Posts

Five Years Later–and the Attorney General Still Maintains the Cover-Up

/in /by

Five years ago today, on a Monday morning just like today, this happened:

Our bedroom was just beginning to show the first hints of morning light on July 14 when Joe marched in, dropped the newspaper on the bed, and said in a tight voice, "Well, the SOB did it." He set a steaming mug of coffee on my bedside table and left the room. What? I struggled to wake up. I sat up, switched on the lamp, and opened the Washington Post to the op-ed page; I didn’t know what I would find, but I knew it wouldn’t be good. Rovert Novak had written in his column that "Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction."

And yet, five years later, through the President’s efforts to silence Scooter Libby and through the Attorney General’s determination to hide the Vice President’s and President’s own testimony, we still have had no full accounting of the leak of Valerie Wilson’s identity. In fact, most of the press attention has been focused on the following sentence in Novak’s column, the one that–Richard Armitage apparently convinced Patrick Fitzgerald–derived from a stupid and careless but ultimately ignorant leak.

Two senior administration officials told me that Wilson’s wife suggested sending him to Niger to investigate the Italian report.

And so, largely because once an investigation was announced, Novak told a different story about that first line–about how he learned of Valerie’s maiden name and about how he learned of her status–than he told just after the leak, when he said "They thought it was significant, they gave me the name and I used it," the press just bought that implausible, revised story. Novak’s new cover story got so far-fetched that he was comparing Valerie Wilson with a person running a congressional campaign in Wyoming.

I call all kinds of politicians operatives. … Someone’s running a congressional campaign in Wyoming, I call him an operative.

And even when it was revealed that there had been a third conversation that went into Novak’s column, a conversation between Libby and Novak, a conversation they both made efforts to hide for three years, almost no one went back to scrutinize Novak’s column and sources again. Read more →

Yeah, What ABOUT that Anthrax Terrorist?

/in /by

Call me crazy. But after viewing this very creepy exchange between Patrick Leahy and Michael Mukasey regarding the anthrax killer, I got the feeling that both of them know exactly who sent those anthrax-laden letters almost seven years ago.

Leahy uses the recent settlement between Hatfill and DOJ to raise the issue. As he raises it, he notes that he is privy to classified information about the anthrax killer, and because of that he has refrained from even discussing the case.

Leahy: I almost hate to get into the case of Steven Hatfill. I’ve refrained from discussing this, I’ve refused to discuss it with the press. I’ve told them some aspects of it I was aware of were classified so of course I could not discuss it but also, considering the fact that my life was threatened by an anthrax letter, two people died who touched a letter addressed to me I was supposed to open, I’m somewhat concerned.

What happened?

Mukasey: That case …

Then Leahy makes s curious statement: we’re paying Hatfill, which means that the guy who committed the crime is going free.

Leahy: We’re paying Hatfill millions of dollars, the indication being the guy who committed the crime went free.

I’ll let you sort through the logic of that sentence. But know that Mukasey doesn’t like it–not at all.

Mukasey: Well, um, I don’t understand, quote, the guy who committed the crime, unquote, to have gone free. What I do understand is…

Leahy: Nobody’s been convicted.

Mukasey: Not yet.

Leahy: And five people are dead.

Mukasey: Yes, um…

Leahy: And hundreds of millions of dollars have been spent.

Eventually, it seems that Muaksey concedes that he, too, has very specific knowledge about the case.

Mukasey: That case is under active investigation and I need to be very careful about what I say.

Which Leahy seems to confirm. Read more →

Mukasey Flip Flops on Pixie Dust

/in , /by

Back during Michael Mukasey’s confirmation hearings, Sheldon Whitehouse got Michael Mukasey to commit that, when a President changes an executive order, he appropriately should actually change the executive order–so schmoes like you and I can know what the President is actually doing.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

A few months later, we learned why Whitehouse had asked Mukasey the question–because Bush was claiming that he didn’t need to change his own executive orders, specifically EO 12333–which Americans would have believed protected them against wiretapping when they were overseas.

Let’s start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no – zero – statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.

But what does this administration say about executive orders?

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

"Whenever (the President) wishes to depart from the terms of a previous executive order," he may do so because "an executive order cannot limit a President." Read more →

The Attorney General Thinks It’s Okay for the Vice President to Have Ordered the Outing of a Spy

/in /by

Now we know why Attorney General Mukasey is willing to write such ridiculous letters in the service of hiding Vice President Cheney’s role in the outing of CIA spy: he apparently thinks it’s no big deal that the Vice President ordered the outing of a CIA spy.

