As most know by now, Charlie Savage at the New York Times let loose a stunning blockbuster of an expose of the conduct of Barack Obama and his inner circle in relation to the Libyan war vis a vis the War Powers Resolution:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Let’s be crystal clear as to what happened here: The Attorney General, Head of the Office of Legal Counsel and the General Counsel for the Pentagon/DOD all listened to Obama’s plan to flat out ignore the War Powers Resolution (50 U.S.C. 1541-1548), and the Article I power it represents, and they unanimously said it was untenable and illegal in the face of the War Powers Resolution.

Mr. Obama knows the War Powers Resolution exists, does not challenge its viability or Constitutionality and, against the direct opinion and advice of the three most germane attorneys in the United States Government, has just blithely and unilaterally blown it off. There are nine fairly short provisions in the statutory delineation of the “War Power Resolution” and, despite the yammering from the Administration and dithering by the press, they are actually remarkably clear in their intent and letter.

A criminal can nuance, excuse and rationalize himself around pretty much every statutory criminal provision, but society as a whole has no problem looking at the statute and seeing that there is offending conduct. And so it is here; Obama has thrown up sophistry, excuse and self indulgent rationalization. But any honest review of the WPR yields the unmistakable conclusion Obama is in direct violation, and has been from the outset. Congress has been crystal clear that they have NOT authorized the Libyan war participation.

Make no mistake, this is simply a stunning act of the most basic type of executive branch usurpation of power and illegal act that the Founders contemplated when they included the impeachment power and provision into the Constitution. As Alexander Hamilton stated in Federalist Paper Number 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

Whether or not there should be an impeachment investigation, or what the scope of such would be, is a discussion for another day and not the subject of the instant post. The point here is simply that the conduct we are discussing here is precisely the nature and type of which the Founders contemplated when adopting the separation of powers and impeachment provisions. Not to mention placing war making authority within the Article I scope of Congress.

The point here is that failure to at least have that discussion, and take a sober look at the facts at issue, and ourselves in the mirror, is to fail the Constitutional form of representative democracy we profess to love. It is to fail our basic duties as participatory citizens; it is to fail the nation.

Professor Jack Balkin gave an even handed, but truly damning at heart, analogy to the recent ills occasioned by the Bush/Cheney Administration:

It is instructive to compare President Obama’s actions with those of his predecessor, George W. Bush, who sought legal justification for his decision to engage in waterboarding and other “enhanced interrogation techniques,” which constituted torture. Bush wanted above all to be able to deny that he was violating the anti-torture statute and other laws and treaties. So he found a small group of lawyers in the OLC, headed by John Yoo, and asked for their opinions. This short-circuited the usual process through which the OLC collected views from various agencies and then used them to develop legal opinions for the executive branch. That is, Bush (assisted by his Vice-President, Dick Cheney) arranged matters so that decisions about waterboarding and enhanced interrogation techniques would be in the hands of lawyers he knew would tell him yes; the normal process of collating opinions was short-circuited and other lawyers were effectively frozen out.

Obama’s practice is different, but it has disturbing similarities. Normally, Obama would have asked the OLC for its opinion, and as noted above, the OLC would have polled legal expertise in various agencies, consulted its precedents, had long discussions, and then come up with a scholarly opinion that is normally binding on the executive branch. Instead, Obama routed around the OLC, asking for opinions from various lawyers, including the White House Counsel and the Attorney-Advisor for the State Department. It is difficult to escape the conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC.

Obama’s strategy, like Bush’s, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC’s function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC’s. If one is disturbed by Bush’s misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures

Ouch, that may leave a mark, as does the spot on discussion of OLC manipulation by Jack Goldsmith at Lawfare. And Glenn Greenwald at Salon makes a similarly compelling analogy of the Obama WPR conduct with the Constitutional crisis presented by the unconstitutional and illegal surveillance program of Bush Administration that blew up in the night of near legal mutiny of the “Ashcroft Hospital Incident”.

