You Don't Think They'll Just Give Up, Do You?

(I'm a blogger fellow for Brave New Films and their Sick For Profit campaign)

After today's announcement from Harry Reid, adding a public option to the Senate health care bill, some might think that a great victory has been achieved. And it's a significant accomplishment to this point. But we're at the beginning of the end, not the end. And now that this public option, with a state opt-out, represents the lower bound of health care reform, you can bet that the insurance industry will redouble their efforts to kill the bill and retain the status quo. In fact, they've already started. Blue Cross/Blue Shield of North Carolina has begun to lobby their customers to work against the bill, asking them to contact Senator Kay Hagan (D-NC). Not a front group, or some ad hoc organization funded by BC/BS. No, just the company itself.

(The mailer) reads:

Public option?
Government Cooperatives?
Community plan?
Single payer?
No matter what you call it, if the federal government intervenes in the private health insurance market, it's a slippery slope to a single payer system.

Who wants that?

The enclosed postcard to Hagan reads:

Senator Hagan,
Please oppose government-run health insurance. We can meet our health care challenges without the government unfairly competing with the private sector. Tell Senate leaders that North Carolina doesn't need government-run insurance.

They've also deployed lobbyists and shills to Capitol Hill to make completely dubious arguments. At a hearing about the insurance industry's anti-trust exemption, this amazing exchange occurred:

University of Arkansas business professor Lawrence Powell, who testified on behalf of the medical malpractice insurance industry.

"The best possible outcome from repealing McCarran is continuation of the status quo," he said. "However, it is also likely that repealing McCarran would have negative consequences for consumers, by decreasing competition and accuracy in insurance pricing."

Rhode Island Democrat Sheldon Whitehouse pointed out that the professor was relying on outdated information.

"You cite for the proposition that insurance markets are highly competitive an article by Paul Joskow. Do I have the date of that article correct, it's 1973?" he asked Powell. "I believe so," came the answer.

And, they've started to push their message out to media, getting an AP reporter to buy the canard that poor, henpecked insurance companies just don't make a lot of money.

WASHINGTON – Quick quiz: What do these enterprises have in common? Farm and construction machinery, Tupperware, the railroads, Hershey sweets, Yum food brands and Yahoo? Answer: They're all more profitable than the health insurance industry.

The missing ingredient here is scale. Tupperware is more profitable than health insurance on a percentage basis, but 1/6 of the US economy doesn't go through Tupperware. In real dollars, the insurance industry makes a mint. And remember, "profit" doesn't count salaries, not even what's given to CEOs.

The truth is that, even with this public option, insurers will do just fine in the health care bill. They get millions of new customers, with competition that is limited (not everyone can get the public plan, under even the most expansive version). But it's just not good enough for them. The notion that they might have to offer coverage with actual benefits, and not cherry-pick the healthy to pay their premiums, which would cut into those profits, is just distasteful to them. So they will fight. And we will be ready.

The Climate Saga: Too Much For The Senate, Not Enough For The World

Though there were early indications that the House package of the Waxman-Markey energy and climate bill were spurring the development of similar policies abroad, among the Europeans who have already set up a cap and trade system for carbon emissions, the relatively weak standards forced into the bill by Blue Dogs and farm-state Democrats have them looking unkindly at it:

The European hosts of the Group of 8 summit meeting welcome the shift. But the new stance also worries them, in part because they fear that the United States is working toward an independent deal with China outside the global negotiating framework.

President Obama has stated a commitment to addressing climate change. That has been followed by the recent passage by the House of a landmark bill that, if also approved by the Senate, would begin to regulate heat-trapping gases. Those moves have given the Europeans, as well as climate scientists and some environmental groups, hope that the United States will take a leadership role in global talks toward a new climate-change treaty [...]

But Europe is also unhappy with the Obama administration’s reluctance to accept aggressive near-term goals for cutting greenhouse gases and its refusal so far to formally accept language that would limit the rise in global temperatures to 2 degrees Celsius, or 3.6 degrees Fahrenheit, above pre-industrial levels [...]

The president and other American policy makers also insist that no deal can effectively reduce emissions unless China, India and other major developing countries are on board. The United States has been pursuing a separate track of climate diplomacy directly with Beijing.

Michael Starbaek Christensen, a senior climate-change official in Denmark, said he was worried that the United States and China — the two largest emitters of greenhouse gases in the world — would cut a separate deal and push the rest of the world into a treaty that did too little to curb emissions.

“I can only encourage Europe to stay in the lead and not let a bilateral U.S.-China relationship take over,” Mr. Christensen said, “because one concern I would have with the U.S.-China relationship is that they would find a lower common denominator.”

The G8 leaders could not even agree on the same aspirational targets of a 50% reduction in greenhouse gas emissions by 2050 that George Bush agreed to in Japan at the G8 in 2008. Put simply, the rest of the developed world finds the US targets too low. I agree with them, but of course our political process is almost uniquely wired against coming to a solution that matches the needs in the science. Plus we have an entire political party composed of denialists from the Exxon Mobil school of Energy Policy.

