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What Judge Sullivan’s Opinion Means

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As I reported, Judge Emmet Sullivan has issued his ruling in the Dick Cheney interview FOIA, ruling partly for and partly against CREW. Sullivan has ordered DOJ to turn over the documents in question by October 9. He has directed DOJ to redact the information exempted in two earlier filings. So, as I suggested, we’ll get some new information. But we won’t learn how Cheney answered when asked whether Bush authorized him to leak classified information (which ended up including Valerie Wilson’s identity).

Here’s some more detail on what the ruling means.

A Rebuke to Obama’s Executive Power Grab

While Judge Sullivan accepted all of Ralph DiMaio and David Barron’s specific exemptions based on national security or deliberative grounds, he rejected the laughable DOJ argument that releasing Cheney’s interview materials would dissuade other high level White House officials from cooperating in investigations. That’s important, because it rejects a theory that would shield a great deal of information on White House criminality. Here’s Sullivan’s description of everything that would be shielded under such a theory.

In this sense, the category of proceedings that DOJ asks this Court to conclude are “reasonably anticipated” could encompass any law enforcement investigation during which law enforcement might wish to interview senior White House officials. Such proceedings might include an investigation into alleged criminal activity that physically took place in the White House; financial wrongdoing by a White House official that took place before or during his or her tenure in the executive branch; misconduct relating to official responsibilities, such as the breach of national security protocol that formed the basis of the Plame investigation; or even an event occurring outside the White House with only tangential connection to one or more White House officials. Thus conceived, it becomes clear that the scope of the proceedings described by DOJ is breathtakingly broad.

I’m guessing, but unless the parts of Cheney’s interview Sullivan has ordered to be released are a lot more scandalous than I think they are, I don’t think Obama’s DOJ will appeal this because it’s unlikely the Appeals Court will agree with them, and as we’ve seen, Obama’s Administration tends to go to great lengths to avoid letting Appeals Courts issue rulings in relatively unimportant cases that reign in executive power. 

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Judge Sullivan Rejects DOJ’s Expansive Claims to Protect Cheney Interview

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Judge Sullivan has rejected DOJ’s most expansive claims they used to try to protect Dick Cheney’s CIA Leak case interview.

I am reading this now for more detail, but the key graph is this one.

For the reasons stated above, the Court concludes that the agency has met its burden of demonstrating that certain limited information was appropriately withheld from disclosure to protect the well-recognized deliberative process and presidential communications privileges under Exemption 5, personal privacy under Exemptions 6 and 7(C), and national security interests under Exemptions 1 and 3. The Court cannot, however, permit the government to withhold the records in their entirety under Exemption 7(A) on the basis that disclosure might interfere with some unidentifiable and unspecified future law enforcement proceedings. The purpose of Exemption 7(A) is to protect specific ongoing or reasonably anticipated law enforcement proceedings. There are no such proceedings at issue here. Neither congressional intent nor well-established precedent supports the application of the exemption under the circumstances in this case, and the Court declines the government’s invitation to create a new, per se FOIA exemption for any and all law enforcement interviews involving high level White House officials. Accordingly, the Court GRANTS IN PART AND DENIES IN PART the parties’ cross-motions for summary judgment. An appropriate Order accompanies this
Memorandum Opinion.

I suspect this will still shield the key information about whether or not Bush authorized Cheney to leak classified information–up to and including Plame’s identity. 

I’ll confirm that after I’ve read more carefully.

Update: Here’s Sullivan’s order. He’s ordering DOJ to turn over a redacted document by October 9. It seems that Sullivan has permitted DOJ to shield everything listed under the CIA and DOJ declarations, which will shield whether or not Bush explicitly authorized Shooter and Scooter to go leaking classified information to shut Joe Wilson up.

Helgerson’s Hints

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JasonLeopold linked to two interviews with John Helgerson, who as the CIA’s former Inspector General, oversaw its investigation into torture. (Fox, Spiegel)

Helgerson and Cheney

The Fox one, perhaps predictably, focuses on Helgerson’s reported interactions with Cheney, providing a counterpoint to Jane Mayer’s portrayal of discussions between the two men as heated.