Balkin, Goldsmith and Greenwald are all correct to analogize and discuss the Obama WPR treachery in terms of the Bush/Cheney precedent. But, as much as I respect them and their discussion on this issue, I think all three sell the situation short. In a critical way. The Bush/Cheney precedent, whether as to the torture component or the surveillance component, involved an administration that twisted the law to suit their ends; but give the Bushies their due, at least they made the surface attempt at having the patina of a legal imprimatur. Obama has, on quite a different and much worse hand, arrogantly and belligerently, in your face and finger in your eye, violated an important existing law that he does not challenge the Constitutionality of. Obama thus admits the validity of the War Power law and in the same breath says with impunity that he is above it and not subject to it.

The War Power Resolution treachery on Obama’s part is actually materially worse than what the Bush brigade did. As Glenn said:

All that aside, what is undeniable is that Obama could have easily obtained Congressional approval for this war — just as Bush could have for his warrantless eavesdropping program — but consciously chose not to, even to the point of acting contrary to his own lawyers’ conclusions about what is illegal.

Other than the same hubris — and a desire to establish his power to act without constraints — it’s very hard to see what motivated this behavior. Whatever the motives are, it’s clear that he’s waging an illegal war, as his own Attorney General, OLC Chief and DoD General Counsel have told him.

Indeed, that is exactly where we are, and the most troubling aspect is there is no question whatsoever that Congress would have pliantly given Obama the requisite authorization sufficient to give at least nominal legal cover for the American participation in the Libyan hostilities. But, instead, Mr. Obama chose to arrogantly and belligerently usurp Article I power on what is likely the most fundamental and germane aspect underlying the separation of powers in the Constitution – how the nation goes to war and inflicts death on another nation’s citizens.

That is where we are today. I am sure laying it out in these terms will unleash the dogs of whine from fawning Obama acolytes and partisan hacks who blindly think only of partisan interest in the upcoming election. But those trifling concerns shrink in the face of the Congressional oath to protect and defend the Constitution and the corresponding duty and obligation on American citizens to demand and insure they do just that.

Without saying Obama should be impeached, failure to at least have the discussion made in those terms is dereliction of constitutional duty by people, pundits and Congress. This critical issue is not yet getting that kind of play, but it should as it is absolutely why the founders placed the provision in the Constitution to start with.

If our society and political discourse cannot seriously discuss impeachment for the type of executive perfidy demonstrated by Barack Obama in relation to Libya and the War Powers Resolution, and could not discuss it during the Bush/Cheney crimes, then the impeachment provision of the Constitution has no meaning and should be stricken.

Seriously, those are the stakes. A discussion, even an investigation, does not mean there has to be an impeachment conviction, or even that articles of impeachment should even be filed. But the discussion must be had if there is to continue to be integrity to the most fundamental terms and conditions of the United States Constitution.

EW and probably bmaz as well will likely have more to say on this one when they free up.

Charlie Savage reported on Friday that Obama rejected advice from both Jeh Johnson (Pentagon general counsel) and, even more significantly, Caroline Krass (the acting head of DOJ’s Office of Legal Counsel) when he availed to himself the power to continue bombings and killings in Libya, under the assertion that he’s, well, he’s just not being all that hostile in his bombing campaign.

Like Nixon in Cambodia, Obama did find supporters for his decisions about Libya. Ex-Yale Dean, current assassination proponent, Harold Koh (legal advisor for the State Department) apparently assured Obama that the bombings just do not rise to the level of being “hostilities” for which Obama needs Congressional permission. Robert Bauer, Obama’s White House counsel, reportedly provided his own version “yeah buddy” for Obama.

Just as Bush found it convenient to get his White House Counsel, Alberto Gonzales, to opine that as long as Bush designated his torture victims as being “illegal enemy combatants” (whatever the ultimate facts) he was exempt from war crimes prosecutions, Obama’s White House counsel is equally eager to tell Obama that, as long as he doesn’t call them “hostilities,” Obama can bomb any nation for any period of time.   

Most importantly – all of this is being done in derogation of the Office of Legal Counsel opinion that the President has exceeded his authority.   At issue, according to White House Spokesman Eric Shultz (Dan Pfeiffer was tied up) isn’t the very same, age old, typical power grab of any unchecked sovereign, but instead the age of the War Powers resoluton.

