Bush personally nixed the OPR investigation. And it's juicier than you think.

by Kagro X

Today's appearance by Attorney General Alberto Gonzales before the Senate Judiciary Committee provided a good opportunity for Senators to hint that they may, at long last, understand just what kind of "administration" they're dealing with. I'll have to wait until transcripts become available to hit the highlights.

In the meantime, the media's favorite nugget of the day was the revelation that Bush personally blocked the DoJ's Office of Professional Responsibility (OPR) from pursuing its NSA spying investigation. But even this juicy bit didn't get the scrutiny it deserves. Remember when our friend Murray Waas discussed this incident? Remember what he told us? It was that the investigation wasn't a probe into the legality of the program, but rather:

An internal Justice Department inquiry into whether department officials -- including Attorney General Alberto Gonzales and then-Attorney General John Ashcroft -- acted properly in approving and overseeing the Bush administration's domestic eavesdropping program....

That's damned important to keep in mind!

It wasn't that Bush blocked an investigation into the program's propriety. It was that he blocked an investigation into whether or not the Justice Deparment acted properly in advising him that it was legal.

If Hamdan really did open up the possibility that the "administration's" justification for the NSA spying program is without foundation, then that exposes them to the possibility of criminal liability. And so long as no investigation faults the actions of the DoJ's top brass in the way they rendered their advice to the president, "administration" officials may still claim a "good faith" reliance on the advice of their legal counselors. You know, the Shaun Hansen defense.

And today we heard a question from one Senator (was it Schumer?) that harkened back to the old "Geneva Conventions are quaint" memos, noting that they contain the outlines of a proposed legal defense against charges of war crimes. Among the "positive" aspects of concluding that the Geneva Conventions do not apply:

• Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).
  • That statute, enacted in 1996, prohibits the commission of a "war crime" by or against a U.S. person, including U.S. officials. "War crime" for these purposes is defined to include any grave breach of GPW [the Geneva Convention III on the Treatment of Prisoners of War] or any violation of Common Article 3 thereof (such as "outrages against personal dignity"). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban.
  • Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons
    • First some of the language of the GPW is undefined (it prohibits, for example, "outrages upon personal dignity" and "inhuman [sic] treatment"), and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions of GPW.
    • Second, it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.
    • Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.

Another "affirmative defense" based on the Nixon/Bush/Addinton/Yoo "it's not illegal if the president [orders] it" theory.

But there are two layers in operation here. Ordinarily, there's the defense that subordinate officers are relying in good faith on a determination made by the president. But there's also supposed to be good faith by the president in making the determination. That is, the determination should reasonably comport with the state of the law. Can it really count as a "good faith" determination when it's made not on the basis of the current state of the law, but rather with the express intent of avoiding prosecution?

This, as usual, brings to mind for me the determination at the top levels of the DoJ to reverse the decision of its own Civil Rights Division with respect to the Texas redistricting. Why? Because it takes advantage of the same mechanism: protecting the execution of something undertaken in contravention to law, under the cover of an executive determination that it's OK if the president (or "unitary executive") says so.

And indeed, it has been pointed out that the determination that GPW did not apply to prisoners detained in the war on terror overturned the recommendations of the military brass and other career legal experts, just as was the case with redistricting.

Now, we find out that the DoJ's Office of Professional Responsibility, too, has been overruled from the top. And about what were they overruled? Their investigation into whether or not overruling DoJ officials like James Comey, who objected to the structure of the NSA spying program and refused to sign off on it, was itself improper.

One of the questions that I can recall off the top of my head from today's hearing came from Sen. Feinstein, who asked whether, given DoD's response to Hamdan -- i.e., that they had issued a memo insisting on compliance, henceforth, with Common Article 3 -- was going to be mirrored in instructions to the CIA and any other intelligence agencies who might be holding prisoners in custody. That is, were they, too, going to be instructed from above that they must comply with Common Article 3?

The answer, predictably, was no. Why not? The answer from Gonzales was, essentially, because no one had asked for guidance.