"The VP (whom I had long known reasonably well, as, in a non-IG capacity, I used to brief the House Intelligence Committee on a weekly basis when he was an active Member) received me graciously and asked a number of good and appropriate questions. Despite what you may have read elsewhere, he did not attempt in any way whatsoever to intimidate me or influence what we were finding, concluding and recommending," Helgerson wrote in an e-mail to FOX News. 

Of course, if Helgerson was briefing the committee regularly during this period, it is likely he was interacting with Addington, then a Counsel on the committee. Also at that time, one of CIA’s young lawyers, John Rizzo, was "the Agency’s focal point in dealing with the joint congressional committee investigating the Iran-Contra Affair." So, curiously, Cheney, Addington, Rizzo, and Helgerson were probably all involved with the House Intelligence Committee during the Iran-Contra issues.

Given the description he gives of his relationship with Cheney, I’m particularly interested in Helgerson’s description of how and why Cheney got a briefing.

"Only infrequently do IG reports take on such significance that they need to be briefed to the VP, and when this is the case, normally White House or NSC Counsel, or the VP’s own staff, receive the material first and then inform the VP as they see fit," he wrote.

Helgerson said that at the time the review had been completed, he and others in the spy agency briefed a number of key parties about the program and the IG’s findings. They included members of the White House, the National Security Council, Congress and the Department of Justice.

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Cheney’s Hagiographer Takes a Mulligan

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Remember how, back in April, Cheney promised that two CIA documents he requested would prove torture worked? Remember how those documents proved no such thing?

Well now Cheney’s hagiographer, Stephen Hayes, is taking a mulligan on the efficacy argument. (h/t Nan) Here, Hayes equates a few spooks’ (and presumably, given the source, Dick’s himself) attempt to cherry-pick some more documents with ACLU’s support of total transparency.

But a growing number of CIA officials–both current and former–are in agreement right now with the ACLU about some of the most-sensitive information the U.S. government has obtained in the eight-year war on terror.

But of course, unlike the ACLU, these spooks just want some documents declassified–the documents they pick and choose, and not even most of the documents the ACLU is focusing on in the FOIA Hayes mentions at the end of the document.

But now there’s a push from within the CIA to declassify and release even more information about the CIA’s enhanced interrogation program. CIA officers believe that making public additional details will end the debate over the efficacy of the program, and so they are pushing to have hundreds of pages of highly classified documents declassified and released, including a detailed response to the IG report, two internal reviews of the interrogation program undertaken by respected national security experts, and perhaps even redacted versions of the raw interrogation logs.

"Please! FOIA me!" The CIA is suddenly saying. "But don’t FOIA the approval processes. Don’t FOIA the early work involving John Yoo, John Rizzo, and David Addington. You don’t want to see those documents!! No, check out these other documents."

These aren’t the droids you’re looking for.

Heck, Hayes even reveals one of John Helgerson’s recommendations–which CIA had redacted in its entirety–to do an outside review.

In his 2004 report, Helgerson recommended bringing in an outside group to review the program. CIA director George Tenet delegated the task to the directorate of operations. Concerned about sharing details of the top secret program, officials "outside" of the interrogation program but still inside the CIA were selected to do the review. The team’s findings are known inside the agency as the "rebuttal," and they argue that the program worked even more unambiguously than the IG report suggested. 

Of course, Hayes doesn’t tell you that the head of DO, Jim Pavitt, was part of the program itself (as the IG Report itself notes).  I’m sure that didn’t have any influence on the review.

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Cheney’s Sabotage of Counter-Terrorism

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Just a day after the Brits finally prosecuted some (but not all) of the terrorists who were plotting to blow up planes with liquid explosive, a prosecutor in the case explains how the Americans almost blew the case.

Fearful for the safety of American lives, the US authorities had been getting edgy, seeking reassurance that this was not going to slip through our hands. We moved from having congenial conversations to eyeball-to-eyeball confrontations.

We thought we had managed to persuade them to hold back so we could develop new opportunities and get more evidence to present to the courts. But I was never convinced that they were content with that position. In the end, I strongly suspect that they lost their nerve and had a hand in triggering the arrest in Pakistan.

The arrest hampered our evidence-gathering and placed us in Britain under intolerable pressure.

Now, I’ve been following these accusations since August 2006, shortly after the arrests (which was, it should be said, shortly after Lamont’s primary victory over Joe Lieberman demonstrated how the Iraq War was hurting Bush and the Republicans). But the best explanation of what happened came a year ago from Ron Suskind: 

NPR: I want to talk just a little about this fascinating episode you describe in the summer of 2006, when President Bush is very anxious about some intelligence briefings that he is getting from the British. What are they telling him?