In the first Senate hearing today on clean energy legislation supported by President Barack Obama, Sen. Sheldon Whitehouse (D-RI) compared the Senate to the “ExxonMobil board room.” Whitehouse expressed his concern that the United States would be left behind in the clean energy race, saying, “I do not want to see American industries at the back of that parade with a broom.” Addressing the Obama Cabinet members before him — Ken Salazar, Stephen Chu, Tom Vilsack, and Lisa Jackson — Whitehouse apologized for the denial of man-made climate change by his fellow senators:

"We know that this is probably — along with the ExxonMobil board room — the last place that sober people debate whether or not these problems are real, but we intend to work with you anyway, and we hope to give you strong legislative support if we can."

As I've often said, with climate change being a "boiling frog," intangible kind of concern, it's hard for me to believe that a Democrat from Idaho, for example, will face negative consequences from his No vote on Waxman-Markey. I'd like to be wrong about that. But the dynamics just haven't moved in the right direction yet.

As to the Senate, where the climate bill will almost certainly weaken again, Nate Silver postulates that there are 62-66 potential votes for legislation, and Bill Scher sees some possibilities among the GOP as well. I'm significantly more skeptical, especially with the lack of mass grassroots action, which just has not materialized.

...There's now a tentative agreement on a more limited plan to not let global temperature rise above 3.6 degrees Fahrenheit.

That Incredible Hearing

That torture hearing yesterday with former FBI agent Ali Soufan and Bush State Department official Philip Zelikow and others was truly amazing. Here are just a few of the things we learned:

• During questioning, Russ Feingold stated that he has seen the classified documents "proving" torture worked of which Fourthbranch Cheney often speaks, and nothing he saw "indicates that the torture techniques authorized by the last administration were necessary, or that they were the best way to get information out of detainees."

• Ali Soufan, who sat behind a curtain, making for a hearing that looked like the Monty Python sketch about the talk show featuring a tree and a Chesterfield, testified that the torture techniques were slow and unreliable, that lawful techniques were able to pry key information from Abu Zubaydah within an hour, and that waterboarding wasn't approved until after it was used, according to the timeline put forward by the CIA about Khalid Sheikh Mohammed and Jose Padilla. Either the CIA is lying about the intelligence information they got from KSM and Padilla, or they broke the law and then retroactively sought clearance for it.

• Soufan also called false information in some of the Bradbury torture memos supposedly proving the value of torture.

Senator Sheldon Whitehouse, who’s presiding over the hearing, read aloud a key passage in the May 30th, 2005 torture memo that credited “enhanced techniques” with getting Abu Zubaydah to reveal “detailed information regarding Al Qaeda’s organizational structure, key operatives, and modus operandi.”

The passage Whitehouse read also said the techniques had gotten the suspect to identify Khalid Shaikh Mohammed as the September 11th mastermind.

Whitehouse then asked Soufan if, based on what he witnessed, he knew that statement “not to be true.”

“Yes, sir,” Soufan replied.

• During cross-examination, Lindsey Graham cited the debunked ABC News report claiming that Abu Zubaydah was only waterboarded once, a claim that even ABC News has distanced themselves from. He also called the law "a nicety we could not afford."

• Zelikow, who offered an alternative viewpoint to the Bush Administration on torture in a memo the White House tried to destroy, said that his memo has been found, and will soon be declassified.

And there was more, like the browbeating Graham gave a law professor. I believe Sheldon Whitehouse, who put this hearing together, is building a fact pattern. He wants these things public, so that the drumbeat for real investigations and real accountability will grow. And we have to help him in that regard.

Bobbing And Weaving

The White House has given so many conflicting statements on prosecutions for those who directed and authorized torture that it's clear they just don't want to be responsible for it. Between the past 48 hours, when Rahm Emanuel and Robert Gibbs parroted the "looking forward, not backward" viewpoint, and today, something has changed. While Obama went to Langley and defended the release of the torture memos, at the same time his senior aides were telling the New York Times that legal sanctions may go forward, due to mounting public pressure both inside and outside the Beltway.

And while Mr. Obama vowed not to prosecute C.I.A. officers for acting on legal advice, on Monday aides did not rule out legal sanctions for the Bush lawyers who developed the legal basis for the use of the techniques.

...human rights activists, Congressional Democrats and international officials pressed for a fuller accounting of what happened. Senator Dianne Feinstein, a California Democrat and chairwoman of the Intelligence Committee, wrote Mr. Obama asking him not to rule out prosecutions until her panel completed an investigation over the next six to eight months.

Three Bush administration lawyers who signed memos, John C. Yoo, Jay S. Bybee and Steven G. Bradbury, are the subjects of a coming report by the Justice Department’s ethics office that officials say is sharply critical of their work. The ethics office has the power to recommend disbarment or other professional penalties or, less likely, to refer cases for criminal prosecution.

The administration has also not ruled out prosecuting anyone who exceeded the legal guidelines, and officials have discussed appointing a special prosecutor. One option might be giving the job to John H. Durham, a federal prosecutor who has spent 15 months investigating the C.I.A.’s destruction of videotapes of harsh interrogations.

You have Dianne Feinstein calling for leaving prosecutions open. There are both the DoJ Inspector General's report and a fuller report from the Senate Armed Services Committee set for release, to say nothing of additional secret torture memos that may come out at some point. You have MoveOn calling for investigations by a special prosecutor. All this pressure has forced the Administration into a corner. And this morning, you have Obama made a more definitive statement.

