“Very Harsh Conclusions” about Yoo and Bradbury

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Remember that Office of Public Responsibility investigation that Congress requested, Bush squelched (by refusing the investigators clearance to do the investigation), but that, under Mukasey got reinstated?

Brad DeLong has word of what has happened to it:

[T]he OPR… came to "very harsh conclusions" about the professional competence of a number of the [Yoo and Bradbury] memos, making "recommendations for further action" with respect to both John Yoo and Stephen Bradbury. Attorney Genera Mukasey and Deputy AG Filip were reported to be apoplectic about the report and to have attempted to squelch it. Their concern is… for the defense of reliance on advice of counsel that Mukasey put forward in a series of speeches, and that the OPR reports will make, I understand, something of an absurdity…

There’s a lot to be said about this. But I’ll just start with the suggestion that–given that these "straws in the wind" have come to Berkeley Professor Brad DeLong–I can’t help but wonder whether Berkeley Professor John Yoo’s acceptance of a visiting position at Liberty University West Chapman University reflected some concern that Berkeley might see such "very harsh conclusions" to be the excuse they were looking for to get rid of the torture apologist.

Let’s hope this leak of Mukasey and Filip’s attempt to squelch this indicates that they have failed in doing so.

The State Secret Protection Act

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This will get dragged into court right away, even assuming Congressmen Conyers, Nadler, Delahunt, Petri and Congresswoman Lofgren can get it passed. Still, with Obama’s inexcusable support for Bush’s state secrets invocation the other day, there’s no time like the present to really push this bill, which would establish a CIPA-like process to allow the admission of evidence over which the executive has invoked State Secrets. (via email)

Congressmembers Jerrold Nadler (NY-08), Chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, Thomas Petri (WI-6), House Judiciary Chairman John Conyers, Jr. (MI-14), Bill Delahunt (MA-10) and Zoe Lofgren (CA-16) today reintroduced legislation that would ensure meaningful judicial determination of the state secrets privilege. The bi-partisan State Secret Protection Act of 2009 would curb abuse of the privilege while providing protection for valid state secrets.

"The Administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a reminder that legislation is required to ensure meaningful review of the state secret privilege," said Rep. Nadler. "This important bill recognizes that protecting sensitive information is an important responsibility for any administration and requires that courts protect legitimate state secrets while preventing the premature and sweeping dismissal of entire cases. The right to have one’s day in court is fundamental to protecting basic civil liberties and it must not be sacrificed to overbroad claims of secrecy."

Rep. Petri commented, "Imagine the government locks you up but says you can’t see the evidence for reasons of national security. I’m sure there are cases where national security is truly at risk, and that information must be protected. But we shouldn’t have to simply take the executive branch’s word for it. Shouldn’t an independent, responsible party apart from the executive branch review the material to determine when and how national security really necessitates restricting the use of sensitive material? The answer is, quite obviously, yes. We have a procedure for criminal cases, and we need one for civil cases as well."

"National security and the search for justice are not mutually exclusive," said Rep. Zoe Lofgren. "By allowing a neutral arbiter to evaluate assertions of the state secret privilege with appropriate safeguards to protect national security information, the State Secret Protection Act strikes the appropriate balance between protecting our national security and protecting the rights of citizens."

Read more →

Leahy: Congress Will Do Truth Commission with or without POTUS

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As you may have seen last night, one of the more challenging questions for Obama came from the HuffPo’s Sam Stein, who asked Obama if he supported a Truth Commission.

Sam’s still busy with this story, today reporting that Leahy says Congress will go forward even without the support of Obama.

Senate Judiciary Chairman Patrick Leahy and White House Chief Counsel Greg Craig discussed on Tuesday the Senator’s proposal to set up a truth and reconciliation commission to investigate potential crimes of the Bush administration.

"I went over some of the parameters of it and they were well aware at the White House of what I’m talking about," Leahy told the Huffington Post. "And we just agreed to talk further."

[snip]

Leahy did add an important ripple to the story in the interview with the Huffington Post: Congress will likely proceed with investigations regardless of whether Obama is on board.

"Oh yeah," Leahy said when asked if he would go forward without Obama’s endorsement. "I think the Senate and the Congress as whole has an oversight responsibility that has to be carried out here anyway. Now it is much easier with the cooperation of the administration. A lot of things with the subpoenas I issued the past few years, we got a lot of information but a lot of it was held back."

[snip]

"What I would much rather see is to see us working together," said Leahy. "We have a common interest, both the Congress and the administration to get this thing worked out … In this instance, this is so important that our common interest is to get the truth out."

