Every Day A Torture Memo

Now that I've had some time to marinate in these depraved memos justifying and finding legal rationalizations for torture, I am convinced that the members of the Bush Administration who directed and authorized all this just willed themselves to believe they were doing the righteous and just thing. Sure, they knew enough to find some thin strand of legal reasoning to cover their naked bodies, but that was seen by them as a brave and forthright act. I don't see another way to live with approving Room 101 techniques like putting someone in a box with a bug unless you've convinced yourself of your own worthiness. The memos also produce a fact pattern of deliberate lies by the CIA to put their proposed torture of Abu Zubaydah in the best possible light (claiming he was of sound mental health when contemporaneous reports term him a basket case, for example). Combine that with typical Republican victimhood status, and you have the squealing pigs in the media today despairing about the release of these documents.

Two of the rogue's gallery, Michael Hayden and Michael Mukasey, argue in the Wall Street Journal that the President "tied his own hand on terror" due to the release. Here's a choice quote from these moral lepers.

Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies. Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.

We're always supposed to remember that we simply had to violate laws and shrink to the level of our enemies because that's how they operate, which is certainly telling on behalf of the cretins defending themselves in this. But the contempt of our enemies was never in question; it's the contempt of our allies, of indeed the entire world, which is only exacerbated by the defense of these actions, especially considering that they have for the time being been put outside the criminal justice system and above the law. It's not the "publicizing of the techniques," as this unnamed coward given sanction by useful idiot Mike Allen to rant today, that weakens national security, it's the constant defense of them, the daily shame that there are powerful people in the US government convinced that drowning people is a necessary activity that "can never be used again" - as if that's a bad thing.

In this sense, Richard Armitage is an anomaly - someone who after the fact would be reflective enough to consider the moral issues involved. The others have brainwashed themselves into believing not just the legality of this monstrousness, but the essential nature of it all. And because they continue to run out in the media and talk about the importance of being torturers, and never face a consequence, they harm national security with each passing moment.

And so do those who refuse to hold them to account. I agree that the largely unredacted release is a praiseworthy act by the President. The push to "move forward" and offer no accountability for violations of domestic law and international convention is a huge mistake - one compounded every day by the continued issuing of "torture memos" in newspapers and on cable TV from the Bush Administration weasels who aren't satisfied with just getting away with the crime, but feel the need to glorify it. This is a Justice Department decision, and they ought to appoint a special prosecutor, taking it out of the political realm. Believers in the rule of law should be screaming for that. Because every day that passes, another torture memo puts distance between us and the world.

As for the impeachment of Jay Bybee, who sits on the 9th Circuit Court of Appeals in San Francisco and spends his days officially passing judgment when his judgment is on display in the torture memos for all to see, I know of a movement upon which we can all latch. I have to confirm it, but please stay tuned.

Mukasey Collapses

The Attorney General was giving a speech when he collapsed, and it's unclear whether or not he regained consciousness.

More as we get it...

...Now that it looks like Mukasey is in stable condition, let's just note that he was giving a speech defending the Administration's torture policies when he was struck down and collapsed.

There's a point to be made there...

The Post-Bush Investigation Era Begins

Obviously the bailout bill is the order of the day (and I hear enough Congresscritters saying they "have to do something" and "we are all Murcans" that the ship has pretty much sailed) but there's another very interesting report out today, a long-awaited Justice Department Inspector General summary of the US Attorney firings.

In 2007 I was fairly obsessed with these prosecutor purges, and it became clear that the affected US Attorneys were singled out for nakedly political reasons and in most cases for failing to indict Democrats or insert themselves into the electoral process. The actions of the prosecutors who remained made the actions taken to fire those who failed to comply more pronounced. The ugly underbelly of Karl Rove politics was really ripped open for all to see, and no amount of denials would change that.

The report is about as thorough as it can be, given that key Republicans in the Justice Department, as well as elected officials caught up in the probe like New Mexico Senator Pete Domenici, simply stonewalled the investigation. This is particularly the case in the firing of New Mexico US Attorney David Iglesias.

The report concludes that Iglesias was removed as a result of complaints brought to DOJ by New Mexico GOP members of Congress and party activists, and shows that Karl Rove knew in advance of the decision. It reveals that at a meeting on November 15, 2006, Rep. Heather Wilson told Rove: "Mr. Rove, for what it's worth, the U.S. Attorney in New Mexico is a waste of breath." Rove's response: ""That decision has already been made. He's gone."

But it states that IG investigators were unable to determine how Rove knew this (Iglesias wasn't notifed until December 7), and what his possible role in the decision was, because Rove and White House counsel Harriet Miers refused to cooperate with the investigation.

Similarly, it notes that Kyle Sampson, who as chief of staff to Alberto Gonzales took the lead in bringing about the firings, gave "misleading after-the-fact explanations for why Iglesias was placed on the list." The report concludes: "[W]e question whether Sampson provided us the full story about Iglesias's placement on the list, as well as the reasons for other U.S. Attorney removals."

And: "Our investigation was also hindered by the refusal of Senator Domenici and his Chief of Staff to agree to an interview by us." (In April, Domenici, who is retiring this year, received a "qualified admonition" from the Senate ethics committee for his role in the firing.)

The report is a monster, but it can be boiled down to "the DoJ broke the law in spirit and probably in letter, but they won't give us enough information to figure out precisely how they broke the law, so... somebody else should figure that out." While it certainly appears that Fredo Gonzales and some of his top deputies perjured themselves before Congress, the report does not recommend criminal charges (it merely says that Fredo et al "failed to provide accurate and truthful statements about the removals and their role in the process,” which is... something different entirely?). However, it does clearly state that Gonzales and his lead deputy Paul McNulty turned a blind eye to the firings, essentially outsourcing personnel decisions to the White House political office, and that Kyle Sampson was largely responsible for the haphazard process both during and after the firings. And it asks for the appointment of a special prosecutor to investigate this further. And wouldn't you know it, Michael Mukasey went along with it:

WASHINGTON — Attorney General Michael B. Mukasey appointed a special prosecutor on Monday to investigate whether criminal charges should be brought against former Attorney General Alberto R. Gonzales and other officials in connection with the firings of nine of United States attorneys in 2006.

“The report makes plain that, at a minimum, the process by which nine U.S. attorneys were removed in 2006 was haphazard, arbitrary and unprofessional, and the way in which the Justice Department handled those removals and the resulting public controversy was profoundly lacking,” Mr. Mukasey said in a statement. The report called for further investigation to determine whether prosecutable offenses were committed either in the firings or in subsequent testimony about them.

Nora Dannehy, acting United States Attorney in Connecticut, will lead the investigation, Mr. Mukasey said. A graduate of Harvard Law School, she has served as a prosecutor for 17 years and specializes in white-collar and public corruption cases. She led the prosecution of the former governor of Connecticut, John Rowland, who pleaded guilty in 2004 to accepting $107,000 in gifts.Mr. Gonzales, who resigned last year after coming under criticism because of the firings, has been the main focus of interest, in part because several members of Congress charged that he may have perjured himself in his testimony through his memory lapses and misstatements about the firings.

