About that May FISC Ruling

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In light of the weekend’s news that there were actually two FISC rulings against the Bush Administration’s warrantless wiretap program, I’d like to return to this James Risen article from May 2.

Senior Bush administration officials told Congress on Tuesday thatthey could not pledge that the administration would continue to seekwarrants from a secret court for a domestic wiretapping program, as itagreed to do in January.Rather, they argued that the president had the constitutionalauthority to decide for himself whether to conduct surveillance withoutwarrants.

As a result of the January agreement, the administration said thatthe National Security Agency’s domestic spying program has been broughtunder the legal structure laid out in the Foreign IntelligenceSurveillance Act, which requires court-approved warrants for thewiretapping of American citizens and others inside the United States.

But on Tuesday, the senior officials, including Michael McConnell,the new director of national intelligence, said they believed that thepresident still had the authority under Article II of the Constitutionto once again order the N.S.A. to conduct surveillance inside thecountry without warrants.

[snip]

Mr. McConnell emphasized that all domestic electronic surveillancewas now being conducted with court-approved warrants, and said thatthere were no plans “that we are formulating or thinking aboutcurrently” to resume domestic wiretapping without warrants.

“But I’d just Read more →

TSP Timing, Again

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Josh and Spencer are just now catching up to something I pointed out three weeks ago: Tom DeLay got briefed on the TSP program on March 11, 2004, the day after the Hospital Meeting. Of course, that’s not particularly surprising since one of the things that went down at the briefing of the Gang of Eight on March 10 is that the Administration floated passing legislation to fix the problems in the program. In March 2004, if you wanted legislation of any kind to pass Congress–and particularly if you wanted a second opinion about passing legislation if others had told you it’d be impossible–you’d ask the Hammer. Which is almost certainly what they did.

I’m frankly a lot more interested in whether what DeLay told the Administration contributed to the fact that Bush agreed to make changes after Mueller and Comey talked to him directly on March 12. That is, would Bush have made the same concessions on the 12th if he hadn’t first spoken to the Hammer and learned he really did need to make those concessions?

Now that Josh and Spencer are looking at the timing of these briefings, though, they might want to check out the coincidence between Read more →

Interesting Timing

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I’m not so much surprised that Scottish Haggis Specter has urged Pat Leahy to ask for a meeting with the White House to negotiate testimony of White House officials.

For the last several months, I have been seeking the voluntary cooperation of the White House with the efforts of the Senate Judiciary Committee to get to the bottom of the scandal surrounding the firing of so many of the United States Attorneys you had appointed. 

[snip]

I have sent numerous letters to your White House counsel to no avail.  For example, in a May 16 letter to Fred Fielding I outlined some of the indications of Karl Rove’s involvement.  Yet, all of my good faith efforts have been rebuffed.  The stonewalling leaves me and the Senate Judiciary Committee with few options other than considering citations for contempt of Congress against those who have refused to provide relevant testimony and documents to the Congress. 

Senator Specter has urged me to write to you directly and suggest that we sit down together to work out our differences with respect to this matter.  That is the purpose of this letter.

I’m just more intrigued by the timing. Leahy sent this one August 14, just one day after the Turdblossom wilted. The only known person the Senate Judiciary Committee has subpoenaed who refused to show up at all was that same Turdblossom (Sara Taylor and Scott Jennings showed up and answered only the questions that put the White House in good light; Harriet Miers was subpoenaed by the House Judiciary Committee). And Leahy names Rove specifically in this letter. While I’m not convinced that Specter was the "leading Republican" Novak invokes who had it in for Rove (Specter is weak enough, Novak would have felt free to name him, for example), I do find the suggestion that Specter used that opportunity to push Leahy to seek conciliation with the White House rather curious.