At least that’s the implication of this exchange between Mukasey and Arlen "Scottish Haggis" Specter (34:00 to 36:01):

Specter: Moving to reporters privilege in the limited time left. Attorney General Mukasey what was the justification for keeping reporter Judith Stern [sic] in jail for 85 days when the source of the leak was known to be Deputy Attorney General [sic] Richard Armitage?

Mukasey: As you know I was not on duty when that case came to the fore, and it’s my own view that that case may very well be a better argument against the Special Counsel than it is in favor of legislation of the sort that’s been proposed.

Specter: I’m not prepared to deal with the Special Counsel because he’s not here. If I had Senator Leahy’s gavel, I would have brought him in here a while ago, once the case was finished. But it’s very germane in evaluating public policy on whether the Department of Justice ought to have the authority to issue a subpoena in the context and move for a contempt citation and hold a reporter [sic] in jail under very unpleasant circumstances. I can attest to that first hand–I went to visit her.

Mukasey: There’s no such thing as jail under pleasant circumstances. It is an inherent contradiction. It is something that therefore we use as a last resort, and we’re gonna continue to use as a last resort.

Specter: Well, why’d you need a resort when you know the leak? When you know who the leaker is, why go after a reporter or keep her in jail?

Mukasey: As I said, that was not…

Specter: I know that would be better addressed to the Special Counsel.

Mukasey: It would.

Specter: Someday we may have an opportunity to do that. But right now, you’re the one we’ve got, Attorney General Mukasey. You’re the guy who’s pushing a policy. So I think it’s a fair question to say to you, why maintain a policy that gives whoever the prosecutor is the power to do that when you know who the leaker is.

Mukasey: We don’t give that power to a prosecutor, for precisely that reason. Read more →

Mukasey to SJC: Investigation of Rove’s Involvement in Siegelman Should Take Place … Somewhere Else

/in /by

There has been some misunderstanding about Karl Rove’s refusal to show up to testify before HJC tomorrow. While Luskin referred to executive privilege to justify Rove’s refusal to appear tomorrow,

Accordingly, Mr. Rove will respectfully decline to appear before the Subcommittee on July 10 on the grounds that Executive Privilege confers upon him immunity from process in response to a subpoena directed to this subject.

And though Luskin parses wildly to pretend that the subject of this hearing–Siegelman’s prosecution and other selective prosecutions–is identical to the subject on which Rove was subpoenaed to testify before the Senate Judiciary Committee and for which Bush did invoke executive privilege–the firing of the nine US Attorneys.

Mr. Rove is simply not free to accede to the Committee’s view and take a position inconsistent with that asserted by the White House in the litigation [about the subpoenas regarding the US purge].

No one has ever asserted that Bush was invoking executive privilege with regards to this appearance by Rove. In fact, Rove himself, back in May, not only admitted that Bush had not yet done so but implied that Bush would have to do so in this case (and, he suggested, Bush would "probably" do so–though that hasn’t happened yet).

Rove: Congress–the House Judiciary Committee wants to be able to call Presidential Aides on its whim up to testify, violating the separation of powers. Executive Privilege has been asserted by the White House in a similar instance in the Senate. It’ll be, probably be asserted very shortly in the House. [my emphasis]

But no one has asserted that Bush has invoked executive privilege in this case. The sole legal rationale Rove has given for not showing up, even in the absence of executive privilege being invoked, is a memo that Steven Bradbury wrote that may or may not apply to this case. For example, that memo only applies if Rove is willing to claim that politicizing prosecutions was part of his official duties as Senior Advisor to Bush. Suffice it to say that not even Mr. Unitary Executive thought that memo was sufficient basis for blowing off HJC, and that on a topic (rationalizing torture) that probably would be considered among the official duties of OVP’s counsel in this Administration.

As of right now, the White House has declined to give Rove real legal protections for blowing off HJC tomorrow. Read more →

SJC Liveblog

/in /by

Christy is starting a liveblog for those watching FISA, this will focus on SJC now.

Leahy back in SJC: Talking about elections and early poll closures.

Leahy: Snooping in passport files. Matter from State to IG in Criminal Div high profile Americans searched 4100 times. Widespread abuse of electronic records. What steps are you taking to make sure this stops.

Mukasey: We will do everything we can to charge someone.

Durbin: In the remaining 6 months. Moving forward, you can let Bush off, or initiate investigations. Allegation that indicates possibility of criminal activity. We have had reports, Taguba, had this to say: "The CIC authorized a systematic regime of torture. There is no longer any doubt as to whether the current Admin committed war crimes. Question whether those who authorized torture will be held responsible." I have written several letters asking if you were going to investigate any criminal wrong-doing by members of this administration. Responses have not been satisfying. No one who relied on department’s advice should be subject to investigation. Investigate and explore whether waterboarding authorized. What is OPR doing? February, pending investigation to be released, depending on your approval of its release. Will you follow AG Ashcroft’s standard? Authorize this report? Will you step away from things in the past?

