Crewsing For A Bruising: The NSA Responds To EOP

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Three days ago, Saturday March 22, we discussed the hard driving charge being mounted in DC District Court by the National Security Archive and CREW in relation to the destroyed missing White House emails. In that post and discussion we dissected the Administration (EOP) brief in objection to the Order To Show Cause determination, and the affidavit of Theresa Payton filed in support thereof; and man did did you guys bring the analysis and tech savvy to the show. What kind of host would I be if I were to deny you the latest developments in the case? A couple of hours ago I received another communique from Melanie Fuchs, the attorney for the NSA. Without further adieu, and as Paul Harvey would say, and, now, for the rest of the story.

In light of your continuing interest in the White House e-mail case, I am sending you the National Security Archive’s reply in response to the Executive Office of the President’s filing last Friday. That filing, which was made in response to Magistrate Judge Facciola’s show cause order, opposed forensic copying of the EOP workstations. The Archive’s response, which includes the declaration of Al Lakhani, Managing Director at Alvarez & Marsal Dispute Analysis and Forensic Services LLC, describes the significant risk that the emergency recovery backups tapes maintained by the EOP are not adequate for recovery of the missing White House e-mails from 2003-2005. Further, the response notes the lack of any support for the EOP’s assertion that forensic copying would be costly and burdensome, provides actual estimates of the cost of forensic copying, and points out several steps EOP could take to protect sources of missing e-mails including preserv ing external storage media (external hard drives, CDs, DVDs, paper copies, etc).

Here is the NSA Reply Pleading Re: OSC. Here is the Affidavit of Al Lakhani, the CREW/NSA expert witness. I think you all will like these documents a little better than the corresponding set filed by the Administration. I want to get this post up, so I will engage in further analysis along with you in the comments.

Who Let The Dogs Out? The Hounds Of Hatfill and the Federal Rules of Evidence

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On Marcy’s most recent Hatfill post, I made a mostly flippant comment on the dogs in the Hatfill case:

What if Hatfill is just a pig and leaves pizza crusts around everywhere he goes and the dogs are smelling that? What are the customary industry standards for certification of anthrax sniffing dogs anyway; and who sets and regulates them? Or is this just some “wonder mammal” like Lassie or Flipper or something? Was there video of the searches with the wonder dogs? Because there sure should have been. Or are these yet more video items of evidence that have been “misplaced”? What was the nature of the dog’s response? Did it emit a “plaintiff wail” like Nicole Simpson’s Akita? (Great trivia: Nicole’s Akita was named “Kato” too). I don’t see how the dog(s) here meet any evidentiary standards for admissibility or reliance by a court.

Despite it being mostly in jest, that comment had what I consider to be a critical, if not the critical, point in it. From what it appears, the only bit of "evidence" (and I use that descriptor loosely here, and in the generic sense, because I don’t think there was any proper evidence at all) against Hatfill that served as the basis for identifying him was that the dogs had alerted.

We all saw, in the tragic case of the late Richard Jewell, the horrendous and deleterious effects of a defective identification on an individual for an infamous crime. It is simply unconscionable to hang such a collar on someone without substantial credible hard evidence. And, quite frankly, the aura and implications of the anthrax case were, and are, far worse that the Atlanta Olympic park bombing. An entire nation was brought to a standstill and was trembling from a terrorist act that was capable of being repeated anywhere, at any time, in the country via the mail. So the United States government better have a pretty strong case before it implicates someone such as Hatfill in such a crime.

What substantial and credible hard evidence was the identification of Hatfill based on? Well, as has been previously discussed, he had worked in the bio-agent/anthrax field, had the technical expertise and, according to profilers, the personality to do the anthrax deed. The government indicates that he may be one of 50 or fewer people who had the skills to do it and had access to the strain. Then you add in allegations of violence in his past and ties to South African apartheid militias, and you can certainly understand why he was being looked at. While such information is not all entirely innocuous background, it is certainly nothing more than circumstantial and does not inculpate Hatfill; the only alleged link of Hatfill to the actual crime with the anthrax letters, at least that we are aware of to date, was the dogs. That’s it; there is nothing else. What are the standards for admissibility of dog scent Read more →

Judge “Naughty” In Trouble with the Circuit Court

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Dakine passed on this Denver Post article focusing on the Circuit Court’s decision to have Nacchio’s case tried by a different judge.