SUSKIND: In late July of 2006, the British are moving forward on a mission they’ve been–an investigation they’ve been at for a year at that point, where they’ve got a group of "plotters," so-called, in the London area that they’ve been tracking…Bush gets this briefing at the end of July of 2006, and he’s very agitated. When Blair comes at the end of the month, they talk about it and he says, "Look, I want this thing, this trap snapped shut immediately." Blair’s like, "Well, look, be patient here. What we do in Britain"–Blair describes, and this is something well known to Bush–"is we try to be more patient so they move a bit forward. These guys are not going to breathe without us knowing it. Read more →

Back to Breuer’s Claims about Future Investigations

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Lanny Breuer, he of the potential conflict, has argued that DOJ must keep Dick Cheney’s CIA Leak interview secret because, if it doesn’t, then senior White House officials may not cooperate with DOJ investigations in the future. 

Moreover, if interviews of senior-level White House officials become subject to routine public disclosure, the White House official may agree to talk only in response to a grand jury subpoena in order to obtain the confidentiality protection of Rule 6(e) of the Federal Rules of Criminal Procedure.

And if senior White House officials don’t cooperate with DOJ investigations, it may deprive investigators of information about the underlying White House policies tied to alleged crimes. 

In any such investigation, it will be important that White House officials be able to provide law enforcement officials with a full account of relevant events. Any such investigation may delve into or require a full accounting of internal White House deliberations or other government operations. Questions may cover, for example, conversations between the President or Vice President and senior advisors, the decision-making process on specific policy matters, advice given to the President or direction provided by the President, and internal discussions relating to White House interactions with other Executive Branch entities and with Congress.

Writing just one week after Breuer’s boss, Eric Holder, announced an investigation into torture that may ultimately consider White House deliberations (or at the very least, OVP machinations), I’m sympathetic to Breuer’s claimed concern with obtaining such high level cooperation.

But I think nothing undermines Breuer’s argument that DOJ’s efforts to keep Cheney’s CIA Leak case interview secret will enhance cooperation in the future more than Dick Cheney’s suggestions that he’s not going to cooperate with the torture investigation, regardless of what happens.

WALLACE: If the prosecutor asks to speak to you, will you speak to him? 

CHENEY: It will depend on the circumstances and what I think their activities are really involved in. I’ve been very outspoken in my views on this matter. I’ve been very forthright publicly in talking about my involvement in these policies. 

I’m very proud of what we did in terms of defending the nation for the last eight years successfully. And, you know, it won’t take a prosecutor to find out what I think. I’ve already expressed those views rather forthrightly.

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Cheney: No, I Won’t Cooperate with a Torture Prosecutor

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Far and away, here’s my favorite exchange in the Cheney interview:

WALLACE: If the prosecutor asks to speak to you, will you speak to him? 

CHENEY: It will depend on the circumstances and what I think their activities are really involved in. I’ve been very outspoken in my views on this matter. I’ve been very forthright publicly in talking about my involvement in these policies. 

I’m very proud of what we did in terms of defending the nation for the last eight years successfully. And, you know, it won’t take a prosecutor to find out what I think. I’ve already expressed those views rather forthrightly.

Wallace asks Cheney if he will speak with Durham, if asked. Cheney does not say yes. Instead, PapaDick immediately suggests he won’t cooperate with an investigation he deems as improper. 

He then takes a tack Karl Rove took in the US Attorney firings: claiming that his many public statements on the issue could substitute for an interview (or better yet, a grand jury appearance) about what role OVP had in establishing our torture regime. 

Cheney hides an obvious unwillingness to commit to cooperating with Durham behind his purported "forthrightness" about torture in the past.

Now, I’ll say more on this tomorrow in regards to DOJ’s ongoing claims that they need to suppress Cheney’s CIA Leak interview so high level White House officials will cooperate in the future. But for now, know that Cheney is already laying the groundwork to refuse to cooperate with Durham based on some claim that the investigation is improper.