Mukasey: Variety of statements. Many investigations. Court martial of people involved in that activity. IG investigation recommended no criminal referrals. FBI’s report positive one.

ARGHHHHH.

Shorter Mukasey: the grunts went to jail, so we’ve done what we can.

Durbin: Those who authorized the torture?

Mukasey: Same thing–depended on OLC.

Durbin: WHo is ultimately in charge?

Durbin: reading from OLC letter: Because of public interest, with AG approval, we recommend public summary.

Mukasey: If OPR wants released, we’ll release.

Biden: Steps to implement Boumediene decision?

Biden: When regime to implement decision.

Mukasey: We’re in discussions with court and opposing counsel.

Biden: Aid to local law enforcement. 81% cut under this administration. A cut of $500 million from last year’s budget.

Muaksey: Don’t count juvenile justice and violence against women.

Biden: I’m comparing apples to apples.

Mukasey: COPS never permanent support.

Biden: Wrong. I wrote the COPS program with my own little paw. Kickstart community policing. If it worked, reauthorize. It wasn’t–and look at language when I wrote it, that if it worked, intention was that it would be reauthorized.

Mukasey: I take your correction, you wrote the legislation.

Read more →

Omnibus Liveblog

/in , /by

Two things going on today: the FISA debate, viewable on CSPAN2, and an oversight hearing, on CSPAN3 or the Committee feed.

And I’m gonna do my best to cover them both (that is, until Christy can pick up one of them).

Here’s the UC for today on the FISA debate–final votes will be around 11:30.

On Wednesday, July 9, 2008, after the Senate convenes at 9:30am, it will resume consideration of the FISA Amendments Act of 2008 (H.R. 6304). There will be one hour and forty-five minutes of debate, with 30 minutes under the control of Senator Feingold; 15 minutes under the control of Senator Dodd; 10 minutes under the control of Senator Bingaman; 10 minutes under the control of Senator Leahy; 10 minutes under the control of the Majority Leader; and 30 under the control of the Republican Leader or his designee.

Upon the use or yielding back of this time, the Senate will proceed to roll-call votes in relation to the pending amendments. Upon disposition of these amendments, the Senate will proceed to a roll -call vote on the motion to invoke cloture on H.R. 6304, as amended if amended.

If cloture is invoked on H.R. 6304, all post-cloture time will be yielded back, and the Senate will proceed to a roll-call vote on passage of H.R. 6304, as amended if amended.

Right now, Leahy is talking at SJC about how this Administration is more politicized than Watergate. And Mitch McConnell is speaking on the Senate floor–so I’ll stick with Leahy for now.

Leahy is reminding Mukasey that he promised to review the OLC opinions. "We look forward to obtaining these memos. We look forward to learning which aspects of the OLC memos have been modified or withdrawn by AG."

Specter (in SJC) talks about FISA as an unchecked expansion of executive authority.

Specter discussing attorney-client privilege–has a bill pending on this. He’s complaining about corporations being asked to waive privilege. (Apparently, he’s okay with the DOJ practice of spying on defense attorneys for people accused of terrorism.)

Now Specter complaining that Judy Miller went to jail when Richard Armitage was the source of the leaks. Apparently he just slept through all the dark clouds hanging over Cheney’s head.

A leak in the investigation of Curt Weldon. A very distinguished Congressman, led directly to his defeat. Never mind that he’s now an arms dealer.

Read more →

Waxman, Fitzgerald, and Mukasey

/in /by

In a response to Waxman today, Patrick Fitzgerald made it clear that Mukasey’s obstruction is the only thing standing between Waxman getting the Bush and Cheney interview reports. And Waxman is none too happy about it. Good.

In his letter, Fitzgerald confirms what has been clear thus far: because Bush and Cheney avoided the dangers of grand jury testimony, their interview reports are not protected under grand jury secrecy. But if Waxman wants them, he’s going to have to get them from Mukasey.

As to interviews which we have determined are not protected by Rule 6(e), we have provided responsive information to you, after allowing the appropriate executive branch agencies to review the documents consistent with the process described in my earlier letters. As discussed in prior correspondence, the Special Counsel team is not responsible for determining whether executive branch confidentiality interests will be asserted in response to particular requests by the Committee.

Consistent with the above process, I can advise you that as to any interviews of either the President or Vice President not protected by the rules of grand jury secrecy, there were no "agreements, conditions, and understandings between the Office of Special Counsel or the Federal Bureau of Investigation" and either the President or Vice President "regarding the conduct and use of the interview of interviews."

Shorter Fitz: blame Mukasey.

