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 →

Will The House Honor Their Oath To Office, Or Follow The Senate’s Lead And Cave To Fear?

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Some of us, okay, I am referring to myself, thought that FISA was cooked yesterday (really, I have thought this from the second they announced the unanimous consent agreement and bi-partisan extension baloney) and that the fork might as well be stuck in. As I said in the last thread,

…the House is putting on what appears to be a better showing than the Senate, but I have no doubt that it is all kabuki and the deal is done. I am pretty much positive that Pelosi, Hoyer and Boehner have their skids all greased and did so in conjunction with Hanoi Harry and the Senate Stumblebums. It is good to keep in mind that ALL of the representatives are up for election (only a third, give or take a few, of the Senate), so they have a vested interest in putting on a show. When the curtain closes, the final act will have been the same though.
…
Remember, we thought there was at least a fighting chance in the Senate, and then all those eloquent and moving words by Chris Dodd, all followed by a whopping 29 Senators having the one ethical bone in their bodies to protect the constitution. Depressing. There is no way the House is going to squelch this after the Senate did that.

I still believe that analysis, but I will have to say that the House has put on a better show today than I expected, even after seeing the John Conyers letter issued evidencing that a little fight might be left in the old boys after all.

Cboldt had this to say last Saturday about the interplay between the Senate and House:

This latest push by the progressives, plus the fact that they have another extension ready, give me a little hope; but not much

The number of signatories, and their general “place” in the hierarchy of power, inclines me to think they are being “humored.” Their objection and voice can’t be blocked, and while it’s good to let them express their point of view, I’m not sure there is enough weight of objection in the House as a whole.

Yes, the right things are being said. But not by many.

The procedural details are in accord with the substantive material (e.g., contents of amendments, UC agreement) and a vote breakdown that heavily favors capitulation to the DNI demands. I wouldn’t be shocked if there was another extension, as a token political concession to the objectors, but I don’t expect Congress to send another extension to the WH.

I Read more →

House Oversight Committee Liveblog – Rocket’s Red Glare

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Folks, I have been a pitiful guest host the last two days, and for that I apologize. There was a medical issue in my family that arose on Monday and it has turned into a nightmare. This country needs to find it’s way to a single payer universal healthcare process as soon as possible; else otherwise rational citizens are going to exercise that much ballyhooed Second Amendment right to bear arms and they are going to use them on the health insurance industry. That is all I am going to say for now; perhaps I will revisit all of this at a later date, but what I have seen and been exposed to the last day and a half is eye opening. Even to someone that deals with bad systems as a career, it is eye opening when it is actually you and your family in the breech.

A couple of people have inquired about a liveblog on the Clemens hearings. I was initially fairly uninclined to do that here because we usually deal with more important subjects. But I am fed up with FISA and the dereliction of duty of our Congress on that issue. I also have some time on my hands for a while today and think that there are many issues that really are important that are in play in the Clemens mess; so here we go. I will be posting some updates to the main post and will be here ready to engage and answer any question i can, the best I can in the comments. Feel free to rant and to question.

Update On Constitutional/Due Process Concepts At Play Here: Okay, even I am about Clemensed out after today’s hearing, but I want to take just a minute to point out the legal principles I see at play here that I think should be understood and kept in mind.

First off, if the Federal government thinks Roger Clemens was seriously involved in steroid and HGH use and promulgation, investigate and prosecute him. But the government doesn’t give a rat’s ass about that, they are hot after Clemens because he had the audacity to challenge the God/Petraeus like Mitchell report. And make no mistake about it, if you can’t believe the Clemens portion of the Mitchell report, you have to wonder about the Read more →

Mukasey Oversight: HJC Edition, Part Two

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Delahunt: You said if an opinion was rendered, that would insulate him from any consequences.

MM: We could not investigate or prosecute somebody for acting in reliance on a justice department opinion.

Delahunt: If that opinion was inaccurate and in fact violated a section of US Criminal Code, that reliance is in effect an immunity from any criminal culpability.

MM: Immunity connoted culpability.

Delahunt: This is brand new legal theory.

MM: Disclosure of waterboarding was part of CIA interrogation and permitted by DOJ opinion, would and should bar investigation of people who relied on that opinion.

Delahunt: Let’s concede that waterboarding is in contravention of international obligation. If opinion rendered that amounted to malpractice, whoever employed that technique, simply by relying on that opinion would be legally barred from criminal investigation.

MM: If you’re talking about legal mistake, there is an inquiry regarding whether properly rendered opinions or didn’t. But yes, that bars the person who relied on that opinion from being investigated.

Delahunt: I find that a new legal doctrine. The law is the law.

MM: If it comes to pass that somebody at a later date that the opinion should have been different the person who relied on the opinion cannot be investigated.

Delahunt: Is there a legal precedent.

MM: There is practical consideration. I can’t cite you a case.

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Mukasey Refuses to Say Whether He Was Instructed Not to Enforce Subpoenas

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This was stunning stuff. I’m going to hunt down a YouTube. But for now, understand that AG Muksey refused to answer Robert Wexler’s question of whether or not the AG had been instructed not to enforce the subpoenas of Harriet Miers and Josh Bolten. Here’s the liveblog excerpt:

Wexler: Failure to reply to Congressional subpoenas. Refusal of Bolten and Miers to even appear. Have you been instructed by POTUS to enforce or not to enforce subpoenas.

MM: I can’t say.

Wexler: Can you tell me the individual that Clinton instructed not to appear?

MM: Dellinger wrote an opinion.

Wexler: I didn’t ask opinions. I asked about the President instructing someone not to appear. Have you been instructed to enforce or not to enforce contempt citations.

MM: That’s privileged.