Cheney’s Sophistry on Torture Investigations

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It will not surprise you to learn that PapaDick parsed wildly about what Obama has said about torture in Cheney’s defense of torture today. Five times today, Cheney claimed that Obama is "going back on his word," "his promise," that "his administration would not go back and look at or try to prosecute CIA personnel."

President Obama made the announcement some weeks ago that this would not happen, that his administration would not go back and look at or try to prosecute CIA personnel.

[snip]

We had the president of the United States, President Obama, tell us a few months ago there wouldn’t be any investigation like this, that there would not be any look back at CIA personnel who were carrying out the policies of the prior administration. Now they get a little heat from the left wing of the Democratic Party, and they’re reversing course on that. 

The president is the chief law enforcement officer in the administration. He’s now saying, well, this isn’t anything that he’s got anything to do with. He’s up on vacation on Martha’s Vineyard and his attorney general is going back and doing something that the president said some months ago he wouldn’t do. 

[snip]

Instead, they’re out there now threatening to disbar the lawyers who gave us the legal opinions, threatening contrary to what the president originally said. They’re going to go out and investigate the CIA personnel who carried out those investigations. I just think it’s an outrageous political act that will do great damage long term to our capacity to be able to have people take on difficult jobs, make difficult decisions, without having to worry about what the next administration is going to say. 

[snip]

I think if you look at the Constitution, the president of the United States is the chief law enforcement officer in the land. The attorney general’s a statutory officer. He’s a member of the cabinet. The president’s the one who bears this responsibility. And for him to say, gee, I didn’t have anything to do with it, especially after he sat in the Oval Office and said this wouldn’t happen, then Holder decides he’s going to do it.

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Dick Cheney: I’m Proud I Tortured to Protect Our Country But Not Our Allies

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One key to Dick Cheney’s defense today is the proud boast that his torture policy worked.

I guess the other thing that offends the hell out of me, frankly, Chris, is we had a track record now of eight years of defending the nation against any further mass casualty attacks from Al Qaeda.

[snip]

I’m very proud of what we did in terms of defending the nation for the last eight years successfully.

[snip]

Chris, my sort of overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives and preventing further attacks against the United States, and giving us the intelligence we needed to go find Al Qaeda, to find their camps, to find out how they were being financed. Those interrogations were involved in the arrest of nearly all the Al Qaeda members that we were able to bring to justice. I think they were directly responsible for the fact that for eight years, we had no further mass casualty attacks against the United States. 

It was good policy. It was properly carried out. It worked very, very well.

[snip]

The thing I keep coming back to time and time again, Chris, is the fact that we’ve gone for eight years without another attack. Now, how do you explain that? 

The critics don’t have any solution for that. They can criticize our policies, our way of doing business, but the results speak for themselves.

I wonder how Jose Maria Aznar feels about Dick Cheney’s proud defense of torture? Spain’s former Prime Minister who staked much on supporting Cheney’s unpopular war in Iraq had that support rewarded with a vicious attack on Madrid’s subway. The attack happened a year after we started torturing Khalid Sheikh Mohammed. But somehow, all the torture of al Qaeda’s mastermind somehow failed to prevent the Madrid attack.

I wonder what the families of those who died in the Madrid attack think, hearing Cheney defend his torture program by boasting of eight years with no attack?

Or what do the Indonesians think to hear of Cheney’s boast? Several months after we tortured Abu Zubaydah in 2002, Indonesia suffered from its worst terrorist attack, in Bali. Yet somehow waterboarding Abu Zubaydah did little to prevent those more than 200 deaths.

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Cheney: Torturers Can Do No Wrong

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McClatchy has a preview of tomorrow’s Cheney tirade on Fox. And in it, Cheney basically says it doesn’t matter if the torturers exceed the legal guidelines on torture.

Cheney, who strongly opposes the Obama administration’s new probe into alleged detainee abuse, was asked in the Fox News interview whether he was "OK" with interrogations that went beyond Justice’s specific legal authorization.

"I am," the former vice president replied.

"My sort of overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives and preventing further attacks," he said. "It was good policy. It was properly carried out. It worked very, very well." [my emphasis]

Oh, okay then, let’s just do away with the law altogether, in favor of whatever policy Article II wants.

I am reminded of one of the "Legal Principles" on torture that appeared in a document hand-carried from Scott Muller to John Yoo.

The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

I’m sure Cheney and Addington had nothing to do with that "Legal Principle," not at all.