Category Two Documents

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Good thing Rove resigned and finally distracted me from my FISA focus, huh? And in the process of looking up something relating to Rove, I noticed these two letters between Conyers and the RNC (and the RNC’s lawyer) regarding documents it won’t turn over. Most of these documents fall into "category one;" that is, documents the White House has asserted privilege over. But there’s a separate "category two" that attracted my attention:

The White House describes these documents, which the Committee understands to include hundreds of pages, as relating to communications with or among White House officials concerning candidates for U.S. Attorney positions in the Central District of California, the Middle District of Tennessee, and the District of Montana. The White House does not claim executive privilege over these documents, but instead maintains that they "fall outside the Committee’s investigative authority" because they relate to the President’s purportedly "constitutional prerogative" to nominate U.S. Attorneys, and directs you not to disclose them without a further demonstration of relevance by the Committee. [my emphasis]

Let’s take these out of order, starting with Montana.

Montana
Montana, you see, never did need a replacement candidate. Bill Mercer was, of course, playing roles at main DOJ at the same time as he was (and is) US Attorney for Montana. But he never quit. And when it came time to go before the Senate to be confirmed as Associate Attorney General, he balked, withdrawing his nomination just days before the Senate Judiciary dealt with it. When Mercer balked in such a fashion, I noted,

As I said, Bill Mercer hasn’t really been focused on day to dayevents in Montana for several years, since he first got a no-nominationacting appointment at Main DOJ. But one thing has been occurring–ornot occurring–in Montana. The biggest beneficiary of Jack Abramoff’slargesse, [former Montana Senator] Conrad Burns, has somehow managed to avoid the increasingscrutiny that John Doolittle and Bob Ney received. There has long beena question of whether Mercer has retained his appointment in Montana inan effort to protect Burns, and now it appears he can do little butthat.

[snip]

Trust me–the Administration felt it important to retain Mercer outin Montana. It’s something Gonzales himself emphasized in his statementon Mercer’s resignation:

Gonzales said in a statement that he was "very pleased that thedepartment will continue to benefit" from Mercer’s talent in Montana.

Itsure sounds like they were worried they’d have to forgo Mercer’sservices in Montana, and therefore decided to sacrifice him at Main DOJ.

In other words, the discussion of whom to replace Mercer with may well have been as much about how to protect Conrad Burns (and the larger Abramoff mess) as much as it had to do with finding a nice Republican hack to serve as Montana’s top law enforcement officer.

The Leak Wars: Revisiting the Pre-Indictment Leaks

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Since we’re talking about leaks in the Foggo-Wilkes trial, I wanted to return to the leaks leading up to the Foggo-Wilkes indictments. As a review, Wilkes lawyer Mark Geragos asked the court to dismiss the indictments, arguing that leaks just prior to the time Wilkes was indicted made it impossible for Wilkes to get a fair trial. I talk about the timeline in this post and this one. But we’ve got new details tied to Kontogiannis’ plea deal and recent document dumps, as well as the "results" of DOJ’s self-investigation of the leak.

My updated timeline (below) shows:

  • The disputed leak over Lam’s resignation appeared just days before the first leaks about the indictments. In other words, there was already a case of a disputed leak before the leaks specifically pertaining to indictments started.
  • The possibility of an imminent Kontogiannis indictment figured inseveral of the leaks; this was just a week before he signed a plea deal.
  • FBI Special Agent in Charge Dan Dzwilewskiappears to have stayed just long enough to see the supersedingindictments filed (he retired on April 30, the superseding indictmentswere filed May 11). Kontogiannis appears to have been cooperatingthroughout this period.
  • There was a significant delay before the USA for EasternCalifornia started investigating the indictment-related leaks, thoughthat investigation only took two weeks. The results of that investigation almost perfectly coincided with the unsealing of Kontogiannis’ plea deal (though there may be no connection between the two events). Most curious, the DOJ investigation into the leak didn’t start until Geragos inquired about its status; altogether, there was a roughly 2.5 month delay between the time SD’s USA office submitted Geragos’ complaint and the time when the investigation started.