“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”

The Obama theory is that with 10 years of Bush-Obama battering of the psyches and vocabularies of of Americans and with some very dedicated government propaganda processes to boot, the meaning of the term “hostilities” has changed to exclude American or American led NATO bombings.  And this is “ordinary and healthy.”

Apparently the words “ordinary” and “healthy” have changed some over the last 40 years as well. For those civilian residents in Tripoli who were killed or maimed by NATO’s bombing run today, there is no translation dictionary or program current enough to convert their descriptions of the outcome of the NATO bombing into the words “ordinary” and “healthy.”  NATO provided an assist though – what happened wasn’t a bombing of civilians, but rather a strike on an unintended target. 

“[I]t appears that one weapon did not strike the intended target and that there may have been a weapons system failure which may have caused a number of civilian casualties.”

Cue up Obama’s spox to explain to us how words like “civilian casualties” have also changed a lot over the last few decades – in an ordinary and healthy way.  Maybe they’ll even bring on Henry Kissinger to help with the explanation.   

I don’t completely buy Glenn Greenwald’s take that Bush had “better” lawyers, because [now starts my paraphrase of Glenn’s point] some were prepared to threaten to quit over the NSA program (which they demanded be revised into an equally unconstitutional format) and others were prepared to blindly follow the lead without even knowing anything about why they’d be resigning, still, I will say that Bauer and Koh can easily fill the shoes of Gonzales and Bellinger.

Bush and “torture.” Obama and “hostilities.”  The one thing that we can rely upon is that the meaning of the phrase “Executive Power” has changed over the years. Unchecked, it will continue to change at an ever-increasing rate.  And for those of us who remember Obama’s “stern face” as he promised during primaries and camaigns to “restore the rule of law” we can only wonder when that phrase went so far astray as to encompass the things the Obama administration has done over the last few years. 

Sorry to be AWOL for most of Netroots Nation. bmaz says I’ve been offline for the last few days because we’ve been drunk and busy, but it seems to me I’ve just been incredibly busy for five days straight. There were a lot of conversations, but the overall theme seemed like a desperate conversation on saving the middle class.

Early in the week, I had some extended conversations with labor folks, including some interesting discussions about the UAW’s plans to organize transplants–I hope to do an extensive follow-up on that.

On Thursday, I had the honor to be on a podium between Howard Dean and Russ Feingold, two of my political inspirations. Though the speakers of the night were probably a Pakistani and Zimbabwean woman talking about how important blogs are to giving women voices in oppressive societies. American Federation of Teachers President, Randi Weingarten, also gave a great talk.

On Thursday, I joined the ACLU and Julian Sanchez talking about all the surveillance we’re under. I think we succeded in scaring a lot of people.

I had conversations with a number of elected officials: Luis Gutierrez on immigration, Keith Ellison on saving the middle class, Sheldon Whitehouse on saving the middle class. Alan Grayson talked about what he’s reading about our increasing inequality in Fed documents. While he’s not elected, Jared Bernstein and I had a great talk about the MI auto bailout (and the fact Republican leaders are now claiming credit for results of stimulus in the midwest).

And then there were two more panels: how to beat back the demonization of the working class, and how to make blogging sustainable. Not sure I know the answer to any of those questions.

I was so busy I didn’t get to see many panels. But Van Jones had a great speech and the best panel I did sit in on featured Whitehouse and Dahlia Lithwick talking about the corporatization of the courts. Whitehouse emphasized how real people are increasingly losing the access to jury trials, something which our Constitution protects with far more urgency than corporations.

And I suppose bmaz is right that we spent a good deal of time, um, socializing. Barry Eisler–the author of the novel, Inside Out, that features a character named Marcy Wheeler–was one of the people I met for the first time this year. I thanked him for making it so Marcy Wheeler didn’t get laid or killed. But I saw a bunch of old friends, too.

I’m sure I’ll have more substantive stuff as I process the last several days. But processing it all is going to take a day or so yet.

