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Ambinder on Holder

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There’s enough new reporting in this Ambinder piece (commenting on this Klaidman piece covered in this post) that it merits its own post.

First, there’s this description of the division of labor among Obama’s top lawyers.

When Obama asked Holder, a longtime friend, to become attorney general, Holder extracted a promise — perhaps extracted is too tough of a term because Obama readily agreed — that the White House would not interfere with the Department’s decisions about whether to launch investigations, according to two people with knowledge of the encounter. When it comes to setting and refining judicial policy, the White House counsel’s office plays the lead role. But Holder and his deputies get to decide whom to prosecute.

Now, I’m suspicious of Holder, but loathe all I know of Greg Craig, so this sparked my concern. I’m really curious, you lawyer types … Is it normal for the White House Counsel to "set and refine judicial policy"? Has Holder really become nothing but a glorified mega-prosecutor? (I can understand why he extracted this policy, having seconded Janet Reno, but still.)

And then there’s this loaded passage.

On the one hand, it is tough to see a prosecutor being given a mandate to determine whether former Vice President Dick Cheney ordered CIA officials to not brief Congress on a highly sensitive, classified intelligence collection program given the very real chance that the national security damage resulting from the disclosure of information about the program might be significant.

Nonetheless, it’s doubtful that Holder would lean into a decision in such a public way unless he was ready to consider an option that may well have significant ramifications for the country and lay a strong precedent for future administrations.

Since the beginning of his presidential transition, Obama has been counseled by his attorneys that any such investigation is likely to be incomplete, resulting in people being charged with sins they participated it but did not originate. Even senior Justice Department officials admit that the possibility of an elected White House decision-maker like the Vice President being charged with a crime is remote.  Obama would rather not see middle managers prosecuted for decisions, or crimes, of elected officials or senior political appointees. And he is very concerned with precedent.  But this will not be his decision to make.

I’m not entirely sure what that middle paragraph means. But I’m curious by the third and the first.

Everyone–everyone–seems to know Read more →

FISA’s 15-Day Exemption

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Update, 7/16: See this post for a modification of this one.

I’m updating my warrantless wiretapping timeline and noticed something important (I think).

The IG Report released today notes that the 15-day exemption in FISA proves that Congress always intended FISA to restrict the Executive Branch’s authority, even in times of war.

Among other concerns, Yoo did not address the section of FISA that creates an explicit exemption from the requirement to obtain a judicial warrant for 15 days following a congressional declaration of war. See 50 USC 1811. Yoo’s successors in OLC criticized this omission in Yoo’s memorandum because they believed that by including this provision in FISA Congress arguably had demonstrated an explicit intention to restrict the government’s authority to conduct electronic surveillance.(12)

But now look at the timeline (this is evolving quickly so it may change by the time you look at it).

September 12, 2001: AUMF authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

September 18, 2001: Bush signs AUMF.

September 25, 2001: OLC provides memo to David Kris on “a purpose” language for FISA.

October 1, 2001: Hayden briefs HPSCI.

October 2, 2001: Predecessor bill to PATRIOT Act introduced into House.

October 3, 2001: 15-day exception in FISA after declaration of war expires.

October 4, 2001, from DAAG OLC to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists. Warrantless wiretapping program authorized. Predecessor bill to PATRIOT Act introduced into Senate.

October 6, 2001: Program begins. [my emphasis]

There were several things going on at once (see this post for more detail). There was some debate about the AUMF–but that got signed on September 18. There were initial discussions about the PATRIOT Act–including how FISA should be altered in it. There was a briefing of HPSCI on October 1 that–Nancy Pelosi understood–was part of expanded NSA authorities. And–according to Barton Gellman–the warrantless wiretap program was approved on October 4, 2001, Read more →

Deep Thought

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Would CIA have spent the last eight years lying to Congress to hide Dick Cheney’s torture chambers if Bill Clinton had not "looked forward" but instead pursued Iran-Contra fully?

Could Cheney’s Lawyer’s Leak Break through the Cloud over Cheney?

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This may sound self-evident. But the fact that Dick Cheney’s lawyer, Terry O’Donnell, leaked material that Dick Cheney told Fitzgerald in his interview absolutely destroys the government’s argument for keeping those interview materials secret. That’s because the government is arguing that materials collected for law enforcement should never be used for political purposes.  But O’Donnell’s leak was just that, and as such constitutes not only an explicit waiver to release the materials, but devastating proof that DOJ’s hand-wringing about letting this information out to be misplaced.

DOJ Produced a Vaughn Index in Response to a Sullivan Order

The government produced last week’s filing–complete with descriptions of all the contents of Cheney’s interview, in response to an order from Judge Sullivan, who didn’t buy that Steven Bradbury was properly qualified to claim that releasing Cheney’s interview materials would "chill" future investigations without more explanation. (This is from the transcript from the June 18 hearing, with spelling corrected.)