Wexler: Should Congress pass a contempt citation would you enforce it?

MM: If you’re talking about a contempt citation based on Bolten’s failure to appear–he can’t violate the President’s request.

Wexler: Are you the people’s lawyer or the President’s?

MM: AG of US.

Shouldn’t Mukasey be able to say, "it would be inappropriate for me to discuss these subpoenas with my superiors, Bush, Dick, and Addington"?

Mukasey Oversight: HJC Edition

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Coming in at the end of the opening statements. Conyers’ emphasis is on questions on torture and voting rights. Lamar Smith says crack dealers who have already served longer than coke dealers should stay in jail. And Mukasey says the telecoms need [ut oh, he’s got his talking points wrong] retroactive immunity and those crack dealers need to stay in jail.

Conyers

Any additional comments about waterboarding now that Hayden confirmed it?

MM: Do you have a particular question?

JC: Are you ready to start a criminal investigation?

MM: That’s a direct question. No, I am not. Whatever was done as part of the CIA program, was part of DOJ opinion, through OLC, permissible under law as it existed then. For me to use occasion of disclosure that that was once an authorized part of the CIA program would be for me to tell that they will now be subject to criminal investigation. That would put into question not only that opinion, but also any other opinion from DOJ. That’s not something that would be appropriate and not something I would do.

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Is This Why Rosenberg Recused?

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The AP reveals that prosecutors in the Alexandria US Attorney’s Office–including the lead prosecutor in the Moussaoui case–did know of the torture tapes in early 2006, before Moussaoui was sentenced.

The lead prosecutor in the terror case against Zacarias Moussaoui may have known the CIA destroyed tapes of its interrogations of an al-Qaida suspect more than a year before the government acknowledged it to the court, newly unsealed documents indicate.

The documents, which were declassified and released Wednesday by the 4th U.S. Circuit Court of Appeals, detail efforts by Moussaoui’s attorneys to send the case back to a lower federal court to find out whether the tapes should have been disclosed and whether they would have influenced his decision to plead guilty.

In a Dec. 18, 2007, letter to the appeals court’s chief judge, the Justice Department acknowledged that its lead prosecutor in the case had been informed about the CIA’s tapes of al-Qaida lieutenant Abu Zubaydah being interrogated.

The letter said the prosecutor, Robert A. Spencer, may have been told of the tapes’ destruction in late February or early March of 2006, just as the U.S. District Court in Alexandria, Va., was beginning its trial on whether Moussaoui would be eligible to face the death penalty.

Spencer, who was one of three prosecutors on the government’s team, "does not recall being told this information," U.S. Attorney Chuck Rosenberg wrote in the Dec. 18 letter to 4th U.S. Circuit Chief Judge Karen J. Williams.

Another prosecutor in Rosenberg’s office in Virginia’s eastern district who was not involved in the case "recalls telling (Spencer) on one occasion," the letter said.

That second, unnamed, prosecutor learned about the videotapes of Zubaydah "in connection with work he performed in a Department of Justice project unrelated to the Moussaoui case," the letter said.

It is unclear what that project was. [my emphasis]

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On What Terms Will this Administration Spy on Americans?

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I think these Senators are really getting tired trying to teach their Republican colleagues about the rule of law and the importance of all three branches of government.

Thanks to Selise for the YouTube. One highlight:

I know the Bush Administration fears and despises Judicial Oversight. Probably with very good reason.

And check out Whitehouse quoting Scalia starting at 7:55.

There was a sense of a sharp necessity to separate the legislative from the judicial power at the founding of our government. This sense of sharp necessity triumphed among the framers of the new Federal Constitution. And it did so–again quoting the decision–prompted by the crescendo of legislative interference with private judgments of the Court.

Nice touch, Whitehouse. 

Just a quick summary of where things stand. The amendments that Harry Reid believes won’t be close will be voted on tomorrow. It will almost certainly go into Wednesday. If Mitch McConnell has his way, though, he’ll push the FISA vote out until Thursday or Friday to hand it to the House with no time to fix it.

One more point. If I’m not mistaken, Harry Reid was really worried about giving Hillary and Obama the opportunity to get back to vote on the Stimulus Package. But apparently they seem a lot less interested in getting back to vote for our privacy and civil liberties.

AG Claims Clear Evidence of Legal Liability Does Not Constitute a Basis for Investigation

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In two striking exchanges yesterday, Sheldon Whitehouse tried to get AG Mukasey to explain why DOJ was not conducting an investigation into the activities portrayed on the torture tapes. Whitehouse wondered whether DOJ had refrained from investigating the underlying conduct because those who engaged in the torture had authorization to use it. That amounts to the Nuremberg Defense, Whitehouse insisted correctly. In response, Mukasey suggested there simply was no reason to do an investigation. DOJ had never seen any facts, Mukasey claimed, that would warrant an investigation.

Whitehouse: Process question. In terms of advisory responsibilities, not going to investigate. You’ve disclosed waterboarding not part of CIA interrogation regime. Still leaves open torture statute whether there are concrete facts or circumstances, given that that evaporates, whatever it is it is. I’m trying to determine if that is taking place (the analysis), if you’re waiting for Durham’s investigation to look more into what happened. Or if there has been a policy determination made, that bc there has been a claim of authority, there will be no investigation. What is the process for coming to this decision.

MM: Facts come to the attention to the Department that warrant investigation.

But that’s not true, of course. We know DOJ received the results of the IG’s report on the CIA’s interrogation techniques.

OIG notified DOJ and other relevant oversight authorities of the review’s findings.

And we know that that report stated that the conduct depicted on the tapes amounted to cruel and inhuman treatment.

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say. Read more →