In other words, the Kontogiannis involvement seems to be an underlyingtension behind the leaks, in addition to the indictments themselves.

The Leak Wars: Elston Accuses Lam

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I promised to come back and talk about those bits of the latest document dump that don’t support HJC’s allegations of a cover-up. In this post, I’m going to look at how DOJ tried to claim that Lam was responsible for leaks about her resignation. The discussion was a response to two local San Diego newspaper articles predicting Lam’s resignation. After complaining to the FBI director about the quotes from the Special Agent in Charge alleging Lam was fired because of politics, the clique turned to an imagined leak, presumably regarding the reasons behind Lam’s firing. Mike Elston complains:

This is remarkable. I am going to ask Brian R. to address the source of the leaks with the reporter. The fact that she is trying to make her leak appear to be from DC is outrageous.

I do not expect to hear from her on Monday. Assuming the WH removes her on Tuesday, how do you want to deal with the vacancy–for the immediate/short term, that is?

To which Kyle Sampson responds:

Monica was checking out [27 character–I think–redaction]. Anyone have any good ideas? For obvious reasons, someone [20 character redaction] would be best.

In other words, Elston is insinuating that something in the article is a leak from Lam, disguised as a leak from Main DOJ. It’s not entirely clear what Sampson’s response is–perhaps a discussion about a counter-leak? His second sentence, though, certainly suggests he and Monica are trying to hide their tracks for whatever it is they’re doing.

Presumably, the imagined the leak is the following, from the SDUT article:

Sources have told The San Diego Union-Tribune thatLam was asked to step down because she failed to make smuggling and guncases a priority, choosing instead to focus on fewer cases that sheconsidered more significant, such as public corruption and white-collarcrime.

The Latest Email Dump: Growing Evidence of an Iglesias Cover-Up

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DOJ dumped another stash of emails while I was at YKos. Unlike the other late-in-the-scandal email dumps, this one doesn’t consist primarily of emails listed on Kyle Sampson’s list of withheld emails. These are new, previously unidentified emails. That’s not surprising, necessarily, since this dump comes from the Deputy Attorney General’s office, not the Attorney General’s office (where Sampson worked). I’m curious though why this dump came when it did, since other document dumps appeared to be tied to the testimony of individuals (that is, they released the Monica-related emails before she testified, and the Miers/Taylor emails before they were scheduled to testify). In this case, the dump may be related to Paul McNulty’s departure.

But I think it much more likely (since half of these emails pertain to Will Moschella, and not McNulty) that these emails are a response to HJC’s interim report on the USA scandal, specifically regarding allegations relating to David Iglesias’ firing.

HJC’s Allegations of an Iglesias Firing Cover-Up

As I wrote when the report came out, the most incendiary allegation in the report is that DOJ conspired to keep the reasons behind David Iglesias’ firing secret. It included Gonzales in this claim, but also asserted that Will Moschella and Paul McNulty may have specifically tried to cover up the actions from fall 2006 that resulted in Iglesias’ firing. The report specifically alleged that Moschella and McNulty downplayed the import of an October 2006 call from Senator Domenici.

The Committee also has concern about the statements made by Mr. McNultyand Mr. Moschella to the Senate and House Judiciary Committeesregarding the firing of David Iglesias. Neither official testified thatthe firing may have been based in whole or in part on a call receivedby Mr. McNulty from Senator Domenici in October 2006, even though Mr.McNulty stated during his subsequent interview with the Committee thatsuch a call from Senator Domenici was at least important to hisdecision not to object to Mr. Iglesias’ presence on the firing list.Furthermore, the omission of that information may have been deliberate.Monica Goodling stated in her testimony before the Committee that theissue of the call from Sen. Domenici had come up during a preparationsession in advance of Mr. McNulty’s briefing to members of the SenateJudiciary Committee in early February 2007, and that Mr. McNultydirected her to omit the reference from the materials she was draftingfor him to use.

