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November 14, 2007


Point taken, but I keep thinking Mukasey was nominated by the same guy who nominated Alberto Gonzales.

So I hope you're the one who's right!

I'll take up another possible position here and say that the career professionals, the Comey faction, rolled Gonzo for the Clearances based on it being 'old business' - prior to Mukasey - and strictly related to Gonzo's personal decision to 'sit-on' the investigation.

I don't think this is neccessarily an indicator that Mukasey is a strong and principled leader (he might be), but more a case that the career DoJ 'Rule of Law' crowd has the 'goods' on Gonzo, at the least (if not Card, Addington, Cheney and Bush, too), and were willing to destroy him with it, if he didn't make the clearances happen as part of his 'leaving'.

So, forced into a 'no good options' position, Bush agreed to cough up the clearances and 'allowed' Gonzo to leave early, so Gonzo could at least 'claim' to have assisted the Rule of Law with an 'independent' (of Bush) decision to 'unblock' the investigation.

It's a negotiated move designed to provide Gonzo - the worst of the henchpeople, so far - some amount of cover ('See, I couldn't have been a total tool!) against the charge of Subverting the Rule of Law at Bush's behest.

I'm not sure this was done to give Gonzales cover. I suspect the opposite. A trade was in the works. Telecom immunity in exchange for an investigation centered on Gonzales. That way, they can say there is accountability, even as the telcoms get immunity.

Somebody got rolled in the Mukasey choice. I have been thinking it was Chuck Schumer, but maybe it was Fred Fielding. Not holding my breath either.

Waxman seems to have some new stuff today that he couldnt have had a week ago. I wonder if this is relevant to Mukasey's presence. He may have shaken loose an entire catagory of information.

radiofreewill -- I see this as evidence that Gonzo has been abandoned by the white house, for purposes of legal defense.

But I keep thinking that Mukasey was picked by the same guy who picked Comey.

I do too, but to probably very different effect.

I still think it has to do with the "three day emergency surveillance" request." If the court had already made it clear that they could not do what they were getting ready to do and they did it anyway under the guise of the emergency request (used, not bc they couldn't get the paperwork together in the hours that they mulled it over, but rather bc they knew the court would deny the request so they took a route where the court was only notified and not given an opportunity to deny), then at the end of the 3 days, when the judge denied the order, the judge may also have been demanding a disciplinary action or review of some kind within DOJ - or having the judge push contempt or other sanctions.

If so (I've really wondered why no one asked or offered what happened at the end of the 3 days) then there is a big issue at DOJ to be addressed. If a FISC judge, also a Federal Dist Ct Judge, is claiming deliberate violations of their orders or rulings or bad faith proceedings in their court, which would be worse: 1) A partly sealed order of contempt issued by the FISC against the AG of the US, or 2) a nice quiet OPR investigation with the AGAG quietly retiring?

And once you go with an OPR investigation, they have to have security clearance on "teh program" to hear about and investigate what happened during the lead up to the emergency order brouhaha. Once they have that clearance on the program, they have what they needed to also do their other investigation.

I still think that most of what has been generated in the way of pushback feeds more directly to the FISC than to anyone in DOJ having minimal positive qualities after their 6 years of torture acquiesence, cover up and soliciation.

But then again, it's all just spec and I'm pretty admittedly biased with dislike.

The investigation seems narrowly defined:


Jarrett said the investigation will be confined to the "role of Department of Justice attorneys in the authorization and oversight of the warrantless electronic surveillance by the National Security Agency and in complying with the Foreign Intelligence Surveillance Act."

Justice Department spokesman Brian Roehkasse -- who said the letter had been sent to five members of the House of Representatives -- stressed the limited nature of the probe.

"The Department of Justice's Office of Professional Responsibility investigation will focus on whether the DOJ attorneys who were involved complied with their ethical obligations of providing competent legal advice to their client and of adhering to their duty of candor to the court," he said.


It could be aimed at Gonzo the lawyer, but Yoo really seems like the most likely target - the Compartmentalization of his OLC Opinion away from Ashcroft, and the possibility that he gave some less than candid testimony to the FISA Court.


That's all it ever was (and given OPR's mandate, probably all it could be).

I hope it is Yoo. Maybe it would provide a reason for my alma mater to legally fire him.


You know, I thought precisely that thing myself. Tenure is one thing, but it'd be hard to keep a lawyer who has been disciplined for ethical violations on staff. Or rather, it'd provide a reason to get rid of him.

EW - Thanks, I seem to recall now your original reporting on the scope of OPR Investigations being limited to internal review of lawyer ethics, with the power to refer for remedial action.

So, would this would be a way to remove a 'bad actor' DoJ Lawyer and provide review of his 'bad actor' decisions and legal opinions?

Bradbury passing Addington's 'probationary' ("Will he write what we want?") period prior to his 2005 Secret Torture Memos?

