The Next Hurrah

Article III folds. But wait! Is that a sign of life in Article I?

by Kagro X

The story so far: CIA tortures terror suspects, videotapes it, tells 9/11 Commission tapes don't exist, tells courts tapes don't exist, tapes do exist, court orders government not to destroy tapes, government destroys tapes. And now?

Judge Won't Inquire Into CIA Tapes Case
AP NewsBreak: Judge Refuses to Investigate the Destruction of CIA Interrogation Videos
By MATT APUZZO
The Associated Press

WASHINGTON

A federal judge refused on Wednesday to delve into the destruction of CIA interrogation videos, saying there was no evidence the Bush administration violated a court order and the Justice Department deserved time to conduct its own investigation.

The decision by U.S. District Judge Henry H. Kennedy was a victory for the Bush administration, which had urged the courts not to wade into a politically charged issue already being investigated by the Justice Department, CIA and Congress.

The CIA has acknowledged last month that in 2005 it destroyed videos of officers using tough interrogation methods while questioning two al-Qaida suspects. Lawyers for other terrorism suspects quickly asked Kennedy to hold hearings, saying the executive branch had proved itself unreliable and could not be trusted to investigate its own potential wrongdoing.

Kennedy disagreed, ruling that attorneys hadn't "presented anything to cause this court to question whether the Department of Justice will follow the facts wherever they may lead and live up to the assurances it made to this court."

Oh yeah! Of course! The DOJ is a fantastic self-policer! Absolutely!

Enigmatic Terms

by emptywheel

Luckily, Harry Reid has put off the Senate vote on the FISA amendment, because I never finished my series showing that the current amendment will legalize data mining. Man oh man oh man, am I looking forward to meeting the deadline I'm on, celebrating a late Turkey Day with friends this weekend, then going into a blog and bill paying frenzy next Monday.

In the meantime, I direct you to Marty Lederman's latest post, which notes that as far back as Poppy's day, they were deliberately obfuscating the purpose of their FISA amendments.

Seventeen years ago, the very first Bush (41) Administration was considering whether to ask Congress for an amendment to FISA very similar to the one the current Administration is now seeking. Mary Lawton, the FISA guru within DOJ at the time (she tragically died shortly thereafter), wrote a memo to Daniel Levin in the Deputy's Office (yes, that Daniel Levin) discussing why such a proposal might not be such a good idea. That memo has recently been released under FOIA. (Hat tip to David Kris for obtaining it and bringing it to my attention.)

The most important sentence in the memo, I think, is this one, in the penultimate paragraph:

"It should also be noted that the proposed amendment to FISA to resolve the NSA problem . . . is certain to be written in such enigmatic terms that only those who have been briefed in executive session will understand them."

Truer words were never written. And that's why it is, indeed, almost impossible to have a serious, informed legislative and public debate about proposed FISA reforms -- because the public (and most legislators) can never be let in on what the amended statute would actually do:  it's secret law. [my emphasis]

I think little details of what the new FISA amendment entails have slipped out here and there. But the fact remains, not all legislators know what they're doing here, and almost no citizens know what they're doing. And then there are people like Joe Klein obfuscating what little is know, because he can't be bothered to read the public documents about the program.

Well, until I return to all this Monday, I'll leave you with one other passage from the Poppy-era memo.

When FISA was initially considered there were strong dissents opposing its enactment on grounds of separation of powers. The Administrations of Presidents Ford and Carter backed the legislation, however, because of the practical imperative of continuing to collect foreign intelligence in the face of growing resistance from the communications common carriers whose cooperation was essential.

Had Junior asked Poppy, perhaps he wouldn't have gotten the telecoms into the legal fix they're currently facing in the first place.

Speaking of the Saudis

by emptywheel

Check out who Bandar Bush bin Sultan hired to defend him in the BAE bribery investigation:

Prince Bandar, a confidant of the Bush family, recently retained the former Federal Bureau of Investigation director Louis J. Freeh,  as well as one of the fathers of the F.C.P.A., the retired federal judge Stanley Sporkin, to represent him.

“There have been no charges filed,” Mr. Freeh said in an interview. “The prince denies any impropriety and violating any statutes in the United Kingdom or the United States.”

The news is eye-popping (to me, at least) for more than just Freeh's former role as the head of the FBI. You see, Freeh is a very good buddy of our new AG, Michael Mukasey, showing up at his confirmation hearings.

Something in the front row of the spectator’s gallery kept catching my eye as I watched the stock footage of the Mukasey confirmation hearings being played over and over on Friday–I kept thinking isn’t that Louis Freeh in the front row? So, on Saturday Morning I did a little googling and lo and behold! — it WAS Louis!

