Who Will Redact Our Next Big Constitutional Debate?

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In her Gitmo anniversary piece, Dahlia Lithwick, piggybacking on Adam Liptak’s earlier report, used the extensive redactions in the DC Circuit Opinion overturning Adnan Latif’s habeas petition to illustrate how little the courts are telling us about his fate, our detention program, and its impact on the most basic right in this country, habeas corpus.

But in the spirit of the day, I urge you to stop for a moment and look at the decision itself, so heavily redacted that page after page is blacked out completely. The court, in evaluating a secret report on Latif, can tell us very little about the report and thus the whole opinion becomes an exercise in advanced Kafka: The dissent, for instance notes that “As this court acknowledges, “the [district] court cited problems with the report itself including [REDACTED]. … And according to the report there is too high a [REDACTED] in the report for it to have resulted from [REDACTED].” Liptak describes all this as an exercise in “Mad Libs, Gitmo Edition.” But in the end, it’s also an exercise in turning the legal process of assessing the claims of these prisoners at Guantanamo Bay into something that replaces one legal black hole with another: pages and pages of black lines that obscure in words what has been obscured in fact. Americans will never know or care what was done at the camp and why if the legal process that might have transparently corrected errors happens behind blacked-out pages.

Latif’s classified petition for cert has just been filed.

We won’t get to see that petition, though, until after the court redacts it, at which point it will presumably look just like the Circuit Opinion–page after page of black lines.

It’s worth asking who will get to redact that petition, which is after all an important effort not only to free a man cleared for release years ago, but also to restore separation of powers and prevent detainees and Americans alike from being held solely on the basis of an inaccurate intelligence report.

That’s important because, thus far, the existing court documents in this case have been redacted inconsistently.

We know that because the dissent in the Circuit Opinion quotes language from Judge Henry Kennedy’s ruling, yet that language doesn’t appear anywhere in the unredacted sections of his ruling itself. For example, David Tatel refers to the “factual errors” Kennedy described (21; PDF 88) and cites Kennedy’s repetition of Latif’s explanation for having lost his passport–he “gave it to Ibrahim [Alawi] to use in arranging his stay at a hospital.” (37; PDF 104)  Yet the appearances of these phrases have been entirely redacted from Kennedy’s opinion (there are many more fragments for which the same is true, supporting general claims about the inaccuracy of the report, but they are less specific).

Read more →

Peter King, Movie Mogul

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Peter King, the former terrorist sympathizer conducting witch hunts against alleged terrorist sympathizers, is not one to assail others for their gross hypocrisy. And technically, that’s not what his complaint about apparent Administration plans to cooperate in an Osama bin Laden Fuck Yeah movie set to release just as voters start thinking about the November election. King is purportedly less concerned about the Administration’s glaring hypocrisy on leaks and more concerned about leaks in general. Though given his silence about this leak fest, I’d wager he’s most concerned that voters might learn that it took a Democratic Administration to actually hunt down OBL.

In response to King’s request and in response to a preliminary review, DOD has promised to start an investigation into the charges immediately.

The CIA’s response was more ambiguous. It noted that,

The CIA’s Office of Public Affairs handles requests for information from the entertainment industry. According to a senior official from that office, the protection of national security equities–including the preservation of our ability to conduct effective counterterrorism operations–is the decisive factor in determining how the CIA engages with filmmakers and the media as a whole.

It seems to me this policy allows CIA to cooperate with Hollywood if doing so would make Americans enthusiastically support exciting operations against big movie villains. It allows CIA to cooperate with Hollywood to ensure CIA gets full credit for offing OBL (even if that slights the SEALs involved). In other words, there’s a whole lot that might be fall under CIA’s own definition of what might “preserv[e its] ability to conduct effective counterterrorism operations.” All the more so under a Director who’s a bit of a media magnet.

In any case, it’d be nice if King’s claimed stance towards classified information…

The Administration’s first duty in declassifying material is to provide full reporting to Congress and the American people, in an effort to build public trust through transparency of government. In contrast, this alleged collaboration belies a desire of transparency in favor of a cinematographic view of history.

