More Proposed Oversight from John Conyers

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John Conyers has been busy. In addition to drafting bills to improve FISA and PATRIOT (more on that later), he has introduced three more bills that would improve Congressional Oversight of the Executive.

The Department of Justice Inspector General Authority Improvement Act of 2009

This Act will authorize the Department of Justice Inspector General to investigate attorney misconduct within the Department of Justice. Under current law, all allegations of wrongdoing by the Department of Justice attorneys are required to be investigated by the by the department’s Office of Professional Responsibility, rather than the Inspector General. In contrast with the statutorily independent Inspector General, the Office of Professional Responsibility is supervised by the Attorney General.

This limitation on authority does not exist for any other agency Inspector General. The Department of Justice Inspector General Authority Improvement Act of 2009 will make the authority of the Department of Justice Inspector General consistent with that of all other agencies and will prevent future abuses and politicization within the Department.

DOJ’s Inspector General, Glenn Fine, has been pushing for this authority for some time (and not just because it would give him more authority). It fixes two problems that exist right now–one, that lawyers in DOJ are not held legally responsible in the same way as others might be, because they escape IG oversight (and often benefit from quiet settlements on complaints handled by OPR). And, more importantly, the current situation (in which OPR–which reports to the Attorney General–conducts investigations of lawyers) makes it almost impossible to investigate the actions of the Attorney General or his close allies. Alberto Gonzales was able to put off investigations into the US Attorney scandal for some time this way.

The Inspector General Authority Improvement Act of 2009

This Act will provide the Inspectors General of the various agencies the authority to issue subpoenas for the testimony of former employees or contractors as part of certain investigations. Under current law, a critical witness can avoid being interviewed by an Inspector General, and thus seriously impede an investigation, by simply resigning from the agency.

The bill contains important limitations on an Inspector General’s subpoena power in order to prevent abuse or damage to ongoing investigations.  Most prominently, an Inspector General cannot issue a subpoena if the Department of Justice concludes in a particular case that the taking of a deposition would interfere with civil or criminal litigation.

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What Judge Sullivan’s Opinion Means

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As I reported, Judge Emmet Sullivan has issued his ruling in the Dick Cheney interview FOIA, ruling partly for and partly against CREW. Sullivan has ordered DOJ to turn over the documents in question by October 9. He has directed DOJ to redact the information exempted in two earlier filings. So, as I suggested, we’ll get some new information. But we won’t learn how Cheney answered when asked whether Bush authorized him to leak classified information (which ended up including Valerie Wilson’s identity).

Here’s some more detail on what the ruling means.

A Rebuke to Obama’s Executive Power Grab

While Judge Sullivan accepted all of Ralph DiMaio and David Barron’s specific exemptions based on national security or deliberative grounds, he rejected the laughable DOJ argument that releasing Cheney’s interview materials would dissuade other high level White House officials from cooperating in investigations. That’s important, because it rejects a theory that would shield a great deal of information on White House criminality. Here’s Sullivan’s description of everything that would be shielded under such a theory.

In this sense, the category of proceedings that DOJ asks this Court to conclude are “reasonably anticipated” could encompass any law enforcement investigation during which law enforcement might wish to interview senior White House officials. Such proceedings might include an investigation into alleged criminal activity that physically took place in the White House; financial wrongdoing by a White House official that took place before or during his or her tenure in the executive branch; misconduct relating to official responsibilities, such as the breach of national security protocol that formed the basis of the Plame investigation; or even an event occurring outside the White House with only tangential connection to one or more White House officials. Thus conceived, it becomes clear that the scope of the proceedings described by DOJ is breathtakingly broad.

I’m guessing, but unless the parts of Cheney’s interview Sullivan has ordered to be released are a lot more scandalous than I think they are, I don’t think Obama’s DOJ will appeal this because it’s unlikely the Appeals Court will agree with them, and as we’ve seen, Obama’s Administration tends to go to great lengths to avoid letting Appeals Courts issue rulings in relatively unimportant cases that reign in executive power. 

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Judge Sullivan Rejects DOJ’s Expansive Claims to Protect Cheney Interview

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Judge Sullivan has rejected DOJ’s most expansive claims they used to try to protect Dick Cheney’s CIA Leak case interview.

I am reading this now for more detail, but the key graph is this one.

