman wrote it before CNN started reporting yet more anonymous sources saying the whole thing is a big joke, that the guards didn't get immunity. Or rather, they try to dodge the issue by pretending the claim pertained to blanket immunity (which it never did).

No blanket immunity deal was offered to Blackwater guards for their statements regarding a shootout in Iraq last month that left 17 Iraqi civilians dead, two senior State Department officials told CNN Tuesday.

However, some kind of limited immunity was apparently offered by State Department investigators when they questioned the Blackwater personnel apparently involved in the shootings, the officials said.

In any case, Waxman (as you'd expect) asks the money question:

5. When did you, Deputy Secretary of State John Negroponte, former Assistant Secretary of
State Richard Griffin, Ambassador David Satterfield, and Ambassador Ryan Crocker
leam of the grant of immunity?

Given that the whole theme of Condi's testimony before Waxman's committee had to do with cover-ups, I imagine Waxman is very interested in learning whether Condi or Griffin or Satterfield neglected to tell the committee this little detail when they testified.

Time for Another Primary Challenge for Jane Harman

by emptywheel

Buried in this article on Democrats compromising with Republicans, I noticed this paragraph:

And as Democratic leaders push their own legislation to rein in the wiretapping program, Rep. Jane Harman (D-Calif.) has been quietly exploring avenues of compromise with Rep. Peter Hoekstra (Mich.), the ranking Republican on the House intelligence committee. Centrist Democrats hope those talks can dovetail with the Senate intelligence committee's own bipartisan measure on surveillance of suspected terrorists.

Jane Harman, of course, is a former member of the HPSCI. Only, with the changeover in Congress, she got bounced from HPSCI and relegated to chairing the Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment over at Homeland Security, which means she is not in a formal position of leadership on this issue. Harman made news last month when she called the Republicans on their bullshit attempts to use a sketchy terrorist threat as an excuse to push FISA amendment through. But she also appears to have been one of the only Democrats (if not the only Democrat) to have approved uncritically of Bush's illegal wiretap program.

But now, apparently, she's taking it upon herself to negotiate her own version of a FISA Amendment, presumably one designed to bypass HJC (which wants nothing to do with telecom immunity) and HPSCI, which under Reyes is proving to be increasingly skeptical of Bush's BS.

How nice, that the one Democrat who gave approval to this illegal program is the one now negotiating immunity for them. Not a conflict of interest there, not at all.

The Lead Rubber Ducky in Grover's Bathtub

by emptywheel

There's an interesting case study going on over at the Senate Commerce Committee. The Committee is trying to write legislation to return the Consumer Product Safety Commission to its former strength so it can prevent things like lead-filled toys from entering the toddler chew chain. Yet the Commission's acting head, Nancy Nord, is trying to preserve the Norquistian "ideal" of small government--she's objecting to Senate plans to give her Commission more money and other resources.

The nation’s top official for consumer product safety has asked Congress in recent days to reject legislation intended to strengthen the agency, which polices thousands of consumer goods, from toys to tools.

On the eve of an important Senate committee meeting to consider the legislation, Nancy A. Nord, the acting chairwoman of the Consumer Product Safety Commission, has asked lawmakers in two letters not to approve the bulk of legislation that would increase the agency’s authority, double its budget and sharply increase its dwindling staff.

Ms. Nord opposes provisions that would increase the maximum penalties for safety violations and make it easier for the government to make public reports of faulty products, protect industry whistle-blowers and prosecute executives of companies that willfully violate laws.

I'm sure it will surprise no one reading that Nord was not chosen for a life-long affiliation with consumer interests?

Ms. Nord, who before joining the agency had been a lawyer at Eastman Kodak and an official at the United States Chamber of Commerce,

The Administration is also having Allen Hubbard write a letter to express concern, no doubt, that if Mattel has to stop selling toys with lead, the entire economy will collapse. As if it weren't collapsing on Greenspan's ARM bubble already.

It'll be an interesting fight. Average Americans find it hard to mobilize to do things like oppose war. But many otherwise apathetic Americans will mobilize when you tell them--as Nord has--that it's "not practical" to remove all the lead from the toys their kids are playing with.

The recent spate of food and product problems provide easy proof that Grover Norquist's drowning government doesn't work. It'll be interesting to see how consumers respond if they learn that the woman their taxes pay to keep their kids safe refuses to do her job.

Blackwater Guards Given Immunity from Prosecution

by emptywheel

I pointed out the other day that several of the Blackwater guards involved in the September 16 shooting have left Iraq. Now bmaz points to this AP story revealing that all the guards have been given immunity from prosecution.

The State Department promised Blackwater USA bodyguards immunity from prosecution in its investigation of last month's deadly shooting of 17 Iraqi civilians, The Associated Press has learned.

[snip]

Three senior law enforcement officials said all the Blackwater bodyguards involved _ both in the vehicle convoy and in at least two helicopters above _ were given the legal protections as investigators from the Bureau of Diplomatic Security sought to find out what happened. The bureau is an arm of the State Department.

[snip]

An initial incident report by U.S. Central Command, which oversees military operations in Iraq, also indicated "no enemy activity involved" in the Sept. 16 incident. The report says Blackwater guards were traveling against the flow of traffic through a traffic circle when they "engaged five civilian vehicles with small arms fire" at a distance of 50 meters.

The FBI took over the case early this month, officials said, after prosecutors in the Justice Department's criminal division realized it could not bring charges against Blackwater guards based on their statements to the Diplomatic Security investigators.

And here's today's candidate for credulous reporting award:

Garrity protections generally are given to police or other public law enforcement officers, and were extended to the Blackwater guards because they were working on behalf of the U.S. government, one official said. Experts said it's rare for them to be given to all or even most witnesses _ particularly before a suspect is identified.

