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Conyers Calls Luskin’s Bluff on Rove Testimony

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Well, that didn’t take long.

ThinkProgress reports that Robert Luskin is already backing off his PR gambit promise to have Rove testify before Congress.

Yesterday, House Judiciary Committee chairman John Conyers (D-MI), joined by members Linda Sánchez (D-CA), Artur Davis (D-AL), and Tammy Baldwin (D-WI), wrote to Rove and requested that he testify before the committee about the politicization of the Justice Department, including the prosecution of Siegelman.

But now Luskin is saying that Rove won’t testify unless the White House says he can, claiming that MSNBC took his comments “out of context.” Roll Call reports:

MSNBC provided Roll Call with an e-mail exchange with Luskin that the network broadcast in which a producer asked, “Will Karl Rove agree to testify if Congress issues a subpoena to him as part of an investigation into the Siegelman case?”

“Sure,” wrote Luskin, according to the e-mail. “Although it seems to me that the question is somewhat offensive. It assumes he has something to hide.”

But in an interview with Roll Call, Luskin said that his MSNBC comments were taken out of context.

“Whether, when and about what a former White House official will testify … is not for me or my client to decide,” but is part of an ongoing negotiation between the White House and Congress over executive privilege issues, Luskin said.

See, Luskin, it’s not so easy to roll the press when someone can call you on your claims publicly.

Any bets how long it takes Conyers to get the subpoena pulled together? Hours? Days?

This also raises the likelihood that Solicitor General Paul Clement is hard at work inventing reasons why Rove can invoke executive privilege on an issue that he feels free to blab about in the press.

Conyers to Turdblossom: If You’ll Talk to GQ and Fox, Why Not HJC?

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Conyers has issued another salvo in HJC’s investigation of politicized prosecution. Most notably, that includes an invitation to Karl Rove to come testify to HJC.

In any event, particularly since you have briefly commented on this matter in GQ and while serving as a commentator on Fox News, we believe the subject, like other seroius charges regarding the role of politics at the Department of Justice, should be addressed before a key investigating Committee of Congress.

Between Yoo and Rove, Solicitor Paul Clement is going to have to invent a whole new kind of privilege to protect those willing to blab to the press but not to Congressional committees.

Perhaps more interesting, HJC has released a report on politicized prosecutions, which includes some new information on the Siegelman affair. For example, it reveals that Scrushy’s lawyer Art Leach believed he had made a plea deal with the prosecutors, only to have that deal rejected by someone higher than Criminal Division head Alice Fischer.

Other evidence also supports the contention that senior officials at the Department or the White House pushed this prosecution. Mr. Leach described a notable conversation he had with the then-acting head of the Department’s Public Integrity Section, Andrew Lourie.83 According to Mr. Leach, he and Mr. Lourie met on April 6, 2006, to discuss the possibility of resolving the matter against Mr. Scrushy before trial. Mr. Leach states that he had worked out an arrangement that was acceptable to the line prosecutors working the case, and that the purpose of this meeting was to obtain approval for the deal. Mr. Leach recalls that the meeting went well, and he believed Mr. Lourie would approve the proposed resolution. A week later, however, the proposed deal was rejected. When Mr. Leach asked Mr. Lourie why he would not approve a deal that the local prosecutors had supported, “Lourie informed me that the decision was made over his head.”84 Mr. Leach asked if that meant the head of the Criminal Division, Assistant Attorney General Alice Fisher, had made the decision, and was told “the decision had been made higher than the AAG for the Criminal Division.”85 Mr. Leach reports that he was “puzzled” by this response because he “could not imagine a decision like this rising to that level of the Department of Justice.”86 Read more →

Conyers to Yoo: If You’ll Talk to Esquire, Come Talk to Me

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Conyers isn’t quite as reliable as Henry Waxman in calling a hearing approximately 5 work hours after a big scandal. But is reliable in actually calling the hearing (which means Rove should get his invite in about a day and a half):

I write to invite you to appear before the Committee on the Judiciary at our May 6 hearing scheduled to explore issues regarding the nature and scope of Presidential power in time of war and the current Administration’s approach to these questions under U.S. and international law. Among the subjects likely to be explored at the hearing are United States policies regarding interrogation of persons in the custody of the nation’s intelligence services and armed forces, matters addressed in some detail in opinions that you authored during your service as Deputy Assistant Attorney General in the Office of Legal Counsel. Given your personal knowledge of key historical facts, as well as your academic expertise, your testimony would be invaluable to the Committee on these subjects.