I don’t know what the fine Cheese and Brat heads up in Wisconsin did to piss off the political gods, but they have been blighted. It was bad enough to cause national outrage and solidarity when extreme right wing movement conservative Governor Scott Walker and the crazed GOP majorities in the state legislature started attacking the working men and women of Wisconsin’s unions, teachers, cops and firefighters. But now they have gone a bridge too damn far.

And that is why I am supporting Russ Feingold in a recall election against Walker, and you should too.

Scott Walker and the Wisconsin Republicans are declaring war on quality craft beer. From ThinkProgress:

Tucked into Wisconsin Gov. Scott Walker’s (R) much-discussed budget was a little-noticed provision to overhaul the state’s regulation of the beer industry. In a state long associated with beer, the provision will make it much more difficult for the Wisconsin’s burgeoning craft breweries to operate and expand their business by barring them from selling directly to restaurants and liquor stores, and preventing them from selling their own product onsite.

The new provision treats craft brewers — the 60 of whom make up just 5 percent of the beer market in Wisconsin — like corporate mega-brewers, forcing them to use a wholesale distributor to market their product. Under the provision, it would be illegal, for instance, for a small brewer located near a restaurant to walk next door to deliver a case of beer. They’ll have to hire a middle man to do it instead.

And, so, what corporate moneyed hacks are Walker and the Wisconsin GOP blowing this time? From OpenMarket.Org:

The biggest backer of the bill is SABMiller, or as it is known in the US, MillerCoors. They have been pushing the measure, they say, in order to protect the vitality of Wisconsin beer in the face of a hostile invasion from their main national competitor, AB InBev, aka Anheuser-Busch. InBev has reportedly begun a nationwide campaign to purchase distributors in many states, something that MillerCoors says threatens all other brewers’ ability to get their beers in bars and on shelves. That’s the line that MillerCoors is peddling, but craft brewers in Wisconsin say they, and their ever increasing presence in the beer market, is the true target of the proposal.

So, the one thing we will not tolerate here is an attack on quality beer. Nawt gonna happen. there was some yammering here last night about whether so and so or no and no would or wouldn’t vote for Feingold – apparently for President, it was hard to tell. But here, Wheelies and Wheelers, is a real decision point. Would you trade Russ Feingold for Scott Walker? Because that decision is a real possibility for the Wisconsonites.

That is a deal that should be made all day, and all night, long.

As you know, our very own lovely and talented Marcy T. Wheeler introduced guest of honor Sen. Russell Feingold last night at the gala session of Netroots Nation 2011 in Minneapolis, Minnesota. As I am just arriving in Minneapolis as I post, and lord knows what trouble we may get into over the extended weekend (may even be beer drinking), be advised there will be substantive blogging here at Emptywheel, but the timing of the posts may be a bit, ahem, unusual. Hopefully Mary will also be supplying some coverage.

Ellen Nakashima reports on a partnership between the NSA, defense contractors, and their Internet service providers to find hackers before they hack.

The National Security Agency is working with Internet service providers to deploy a new generation of tools to scan e-mail and other digital traffic with the goal of thwarting cyberattacks against defense firms by foreign adversaries, senior defense and industry officials say.

[snip]

Officials say the pilot program does not involve direct monitoring of the contractors’ networks by the government. The program uses NSA-developed “signatures,” or fingerprints of malicious code, and sequences of suspicious network behavior to filter the Internet traffic flowing to major defense contractors. That allows the Internet providers to disable the threats before an attack can penetrate a contractor’s servers. The trial is testing two particular sets of signatures and behavior patterns that the NSA has detected as threats.

The Internet carriers are AT&T, Verizon and CenturyLink. Together they are seeking to filter the traffic of 15 defense contractors, including Lockheed, Falls Church-based CSC, McLean-based SAIC and Northrop Grumman, which is moving its headquarters to Falls Church. The contractors have the option, but not the obligation, to report the success rate to the NSA’s Threat Operations Center.

From a technical stand-point, this is probably a better way to find hackers than waiting until they steal your data. But of course, it raises all sorts of privacy issues.

But for all the generalized concerns I have about it, I kept thinking of HB Gary when I read this story. After all, the NSA is surely working with contractors on their own side of this. And threat detection like this is precisely the kind of thing HB Gary did, before they started pitching the Chamber of Commerce to spy on activists.