Which Waxman promptly did.

On June 16, 2008, the Committee on Oversight and Government Reform issued a subpoena to you for the production of documents relevant to the Committee’s investigation of the leak of the covert identity ofCIA officer Valerie Plame Wilson. You have neither complied with this subpoena by its returnable date nor asserted any privilege to justify withholding documents from the Committee. In light of your actions, I am writing to inform you that the Committee will meet on July 16, 2008, to consider a resolution citing you for contempt of Congress.

[snip]

The arguments you have raised for withholding the interview report are not tenable. When the FBI interview with the Vice President was conducted, the Vice President knew that the information in the interview could be made public in a criminal trial and that there were no restrictions on Special Counsel Fitzgerald’s use of the interview. Mr. Fitzgerald clarified this key point last week, Read more →

Shorter Mike and Mike: No, We Don’t Want Immunity Contingent on Actually Finishing the IG Report

/in /by

I think I’ve given as much consideration to what it would take to have a meaningful study of what the Administration did with its illegal wiretapping program as anyone (though also see this piece on immunity from Brian Beutler, one of the last pieces he did before he got shot last week). And I gotta say–the fact that DNI Mike McConnell and AG Michael Mukasey claim they’d advise Bush to veto the bill if it included Jeff Bingaman’s amendment–holding off on giving the telecoms immunity until after the IG study mandated by the bill was completed–makes me rather suspicious that Bush intends to spike the IG investigation (h/t Spencer).

As we have previously noted, any FISA modernization bill must contain effective legal protections for those companies sued because they are believed to have helped the Government prevent terrorist attacks in the aftermath of September 11, 2001.

[snip]

H.R. 6304 contains such protection, but the amendment would reportedly foreclose an electronic communication service provider from receiving retroactive [immunity] until 90 days after the Inspectors General of various departments, as required by section 301 of H.R. 6304, complete a comprehensive review of, and submit a final report on, communications intelligence activities authorized by the President between September 11, 2001, and January 17, 2007. The final report is not due for a year after the enactment of the bill. Any amendment that would delay implementation of [immunity] in this manner is unacceptable. Providing prompt liability protection is critical to the national security. Accordingly, we, as well as the President’s other advisors, will recommend that the President veto any bill that includes such an amendment.

Now, I’d be charitable and buy Mike amd Mike’s claim that they’re just worried about a delay. Except that they make this completely cynical bid to suggest that the SSCI’s review of the program was adequate to expose what really happened with this program.

Deferring a final decision on retroactive [immunity] for 15 months while the Inspectors General complete the review required by H.R. 6304 is also unnecessary. The Senate Intelligence Committee conducted an extensive study of the issue, which included the review of the relevant classified documents, numerous hearings, and testimony. Read more →

Make Bush Invoke Executive Privilege for Rove

/in /by

Kagro X wrote a post stating that Karl Rove is "not honoring his subpoena" from House Judiciary Committee. That’s not quite an accurate statement, yet–it won’t be until Rove actually does not show up when he was subpoenaed to testify, on Thursday, July 10.

I raise the distinction because, thus far, Rove’s refusal to testify is based solely on his attorney Robert Luskin’s efforts to pretend that the executive privilege Bush invoked with regards to the US Attorney purge extends to questions of politicized prosecution.

As I have indicated to you in each of my letters, Mr. Rove does not assert any personal privileges in response to the subpoena. However, as a former Special Advisor to the President of the United States, he remains obligated to assert privileges held by the President. As you are, of course, well aware, the precise question that we have discussed at length in our correspondence–whether a former Senior Advisor to thet President is required to appear before a Committee of Congress to answer questions concerning the alleged politicization of the Department of Justice–is the subject of a lawsuit in the United States District Court for the District of Columbia.

Yet that invocation of executive privilege was very specific. It relied upon a Paul Clement opinion that very specifically refers to the "dismissal and replacement of U.S. Attorneys" and then goes on to claim that that deliberations about the hiring and firing of USAs "necessarily relate to the potential exercise by the President of an authority assigned to him alone." The claim is specious on its face–after all, Congress has specific authority in the Constitution to legislate the selection of inferior officers; they had passed and were considering passing laws pertaining to the selection of interim USAs; and therefore they had a clear and recognized legislative interest in, for example, whether Bush tried to appoint Tim Griffin using a PATRIOT appointment so as to avoid the Senate approval process. But putting aside Clement’s transparently false argument, everything else he argues is premised on the exclusivity of the hiring and firing authority to the President.

But prosecution of federal crimes is not exclusive to the President; it’s an issue that Congress has clear legislative authority over. So DOJ would have to make very different analysis to find that Rove didn’t have to testify about his role in politicized prosecutions. Read more →