Robert Mueller Visits House Judiciary Committee

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On CSPAN3 and via the Committee website (though the latter didn’t work for me).

The two big issues will be the new guidelines for FBI investigations–which may allow racial profile–as well as the laughable case the FBI made that Bruce Ivins was the sole killer in the anthrax attack.

In an opening stated, Jerrold Nadler revealed that the FBI would not give staffers on HJC the new guidelines–they were able to see the guidelines, but not keep a copy. Nadler made a back-handed suggestion that the FBI had done so to prevent Congress from providing influence on those guidelines.

Mueller says the new guidelines are in the process of implementation and says they have [with emphasis] been briefed to HJC’s staff. 

I guess input would be too much to ask. 

Mueller on Ivins: "Special concern for the victims of the mailings … provide special information … included information about science developed for the investigation…. developed for the investigation … we have initiated discussions with National Academy of Sciences to undertake a review of the scientific approach … have provided as much information as we can."

Conyers starts out impatient: This has been months we’ve been trying to get a response to the seven questions I put to you."

Mueller: I’ve always made myself available … when it comes to QFRs, it goes through review and there is some delay. We worked to get to it back to you as soon as we could yesterday. We do our level best to get you responses as soon as we can. I will also sit down and discuss issues that may be on your mind.

Conyers talking about a raid conducted by 200 officers to find out who paid for the Cuyahoga County Dem Chair’s driveway paving. Mueller will get back to Conyers.

Nadler: Congratulations for your role in standing up against abuse of power [referring to Gellman’s exceprts of Angler]. In understanding bottom line of investigation and how accurate we can take it to be, it’s important to understand murder weapons: contained silica. Some observers say it may have been sophisticated additive, requires special expertise, former boss of Ivins says he did not have. Briefing last month, govt scientists say anthrax contained no additives. Scientists say a percentage higher than 1/2 of 1 percent has never been found naturally. What was the percentage of weight of silicon?

Mueller: I’d have to get back to you.

Nadler: You can tell us what Read more →

Enhanced Surveillance Techniques and The Police State

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Two things have caught my eye this morning. The first is a report out of Denver about a group of four that have been arrested in a supposed plot to kill Obama. From the AFP:

US authorities were Tuesday investigating an alleged plot to kill Barack Obama as he claims the Democratic nomination later this week in Denver, after four people were arrested with a haul of weapons.
…
The plot was unraveled Sunday after a police officer spotted a truck driving erratically in a suburb of Denver, Colorado where the four-day convention is being held. "The sergeant discovered inside his truck a bullet proof vest, two rifles, ammunition, walkie talkies and drugs," Aurora police detective Marcus Dudley told reporters.

"Additional information was then developed which led to the arrest of others." The suspects were being held on drugs and weapons charges while the alleged plot was being investigated by the US Secret Service which protects the US president and White House candidates and the FBI and the joint terrorism task force.

One of the men arrested had to be taken to hospital after he jumped out of a sixth floor hotel room window in an attempt to flee police, Dudley said.

A fortuitous traffic stop for "erratic driving" just flat out screams "pretext stop". I will be shocked beyond belief if they had not been onto these guys through other means prior to the traffic stop. It is very hard to fathom that this all came out of a simple traffic stop. What exactly is "erratic driving" anyway? Speeding? Weaving? A bad turn? Red light violation? How did they come to magically search the vehicle from a mere traffic ticket stop? Are the Aurora cops doing a full felony inventory vehicle search on every traffic ticket they issue? How did they get to a hotel search where a guy is jumping out of a window so quickly? Naw, there is something else at play here, you can just smell it.