President Barack Obama is leaving the door to open to possible prosecution of Bush administration officials who devised harsh terrorism-era interrogation tactics.

He also said Tuesday that he worries about the impact of high-intensity hearings on how detainees were treated under former President George W. Bush. But Obama did say, nevertheless, he could support a Hill investigation if it were conducted in a bipartisan way.

Obama has said he doesn't support charging CIA agents and interrogators who took part in waterboarding and other harsh interrogation tactics, acting on advice from superiors that such practices were legal. But he also said that it is up to the attorney general whether to prosecute Bush administration lawyers who wrote the memos approving these tactics.

Read closely here. Obama said he could support an investigation emanating from Congress, and that the decision for prosecution is up to the Attorney General. In other words, shorter Obama: "Leave me out of this." Nobody need rely on his support.

And the President is correct. He doesn't get to decide who is and is not prosecuted in America. That's the responsibility of the Attorney General. And if he wants to take it out of politics, the Attorney General ought to appoint a special prosecutor, as MoveOn and others have called for.

As for the impeachment of Jay Bybee, I have noticed that not only Democratic stalwarts like Sheldon Whitehouse, but even those Villagers disinclined to prosecute, like Joke Line, are comfortable with supporting this measure. This could be the entryway into getting a taste of accountability in Washington. My petition to get the California Democratic Party to support a resolution of impeachment now has 3,903 signatures. Sign it if you can, and let's move forward on this front, getting the largest state Democratic Party in the country on the record to remove the torture judge from the federal bench.

UPDATE: Patrick Leahy:

"The fact is, the Bush administration and Mr. Bybee did not tell the truth. If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," said Leahy, chairman of the Senate Judiciary Committee.

"The decent and honorable thing for him to do would be to resign. And if he is a decent and honorable person, he will resign," he said deliberately.

Simple answers to simple statements: he's not decent and honorable.

DiFi Can't Handle The Truth

Yesterday the Senate Judiciary Committee held a hearing on Patrick Leahy's call for a truth commission to investigate the crimes of the Bush Administration. Obviously the events of the past couple days, with the release of OLC memos that really transformed the concept of democracy in the Bush era, is revitalizing this debate.

Justice Department officials said they might soon release additional opinions on those subjects. But the disclosure of the nine formerly secret documents fueled calls by lawmakers for an independent commission to investigate and make public what the Bush administration did in the global campaign against terrorism.

The chairman of the House Judiciary Committee, Representative John Conyers Jr., Democrat of Michigan, said the revelations, together with the release of new information about the Central Intelligence Agency’s destruction of 92 interrogation videotapes, had underscored the need for a commission that would have the power to subpoena documents and testimony.

The OLC memos are still extraordinary, so horrifying in the picture they paint of executive power that the head of the OLC, Steven Bradbury, felt the need to disavow them near the end of the Bush regime. It's likely that he did so to take the heat off of himself.

The increased calls for a greater public accounting come as the Justice Department’s internal ethics office is preparing to release a report that is expected to criticize sharply members of the Bush legal team who wrote memorandums purporting to provide legal justification for the use of harsh interrogation methods on detainees despite anti-torture laws and treaties, according to department and Congressional officials.

The Office of Professional Responsibility at the Justice Department is examining whether certain political appointees in the department knowingly signed off on an unreasonable interpretation of the law to provide legal cover for a program sought by Bush White House officials.

The report is expected to focus on three former officials of the Office of Legal Counsel: Mr. Yoo, a Berkeley law professor, now on leave at Chapman University, who was the principal author of opinions on national security matters from 2001 to 2003; Jay S. Bybee, who oversaw the counsel’s office during that period and is now a federal appeals court judge; and Steven G. Bradbury, who oversaw the counsel’s office in Mr. Bush’s second term.

Mr. Bradbury wrote two of the opinions released on Monday. Written last October and this January, they broadly repudiated the aggressive theory of virtually unlimited commander-in-chief power at the heart of Mr. Yoo’s memorandums.

But there ought to be no get-out-of-jail-free card for the actions taken as the result of these memos. Glenn Greenwald looks at one of the documents.

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments. It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens. And it wasn't only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls "domestic military operations" was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying -- in secret and with no oversight -- on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

As Harper's Scott Horton says, "We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship."

John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink.

Yoo, who is hiding out in Orange County at Chapman University, admitted in an interview to the OC Register only that his memos "lacked a certain polish," in a profile more concerned with how he's enjoying the beaches and Vietnamese food of Southern California rather than the "hippies, protesters and left-wing activists" of Berkeley. Somehow, he's still teaching law. Jay Bybee, the other major player in the composition of these memos, is a 9th Circuit Appeals Judge in San Francisco. Bruce Ackerman recommends impeachment. More on the memos from Jack Balkin and Anonymous Liberal.

Despite the calls of apologists to the contrary, we have to have a reckoning on this. The previous President, aided by his allies, asserted broad executive powers far outside Constitutional strictures, and the results were illegal wiretapping, torture, extraordinary rendition, indefinite detention, and a series of other crimes against the state and violations practically every amendment in the Bill of Rights as well as international law. There is a school of thought that immunity is needed to uncover the truth, much of which we still do not know, but Sheldon Whitehouse disagrees.