I understand that, in discussions with my staff, you have expressed reluctance to testify voluntarily on such matters. I am hopeful that you have reconsidered that stance, however, given your extensive public comments on these very issues. For example, on April 3, 2008, Esquire magazine published an interview in which you made frank and on-the-record comments regarding the origination, drafting, and scope of OLC interrogation memoranda. Similarly, you provided on-the-record comments on the recently released March 2003 interrogation memorandum to the Washington Post just last week, describing that document as “near boilerplate” and asserting that, in pulling back from the analysis in that memorandum, the Department had “ignored [its] long tradition in defending the President’s authority in wartime.” Overall, you have made such extensive public comments on these and related matters, that it is extremely difficult to understand why you would continue to decline to present your views to the Committee.

To the extent you have raised concerns with my staff that some questions on these matters might call for responses that you believe would be covered by executive privilege or that would implicate executive confidentiality interests, I am confident such concerns can be effectively managed in a setting where you are voluntarily appearing before the Committee. Read more →

Another Possibility with Mukasey’s 9/11 Story

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While we’re talking about Mukasey’s claim that Bush could have prevent 9/11 and didn’t, I want to raise one more possibility. Mukasey’s story, remember, is that the US had noted a phone call from an Afghan safe house to somewhere in the US–but the US couldn’t track the call because didn’t know where the phone call went.

And before 9/11, that’s the call that we didn’t know about. We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went."

Glenn Greenwald (who has been flogging this issue heroically), reviews the 9/11 Commission report and concludes that such an intercept didn’t happen.

Critically, the 9/11 Commission Report — intended to be a comprehensive account of all relevant pre-9/11 activities — makes no mention whatsoever of the episode Mukasey described. What has been long publicly reported in great detail are multiple calls that were made between a global communications hub in Yemen and the U.S. — calls which the NSA did intercept without warrants (because, contrary to Mukasey’s lie, FISA does not and never did require a warrant for eavesdropping on foreign targets) but which, for some unknown reason, the NSA failed to share with the FBI and other agencies. But the critical pre-9/11 episode Mukasey described last week is nowhere to be found in the 9/11 Report or anywhere else. It just does not exist. [emphasis Glenn’s]

And Glenn is not alone. Chairman Conyers says he doesn’t know anything about it.

And Philip Zelikow says he doesn’t know what Mukasey is talking about.

Not sure of course what the AG had in mind, although the most important signals intelligence leads related to our report — that related to the Hazmi-Mihdhar issues of January 2000 or to al Qaeda activities or transits connected to Iran — was not of this character. If, as he says, the USG didn’t know where the call went in the US, neither did we. So unless we had some reason to link this information to the 9/11 story ….

In general, as with several covert action issues for instance, the Commission sought (and succeeded) in publishing details about sensitive intelligence matters where the details were material to the investigative mandate in our law.

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Snowball

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I have a feeling (and I hope) things are going to snowball from here on out. With each new revelation, the things the Administration did while operating in secrecy get worse and worse. And, they make it easier for Democrats to push for still more revelations. For example, when the ACLU succeeds in liberating the Yoo Torture Memo, it makes everyone ask about that October 23, 2001 memo that claims the 4th Amendment is dead.