The next incident involves the scene in Minneapolis for the Republican National Convention. Hey, never let it be said that I am not fair and balanced. From Laura Flanders on the FDL front page:

"Our colleagues at the Glass Bead Collective, a group of video artists and documentarians, are in the Twin Cities to prepare for the Republican National Convention. They were Read more →

We Have Met The WMD Terrorists, And They Are US

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Well, here comes a new entry in the Captain Renault "I am shocked, shocked to hear of this" file. It turns out that Jose Rodriquez and the CIA are not the only ones that Cheney and Bush have ordered to destroy critical material evidence the subject of investigations into international terror cases. Nope; of course not. They have put their grubby little thumbs to the screws on the Swiss as well. From the startling new reporting in today’s New York Times:

The president of Switzerland stepped to a podium in Bern last May and read a statement confirming rumors that had swirled through the capital for months. The government, he acknowledged, had indeed destroyed a huge trove of computer files and other material documenting the business dealings of a family of Swiss engineers suspected of helping smuggle nuclear technology to Libya and Iran.

The files were of particular interest not only to Swiss prosecutors but to international atomic inspectors working to unwind the activities of Abdul Qadeer Khan, the Pakistani bomb pioneer-turned-nuclear black marketeer. The Swiss engineers, Friedrich Tinner and his two sons, were accused of having deep associations with Dr. Khan, acting as middlemen in his dealings with rogue nations seeking nuclear equipment and expertise.
…
The United States had urged that the files be destroyed, according to interviews with five current and former Bush administration officials. The purpose, the officials said, was less to thwart terrorists than to hide evidence of a clandestine relationship between the Tinners and the C.I.A.
…
Yet even as American officials describe the relationship as a major intelligence coup, compromises were made. Officials say the C.I.A. feared that a trial would not just reveal the Tinners’ relationship with the United States — and perhaps raise questions about American dealings with atomic smugglers — but would also imperil efforts to recruit new spies at a time of grave concern over Iran’s nuclear program.

So the prosecution and trial of the Tinner group, and related avenues into the depths of the spiderweb of influence and dealings of AQ Khan is lost. Good thing that our good allies against terror, the Pakistanis, have their thumbs on AQ Khan and are getting to the bottom of how Khan’s "rogue" network was able to operate. Eh, not so much. Now, we know that in the Bush Administration, all policy and interaction with Pakistan begins and ends with Dick Cheney. Kind of Read more →

Malevolence In Mississippi

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Ill winds have been blowing through the Mississippi political and legal scene for a long time now. There is Trent Lott and his son-in-law Dickie Scruggs. A real soap opera there. Scruggs was a legal legend and one of the biggest, if not the biggest, Democratic donors in the state. Now he has pled guilty and Trent Lott has been implicated in the mess. Then there is the highly disturbing tale of Judge Wes Teel that Scott Horton has been doggedly following. Oh, yes, there was also the political persecution of attorney Paul Minor who, wouldn’t you know, was the other biggest Democratic donor in Mississippi. And, of course, there is the by now famous case of former Alabama Governor Don Siegelman; which, although an Alabama case, has ties to Mississippi. Man, the Delta sure ain’t a safe place for Democratic lawyers, judges and politicians; guess I best stick to the desert here.

The common thread running through all these prosecutions is the selective targeting of Democrats by the hand of the politicized Bush Department of Justice. From Noel Hillman, the former head of the Public Integrity Section at DOJ Main in Washington, to Leura Canary, to Dunn Lampton, to Alice Martin. All Bush appointed prosecutorial political attack dogs. All tied to Karl Rove. By the way, if you are not familiar with all these stories, do click and read the links, you will find fantastic tales.

Oops, did I forget to mention the attempted take down of Mississippi Supreme Court Judge Oliver Diaz in the same situation that involved Paul Minor? Well, Judge Diaz and the Mississippi Malevolence is back in the news today. Turns out that when you are a centrist or progressive Supreme Court Judge in Mississippi (Diaz, by the way, was originally a Republican, but he was fair minded, and thus shifted), if the Right Wing hit squads can’t persecute you into prison, they simply prevent you from discharging your judicial duties and exercising your judicial discretion.

A jaw dropping report out today in the Northeast Mississippi Daily Journal:

Something unusual happened Thursday at the Mississippi Supreme Court.

It may be the first time a majority of the justices voted to prohibit a colleague from publishing a dissent in a case.

In other words, Presiding Justice Oliver Diaz of Ocean Springs disagreed with a court decision and wanted to write about it. His fellow judges said, no, he couldn’t and they apparently stopped the court clerk from filing Diaz’s statement into the record.