Was embraced by anyone in DC, Democrat or GOP.

But King, for his own part, has been working so hard to create a different villain, I doubt we’ll get it from him, either.

On the Manning Art. 32, Court Secrecy & Nat. Sec. Cases

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I somehow stumbled into an article for The Nation by Rainey Reitman entitled Access Blocked to Bradley Manning’s Hearing. To make a long story short, in a Twitter exchange today with Ms. Reitman and Kevin Gosztola of Firedoglake (who has done yeoman’s work covering the Manning hearing), I questioned some of the statements and inferences made in Ms. Reitman’s report. She challenged me to write on the subject, so here I am.

First, Ms. Reitman glibly offered to let me use her work as “foundation” to work off of. Quite frankly, not only was my point not originally to particularly go further; my point, in fact, was that her foundation was deeply and materially flawed.

Reitman starts off with this statement:

The WikiLeaks saga is centered on issues of government transparency and accountability, but the public is being strategically denied access to the Manning hearing, one of the most important court cases in our lifetime.

While the “WikiLeaks saga” is indeed centered on transparency and accountability for many of us, that simply is not the case in regard to the US Military prosecution of Pvt. Bradley Manning. The second you make that statement about the UCMJ criminal prosecution of Manning, you have stepped off the tracks of reality and credibility in court reportage and analysis. The scope of Manning’s Article 32 hearing was/is were the crimes detailed in the charging document committed and is there reason to believe Manning committed them. Additionally, in an Article 32 hearing, distinct from a civilian preliminary hearing, there is limited opportunity for personal mitigating information to be adduced in order to argue for the Investigating Officer to recommend non-judicial punishment as opposed to court martial trial. That is it. There is no concern or consideration of “transparency and accountability”, within the ambit suggested by Ms. Reitman, in the least.

Calling the Manning Article 32 hearing “one of the most important court cases in our lifetime” is far beyond hyperbole. First off, it is, for all the breathless hype, a relatively straight forward probable cause determination legally and, to the particular military court jurisdiction it is proceeding under, it is nothing more than that. The burden of proof is light, and the issues narrow and confined to that which is described above. The grand hopes, dreams and principles of the Manning and WikiLeaks acolytes simply do not fit into this equation no matter how much they may want them to. Frankly, it would be a great thing to get those issues aired in this country; but this military UCMJ proceeding is not, and will not be, the forum where that happens.

Moving on, Reitman raises the specter of “the death penalty” for Manning. While the death penalty remains a technical possibility under one of the charges, the prosecution has repeatedly stated it will not be sought and, after all the statements on the record in that regard, there is simply no reason to embellish otherwise. Reitman next states:

This case will show much about the United States’s tolerance for whistleblowers who show the country in an unflattering light.

No, it most certainly will not. In fact, the Manning criminal military prosecution has nothing whatsoever to do with “whistleblowers”. Despite the loose and wild eyed use of the term “whistleblower” in popular culture, not to mention by supporters of Bradley Manning, the concept Read more →

Obama Apologists Ignoring the Rotting Corpse of Anwar al-Awlaki

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It’s been amusing to see how Obama apologists have taken Lawfare’s very helpful explainer on the NDAA’s detainee provisions to pretend that their president isn’t signing a bill that he believes authorizes the indefinite detention of American citizens.

Take this example from Karoli.

Here’s how she claims that Lawfare proves that the bill doesn’t authorize indefinite detention of American citizens.