And in related news, Russ Feingold has joined the 22 other Members of Congress who have voiced their support for such a Commission.

I applaud Senator Leahy’s leadership in proposing the establishment of a truth and reconciliation commission. Getting all the facts out about what happened over the last eight years is a crucial part of restoring the rule of law. As President Obama and Attorney General Holder have said, nobody is above the law. There needs to be accountability for wrongdoing by the Bush Administration, including the illegal warrantless wiretapping and interrogation programs. We cannot simply sweep these assaults on the rule of law under the rug. [my emphasis]

I’m guessing Russ will not only support this Commission, but he’ll be one of the first reminding AG Read more →

Pat Leahy Calls for Truth Commission

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I want prosecutions. But seeing as how it looks increasingly likely we won’t get that, I want some accounting for the crimes of the Bush Administration. Today, Pat Leahy joined his counter-part in the House, John Conyers, as well as the Chair of the Senate Armed Services Committee, Carl Levin, in calling for a committee to examine the wrong-doing of the Bush Administration. 

The President is right that we need to focus on fixing the problems that exist and improving the future for hardworking Americans. I wholeheartedly agree and expect the Judiciary Committee and the Senate to act accordingly. But that does not mean that we should abandon seeking ways to provide accountability for what has been a dangerous and disastrous diversion from American law and values. Many Americans feel we need to get to the bottom of what went wrong. We need to be able to read the page before we turn it.

We will work with the Obama administration to fix those parts of our government that went off course. The Office of Legal Counsel at the Justice Department is one of those institutions that was hijacked and must be restored. There must be review and revision of that office’s legal work of the last eight years, when so much of that work was kept secret.

We have succeeded over the last two years in revitalizing our Committee’s oversight capabilities. The periodic oversight hearings with the Attorney General, the FBI Director, the Secretary of Homeland Security, and others will continue. The past can be prologue unless we set things right.

As to the best course of action for bringing a reckoning for the actions of the past eight years, there has been heated disagreement. There are some who resist any effort to investigate the misdeeds of the recent past. Indeed, some Republican Senators tried to extract a devil’s bargain from the Attorney General nominee in exchange for their votes, a commitment that he would not prosecute for anything that happened on President Bush’s watch. That is a pledge no prosecutor should give, and Eric Holder did not, but because he did not, it accounts for many of the partisan votes against him.

There are others who say that, even if it takes all of the next eight years, divides this country, and distracts from the necessary priority Read more →

Fellatio for Cheney from the Politico

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picture-80.thumbnail.pngI guess it’s no surprise that Dick Cheney chose Pool Boy and his two sidekicks, John Harris and Mike Allen, for his first propaganda piece after stepping down as Vice President. And it was a good choice for Cheney, as they apparently assiduously avoided any of the questions that Cheney ought to be asked.

For example, when Cheney asserted,

Protecting the country’s security is “a tough, mean, dirty, nasty business,” he said. “These are evil people. And we’re not going to win this fight by turning the other cheek.”

Real journalists might have asked, "then why the fuck didn’t we finish the job in Afghanistan rather than turning our attention to a war of choice in Iraq?"

Similarly, when Cheney said,

*The potential consequences of $1 trillion in deficit stimulus spending: “It’s huge, obviously – potentially huge. You worry about what ultimately happens to inflation. You worry about what’s going to happen to the ability of the government to borrow money. … I’m nervous.”

Real journalists might have asked why Cheney showed no concern when he was racking up $1 trillion (and counting) of deficit spending for the aforementioned war of choice in Iraq. For that matter, real journalists might even have asked what happened to Cheney’s claim that "Reagan proved deficits don’t matter," now that he’s out of office.

But I suppose it would take more than a real journalist–it would take a DFH blogger, most likely–to point out that, in fact, many people did foresee the colossal fuck-up the Bush Administration was making of the economy.

*Whether the Bush administration should have done more about the economy: "We did worry about it, to some extent. … I don’t think anybody actually foresaw something of this size and dimension occurring. It’s also global. We only control part of the world economy – a very important part."  

The article ends by quoting Liz Cheney teasing her dad that he doesn’t need a press aide–he can do it on his own. And I guess, given that he did such a good job of arranging a fluffer designed to attack Obama some more for reversing Dick’s failed policies–Liz Cheney has it about right. 

About those Missing OLC Opinions

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(Note: I’m scheduled to be on Mark Levine’s Inside Scoop today at 5PM ET. You can listen in here.)

Okay okay already. Here’s your damn missing OLC opinion post.