Diaz’s document Read more →

FISA Redux Again: The Slippery Slope Leads Down A Rabbit Hole

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Five days ago, in the post "FISA Redux: The Slippery Slope Becomes A Mine Shaft", we discussed the new set of domestic spying protocols that the Bush Administration is determined to entrench into law and practice before leaving office. The measures would:

…make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years. … would apply to any of the nation’s 18,000 state and local police agencies.

Criminal intelligence data starts with sources as basic as public records and the Internet, but also includes law enforcement databases, confidential and undercover sources, and active surveillance.

…also would allow criminal intelligence assessments to be shared outside designated channels … It turns police officers into spies on behalf of the federal government.

As if that wasn’t enough fun for one post, we also learned that Attorney General Mukasey

…would release new guidelines within weeks to streamline and unify FBI investigations of criminal law enforcement matters and national security threats.

Well, that didn’t take long. Guess what; they’re here. It is amazing how when it comes to protecting the rights and privacy of American citizens, the health and stability of the environment, the education of our children, and the care and compassion to military veterans, the Bush Administration produces nothing but bad faith delay, obstruction and, often, outright refusal to act. They are imminently capable, however, of moving with breathtaking alacrity when they sense the opportunity to seize unheard of domestic police state powers that undercut the Constitution, solely by Administrative fiat, and that fundamentally alter the way the American public exists in relation to it’s government in terms of their privacy and, in an existential sense, if not physical, their right to liberty and the pursuit of happiness.

Here, courtesy of the New York Times, is the new joy the Attorney General is announcing to "protect yer freedums":

A Justice Department plan would loosen restrictions on the Federal Bureau of Investigation to allow agents to open a national security or criminal investigation against someone without any clear basis for suspicion, Democratic lawmakers briefed on the details said Wednesday.
…
The senators said the new guidelines would allow the F.B.I. to open an investigation of an American, conduct surveillance, pry into private records and take other investigative steps “without any basis for suspicion.” The plan “might permit an innocent American Read more →

The Gitmo Shrinks Find Their Super Ego And Cowboy Up

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As several of you have noted, there has been a rather significant event at the Gitmo Show Trials. Lt. Colonel Diane M. Zierhoffer, a US Army psychologist who ordered the illegal torture of a juvenile, Mohammad Jawad, invoked her right not to incriminate herself and refused to testify in the case of Mohammad Jawad. She took the Fifth.

Her testimony was sought by defense attorney Maj. David Frakt in a hearing on his motion to dismiss charges based upon government misconduct in using prolonged isolation, sleep deprivation, and other torture techniques against his client in an attempt to make him more pliable in interrogations. Following a month-long isolation, apparently recommended by the military psychologist, Mr. Jawad – who entered Guantánamo as a teenager — attempted suicide.

The psychologist’s testimony would have marked the first time that a member of the secretive Behavioral Science Consultation Team (known as BSCT or “biscuits”) had been called to testify in a detainee hearing. The BSCT program has been highly controversial among psychologists and other health professionals. The psychologist invoked her rights under Article 31 of the Uniform Code of Military Justice, the military equivalent of the 5th amendment right against self-incrimination/right to remain silent.

“The fact that the BSCT Psychologist now apparently recognizes that her conduct was criminal in nature is very significant,” said Maj. Frakt. “We have alleged, based on classified government records that the BSCT psychologist’s recommendation led directly to the illegal abuse and inhumane treatment of Mohammad Jawad. This invocation of the right to remain silent seems to confirm that.”

“The evidence in this case confirms our worst fears, that military psychologists are working to break down detainee’s psyches,” said Dr. Stephen Soldz, an expert psychologist who had been called by Maj. Frakt to testify that the BSCT psychologist had violated the professional credo of “Do no harm.”

Zierhoffer’s, and her fellow colleagues in the BSCT biscuit brigade, apparently have an operational definition of "Do no harm" with which I am not familiar. It would appear that "Do no harm" is fully operational as to her own self interest, but not to the humane interests of the powerless vulnerable souls she, and they, are ethically and morally obligated to protect.