Key point rebutting the contention that the indefinite detention provisions apply to United States citizens:

Section 1022 purports not merely to authorize but to require military custody for a subset of those who are subject to detention under Section 1021. In particular, it requires that the military hold “a covered person” pending disposition under the law of war if that person is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda” and is participating in an attack against the United States or its coalition partners. The president is allowed to waive this requirement for national security reasons. The provision exempts U.S. citizens entirely, and it applies to lawful permanent resident aliens for conduct within the United States to whatever extent the Constitution permits. It requires the administration to promulgate procedures to make sure its requirements do not interfere with basic law enforcement functions in counterterrorism cases. And it insists that “Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.” [emhasis original]

Of course, Karoli can only make this claim by pretending that section 1022–the section that makes military detention presumptive for non-citizens but doesn’t foreclose military detention of US citizens–is section 1021–the section that affirms the President’s authority to indefinitely detain people generally. And she can also make this claim only by ignoring the section where Lawfare answers her question directly.

Does the NDAA authorize the indefinite detention of citizens?

No, though it does not foreclose the possibility either.

The NDAA doesn’t do anything to exempt Americans from indefinite detention. And the reason it doesn’t–at least according to the unrebutted claims of Carl Levin that I reported on over a month ago–is because the Administration asked the Senate Armed Services Committee to take out language that would have specifically exempted Americans from indefinite detention.

The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

So the effect is that (as Lawfare describes in detail) the bill remains unclear about whether Americans can be detained indefinitely and so we’re left arguing about what the law is until such time as a plaintiff gets beyond the Executive Branch’s state secrets invocations to actually decide the issue in court.

But what’s not unclear is what Obama believes about the bill he’s signing. That’s true not just because (again, according to the unrebutted statement of Carl Levin) the Administration specifically made sure that the detention provisions could include Americans, but because the Administration used a bunch of laws about detention to justify the killing of American citizen Anwar al-Awlaki.

And, as Charlie Savage has reported, the legal justification the Administration invented for killing an American citizen in a premeditated drone strike consists of largely the same legal justification at issue in the NDAA detainee provisions.

  • The 2001 AUMF, which purportedly defined who our enemies are (though the NDAA more logically includes AQAP in its scope than the 2001 AUMF)
  • Hamdi, which held the President could hold an American citizen in military detention under the 2001 AUMF
  • Ex Parte Quirin, which held that an American citizen who had joined the enemy’s forces could be tried in a military commission
  • Scott v. Harris (and Tennesee v. Garner), which held that authorities could use deadly force in the course of attempting to detain American citizens if that person posed an imminent threat of injury or death to others

In other words, Obama relied on substantially the same legal argument supporters of the NDAA detainee provisions made to argue that indefinite detention of American citizens was legal, with the addition of Scott v. Harris to turn the use of deadly force into an unfortunate side-effect of attempted detention. [original typos corrected]

We don’t have to guess about what the Administration believes the law says about detention and its unfortunate premeditated side effect of death because we have the dead body of Anwar al-Awlaki to make it clear that the Administration thinks Hamdi gives the Executive expansive war powers that apply even to American citizens.

You don’t get to the targeted killing of American citizens (which, after all, doesn’t offer the possibility of a habeas corpus review) without first believing you’ve got the power to indefinitely detain Americans (with habeas review).

Now, to Obama’s, um, credit, I don’t think he actually wants to indefinitely detain Americans. He seems to have figured out that the civilian legal system is far more effective–and plenty flexible–for detaining terrorists for long (and usually life, in the case of actual terrorist attackers) sentences. He doesn’t necessarily want to use the power of indefinite detention he believes he has, but (as the unrebutted claims of Carl Levin make clear) he wants to be able to continue to claim he has it, probably because a bunch of other claimed authorities–demonstrably, targeted killing, and probably some kinds of domestic surveillance–depend on it.

But that doesn’t excuse what he will do by signing the bill into law. He’s signing a bill that grants the executive broad powers of detention that he believes to include American citizens. And while he may not want to detain Americans, that’s no guarantee that President Newt won’t want to.

Drone War Secrecy and Kill or Capture

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As we stand on the doorstep of President Obama signing into law the new NDAA and its dreaded controversial provisions, there are two new articles out of interest this morning. The first is an incredibly useful, and pretty thorough, synopsis at Lawfare of the new NDAA entitled “NDAA FAQ: A Guide for the Perplexed”. It is co-written by Ben Wittes and Bobby Chesney and, though I may differ slightly in a couple of areas, it is not by much and their primer is extremely useful. I suggest it highly, and it has condensed a lot of material into an easily digestible blog length post.