Here's Mukasey's statement. I was a little surprised that he went ahead and did this. Sure, appointing a prosecutor inside the DoJ affords a little more control than an independent counsel, but Mukasey's team will be gone soon enough, and so this investigation certainly will carry over into the next Presidency. Which is as it should be. There is no way that these charlatans should be able to manage oversight over themselves.

The question, obviously, is how far the next President would be willing to go. And not just with the US Attorney purges, but a host of other topics (Murray Waas had additional information late last week about Fredo's trip to the hospital to bully John Ashcroft into signing off on the illegal wiretapping program - looks like Bush personally directed it). The mechanisms are now in place, at least in this case, to continue serious investigations into White House crimes without meddling or stonewalling from Bush and his cronies. That's an opprtunity we can't afford to pass up.

Enforce The Laws? Sorry, Not My Job

Ladies and gentlemen, the Rt. Hon. Attorney General Michael Mukasey.

I am well aware that some people have called on me and on the Department to take even more drastic steps than those I have described. For example, some commentators have suggested that we should criminally prosecute the people found in the reports to have committed misconduct. Where there is evidence of criminal wrongdoing, we vigorously investigate it. And where there is enough evidence to charge someone with a crime, we vigorously prosecute. But not every wrong, or even every violation of the law, is a crime. In this instance, the two joint reports found only violations of the civil service laws.

That does not mean, as some people have suggested, that those officials who were found by the joint reports to have committed misconduct have suffered no consequences. Far from it. The officials most directly implicated in the misconduct left the Department to the accompaniment of substantial negative publicity. Their misconduct has now been laid bare by the Justice Department for all to see. As a general matter in such cases, where disciplinary referrals are appropriate, they are made. To put it in concrete terms, I doubt that anyone in this room would want to trade places with any of those people.

They've been completely humiliated, you see! Never mind the right-wing welfare system hiring them as corporate lawyers or such. They might end up being slightly uncomfortable when food shopping! Isn't that enough? What are you people, sadists?

Of course, since Mukasey entered the DoJ as a wise and independent voice (or so I was told by the high Broderists and serious Democrats like Dianne Feinstein and Chuck Schumer) I'm sure this latest decision to throw the rule of law in the toilet reflects a very considered and superior judgment. In no way can it construed as water-carrying for the Bush Administration. Perish the thought.

...Mukasey offers this on the subject of what to do with all those career attorneys who were hired illegally:

Other critics have suggested that we should summarily fire or reassign all those people who were hired through the flawed processes described in the joint reports. But there is a principle of equity that we all learned in the schoolyard, and that remains as true today as when we first heard it: two wrongs do not make a right. As the Inspector General himself recently told the Senate Judiciary Committee, the people hired in an improper way did not, themselves, do anything wrong. It therefore would be unfair - and quite possibly illegal given their civil service protections - to fire them or to reassign them without individual cause.

It is illegal under civil service protections, but this third-grade logic doesn't mean that the law ought not to be altered for this special case. Otherwise there will be literally no accountability for these illegal activities that continue to have ramifications. The Hatch Act may offer no real punishment outside of expelling offenders from their governmental positions, but surely it follows that if the prepetrators are already out of government, the fruits of their actions must then go through a legal process to remain employed.

Ultimately, this needs to happen. We need a massive landmine search and destroy mission in the Justice Department.

"Not every violation of the law is a crime." If that's not an epitaph for this Administration.

The Mukasey Gambit

Every election year, the Bush Administration manages to come up with one killer piece of legislation right around the end of the cycle to use to prove Democratic weakness and beat them over the head. It works most of the time, and even if they don't go on to electoral victory, they end up extracting key concessions from the other side in the name of national security. This year, the Attorney General is looking to invalidate Boumediene. I think I have to repeat Mukasey's "Contract On America" in full:

First, and most important, Congress should make clear that a federal court may not order the Government to bring enemy combatants into the United States. There are more than 200 detainees remaining at Guantanamo Bay, and many of them pose an extraordinary threat to Americans; many already have demonstrated their ability and their desire to kill Americans. As a federal judge, I presided over a prominent terrorism-related trial, and the expense and effort required to provide security before, during, and after the trial were staggering. Simply bringing a detainee into the United States for the limited purpose of participating in his habeas proceeding would require extraordinary efforts to maintain the security of the site. To the extent detainees need to participate personally, technology should enable them to do so by video link from Guantanamo Bay, which is both remote and safe.

Far more critically, although the Constitution may require generally that a habeas court have the authority to order release, no court should be able to order that an alien captured and detained abroad during wartime be admitted and released into the United States.

Second, it is imperative that the proceedings for these enemy combatants be conducted in a way that protects how our Nation gathers intelligence, and what that intelligence is. In the terrorism case I mentioned a minute ago, the government was required by law to turn over to the defense a list of unindicted co-conspirators - a list that included Osama bin Laden. This was in 1995, long before most Americans had ever heard of Osama bin Laden. As we learned later, that list found its way into bin Laden's hands in Khartoum, tipping him off to the fact that the United States Government was aware not only of him but also of the identity of many of his co-conspirators. We simply cannot afford to reveal to terrorists all that we know about them and how we acquired that information. We need to protect our national security secrets, and we can do so in a way that is fair to both the Government and detainees alike.

Third, Congress should make clear that habeas proceedings should not delay the military commission trials of detainees charged with war crimes. Twenty individuals have already been charged, and many more may be charged in the upcoming months. Last Thursday, we received a favorable decision from a federal court rejecting the effort of a detainee to block his military commission trial from going forward, but detainees will inevitably file further court challenges in an effort to delay these proceedings. Americans charged with crimes in our courts must wait until after their trials and appeals are finished before they can seek habeas relief. So should alien enemy combatants. Congress can and should reaffirm that habeas review for those combatants must await the outcome of their trials. The victims of the September 11th terrorist attacks should not have to wait any longer to see those who stand accused face trial.

Fourth, any legislation should acknowledge again and explicitly that this Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans-soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.

Fifth, Congress should establish sensible procedures for habeas challenges going forward. In order to eliminate the risk of duplicative efforts and inconsistent rulings, Congress should ensure that one district court takes exclusive jurisdiction over these habeas cases and should direct that common legal issues be decided by one judge in a coordinated fashion. And Congress should adopt rules that strike a reasonable balance between the detainees' rights to a fair hearing on the one hand, and our national security needs and the realities of wartime detention on the other hand. In other words, Congress should accept the Supreme Court's explicit invitation to make these proceedings, in a word repeated often in the Boumediene decision, practical-that is, proceedings adapted to the real world we live in, not the ideal world we wish we lived in.

Such rules should not provide greater protection than we would provide to American citizens held as enemy combatants in this conflict. And they must ensure that court proceedings are not permitted to interfere with the mission of our armed forces. Our soldiers fighting the War on Terror, for example, should not be required to leave the front lines to testify as witnesses in habeas hearings; affidavits, prepared after battlefield activities have ceased, should be enough.

And military personnel should not be required to risk their lives to create the sort of arrest reports and chain-of-custody reports that are used, under very different circumstances, by ordinary law enforcement officers in the United States. Battlefields are not an environment where such reports can be generated without substantial risk to American lives. As one editorialist put it, this is not CSI Kandahar. Federal courts have never treated habeas corpus as demanding full-dress trials, even in ordinary criminal cases, and it would be particularly unwise to do so here given the grave national security concerns I have discussed.