WHITEHOUSE: I think the Speaker is absolutely right. The question of when and whether to grant immunity is a very carefully drawn one. … If you’re giving blanket immunities and preventing prosecutions that could and would and should move forward, then you’ve made a mistake.

“[T]he Speaker is dead right that you don’t want blanket immunities that prevent prosecutions from going forward,” he emphasized, “not without a very thoughtful conversation with the prosecutors themselves.”

But one member of the Judiciary Committee wasn't at the truth commission hearing yesterday - Dianne Feinstein. Through a spokesman, she sidestepped whether or not she supports a commission, saying she “hasn’t seen a proposal." But she is instituting a competing investigation, from her perch at the Senate Intelligence Committee, that is bound to be a whitewash:

The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed -- including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.

Officials said the inquiry was not designed to determine whether CIA officials broke laws. "The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future," said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public [...]

The senior aide said that the committee had no short-term plans to hold public hearings, and that it was not clear whether the panel would release its final report to the public [...]

Senate aides declined to say whether the committee would seek new testimony from former CIA Director George J. Tenet or other former top officials who were involved in the creation and management of the programs.

The Senate investigation will examine whether the detention and interrogation operations were carried out in ways that were consistent with the authorities and instructions issued in the aftermath of the Sept. 11 attacks, officials said.

The panel will also look at whether lawmakers were kept fully informed. Sen. Dianne Feinstein (D-Calif.), the chairwoman of the committee, and others have said that the Bush administration improperly withheld information from Congress on the CIA's operations.

This is basically a turf war. Feinstein wants control of the investigation process in her committee, over Patrick Leahy. And she wants the hearings to be private as well as the final report. Emptywheel writes:

Pat Leahy will have an investigation regardless of what DiFi says--and he's going to start it now. So DiFi issues a vaguely formulated leak saying that she's going to cover the CIA's role in torture. And, voila! Now the CIA and DiFi can say try to circumscribe Leahy's investigation. And of course, by doing an investigation that starts with the premise that it is "not designed to determine whether CIA officials broke laws," even while admitting that CIA officers may have gone beyond the "instructions issued in the aftermath of the Sept. 11 attacks," it ensures no accountability even for those who went beyond Cheney's torture regime. And, finally, absolutely no current plans to make public the results, either through public hearings or by releaing a report.

Call DiFi at (202) 224-3841. Thank her for recognizing the importance of understanding the mistakes we made in the past. Remind her that even Pat Roberts' investigation into CIA Iraq intelligence was released publicly. Demand that she meet at least the level of transparency adopted by her Republican predecessors as SSCI Chair.

Agreed. This is too important for it to be done in the secret bowels of official Washington as a "fact-finding mission" yielding a white paper that will wind up collecting dust on a shelf. Feinstein is trying to let criminals off the hook, plain and simple. History tells us that the inevitable return of criminals like this will only be emboldened to go further as a result.

Putting The Shame In Our Faces

Despite, or in a weird way, because of the troubling return of unitary executive theory in Obama Administration filings in the Al Haramain case, the Justice Department is striving for transparency in releasing many secret OLC memos from the Bush era, as well as the information that the CIA destroyed 92 videotapes of interrogations of terror suspects.

The Justice Department released nine legal opinions showing that, following the Sept. 11, 2001, terrorist attacks, the Bush administration determined that certain constitutional rights would not apply during the coming fight. Within two weeks, government lawyers were already discussing ways to wiretap U.S. conversations without warrants.

The Bush administration eventually abandoned many of the legal conclusions, but the documents themselves had been closely held. By releasing them, President Barack Obama continued a house-cleaning of the previous administration's most contentious policies.

"Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties," Attorney General Eric Holder said in a speech a few hours before the documents were released. "Not only is that school of thought misguided, I fear that in actuality it does more harm than good."

The Obama administration also acknowledged in court documents Monday that the CIA destroyed 92 videos involving terror suspects, including interrogations — far more than had been known. Congressional Democrats and other critics have charged that some of the harsh interrogation techniques amounted to torture, a contention President George W. Bush and other Bush officials rejected.

The new administration pledged on Monday to begin turning over documents related to the videos to a federal judge and to make as much information public as possible.

The ACLU has the legal letter acknowledging the destruction of the CIA tapes, and the OLC memos are here. One of the more interesting memos, described by Christy Hardin Smith, is a recent one from October 2008 from the Bush Administration's head of the OLC:

Bradbury doesn't pull punches, either. In a document entitled "Memorandum for the Files re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities," Bradbury's first paragraph begins with an urge for all members of government to exercise substantial caution on relying on the above-reference memorandum, authored by Gonzales, Haynes, Yoo and Delahunty as precedent of the OLC, and that this "should not be treated as authoritative for any purpose."

Let me get this straight: we waited all the way to October 6, 2008 -- more than 7 years -- to issue such a memoranda governmentally regarding a fundamental question of posse comitatus? One that the OLC clearly got wrong?

And where is David Addington's name in all of this, since it's fairly well known at this point that he drafted a hefty helping of this dreck? Guess he can draft it but doesn't deign to be a signatory?