As a number of you have pointed out, ProPublica did a very cool database of all the OLC opinions on executive power, torture, and warrantless wiretapping that we know of. The database collects in one place, in sortable form, the opinions that track Bush’s abuse of power. 

I had done a timeline mapping the warrantless wiretap opinions to known events associated with Bush’s illegal program (though it’s not sortable like the ProPublica one). And don’t forget that John Conyers gave us a very detailed description of that opinion eliminating the 4th Amendment.

The memorandum, which was directed to White House Counsel Alberto Gonzales and Defense Department General Counsel William J. Haynes, addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barredby either the Fourth Amendment or the federal Posse Comitatus statute. Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.

Mr. Yoo and Mr. Delahunty concluded that both Article II of the Constitution and the 9/11 use of force resolution would authorize these types of domestic military operations (even though Congress had expressly rejected language proposed by the Administration for the AUMF that would have authorized domestic military operations).292 The memorandum also contains extended discussion of a hypothetical example which posits that a domestic military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden inside an apartment building and may possess weapons of mass destruction. According to the memorandum, not only does the Constitution permit the commander to seize the building, detain everyone found inside, and then interrogate them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement. Read more →

Jay Rockefeller Told Us What Russell Tice Just Confirmed, Years Ago

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On KO the other night, Russell Tice expanded on the details of the warrantless wiretapping program, revealing that, the government has been data mining both our telecom communications and our credit card transactions.

As far as the wiretap information that made it to NSA, there was also data mining that was involved. At some point information from credit cards and financial transactions was married in with that information. So of the lucky US citizens, tens of thousands of whom, that are now on digital databases at NSA who have no idea of this also have that sort of information that has been included on those digital files that have been warehoused.

[snip]

This is garnered from algorithms that have been put together to try to just dream up scenarios that might be information that is associated with how a terrorist could operate. Like I mentioned last night, the one to two minute pizza delivery call, things of that nature, of which an innocent citizen could be easily tied into these things. And once that information gets to the NSA, and they start to put it through the filters there, where they have langauge interpreters and stuff and they start looking for word-recognition, if someone just talked about the daily news and mentioned, you know, something about the Middle East they could easily be brought to the forefront of having that little flag put by their name that says "potential terrorist" and of course this US citizen wouldn’t have a clue.

[snip]

I have a guess where it was developed. I think it was probably developed out of the Department of Defense; this is probably the remnants of the Total Information Awareness that came out of DARPA. That’s my guess.

Again, this should surprise no one who has followed our detailed discussions over the last four years about the kind of data mining they were probably doing.

In fact, we learned as much from someone briefed on the program in the days following the first revelations about the program in December 2005. That’s when Jello Jay Rockefeller released the letter he had sent to Cheney about the program. That letter described the program in precisely those terms–the old TIA program that Iran-Contra retread John Poindexter had developed.

As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, Read more →

al-Haramain: the Dead-Enders Misrepresent Their Appeal to Dismiss the Need to Wait for Obama

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al-Haramain’s lawyer, like me, has some doubt whether or not the motion for appeal submitted on Monday and reaffirmed under Obama’s name on Thursday reflects the thinking of the Obama Administration.

Jon Eisenberg, the attorney for the two lawyers, suggested the litigation be put on hold to give the new Obama administration time to reconsider the legal posture it inherited from Bush.

"None of us knows whether or not they might take a different approach to this case," Eisenberg argued to Walker.

Neither [Anthony] Coppolino nor [Vaughn] Walker responded to that point.

And I’m guessing since Coppolino, who is purportedly speaking for the Obama Administration, didn’t immediately answer that question, he has some doubt, too. 

I suspect Walker has some doubt, too, as he has asked for more briefing, which will have the effect of delaying his response until such time as Eric Holder and Dawn Johnsen and David Kris have had time to fully review the documents behind the case and actually be read into this program.

On Friday, Walker instructed the government and Eisenberg to provide further written arguments within weeks about why he should or should not permit the government to appeal a case brought by two former lawyers for the Al-Haramain Islamic Foundation.

And well he should demand more briefing. Because the dead-enders make a claim in the only document with Obama’s name on it–the case management statement initially submitted with Bush’s name on it and then re-submitted with Obama’s name on it–that completely misrepresents the scope and nature of their appeal.

The Dead-Enders Argue They’re Not Making a Unitary Executive Argument

In its own case statement, al-Haramain cites Eric Holder’s call for "a reckoning" for Bush having illegally authorized warrantless wiretap, and then cites Dawn Johnsen arguing that the "unitary executive" theory threatens "balance of powers and individual rights." Then, al-Haramain argues that these statements suggest the Obama Administration will adopt a different course with this case.

