Folks, I should reiterate, there’s some lack of clarity about who wrote the May 2006 declaration, and whether there are one or two. I’ll have to review it tomorrow when I’m fresh.

I agree and disagree about what they are doing with Blair and keeping him clear from the classified Hackett declaration.

While he is not reviewing it, he is reviewing the documents that are being filed that are “correcting” the statement(s) in the filing, so to that extent he is almost certainly now “in on” or exposed to whatever the fib that is being corrected would be.

His not reviewing the classified Hackett declaration caught my eye, but that made me find a different part of his declaration really interesting – the part where he says:

My review specifically included the information submitted to the Court that addresses the inaccuracy contained in a prior submission in this case by the Government. As to that particular issue, I concur with the conclusion stated by the Government in its declassification review report that the inaccuracy at issue does not alter the classification determinations made in that report by the ODNI and the NSA regarding information subject to the states secrets privilege and the statutory privilege assertions in this case.

So if he doesn’t see the original filing – he’s not on the hook for any OTHER inaccuracies in that filing that he would know to be false given his position. Now keep in mind that you would theoretically (if DOJ and the intel community weren’t peopled by the kind of people who people them) have a really different analysis on declassification if things were being classified to cover up criminal acts or avoid embarassment. Blair is looking at the inaccuracy that has been singled out for *correction*(in all likelihood its one that they realize the court could have or would have discovered on its own) and he’s thinking – oh great, involve me in this and I’m damn well not going one comma beyond what you fixed.

It was always kind of odd in a state secrets context for the Hackett declaration to be there imo. The case law parameters on that invocation require that the head of the agency personally review everything and make the declaration. With the new DNI slot they are probably a little uncertain whether that would mean head of NSA or DNI, so I understand the belts and suspenders there.

But Hackett’s declaration gives a feel that neither Negroponte nor Alexander really wanted to be making the statements that were in the Hackett declaration and yet apparently they contain statements they felt someoen had to make in a classified declaration, once the court indicated it wasn’t going to flat out shut things down at the whisper of “state secrets.”

When you have case law spelling out the use of head of agency declarations (the court’s way of insuring that an agency head is fully briefed in and taking all responsibility before the court for what is being asserted – since the court action they are seeking is extraordinary) and you have them, but are also trotting out other guys, that sets off some alarms, rightly or wrongly. The purpose of the Reynold’s approach is to make the agency heads own what is being said to the court.

DOJ makes sure they pad out Blair’s declaration with not just his agency head status, but also with his prior accomplishments – as if they are trying to say to the court, *here is one honest man, be merciful with Sodom state’s secrets.*

But I have to think the court would, at this point, at least want the agency heads (Alexander and Blair) to a)certify as to all classified filings, including Hackett’s, and based on the personal review standard that is REQUIRED by Reynold’s and the non-existence of hiding criminal acts and non-existence of intent to avoid embarassment required by Exec Order, and b) certify that they have exercised due diligence in determining all of that,the truth or falsity of statements made to the court and the lack of crime and lack of intent to cover up embarassing matters, including making diligent inquiry of their predecessor’s in office at the time of the acts and obtaining declarations under penalty of perjury from such precessors where reasonable or necessary.

But maybe not.

Still, I can’t imagine that there’s a way to make the Reynold’s requirements of personal review and knowledge assertions by an agency head fit the “as to that particular issue” position taken with the court by Blair and Coppolino.

Not to beat my dead horse, but what SJC needs to do to get a real investigation is to frame it as investigations into how DOJ and Exec branches have interacted with the courts and Congress with respect to classification and states secrets and the GWOT. If you start listing the now known and revealed instances of lies to the court and Congress, it’s staggering. And as the situation with “The Scholz” reveals – DOJ has a very low bar and a very unique set of standards when it comes to lies by its own and by the Exec branch to the other branches. Perjury and fraud on the court and obstruction of courts and Congress etc. – apparently they’re just a joke to DOJ lawyers. And those DOJ lawyers who get by with treating the law as a joke are too often the ones who end up on the bench. That Silberman decision on judicial blessings for contractor depravity was backed by Kavanaugh. So the conservative judges like Lamberth and Walker who don’t get the joke are being replaced by a cadre who are in on it.

As disempowered as the Dems in Congress were when people hated Bush and the Republicans, it will be as nothing when they earn just as much contempt and dislike for not only their behavior in the minority, but their failures in the majority. They are sealing the deal on a huge change in corporate, Executive, Legislative and Judicial interactions. Cheney wasn’t that far wrong with 4th branch – Congress and the courts are allowing multinational corporations to become our 4th branch – and one that is more powerful in many ways than the others. They are setting up situations were telecoms are “too big to be held accountable for breaking the law” and corporations housing cross boundary mercenaries and goons and outlaws are judicially blessed to operate with impunity.

And all we have is Obama and Holder.

“Depressing” doesn’t descrie the hard edges on it all.