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Speaking of that Man-Sized Safe…

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JimWhite noted that Senators Leahy, Jello Jay, DiFi, and Whitehouse have written the White House to warn Cheney to stop shredding. The letter seems to be a response–at least in part–to this passage from Barton Gellman’s Angler.

The command center of "the president’s program," as Addington usually called it, was not in the White House. Its controlling documents, which gave strategic direction to the nation’s largest spy agency, lived in a vault across an alley from the West Wing [7] — in the Eisenhower Executive Office Building, on the east side of the second floor, where the vice president headquartered his staff.

The vault was in EEOB 268, Addington’s office. Cheney’s lawyer held the documents, physical and electronic, because he was the one who wrote them. New forms of domestic espionage were created and developed over time in presidential authorizations that Addington typed on a Tempest-shielded computer across from his desk [8].

It is unlikely that the history of U.S. intelligence includes another operation conceived and supervised by the office of the vice president. White House Chief of Staff Andrew H. Card Jr. had "no idea," he said, that the presidential orders were held in a vice presidential safe. An authoritative source said the staff secretariat, which kept a comprehensive inventory of presidential papers, classified and unclassified, possessed no record of these.

In an interview, Card said the Executive Office of the President, a formal term that encompassed Bush’s staff but not Cheney’s, followed strict procedures for handling and securing presidential papers.

"If there were exceptions to that, I’m not aware of them," he said. "If these documents weren’t stored the right way or put in the right places or maintained by the right people, I’m not aware of it."

The Senators ask, 

Have you investigated allegations reported in the Washington Post on September 14, 2008, that the "staff secretariat, which kept a comprehensive inventory of presidential papers, classified and unclassified, possessed no record of" presidential orders in the safe of the Counsel to the Vice President? If so, what were the results of your investigation.

In addition, they also ask specifically about Dick’s own notes (and those of Addington and Libby and Bush, if he actually ever kept notes)a.

Does the White House believe that any notes or documents created by the President, the Vice President or their respective staffs may be destroyed without consultation with the Archivist? If so, which notes or documents, and why?

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David Addington?

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Really, really doesn’t want to be deposed by CREW.

Last week, the judge in CREW’s lawsuit against Vice President Dick Cheney approved our request to take the depositions of David Addington, Vice President Cheney’s chief of staff.

On the eve of that deposition, Vice President Cheney and the other defendants filed an emergency petition for a writ of mandamus with the U.S. Court of Appeals for the D.C. Circuit.

Mandamus is an extraordinary remedy and defendants seek it here to have the D.C. Circuit intrude directly into the district court litigation by demanding that the district court judge vacate her discovery orders. The petition is based on a claim that the discovery authorized by the district court raises serious separation of powers concerns merely because the deponent is David Addington.

I double dog dare the Appeals Court to tell David Addington that, even if such a deposition would present a problem according to Article II, separation of powers complaints are not available to the Fourth Branch.

Jane Mayer, the CIA Inspector General’s Report, and the Torture Tapes

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Though Mayer doesn’t connect the eventual destruction of the torture tapes in November 2005 with the Doug Jehl story published on November 9, 2005, revealing the conclusion of the CIA Inspector General’s report on torture, she reinforces a point I’ve made in the past–the decision to destroy the torture tapes was closely tied to the release of the IG report and the analysis made in the report.

The book is even more detailed than published excerpts have been about starkly the IG report changed the views on torture among some Administration officials, particularly Jack Goldsmith.

The 2004 Inspector General’s report, known as a "special review," was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply "sickening." The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, ome of whom seemed to have become frighteningly dehumanized. The source said, "You couldn’t read the documents without wondering, "Why didn’t someone say, ‘Stop!’"

Goldsmith was required to review the report in order to settle a sharp dispute that its findings had provoked between the Inspector General, Helgerson, who was not a lawyer, and the CIA’s General Counsel, Scott Muller, who was. After spending months investigating the Agency’s interrogation practices, the special review had concluded that the CIA’s techniques constituted cruel, inhuman, and degrading treatment, in violation of the international Convention Against Torture. But Muller insisted that every single action taken by the CIA toward its detainees had been declared legal by John Yoo. With Yoo gone, it fell to Goldsmith to figure out exactly what the OLC had given the CIA a green light to do and what, in fact, the CIA had done.

