The Trust-Us Strategy

This move on state secrets fits a familiar pattern of the executive branch trying to pre-empt the legislative branch by promising to do something internally instead of having to be forced into it by statute. It's not a durable solution and should have no bearing on future legislation, but inevitably it does.

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

“The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

The problem is that the people deciding whether "significant harm to national defense or foreign relations is at stake" remains the same Justice Department who decides to invoke the state secrets privilege in the first place. We are still expected to trust that judgment, and it's not that I don't trust Eric Holder or the review committee tasked with making this determination, I don't trust who comes after him. Case in point - Alberto Gonzales with this power would have used the same state secrets privilege to shut down lawsuits.

It's not enough for the executive branch to police itself. Congress should act.

...More from bmaz and Adam Serwer. In fact, Holder promised a review of the state secrets privilege back in February, meaning that he's already been undergoing the process that they're announcing today, and yet the DoJ has invoked state secrets in often-unacceptable ways on many occasions since then.

...Basically, nobody's buying this nonsense. Hopefully, Nadler, Leahy and Feingold (all quoted at the link) will continue to move forward with their bill to rein in this hideous practice.

Nobody To Root For

So what's going on with this FBI raid of the head of the Office of Special Counsel, Scott Bloch? He was looking into investigations over violations of the Hatch Act by executive branch figures, including Karl Rove (although the punishment for violating the Hatch Act is to lose your executive branch job, so I'm not sure why he's investigating) and Condi Rice. However, his hands aren't exactly clean either, having erased all the files on his computer with the help of Geeks on Call instead of the White House email technicians, and has been accused of improper retaliation against employees who disagreed with his policies. I agree with looseheadprop that this feels like a Mafia turf war, but for my money bmaz had the best take.

Bloch appears to be a bit of a nondescript, but deeply religious, party level toady that they pulled out of the mid-west, to serve as Associate Director and then Deputy Director and Counsel to the Task Force for Faith-based and Community Initiatives at the U.S. Department of Justice. (Why exactly is there even such an office in the DOJ at all???). The Bushies then wanted to plug a Regent like theobot toady into the OSC, and decided Bloch fit the bill. Bloch then went about doing his job, which was effectively to do nothing and fill up the ranks with incompetent theobot types, just like they were doing all over the government and, as we know so well, especially the DOJ. But Bloch got a little ham fisted in his efforts to weed his office of teh gay in the process, which caused an amount of scrutiny and heat.

About that time, Bloch's office started being forced into relevance because of all the Hatch Act violations and other things that the Bushies have done to create whistleblowers that are supposed to fall under Bloch's office's parameters. This created a confluence of events for Bloch; he morally/religiously really believes in his purge of teh gay and, just maybe, he actually has some moral convictions on the impropriety of much of the Bushco creed. So, he starts actually doing his job on the Bushco ills, just a little, both because he knew there were ills and to push back and protect himself for what he had done. Picture a John DiIulio and/or David Kuo that, instead of just leaving, stayed and fought.

Because of the Rove, Doan, and then the USA Purgegate scandals, this little internecine battle erupted into the public consciousness, and neither side backed off. Bloch was preparing some stinging reports that would really be a poke in the eye to the Bushies, and they wanted to squelch those. The Bushies determined that it would be necessary to take out Bloch, but they didn't want it to be alleged that they did it to cover and protect Lurita "Cookies" Doan and wanted it to look like they did it for cause against Bloch. So they cooked Doan (she was a pain in the ass anyway by then, so no loss to them) as a preemptory strike in preparation for going after Bloch. Then, they went after Bloch to put the kabosh, as much as they can, on his reports on Bushco. And that is where we are at now.

Read the whole thing. Sometimes really juicy information comes out of turf wars and hurt feelings like this, so while nobody in this mess is praiseworthy there might be a good yield, so it's worth keeping an eye on.

Fourthbranch Oozes Back Into The Third Branch - But Still Stonewalls

Mike Allen definitely got played when he wrote this headline:

Dems force Cheney flip-flop on secret docs

Dick Cheney's office is abandoning a justification for keeping the Vice-President's secret papers out of the hands of the National Archives.

Officials working for Cheney had tried to claim he is separate from the executive branch, but they will no longer pursue that defense, senior administration officials tell The Politico.