Second, in the March, 2003 Office of Legal Counsel (OLC) memorandum publicly released on April 1, 2008, the contents of a secret October, 2001 OLC memorandum were partially disclosed. Specifically, the 2003 memorandum explains that in an October 23, 2001 memorandum, OLC “concluded that the Fourth Amendment had no application to domestic military operations.”3 On two prior occasions – in letters of February 12 and February 20, 2008, – Chairman Conyers requested that the Administration publicly release the October 23, 2001, memorandum .4 The memorandum has not been received despite these specific requests.

Based on the title of the October 23, 2001 memorandum, and based on what has been disclosed and the contents of similar memoranda issued at roughly the same time, it is clear that a substantial portion of this memorandum provides a legal analysis and conclusions as to the nature and scope of the Presidential Commander in Chief power to accomplish specific acts within the United States. The people of the United States are entitled to know the Justice Department’s interpretation of the President’s constitutional powers to wage war in the United States. There can be no actual basis in national security for keeping secret the remainder of a legal memorandum that addresses this issue of Constitutional interpretation. The notion that the President can claim to operate under “secret” powers known only to the President and a select few subordinates is antithetical to the core principles of this democracy. We ask that you promptly release the October 23, 2001, memorandum.

And, when the Attorney General makes bogus assertions to justify his calls for FISA reform, it makes everyone want to know why George Bush didn’t prevent 9/11 if he had the opportunity to.

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House to Go Into Secret Session

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At the request of the Republican leadership (who want to say something to the entire House that can’t be said publicly), the House is going to go into a secret session to debate FISA.

Here’s what John Conyers had to say about the secret session:

The more my colleagues know, the less they believe this Administration’s rhetoric. As someone who has chaired classified hearings and reviewed classified materials on this subject, I believe the more information Members receive about this Administration’s actions in the area of warrantless surveillance, the more likely they are to reject the Administration’s scare tactics and threats. My colleagues who joined me in the hearings and reviewed the Administration’s documents have walked away with an inescapable conclusion: the Administration has not made the case for unprecedented spying powers and blanket retroactive immunity for phone companies.

Whether this is a worthwhile exercise or mere grandstanding depends on whether Republicans have groundbreaking new information that would affect the legislative process. There must be a very high bar to urge the House into a secret session for the first time in 25 years. I eagerly await their presentation to see if it clears this threshold. As someone who has seen and heard an enormous amount of information already, I have my doubts.

I’m frankly optimistic about this development. I think this gives the Democratic members of HJC and HPSCI an opportunity to explain to their colleagues what they saw in the justifications for the wiretap program and what they heard from the telecom executives who gave secret briefings in the last several weeks. For the immediate debate, the issue is winning over the Blue Dogs who–at least currently–appear to be channeling their Democratic past. And it seems like this argument is fairly easy to make.

At the very least, we know the telecoms continued to wiretap in the days after March 10, 2004, when White House Counsel Alberto Gonzales authorized the program rather than Acting AG Jim Comey. We know the telecoms didn’t follow the clear guidelines about when they can accept the Administration’s assurances that a program is legal.

That seems like an important part of the debate.

Mukasey Wasn’t Bluffing

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Well, at least he complied with my request that he make his decision quickly. I’m sure you’re not surprised that he said no?

Pelosi:

By ordering the U.S. Attorney to take no action in response to congressional subpoenas, the Bush Administration is continuing to politicize law enforcement, which undermines public confidence in our criminal justice system.

Anticipating this response from the Administration, the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly. The American people demand that we uphold the law. As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.

Conyers:

Our investigation into the firing of United States Attorneys revealed an Administration and a Justice Department that seemed to put politics first, and today’s decision to shelve the contempt process, in violation of a federal statute, shows that the White House will go to any lengths to keep its role in the US Attorney firings hidden. In the face of such extraordinary actions, we have no choice but to proceed with a lawsuit to enforce the Committee’s subpoenas.