Sixth and finally, because of the significant resource constraints on the Government's ability to defend the hundreds of habeas cases proceeding in the district courts, Congress should make clear that the detainees cannot pursue other forms of litigation to challenge their detention. One unintended consequence of the Supreme Court's decision in Boumediene is that detainees now have two separate, and redundant, procedures to challenge their detention, one under the Detainee Treatment Act and the other under the Constitution. Congress should eliminate statutory judicial review under the Detainee Treatment Act, and it should reaffirm its previous decision to eliminate other burdensome litigation not required by the Constitution, such as challenges to conditions of confinement or transfers out of United States custody.

Here I must make explicit, and perhaps risk reiterating, a point I would hope was obvious from the discussion so far. We are talking here about habeas corpus proceedings, not about criminal trials of the sort that some but not all of the detainees at Guantanamo Bay may face. Some people have argued that we should either charge the detainees we are holding at Guantanamo with crimes, or release them. We can and we have charged some detainees with war crimes. These proceedings are exceptionally important, and I referred to them earlier.

But to suggest that the government must charge detainees with crimes or release them is to seriously misunderstand the principal reasons why we detain enemy combatants in the first place: it has to do with self-protection, because these are dangerous people who pose threats to our citizens and to our soldiers. The Department of Defense and the Department of State have worked together to release those whom we believe can be transferred to a third country, consistent with the safety of our citizens and our military personnel abroad, and with our humanitarian commitments; of the 775 people who have been detained at Guantanamo, only about one-third remain. The fact that we have not charged all of those remaining at Guantanamo with crimes should not be regarded as a fair criticism of our detention policies; rather, it reflects the fundamental reality that these individuals were captured in an armed conflict, not in a police raid.

Boy, this guy really was Giuliani's good buddy, wasn't he?

It's this authoritarian mentality, this shameful lying about how we picked up random brown people in Afghanistan and locked them up forever to hide their innocence, that has put us in the position that Great Britain won't extradite prisoners to us for fear that we will torture them. Mukasey is a total scumbag, and he's asking for the whole enchilada - essentially a new war authorization with Al Qaeda (even though we ditched them to fight in Iraq), eliminating the very habeas rights that the Supreme Court explicitly gave to prisoners AFTER CONGRESS PASSED A LAW THE FIRST TIME, and a host of other ridiculous requests, which would have the effect of allowing the President to declare anyone a terrorist and holding them incommunicado forever.

Harry Reid, Patrick Leahy and Russ Feingold (whose signature I now have on a T-shirt as a result of coming in second in the Netroots Nation pub quiz) responded to this today. Reid and Leahy's statements averred that there isn't enough time to comply with Mukasey. But Feingold, as usual, told the truth.

“The Attorney General’s comments today appeared to be an attempt to create an election-year security issue where there isn’t one. Our federal courts are capable of handling these cases, and no dangerous detainees held at Guantanamo will be released anytime soon. By repeatedly mishandling these cases, the administration has delayed justice from being served. If congressional action is needed to clean up the mess the administration created at Guantanamo, it should be taken alongside a new administration that doesn’t have such contempt for the rule of law.”

In other words, the Administration never did the work, waited until the last minute, and now wants to fearmonger their way into entirely new rules for detaining and charging the prisoners at Guantanamo. The reason they want quick legislative action is to stop the court from its march toward justice, which would prove them to be incompetent and dangerous (one of the judges, Royce Lamberth, was unsparing in his remarks today). But the real reason is to find a political issue, scare the bejeezus out of everyone about it, and expand executive power by using the elections as a fulcrum point. Democrats ought not to be stupid enough to fall for this again, but I put nothing past them.

Oddly enough, Mukasey is appearing on Capitol Hill again Wednesday, so lawmakers can give him an earful about this if they wished.

Feinstein's Epic FAIL

As bad a week as it's been for John McCain, it's been a TERRIBLE week for Dianne Feinstein. She watched in the Senate Judiciary Committee as Attorney General Michael Mukasey, who she voted to confirm, put on as bad a performance as Alberto Gonzales ever did, covering for the Administration's criminal actions, from torture to politicization of the Justice Department. Then, of course, there was the FISA vote, where she bowed to President Bush and voted to participate in a coverup. Despite this public statement just two weeks before the vote:

I believe the court should not grant immunity without looking into the legality of the companies' actions. So if there is an amendment that does support this, I would intend to vote for it.

When it came down to voting on precisely that amendment, she weaseled her way out of it.

Amendment Number: S.Amdt. 5059 to H.R. 6304 (Foreign Intelligence Surveillance Act of 1978)

Statement of Purpose: To limit retroactive immunity for providing assistance to the United States to instances in which a Federal court determines the assistance was provided in connection with an intelligence activity that was constitutional.

Feinstein (D-CA), Nay

And of course, she voted against stripping immunity, for cloture, and for the final bill.

Then there's this water bond which is more of a true compromise for DiFi, but still includes funds for building dams, and ignores unspent water funds from a 2006 bond issue. So the idea is to borrow on top of the borrowing.

Courage Campaign is considering whether or not to push censure, but CREDO Action isn't waiting to voice their displeasure. From an email:

On July 9th, sixty-nine senators voted to gut the Bill of Rights. They voted to hand President Bush the power to spy on Americans without warrants, and to grant retroactive immunity to the telecoms who allegedly helped him break the law in the past.

No wonder the Associated Press headline following the bill's passage read, "Senate bows to Bush."

So why does a president with the lowest approval ratings since the advent of polling have the power to eviscerate the Constitution?

Because Sen. Feinstein gave it to him.

We can't undo what our senators have done. But we can tell them that we can't believe they'd rather protect President Bush and his law-breaking cronies than the civil liberties of all Americans.

Click here to tell Sen. Feinstein that you are watching, that you are disappointed, and that you won't sit idly by while our Congress destroys our Constitution.

After you sign the petition, please be sure to tell a few friends.

It's really the establishment mindset, afraid of being labeled weak and then bowing to the opposition party's demands, and not recognizing the irony, that must be stopped. And there's no greater symbol of that mindset than DiFi

At Least He Doesn't Say "I Don't Recall" A Lot!

So while the Senate was legalizing warrantless wiretapping and granting Bush and the telecoms immunity yesterday, that nice Mr. Mukasey had a meeting with the Judiciary Committee on the Hill. Thought you'd like to know what he said:

• He wouldn't admit that Alberto Gonzales politicized the Department of Justice, contradicting his own agency's recent Inspector General report that has put former DoJ officials in so much trouble that independent organizations are trying to get them disbarred. He also refused to allow for any accountability to those officials, probably because he wouldn't admit they did anything wrong.

• He argued that those Administration officials who authorized and directed torture at Guantanamo Bay and throughout US detention sites worldwide "cannot and should not be prosecuted," nor should any CIA agents who participated in the torture.

• He didn't want to involve himself in the investigation over Karl Rove's involvement in the prosecution of Don Siegelman, and appeared to deny that the Office of Professional Repsonsibility had any role in such an investigation, even though it was reported just yesterday that the OPR contacted the Siegelman camp for documents in the probe.