Bradbury goes on to issue a blanket statement that the OLC is not to be used for:

"...broad, hypothetical scenarios involving domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic attacks of 9/11..."

Which is understandable that there would be hasty errors given the circumstances but, again, why did it take more than 7 years to correct their misperceptions?

I have a theory. The Bush Administration knew these were extra-legal actions, and so to cover their behinds they had their OLC chief make them all inoperative just before they left. I don't think it necessarily would make it harder to prosecute, but considering that the incoming Administration wants to "look forward and not backward," it would certainly push them to conclude that the worst is behind us and at least these theories have been rejected.

Except they have not been rejected. In Al Haramain the Obama White House is still using them. Look at this John Yoo memo on FISA, where he claims that domestic searches and wiretaps would not violate the Fourth Amendment as long as the President is combating terrorism, or the one where Yoo argues that First Amendment speech and press rights may have to be suppressed to protect the nation, and ask yourself what Obama is hiding. Ask yourself why he's relying on similar theories of executive power to hide the truth.

This is why we need a Congress with the insistence to uphold their oversight functions and use the tendency for sunlight on the part of the Justice Department to deliver a full investigation into the crimes of the Bush era. I agree with Nancy Pelosi that prosecutions should result from any violations of federal statute found by those investigations. However, even a Truth Commission would be powerful and paradigm-shifting.

Spearheading Senate efforts to establish a torture commission is Rhode Island Democrat Sheldon Whitehouse. As a member of both the Judiciary Committee and the Intelligence Committee, Whitehouse is privy to information about interrogations he can't yet share. Still, regarding a potential torture commission, he told Salon, "I am convinced it is going to happen." In fact, his fervor on the issue was palpable. When asked if there is a lot the public still does not know about these issues during the Bush administration, his eyes grew large and he nodded slowly. "Stay on this," he said. "This is going to be big."

Here's Whitehouse and Patrick Leahy discussing their commission proposal on the Senate floor.



"We may be faced with the prospect of looking at horror in our own country's deeds." Let's hear about all of it. And let's let the current Administration know that we will not abide by the same horror from their conduct, no matter how noble the intention.

We Can't Have The Attorney General Following Laws

As you may know, John Cornyn has led a revolt that would delay the confirmation of Eric Holder in the Senate Judiciary Committee for at least a week, citing the fact that he might actually prosecute people who have committed crimes, which is simply off-limits to Beltway thinking (at least for people of import, he can prosecute all the poor people he wants for shoplifting, but at war crimes Cornyn draws the line):

Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, convened the panel Wednesday and asked for an immediate vote to send Holder's nomination to the Senate. Republicans called for a one-week delay, permitted by committee rules.

Holder told the Judiciary Committee last week that waterboarding is "torture" and therefore illegal. Susan J. Crawford, the top Bush administration official overseeing the trials of detainees, told the Washington Post that at least one individual held at the prison center at Guantanamo Bay was "tortured."

The question Republicans want answered before Holder is confirmed: Will you prosecute those who took part in that torture?

Sen. John Cornyn (R-Texas) said that he would block committee proceedings, scheduled to resume at 2:30 pm on Wednesday, if he did not receive answer from Holder. "I'm not going to allow things to proceed," he said. He added that it was "physically impossible" for Holder to get the answers to him by then, thus assuring a conflict would ensue [...]

"Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was," said Cornyn.

Well, at least he didn't bring 9/11 into it in a blatant attempt to scaremonger... I'm sorry, what was that next paragraph?

"There were provisions providing immunity to intelligence officials based up on good faith and what they understood the law to be," said Cornyn. "I want to know if he's going to enforce congressional intent not to second guess those things in a way that could jeopardize those officials but also could cause our intelligence officials to be risk averse -- the very kind of risk aversion...that the 9/11 commission talked about when they talked about what set us up for 9/11."

Ah, Republicans. Proudly using victims of terror as a human shield for going on eight years.

I don't need to recapitulate the arguments made by Tom Ricks, Paul Krugman, Keith Olbermann, the UN special rapporteur on torture, and others. We need a reckoning for torture because if we don't, the successors to this legacy will do far worse in the name of national security; we need to "look back" because it's the basis for jurisprudence and we can't prejudge who or who not to prosecute absent all the facts; we cannot listen to the Beltway insiders who want to protect their friends by saying that ignoring clear crimes is very "appropriate"; etc. I would simply say that Holder would be breaking the law if he DIDN'T prosecute.

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture. . . .

That's from the Convention Against Torture, and it's pretty unequivocal. We are legally obligated to prosecute acts of torture, and "promising not to" is as much a crime, under this statute, as the torture itself. As to the argument that top Democrats are complicit in these actions and a Democratic Administration and the whole thing would have a look of a show trial if they were forced to admit that they were aware of but didn't object to these abuses, that's what an independent prosecutor would be for. And by the way, one of those top Democrats assumed to have been read in to the torture policy is open to prosecution, kind of blowing that theory out of the water.

The glib and cynical establishment press, desperate to protect their friends and defend THEIR OWN moral complicity in these crimes, may think this is a legitimate stand to take, but it only reveals their own moral hollowness.