Republican No Shows on FISA Negotiation

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Let’s hope getting stood up teaches Jello Jay about Republican priorities:

In what should have been a bipartisan, bicameral meeting, staff members of the House and Senate Judiciary and Intelligence Committees met today to work in good faith to reach a compromise on FISA reform. As we have said, we are using this week to work on a compromise that strengthens our national security and protects Americans’ privacy. Unfortunately, we understand our Republican counterparts instructed their staffs not to attend this working meeting, therefore not allowing progress to be made in a bipartisan, bicameral way. While we are disappointed that today’s meeting could not reflect a bipartisan effort, we will continue to work and hope Republicans will join us to put our nation’s security first.

I guess immunity and all that isn’t so important after all…

Two-Fronted War in Defense of the Constitution in the House

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The AP reported on Steven Bradbury’s tortured logic about water-boarding.

”The set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding,” Steven G. Bradbury, acting head of the Justice Department’s Office of Legal Counsel, says in remarks prepared for his appearance Thursday before the House Judiciary Constitution subcommittee.

”There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law,” he said.

That is, waterboarding is not legal today, but it could be tomorrow if Bradbury made it so at the bidding of David Addington.

That tortured logic is part of Bradbury’s prepared statements for an appearance before HJC’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties (click here to follow along).

Meanwhile, Chairman Conyers is appearing before the Rules Committee (on CSPAN1) supporting his contempt resolution, describing the importance of the contempt resolution to the balance of powers.

Some have said we risk more if we lose this fight. If we countenance a process where our subpoenas can be readily ignored, where a witness doesn’t even have to bother to show up or tell us that they’re not coming, then we’ve already lost. This is not a matter of vindicating the Judiciary Committee.

Republicans are playing nasty–interrupting the Lantos memorial for stupid parliamentary tricks. Lamar Smith thinks we shouldn’t pass this rule because we won’t also allow the government broad powers to wiretap us.

And Bradbury is assuring "the committee that every opinion I sign represents my best judgment regardless of political currents."

I’ll try to follow both hearings.

Nadler: Is waterboarding a violation of the Federal torture statute?

Bradbury: I think it was reasonable to say that it didn’t violate the Federal torture statute. Your description of the procedure is not accurate description of procedure used by CIA.

Nadler: My description is one given to us by former interrogators.

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Conyers Has Gotten Cranky

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Just a quick post (I promise, I’ll catch up tomorrow) to observe that Conyers seems to be getting fed up. Yesterday he was handing long "to do" lists to Fred Fielding. Today, it’s taking the next step in ratcheting the pressure on the Bush Adminsitration.

Recommending that the House cite someone for contempt of Congress is a step that the Committee, and I as Chairman, take with great reluctance. Unfortunately, it is a step that is clearly necessary to preserve the role and constitutional prerogatives of Congress as an institution, in addition to getting to the bottom of the U.S. Attorney controversy.

The Judiciary Committee voted on July 25 to recommend the contempt resolution because, despite months of effort to secure voluntary compliance, the White House has refused to provide access to crucial information requested by the Committee. In fact, as of today, I have written nine letters over more than eight months trying to resolve this matter. But despite duly issued subpoenas, the White House has determined that it has the unilateral authority to prevent Mr. Bolten from providing us with a single piece of paper and to prevent Ms. Miers from even showing up at a Committee hearing.

If the executive branch can disregard Congressional subpoenas in this way, we no longer have a system of checks and balances. That is the cornerstone of our democracy, and it is our bipartisan responsibility to protect it. As our former colleague, Republican Mickey Edwards, has explained, taking action is crucial in order to defend Congress "as a separate, independent, and completely equal branch of government."

Because the White House has refused to reconsider its confrontational position, I believe we have no choice but to bring this contempt resolution to the floor promptly and to ask that this Committee adopt a rule to facilitate doing so. [my emphasis]

I’m particularly interested in the degree of specificity in Conyers’ letter:

Along with the contempt resolution, .I ask the Committee to include in its rule the appropriate process for consideration of H. Res. 980, a privileged resolution authorizing the Judiciary Committee to initiate or intervene in civil litigation to enforce these two subpoenas. The need for this resolution became clear just last week, when the Attorney General unfortunately testified before our Committee that he is inclined to follow the White House’s view and forbid enforcement of the contempt resolution.

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