For the reasons stated above, the Court concludes that the agency has met its burden of demonstrating that certain limited information was appropriately withheld from disclosure to protect the well-recognized deliberative process and presidential communications privileges under Exemption 5, personal privacy under Exemptions 6 and 7(C), and national security interests under Exemptions 1 and 3. The Court cannot, however, permit the government to withhold the records in their entirety under Exemption 7(A) on the basis that disclosure might interfere with some unidentifiable and unspecified future law enforcement proceedings. The purpose of Exemption 7(A) is to protect specific ongoing or reasonably anticipated law enforcement proceedings. There are no such proceedings at issue here. Neither congressional intent nor well-established precedent supports the application of the exemption under the circumstances in this case, and the Court declines the government’s invitation to create a new, per se FOIA exemption for any and all law enforcement interviews involving high level White House officials. Accordingly, the Court GRANTS IN PART AND DENIES IN PART the parties’ cross-motions for summary judgment. An appropriate Order accompanies this
Memorandum Opinion.

I suspect this will still shield the key information about whether or not Bush authorized Cheney to leak classified information–up to and including Plame’s identity. 

I’ll confirm that after I’ve read more carefully.

Update: Here’s Sullivan’s order. He’s ordering DOJ to turn over a redacted document by October 9. It seems that Sullivan has permitted DOJ to shield everything listed under the CIA and DOJ declarations, which will shield whether or not Bush explicitly authorized Shooter and Scooter to go leaking classified information to shut Joe Wilson up.

Back to Breuer’s Claims about Future Investigations

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Lanny Breuer, he of the potential conflict, has argued that DOJ must keep Dick Cheney’s CIA Leak interview secret because, if it doesn’t, then senior White House officials may not cooperate with DOJ investigations in the future. 

Moreover, if interviews of senior-level White House officials become subject to routine public disclosure, the White House official may agree to talk only in response to a grand jury subpoena in order to obtain the confidentiality protection of Rule 6(e) of the Federal Rules of Criminal Procedure.

And if senior White House officials don’t cooperate with DOJ investigations, it may deprive investigators of information about the underlying White House policies tied to alleged crimes. 

In any such investigation, it will be important that White House officials be able to provide law enforcement officials with a full account of relevant events. Any such investigation may delve into or require a full accounting of internal White House deliberations or other government operations. Questions may cover, for example, conversations between the President or Vice President and senior advisors, the decision-making process on specific policy matters, advice given to the President or direction provided by the President, and internal discussions relating to White House interactions with other Executive Branch entities and with Congress.

Writing just one week after Breuer’s boss, Eric Holder, announced an investigation into torture that may ultimately consider White House deliberations (or at the very least, OVP machinations), I’m sympathetic to Breuer’s claimed concern with obtaining such high level cooperation.

But I think nothing undermines Breuer’s argument that DOJ’s efforts to keep Cheney’s CIA Leak case interview secret will enhance cooperation in the future more than Dick Cheney’s suggestions that he’s not going to cooperate with the torture investigation, regardless of what happens.

WALLACE: If the prosecutor asks to speak to you, will you speak to him? 

CHENEY: It will depend on the circumstances and what I think their activities are really involved in. I’ve been very outspoken in my views on this matter. I’ve been very forthright publicly in talking about my involvement in these policies. 

I’m very proud of what we did in terms of defending the nation for the last eight years successfully. And, you know, it won’t take a prosecutor to find out what I think. I’ve already expressed those views rather forthrightly.

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Cheney: No, I Won’t Cooperate with a Torture Prosecutor

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Far and away, here’s my favorite exchange in the Cheney interview:

WALLACE: If the prosecutor asks to speak to you, will you speak to him? 

CHENEY: It will depend on the circumstances and what I think their activities are really involved in. I’ve been very outspoken in my views on this matter. I’ve been very forthright publicly in talking about my involvement in these policies. 

I’m very proud of what we did in terms of defending the nation for the last eight years successfully. And, you know, it won’t take a prosecutor to find out what I think. I’ve already expressed those views rather forthrightly.

Wallace asks Cheney if he will speak with Durham, if asked. Cheney does not say yes. Instead, PapaDick immediately suggests he won’t cooperate with an investigation he deems as improper. 

He then takes a tack Karl Rove took in the US Attorney firings: claiming that his many public statements on the issue could substitute for an interview (or better yet, a grand jury appearance) about what role OVP had in establishing our torture regime. 

Cheney hides an obvious unwillingness to commit to cooperating with Durham behind his purported "forthrightness" about torture in the past.

Now, I’ll say more on this tomorrow in regards to DOJ’s ongoing claims that they need to suppress Cheney’s CIA Leak interview so high level White House officials will cooperate in the future. But for now, know that Cheney is already laying the groundwork to refuse to cooperate with Durham based on some claim that the investigation is improper.

BREAKING! Karl Rove Lectures on “Hitting at US Security” During Time of War

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 You think maybe someone should tell Republicans that the guy who outed and then called Valerie Plame "Fair Game" is not their most credible person to sow pout-rage over the appointment of a special prosecutor to investigate torture?