To the standard Washington reporter, nothing is more contemptible than those who want to hold political leaders accountable -- and that fact is as potent a reflection of how diseased our political culture is, since journalists, in theory, ought to be those leading the crusade for such accountability, not leading the lynch mob against citizens who are demanding it. Yet since the zombie-like march behind the Leader during the run-up to the attack on Iraq, there hasn't been a more complete, virtually lockstep consensus among our media class than their vehement opposition to investigating the crimes of our political leaders.

Heck, even Lindsay frickin' Graham understands that no Attorney General could vow to rule out prosecution in a blanket fashion absent knowing what has been committed. He still thinks that "criminalizing policy differences" would be bad for the country, which is absurd, but he at least has enough sense to know that ruling out prosecution of a crime is not really an option for the nation's chief law enforcement officer.

All told, the Republicans don't have the votes to stop Holder, so this is a delay tactic at best. Why? Emptywheel has been working on her theory for a while now, and it's starting to make sense:

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 [...]

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.

It would certainly be interesting if this was not about torture at all, but the violations of FISA. Especially given the revelation from Russell Tice that the US Government has been monitoring every single communication made by an American for years.

OLBERMANN: Let's start with the review. We heard the remarks from Mr. Bush in 2005, that only Americans who would have been eavesdropped on without a warrant were those who were talking to terrorists overseas. Based on what you know, what you have seen firsthand and what you have encountered in your experience, how much of that statement was true?

TICE: Well, I don't know what our former president knew or didn't know. I'm sort of down in the weeds. But the National Security Agency had access to all Americans' communications, faxes, phone calls, and their computer communications. And that doesn't -- it didn't matter whether you were in Kansas, you know, in the middle of the country, and you never made a communication -- foreign communications at all. They monitored all communications.

OLBERMANN: To what degree is that likely to mean actual eavesdropping and actual inspection? In other words, if not actually read or monitored by the NSA, everything was collected by the NSA, recorded, archived? Do you have any idea to what degree the information was ever looked at, per se?

TICE: Well, it's actually, even for the NSA, it's impossible to literally collect all communications. Americans tend to be a chatty group. We have the best computers at the agency, but certainly not that good.

But what was done was a sort of an ability to look at the meta data, the signaling data for communications, and ferret that information to determine what communications would ultimately be collected. Basically, filtering out sort of like sweeping everything with that meta data, and then cutting down ultimately what you are going to look at and what is going to be collected, and in the long run have an analyst look at, you know, needles in a haystack for what might be of interest.

We have never fully known the extent of this lawlessness, and any delay in Holder's confirmation will keep Americans in the dark that much longer, if he chooses to exercise his prosecutorial discretion at all. If he does not, we may have to rely on lawmakers like Sheldon Whitehouse to offer the reckoning that this nation so desperately needs.

Our new President has said, "America needs to look forward." I agree.

Our new Attorney-General designate has said, we should not criminalize policy differences. I agree.

And I hope we can all agree that summoning young sacrificial lambs to prosecute, as we did after the Abu Ghraib disaster, would be reprehensible.

But consider the pervasive, deliberate, and systematic damage the Bush Administration did to America, to her finest traditions and institutions, to her reputation and integrity.

Read the whole thing.

Sheldon Whitehouse Gets "Senator For Life"

While John McCain and the Republicans are steadfastly trying to eliminate issues and facts from the election altogether, there is one exception to that rule - offshore drilling. There's a large enough group of lawmakers working on this that something is likely to come out of Congress in the waning days of the session, and most likely it won't be that great. From a practical standpoint, Republicans can simply wait out the Congressional moratorium which has to be renewed every year and let it elapse, meaning that they would then be able to deliver leases to oil and gas companies allowing for exploration as close as 3 miles from the shoreline. Democrats are trying to gain a political advantage by showing how bankrupt the "all of the above" energy plan Republicans appear to endorse truly is, by forcing a series of votes where the GOP will cling to its Big Oil buddies, and vote down removing their tax breaks, incentives for solar and wind, etc. And there is some movement by more threatened Republicans to embrace a more comprehensive bill which would incentivize renewables and cut Big Oil subsidies in addition to limited allowances on drilling.

However, I think that this argument made by Rhode Island Senator Sheldon Whitehouse is the one worth repeating a thousand times between now and November.

WHITEHOUSE: Gentlemen, we’re in the middle of a near total mortgage system meltdown in this country. We have a health care system that burns 16 percent of our GDP, in which the Medicare liability alone has been estimated at $34 trillion. We’re burning $10 billion a month in Iraq.

This administration has run up $7.7 trillion in national debt, by our calculation. And there is worsening evidence every day of global warming, with worsening environmental and national security and economic ramifications. In light of those conditions, do any of you seriously contend that drilling for more oil is the number one issue facing the American people today?

(Long silent pause during which nobody answers.)

WHITEHOUSE: No, it doesn’t seem so.

And relatedly, the Republicans who brought you all of these policy failures, in the economy, health care, Iraq, housing, and the environment, are telling you that the answer completely lies in drilling.

Trust them?

The words "snake," "oil" and "salesmen" come to mind.

All Coming To A Head

The revelation that the CIA destroyed tapes of interrogations has sparked howls of outrage on Capitol Hill, from both Democrats and Republicans. But there's been a corollary, too. This case lays bare the pitfalls of the unitary executive theory, to break the law with impunity. In a stellar speech, Sen. Sheldon Whitehouse revealed some secret legal opinions made by the Office of Legal Counsel, which he declassified, to make extremely clear the Constitutional crisis we face with this Presidency.