Where's our famous "unitary executive" now? The White House waits to be asked for guidance in these matters? And the CIA is free to interpret Hamdan on its own, absent a request that the White House do it for them?

Gonzales insisted to Feinstein that the executive branch had a "process" for this, and that the White House and/or the DoJ didn't just go around issuing memos every time the Supreme Court issued a ruling.

And I'm sure they do have a "process." The problem is that we're actually beginning to understand what that "process" is. Or at the very least, how the final stages of that "process" works -- it ends, more or less uniformly, with the advice of career officials who reject the "administration's" desired course of action being overruled at the top levels. No wonder, then that as our understanding of this "process" grows, so too does the Bush "administration's" obstruction of our efforts to learn more.

You can be sure that should the "process" come into clearer focus in the future, Republican apologists will be howling that the investigations seek to "criminalize politics." Because for Republicans, subversion of the administrative process -- and for that matter, the law, international treaty obligations, and the Constitutional order itself -- is, at bottom, "just politics."

Comments

[John Forde]

When will it dawn on Bushie that he is in personal legal jeopardy?

[grayslady]

Is it any wonder that so many career professionals have left the bureaucracy? They've been stripped of all their career dignity. A poster over at FDL coined the term "urinary executive", which I found especially apropos since Bush pisses all over the law. When we retake the congress, we need to start a serious legal effort to redefine the limits of the President, as well as exactly what constitutes documentation that deserves to remain secret. Time to pin back the President's ears.

[mainsailset]

Gawd, I'd give up being blonde if I could just have your mind. Great catch and analysis, thank you. John Forde above is right, and this circular logic/defense Abu has been relying on must of necessity jump its track for this nation to survive Bush.

[emptywheel]

Oh, I think he realizes he's in personal legal jeopardy. That's why he alternately, 1) trying to get arrested for sexual harrassment instead, or 2) trying to bring the rest of the world down with him.

[Kagro X]

I'm having a little trouble reading Merkel's body language. Anybody?

[mainsailset]

Merkel's body language is reflective of a woman, new to office, focused on the job at hand in a roomful of very powerful men. She's been very focused on holding her own while trying to be approachable. Women in powerful roles have interesting role models. Margaret Thatcher was always so exquistitely restrained - can you imagine Bush doing that to HER. Yow! The cowboy just politically tainted one of his last hopes. Merkel, is so stunned in the pictures her first reaction is to be lady but her second reaction is bound to be ferocious. I don't think I ever remember even Bill Clinton doing anything close to that at a G8 meeting and he's a toucher.

[Kagro X]

He'd have been better off going with the traditional vomit spewing, then?

[jonnybutter]

'Verdammter schweinehund!' (moron, idiot - literally 'damed pigdog'). Maybe we can start calling Bush 'schweinehund' or 'schweinie'. 'Hey, Schweinie, think you can handle rustlin' us up a couple a' cheeseburgers?' Everybody else has a nickname.

Really, that moment with Merkel is pathetic even for Bush. He looks so desperate to be 'charming'. I wonder if Bush ever wakes up in the morning after a particularly engrossing sleep, and thinks, 'Well, another day at the ballpark, yeah boy!..oh, wait. It wasn't all a dream...I really am the president...oh shit.'

[mainsailset]

Looks like he's left the vomit spew for us. Seriously, who does the open mouth chewing thing like a drunken John Wayne, babbles to Blair or whoever would listen and then careens over to Merkel and rubs her shoulders then saunters out of sight. Where the hell are his keepers?

[Mimikatz]

There ought to be some resignations at DOJ.

And now Bush has 3 people to worry about turning on mikes or otherwise embarassing him at international functions.

What Suskind said is really true--he is strikingly deficient in some attributes and skills one would want and expect a president to have.

[kim]

seems like W is willing to go where more timorous, and less powerful, mortals fear to tread when it threatens his Presidency - maybe Plame's outing would be another example of this, eh?

[Brian Boru]

He looks like he's in some sort of a trance -- sleepwalking or BAL 0.2+?