• He decided, essentially, that it was okay for Fourthbranch Cheney to have outed Valerie Plame, and that he wouldn't step into that investigation either. He's already risking a contempt citation from the House Oversight Committee for refusing to turn over Cheney's FBI interview transcripts.

But, you know, Sens. Feinstein and Schumer are right, this guy IS an improvement over Alberto Gonzales!

Backpedal

Michale Mukasey faced a Senate hearing last week and had to wiggle away from his claims that FISA caused 9/11, or whatever he intimated.

On his third question, Leahy asked Mukasey to clarify a recent comment he made in San Francisco where he implied that the failure to listen in on a phone call from Afghanistan to the United States prior to the Sept. 11, 2001 attacks had cost 3,000 lives.

"Nobody else seems to know about this. Can you tell me what the circumstances were and why?" Leahy said.

"The phone call I referenced relates to an incoming call that is referred to in a letter in February of this year to House Intelligence Committee Chairman [Silvestre] Reyes [(D-Texas)] from Director of National Intelligence Mike McConnell and I," Mukasey said.

"One thing I got wrong. It didn't come from Afghanistan. I got the country wrong," Mukasey continued without specifying the country where the call originated [...]

Mukasey, who used the phone call as an example to highlight the intelligence shortcomings before 9/11, did not explain why he included the comment to argue for expanded surveillance powers in a question-and-answer session after his speech on March 27.

"No FISA [Foreign Intelligence Surveillance Act] application should have been necessary to monitor a foreign target in a foreign country," Leahy reminded Mukasey. "We didn't need it then. And we didn't need it today."

He seems to think that if he can just muddy it up enough, if he can give the phone number but with the area code missing, he can get out of this.

John Conyers says no.

Based on the April 10 letter and other information from the Department, it now appears that the incident mentioned in your March 27 remarks concerned phone communication between a future 9/11 hijacker while in the U.S. and a known terrorist facility in the Middle East, which was in fact discussed by the Congressional intelligence committees in their report on 9/11. As the committees explained, however, the failure to utilize the information in this call had nothing to do with limitations in FISA, contrary to what your March 27 speech appeared to suggest. Instead, the problem was NSA’s narrow interpretation of its authority to collect and disseminate data on U.S. persons following its acquisition under Executive Order 12333. Your letter to Chairman Reyes recognizes this. As the Congressional intelligence committees’ joint inquiry pointed out, “NSA adopted this policy even though the collection of such communications is within its mission and it would have been possible for NSA to obtain FISA Court authorization for such collection…. NSA did not, however, develop a plan with the FBI to collect and to ensure the dissemination of any relevant foreign intelligence to appropriate domestic agencies.”1 In the wake of the 9/11 attacks, the NSA changed this policy. Although a number of changes to FISA have been enacted since the attacks of September 11, this change in NSA policy did not require Congressional action, and FISA had nothing to do with the failure to intercept and utilize effectively the intelligence at issue. We hope that you will clarify your remarks accordingly.

In addition, however, the April 10 letter does not respond to several of our requests. Our letter did not, as you characterize it, generally inquire “why FISA’s emergency provisions were not an adequate substitute for the authorities the Government has obtained under the Protect America Act.” Rather, our inquiry concerned the specific phone call about which you spoke. We asked whether the then-existing emergency provisions would have allowed interception of the specific call at issue, if indeed the foreign portion of the call was a known terrorist location. To the extent that your response set forth an argument for the PAA or the Administration’s preferred version of FISA reform, it was non-responsive to our request for information. Based on the clarifications in the April 10 letter, we understand that the answer to our actual question was that, in fact, then-existing FISA provisions would have allowed the interception and dissemination of the phone call, but that it was NSA’s then-existing narrow interpretation of Executive Order 12333 that was the problem. Please explain promptly if that is not the case.

Our April 3 letter also asked for a copy of the secret Office of Legal Counsel Memorandum of October 23, 2001, concerning the purported authority to conduct certain military or other activities within the United States. Quite recently, you testified to a Senate Committee that the portion of that memorandum that has been publicly revealed – the claim that “the Fourth Amendment had no application to domestic military operations” – may no longer be operative, though you did not state whether this or other conclusions in the memo have been withdrawn.2 This testimony underlines further the need for release of this memorandum, and we ask that you promptly reply to our request that you do so.

Of particular interest is that (still classified) October 2001 memo. If the OLC asserted a right to defy the Fourth Amendment I want to know if it remains operative.

At some level, it's fun to watch these functionaries squirm, until you realized they've wrecked the country, that is.

You'd Think This Would Merit A Mention

I don't know if you've been following this Michael Mukasey story, and if you haven't been reading Glenn Greenwald, I don't know how you would be able to follow it. At a speaking engagement in San Francisco, Mukasey asserted without proof that the Bush Administration knew about a phone call from a "safe house" in Afghanistan into the United States prior to 9/11, but couldn't eavesdrop on the call because of FISA's requirement for a warrant. On its face, this is completely untrue - under FISA you could get the warrant after the fact. However, what's more crucial is that nobody in the government or the agencies in a position to know about this phone call have any idea what Mukasey is talking about. And so once again, we see a Bush Administration official lying about a terrorist threat in order to gather massive unchecked powers for the executive.

Members of the 9/11 Commission doesn't know about this story. The House Judiciary Committee doesn't know about this story and wants some answers from Mukasey. And now, 9/11 Commission co-chair Lee Hamilton is denying that any such call took place.

In light of Hamilton's amazing comment, could journalists possibly now report on this story? One of two things is true about Mukasey's extraordinary claim about how and why the 9/11 attacks occurred. Either:

(1) The Bush administration concealed this obviously vital episode from the 9/11 Commission and from everyone else, until Mukasey tearfully trotted it out last week; or,

(2) Mukasey, the nation's highest law enforcement officer, made this story up in order to scare and manipulate Americans into believing that FISA and other surveillance safeguards caused the 9/11 attacks and therefore the Government should be given more unchecked spying powers.

This is very serious. From the Justice Department's response to Greenwald it's clear that this call was not hypothetical, at least according to Mukasey. So we're left with either a lie or a cover-up. And at the minimum we're left with a use of fearmongering and the threat of terror to frighten Americans into loosening their grip on their civil liberties. And we know that these new executive powers have been abused and mishandled to expand the national surveillance state.

It's shocking to me that these abuses of executive authority haven't become a main argument in the Presidential race thus far. They have the bully pulpit to force attention on these egregious illegalities, from rendition to torture to illegal surveillance to legal theories abrogating multiple Constitutional amendments and international law. Look at the consequences from such actions, for example in the case of John Yoo's memo asserting the right of interrogators to torture.

The exact circumstances surrounding the dealings between Haynes and Yoo that led to the development of this memorandum are unclear. However, it is clear that Haynes had previously authorized the use of the torture techniques, and had secured an order from Secretary of Defense Rumsfeld authorizing them.

Following the implementation of these techniques, more than 108 detainees died in detention. In a large number of these cases, the deaths have been ruled a homicide and connected to torture. These homicides were a forseeable consequence of the advice that Haynes and Yoo gave.