Nottingham wrongly, according to the appellate court, excluded an expert witness the defense wanted to present. He didn’t even let the defense make arguments on the matter when it came up during the trial.

His demeanor during the trial and sentencing was full of cutting comments and, at sentencing, he included a lecture on morality and greed.

Though the appellate judges weren’t specific, they did say that the trial transcript led them to conclude that "it would be unreasonably difficult to expect this judge to retry the case with a fresh mind."

While the appeals court said it wasn’t implying bias by sending the retrial to another judge, they sure were saying something. And it wasn’t complimentary.

While the article suggests there is no relation between Nacchio’s trial and Nottingham’s other problems–the revelation he was surfing porn in his chambers, soliciting prostitutes, and stealing handicapped spots from disabled people–I do find it rather interesting that the Court has hired an investigator to look into those ethical allegations.

A former FBI agent has been hired to investigate Colorado’s top federal judge who was recently linked to an investigation into a Denver-based prostitution ring.

Former FBI agent David Brundage is working for the 10th Circuit Court of Appeals in its investigation of Judge Edward Nottingham for alleged judicial misconduct in two cases, ABC News has learned.

[snip]

When contacted by ABC News, Brundage declined to comment as did a spokesperson for the 10th Circuit Court.

It sure makes you wonder about the scope of the investigation for the Court. Does it go beyond stealing handicapped parking spots?

Update: spelling error fixed per brendanx.

Fighting about Fuck

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SCOTUS is going to decide whether you and I can hear the words fuck and shit be uttered on the telly.

The court will review the Federal Communications Commission’s policy that even a one-time utterance of an obscene word on radio and television broadcasts during daytime and early evening hours is subject to punishment.

The lawsuit by Fox Broadcasting arose after the commission reprimanded the broadcaster for incidents in 2002 and 2003, when singer Cher and celebrity Nicole Richie, during live award shows, used variations of a vulgar four-letter word.

The reprimand came after the FCC in 2004 reversed its position and said even "fleeting" expletives exposed the network to sanctions.

I don’t know why they feel the need to do this. I think Miguel Estrada should have had the last word on this issue (I can’t believe I said that), when he wrote:

the “F-word” is often used to express intense (and clearly nonsexual) feelings—even by political leaders. For example, Vice President Cheney’s retort of “Fuck yourself” to Sen. Patrick Leahy (D-Vt.) on the floor of the Senate chamber in 2004 was widely reported. See, e.g., Cheney Utters ‘F-Word’ in Heated Exchange With Leahy, THE FRONTRUNNER, June 25, 2004.

In a display of bipartisan understanding that the “‘F-Word’” has non-sexual meanings, Senator John Kerry explained his vote to authorize the use of force in Iraq by asking “Did I expect George Bush to fuck it up as badly as he did? I don’t think anybody did.” Will Dana, John Kerry’s Desperate Hours, ROLLING STONE, Dec. 25, 2003; see 32 also Michael Elliott & James Carney, First Stop, Iraq, TIME, Mar. 31, 2003, at 172 (quoting President Bush as saying to a group of U.S. Senators, “F___ Saddam. We’re taking him out.” (omission in original)).