The relevant professional association, the American Psychological Association (APA), has been having a fairly interesting internal discussion on how stridently the group will disapprove and sanction the gross ethical failings of the biscuit Read more →

The Bates Decision: A Question Unasked And Unanswered

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First off, a mea culpa. I was one of the first and strongest saying that Judge Bates would opt to just punt the contempt controversy back into Congress’s lap. I didn’t necessarily believe that he would hand a victory to the Bushies, but I did think he would, for the most part, take a pass by claiming it was not really a question for the courts and that Congress had alternative remedies available, that had not yet been exhausted, thus the issue not appropriate for consideration at this time (In fact, Bates noted on page 70 of the opinion that he would have been on solid ground doing just that).

I was wrong.

The Bush/Cheney unitary executive cult got their rear ends handed to them. Again. How shocking. Or, you know, not. They are basically batting an 0-fer since Cheney took Scalia on the robber baron aristocrat jet set hunting trip and managed to get a decision allowing him to keep the nation’s energy program secret from the nation.

But now, predictably, the dark hats of Miers, Bolten and Bushco want to delay the effect of Judge Bates’ ruling until the next of never on the appeal. However, as MadDog (good to have the dog back I might add) points out, the white hats of Conyers’ House Judiciary Committee have a response to that.

Plaintiff Committee on the Judiciary of the U.S. House of Representatives (“Committee”) opposes Defendants’ motion for a stay pending appeal on the following grounds:

(1) Ms. Miers’s claim of absolute immunity has no likelihood of success on appeal because it is baseless and contrary to Supreme Court precedent, and was thoroughly and irrefutably rejected by the Court;

(2) the Court’s non-final order of July 31, 2008 (“Order”) is not appealable, and thus a stay needlessly would cause further harmful delay;

(3) Defendants suffer no harm, let alone irreparable harm, from (a) appearing at a congressional hearing or (b) producing non-privileged documents and descriptions of the documents they seek to withhold on the basis of executive privilege;

(4) the Committee will suffer considerable harm as a result of the Executive Branch’s delaying tactics, which virtually assure that the Committee’s investigation into the forced resignations in mid-Administration of nine United States Attorneys in 2006 (“Investigation”) will not be completed until after the 110th Congress has concluded and the current Administration has left office in January 2009; and

(5) a stay would undermine the public interest by hindering the Congress from developing, if necessary, any relevant legislative remedies designed to improve the effective and fair functioning of the Nation’s criminal justice system.

This is a nicely done, pointed response to the transparently disingenuous delay tactics of the Bush Administration. In going through the decision and the latest arguments on the shape of the appellate process by the parties, I realize there is another facet to this equation that has been bugging me. Despite how good Bates’ decision is, why did it not address the refusal by the DOJ to prosecute a duly constituted, and valid on it’s face, contempt citation referred by the United States Congress?

Bates’ decision has drawn nearly uniform praise from across the board (with the exception, of course, of the parties negatively affected by it and their sycophants) including on this blog. Martin Lederman is indicative:

It is an extraordinarily thorough, scholarly and thoughtful opinion — surely one of the best opinions ever written on questions relating to executive/congressional disputes. It is also, IMHO, correct on the merits, of virtually all of the many legal questions it discusses. It is important not only for its holding on the immunity question, but also for its holding and analysis on congressional standing, and for its unequivocal rejection (pp. 39-41) of one of the Administration’s principal arguments with respect to all of these privilege disputes in the U.S. Attorney matter…

I find it shocking to be writing these words, but I pretty much agree. However, there is one glaring issue that is not addressed in the decision that is critical to this greater discussion of power and privilege, and I predict that will prove unfortunate in the future. To wit, is it appropriate for the US Attorney, in this case Jeffrey Taylor of the DC District, upon specific command of the Attorney General, in this case the ever obstructing Mike Mukasey, to refuse to prosecute a duly constituted and valid on it’s face contempt citation referred by the United States Congress?