The introduction of torture techniques destroyed America’s reputation around the world, dramatically eroded a system of alliances that generations of Americans fought and labored to sustain and build, and provided the basis for a dramatic recruitment campaign for terrorist groups who are the nation’s principal adversaries in the war on terror. Yoo’s and Haynes’s conduct dramatically undercut the security and safety of every American. And equally, Yoo and Haynes demonstrated by their conduct contempt for the rule of law and the principles for which hundreds of thousands of Americans shed their blood in prior conflicts.

This Mukasey lie is a symptom. It's not an isolated incident. It's been the goal of this Administration to do whatever it takes, break whatever law necessary, to aggrandize power to themselves. They will clearly kill for it. They will clearly terrorize for it. And one would think the media would catch up to this reality.

Big Day In The Annals Of Contempt Of Congress

Just hours after Nancy Pelosi demanded that the Attorney General direct the US Attorney for DC to act on contempt citations for Josh Bolten and Harriet Miers, the Attorney General replied, "Yeah, I'm going to have to go with no."

Attorney General Michael Mukasey on Friday rejected referring the House's contempt citations against two of President Bush's top aides to a federal grand jury. Mukasey says they committed no crime.

Mukasey said White House Chief of Staff Josh Bolten and former presidential counsel Harriet Miers were right in refusing to provide Congress White House documents or testify about the firings of federal prosecutors.

"The department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers," Mukasey wrote House Speaker Nancy Pelosi.

It's a good thing we have someone so wise at the Justice Department to put his judgment in front of the letter of the law. Both Dianne Feinstein and Chuck Schumer must be so proud of their little angel.

Pelosi responded swiftly, and in fine fashion:

“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.”

Of course, there is another way that doesn't tie up the case years into the future as it winds through the court system, and that's inherent contempt.

Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.

Extreme, to be sure. Which is exactly what is called for in this case. The Administration is thumbing its nose at the Congress. The Congress appeals to the legal system but the Administration also controls that through the Justice Department. This is a scandal about US Attorneys and a US Attorney who WASN'T on the firing list, i.e. a "loyal Bushie," is hardly to be expected to prosecute. If this eventually goes all the way to the Supreme Court, there are plenty of "loyal Bushies" on there as well. But as it's a "political question" that the courts will likely find the other branches to need to settle amongst themselves, that's not likely. Inherent contempt is the only process where Congress doesn't have to rely on another government branch. Quoting Kagro X:

Let's face it: if the "administration" simply refuses to budge, the Congress either has to fold its tent and go home, or enforce on its own authority the subpoena power the American people voted for. Given that we've reached this impasse -- and we knew it was coming -- over an investigation into the hyper-partisan and hyper-politicized nature of the U.S. Attorneys, inherent contempt proceedings would appear to be the first and most direct resort of Congress in enforcing its mandate.

It would also appear to be the last stop short of impeachment. And with that remedy currently "off the table," Congress needs to speak -- and speak soon -- about how it intends to protect its prerogatives.

So far, that answer has been "not at all." So it's really a stark choice: either move forward with inherent contempt, impeachment, or go home. I know the Democratic leadership has their fingers in their ears until next January, just trying to run out the clock on the Bush Administration. Thing is, Bush has the same idea; he wants to get away with his crimes, protect his secrets and immunize himself, his staff, and his corporate partners. The only people standing in the way are members of Congress, and they're standing like bowling pins, waiting for the next strike to send them flying.

Pelosi recognizes that the future of Congress as a co-equal branch is at stake, but refuses to play as close to the edge as the White House. You're not going to win that way, and in this case "winning" isn't just a political victory, but a victory for the relevance of American government. Not worth risking that to get an extra few more electoral votes.

White House: We Damaged National Security

The Boo! Are You Scared? Administration, trying desperately to get what they want from a Congress that has, unusually, not provided it thus far, sent their version of a horse's head in the bedsheets to House Democrats yesterday, telling them that the United States "lost intelligence" as a result of the expiration of the Protect America Act last week.

“We have lost intelligence information this past week as a direct result of the uncertainty created by Congress’ failure to act,” says an underlined passage of a six-page letter signed by Attorney General Michael B. Mukasey and Director of National Intelligence J. Michael McConnell.

The letter does not give details [...]

Current intelligence activities are not affected by the expiration for a year. But the government contends that new intelligence targets cannot be certified for surveillance, creating potential gaps in intelligence.

“Because of this uncertainty, some partners have reduced cooperation,” the administration letter says. “We are working to mitigate these problems. ... This uncertainty may well continue to cause us to miss information that we otherwise would be collecting.”

Now, first of all, that is almost certainly untrue, and we're well beyond the point where the White House should get the benefit of the doubt on these matters. In fact, we know it's not true. But for a second, let's assume that it's true. Let's assume that these "partners" have gotten all skittish that they're breaking the law by helping the government in their spying and they shut down their wiretaps (or perhaps, the government forgot to pay the phone bill, as has happened before). For one moment, let's assume that to be the case.

The Democrats in Congress voted, for the most part, to extend the Protect America Act (the sensible ones, knowing it was a brazen giveaway of civil liberties, didn't). Republicans voted against it and the Bush Administration threatened to veto it. And they blocked the extension for a very specific reason.

McConnell acknowledged last week that the White House's refusal to extend the wiretapping law was meant to pressure Congress to pass the Senate bill.

So, the United States has lost intelligence, then, as a DIRECT result of the White House playing political games with national security. They have fully admitted this. The President would rather protect the phone companies and endanger the country than protect the country and endanger a portion of the profits of the phone companies.

Glenn Greenwald has more from that letter sent by Mike McConnell and Michael Mukasey to the House.

In the letter from Chairman Reyes to which McConnell and Mukasey are responding, Reyes pointed out that under the still-existing FISA law, the Government is free to commence surveillance without a warrant where there is no time to obtain one. In response, McConnell and Mukasey wrote:

[You imply that the emergency authorization process under FISA is an adequate substitute for the legislative authorities that have elapsed. This assertion reflects a basic misunderstanding about FISA's emergency authorization provisions. Specifically, you assert that the National Security Agency (NSA) or Federal Bureau of Investigation (FBI) "may begin surveillance immediately" in an emergency situation. FISA requires far more, and it would be illegal to proceed as you suggest].

Wow, what a blockbuster revelation. Apparently, as it turns out, in the United States it's "illegal" for the Government to eavesdrop on Americans without first complying with the requirements of FISA. Who would have known? It's a good thing we don't have a Government that would ever do that, or a Congress that would ever tolerate such "illegal" behavior. And it's so moving to hear the Bush administration earnestly explain that they are so hamstrung by FISA's requirements that we are all deeply vulnerable to the Terrorists, but they have no choice but to comply with its burdensome provisions -- because to do otherwise would be "illegal." [...]

Since Mike Mukasey himself just said in this letter that spying outside of FISA is "illegal," and since it's indisputable that the Bush administration did just that for years, doesn't that compel him as Attorney General to commence a criminal investigation into this "illegal" conduct?

It's really an open and shut case, should anyone want to prosecute it. The warrantless spying program was illegal when it was enacted, as surely as it's illegal right now. Not only do House Democrats need to hold firm and let the White House scream all they want, but the next Administration needs to open a criminal investigation into every top official who authorized the clearly illegal spying program. I have no faith that this will happy, sadly.