Lanny Breuer’s (?) Conflict

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Several weeks ago, I asked whether Lanny Breuer had a conflict in CREW’s FOIA suit to get Cheney’s interview in the CIA Leak Case. As I reported, Breuer represented John Kiriakou, who back in 2003 responded to Cheney’s request for information on Joe Wilson’s trip during the week when Cheney learned (from the CIA, Libby testified) of Plame’s identity. Given that two of the things DOJ is trying to protect by refusing CREW’s FOIA pertain to Cheney’s discussions with CIA, it seemed wholly inappropriate, if not an ethical violation, for Breuer to represent DOJ in its efforts to withhold Cheney’s interview.

After some persistence, I got DOJ to respond to my questions about the issue.

The two year window

Just about the only thing the Criminal Division spokesperson could tell me is that Breuer’s submission of an affidavit was not a conflict because it was submitted more than two years after his relationship with Kiriakou ended (the federal guidelines now prohibit lawyers from involvement in an issue pertaining a client they have represented in the last two years).

Before I get into what else DOJ did not tell me (or Covington & Burling, after equally persistent efforts), let’s note the timing.

As I note in a post subtitled "more than 2 years," the DOJ was making this argument almost exactly two years after Bush commuted Libby’s sentence. In fact, Breuer’s declaration was signed on the last day of the two year anniversary of Libby’s commutation (Libby’s sentence was commuted on July 2, 2007, and Breuer signed the declaration on July 1, 2009, just meeting a deadline set by Judge Emmet Sullivan). So the timing is all very close to the "end" of the Libby matter (the trial, obviously, ended much earlier, Libby dropped his appeal later). So, two years, but not much more than two years.

That’s all pretty neat timing, particularly since DOJ would not tell me the precise dates of Breuer’s representation of Kiriakou. They told me to talk to Covington & Burling, which I had already done and have done since. Covington & Burling’s spokesperson claimed–utterly implausibly–that she "hasn’t been able to find anything on that yet."

Breuer’s suitability to submit this declaration

I asked DOJ two more general questions: Whether Breuer had told the people in the Civil Division on behalf of whom he submitted this declaration that he had represented someone involved in the CIA Leak Case. Read more →

The Secrets Novak Brings to the Grave

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I tried to say nothing when news of Novak’s announcement came. I had nothing good to say, though my own father died of brain cancer and I empathize with Novak and his family for that–it is a horrible way to die, particularly for someone whose identity was tied with his intellect.

But I couldn’t resist a snark on twitter: 

Cue Woodward claiming he got deathbed confession about what really happened during the 7/9/03 conversation Novak & Libby hid.

Perhaps Woodward will–as he did with Reagan’s CIA Director and Iran-Contra co-conspirator, Bill Casey, who also died of brain cancer–make dubious claims about deathbed conversations with Novak.

But the fact is that Novak died with most of his role in the Plame outing still shrouded in secrecy. That’s partly true because of the significant changes in Novak’s story over time. All of the following Novak claims changed as the stage of the investigation suited:

  • Whether he understood the leak was intended to seed a story or it was an offhand remark
  • From whom he learned the name "Plame," changing from "they" (his sources, then in the plural, not "two"), to possibly Who’s Who, to definitely Who’s Who
  • From whom he learned that Valerie Wilson worked in counterproliferation and whether that person made it clear this meant she was covert
  • His use of the word "operative" and whether he really confused Valerie Wilson with someone running a congressional campaign in Wyoming (really! he claimed to have–and other journalists bought it!) 
  • From whom he learned that Joe Wilson had learned that an "Iraqi delegation had tried to establish commercial contacts"–a detail that was in the CIA report on Wilson’s trip (which remained classified until after Novak spoke to his claimed sources for the story), though Novak used the wrong date for it
  • When he spoke to Rove–which changed from July 9 to maybe July 8 or 9

On all those details, Novak’s story changed repeatedly. And then there’s one I’ve never heard anyone ask: from whom Novak got the talking point, "The White House, the State Department and the Pentagon, and not just Vice President Cheney, asked the CIA to look into it," a talking point that shows up in Libby’s note from Cheney on Plame’s identity and may appear in Judy Miller’s notes.

Yet today, most journalists assume Novak’s final answers–the ones that eventually shielded Rove and Libby and Cheney from most consequences–were truthful, and believe they know what happened.

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The Crazy Man Above the Garage

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cheney-wheelchair.thumbnail.pngSorry for being so late on this, but I wanted to come back to this bizarre Barton Gellman article on Cheney. Amidst news including 1) Cheney took notes, exactly none of which were introduced at trial and, 2) Cheney apologists like John Hannah are out giving interviews, Gellman provides the following weird two paragraphs, which provide the great drama of the story.