So who are the other contractors involved in this, and what else are they doing with the technology?

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As most of you know by now, Netroots Nation 2011 is in full swing in the beautiful hamburg of Minneapolis Minnesota. Earlier today, our own Jane Hamsher appeared front and center with Dan Choi on a DADT panel. Tonight FDL takes center stage again, in a big way, with our own Marcy Wheeler having the distinct pleasure of introducing the guest of honor for the main festivities for the evening, Senator Russell Feingold.

Russ Feingold is a hero, and for good reason, to progressives. Russ was one, if not the only one, of the Democratic Senate, make that Senate as a whole, who really stood up for civil liberties in the face of the bipartisan onslaught that has occurred over the last decade, both under George Bush and Barack Obama.

So, please join me, Firedoglake, Netroots Nation, and the progressive enterprise as Marcy Wheeler welcomes one of us: Senator Russell Feingold. The video is a live stream of the event, I am not sure when Marcy and Russ will be up.

The government argues that, in spite of the fact that Saifullah Paracha’s Gitmo Detainee Assessment Brief was leaked in April, his lawyer, David Remes, cannot talk about it. Because if he did, we might conclude the DAB was real.

Granting Petitioner’s request could also be detrimental to the interests of national security, given the access to classified information that petitioners’ counsel enjoy but that members of the public at large do not. Reliance on the purported detainee assessments leaked to WikiLeaks in unclassified public writings by habeas counsel known to have access to classified information could be taken as implicit authentication of the reports and the information contained therein.

Of course, no one really doubts that it is real. But the government will claim that this public information remains classified to make sure Remes can’t mention the information. Remes can only represent his client, I guess, in court, not in the public sphere.

The problem, of course, is that the file contains obvious problems–if not out and out lies, then at least one gross misrepresentation, to wit: the government claims that Aafia Siddiqui “was detained in Afghanistan in mid-July 2008” (see Detainee assessment (the Scribd like embed at the link), page 5).

There are certainly other areas Remes would be interested in discussing and having the freedom to argue to the public on behalf of his client, because that is not only what defense lawyers are supposed to do, but are ethically required to do, in order to provide a zealous representation for their client.

The real extent of the conundrum this places Remes, and similarly situated Gitmo counsel, in is demonstrated by this from the Blog of Legal Times at the National Law Journal:

Remes, the department said, cannot have unrestricted use of the documents that the government refuses to confirm or deny are authentic assessments of detainees. DOJ’s submission (PDF) expands on the scope of the guidance the department issued this month to lawyers in Guantanamo habeas cases.

In court papers, the DOJ theme is clear: the Justice Department over and over refused to confirm or deny that any individual WikiLeaks document is an official government record.

“Unfettered public use, dissemination, or discussion of these documents by cleared counsel could be interpreted as confirmation (or denial) of the documents’ contents by an individual in a position of knowledge, with corresponding harm to national security,” DOJ Civil Division attorney Kristina Wolfe said in court papers.

The government, Wolfe said, cannot acknowledge the authenticity of one document and then refuse to substantiate another document. The “very act of refusal would in effect reveal the information the government seeks to protect—the authenticity of the purportedly classified document,” Wolfe said.

This is beyond absurd, the DOJ is refusing to admit or deny, and is wantonly limiting the ability of lawyers to use, something the entire world is in on. They are treating the information like it is secret material under a Glomar exception to FOIA. And they do not even have the honesty to admit that is what they are doing, probably because an actual Glomar discussion would make them look like idiots. For those unfamiliar with Glomar, here is a description from the recent case of Wilner v. NSA:

The NSA and DOJ served and filed so-called Glomar responses—neither confirming nor denying the existence of such records—pursuant to FOIA Exemptions 1 and 3. Whether, as a general matter, agencies may invoke the Glomar doctrine and whether, in particular, the NSA may invoke the Glomar doctrine in response to a FOIA request for records obtained under the Terrorist Surveillance Program (“TSP”) are both questions of first impression for our Court.