The second is a long read from the Washington Post on how secrecy defines Obama’s drone wars:

The administration has said that its covert, targeted killings with remote-controlled aircraft in Pakistan, Yemen, Somalia and potentially beyond are proper under both domestic and international law. It has said that the targets are chosen under strict criteria, with rigorous internal oversight.
….
“They’ve based it on the personal legitimacy of [President] Obama — the ‘trust me’ concept,” Anderson said. “That’s not a viable concept for a president going forward.”

The article goes on to state how the CIA, and the majority of voices in the White House, are fighting tooth and nail for continued utmost secrecy lest any of our enemies somehow discover we are blowing them to bits with our drones. This is, of course, entirely predictable, especially now that the former head of the CIA leads the military and the former military chief for the greater Af/Pak theater which has long been ground zero for the drone kill program, Petraeus, is the head of the CIA.

But then the Post piece brings up our old friend, the OLC:

The Justice Department’s Office of Legal Counsel has opposed the declassification of any portion of its opinion justifying the targeted killing of U.S. citizen Anwar al-Awlaki in Yemen this year. Awlaki, a propagandist for the Yemen-based al-Qaeda affiliate whom Obama identified as its “external operations” chief, was the first American known to have been the main target of a drone strike. While officials say they did not require special permission to kill him, the administration apparently felt it would be prudent to spell out its legal rationale.
….
Under domestic law, the administration considers all three to be covered by the Authorization for Use of Military Force that Congress passed days after the Sept. 11, 2001, attacks. In two key sentences that have no expiration date, the AUMF gives the president sole power to use “all necessary and appropriate force” against nations, groups or persons who committed or aided the attacks, and to prevent future attacks.

The CIA has separate legal authority to conduct counterterrorism operations under a secret presidential order, or finding, first signed by President Ronald Reagan more than two decades ago. In 1998, President Bill Clinton signed an amendment, called a Memorandum of Notification, overriding a long-standing ban on CIA assassinations overseas and allowing “lethal” counterterrorism actions against a short list of named targets, including Osama bin Laden and his top lieutenants. Killing was approved only if capture was not deemed “feasible.”

A week after the Sept. 11 attacks, the Bush administration amended the finding again, dropping the list of named targets and the caveat on “feasible” capture.

“All of that conditional language was not included,” said a former Bush administration official involved in those decisions. “This was straight-out legal authority. . . . By design, it was written as broadly as possible.”

This brings us back to the notable October 8, 2011 article by the New York Times’ Charlie Savage on his viewing of the Awlaki targeting memo relied on by the Obama White House for the extrajudicial execution of Anwar al-Awlaki. Marcy, at the time discussed the incongruity of the collateral damage issue and the fact Samir Khan was also a kill in the targeted Awlaki strike.

I would like to delve into a second, and equally misleading, meme that has been created by the self serving and inconsistent secret law Obama has geometrically expanded from the already deplorable Bush/Cheney policy set: the false dichotomy in the kill or capture element of the Read more →

Serial Abuser of Executive Branch “Flexibility,” John Brennan, Making Veto Case on Detainee Provisions

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I have already said I think Obama needs to veto the Defense Authorization because of the detainee provisions. And I have argued that the Administration needs to lay the groundwork for doing so right now, preferably by fear-mongering about how much less safe presumptive military detention would make us.

Obama claims he’s still going to veto the Defense Authorization because of these detainee provisions. Good. I think he should. But if he really plans to do so, someone needs to be fear-mongering 24/7 about how much less safe these provisions will make us (and they will).

But I’m dismayed the Administration has chosen John Brennan, of all people, to do so. (h/t Ben Wittes)

The Administration has chosen someone who served as a top CIA executive during the period it developed its torture program to go out and argue the Executive Branch needs “flexibility” in detention to collect intelligence.