THE COURT: Otherwise, it’s just an assumption [Bradbury] makes based upon nothing he can point to. He didn’t say that he had spoken with the Vice-President, the Vice-President told him in retrospect had I known that, I never would have done this absent a subpoena. So that’s the problem the Court finds itself in. There’s not a lot said in the declaration other than this will happen.

Of particular note, Sullivan noted that the government has not properly invoked executive privilege here.

THE COURT: But it’s clear from the record the President and no one in the executive branch has clearly asserted executive privilege here. There are the law enforcement exemption and there’s certain other deliberative process et cetera, et cetera, exemptions that the government avails itself of but it’s not an executive privilege.

So Sullivan gave the government a second shot to appropriately explain why this stuff should be exempt from FOIA.

But it’s not going to help the government much. Granted, the government did have someone more qualified to talk about how releasing this interview would "chill" future  investigations than Steven Bradbury–Criminal Division Head Lanny Breuer. But Breuer’s examples of how releasing Cheney’s interview materials would "chill" future investigations were totally inapposite to this case. Breuer argues that releasing a late-investigation interview of a key subject of that investigation will dissuade ancillary witnesses from cooperating early in an investigation. And his examples of previous high level investigations show that the norm for such investigations is public disclosure.

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Cheney’s Lawyer Already Leaked the Content of Cheney’s “Privileged” Interview

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You know how Obama’s DOJ claims that we can’t see Cheney’s interview with Patrick Fitzgerald because it’s privileged? Well, Dick Cheney’s own lawyer already leaked the so-called privileged content three years ago.

It appears that Dick Cheney’s lawyer, Terry O’Donnell, attended the interview. When Ted Wells asked David Addington at the Libby trial when he realized he was going to be a witness in the case, Addington explained that he was not permitted to attend Cheney’s interview, but Cheney’s lawyer was.

The point at which I knew I was likely to be a witness in the case was when the government went to interview the Vice President and indicated they would prefer I didn’t come and that only his private attorney come.

I’m interested in that because we know that Terry O’Donnell spread a cover story on the NIE leak–precisely the content DOJ now claims is privileged–to Michael Isikoff.

One of the details that most surprised me in Scott McClellan’s account of the CIA Leak investigation and aftermath was his description of the White House response to the confirmation–on April 5, 2006–that Libby had testified he had leaked the NIE with the authorization of the President.

Now the fact that he himself had authorized the selective leaking of national security information to reporters made him look hypocritical.

[snip]

In time, we would learn that the president’s penchant for compartmentalization had played an important role in the declassification story. The only person the president had shared the declassification with personally was Vice President Cheney. Two days after the Fitzgerald disclosure, Cheney’s lawyer told reporters that the president had "declassified the information and authorized and directed the vice president to get it out" but "didn’t get into how it would be done." Then the vice president had directed his top aide, Scooter Libby, to supply the information anonymously to reporters. [my emphasis]

[snip]

But it all made sense when someone pointed me to the one piece of journalism he could find repeating that citation–would you believe it, a Michael Isikoff piece?

A lawyer familiar with the investigation, who asked not to be identified because of the sensitivity of the matter, told NEWSWEEK that the "president declassified the information and authorized and directed the vice president to get it out." But Bush "didn’t get into how it would be done. He was not involved in selecting Scooter Libby or Judy Miller." Bush made the decision to put out the NIE material in late June, when the press was beginning to raise questions about the WMD but before Wilson published his op-ed piece. [my emphasis]

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The Contents of the Fitzgerald-Cheney Interview, Annotated Edition

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Since there is still some confusion over the material from Dick Cheney’s interview with Patrick Fitzgerald that, DOJ says, cannot be made public, I decided to provide a more detailed description of what was in the interview with handy links for any media outlets that are too busy selling access to lobbyists to do their own work. What follows are the page-specific references in the DOJ FOIA response to material that appears in the FBI report of the interview. That document is 28 pages long, total, so this is a pretty good outline of what’s in the interview. I treat information that appears on the same page together, so a couple of these descriptions cover a number of separate issues raised in the filing.

Vice President’s discussion of the substance of a conversation he had with the Director of the CIA concerning the decision to send Ambassador Wilson on a fact-finding mission to Niger in 2002. (Page 3, lines 15-17, 21-28); The name of a covert CIA employee (Page 3)

As you recall, Libby first learned of Valerie Plame’s covert identity from a conversation with Dick Cheney some time during the week of June 9, 2003. He recorded his conversation with Cheney in a note which was a central focus of Libby’s grand jury testimony. When asked, Libby said Cheney may have learned of Valerie’s status from Tenet. And, when Fitzgerald was questioning Libby about Cheney’s notations on Joe Wilson’s op-ed, Libby explained that Cheney had asked Tenet earlier in June or July about the CIA sending ambassadors to gather information.