We affirm the judgment of the District Court upholding the NSA’s Glomar response and hold that: (1) a Glomar response is available to agencies as a valid response to FOIA requests; (2) an agency may issue a Glomar response to FOIA requests seeking information obtained pursuant to a “publicly acknowledged” intelligence program such as the TSP, at least when the existence of such information has not already been publicly disclosed; (3) the NSA properly invoked the Glomar doctrine in response to plaintiffs’ request for information pursuant to FOIA Exemption 3; (4) the government’s affidavits sufficiently allege the necessity of a Glomar response in this case, making it unnecessary for us to review or to require the District Court to review ex parte and in camera any classified affidavits that the NSA might proffer in support of its Glomar response; and (5) we find no evidence in the record that the NSA invoked Glomar for the purpose of concealing activities that violate the Constitution or are otherwise illegal. We agree with counsel for all parties that we need not reach the legality of the underlying TSP because that question is outside of the scope of this FOIA action.

And, see, that is what is wrong with this craven charade by the DOJ – the information is about as publicly disclosed and known as could be imaginable under the circumstances. Not to mention that many of the activities the Gitmo Habeas counsel like Remes want to discuss freely are activities that are precisely those that “violate the Constitution or are otherwise illegal”.

The other thing of note, especially to readers of this blog, was the somewhat desperate attempt to distinguish the judgment of Judge Vaughn Walker in al-Haramain v. Bush (see page 7 here) by referring to that part of al-Haramain that discussed not-public classified information instead of the critical part of the opinion that was based on information well within the public sphere, such as the WikiLeaks material now is.

No matter how you look at this attempt to suppress and ignore the WikiLeaks material, it is bizarre and somewhat comical. The WikiLeaks Gitmo Detainee files genie is out of the bottle; it would behoove the US government to join the battle and arguments on the merits and facts instead of trying to cram the genie back in and play hide the bottle.

[Editor’s Note: This post was started by Marcy, but finished by bmaz; so we are both responsible, whether good or bad!]

James Risen reports that Glen Carle, a former CIA officer, says the Bush Administration was looking for dirt on Juan Cole in 2005. In one incident, Carle’s supervisor asked whether the CIA had anything on Cole.

Mr. Carle said that sometime that year, he was approached by his supervisor, David Low, about Professor Cole. Mr. Low and Mr. Carle have starkly different recollections of what happened. According to Mr. Carle, Mr. Low returned from a White House meeting one day and inquired who Juan Cole was, making clear that he wanted Mr. Carle to gather information on him. Mr. Carle recalled his boss saying, “The White House wants to get him.”

“ ‘What do you think we might know about him, or could find out that could discredit him?’ ” Mr. Low continued, according to Mr. Carle.

Mr. Carle said that he warned that it would be illegal to spy on Americans and refused to get involved, but that Mr. Low seemed to ignore him.

“But what might we know about him?” he said Mr. Low asked. “Does he drink? What are his views? Is he married?”

Then, several months later, a CIA analyst sought information about Cole again.

Several months after the initial incident, Mr. Carle said, a colleague on the National Intelligence Council asked him to look at an e-mail he had just received from a C.I.A. analyst. The analyst was seeking advice about an assignment from the executive assistant to the spy agency’s deputy director for intelligence, John A. Kringen, directing the analyst to collect information on Professor Cole.

Now, Risen connects these two incidents with successful right wing attempts to persuade Yale not to offer Cole a prestigious position.

Cole’s critics — in The New York Sun, National Review, The Wall Street Journal and elsewhere, several of whom are now praising Yale for not hiring him — have maintained that they aren’t using political tests, but object to Cole’s career on a variety of grounds. They point to numerous quotes he has made (generally in his blog) that they say show a willingness to blame the United States and Israel inappropriately (Cole has said that some of the quotes are taken out of context and that others represent legitimate opinion). Several have also criticized his scholarship, saying that he is spending too much time on blogging and questioning his output of serious scholarship. (His supporters point to a long publication list.) Campus Watch, a pro-Israel group, maintains a long list of articles about Cole, most of which it endorses for their criticism of him.