Powder Un-Drying?

I agree with emptywheel, John Conyers has kind of had it. He's been in Congress long enough to know how decayed the current one-way relationship between the legislative and executive branches truly is. So after months of wheedling, cajoling, strongly worded letters, even more strongly worded letters, and the like, he's finally starting to understand that jail is probably the only thing that the Bush Administration cronies will respond to. And so he reminded everyone today that there's a jail in the Capitol basement:

Madam Chairwoman, Ranking Member Drier, members of the Committee, thank you for this opportunity to testify on two related resolutions: 1) H. Res. 979, the Judiciary Committee’s resolution recommending that the House find White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers in contempt of Congress for refusing to comply with subpoenas duly issued by the Committee, and 2) H. Res. 980, a privileged resolution I introduced today authorizing the Committee to initiate or intervene in civil judicial proceedings to enforce those subpoenas.

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.”

I'll tell you, when I saw a hint of this in today's New York Times I dismissed it entirely. But I think Conyers finally understands that at stake is the legitimacy of the Congress itself. And as emptywheel notes, he has gone further than just bringing up the contempt citiations, calling on the House Judiciary Committee to intervene in civil lawsuits to force the US Attorney and the Justice Department to enforce the subpoenas. Conyers is trying to go over the head of the Attorney General here, and he has the ability to do it.

This really is a long time coming. I hear that Rahm Emanuel wants to keep the powder dry until after the elections because the Congress could lose in a court fight and would not have the ability to enforce their contempt citations in the future. But an unused weapon never struck anybody. The time to fight this out is now, before the precedent is established that a rogue President can grab whatever power he wants for himself and will face no resistance from the co-equal branches of government. I also agree with Kagro X on this:

And here's another consideration: the contempt vote was last postponed in order to avoid poisoning the atmosphere of "bipartisan cooperation" (cough, cough!) supposedly necessary for the passage of the economic stimulus package. With that out of the way, the stage is apparently set for this more confrontational issue.

But the House is also now wrapped up in the FISA issue, where the pressure is increasing for them to stand firm behind their already-passed RESTORE Act rather than agree to go along with the horrible, Rockefeller-backed betrayal passed by the Senate.

Will the House panic and back off of the contempt vote again, for fear that confrontations on both FISA and contempt at the same time is simply too much to bear? Quite possibly.

Here, it might be time to borrow a page from the White House playbook, and pursue a "flood the zone" strategy. When the White House has multiple outrages to perpetrate (as is so often the case), it does so in overwhelming waves, with no mind paid to pacing or any insistence on decent intervals in between. Indeed, the strategy seems to be to flood the public, the media, and the Democratic opposition with everything it can throw at them, all at once. And each time they've done it, the national media have been for the most part unable (or uninterested) in keeping up. Light five fires at once, and four go relatively unnoticed.

So perhaps it's time to bring out all the grievances against the executive now roiling beneath the surface inside the Congress. Why not deal with contempt at the same time as we (hopefully) fight on FISA? And why not encourage the Senate to add its pending contempt votes to the pile as well? And why not get down to issuing subpoenas aimed at the "administration's" stonewalling on questions surrounding the missing e-mails? The destruction of the torture tapes? The withholding of key documents and testimony by the Department of Education? By NASA? In fact, by virtually every department of the executive branch that's been asked to comply with Congressional oversight over the past several years?

It looks to me like the House may put up a fight on the FISA issue. Note that Speaker Pelosi very clearly lays out that a lapsing of the Protect America Act, which expires on Friday and will not be renewed (the Progressive caucus helped Republicans put a stop to that today), would not mean that any surveillance of foreign targets would stop whatsoever. Seems to me like a great strategy to have all of these fights at once, considering that a public and media distracted by the Presidential race won't take the time to figure it out.

And of course, there's the fact that whatever George Bush is screaming about on the teevee, Democrats who want to be loved by the public should do the exact opposite. Their approval numbers will skyrocket.

My encouragement is to fight. Support Conyers, support the progressives like Rush Holt who want to go back to the original FISA statute, and make Bush and his pals mental. It'll work.

If The President Does It, Then It's Not Illegal

Mike Mukasey, Attorney General of the United States, before the House Judiciary Committee today.

Delahunt: You said if an opinion was rendered, that would insulate him from any consequences.

MM: We could not investigate or prosecute somebody for acting in reliance on a justice department opinion.

Delahunt: If that opinion was inaccurate and in fact violated a section of US Criminal Code, that reliance is in effect an immunity from any criminal culpability.

MM: Immunity connoted culpability.

Delahunt: This is brand new legal theory.

MM: Disclosure of waterboarding was part of CIA interrogation and permitted by DOJ opinion, would and should bar investigation of people who relied on that opinion.

Delahunt: Let's concede that waterboarding is in contravention of international obligation. If opinion rendered that amounted to malpractice, whoever employed that technique, simply by relying on that opinion would be legally barred from criminal investigation.

MM: If you're talking about legal mistake, there is an inquiry regarding whether properly rendered opinions or didn't. But yes, that bars the person who relied on that opinion from being investigated.

Delahunt: I find that a new legal doctrine. The law is the law.

MM: If it comes to pass that somebody at a later date that the opinion should have been different the person who relied on the opinion cannot be investigated.

Delahunt: Is there a legal precedent.

MM: There is practical consideration.

Delahunt: I can't cite you a case.

The Attorney General is saying that the President can do anything he wants, break the law any way he wants, as long as the President's own Justice Department, populated his own handpicked officials, validates it. And he's saying it directly to members of Congress, essentially telling them that they don't exist. They have no power to prosecute because the Justice Department won't take up the case, and the courts have no power to adjudicate because these are official state secrets. There is only one branch of government that matters.

JMM:

President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff.

Good thing we kept our powder dry on impeachment. That certainly didn't embolden a runaway President.

The End Of America

You know, in a sane world the top story would not be who snubbed who at the State of the Union address, as if we're all eight years old. While the media looked the other way, human rights actually died on the vine in the Senate Judiciary Committee this morning.

Sen. Joe Biden (D-DE) said that he'd been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden -- the Jack Bauer scenario -- but not OK to waterboard someone for more pedestrian information?

Mukasey responded that it was "not simply a relative issue," but there "is a statute where it is a relative issue," he added, citing the Detainee Treatment Act. That law engages the "shocks the conscience" standard, he explained, and you have to "balance the value of doing something against the cost of doing it."

What does "cost" mean, Biden wanted to know.

Mukasey said that was the wrong word. "I mean the heinousness of doing it, the cruelty of doing it, balanced against the value.... balanced against the information you might get." Information "that couldn't be used to save lives," he explained, would be of less value.

Biden responded, "You're the first I've ever heard to say what you just said.... It shocks my conscience a little bit."

So as long as we get some solid information, we can torture, be it waterboarding or thumbscrews or the rack or whatever. Because in every interrogation, you always know exactly what information you're going to get BEFOREHAND.