As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show. Goldsmith decline to be interviewed about the classified report for legal reasons, but according to those who dealt with him, the report caused him to question the whole program. The CIA interrogations seemed very different when described by participants than they had when approved on a simple menu of options. Goldsmith had been comfortable with the military’s approach, but he wasn’t at all sure whether the CIA’s tactics were legal. Read more →

The al-Haramain Decision

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Due to some doozy global warming storms last night, we had intermittent power, so I’m just now getting to the Vaughn Walker decision in the al Haramain case, in which he dismisses the suit but invites the plaintiffs to submit unclassified evidence in support of their case. So there’s already a range of smart commentary on the decision. The Electronic Frontier Foundation argues that Walkers ruling bodes well for their own case–which relies on the AT&T documents liberated by Mark Klein, and not classified evidence. Wired’s David Kravets notes that, coming as it does two business days before Congress will grant the telecoms immunity, the ruling has little meaning for EFF. McJoan basically makes the same argument–Congress is in the process of taking an unwieldy bad law and making it worse.

With regards the events of the next week, I sort of agree that this ruling will have little effect. There’s nothing in Walker’s ruling that will, by itself, persuade Barack Obama to take a stand on this legislation (he’s due to make an announcement about his stance on the legislation, but I don’t think this will change it one way or another). And I agree with Kravets–once Congress does pass its immunity, this ruling will be meaningless for those suing the telecoms (though perhaps it’ll make the likely suits that the immunity itself is illegal more interesting).

State Secrets Is Not Absolute

But the decision is interesting for two other reasons. First, Walker makes a strong case that the government’s ability to invoke state secrets is not absolute. Walker cites one of David Addington’s favorite cases, Navy v. Egan, to show that even that case envisions the possibility of Congress placing limits on the President’s ability to control national security information.

But Egan also discussed the other side of the coin, stating that “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Id at 530 (emphasis added). Egan recognizes that the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required. Egan’s formulation is, therefore, a specific application of Justice Jackson’s more general statement in Youngstown Sheet & Tube. [my emphasis]

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Are Cheney and Bush in a Lover’s Quarrel?

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Via TP, the Telegraph reports that Cheney’s in a snit over North Korea being taken off the Axis of Evil list.

Vice President Dick Cheney fought furiously to block efforts by Secretary of State Condoleezza Rice to strike a controversial US compromise deal with North Korea over the communist state’s nuclear programme, the Telegraph has learned.

"The exchanges between Cheney’s office and Rice’s people at State got very testy. But ultimately Condi had the President’s ear and persuaded him that his legacy would be stronger if they reached a deal with Pyongyang," said a Pentagon adviser who was briefed on the battle.

Mr Cheney’s office is believed to have played a key role in the release two months ago of documents and photographs linking North Korea to a suspected nuclear site in Syria that was bombed by Israeli jets last year.

[snip]

Mr Cheney was so angry about the decision to remove North Korea from the terrorism blacklist and lift some sanctions that he abruptly curtailed a meeting with visiting US foreign experts when asked about it in the White House last week, according to the New York Times "I’m not going to be the one to announce this decision. You need to address your interest in this to the State Department," he reportedly said before leaving the room.

I’m not surprised that Cheney’s pissed, mind you. One of the reasons he planted John Bolton at State, after all, was to scuttle any attempts at diplomacy with North Korea. Rather, I’m interested that Condi, not Dick, won this battle to influence the President. While Bush has allowed Condi some leeway in the Middle East, he has not backed Condi’s diplomacy over Dick’s belligerence on such a big issue thus far (though, you might consider the fact that we haven’t nuked Iran yet to be a sign of Condi’s influence).

It made me think of two details about Addington’s testimony the other day. Read more →

David Addington and The Barnacle Branch Exhibits

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Remember how, in lieu of an opening statement, David Addington entered a bunch of "exhibits" into the record yesterday?

