Archive for category: emptywheel

I haven’t seen any bears. I found a few beers, though.

Here’s a quick hits list of things I may return to on Wednesday, when I resume normal blogging.

• The Pats beat the Colts … ugly.
• Shane Harris reveals that the rationale for asking Qwest to break the law before 9/11 was hackers. Hackers, terrorists … same difference I guess. Though given the Administration’s troubled history with cyber-security czars, I’d like to consider the implications that their early excuses for violating our privacy pertain to cyber-security. John Conyers has finally asked for more details on the Qwest allegations.
• Our consumer product safety czar has been doing some swank traveling, courtesy of those we are paying her to protect us from.
• Orange County’s Republican Sheriff has been indicted. He has featured in some stories we’ve tracked earlier in this blog. And one wonders whether he was protected in the past by Bush’s USAs?
• The judge in the AIPAC case has approved the defense scheme to call Condi et al to testify about how they leak information through lobbyists. I’m actually more optimistic than most that something might come of this. Not to mention, I’m rather interested by the complete list of those who have been Read more →

Here’s the letter from Ashcroft, Comey, Goldsmith, and Philbin that came up so often in today’s SJC hearing. The key graf is this one, in which four top lawyers say, "to hell with the Courts, we’ve got two branches plus Cheney, who needs a third?"

Finally, we note that we are familiar with the legal analysis conducted within the Executive Branch of intelligence activities allegedly connected to the lawsuits against telecommunications carriers and with debates within the Executive Branch about that analysis. Given our experiences, we can certainly understand that reasonable people may question and wish to probe the legal bases for such intelligence activities. We firmly believe, however, that the best place for that examination and debate is not in a public lawsuit against private companies that were asked to assist their Nation, but within the Executive branch, where intelligence-gathering decisions are made, and in joint efforts between the Executive Branch·and Congress to ensure appropriate oversight.

The paragraph pretty much says it all. It comes as close as they ever do to saying, "you’ve got to listen to use because we’re the four people who objected to the illegalities of this program in the first place." Elsewhere, they don’t acknowledge why Read more →

In an email to Laura Rozen and Jeff Lomonaco this morning, I predicted Henry Waxman would be mightily interested in the news that the Blackwater guards involved in the September 16 shooting had been granted immunity.

In any case, I suspect Condi will regret that she didn’t mention thiswhen visiting Congress last week. I assume we’ll have a letter fromWaxman at about 1:00 PM today.

Sure enough, at 1:23, the Committee sent out the letter.

Apparently, Waxman wrote it before CNN started reporting yet more anonymous sources saying the whole thing is a big joke, that the guards didn’t get immunity. Or rather, they try to dodge the issue by pretending the claim pertained to blanket immunity (which it never did).

No blanket immunity deal was offered to Blackwater guards for theirstatements regarding a shootout in Iraq last month that left 17 Iraqicivilians dead, two senior State Department officials told CNN Tuesday.

However, some kind of limited immunity was apparently offered by StateDepartment investigators when they questioned the Blackwater personnelapparently involved in the shootings, the officials said.

In any case, Waxman (as you’d expect) asks the money question:

5. When did you, Deputy Secretary of State John Negroponte, former Assistant Secretary of
State Richard Griffin, Ambassador David Read more →

Kagro X has a post focusing, again, on Michael Mukasey’s evasions about the Constitution. Kagro focuses not on Mukasey’s confusion about whether water-boarding is torture, but whether the President can ignore existing laws.

Any president — and I mean any president — ought to beable to depend on a certain amount of deference from his or herAttorney General, of course. This ordinarily goes without saying, butin this case must be said because it sets up an irreconcilable paradox.Is it even possible to serve an administration that regularly assertsconstitutional interpretations like the one Judge Mukasey did andprotect the fundamental rule of law which underlies our entireconstitutional system of government? How could it be so?

[snip]

An "administration" that sends distinguished federal judges toCapitol Hill and puts them in a position requiring them to hedge onanswers to such basic questions as must a president obey federalstatutes is operating so far outside the bounds of normalcy already,that it hardly seems worth anyone’s time to pretend that an AttorneyGeneral is necessary to the functioning of the government at all.

I’d like to reinforce Kagro’s point by pointing to the consistency, across time and nominees, of the Administration’s AG candidates on this Constitutional question. Here’s the complete context of the Mukasey comment that Kagro is focused on.

LEAHY: And,lastly, where Congress has clearly legislated in an area, as we’ve donein the area of surveillance with the FISA law, something we’ve amendedrepeatedly at the request of various administrations, if somebody — ifit’s been legislated and stated very clearly what must be done, if youoperate outside of that, whether it’s with a presidential authorizationor anything else, wouldn’t that be illegal? 

MUKASEY: Thatwould have to depend on whether what goes outside the statutenonetheless lies within the authority of the president to defend thecountry.

LEAHY: Where does the president get that authority? Ithinking of the Jackson opinion and others. Where does he get theauthority if it’s clearly enunciated what he can do, law that hesigned, very clearly enunciated? I mean, the president say, Thisauthority, I’m going to order the FBI to go in and raid 25 housesbecause somebody told me they think someone’s there. We’re not going towait for courts, we’re not going to do anything else. There’s nourgency, but we’d just kind of like to do that.

MUKASEY: We’d kind of like to do that is not any kind of legitimate assertion of authority.

AndI recognize that you’ve posited the case that way for a reason. But thestatute, regardless of its clarity, can’t change the Constitution.That’s been true since the Prize cases. And it was true before that.

LEAHY:Can a president authorize illegal conduct? Can the president — can apresident put somebody above the law by authorizing illegal conduct?

MUKASEY:The only way for me to respond to that in the abstract is to say thatif by illegal you mean contrary to a statute, but within the authorityof the president to defend the country, the president is not puttingsomebody above the law; the president is putting somebody within thelaw.

Can the president put somebody above the law? No. The president doesn’t stand above the law.

But the law emphatically includes the Constitution. It starts with the Constitution. [my emphasis]

Leahy is concerned about whether Bush can just decide to operate outside of FISA–or any other law that explicitly limits the behavior of the Executive Branch. But he’s also concerned about whether the Administration can offer immunity for someone who follows the President’s orders in operating outside of statute.

This exchange looks remarkably similar to one between Pat Leahy and Alberto Gonzales–back before we knew the extent of Gonzales’ craven willingness to put law aside for politics. The topic is different–Leahy is asking about torture, not wiretapping. But the response is almost the same.