There's plenty more from this execrable hearing here and here and here. Basically Mukasey refused to support a ban on waterboarding, intimated that Congress hasn't weighed in on whether or not waterboarding is torture, and even refused to release details of the current CIA interrogation program. You can add in the fact that the Justice Department has been blocking a probe into politicization of the agency under Abu Gonzales to that if you so choose. And you recognize that these useful idiots on the Judiciary Committee got suckered, again. Dianne Feinstein and Chuck Schumer figured it would be OK to clear the low bar of Abu G and give a guy who has now made a mockery of human rights the position. They legitimized torture and the breakdown of American values. They get abused again and again and again and it doesn't make a bit of difference.

No Immunity, No Way, Jose

Jose Rodriguez wants the full Goodling:

Attorneys for Jose Rodriguez told Congress that the former CIA official won't testify about the destruction of CIA videotapes without a promise of immunity, a person close to the tapes inquiry said Wednesday.

Rodriguez, the former head of the CIA's National Clandestine Service, ordered the tapes destroyed in 2005. Rodriguez was scheduled to testify before the House Intelligence Committee at a Jan. 16 hearing.

Defense attorney Robert Bennett told lawmakers, however, that he would not let Rodriguez testify because of the criminal investigation into the case. Without a promise of immunity, anything Rodriguez said at the hearing could be used against him in court.

Now, the only potential outside review was basically scuttled yesterday, as a federal judge refused to inquire into the destruction of the tapes. Which leads emptywheel to say:

So, let's see. No Rodriguez testimony before Congress (hopefully, that is ... did you know that Non CIA Rat is almost an anagram for Iran-Contra?), no Kennedy inquiry into the terror tapes. That DOJ investigation into the torture tapes is looking like a pretty good way to bury any discussion of the torture tapes for a good little while, isn't it? Maybe even long enough for Bush to start pardoning people wildly in about a year, huh?

I believe Mukasey is Albanian for "stonewall".

Well, It Certainly Sounds Like An Independent Investigation

Michael Mukasey taps a career prosecutor to investigate the destruction of the torture tapes:

The CIA acknowledged last month that it destroyed videos of officers using tough interrogation methods while questioning two al-Qaida suspects. The acknowledgment sparked a congressional inquiry and a preliminary investigation by Justice.

"The Department's National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation," Mukasey said in a statement released Wednesday.

Mukasey named John Durham, a federal prosecutor in Connecticut, to oversee the case.

Durham apparently went up against the FBI and sent a bunch of public officials in Connecticut to prison, so he's not afraid of taking on the government. He's basically acting as the US Attorney for eastern Virginia because that USA, who would normally have jurisdiction over the CIA, recused himself. And the head of the CIA, Michael Hayden, has also recused himself, along with John Helgerson, the CIA Inspector General.

This has all the earmarks of a legitimate independent investigation, but with the Bush Administration nothing is assured.

UPDATE: It's interesting that this is coming out on a day when 9/11 Commission co-chairs Tom Kean and Lee Hamilton reiterated in the New York Times that the CIA stonewalled their investigation and lied to their commission.

UPDATE II: Conyers seems unhappy, wanted a special counsel and thinks the scope of the investigation is too limited. I have to agree to an extent that the Justice Department has defaulted on its ability to independently investigate the White House. So the Congress should engage in a parallel probe.

WH Lawyers Discussed Torture Tapes, Including Abu Gonzales And David Addington!

The latest bombshell in the torture tapes case shows once again that the first explanation from the Bush Administration is never, ever the correct one.

At least four top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

We knew about Harriet Miers, but the article also names John Bellinger (the senior lawyer for the NSC at the time), Alberto Gonzales and Cheney's brain David Addington. While the reporters don't exactly know what was said, they strongly imply that the White House lawyers, and by association the White House, wanted the tapes dumped in the Potomac.

It was previously reported that some administration officials had advised against destroying the tapes, but the emerging picture of White House involvement is more complex. In interviews, several administration and intelligence officials provided conflicting accounts as to whether anyone at the White House expressed support for the idea that the tapes should be destroyed.

One former senior intelligence official with direct knowledge of the matter said there had been “vigorous sentiment” among some top White House officials to destroy the tapes. The former official did not specify which White House officials took this position, but he said that some believed in 2005 that any disclosure of the tapes could have been particularly damaging after revelations a year earlier of abuses at Abu Ghraib prison in Iraq.

Some other officials assert that no one at the White House advocated destroying the tapes. Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes or advised that destroying them would be illegal.

Let me have one wild guess who wanted the tapes destroyed: Addington. He's not too interested in constraints on his own power. And Gonzales would go along with whatever his minders told him. This also means that the top official at the Justice Department was privy to discussions about the destruction of physical evidence implicating the federal government in major violations of international law, and said nothing. Because of course, he was knee-deep in it himself.

Keep in mind that the Justice Department is now the agency investigating this.

The sources in the story also throw a couple other CIA lawyers under the bus.

The current and former officials also provided new details about the role played in November 2005 by Jose A. Rodriguez Jr., then the chief of the agency’s clandestine branch, who ultimately ordered the destruction of the tapes.

The officials said that before he issued a secret cable directing that the tapes be destroyed, Mr. Rodriguez received legal guidance from two C.I.A. lawyers, Steven Hermes and Robert Eatinger. The officials said that those lawyers gave written guidance to Mr. Rodriguez that he had the authority to destroy the tapes and that the destruction would violate no laws.

The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.

This lines up perfectly with Rodriguez' defense as stated later in the article by his lawyer Robert Bennett. What it means for the purposes of the investigation is that there is even more of a paper trail than at first believed. Add it on to this known communication.

Newsweek reported this week that John D. Negroponte, who was director of national intelligence at the time the tapes were destroyed, sent a memorandum in the summer of 2005 to Mr. Goss, the C.I.A. director, advising him against destroying the tapes. Mr. Negroponte left the job this year to become deputy secretary of state, and a spokesman for the director of national intelligence declined to comment on the Newsweek article.

There's going to be a federal court hearing this week about the destruction of the tapes, so the timing of this article is pretty clear. As much as Mukasey wants to obstruct judicial or Congressional review over this situation, he cannot dictate the terms by which other branches of government conduct themselves, nor can he stop the drip-drip-drip of revelations that sink the White House further and further into complicity.

This is the second demonstrable lie from the Bush Administration this week, and it's only Tuesday night. Yesterday we learned that Bush knew about the Iran NIE intel months before he claimed he did. Tonight, it's that the White House was heavily involved in the discussions over whether to destroy these tapes and obstruct justice.

Friday Afternoon Erosion Of Democracy Dump

Michael Mukasey has revealed his true colors about who he works for.

Last week, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and ranking member Arlen Specter (R-PA) sent Attorney General Michael Mukasey a detailed list of questions about the Justice Department's knowledge of the CIA's torture tapes' destruction. What did DoJ officials know about the tapes while they existed? When did they learn they were to be destroyed? What communications did they have with the White House about it? [...]

Today, Mukasey gave his reply: no. The Department "has a long-standing policy of declining to provide non-public information about pending matters," he wrote, in order to avoid "any perception that our law enforcement decisions are subject to political influence. Accordingly, I will not at this time provide further information in response to your letter, but appreciate the Committee's interests in this matter." You can read that letter here.