A whole lot of people, both expert and non, have already been asking "what happens next"? What happens when Miers, Bolten, Rove et al. either blow off their repeat summons, or give unprincipled refusals to answer proper examination by the Committee? Without a prior resolution of the propriety of the Mukasey/Taylor refusal to prosecute the properly referred contempt citation, Read more →

FISA Redux: The Slippery Slope Becomes A Mine Shaft

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(photo h/t Pointed Words)

Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.

With the utterance of those words and placement of quill to paper, by Founding Father Benjamin Franklin, so began the half life decay of his wisdom. The surveillance state we occupy today is the festering, mature result of the acts of cloying politicians and barons of power to serve their own political and financial goals by declaring themselves the protectors of law and order. The daddy state. They spread fear of isolated, and ultimately inconsequential, yet publically hyped acts of crime and terror in order to supplicate the nation at large.

It has been a singularly effective scheme.

So it began with characterization of hideous and substantive Fourth Amendment violations of fundamental search and seizure law as "mere technicalities". Soon judges and prosecutors, being elected or politically appointed officials themselves, started shading their duties, principles and morals under the law to find creative ways around Constitutional protections in order to avoid results that would be unpopular. Then the officials ran again for reelection proudly proclaiming how they protected the "law and order for the citizens" by "clamping down on criminals" and "elimianting the criminal’s use of technicalities". The more they talked the talk, the more they walked the walk. Down the slippery slope.

And that is where we find ourselves today. From Spencer S. Hsu and Carrie Johnson in today’s Washington Post:

The Justice Department has proposed a new domestic spying measure that would make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years.

The proposed changes would revise the federal government’s rules for police intelligence-gathering for the first time since 1993 and would apply to any of the nation’s 18,000 state and local police agencies that receive roughly $1.6 billion each year in federal grants.

Quietly unveiled late last month, the proposal is part of a flurry of domestic intelligence changes issued and planned by the Bush administration in its waning months. They include a recent executive order that guides the reorganization of federal spy agencies and a pending Justice Department overhaul of FBI procedures for gathering intelligence and investigating terrorism cases within U.S. borders. (Emphasis added)

This is sick. Quite frankly, the contours of this have been quite obvious, and even partially stated, as being on the way for a while now if you were paying attention. This is why I was foaming at the mouth when the Protect America Act (PAA) was passed a year ago, and especially when Congress voted "just to extend (renew) it for a period". Read more →

John Yoo: “It Sucks to Have Judges Protecting the Constitution”

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John Yoo complains that the Supreme Court’s strong rulings last term are an "unprecedented" grab for power.

Slowly but surely, the justices have expanded their power to make many of our society’s fundamental political and moral decisions. Only the court now decides whether schools or the government can resort to race-based preferences when it admits students or doles out contracts. States and the federal government must live by the court’s dictates on the regulation of abortion. Whether religious groups can help educate inner-city children or provide welfare services is up to the justices. Use of the death penalty, indeed whether each individual execution will go forward, is ultimately controlled by our unelected judges.

[snip]

Some might prefer that judges still make these decisions because they hear cases in a formal, rational setting and issue long opinions explaining their reasons. Nonetheless, the courts are far from ideal as policymakers: They have great difficulty trading off competing values in these sensitive areas; they are insulated from the political process; and their only access to information comes to them through the narrow lens of a lawsuit.

When the federal judiciary decides national policy on these issues, under the guise of interpreting the Constitution, it prevents the people from making the decisions for themselves.

Not surprisingly, Yoo’s argument gets particularly laughable when he complains about Boumediene.

The decisions announced this summer only reaffirm the court’s power. In Boumediene v. Bush, five justices – the wandering Justice Anthony Kennedy joined by a liberal bloc of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer – took the unprecedented step of striking down a wartime law enacted by Congress and the president.

U.S. history has never seen what the Boumediene majority now demands: Alien enemy prisoners at war with U.S. forces and detained outside the United States have the same right as criminal suspects to challenge their capture in civilian courts. Hundreds of years of practice, and the decided views of the political branches, to which the Constitution gives all of the powers over war, were tossed overboard.