How curious!

What would Louis Freeh be doing at that hearing?  Hmmmm?

And his swearing-in ceremony.

Dignitaries in attendance included Sens. Arlen Specter, R-Pa., Sam Brownback, R-Kan., and Lindsey Graham, R-S.C., and former attorneys general John Ashcroft and Dick Thornburgh. Also seated near the front were FBI Director Robert Mueller and ex-FBI Director Louis Freeh, a former Southern District of New York judge and friend of Mukasey's.

I'd say recent events have taken a turn in Bandar's favor, wouldn't you? How convenient that the newly-installed top law enforcement officer in this country happens to be great buddies with your lawyer.

Somehow, Bandar manages to have all the luck.

Fieger Makes Allegations about Arkansas

by emptywheel

I admit--I'm getting sucked into the Geoffrey Fieger case. I will have more to say, but the short version is this:

The government alleges that Fieger and his partner got employees from their law firm to donate to John Edwards in his 2004 election. And then, the government further alleges, they reimbursed those people. From the government's perspective, Fieger laundered a lot of money to give big dollars to Edwards. From the perspective of this Administration's seeming pattern of politicized prosecutions, they went after Fieger (and other trial attorneys) to disincent trial lawyers from making political donations.

The big scandal (besides the possibility that BushCo is prosecuting Fieger as part of a political prosecution) is that it appears the government may be using tools designed for national security prosecutions in support of a campaign finance investigation--basically, Fieger alleges the government is abusing the tools Congress gave them to investigate terrorism in order to punish Democratic political activities. And he's trying to get the evidence to prove that case.

At present (Fieger's trial is due to start at the beginning of December), Fieger is dealing with four issues related to selective prosecutions.

• BushCo got a bunch of subpoenas for financial information--apparently under grand jury subpoena--without having to reveal those subpoenas; Fieger's team thinks they used National Security Letters or some other improper subpoena to get that information
• Bush's DOJ sent a small army of people to search Fieger's firm (and his employees' homes), serious overkill for a white collar crime investigation
• The top three people in the USA office in Eastern Michigan recused themselves from the case; Fieger's team thinks there's some hanky-panky behind the recusal
• The only investigation into campaign finance violations for the 2004 Edwards campaign that ended in a civil--as opposed to criminal--penalty was a lawyer in Arkansas--but the agreement was signed at the same time that Bud Cummins was fired, a coinkydink that Fieger alleges was the reason Cummins was fired

Here's the court's opinion summarizing the last three of these issues (look on page 1 for Judge Borman's description of three of four of these issues, he reviews these issues in camera before making the ruling on these three issues; he refuses to show Fieger the subpoenas in another order). On the issue of the army of FBI agents to investigate the firm, Borman allows Fieger to see dates of such overkill investigations, but not the names or details. On the issue of recusal, he orders the government into further discussion of the reasons behind the recusals. And on the issue of the one trial lawyer campaign finance investigation that did not end in criminal sanctions, Judge Borman refuses to provide the name to protect the innocent accused.

Shall, Part Two?

by emptywheel

Back in June, I pointed out that, in case of disputes over the EO guiding classification, the head of the Information Security Oversight Office can ask the Attorney General to rule on the dispute.

This morning, when I read the famous Executive Order that Cheney claims to have exempted himself from, I noticed a key paragraph:

The Attorney General, upon request by the head of an agency or the Director of the Information Security Oversight Office, shall render an interpretation of this order with respect to any question arising in the course of its administration. [my emphasis]

You see, I'm no lawyer, but I have written enough pretty hardcore business and government documents to know there's a crucial difference between "shall" and "should." Shall is mandatory, with legal umph. Should is kind of wishy-washy, if you feel like it, ought to. So I was wondering when the Democrats were going to point out to Alberto Gonzales that he shall provide a response to Bill Leonard's request for a ruling on whether or not Cheney is, indeed, exempt from this Executive Order.

AFAIK, AGAG never got around to ruling on the dispute before he got out of Dodge (though I'm happy to be corrected if I'm wrong). Which means the dispute remains at DOJ, just waiting for some resolution, right there for a new Attorney General to resolve it.

And Bill Leonard, who valiantly tried to make Cheney follow Bush's own law, has just the month of December before his resignation goes into effect to try to get an answer to his dispute with Cheney. Curiously, none of the Senators asked Mukasey in his nomination hearings whether he might get around to answering Bill Leonard's question. Though I think I--and several other folks who hang around these parts--think that might have been the intent of this question from Sheldon Whitehouse.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

It sure seems like, if Mukasey were asked whether he thought Bush could make Cheney into a Fourth Branch in order to exempt him from normal classification laws, he might answer that Bush would have to modify his executive order requiring Cheney to abide by the same requirements for revealing how much classifying he's doing that other agencies have to.