[snip]

It's not clear why the Diplomatic Security investigators agreed to give immunity to the bodyguards, or who authorized doing so.

Gosh, I couldn't imagine why the State Department would immediately immunize all the guards in this investigation, can you?

Anyway don't you think that's something Condi should have told Waxman's committee the other day ... that these guys had already been given immunity from prosecution and that, therefore, the FBI investigation is likely to end up--like all other investigations of Blackwater--holding no one responsible?

Exxon Would Like to be Excused

by emptywheel

Back when I taught, at the beginning of the school year each year the school would hand professors a description of the incoming freshman class so the professors could understand what world their students were coming from. It usually read something like:

2007: This year's incoming freshmen were born in 1989.

The top TV series for most of these students' teen years was American Idol.

These students matured after the first big judgments against online file-sharing.

During these students' freshman year of high school, the first legal gay marriages were performed in this country.

The Exxon Valdez disaster happened the year most of these freshmen were born.

I made up the whole list (though I think I'm close on most counts)--and my ignorance of current pop culture has been pretty well established. But my point was to contextualize the Exxon Valdez disaster which did, indeed, occur the year that most incoming college freshmen were born. It's been 18 years, and the interim years have seen record-smashing profits for Exxon, not to mention two wars to ensure our access to oil in the Middle East.

But Exxon is still fighting the fines imposed on it for the disaster.

The Supreme Court today agreed to hear an appeal by Exxon Mobil Corp. that seeks to overturn $2.5 billion in punitive damages a federal court ordered the company to pay for the 1989 Exxon Valdez oil spill off Alaska.

Stepping into the long-running dispute between the world's largest publicly traded oil company and more than 30,000 class-action plaintiffs, the court separately rejected the plaintiffs' appeal to reinstate the trial jury's original award of $5 billion in punitive damages. The 1994 award ultimately was cut in half during an appeals process that reached the U.S. Court of Appeals for the 9th Circuit, which issued its ruling in December.

Exxon Mobil argues that the $2.5 billion punitive award violates federal maritime law, and the Supreme Court agreed to take the case to settle that question. The justices declined to consider an argument that the award was so large that it violates the Constitution.

Now, setting aside the legal merits (or not) of Exxon's appeal (and note, Alito recused himself, so at least it'll be a relatively fair 4-4 fight), consider what this means for the externalities of business behavior and the environment. Exxon's negligence devastated the environment in Valdez for some time. But the only costs Exxon thinks it should pay are clean-up costs. And eighteen years after it caused that damage, our society (the same one funding wars that benefit Exxon) still haven't gotten the fine imposed on Exxon for its negligence.

 

We've Seen This Before

by emptywheel

Kagro X has a post focusing, again, on Michael Mukasey's evasions about the Constitution. Kagro focuses not on Mukasey's confusion about whether water-boarding is torture, but whether the President can ignore existing laws.

Any president -- and I mean any president -- ought to be able to depend on a certain amount of deference from his or her Attorney General, of course. This ordinarily goes without saying, but in this case must be said because it sets up an irreconcilable paradox. Is it even possible to serve an administration that regularly asserts constitutional interpretations like the one Judge Mukasey did and protect the fundamental rule of law which underlies our entire constitutional system of government? How could it be so?

[snip]

An "administration" that sends distinguished federal judges to Capitol Hill and puts them in a position requiring them to hedge on answers to such basic questions as must a president obey federal statutes is operating so far outside the bounds of normalcy already, that it hardly seems worth anyone's time to pretend that an Attorney General is necessary to the functioning of the government at all.

I'd like to reinforce Kagro's point by pointing to the consistency, across time and nominees, of the Administration's AG candidates on this Constitutional question. Here's the complete context of the Mukasey comment that Kagro is focused on.

LEAHY: And, lastly, where Congress has clearly legislated in an area, as we've done in the area of surveillance with the FISA law, something we've amended repeatedly at the request of various administrations, if somebody -- if it's been legislated and stated very clearly what must be done, if you operate outside of that, whether it's with a presidential authorization or anything else, wouldn't that be illegal? 

MUKASEY: That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.

LEAHY: Where does the president get that authority? I thinking of the Jackson opinion and others. Where does he get the authority if it's clearly enunciated what he can do, law that he signed, very clearly enunciated? I mean, the president say, This authority, I'm going to order the FBI to go in and raid 25 houses because somebody told me they think someone's there. We're not going to wait for courts, we're not going to do anything else. There's no urgency, but we'd just kind of like to do that.

MUKASEY: We'd kind of like to do that is not any kind of legitimate assertion of authority.

And I recognize that you've posited the case that way for a reason. But the statute, regardless of its clarity, can't change the Constitution. That's been true since the Prize cases. And it was true before that.

LEAHY: Can a president authorize illegal conduct? Can the president -- can a president put somebody above the law by authorizing illegal conduct?

MUKASEY: The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law.

Can the president put somebody above the law? No. The president doesn't stand above the law.

But the law emphatically includes the Constitution. It starts with the Constitution. [my emphasis]

Leahy is concerned about whether Bush can just decide to operate outside of FISA--or any other law that explicitly limits the behavior of the Executive Branch. But he's also concerned about whether the Administration can offer immunity for someone who follows the President's orders in operating outside of statute.

This exchange looks remarkably similar to one between Pat Leahy and Alberto Gonzales--back before we knew the extent of Gonzales' craven willingness to put law aside for politics. The topic is different--Leahy is asking about torture, not wiretapping. But the response is almost the same.