Q. When the Vice President asked you the question, "have they done this type of thing before," question to that effect, Vice — did the Vice President ever ask you has the Agency ever done this sort of thing before where an ambassador was sent out?

A. I think he may have at some point.

Q. And what did you do in response to that question, if anything?

A. I don’t know if I did anything particularly about it. I think he may have taken it up with, with Tenet rather than asking me.

[snip]

Q. What did he talk to the official that you do know he talked about?

A. About, you know, how this came about. I have a sense that he had talked to Tenet or somebody about, about that.

Q. And what time frame was that?

A. Summer, June, July, something like that.

In other words, this conversation appears to be the conversation Cheney had during the week of June 9 in which he learned of Plame’s identity. That makes the reference to "a covert CIA employee’s identity" all the more interesting. While that might be a reference to Valerie’s colleague who first suggested sending Joe, it might well be a reference to Valerie herself. While we know the CIA still wants to hide details of Plame’s career, it would be the height of absurdity if CIA tried to prevent us from seeing Fitzgerald ask Cheney about Plame.

In any case, DOJ is probably attempting to prevent us from learning of Cheney’s account of how he learned of Plame’s identity before he passed it on to Scooter Libby.

Read more →

Cheney Interview: Pay2PlayPo Losing Its Ability to Report, Too

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picture-113.pngThe WaPay2PlayPo’s Jeffrey Smith is usually a much better reporter than this. In his report on DOJ’s latest attempt to keep the materials from Cheney’s Fitzgerald interview secret–published right under a link to all the evidence released in the trial–Smith "reports,"

A document filed in federal court this week by the Justice Department offers new evidence that former vice president Richard B. Cheney helped steer the Bush administration’s public response to the disclosure of Valerie Plame Wilson’s employment by the CIA and that he was at the center of many related administration deliberations.

Which, if you take "new evidence" to mean "a new list summarizing many of the events described in evidence introduced two years ago at the Libby trial," would be factually correct.

But this isn’t.

Barron also listed as exempt from disclosure Cheney’s account of his requests for information from the CIA about the purported purchase; Cheney’s discussions with top officials about the controversy over Bush’s mention of the uranium allegations in his 2003 State of the Union speech; and Cheney’s discussions with deputy I. Lewis "Scooter" Libby, press spokesman Ari Fleischer, and Chief of Staff Andrew H. Card Jr. "regarding the appropriate response to media inquiries about the source of the disclosure" of Valerie Plame Wilson’s identity. [my emphasis]

Smith gets that last bit from this language in the filing.

Vice President’s recollection of discussions with Lewis Libby, the White House Communications Director, and the White House Chief of Staff regarding the appropriate response to media inquiries about the source of the disclosure of Valerie Plame Wilson’s identity as a CIA employee.

gx53201-libby-sonnet.thumbnail.jpgNow, the language used there–"the source of the disclosure of Valerie Plame Wilson’s identity"–ought to be a pretty big clue to Smith that this conversation happened after Plame’s identity was actually made public. That is, after July 14, 2003, which happened to be Ari Fleischer’s last day, meaning it’s pretty clear that Ari Fleischer (who was White House Spokesperson, not Communications Director) isn’t the guy referenced here. But you don’t really need clues like that to figure out that Smith is wrong here. Had Smith only clicked that link above his article and actually looked at the evidence released at trial, he would have seen the famous "meat grinder note," a note Cheney used as a talking point document for conversations with Andy Card (correctly identified by Smith as Chief of Staff) and Dan Bartlett (in his role as "White House Communications Director," the position listed in the filing) in early October 2003 to get them to force Scottie McClellan to exonerate Scooter Libby publicly. 

Has to happen today. 

Call out to key press saying same thing about Scooter as Karl.

Not going to protect one staffer and sacrifice the guy the Pres that was asked to stick his neck in the meat grinder because of the incompetence of others.

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Cheney Interview: The New Jon Stewart-Worthy Excuses

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As I mentioned, DOJ did one crappy-ass job of trying to give Emmet Sullivan a better reason they can’t turn over Dick Cheney’s interview materials than that Jon Stewart would embarrass poor Dick. They trot out the same canard about needing cooperation from high level officials in the future. But there two big problems with their argument.

The Release of a Late-Investigation Interview of the Target of that Investigation Will Hurt Early Investigative Cooperation

First, they’re basically forced to argue that they won’t be able to get information early in an investigation if VPs and the like worry that their interviews with Special Counsels will eventually be made public.