[radish]

No way to verify, but I'd be glad to bet a coupla days pay that they changed his meds leading up to the conference. Trying to mellow him out probably. I don't envy that man's psychiatrist.

[kim]

When a President of the United States decides to ignore and obstruct legal conventions for personal benefit, continues this law-breaking unopposed by Congressional oversight, and next again acts to obstruct justice by protecting the people who followed his orders... well, only a shill and a syncophant would characterise these actions as correct behavior worthy of a President. Only a fool could ignore this real and fundamental flaw in our democracy today.

[MissLaura]

Merkel's body language in that set of pictures is, to me, very familiar. It's first involuntary "ohmigod somebody's touching me and it's freaking me out" followed by "but I have to be a good polite girl and make like it wasn't such a problem."

First you recoil.

Then you try to act polite and unbothered.

Then you go home and stew, and get mad at yourself for being the polite good girl who doesn't make trouble.

And you never look at the person the same way again, and maybe your skin crawls a little whenever he's around.

[Sara]

Does anyone remember the John Walker Lindt Plea Bargain? It strikes me that he was one of the few captures in Afghanistan who probably had standing to bring a Geneva Convention action in US courts -- he was a citizen, and when he was captured his father immediately hired counsel for him, and informed the DOJ that he was represented, and the counsel requested immediate access to his client. That was denied. In fact he was not even informed that his father had hired a lawyer to represent him until long after he had been coerceivly questioned. As part of his plea bargain he had to give up his Geneva Convention rights. These memos are from the same time frame as the beginning of the Lindt process.

As to Merkle's involuntary backrub, it is open to all sorts of interpretations. The series of pictures could well be used in Sexual Harassment training -- and I rather hope someone adopts them for that purpose. Wonder what would have happened if she had hauled off and knocked him one across the face? The pictures need to be spread all over the landscape, How not to do Summit Diplomacy.

[emptywheel]

radish

Yeah, I've been thinking they fiddled with his meds, too.

[Sally]

John Forde, dream on. I can't see that Bush is in any personal legal trouble. He definitely should be but I never hear it mentioned except on blogs. Our elected officials haven't been up to as much as lightly pushing back over his unlawful ways. I dream, too--of the whole Bush litter being charged with, and convicted of, war crimes.

[JohnLopresti]

KX, As usual it is easy to draw a lot of topics into a narrow discussion, as the government as conducted by this administration tends to overlap areas of exercise of its power. I wanted to supply now the day after you originated this thread a link to what looks like the first molt of a pentagon papers proportion case which you likely are following already. Judge VRWalker is so helpful in his 70+ page opinion denying the government's amicus motion to dismiss in Heptings v ATT published today that I am reading it prior to Lyle Deniston's in LD's usual place; VRW's opinion has a nicely organized history section leading the reader to an understanding of how the government is attempting to over-generalize to shield the phone company, all the while preserving a very cooperative and conciliatory tone to encourage a vigorous reply from defendants and leaving open the prospect their secrecy framework soon may prevail. Lacking Luttig, the SG likely has another plan; maybe a Roberts selected FISC judge to extinguish this flicker of unSpecterish pushback. Heather Wilson R-NM, the lead person on SignalIntell Subcommittee of HPSCI supposedly was to have read her latest draft of a Specter bill yesterday. I am involved in projects keeping me elsewhere. I hope this helps your efforts.
You may know, my perspective is extraordinarily detached on this topic, even though I see the arguments are probably solid on 4th amendment grounds, and 1st amendment; but so much has been going on so many decades that the current data vacuuming is only a modern scale of an age old problem. I am concerned, but it seems a defect that our system has had to tolerate. Though it remains a good study in the underpinnings of freedom, an effort to which I will give a measure of research of my own, as time allows.
On the OPR disqualification finding by the President, I would picture Gonzales suggesting to white house counsel, that would be an easy way to keep the mechanics of the creation of the programs under wraps. VRWalker has conducted in camera and ex parte review of evidence and is letting complainants proceed to the next phase of discovery; he characterizes their own depositions so far as accusing defendants of many programs beyond the one massive program in the news.
John L

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