After all, this was a guy who routinely ignored laws passed by Congress–including laws passed during the Vietnam war–to rationalize things like domestic surveillance and torture. But he has found one law–the Military Commissions Act–that he believes should be protected above all else.

Regardless of whether it violates the Constitution or not.

Read more →

Kill Game: The Path Of Destruction From The Amerithrax Investigation

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"Have you no sense of decency, … at long last? Have you left no sense of decency?" These prophetic words were spoken on June 9, 1954 by Joseph Welch, attorney for the United States Army, at the nadir of the shameful McCarthy hearings. It was a time of scurrilous persecution of all numbers and types of fellow humans, based mostly on sheer rumor, innuendo and manufactured evidence. The acts of a United States Government drenched in it’s own fears, drunk of it’s own hubris and looking for political scapegoats.

The result was an everlasting shame carried by a generation of Americans. To this day, the methods and tactics of the red baiting McCarthy investigators, and the hell they wrought on the ostracized and disavantaged targets, not to mention the devastation to their families, is taught to our children as a seminal lesson of the dark, malignant growth that can consume the American ethos when fear, ambition, unitary power and political malevolence intersect unchecked and unbalanced in the halls of power in Washington DC. It is a tragic intersection that seeks a target of convenience and finds it.

And so we advance fifty years to find our dark history repeating itself in the Amerithrax case. Once again we find a unified and unchecked power in the government fueled by, and fueling, fear and trolling for a target of convenience to scapegoat. This is now incontrovertible.

Sunday’s New York Times has an extended article, by William Broad and Scott Shane, on the hell that our Government hath wrought upon it’s citizenry in the Amerithrax investigation. It is chilling.

But along the way, scores of [individuals] — terrorists, foreigners, academic researchers, biowarfare specialists and an elite group of Army scientists working behind high fences and barbed wire — drew the interest of the investigators. For some of them the cost was high: lost jobs, canceled visas, broken marriages, frayed friendships.
…
The bureau began looking at biodefense insiders like Mr. Mikesell, an anthrax specialist who had worked in the 1980s and 1990s with Dr. Ivins at the Army Medical Research Institute of Infectious Diseases at Fort Detrick, in Frederick. He had then joined Battelle, a military contractor in Columbus, Ohio, that became deeply involved in secret federal research on biological weapons.

In 2002, Mr. Mikesell came under F.B.I. scrutiny, officials familiar with the case said. He began drinking heavily — a fifth of hard liquor a day toward the end, a family member said.

“It was a shock that all of a sudden he’s a raging alcoholic,” recalled the relative, who spoke on the condition of anonymity because of family sensitivities.

By late October 2002, Mr. Mikesell, 54, was dead, his short obituary in The Columbus Dispatch making no mention of his work with anthrax or the investigation.
…
Another casualty was Kenneth M. Berry, an emergency room physician with a strong interest in bioterrorism threats. In August 2004, agents raided his colonial-style home and his former apartment in Wellsville, a village in western New York, as well as his parents’ beach house on the Jersey Shore.

In scenes replayed for days on local television stations, the authorities cordoned off streets as agents in protective suits emerged from the dwellings with computers and bags of papers, mail and books.

“He was devastated,” Dr. Berry’s lawyer at the time, Clifford E. Lazzaro, said in an interview. “They destroyed his marriage and destroyed him professionally for a time.”

The government has unequivocally admitted that it wrongfully targeted an individual, Steven Hatfill, for a period of six years with little to no basis in fact or evidence to do so. The result of that "most complex criminal case in bureau [FBI] history", and dedicated certainty by the Bush Department of Justice for six years, has been a lawsuit brought by Hatfill, a settlement with Hatfill, humiliation of the DOJ and, finally, a complete exoneration of Hatfill.

It is pretty clear that Hatfill would, in spite of all the evidence, still be the target of this persecution had he not fought back doggedly with every ounce of his being. The government relentlessly tried to get his civil case dismissed and to hide the ball. As with another infamous case of Bush Administration subterfuge, if not for the honesty and spine for justice on the part of Judge Reggie Walton, Hatfill would still be Read more →