4 Days on the Job and Already Mukasey Has Lapped Gonzales

by emptywheel

I guess this offers at least a trickle of hope that those that made up reasons to torture and wiretap and ignore the Constitution might be held to account?

The Justice Department has reopened a long-dormant inquiry into the government's warrantless wiretapping program, a major policy shift only days into the tenure of new Attorney General Michael Mukasey.

The investigation by the department's Office of Professional Responsibility was shut down after the previous attorney general, Alberto Gonzales, refused to grant security clearances to investigators.

"We recently received the necessary security clearances and are now able to proceed with our investigation," H. Marshall Jarrett, counsel for the OPR, wrote to New York Rep. Maurice Hinchey. A copy of the letter, dated Tuesday, was obtained by The Associated Press.

Recall that the inquiry was designed to find out whether the Office of Legal Counsel acted improperly when it approved the illegal wiretapping program. Of course, none of the lawyers in question work at DOJ anymore, and OPR investigation results are not made public. But still, I'm happy to start with baby steps if you promise we'll keep walking.

Update: TP notes this:

 In a response to an inquiry from Sen. Dick Durbin (D-IL), Mukasey suggested that the decision to re-start the OPR inquiry had already been made prior to his confirmation. On Oct. 25, Durbin (D-IL) submitted this written question for Mukasey:

If you are confirmed, will you pledge to review this issue and to make a recommendation to the President regarding whether the OPR investigation of the Justice Department’s role in the NSA program should be allowed to proceed?

On Oct. 30, Mukasey answered, “It is my understanding this issue has already been decided. I have committed, however, to reviewing the over-all circumstances of this matter.” (p.126)

I noted the same thing when I read Mukasey's answers--but I took it to mean the exact opposite of what this means. That is, I took it to say, "Bush has already squelched this investigation, and I'm not going to promise to unsquelch it." But I see now it could mean any of several things: that Bush approved the clearances during the vetting and pre-nomination process (did Mukasey make Bush do it?), that Bush hadn't done it and Mukasey has already made progress with Bush, or that AGAG did it in his last act as AGAG. Maybe the unsquelching of the investigation is tied more closely to AGAG's departure than we know?

Comments

[P J Evans]

Hurray! (It's a start. Results not guaranteed. YMMV.)

[phred]

No one would be happier than me if nolo proves to be right in her support of Mukasey. I'm keeping my fingers crossed for you (and all of us) nolo, I really am :)

[RevDeb]

To me—I'm a skeptic— the operative statement you made Marcy is this:

"Of course, none of the lawyers in question work at DOJ anymore, and OPR investigation results are not made public."

So this makes him look like a good guy and takes some heat off Schumer and DiFi. Once I see a special prosecutor named then I will shed some of my skepticism. Maybe.

[EH]

It'll be halfassed and Bush will pardon everybody if it gets that far anyway. At least we'll know something, though.

[chisholm]

If you were George Bush would you appoint someone honest and thorough to investigate your actions? It seems pretty counter-intuitive.

[L.B Arts]

I read somewhere today (I'll have to go back and look for it) that this action had already started before he was sworn in, and in fact Mukasy stated that in response to a question in late October. Is that wrong? If so he had nothing to do with it.

[L.B Arts]

oops, sorry I didn't get the update until now

[bmaz]

I am with RevDeb. I think it is a dog and pony show that will yield nothing tangible and, if anything, will serve to whitewash what went on with the bonus of taking the heat off of Mukasey and the lame jerks that facilitated his confirmation, as well as quiet the whole inquiry into DOJ down even further than it has already been. I wouldn't get my hopes up here. It is being pitched as a duck; but I have not seen anything that looks like a duck, nor that waddles and quacks.

[Mary]

On Oct. 30, Mukasey answered, “It is my understanding this issue has already been decided. I have committed, however, to reviewing the over-all circumstances of this matter.”

So they couldn't brief him on waterboarding, torture, renditions, wiretaps etc. - but they did pre-brief him on the status of that investigation?

Guess AGAG can't get a clean bill of health, to go with the telcom's clean bill of health, and the unindicted, never to be prosecuted felons at NSA's clean bill of health, until someone says they looked at things and it is all fine.

I have wondered since the time of the allegations about the "emergency wiretap request" that took so long to make, just how blatantly violative of FISC decisions it was. Could it have been bad enough that the FISC not only turned down the application at the end of the 3 days, but also ruled the application was made in bad faith? Especially if they had some other ruling already made and out? If so, might they have demanded some kind of action?

No one ever asked what the outcome was of that 3 day emergency monitoring when the court ruled later. AGAG was who ended up making it, as Clement was protected and McNulty somehow became the invisible man. Seems to me the logical reason for all that is that everyone knew the court was going to be very angry about what they were getting ready to do. This is a court that had already blocked a top FBI counterterrorism agent from appearing before it, reputedly tusseled with Fran Townsend (in what may be the same incident) and had been ready to take on Mueller and Ashcroft about the same time as the hospital confrontation.

They might have demanded that OPR investigate Gonzales or that they would issue a contempt or referral to his state bar. How's that fly as a possible?

I still think nothing short of having judges MAKE the DOJ lawyers face consequences for their actions explains much of anything that looks like progress. I do think if FISC made that call, they probably made the wrong one. OPR reports aren't always secret (depending on if they make a referral or not, they have to give info with the referral if they make one and there used to be some year end summaries - all of which stopped when AGAG was caught in the compromising slot) but they'll be deferential and wishy washy no matter what and by the time the report is out, Kollar Kotelly will probably be out and I'm guessing the ever more emasculated FISC will end up with someone of a different mold than Lamberth and Kollar-Kotelly for its next Chief Judge.