Even while Gonzales misrepresented the purpose behind some spring 2006 calls:

We’re Still Waiting…

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As I understand it, we’re still waiting for "the letter" from DOJ that will tell us what we already know–these people are a bunch of sophists.

While we’re waiting, though, this is the most detailed account of the letter from DNI Mike McConnell (as I understand it, Specter said on Wolf Blitzer that he still expects a letter from DOJ):

"Iunderstand that the phrase ‘Terrorist Surveillance Program’ was notused prior to 2006 to refer to the activities authorized by thepresident," Director of National Intelligence Mike McConnell wrote in aletter to Sen. Arlen Specter, R-Pa.   

McConnell’s lettercomes a week after Gonzales insisted to the committee that the hospitalconfrontation was about some other program he would not name because itwas classified. Gonzales repeatedly denied that the internaldisagreement was about the "program the president has confirmed."

AsMcConnell noted, Bush did not disclose the existence of the programuntil after The New York Times revealed it in December 2005.

[snip]

Confirmed only in February as the national intelligence director,McConnell indicated the Justice Department helped define thedistinction about the surveillance program.

"The details ofthe activities changed in certain respects over time and I understandfrom the Department of Justice these activities rested on differentlegal bases," McConnell wrote in his one-page letter.

Right. Read more →

The Check’s In the Mail

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Hey, Scottish Haggis!?!?!? What happened to that letter from the White House you promised us?

According to RawStory, it’s still in the mail. Or maybe it’s not coming after all.

The White House has refused to comply with a Republican senator’srequest for information about Alberto Gonzales’s conflicting testimonyon a secret surveillance program by a 12 p.m. Tuesday deadline.

Sen. Arlen Specter (R-PA), the ranking Republican on the SenateJudiciary Committee, said yesterday that he requested from the Bushadministration a "letter addressing that question [of Gonzales’veracity] from the administration" by noon Tuesday. He promised torelease the letter to the media, but so far the word from JudiciaryCommittee staff is that no letter has arrived.

It is unclear whether the administration is refusing Specter’srequest outright or is simply tardy in delivering its response. Aspokeswoman for Sen. Patrick Leahy, the committee chairman who also isexpected to receive the administration’s response, told RAW STORY early Tuesday afternoon that no letter had arrived yet.

Specter’s office was releasing little information Tuesday.

Your guess is as good as mine what happened to Specter’s love letter. Some possibilities:

  • Dick heard about the promised letter and stole all of Bush’s crayons
  • With Mike Gerson gone, the White House can’t think of a new fancy acronym–Not-TSP–that they can use to parse wildly some more
  • The White House forgot that there was a still-unresolved anthrax attack on the Senate, and so mail takes a while to get to Senators
  • The White House has decided to call Scottish Haggis’ bluff–they’re going to blow him off entirely, because they strongly suspect (with good reason) that he’s just not going to do anything to stop them
  • The White House is trying to postpone sending the letter–which may well admit to having broken the law–until after Congress passes some changes to FISA

Scottish Haggis’ 18 Hours

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What is it with news outlets and the who, what, why, when, where of briefings? The Hill, in its description of Specter’s 18 hour deadline for the Administration, names neither all the people who briefed Specter (it reveals Director of National Intelligence Mike McConnell was one of the briefers) nor all the people who got briefed ("other Senators," Specter says). Though some of this is Specter, once again, trying to be clever, rather than any fault of The Hill.

Most likely, the Administration is being forced to come out with the earthshattering revelation that … they’ve been parsing wildly to avoid admitting they’ve been breaking the law. Wow. Big news, huh? Wake me up for that revelation, would you?

But Specter seems determined to make it work to save Gonzales’ job, because he says it’s "premature to consider" forcing Gonzales out of the job. (Is this Specter’s last ditch attempt to undercut Jay Inslee’s impeachment resolution?)

Apparently, some things never change. Specter will always, ultimately, dig up weasely ways to help the Administration while he kids himself that he’s being tough. And Gonzales will alway lie.