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

2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

3. The Department of Justice is bound by the President’s legal determinations.

That this is all coming out now in time for the FISA debate in the Senate is a positive development. Far from a display of candor, this White House, under cover of secrecy, has been operating like a banana republic. They rewrite their own laws, they force subordinates to follow their dictates, and they ignore differing opinions, even when they have the force of law. Now a more confrontational print media is catching up to their lies, and they're getting caught.

There's more about Whitehouse's speech at Emptywheel's new digs here.

But here's the other key point (and one of the reasons I like the way Whitehouse works). He specifically asked Michael Mukasey about EOs before Mukasey was approved.

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

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

So Mukasey, unaware that Bush had set aside all common sense, gave the common sense, legally sound answer. "Of course the President can't violate his own EOs! He would need to change them first!"

And now the AG is on record as thinking this whole state of affairs stinks.

The lawlessness of the Bush Administration was well-known before. Now it's out in the open. Lying into war, destroying evidence of torture, believing that the President has the ability to act as a King; this is how we've lived for the past seven years.

Strike Up The Band, We Got Ourselves a Contempt Proceeding

We'll see how far they get with it, but Patrick Leahy is planning a vote in the Senate Judiciary committee on Thursday for contempt citations, which has been a slightly more anticipated event on Capitol Hill than the Sopranos finale.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has scheduled a committee vote Thursday on contempt resolutions against White House Chief of Staff Josh Bolten and former presidential political guru Karl Rove for failing to respond to subpoenas.

Under Judiciary Committee rules, the vote could be postponed for a week, but Leahy said he intends to move the criminal contempt resolutions as soon as possible. Last week, he rejected the White House's executive privilege claim in preventing Rove and Bolten from appearing before his panel, calling it "overbroad, unsubstantiated, and not legally valid," setting the stage for Thursday's showdown.

At least one of the top Democrats on the Committee is ready for this fight. The perpetual weak knees of the Democrats whenever anything close to challenging the President comes up is likely still operative, but not for Sheldon Whitehouse:

"There has not been a lot of case law on this subject. We've been going on for a long time off of Department of Justice [attorney general] opinions, and a certain amount of tradition, and how settlements and agreements in the past have shaken out. But the Bush administration has shown why it's actually important that there be a legal line drawn to hold them to, because they've redrawn all the executive lines. I think it'd be good for the process to get a court decision for once and for all on the subject so everybody knows where we stand. It'll eliminate a lot of the back and forth in the future."

It's important for these Senators to understand that this is a historic moment, with the relevance of their offices at stake. If they can't bother to fight for the separation of powers and the ability of the legislative branch to check the executive, what will they ever fight for? Whitehouse, at least, seems to get this, and is willing to push even beyond the current Administration's tenure to get a ruling for posterity.

Whitehouse doubted that the process -- the committee holding the White House in contempt, the full Senate following suit, the subsequent court fight and its resolution -- could be completed before the Bush administration ends. But he said he would see it through to its conclusion regardless of who's president. "It might be, frankly, that with the Bush administration out we'd get a better decision," he said. "We might have an administration that isn't trying to protect anything, and is just interested in the legal question."

It's not that Whitehouse expects that a court ruling on executive privilege will end executive-legislative struggles over its scope. But it would at least set a stable set of boundaries for its legitimate exercise, rather than leaving subsequent administrations free to expand it even further, he said. "The boundary of that debate has been expanded dramatically by the Bush administration, and it's important to get it back to where we're discussing things around some common principles that the court can establish," he said. "It should narrow the disagreement considerably if you've got an established legal framework in which you're having the discussion."

Right now we have a President who thinks that the only legitimate exercise the Congress should be allowed to serve is as an ATM. Today's press conference was not about Iran, it was about bellyaching over Iraq funding. What this contempt proceeding is about, in addition to getting to the truth of the US Attorney scandal, is reasserting the role of the Congress in our form of government. Nothing can be more important.

P.S.: It's amusing to me that Karl Rove is waddling around on his "please buy my book" tour, telling anyone who will listen about internal White House discussions on the 2002 Iraq resolution, and who was driving the debate in Washington, yet when the Congress wants him to answer questions on another Administration matter, suddenly he claims executive privilege. It's essentially privilege as a convenient blanket.

So Much For Moral Clarity

Everyone was all excited yesterday when Attorney General nominee Michael Mukasey called torture antithetical to the American way. Heck, I was excited. Well, turns out he's just another slave to power. Jeez, has the entire political class in this country been to a mass emasculation ceremony?

Sen. Sheldon Whitehouse (D-RI) asked Mukasey if he thought waterboarding was Constitutional. "If waterboarding is torture... torture is not Constitutional," he replied.

Whitehouse wasn't satisfied. "That is a massive hedge.... It either is or it isn't." Doesn't Mukasey have an opinion on whether waterboarding is torture? He went on to describe the technique, which involves using a wet rag to make the detainee feel like he's drowning. Mukasey replied with the same answer: "If it amounts to torture, then it is not Constitutional."