[Mary]

bmaz - you always say it so much shorter and better.

BTW - I had a duck that really didn't look that much like a duck. He looked more like a Turkey Chernobyl survivor. He was a Muscovy.

Really I had two, but only one looked so Nobyl.

[nolo]

No one would be happier than me if nolo proves to be right in her support of Mukasey. I'm keeping my fingers crossed for you (and all of us) nolo, I really am :)

Posted by: phred | November 13, 2007 at 17:16

ooh -- very late to this
party -- but in the [sorta']
immortal words of one
austin powers:

"i'm a man, man. . ."

he he!

and to be fair -- i did not support
mukasey, so much as point out that
bush will do likely nothing, and that
outcome would be worse, in my view,
than leaving kiesler (or what's-his-
pusses'-name is/was) in charge,
for the next 17 months, or so. . .

all that said, i am encouraged, just
a little, that mukasey seems a man of
his word -- i just wish he'd offer
more of them. . .

p e a c e

[Mad Dogs]

I wonder if AG Mukasey will sign on the dotted line as the next 45 day "authorization" comes due?

And what will the OPR think (and do) about that?

[orionATL]

all this is way, way, way,

too early

to make any determination at all.

i'm willing to bet mukasey is going to be more effective than might be guessed from his hearings,

but

this is the bush/cheney administration.

mukasey is no fire-breather;
in fact, i can only assume he is fully alive, and not a zombie.

he does have about 14 months to do good for the nation.

after that,

we can judge his effort and character.

[Feny]

Plame. They ae going back to find the files she accessed. The NSA files were mostly domestic politics, but what did she look up beyond those? She had old personnel files she looked up before, maybe she looked those up again?

[radiofreewill]

If I were to guess as to why security clearances were granted to the OLC Investigators, it would be due to other forces than Mukasey.

By holding up the security clearances, Gonzo was obstructing Review of the Compartmentalized OLC Opinion - compartmentalized not only from Ashcroft, but from the rest of OLC! - which was used to authorize warrantless wire-tapping in the way that Comey and the other senior members of the DoJ objected to - almost certainly a Program 'Above the Rule of Law', established by the Executive and Reviewable only by the Executive.

Goldsmith repudiated the earlier OLC Opinion that established the authority and terms for the Program, which Comey then used to confront Cheney and Addington during the week of the Hospital Incident.

If I wanted to challenge Bush and Cheney in Court, on the central point of their UE Power grab - warrantless domestic wire-tapping of Citizens - I would want three things in evidence -

The Original Compartmentalized OLC Opinion
The Goldsmith OLC Opinion
The 'Certification of Legality' that Bush signed after the Hospital Visit

That would be a complete set of documentation showing that Bush and Cheney:

- Took Unlimited Executive Power on a Pretext (Art II, AUMF, Nat'l Emergency)
- Kept it Secret from Legislative Oversight and Judicial Review
- Pledged the veneer of 'self-policing' with a DoJ Certification Letter every 45 days
- But, when confronted by Comey, Bush disregarded even the veneer of compliance with the Rule of Law and signed the 'Legality Certification' himself.

Whatever Bush's Rationale for the UE may be, the Hospital Episode made it clear that, in Bush's mind, he was beyond any restraint of any kind - he acted as the equivalent of a King.

With evidence like that, the Constitution would win over the UE in Court. So, my guess is the Comey/Goldsmith faction has the leverage of 'knowing' what it's looking for and is relentlessly pursuing it. Getting the investigation moving again may(?) yield a referral against Yoo, Addington and Cheney.

If they can force the production of the Bush-signed 'Legality Certification,' then that would complete the chain of responsibility by adding Bush to the Conspiracy to Usurp the Government by Domestic Enemies of the Rule of Law and the Constitution.

Just a wag, though.

[cajun]

Marcie,

Haven't you read those Peanuts comic strips where Lucy holds the footbal and then yanks it at the last minute, and Charlie Brown falls on his ass year after year, after year....

There is no chance whatsoever that Mukasey is going to do anything that seriously threatens any of the Bushniks.

[Steve Elliott]

One big, fat whitewash coming right up!

[Jodi]

I think the man is going to do his job. There was no reason from his history to doubt it.

[Shit Stain Remover]

We know Mukasey will not challenge executive privilege unless there is already clear evidence of criminality or enforce contempt of congress if OLC or DOJ provided a favorable legal opinion letter, such as an opinion that defines torture as death or nothing short of organ failure.

[cboldt]

Marty Lederman: What's the OPR Investigation About, Anyway?

The letter from House members that triggered the investigation asked OPR to investigate a bunch of factual, historical questions about how the program was instituted, justified and changed. It's not clear to me, however, that such an investigation is within OPR's legal mandate.

According to a DOJ spokesperson, the OPR investigation will instead focus on two questions: whether DOJ attorneys "adher[ed] to their duty of candor to the court [presumably the FISA Court]"; and whether those attorneys "complied with their ethical obligations of providing competent legal advice to their client." (NOTE: "Officials said it was unlikely that either of the inquiries would address directly the question of the legality of the N.S.A. program itself : whether eavesdropping on American soil without court warrants violated the Foreign Intelligence Surveillance Act.")

Lots more at the link, in Professor Lederman's usual well-composed and well-referenced style.