It would be a remarkable turnabout for the new Department of Justice, under the guidance of Mr. Holder and Ms. Johnsen, to refuse any declassification here and continue the effort to resist a decision on plaintiff’s standing and this Court’s ajudication of the Bush administration’s "unitary executive" and Commander-in-Chief" theiries.

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Whitehouse: We Have to Look Back

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This speech from Senator Whitehouse is a nice follow-on to this conversation. This is just a highlight–the whole thing is worth reading.

President Obama looks to that future. Given the depth and severity of those predicaments, we need all his energy to look forward to lead us to that brighter day; forward to what Winston Churchill in Britain’s dark days called those "broad and sunlit uplands."

But, as we steer toward this broad and sunlit future, what about the past? As the President looks forward and charts a new course, must someone not also look back, to take an accounting of where we are, what was done, and what must now be repaired.

[snip]

In short, when you have pervasive infiltration into all the halls of government – judicial, legislative, and executive – of the most ignoble forms of influence; when you see systematic dismantling of historic processes and traditions of government that are the safeguards of our democracy; and when you have a bodyguard of lies, jargon, and propaganda emitted to fool and beguile the American people…

Well, something very serious in the history of our republic has gone wrong, something that dims the light of progress for all humanity.

[snip]

If we blind ourselves to this history, if we pull an invisibility cloak over it, we will deny ourselves its lessons. Those lessons came at too painful a cost to ignore. Those lessons merit discovery, disclosure and discussion. Indeed, disclosure and discussion is the difference between a valuable lesson for the bright upward forces of our democracy, and a blueprint for darker forces to return and do it all over again.

A little bright, healthy sunshine and fresh air, so that an educated population knows what was done and how, can show where the tunnels were bored, when the truth was subordinated; what institutions were subverted; how our democracy was compromised; so this grim history is not condemned to repeat itself; so a knowing public in the clarity of day can say, "Never, never, never, again;" so we can keep that light – that light that is at once America’s greatest gift and greatest strength – brightly shining. To do this, I submit, we must look back.

I’ll have a second YouTube from my conversation with Whitehouse up–though probably not until tomorrow–in which he addresses how we should look back with respect to torture.

Emptywheel to Senator Whitehouse: We Only Have 7 Weeks to Indict Bush

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Two and a half weeks ago, bmaz predicted that the Bush Administration would appeal Judge Vaughn Walker’s ruling requiring the Bush Administration to turn over a document that likely proves they violated FISA by wiretapping American citizens. Sure enough, on Friday and Monday, they did so.

In a parting shot, the Bush administration’s Justice Department shrugged off a San Francisco federal judge’s order to make a classified document available to lawyers for an Islamic group challenging the legality of the outgoing president’s secret wiretapping program.

[snip]

Chief U.S. District Judge Vaughn Walker ruled Jan. 5 that Al-Haramain could proceed with its case, saying government statements showed that the group had probably been wiretapped.

Walker said he would examine the classified document to see whether it showed that federal agents intercepted the calls without a warrant, a ruling that would allow him to decide the legality of the surveillance program. He ordered the Justice Department to let the group’s lawyers see the document, after they obtain security clearances, so they can argue their case while keeping the contents secret.

In Monday night’s filing, Justice Department lawyers asked Walker to suspend his ruling while they appeal, and said the National Security Agency has decided the Islamic group’s lawyers have no need for the document.

"Under normal clearance procedures, the NSA would decide – not the court – whether the plaintiffs’ counsel should receive access to any classified information," department lawyers wrote.

Between that appeal and Arlen "Scottish Haggis" Specter’s highly unusual one-week hold on Eric Holder’s nomination yesterday, it sure does look like my theory–that Republicans are trying to delay the time when a Democrat takes over DOJ and starts reviewing Bush Administration actions and considering prosecutions.

In particular, I believe, they are delaying Holder’s nomination to shorten the time between the day Holder takes over and the day the statute of limitations on violations of FISA Bush committed on March 11, 2004 start to expire–that is, March 11, 2009, just seven weeks away.

At yesterday’s Progressive Media Summit, I had an opportunity to remind Senator Sheldon Whitehouse of that timeline. I reminded him, too, that Bush seems intent on delaying the time when an Article III judge assesses the evidence in the al-Haramain document, which probably proves Bush broke the law.  

I don’t know whether Senate Dems can do anything to short-circuit Republican efforts to run out the clock. Read more →