Well, it looks like Addington was trying to do a couple of things with his collection of exhibits. First, and least interesting, was to make sure he had three documents in which President Bush directly guided the nation’s torture policy ready at hand:

  • February 7, 2002 Bush memo calling for detainees to be treated humanely–but without Geneva Convention rights
  • September 6, 2006 press conference in which Bush admitted to water-boarding Al Qaeda detainees
  • July 20, 2007 Bush Executive Order establishing guidelines for interrogations

More interesting, Addington was making sure that the correspondence between HJC and OVP regarding his own testimony was readily available. And I think he did that for two reasons. The correspondence includes a fairly narrow description of what the expected testimony would include:

  • No representations about "the nature and scope of Presidential power in time of war" or US "policies regarding interrogation of persons in the custody of the nation’s intelligence services and armed forces"
  • Only "personal knowledge of key historical facts" relating to interrogation and presidential power
  • No details about Vice Presidential communications to the President
  • No details "relating to the Senate functions of the Vice Presidency"
  • The availability of applicable legal privileges (don’t miss the bit of snark where footnote 11 in the April 28 Conyers letter reminds, "I assume that counsel’s citation to the’state secrets’ privilege was an oversight as that is a judge-made litigation privilege that has no application before a Committee of Congress")

In other words, Addington wanted to be ready to show his hall pass and prove that certain questions–about Dick’s role in outing a CIA spy or Dick’s role in killing most of the salmon in the Northwest; or about whether Dick ever told Bush that the warrantless wiretapping program was illegal; or why Dick voted to drown the federal government in a bathtub on December 21, 2005–would be out of bounds.

In addition, Addington seems to have wanted evidence of a little squabble over the Fourth Barnacle Branch, such as this argument:

The Committee request seeks authoritative representation on the three subjects identified in the Committee request. The Chief of Staff to the Vice President is an employee of the Vice President, and not the President. With respect to Presidential power in wartime and related issues under U.S. and international law, the Attorney General or his designee would be the appropriate witness. Read more →

HJC Testimony: Mr. Unitary Executive and Mr. Yoo, Two

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Coverage of the hearing is on CSPAN3, the Committee stream, and good coverage (featuring Scott Horton and Jane Mayer) on KPFA.

Scott; Yoo, any discussion of SERE techniques?

Yoo: Can’t discuss.

Nadler: We need to know why.

Yoo: According to DOJ, privilege both attorney-client privilege and classified.

Nadler: Attorney-client not valid here. Classified is valid if it applies.

Yoo: I have to follow it.

Nadler: It’s difficult to assert your assertion of privilege on this issue bc Bradbury testified earlier this year and said it was adapted from SERE. How can this be privileged?

Yoo: Recognize that a-c does not apply. It is their privilege to raise. If you and DOJ have disagreement.

Nadler: Bradbury is the one making the decision on these privileges, but he answered the question.

Scott; Addington, SERE?

ADD: no, I don’t think I did, but no reason to dispute what Bradbury said.

Scott: Is torture illegal?

ADD: as defined by statute, it would be illegal.

Scott: international agreement of when it’s torture and when it isn’t?

ADD: Is a treaty in effect …

Scott: Don’t people know when it’s torture and when it’s not.

ADD: Senate put in reservation.

Scott: 9/11 did not change definition of torture.

Schroeder: it’d be hard to prosecute on opinion.

Scott: Does Administration have ability to write up such an opinion and torture people based on ridiculous memo.

Schroeder: No.

Scott: is it an excuse to torture if you got good information.

Schroeder: Treaty admits no exceptions.

Scott: If you’re going to go around torturing based on your memo, how do you know beforehand whether you’re going to get good information.

Yoo: Disagree with the premise of question.

Scott: If you can’t get information via other techniques, can you use harsher techniques?

Yoo: Nothing in statute that says anything about that.

Watt: Schroeder. Comment on your testimony, policy and law. In 22 years I practiced law, I had a client, who when he didn’t like my advice, he would say the lord told him to do otherwise. Are there things that go beyond Yoo’s memo?

Schroeder: Hope I’m not joining ADD and Yoo, not able to answer your question. We’ve read reports that water-boarding used on some subjects.

Watt: Would that go beyond Yoo’s memo?

Schroeder: I’d need to know more on water-boarding.

Watt: Recourse that public and Congress would have would be impeachment?