And so, what we’ve tried to do in this administration is to maintain as much flexibility as possible. And anything that restricts our flexibility in terms of how we want to detain them, question them, prosecute them is something that counterterrorism professionals and practitioners really are very concerned about.

[snip]

What we want to do is to extract the intelligence from them so that we can keep this country safe. We cannot hamper this effort. It’s been successful to date and this legislation really puts that at risk. [my emphasis]

We let a President have that kind of unrestricted flexibility on how to detain suspected terrorists and he used it to order Brennan’s agency to engage in torture.

But it’s not just with torture that John Brennan has been party to the Executive Branch’s abuse of this kind of unfettered “flexibility” in the past.

As I’ve pointed out, one of the problems (for the Administration) with the AUMF-affirming language in the Senate detainee provisions is that it may circumscribe the Administration’s ability to claim that terrorists with no ties to al Qaeda are legitimate military targets. That broader interpretation, relying on the Iraq AUMF, was implemented in 2004 to authorize things that presumably were already being done with the illegal wiretap program. When that May 2004 opinion was written, John Brennan oversaw the targeting–relying on that expansive definition–for the illegal wiretap program.

And then there’s the Administration’s insistence that no court should be able to review their decisions about who is and is not an enemy under the AUMF and whether those enemies represent an imminent threat. They prevented such a review with Anwar al-Awlaki, in part, by invoking state secrets over the precise terms at issue in the detainee language. Yet after the Administration killed Awlaki, Administration officials spilled state secrets repeatedly, at times solely to boast about the kill. Brennan even provided details covered under state secrets declarations on the record. The Administration’s badly hypocritical approach to secrecy in the case of Awlaki, particularly its failure to prosecute John Brennan for leaking state secrets, makes it clear their state secrets invocation had nothing to do with national security, but instead had to do with remaining free from any oversight–with retaining the maximum “flexibility,” if you will–over precisely the issues at the core of the detainee provisions. And as with torture and illegal wiretapping, John Brennan was at the center of that gross abuse of executive power as well.

There are some superb reasons to veto the Defense Authorization because of the detainee provisions: largely because DOJ has proven best able to interrogate and prosecute terrorists in the last decade. And there are some horrible reasons to do so: to allow the Executive Branch to continue to wield expanded powers with almost no oversight.

John Brennan is, in this Administration at least, the personification of all the horrible reasons.

Update: The AP reports the Administration is conducting a “full court press” to get changes to the bill. But look at what they point to to justify their “flexibility:”

The administration insists that the military, law enforcement and intelligence agents need flexibility in prosecuting the war on terror. Obama points to his administration’s successes in eliminating Osama bin Laden and al-Qaida figure Anwar al-Awlaki. Republicans counter that their efforts are necessary to respond to an evolving, post-Sept. 11 threat, and that Obama has failed to produce a consistent policy on handling terror suspects. [my emphasis]

Frankly, they’d probably be able to assassinate Awlaki under the new bill. But it’s telling they point to it–based as it is on their ability to interpret the AUMF in secrecy and with no oversight–as their justification for “flexibility.”

Ahmed Abdulkadir Warsame and the Paper Trail Preventing Floating Ghost Prisons

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Given the defeat of the Udall Amendment, it looks likely the Defense Authorization will include provisions mandating military detention for most accused terrorists (though the Administration has already doubled down on their veto threat).

So I’d like to look at an aspect of the existing detainee provision language that has gotten little notice: the way it requires the Administration to create a paper trail that would prevent it from ghosting–disappearing–detainees. In many ways, this paper trail aspect of the detainee provisions seems like a justifiable response to the Administration’s treatment of Ahmed Abdulkadir Warsame.

The Administration unilaterally expanded detention authorities in its treatment of Warsame

As you recall, Ahmed Abdulkadir Warsame is a Somali alleged to be a member of al-Shabab with ties with Al Qaeda in the Arabian Peninsula. When the Administration detained Warsame, al-Shabab was not understood to fall under the 2001 AUMF language. The Administration effectively admitted as much, anonymously, after he was captured.