I'm very disappointed," Whitehouse said, adding that Mukasey's reply had been "purely semantic."

"Sorry," replied Mukasey.

Yeah, we're sorry too.

Combine this with Mukasey's repeated statements that the President has an inherent right to break some Congressional laws, and you'll see that, on the key issues of executive power and the destruction of the Constitution, Mukasey will change absolutely nothing at the Justice Department. He may be a little less partisan and make the place a little less politicized, too little to notice, actually, since there are minefields of wingnut lawyers roaming around those halls that he'll never even know about. But on the core issues, it's business as usual.

I'd say reject him, but that's just not going to happen. Sad, isn't it?

The Days And Nights Of Bradley Schloz

There's great coverage at TPM Muckraker of today's Bradley Schlozman trial. Patrick Leahy in particular got incensed about Schlozman's equivocating about bringing indictments against Democratic registration groups like ACORN (eventually tossed out) right before the 2006 elections. Sheldon Whitehouse just got exasperated. It was one of the funniest things I've ever seen. He just listened to an outrageous whopper by Schlozman and sat there staring at him, with a bemused expression on his face, for what seemed like a minute. Then he said "I think I've had enough of you."

Schlozman was raked over the coals, but he didn't give up any new information. Todd Graves is up now; he was the former US Attorney in Missouri who Schlozman replaced. From his opening statement, I can't determine whether or not he'll be willing to offer up any information. He did just use the epithet "Democrat Party," so I don't quite know... I do think that he believes the institution of the Department of Justice has been sullied by this entire mess.

UPDATE: Leahy makes a funny:

You know, I tend to think that perhaps you use this (the US Attorney's Manual) more as a doorstop than as something you actually had to follow. … I think you’re trying to break Attorney General Gonzales’ record of saying you “don’t recall” or you “don’t remember.” I’ve lost count of the number of times you’ve said that.

Kudos to the Whitehouse

Sen. Sheldon Whitehouse has not been a major figure in the US Attorney scandal, but he did the best job today in the Judiciary Committee hearing with former Gonzales chief of staff Kyle Sampson. In fact, he was the only one that got any news out of him:

Attorney General Alberto Gonzales and President Bush's former counsel approved the firings of eight federal prosecutors, Gonzales' one-time chief of staff told the Senate Judiciary Committee Thursday.

"I and others made staff recommendations but they were approved and signed off on by the principals," Kyle Sampson said, referring to Gonzales and former White House Counsel Harriet Miers.

Responding to questions from Sen. Sheldon Whitehouse, D-R.I., Sampson rejected the notion that the dismissals were ordered by young or inexperienced Justice Department officials.

"The decision makers in this case were the attorney general and the counsel to the president," he told the Senate Judiciary Committee.

And the way in which Whitehouse got this information out was great.

He started by asking if there was a file about this plan to fire these federal prosecutors (this is a rough transcript):

SW: When you were in charge of this project, did you keep a file, on this project?

KS: I think it would be too much to say that I kept a file. In my lower right hand desk drawer I kept the charts that I referred to in answering Senator's Harden's question. It was just sort of a drop file that was changed in and out. I think in looking back and reviewing the documents in preparation for this testimony, I see there were a lots of lists at different times, but as I say to Seantory Cronyrn, I didn't keep one list.

SW: But, did you keep one file where you kept information related to this project?

KS: Again, just sort of a drop file in my lower right hand desk drawer.

SW: Did somebody else keep it for you?

KS: Uh, no. Uh, There really was no file...there really was no documation of this, it was an aggregation of views. Various lists and notes at different points in time. AS the process finalized in the fall of 2006, it became a little more formalized, but only in the sense that we were working in the SR. leadership of the Dept to finalize the list.

SW: So, this was a project that you were in charge of...this was a project that lasted for 2 years....this was a project that would end the careers of 8 United States Attorneys and neither you nor anybody reporting to you kept a specific file in your office about it?

Sampson fought back on that, claiming that it didn't end the careers of the USAs, but the damage was done. He was put on the defensive. And Whitehouse was building the case of giving Sampson two bad choices: either there was a file that investigators maybe haven't seen, or this situation was done with such a cavalier attitude that they didn't even bother to make it in any way official. Sampson went with the half-answer "drop file." But it looked evasive, and was a disappointing answer on both counts.

Whitehouse then asked some basic facts about how the Justice Department handles witnesses who take the 5th Amendment, things you would expect senior officials in the DoJ to know, and Sampson had no clue about any of them. Again, he was building to his ultimate question.

And then, Whitehouse asked how many cases Sampson and Monica Goodling have ever worked on. Sampson mentioned a couple cases he helped with, and didn't know about Goodling. Whitehouse then cut to the chase; he expressed his concern that these major decisions about firings were being made by people with such inexperience. This set Sampson right on his heels, put him on the defensive, and forced him to defend the process and get himself out of repsonsibility at the same time. So he extracted the answer from Sampson, that this was Gonzales and Miers' deal, without having to say it himself, which was much more powerful.

And on follow-up, Sampson said, "You'll have to ask the principals." Which includes the White House counsel, who the WH won't allow to testify. So Sampson's essentially agreed that invoking executive privilege will obstruct the investigation.

A masterful performance. One I would expect from a former prosecutor.