As Mary has indicated both here and before, I have always felt that the only thing that really shook up things was threats from the FISC. There were certainly other factors also, but that was the one that made the difference. I think cboldt, Mary and I had some discussion on this back when the hubbub over the hospital scene broke lose. all of these jokers have signed off on and facilitated so much, that I just don't see anything else other than the threat or fear of the Court that really gives them pause. I am not necessarily saying that is directly behind the instant "revival" of the OPR investigation; but, overall, I think that is the fear factor beneath any real movement. I am glad that Mary brought this back up, because it important to keep in mind. I personally don't think any of these clucks are "good people trying to do the right thing"; not Goldsmith, Comey nor Mukasey. They may be doing what they have to do under the circumstances to protect their, and more importantly, the Administration's rear ends, but it is out of necessity, not principled convictions. Lastly, I am still not convinced that Mukasey is behind this; it may have been rolled out to help benefit him as to credibility, but I remain unconvinced he was the driving force.

Certainly if Yoo is sanctioned, censured, or even made to look horrible (like he doesn't already); that would certainly be grounds for action by the UCal Trustees. I say this only a little tongue in cheek, but why would anybody think that DiFi wouldn't step in and vouch for and support him?

nonsequitor ramble, but I may get pretty busy over the next couple of days so I am going to toss this in here and now for when EW gets to other parts of her FISA destruction series.

Re: the AG oversight/decisionmaking v. FISC oversight/decision making provisions. Keep in mind that the law has been very clear that judges cannot issue general warrants. Nomenclature not being the deciding factor, that would include FISC "orders" authorizing general, blanket searches & seizure.

The one thing the Sup Ct has said specifically about foreign surveillance is that the Executive does have powers to engage in surveillance of foreign powers or agents of foreign powers for national security purposes. That was done as dicta in a case where the specifically said they were not going to get into what is or is not foreign surveillance.

But this is why you see certain things in "old FISA." First, a carve out for warrantless surveillance only when you have foreign powers or agents of foreign powers - - - not for all foreigners. It is a national security carve out that had in mind things like invasive and sabotage actions of foreign powers. Not so much listening in on a Chinese businessman's calls to his mistress so that a Madame President could use the info to blackmail bigger campaign contributions.

So you already get into a grey area when you have foreign communications that are not communications involving foreign powers or their agents. The Sup Ct has not really spoken to the right of the Government to be unfettered from the Constitutional constraints of the fourth amendment when it is seizing and searching foreign communications, especially on US soil. But certainly that is a far different scenario than their dicta carve out of foreign powers/national security purpose.

Secondly, with the fall of the operational aspects of the wall, you also had legislation that took down a lot more than the operational aspects. Part of the court's reasoning for the warrantless capacity for the Executive to spy on agents of foreign powers dealt with the presumed diplomatic, rather than legal, avenues of reprucussion the Executive branch would take in those settings (expulsion being one of the primary actions)

Similarly, part of the reasoning for allowing the "with warrant" surveillance that might include or capture non-agents of foreign powers, but which is based upon a much lesser and different probable cause standard than a criminal surveillance warrant was that criminal penalties would not be applying. Even with minimization, the concept of judges issuing warrants that allow the interception of US citizens' communications based, not on probable cause that they are committing a crime, but rather on probable cause that they will be talking to someone who is an agent of a foreign power, is again, another grey area the S.Ct hasn't really addressed.

Now, of course, you have not only the operational aspects of the wall being changed, but you also had a tremendous sea change on how FISA warrants would be used - they could be used to try to find evidence of criminal violations without meeting the standards of a criminal warrant, only upon a showing of probable cause that the person being surveilled would be in contact with an agent of a foreign power. And the definition of agent of a foreign power has been changed to include this large and nebulous grouping of "terrorists" or those who provide material aid to terrorists, with no clear understanding of what is meant by either or both.

So the FISC is already being forced into a very uncomfortable place by the Patriot Act legislation. No longer is it "just diplomatic" reprucussions. And even on the non-judicial reprucussions front, there has been a big change from the concept of expulsions to the concept of disappearing suspected enemies into blackhole torture.

None of those were points touched on the in the dicta that set the scene for saying the President has warrantless surveillance powers with respect to agents of foreign powers for national security purposes.

Still, FISA is structured to take into account that dicta and if you read it you will notice that when the AG is engaging in surveillance of only agents of foreign powers, not only does he not need a warrant, the FISC is basically prevented from issuing a warrant. Since the Sup Ct said that was an area where they President did not need a warrant, and since it often will involve breaking laws of other countries and involves information that would only be used diplomatically and not for criminal proceedings, there is a separation of powers issue and the FISC is in a hands off mode when the communications are agent of foreign power to agent of foreign power.

So a couple of additional issues present. First, throwing terrorists in with agents of foreign powers and allowing FISA to be used for criminal surveillance but without getting a criminal warrant, basically doesn't work well with the original precepts of FISA. It's the same as sayint that "mafia" members (with no definition) are going to be treated as agents of foreign powers. The thing is - terrorism is ideologically based, not geographically based - and it is a criminal state of mind.