While Mr. Warsame is accused of being a member of the Shabab, which is focused on a parochial insurgency in Somalia, the administration decided he could be lawfully detained as a wartime prisoner under Congress’s authorization to use military force against the perpetrators of the Sept. 11, 2001, attacks, according to several officials who spoke on the condition of anonymity to discuss security matters.

But the administration does not consider the United States to be at war with every member of the Shabab, officials said. Rather, the government decided that Mr. Warsame and a handful of other individual Shabab leaders could be made targets or detained because they were integrated with Al Qaeda or its Yemen branch and were said to be looking beyond the internal Somali conflict.

And while he had no problem extending the AUMF to include al-Shabab in the war on terror detention authorities, one of the big SASC champions of these detainee provisions, Lindsey Graham, clearly believed Warsame was not included in existing detention authorities.

Senator Lindsey Graham, Republican of South Carolina, said in an interview that he would offer amendments to a pending bill that would expand tribunal jurisdiction and declare that the Shabab are covered by the authorization to use military force against Al Qaeda.

So to begin with, Warsame was detained under AUMF authority that one loud-mouthed, hawkish member of the SASC didn’t believe was actually included under it.

And then there’s the way the Administration ghosted Warsame for 2 months.

The US captured Warsame on April 19, then whisked him away to the amphibious assault ship, the Boxer, where he was interrogated by members of the High Value Detainee Interrogation Group (which, remember, includes DOJ, Intelligence, and military members) for two months. Read more →

This FOIA Request Will Self-Destruct in 10 Seconds

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National Security Archive has an update on DOJ’s efforts to limit FOIA in the guise of transparency (or, potentially, simply admit what they’ve been doing for some time). It describes some of the other crummy things DOJ is trying to do (including describing online news as not-news).

One of those is to introduce a loophole allowing DOJ to destroy records.

The Department of Justice’s  regulations also include a provision to allow the destruction of records. While the law currently states that “Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA,” the Department of Justice wants to change the wording of this regulation to “Records that are identified as responsive to a request will not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.” This narrows the scope of an agency’s obligation to preserve records and grants it the authority to destroy records that are the subject of a pending request but not “identified as responsive to a request,” which only the agency would be responsible for determining. This proposal runs counter to the intent of the FOIA and would allow agencies to place records that may have been improperly withheld beyond judicial review. [emphasis original]

Hmm. Back when we consulted Ed Meese on how to handle FOIAs of stuff like ongoing investigations, informants, and that old grab bag of classified intelligence, here’s how he said DOJ would respond:

Where an exclusion is employed, the agency is legally empowered to “treat” the excluded records as not subject to the FOIA at all. Accordingly, a requester can properly be advised in such a situation that “there exist no records responsive to your FOIA request.” Such phrasing — as opposed to any more detailed statement that, for example, any records specified in a particular request “could not be located” — most rationally and fairly implements an exclusion’s effect.

In other words, material that falls under these exclusions are “not subject to the FOIA at all.”

Now put these two together: If something falls under an exclusion, it is deemed not-responsive to a request. And DOJ now says it is allowed to destroy records so long as they are not responsive to a request. Ergo, DOJ is now saying that if you request information about an investigation into yourself (or an informant or a broad range of classified intelligence information), they can first lie and say they don’t have those records, and the quickly destroy them, in case a judge deems them responsive after all.

John Rizzo Latest Target for DOJ Probe into Leaking

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It pains me to defend John Rizzo. After all, his willful dumbness–or more likely, outright deceit–played a key role in our country’s approval of torture.

Still, I have mixed feelings about investigating–and probably reprimanding, but not prosecuting–him.

The Justice Department is investigating whether a former top U.S. intelligence official, John Rizzo, improperly disclosed classified information about the CIA’s drone campaign, one of the spy agency’s most secretive and politically sensitive programs.