Schroeder: [Pondering] It would be difficult under legal theory in August 2002, to think of what remedy would be available other than impeachment.

Watt: What recourse does the public have against an Read more →

HJC Testimony: Mr. Unitary Executive and Mr. Yoo

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Here’s a post I did on David Addington’s testimony at the Libby trial.

Here is John Yoo’s prepared testimony.

Note this hearing is a Subcommittee Hearing–so it’s Jerrold Nadler’s baby, not Conyers’. That means a subset of HJC’s better questioners will appear today: Nadler, Davis, Wasserman Schultz, Ellison, Conyers, Scott, Watt, and Cohen, with Franks, Pence, Issa, King, and Jordan for the bad guys.

Nadler: Subject of utmost importance to integrity of nation. Will not be permitted to be disrupted–anyone will be expelled immediately. Legal memos defining torture out of existence. I speak for many of my colleagues when I say the more we hear the more appalled we become. One testifying voluntarily, one testifying under subpoena. We will not be deterred by unchecked delcaration of privilege.

Franks: Almost 60 hearings on detainee treatment. Torture banned by various laws. Severe interrogations do not involve torture and they are legal. Results of waterboarding KSM, Abu Zubaydah, and al-Nashiri valuable. Alan Dershowitz says we can torture, so everything’s okay.

Franks just asked to submit evidence into the record. Nadler went, whuh? Nadler complains about Addington stiffing the committee for written testimony, but then submitting his own exhibits.

Nadler: I want to defend Dershowitz against allegations he’s an ultra-liberal. He just wrote a book advocating torture through warrants.

Conyers: More concerned about what we’re going to do, not any individual citizen. I don’t know why giving someone a lawyer is shocking to anyone. We have reports stating that our witnesses played a central role in drafting legal opinions on torture.

[Note: both sides look unusually prepared today, with Franks and Conyers both showing video from earlier hearings.]

Addington: 3 points. Iran-Contra said I was working for Cheney, in fact designee for Broomfield of MI. An author of prep for minority views, I had left before the report was written. More important, Conyers mentioned, wanted to give benefit of doubt. There’s one subject in which there’s no doubt, I believe everyone on this committee want to defend this country, protect it from terrorism, differences on how that’s accomplished. Thank you.

Nadler: Sorry I gave you too much credit. Is that the entirety of your statement?

[Nadler seems befuddled by ADD]

Yoo: Thank you, appreciate Conyers open mind. Waive rest of my time.

Nadler: You don’t want to summarize it?

Yoo: I don’t need to. Read more →

Revenge of Article III

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We’ve talked about this in threads, but I just wanted to pull out all the bits of Anthony Kennedy’s opinion that really address separation of powers and rule of law, in addition the question of Gitmo and Habeas more directly. Kennedy bases much of his argument on separation of powers on the reminder that since Marbury v. Madison, it has been the Court’s duty–and not that of Congress or the President–to determine what the law is.

Our basic charter cannot be contracted away like this [claiming the US had no sovereignty over Gitmo because we ceded it to Cuba then leased it back]. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

Within that context, he describes habeas corpus as a mechanism which has been historically designed to check the power of the political branches.

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

As such, only the Court can determine the proper boundaries of habeas corpus, not Congress or the President.

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Is Fred Fielding Reading emptywheel?

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Because either he or David Addington sure seems to be seeing the same things I’m seeing. Via TP, Michael Duffy reports that "White House lawyers" are worried that the Plame Affair may be back.

Duffy: White House lawyers are concerned, very concerned, now that Scott McClellan’s book has led Henry Waxman and John Conyers to take another look at the Valerie Plame business. There may be hearings. Prosecutor Patrick Fitzgerald may be called. Just another way in which a Democratic Congress might make a difference during the fall.

Tweety: Can they impeach the Vice President over this?

Duffy: There’s no time to impeach…

Tweety: But that’s who they’re targeting isn’t it?

Duffy: Well they’re gonna just make things rough for everyone who was affiliated with the Plame Affair.

Tweety: Will this get big enough to help Obama?

Duffy: It will boil through the summer.

Hi Fred. Would you mind clicking through some of the ads over on the sidebar? And do me a favor and make sure you do that from your White House IP, would ya?

Thanks.