I'm just saying...

You're still still not getting your oversight.

by Kagro X

Six months have passed since I told you that a year had passed since I told you you weren't getting your oversight.

And you're not. Because Rahm Emanuel says so:

House Democrats have postponed a vote until December on contempt resolutions against White House chief of staff Josh Bolten and former White House counsel Harriet Miers, delaying for now any constitutional showdown with the White House over the president’s power to resist congressional subpoenas.

Judiciary Committee Chairman John Conyers Jr. (D-Mich.) has been pushing for the contempt vote, arguing that the White House must be held accountable for ignoring subpoenas issued by his panel as part of the U.S. attorney firing scandal. Other top Democrats, including Caucus Chairman Rahm Emanuel (Ill.), have argued that the House should put off that fight while debates over Iraq funding and electronic eavesdropping dominate the floor. The contempt vote had been tentatively scheduled for Friday before Majority Leader Steny H. Hoyer (D-Md.) informed his colleagues that it was being delayed.

“[Emanuel] has been saying that this week is not the time to do this, that it will step on our message on Iraq and FISA,” said a top House Democratic leadership aide.

Only guess what? The message on Iraq and FISA and these subpoenas is all the same: George W. Bush thinks there are no Congressional checks and balances against his "inherent powers."

Bush and Schumer

by emptywheel

David Kurtz reports that the Mukasey nomination will come down to the Senate Judiciary Committee vote (and TPM is tracking votes so far). I believe this sets up some really interesting tension between Bush and Chuck Schumer.

You see, events thus far have made it very important for Bush to get Mukasey approved. While David Addington may have thought it in Bush's best interest to push Mukasey to adopt the party line, they're now at the place where, if Mukasey is rejected, it will be because of Bush's torture policy. (Frankly, this is unfortunate from a principled perspective, since it means that the Senators don't care about the unitary executive more generally, but it works to our advantage politically.) The press has spun the rising tension to be entirely about the issue of torture, which makes it inconceivable that, if Mukasey is rejected, the narrative will be anything but torture. Which will shine a bright light on the torture policy itself, and some Soccer Moms who might otherwise be ignorant that men are being tortured in their names may just discover that their government is doing reprehensible things.

Which is why Bush is so pissy about the doubts about Mukasey's appointment.

President Bush today sought to ratchet up pressure on Senate Democrats considering his nomination of Michael B. Mukasey to be attorney general, saying that it was unfair and unwise of lawmakers to require the nominee to opine on details of a classified interrogation program.

Bush, in his most forceful remarks to date on the troubled nomination, strongly defended Mukasey for refusing to say whether he believed that coercive interrogation techniques, including waterboarding, were illegal torture. The issue has become the defining question for Senate Democrats in advance of Tuesday's Senate Judiciary Committee vote on whether to confirm the retired federal judge to succeed Alberto R. Gonzales.

[snip]

Bush today said it was wrong of Democrats to make the confirmation dependent upon "details of a classified program he has not been briefed on."

Though his temper tantrum is only going to make it worse--it's going to make a Mukasey vote an upperdown vote on torture.

Unfortunately, I'm still pessimistic it'll go the way we'd like.

That's partly because DiFi pretty consistently disappoints Democrats at times like these.

But it's also because of the underlying tension regarding Chuck Schumer's role in this whole process. Chuck Schumer, of course, suggested Mukasey's name in the first place--Mukasey was Schumer's nominee first, and Bush's only afterwards. Which will make it very difficult for him to vote against Mukasey, not least because he no doubt represented to the White House that Mukasey--unlike Ted Olson and Laurence Silberman--would be confirmed. For now, Schumer's not showing his hand.

Most conspicuously silent was Mukasey’s fellow New Yorker,  Charles E. Schumer , who initially offered unusually warm praise for the nominee and did not come out against him this week as other Democrats attacked. Asked Wednesday about the nomination, Schumer would say only, “I’m reading the letter, going over it.”

But Schumer is a natural deal-maker. He's in the position where his role as dealmaker on judicial nominations will be in question if Mukasey is rejected. I suspect he's as troubled by Mukasey's head fake on torture as the other Senators (indeed, I suspect he'd be more concerned about the unitary executive issues than some other Senators). But he's also got his own honor at stake.

Let's hope he lets the Constitution trump his honor, just this once.