People familiar with the matter say that the CIA’s general counsel’s office opened the probe in March, shortly after Newsweek published an article in which Rizzo — who had retired in 2009 after serving as the CIA’s acting general counsel — outlined an array of specific details about how CIA officials choose terrorists for drone strikes and which American officials sign off on actually carrying them out.

[snip]

Investigations into current or former senior CIA officials like Rizzo are exceptionally rare, and people familiar with the investigation said they expected this one to end with some sort of formal reprimand, and possibly a financial penalty such as a decrease in his government pension, rather than with his imprisonment. Until the Justice Department decides what it wishes to do, however, the CIA cannot take any action.

Rizzo may have spoken on the record for this article out of pique that his torturers, but not Obama’s drone killers, had come under criticism (plus, I’d dispute that the drone strikes haven’t come under criticism).

But this kind of information is actually crucial for citizens in a democracy to know:

How CIA staffers determine whether to target someone for lethal operations is a relatively straightforward, and yet largely unknown, story. The president does not review the individual names of people; Rizzo explains that he was the one who signed off.

Read more →

If Gun Walking Is Wrong, Why Isn’t Nuclear Blueprint Walking?

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In his statement before the Senate Judiciary Committee today, Attorney General Holder tried to stave off questions about Fast and Furious by asserting that “gun walking” is wrong.

I want to be clear: any instance of so-called “gun walking” is unacceptable.   Regrettably, this tactic was used as part of Fast and Furious, which was launched to combat gun trafficking and violence on our Southwest Border.   This operation was flawed in concept, as well as in execution.   And, unfortunately, we will feel its effects for years to come as guns that were lost during this operation continue to show up at crimes scenes both here and in Mexico.   This should never have happened.   And it must never happen again.

It’s a statement he repeated a number of times during the hearing.

The emphasis on the problems with the technique of letting illegal guns pass into Mexico to allow the ATF to trace straw buyers represents a shift in the way Democrats are dealing with the Fast and Furious scandal by looking at similar efforts made under Attorney General Mukasey.

For example, to undercut Darrell Issa’s efforts on Oversight, Elijah Cummings has asked him to include the earlier instances under Mukasey.

A briefing paper prepared for Attorney General Michael Mukasey during the Bush administration in 2007 outlined failed attempts by federal agents to track illicitly purchased guns across the border into Mexico and stressed the need for U.S. and Mexican law enforcement officials to work together on such efforts using a tactic that now is generating controversy.The information contained in one paragraph of a lengthy Nov. 16, 2007, document marks the first known instance of an attorney general being given information about the tactic known as “gun-walking.” It since has become controversial amid a probe by congressional Republicans criticizing the Bureau of Alcohol, Tobacco, Firearms and Explosives for using it during the Obama administration in an arms-trafficking investigation called Operation Fast and Furious that focused on several Phoenix-area gun shop

[snip]

Maryland Rep. Elijah Cummings, top Democrat on the House Oversight and Government Reform Committee, wrote to the panel’s Republican chairman, Darrell Issa of California, asking that he call Mukasey to testify about his knowledge of the program.

“Given the significant questions raised by the disclosures in these documents, our committee’s investigation will not be viewed as credible, even-handed, or complete unless we hear directly from Attorney General Mukasey,” Cummings wrote.

It’s nice our elected officials are coming to the conclusion that it’s not a good idea to intentionally deal guns directly to people with ties to drug cartels.

But then why is Eric Holder’s DOJ prosecuting Jeff Sterling for allegedly exposing CIA’s practice of dealing nuclear blueprints to Iran (while, at the same time, alerting them to the flaws in those blueprints designed to sabotage their nuclear program)?

After all, if selling guns to cartel members presents unacceptably high possibility for unintended consequences, doesn’t passing on nuclear blueprints to Iran present an even greater risk?

And if that’s true, and if DOJ agrees that the ATF officers who exposed this program are whistleblowers, then doesn’t it follow that Sterling allegedly was, too?

If, as the Attorney General himself maintains, Fast and Furious was “flawed in concept, as well as in execution,” then what distinguishes it from Merlin?