The depths of Cheney’s distress about another close friend, his former chief of staff and alter ego I. Lewis "Scooter" Libby, have only recently become clear. Bush refused a pardon after Libby’s felony convictions in 2007 for perjury and obstruction of an investigation of the leak of a clandestine CIA officer’s identity. Cheney tried mightily to prevent Libby’s fall, scrawling in a note made public at trial that he would not let anyone "sacrifice the guy that was asked to stick his neck in the meat grinder." Cheney never explained the allusion, but grand jury transcripts — and independent counsel Patrick J. Fitzgerald — suggested that Libby’s false statements aimed above all to protect the vice president.

Last month, an account in Time magazine, based on close access to Bush’s personal lawyer and White House counsel, described Cheney’s desperate end-of-term efforts to change Bush’s mind about a pardon. Cheney, who has spent a professional lifetime ignoring unflattering stories, issued a quietly furious reply. In the most explicit terms, he accused Bush of abandoning "an innocent man" who had served the president with honor and then become the "victim of a severe miscarriage of justice." Cheney now says privately that his memoir, expected to be published in spring 2011, will describe their heated arguments in full.

 This bit–which is what stuck in my craw–deserves some really close unpacking.

Cheney tried mightily to prevent Libby’s fall, scrawling in a note made public at trial that he would not let anyone "sacrifice the guy that was asked to stick his neck in the meat grinder." Cheney never explained the allusion, but grand jury transcripts — and independent counsel Patrick J. Fitzgerald — suggested that Libby’s false statements aimed above all to protect the vice president. 

Now, Gellman is ostensibly talking about Cheney’s efforts to get Bush to pardon Libby, actions that started in 2007 (and which, at the earliest, he might have first contemplated in 2005, when Judy Miller testified to the grand jury). Read more →

Does Lanny Breuer Have a Conflict in the Cheney Interview FOIA Case?

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Assistant Attorney General Lanny Breuer’s background has been a key topic of discussion in CREW’s lawsuit to force DOJ to release Dick Cheney’s interview with Patrick Fitzgerald. The problem is, DOJ forgot to reveal that Breuer had represented one of the people involved with issues directly related to Cheney’s interview.

DOJ needed an expert on investigations of White House officials–so they got Breuer

During a hearing on whether or not DOJ should release Dick Cheney’s interview with Patrick Fitzgerald back in June, Judge Emmet Sullivan suggested that DOJ ought to have someone with actual experience in investigations of high level White House officials make their argument that releasing Cheney’s interview would make such investigations more difficult in the future.

MR. SMITH: In this case I don’t see — the law enforcement issue here is very unique and it’s very different than I think in Sussman and in most other cases. It’s an interest, it’s basically a chilling interest that if the Vice-President’s interview is released, that could have a chilling effect on future senior leadership.

THE COURT: Says who?

MR. SMITH: Says the Attorney General Mukasy [sic], that was his conclusion.

THE COURT: He didn’t file a declaration. Mr. Bradbury filed a declaration. He didn’t base it upon any experience, he didn’t base it upon anything. He didn’t articulate the bases for his declaration. Other than he was designated to follow declaration. So it wasn’t Mr. Mukasy [sic] who filed the declaration which arguably could have carried great weight. If the chief law enforcement officer says based on my experience and experience of others in law enforcement, it could have but that’s not the case here. Bradbury was a political appointee. I don’t know what his experience was. He was appointed to, maybe he was appointed to file this declaration. I don’t know what else he did. He’s no longer there at OLC. And essentially the government in footnote says I should defer to his declaration.

This is not a deferential review. I want to be clear I’m not suggesting that the Attorney General should sign a declaration. I’m not ordering, certainly not ordering him to do anything, but I’m just saying in response to what you just said arguably it could have carried greater weight for such a declaration to come from a law enforcement official based upon his or her experiences with respect to this chilling effect. Otherwise, it’s just an assumption this man makes based upon nothing he can point to. [my emphasis]

So rather than have the discredited Steven Bradbury submit this declaration, DOJ got Breuer to do so. After Breuer submitted a statement arguing that release of Cheney’s interview will present some new disincentive for high level White House officials in the future to cooperate that thirty years of routine release don’t already present, CREW questioned what basis Breuer had to make that claim.

The only experience plaintiff is aware of Mr. Breuer having with law enforcement investigations involving the White House is his tenure as special counsel to President Clinton during the Independent Counsel’s “Whitewater” investigation. Read more →