Whitehouse Sniffing around Bush's Executive Orders

by emptywheel

Remarkably, Sheldon Whitehouse asked Mukasey very few written questions. But I am intrigued by this one.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

Whitehouse, that sneaky guy, is not letting on which Executive Order he believes Bush may have violated, though it's clear that's the genesis of the question. I'd say it relates to Bush's recent executive order on torture, since that's the focus of so many questions for Mukasey. But the timing is off--Bush only signed that EO recently, so he hasn't had much time to violate it.

Furthermore, the structure of the question doesn't sound like Whitehouse is addressing torture. It's not like Bush would act contrary to the torture EO; he'd authorize actions contrary to it.

So what do you think it is? The first thing that comes to mind, for me, is EO 13292, which governs classification and declassification. Cheney has violated that EO on a number of counts. There's Cheney's claimed exemption because he's a Fourth Branch. And, of course, someone violated it when they insta-declassified Valerie Wilson's identity the National Intelligence Estimate, though it's not clear whether Bush did or Cheney did or Libby just lied about it (again).

But again, this gets us into grammar problems. Whitehouse is talking about Bush violating his own EO. I know it's hard to keep Bush and his puppet-master straight sometimes, but Whitehouse is a pretty sharp cookie and I imagine he's up to the task. Though, there have been so many instances where the White House insta-declassified classified information to serve their propaganda needs, I still think this is a leading candidate.

In any case, I suspect Whitehouse's comment suggests two things. First, the Senator is sniffing around some instance of Bush violating his own EO (go Whitehouse). And second, my leading bet is on Bush's rules governing classification and declassification.

Who Vetted Mukasey?

by emptywheel

Here's an interesting question from Dick Durbin to Mukasey. It addresses whom the Administration felt it needed to give buy-in before nominating Judge Mukasey:

11. According to the Washington Post, before you were confirmed you "spent part of the weekend meeting with leading figures in the conservative world, seeking to allay their concerns about [your] philosophy and suitability for running [the] Justice Department."

a. With whom did you meet?

ANSWER: Prior to the announcement of my nomination, I met with former Attorney General Edwin Meese III, Lee Casey, Leonard Leo, David Rivkin, Jay Sekulow, and Edward Whelan.

b. Who asked you to take these meetings?

ANSWER: Officials within the White House. I cannot remember the specific individuals.

So:

• A former Attorney General implicated in Iran-Contra and additional corruption allegations.
• Casey and Rivkin, a one-two team serving as the public intellectuals defending the unitary executive
• Leo, the Executive VP of the Federalist Society alleged to have been involved in the Civil Rights Division politicization
• Sekulow, the Chief Counsel for the American Center for Law and Justice, one of the brains behind the Terry Schiavo circus, and someone with his own ethical challenges
• Ed Whelan, himself a bit of a public intellectual for the right, not to mention a former OLC lawyer when most of the crap was written and--my personal favorite--a former Senior Vice President of Verizon

Mind you, Addington the White House can ask Mukasey to meet with whomever they want--I'm not alleging this is in any way improper. Still, it's interesting to see who the select few who get to vet an Attorney General candidate are.

Mukasey Will Not Commit to Restoring Election Law Manual

by emptywheel

One of the sub-scandals that came out as part of the USA purge is that DOJ recently revised the manual on Election Offenses. Gonzales' DOJ basically removed the language restricting indictments just prior to elections--precisely the restriction that Hans Von Spakovsky violated when he brought indictments against former ACORN workers just before the 2006 elections. As a result, it will be easier for USAs to bring indictments leading up to the 2008 election.

In his hearing, Mukasey did not answer whether he would return the manual to its former state. So Ted Kennedy asked for a firm commitment that he would do so.

Mukasey would not make that firm commitment.

In your testimony, you were clear that "partisan politics plays no part in either the bringing of charges or the timing of charges," but you never specifically addressed the changes made to this manual. Restoring the 1995 guidelines is an obvious reform that would go a long way toward restoring public trust in the Department. Will you commit to restoring the 1995 version of the "The [sic] Federal Prosecution of Election Offenses" manual?

• If you will not commit to this, do you agree that the changes recently made to the manual were dangerous and inappropriate?
• Do you think it's appropriate that under the new guidelines, prosecutors and investigators are given so much freedom to influence election outcomes?

ANSWER: As I testified partisan politics can play no part in either the bringing of timing of charges. Although I have not reviewed either the 1995 or current versions of "The Federal Prosecution of Election Offenses" manual specifically, I fully appreciate that the closer to an election, the higher the standard that must be met for charges to be brought.

It's the same tactic he used with many of the national security questions: by saying he hadn't reviewed the document in question, he avoided answering any question and--more specifically--committing to diverging from Gonzales' troubling policies.

Only in this case, the documents are all available in the public record. Which suggests Mukasey's refusal to answer the question ought to be taken as answer enough.