[snip]

The “‘S-Word’” has non-excretory application in public discourse, as well. In July 2006, as reported in newspapers and aired on cable networks, President Bush remarked to British Prime Minister Tony Blair that the United Nations needed to “get Syria to get Hezbollah to stop doing this shit.” Peter Baker, Bush’s Bull Session: Loud and Clear, Chief, WASH. POST, July 18, 2006, at C1; see also, e.g., Transcript, CNN American Morning, LEXIS Transcript 071705CN.V74 (July 17, 2006). Surely no observer—not even the Commissioners—could believe the President was making reference to Hezbollah’s “excretory activities.” [I’ve added the fucks and shits back where Greenberg removed them]

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A Failure of Legal Scholarship

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The smart legal types in the blogosphere have weighed in on whether or not OPR’s investigation of two OLC opinions (the rationale for warrantless wiretapping and the rationale for torture) can accomplish anything. Marty Lederman writes,

I have previously questioned whether such an ethics-based investigation makes any sense. My colleague David Luban has argued, alternatively, that it does. Whatever the merits of that particular argument might be, there is something else a bit odd about the OPR investigation: The new Attorney General has effectively adopted and ratified the post-Yoo OLC opinions as reflecting current, official DOJ views. How could OPR, which is subordinate to the AG, promulgate the conclusion that the legal advice the AG has embraced is not "consistent with the professional standards that apply to Department of Justice attorneys"? As Emily Bazelon points out in an excellent recent column, OPR does not appear to have the independent authority to overrule the AG in that respect.

[snip]

Myself, I remain a bit skeptical of what could come from such an investigation, by either OPR or the IG. If either of them "found" that OLC’s advice was wrong, or even egregiously wrong, it would remain the case that OLC, the AG and the President disagree.

In an op-ed in the National Law Journal, Sheldon Whitehouse (who pushed OPR to conduct the torture-related of these two investigations) elucidates what he thinks the OPR is likely to to find.

This substantial body of precedent [finding waterboarding illegal] has been documented by Evan Wallach in the Columbia Journal of Trans- national Law. Most notably, Wallach details incidents of waterboarding prosecuted by DOJ itself: the 1983 federal prosecution of a Texas county sheriff who waterboarded prisoners. The indictment asserted that the defendants conspired to "subject prisoners to a suffocating ‘water torture’ ordeal in order to coerce confessions." The sheriff and his deputies were all convicted. The 5th U.S. Court of Appeals affirmed. U.S. v. Lee, 744 F.2d 1124 (1983). At sentencing, U.S. District Judge James DeAnda admonished the former sheriff, "The operation down there would embarrass the dictator of a country."

How is it that the OLC, the elite legal conscience of DOJ, completely missed a U.S. Court of Appeals case on point, a case in which DOJ itself had brought the charges, and a case whose prosecuting assistant U.S. attorney is still in the department? Is this a failure of legal analysis, or something much, much worse?

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Spitzer Springs A Leak

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As you all undoubtedly know by now, the huge breaking news is about New York Governor Elliot Spitzer’s apparent ties to a prostitution ring. The New York Times reports:

Gov. Eliot Spitzer has informed his most senior administration officials that he had been involved in a prostitution ring, an administration official said this morning.

Mr. Spitzer, who was huddled with his top aides inside his Fifth Avenue apartment early this afternoon, had hours earlier abruptly canceled his scheduled public events for the day. He scheduled an announcement for 2:15 after inquiries from the Times.

Mr. Spitzer, a first-term Democrat who pledged to bring ethics reform and end the often seamy ways of Albany, is married with three children.

Just last week, federal prosecutors arrested four people in connection with an expensive prostitution operation. Administration officials would not say that this was the ring with which the governor had become involved.

But a person with knowledge of the governor’s role said that the person believes the governor is one of the men identified as clients in court papers.

Spitzer has now held a brief press conference where he admitted that he had betrayer the trust of his family and the public and is going to take "some time" to work out his path forward.

It appears that this emanates out of the arrest and charging last Thursday, March 6, 2008, of four people said to be involved in an international prostitution ring. The investigation and charges were announced by the office of Michael J. Garcia, the United States Attorney for the Southern District of New York (SDNY).

Federal authorities arrested four people Thursday on charges of running an online prostitution ring that serviced clients in New York, Paris and other cities and took in more than $1 million in profits over four years.