We need to address terrorism, often (but not always) with strong multinational roots, involving paramilitary non-state actors and large scale destructive capacities such that the balancing tests for reasonablity and probable cause may have differing elements or a stairstepping of elements not wholly re, we need something that is really targeted to the problems and needs, not a tack on to FISA.

Still, dealing with what we have and not what we need, the fixes are generating a situation where it appears that what Congress and the Executive branch are wanting to allow (to the extent any of them even bother to sit and think about any of it rather than just tabulate political points) is dragnetting and/or data mining of all communications and/or of all "foreign" (not agent of foreign power) communications. And whether technology is such that they can actually separate US from foreign in their dragnets and datamining they don't really want to get into - which may be part of why the minimization is being kept so tight (if you even can presume any reason based on factors other than intent to cover up Executive Branch and telecom and contractor crime these days - and I have a hard time getting there).

EVEN IF they were able to address the fact that US communications can be severed out and destroyed (bet they won't) and EVEN IF you ignor that now with other Patriot Ac changes, dragnetting all foreign communications has no requirement thta it be limited to national security puruposes and can include all kinds of other uses, including criminal uses or Presidential whim or *rogue* Executive branch officers sending info to Hezbollah family members of blackmiling politicians, etc., THEN you still get to the point that an approach that provides for FISC court involvement in this process unConstitutionally would be requiring the FISC to issue blanket warrants.

How you go from that point, to saying that while it's unconstitutional for the courts to issue blanket warrants for criminal investigations, it's ok as long as the AG approves it instead of the courts and as long as it mostly is meant to involve foreigners or US citizens in foreign lands, and US citizens in the US as long as they can make some claim that they thought some person or part of the conversation might at one point have included an amorphous and undefined "terrorist" or an entity/person providing "material support" for a terrorist, or as long as they think they can claim that with the calls left after their mining program . . .

and on and on it goes.

But some of the resistance to court involvement is pretty likely tied to the fact that the courts can't constitutionally do what they want done, even if all else was met.

Combining the diplomatic/national security aspects with criminal surveillance aspects and leaving so many waffle words in that not only is national security becoming a blanket for all bodies, but so are a half dozen other words, all of it just doesn't really work with and within a Constitutional democracy that obeys the rule of law and does not have a big brother Executive. So we either admit we are not that and give the appropriate salute to the members of the Bush DOJ, past and present, who made sure the destroyed the country from within; or we draw the lines, make FISA stay within what FISA was intended to be, and recognize that terrorism is a massive and paramilitary criminal undertaking that needs a well thought through approach, nationally and internationally, that is targeted on the criminal and military aspects of true national threat terrorist groups with paramilitary ideologies (not so much PETA and Quakers) and a coordinated military and criminal justice approach to addressing those aspects.

So far, not one person in the Democratic or Republican wings of Congress or the DOJ or the Executive branch is coming forward to have the discussion and make the approach on the second alternative, so that leaves us where we are.

IMO, a bad place at the end of a trail laid by bad men patting themselves on the backs for being brave and protecting a country they were helping to poisen from within. And there we seem destined to remain, as the reins of government have been taken by Democrats who are morally and functionally incpable of making a trail of their own.

From radiofw's excerpt, I think that this has been "added" from the old statements about investigations into competency of counsel:

...and of adhering to their duty of candor to the court,

That, along with other items, is a legitimate element for OPR review, bc in addition to obstruction and it's legal ramifications, failing the "duty of candor" (aka, fibbing and finger crossing behind the back)to a tribunal is grounds for a referral to a State bar for disciplinary action.

I can't see Yoo being involved much in representations to the court. That would have more likely been Ashcroft and his DAGs and Gonzales vis a vis the FISA applications or a larger group, including Keisler (who has, along with a couple of others, been involved in the state secrets interventions in cases).

IMO, what is interesting is that the "narrow scope" does leave it open enough for more than one court that might feel aggrieved to back off from taking action while the OPR goes forward. Which is kind of too bad.

Bc as I've mentioned back when the gap period came out, the lack of legal cover for "teh program" for the period of time involved also would typically mean, under the existing Executive Order (and this goes to Whitehouse's questioning IMO) that "teh program" and it's "no legal basis" during that period are not eligible for classification. So those who invoked state secrets interventions and failed to advise the tribunals that the program was not deemed legal, even internally, for a period of time and so state secrets cannot be invoked for that period of time . . .

well, it's an *interesting times* issue.

PS - what I meant by, That, along with other items, is a legitimate element for OPR review is that other things are not spelled out and prior references in MSM from way back tended to dwell on the OPR investigation as being geared towards the competency and candor of the advice given. It seems now it is more specifically raising the fibbing to courts as an element, which means to me that a court has had an element in the push. fwiw

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