But the timing also happens to coincide with Juan Cole’s correct predictions that Ahmed Chalabi would not win the 2005 Iraqi elections. We know from AJ Rossmiller that the intelligence community made great efforts to ignore Cole’s predictions.

Chalabi won just .5% of the vote. Iyad Allawi, in whom the Administration also invested their hopes, won just 8% of the vote. And the Shiite coalition dominated by SCIRI and the Sadrists got 41% of the votes. In his book, Still Broken, AJ describes that he saw this coming.

After Iraq’s winter elections, the results validated the predictions contained in the paper I’d written in the fall. It created something of a stir because the paper turned out to be remarkably accurate, far more so than the forecasts of other agencies and departments. Before the election occurred, a high-ranking official requested a follow-up evaluation of our assessments, and I wrote a memo that described our precision. The memo made its way up through the chain, and a few days later the office got a note from Stephen Cambone, the Undersecretary of Defense for Intelligence, praising both the prediction and the self-evaluation.

Unfortunately, the bulk of the last half of AJ’s book describes how such accurate predictions are generally weeded out by higher-ranking analysts worried that their office’s work product might piss off the Administration.

[snip]

When AJ was asked how he got the 2005 election right, one of the things he pointed to, half-seriously, was the open source work of Juan Cole.

I began to write the explanation of our methodology, and I tried to resist the temptation to criticize other agencies while explaining how and why we did things differently. State, in particular, was very sensitive about their screwup, and I didn’t want to piss anybody off.

“Sir, can’t I just say that I copied and pasted Juan Cole?”

Now, I’m not suggesting that the White House was digging dirt on Juan Cole because he correctly predicted Ahmed Chalabi would get smoked in a democratic election.

But it’s probably worth noting what opinions Cole expressed that generated this attention in the first place.

Adam Goldman significantly fleshes out the story of what happened to Hassan Ghul after he was picked up in Iraq in 2004. It appears that Ghul may have been freed by the Pakistanis sometime after January 2007 because of his ties to Lashkar-e-Taiba, which has close ties to the ISI.

The whole article is worthwhile for its depiction of Pakistan’s protection of Ghul (as is this story which describes the arrest of a bunch of the Pakistanis who helped us find Osama bin Laden).

But I wanted to call attention to a weird detail in Goldman’s story.

In a joint operation with the Kurds, Ghul was nabbed in northern Iraq in January 2004, former CIA officials said. Pakistan was furious when it learned the CIA had Ghul and pressed the U.S. to return him.Instead, Ghul was taken to Bagram Air Base in Afghanistan but was later removed over questions about whether the transfer was legal, former CIA officials said. Ghul then was taken to a CIA “black site” — a secret prison — in Eastern Europe and provided information about bin Laden’s most trusted courier before he was exposed to harsh interrogation techniques. Ghul’s information later allowed the CIA to realize that finding the courier probably would lead to bin Laden.

This seems to confirm that the 2004 discussions on the legality of removing a detainee from Iraq pertained, in part, to Ghul (it also seems to confirm that the detainee tortured in August 2004 was not Ghul, but another Ghul).

What does it mean, though, that in response to concerns about the legality of removing him from Iraq, we then moved him from Afghanistan (another country we arguably occupied) to one of our “black sites”?

And given that he was reportedly cooperating from early after his capture, was he moved to the black site solely to keep him hidden further away?

Jon Tester is, to the best of my knowledge, the first member of Congress to complain about FBI’s new investigative guidelines allowing agents to–among other thing–search potential informants’ trash.

As a strong believer in government accountability and person privacy rights, I find it unacceptable that you would lower the threshold further for engaging in surveillance on Americans who are not suspected of criminal wrongdoing. It is unconscionable for FBI to pursue policies that allow agents to search commercial or law enforcement databases–or even an individuals garbage–without adequate justification and proper record-keeping. I ask you to retain your current protocol, where agents must open such inquiries with due diligence before they can search for information. Until law enforcement agents have reason to investigate any American, it is unacceptable for those agents to cast a wide, non-specific net when they are evaluating a target as a potential informant.

I guess the other 534 members of Congress have no problem with the FBI rifling through their trash.