The ring, known as the Emperor’s Club V.I.P., had 50 prostitutes available for appointments in New York, Washington, Miami, London and Paris, according to a complaint unsealed on Thursday in Federal District Court in Manhattan. The appointments, made by telephone or through an online booking service, cost $1,000 to $5,500 an hour and could be paid for with cash, credit card, wire transfers or money orders, the complaint said.
…
As part of the investigation, federal agents worked with a woman who claimed to have worked for the Emperor’s Club as a prostitute in 2006, according to court papers. An undercover agent posed as a potential client and arranged appointments by phone and online.

After obtaining authorization to tap the club’s phones, federal agents recorded more than 5,000 calls and text messages and had access to 6,000 e-mail messages, court papers said. Many Read more →

Fitzgerald Testifies Before HJC

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He’s just answering questions–no statement.

Sanchez Do you think a President should consult with a Special Counsel on commutation.

PF The President has the power to pardon or commute.

Sanchez: Could you go whereever the evidence brought you?

PF No, I couldn’t go outside the scope. The subject matter jurisdiction was given to me, but I could follow the facts in terms of what I was investigating.

Sanchez: If Durham is given the same authority, would it be proper or improper to investigate underlying conduct.

PF I don’t feel comfortable opining about decisions others make.

Sanchez: You and your team expended significant time and energy. Should you have been required to submit a report to AG?

PF I was not required to submit a report. The AG was recused. Because a charge resulted, people learned a fair amount about what we did. I believe, I think it’s appropriate that when a GJ is used, we expect people to be candid, but we owe it back to people to respect the secrecy of the GJ. I don’t think a public report was allowed nor should it have been called for.

Sanchez: A report to Congress?

PF The executive branch has to have space in which it can conduct business and space for prosecutors to make decisions. I see the concerns on both sides, from my narrow POV we can’t break GJ rules.

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OPR Endorses Pixie Dust

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Back in January, Steven Aftergood sent a letter to the Office of Professional Responsibility outlining the absurdity of the Adminsitration’s claims that Cheney was exempt from normal rules on classified information.

The complaint makes a number of worthwhile points, including:

  • "Shall" means "have to"
  • Fielding’s letter didn’t resolve the conflict
  • Dana "Pig Missile" Perino’s public statements–which Fielding cited in his own letter–didn’t resolve the conflict
  • "Person" of the Vice President is not the same thing as "Office" of the Vice President

And, finally, this doozy: "not different" is not the same as "different":

What Mr. Fielding failed to recognize is that some members of the President’s office do report to the Information Security Oversight Office. These include the President’s National Security Advisor, the President’s Science Advisor, and others.

So if the Vice President is “not different” from the President, then at least some of the Vice President’s staff would be expected to report their classification and declassification activity to ISOO, as do some of the President’s staff.

The executive order provides no basis for concluding that the President’s National Security Advisor, for example, must report to ISOO every year, as he does, while the Vice President’s National Security Advisor should not. That makes no sense at all. Yet this incongruous result reflects the Justice Department’s failure to correctly analyze the requirements of the executive order, which is a professional lapse.

Alternatively, if the Vice President’s National Security Advisor (among others) does not have to report to ISOO, this would contradict the President’s expressed intent that the Vice President is “not different” than the President for purposes of the executive order. It would mean that the President intended the Vice President’s staff to receive less oversight from ISOO than does his own staff. Yet that is contrary to what the President’s spokeswoman indicated. [my emphasis]

I guess this is the nonsense you get when you send Dana "Pig Missile" Perino to address matters of ontology.

Aftergood asked OPR to investigate whether the OLC had acted improperly when it blew off Bill Leonard’s request for clarification on the issue.

On Valentine’s Day, OPR sent Aftergood a love letter in response, basically endorsing the Pixie Dust theory and telling Aftergood to embrace the Bush Administration in all its absurd glory.

In addition, this matter does not involve the allegation of affirmative malfeasance, but rather, the alleged improper failure to perform an act. It is important to note that the Executive Order, as amended, was issued pursuant to the current President’s executive authority and the President has the pwoer to modify or revoke such orders. Therefore, the President’s interpretation of the order is particularly significant.