He went even further with the House, telling CIA officials not to cooperate with the House investigation, including John Rizzo and Jose Rodriguez, who were the prime movers in the destruction of the torture tapes. Mukasey is just another hack, working for Fourthbranch Cheney (who apparently still thinks he exists in a fourth branch of government, by the way). He wants to have the Justice Department investigate itself, again, and claim that there will be any impartiality in the matter.

And to top it off, Senate Republicans, who incidentally love torture, have said so out loud:

Senate Republicans blocked a bill Friday that would restrict the interrogation methods the CIA can use against terrorism suspects.

The legislation, part of a measure authorizing the government's intelligence activities for 2008, had been approved a day earlier by the House and sent to the Senate for what was supposed to be final action. The bill would require the CIA to adhere to the Army's field manual on interrogation, which bans waterboarding, mock executions and other harsh interrogation methods.

By the way, they're doing this on Parliamentary grounds, saying that the rider was improperly inserted into the bill. Well, Republicans oughta know. That's all they did while in the majority.

I'm going to turn into water and slink down the drain now...

14 Patriots

Russ Feingold and 13 of his compatriots have sent a letter to Harry Reid asking that he put forward the version of the FISA bill that came out of the Senate Judiciary Committee, which does not have telecom amnesty, instead of the Intelligence Committee bill, which does.

"The Judiciary Committee FISA bill fixes many of the flaws of the surveillance law we enacted in August and the new bill approved by the Intelligence Committee. Everyone agrees that we should give our intelligence officials the tools they need to go after suspected terrorists. There's no reason we can't do that while still protecting the privacy of innocent Americans and ensuring adequate oversight of these broad new surveillance authorities -- and without setting the dangerous precedent of granting retroactive immunity to companies that allegedly participated in an unlawful program," Senator Feingold said.

"I strongly urge the Majority Leader to take up the Judiciary Committee's version of the FISA legislation. It is absolutely essential that as the Senate begins debating reforms to FISA we do not include retroactive immunity provisions for telecommunications companies that may have engaged in illegal conduct. Additionally, the Judiciary Committee's version of the FISA legislation contains much stronger safeguards which will serve to protect Americans against the President's warantless wiretapping program," Senator Dodd said.

"The Judiciary Committee bill restores oversight and accountability to the FISA program without unnecessarily providing retroactive immunity to companies that cooperated with the Administration's warrantless wiretapping program. It is my hope that this bill will be considered by the full Senate," Senator Obama said.

"Of course we have to do everything we can to protect the American people, but we must fight international terrorism in a way that is consistent with our Constitution and the Bill of Rights," Senator Bernie Sanders said.

The full letter is here. I am pleased to belong to the same party as these Senators:

Feingold, Dodd, Obama, Sanders, Menendez, Biden, Brown, Harkin, Cardin, Clinton, Akaka, Webb, Kennedy and Boxer.

We need 26 more patriots to step up and demand a restoration of a rule of law in tatters. By contrast, we have the worm recently installed as the Attorney General, dissembling away in today's LA Times.

It therefore is vital that Congress put surveillance of terrorists and other intelligence targets located overseas on surer institutional footing. The Senate Intelligence Committee has crafted a bill that would largely accomplish that objective. Recognizing the uncommon complexity of this area of the law, the committee held numerous hearings on the need to modernize FISA, received classified briefings on how various options would affect intelligence operations and discussed key provisions with intelligence professionals and with national security lawyers inside and outside government. This thorough process produced a balanced bill approved by an overwhelming, and bipartisan, 13-2 vote.

The Senate Intelligence Committee's bill is not perfect, and it contains provisions that I hope will be improved. However, it would achieve two important objectives. First, it would keep the intelligence gaps closed by ensuring that individual court orders are not required to direct surveillance at foreign targets overseas.

Second, it would provide protections from lawsuits for telecommunications companies that have been sued simply because they are believed to have assisted our intelligence agencies after the 9/11 attacks. The bill does not, as some have suggested, provide blanket immunity for those companies. Instead, a lawsuit would be dismissed only in cases in which the attorney general certified to the court either that a company did not provide assistance to the government or that a company had received a written request indicating that the activity was authorized by the president and determined to be lawful.

And we all know that this Attorney General would NEVER dismiss the telecom companies from prosecution.

The point is that, especially in the face of a FISA ruling yesterday announcing that they will not make their opinions on the illegal wiretapping program public, there is no other way to learn what the government has done with our personal information, without letting these lawsuits against the telecom companies go forward. If Mukasey is so worried about the massive financial liability of the telecoms, he's essentially admitting that they broke the law. And no company and no individual should be given carte blanche to do that.

I'm looking for 26 more patriots who can sustain a filibuster and keep unaccountable lawbreaking out of a federal statute.

Talk About A Buried Lede

So the NYT, the WaPo and the LAT all wrote the same story about the closed-door meeting of the Senate Intelligence Committee yesterday, probably because it was closed-door and there was a limited amount of information. They all quoted Michael Hayden's "I know nothink" shtick, where he claimed he wasn't there when the taping of interrogations was authorized and he wasn't there when they were destroyed (except he claimed that he supported their destruction in his initial message, might want to button that up, General). They all quoted Jay Rockefeller calling the hearing "useful but incomplete" and vowing to call other witnesses. They all covered Michael Mukasey's hem and haw session, where he struck down the idea of a special prosecutor by claiming the completely compromised Justice Department can do the job. But at the end of two of the reports came a remarkable little nugget. From the NYT:

Elsewhere in Washington, a three-judge panel of the United States Court of Appeals for the District of Columbia issued an interim order on Tuesday directing the government not to destroy any evidence of torture that lawyers for a Guantánamo Bay detainee say they believe exists.

The order came after lawyers for the detainee, Majid Khan, filed a request asserting that he had been tortured in secret C.I.A. prisons for more than three years before he was transferred to Guantánamo last year.

J. Wells Dixon, one of Mr. Khan’s lawyers, said Tuesday that he believed the judges would not have issued the order “if they did not think there was any risk” that the government might destroy evidence of torture.

The WaPo had pretty much the same item, also at the very end of the story.

Shouldn't that be its own story? You have a three-judge panel warning the government against destroying evidence that may came up at trial, evidence that would implicate them in war crimes and violations of international law. Why is that buried in the back of a completely different story?

We keep getting these little tidbits in these stories. Yesterday it was one former detainee asserting that he saw cameras filming interrogations well after the CIA claims it ended the practice. Today it's this motion from the DC Court of Appeals.

There is evidence out there. It's beyond clear. That's the cumulative effect of these nods and winks. And if it's out there, the government might as well put it out now, because there will be a release at some point.

Meanwhile, the legal adviser at Gitmo seems to think that evidence gathered by torture is admissible at trial (or whatever they call the kangaroo courts down there), and refused to answer if waterboarding would be illegal if used on an American soldier by the enemy. The previous chief prosecutor of military commissions, Morris Davis, had a categorically different view on the admissibility of torture-generated evidence. He quit, and was invited to the Senate testimony yesterday, but the Defense Department WOULDN'T LET HIM TESTIFY even though he no longer works under them.

We're so far down the rabbit hole we can see ourselves on the other side. It's almost time to stick a fork in this democracy.

UPDATE: You can view an excellent timeline of the torture tapes at TPM Muckraker.