For example, obtaining information through interviews early in an investigation “often assists law enforcement agents in obtaining important background information,” “help[s] law enforcement investigators determine where to concentrate or focus the investigation,” and may “obviate the need to convene a grand jury at all or circumscribe the focus of the grand jury’s inquiry.” Breuer Decl. ¶ 6. “A law enforcement investigation based upon interviews subject to an expectation of confidentiality also benefits from senior officials more inclined to provide identifiable leads, name percipient witnesses, offer credibility assessments of the accuser or other witnesses, and even articulate inferences, insight or hunches that can be invaluable to a law enforcement investigator.”

But of course this interview wasn’t about "obtaining important background information" about "where to concentrate or focus the investigation" that might "obviate the need to convene a grand jury." Neither Bush nor Cheney gave an interview at that early stage of the process. Rather, this was an interview conducted while there was an active grand jury, at a time when all major witnesses save journalists had already been interviewed.

This was an interview of the ultimate target of the investigation, not a mere bystander.

Meanwhile, the DOJ wants to pretend that a grand jury investigation of top White House officials might thwart an investigation.

Additionally, if a senior White House official were to require the investigators to go through the grand jury process, “[s]uch a decision could impose considerable practical difficulties and burdens upon investigators and prosecutors that at best could prolong investigations and at worst thwart investigations.”

Tell that to Karl Rove and his five grand jury appearances. Turdblossom couldn’t get enough of the grand jury (and he’s been before a grand jury since). Read more →

The Contents of the Fitzgerald-Cheney Interview

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Mary pointed me to DOJ’s latest attempt to prevent CREW from accessing the materials relating to Cheney’s interview with Fitzgerald and the FBI. I’ll get into what a load of crap the DOJ argument is later. But first, I want to lay out what the FOIA declarations say about the Cheney interview itself.

First, the date. Rather than early June, as previously assumed, the CIA declaration included with this document reveals the documents were dated May 8, 2004–a month earlier in the investigation that we had  known (and therefore a month and a half earlier than Bush’s interview).

Otherwise, the declarations reveal the following contents of the interview:

  • Vice President’s discussion of the substance of a conversation he had with the Director of the CIA concerning the decision to send Ambassador Wilson on a fact-finding mission to Niger in 2002.
  • Vice President’s discussion of his requests for information from the CIA relating to reported efforts by Iraqi officials to purchase uranium from Niger.
  • Vice President’s recollection of the substance of his discussions with the National Security Advisor while she was on a trip to Africa.
  • Vice President’s description of government deliberations, including discussions between the Vice President and the Deputy National Security Advisor, in preparation of a statement by the Director of CIA regarding the accuracy of a statement in the President’s 2003 State of the Union Address.
  • Vice President’s recollection of discussions with Lewis Libby, the White House Communications Director, and the White House Chief of Staff regarding the appropriate response to media inquiries about the source of the disclosure of Valerie Plame Wilson’s identity as a CIA employee.
  • Vice President’s description of his role in resolving disputes about whether to declassify certain information.
  • Vice President’s description of government deliberations involving senior officials regarding whether to declassify portions of the October 2002 National Intelligence Estimate.
  • Description of a confidential conversation between the Vice President and the President, and description of an apparent communication between the Vice President and the President. 
  • Names of non-governmental third-parties and details of their extraneous interactions with the Vice President.
  • Name of a CIA briefer.
  • Names of FBI agents.
  • Names of foreign government and liaison services.
  • The name of a covert CIA employee.
  • The methods CIA uses to assess and evaluate intelligence and inform policy makers.

Now, as I’ll get into when I discuss what a load of crap this is, almost every single bit of this was already revealed at trial. Read more →

Wilson Suit Denied Cert

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As BayStateLibrul pointed out in threads, SCOTUS denied the Wilsons cert today in their lawsuit against Dick Cheney and his band of leakers. As bmaz points out, the news is unsurprising.

The die was cast by John Bates’ exploitation (and to some extent contortion) of glaring and gaping holes in the pleading by Plame/Wilson. It is a shame, but especially in light of the subsequent Iqbal decision, there is no way to credibly call this a cover up. This case was over when it started.

But, as RawStory points out, it means Valerie Wilson will never get her day in court against the men who deliberately ruined her career in government service because she and her colleagues had proof of the Administration’s lies.

So unless Bob Novak has an illness-induced desire to come clean about what really happened in the leak–including the real details of the long-hidden conversation Novak had with Scooter Libby on July 9, 2003 (probably including Plame’s name and exact role in Counter-Proliferation, as well as still-classified details from Joe Wilson’s report to the CIA), or unless Scooter Libby gets tired of being a quiet felon, the only way we’ll find out the rest of the details of the case will be if Judge Sullivan orders Cheney’s FBI interview materials released. And even then, I think they won’t surprise any long-time reader of this site, though they might surprise the traditional press.

In that, the CIA Leak case feels like the rest of the Bush-Cheney tenure: it left the country far less safe, but no one will ever be held accountable for it.

Look on the bright side, though. Scooter Libby hasn’t gotten his inevitable Republican-as-felon radio show, yet.