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McCain’s “Favors” for One Special Lobbyist: The Bob Bennett Angle

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If I’m not mistaken, NYT’s blockbuster detailing McCain’s inappropriate relationship with a telecom lobbyist is the matter in which Bob Bennett was representing the good Senator (no, I’m not–Bennett’s out working this story hard tonight). If you haven’t already read about this on every other lefty blog, here’s the jist:

Early in Senator John McCain’s first run for the White House eight years ago, waves of anxiety swept through his small circle of advisers.

A female lobbyist had been turning up with him at fund-raisers, visiting his offices and accompanying him on a client’s corporate jet. Convinced the relationship had become romantic, some of his top advisers intervened to protect the candidate from himself — instructing staff members to block the woman’s access, privately warning her away and repeatedly confronting him, several people involved in the campaign said on the condition of anonymity.

When news organizations reported that Mr. McCain had written letters to government regulators on behalf of the lobbyist’s client, the former campaign associates said, some aides feared for a time that attention would fall on her involvement.

Now, there are many angles to this story. The "McCain in charge of Senate oversight of telecoms" angle. The "McCain dalliance with a torture lobbist" angle. The "why does this woman look just like McCain’s wife?" angle. But for now, I’m just interested in the Bob Bennett angle.

Bennett’s been out pitching his new book; as part of that, I heard him on Diane Rehm. Bennett said he was representing McCain in a matter in which he allegedly gave a lobbyist special "favors."

Hmmm.

But that’s not the part I’m a bit stunned by. Actually, there are three parts I’m stunned by, just off the top of my head:

  • This story broke in the NYT. The last time we saw Bennett (before he was giving Jose Rodriguez’ story when Rodriguez refused to do so himself, I mean), he was standing in a hallway in the Prettyman Courthouse accepting Max Frankel’s thanks … "you did a good job for us today." Meaning "us," the NYT. In some twisted way, Bennett only recently rescued the NYT from its embarrassment named Judy Miller. But here his next big client save one is, having his Presidential aspirations seriously rocked by the same NYT. If I’m Bob Bennett right now, I’m bitching about those ingrates at the Times. Read more →

Don’t Cry For The Telcos – Bush & Cheney Are The Only Ones That Are Dying For Immunity

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The issues surrounding the FISA legislation are still roiling in Congress, thanks to the sudden appearance of a spine and principle by the Democrats in the House of Representatives (and correspondingly, with no thanks to the spineless and craven counterparts in the Senate, especially Jello Jay Rockefeller, the SSCI, and Harry Reid for bringing the horrid Intel committee bill to the floor instead of the far superior Judiciary bill). The most contentious issue has been, and continues to be, the proposed retroactive immunity for telco companies. Since the ugly head of the issue was first raised last summer with the railroaded passage of the Protect America Act, I have been arguing vehemently that the telcos are not in any grave danger financially from the civil suits currently pending. If their conduct is as has been described to date, they are already protected from liability for the actions that have been described, both by existing statutory immunity and by a right to indemnification from the government. The full court press for immunity by the Administration is entirely about cover for the lawless Bush Administration, and not about the impending financial demise of the telcos.

This post will go back over some of the basis for my argument that has been laid out previously, both here at Emptywheel and, earlier, at The Next Hurrah. I will also try to relate a few basics on what the general concept of indemnification is, and how it relates to contracts, in this case the agreements between the telcos and the Bush Administration. I have been making this argument for quite some time now, since last August, and have yet to have anybody put a significant dent in it; but it is no good if it cannot hold up to scrutiny. In that regard, I have posited my theory to several other lawyers expert in the field of governmental/Fourth Amendment litigation, including some extremely knowledgeable on the very civil suits at issue here, and all have agreed with the validity of my premise.

The Argument: The Bush Administration, with the help of telco providers (telelphone, cellphone, internet and other communication providers) engaged in massive wiretapping and datamining efforts, ostensibly to protect the United States from attack by terrorists. The legality of much of these programs has been questioned in many fora, but the germane ones for the immunity demand by the Administration are the civil suits that have been filed against both Read more →