Believe me, I like any headline that begins "Dems force Cheney." But they haven't force him to do a whole lot. While his lawyers are giving up on trying to justify the ridiculous Fourth Branch of government claim, they aren't at all done resisting efforts to release information:

Dick Cheney's chief of staff, David Addington, issued a letter to Sen. John Kerry (D-MA) today defending the Vice President's interpretation of his office being outside the executive branch - only this time, he said it was because Cheney's office isn't an "agency."

A copy of the letter from David Addington to Sen. John Kerry, D-Mass., was released to RAW STORY. Kerry said the "legalistic" response from Addington "raises more questions than it purports to answer."

"Dear Senator Kerry," Addington writes. "The executive order on classified national security information -- Executive Order 12958 as amended in 2003 -- makes clear that the Vice President is treated like the President and distinguishes the two of them from 'agencies.'"

No longer satisfied with the Vice President's office's claim that Cheney is actually an admixture between the legislative and executive branch, Addington now posits that the Vice President's office is not an "agency."

"The executive order gives the [Information Security Oversight Office], under the supervision of the Archivist of the United States, responsibility to oversee certain activities of 'agencies,' but not of the Vice President or the President."

It will not surprise you to know that if you're a constitutional scholar and you actually READ the executive order in question, Addington's reasoning is transparently silly.

Most importantly, Addington's argument would appear to be inconsistent with the statute that required the promulgation of the E.O. in the first place, the Counterintelligence and Security Enhancements Act of 1994, which requires (50 U.S.C. 435(a)) the President to "establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government." (Thanks to "gnarly trombone" in the comments for the cite.) Unless there is some reason to think that Congress did not mean to cover the Office of the Vice President in this directive -- which would surprise me, although I don't know anything about the intracacies of this statute -- then the E.O. must be construed to cover that Office. (Unless, of course, the statute would to that extent unconstitutionally impinge on the Commander in Chief's authority . . . but who would be so audacious as to make that far-fetched argument? (Yes, that's a rhetorical question.)

TPM Muckraker has more on this.

The Senate Judiciary Committee decided to step into this nonsense, albeit from a different angle, by issuing subpoenas for documents relating to the warrantless wiretapping program. This impacts Abu G as well, last seen dodging protestors in Idaho, since he claimed under oath that there was no internal disputes about the warrantless wiretapping program, yet James Comey testified the exact opposite and in fact detailed the nature of the dispute (as well as his Midnight Ride to stop Fredo and Card from preying upon John Ashcroft when he was sick in the hospital. The Judiciary Committee is seeking documents from DoJ as well.

But the fact that they're subpoenaing documents from the OVP means that Fourthbranch will have to trot out an executive privilege argument again. At which point he'll be again asked to comply with executive branch rules regarding oversight of classified information procedures. So Fourthbranch has stepped into a vicious cycle.

The Democrats in the Congress have really pounced on this. It's great theater. Hopefully they can walk and chew gum, and press this advantage elsewhere as well.

UPDATE: Fredo's also been dragging his feet on the supposed "investigation" of Cheney's exemption from oversight rules, and so House leaders have written him.

Rahm Emanuel Reads This Blog

Yesterday I said that Rep. Emanuel is just the kind of asshole who should back up his tough talk about Fourthbranch Cheney with action, and actually submit legislation cutting funding for the Vice President's office since it isn't part of the executive branch.

And today...

Washington, D.C. House Democratic Caucus Chairman Rahm Emanuel issued the following statement regarding his amendment to cut funding for the Office of the Vice President from the bill that funds the executive branch. The legislation -- the Financial Services and General Government Appropriations bill -- will be considered on the floor of the House of Representatives next week.

"The Vice President has a choice to make. If he believes his legal case, his office has no business being funded as part of the executive branch. However, if he demands executive branch funding he cannot ignore executive branch rules. At the very least, the Vice President should be consistent. This amendment will ensure that the Vice President's funding is consistent with his legal arguments. I have worked closely with my colleagues on this amendment and will continue to pursue this measure in the coming days."

Hilarious. I think it'll pass the House and might even get a few anti-Cheney Republicans, too.

Meanwhile, apparently the law isn't supposed to apply to Cheney or Bush:

The White House said Friday that, like Vice President Dick Cheney's office, President Bush's office is exempt from a presidential order requiring government agencies that handle classified national security information to submit to oversight by an independent federal watchdog.

The executive order that Bush issued in March 2003 covers all government agencies that are part of the executive branch and, although it doesn't specifically say so, was not meant to apply to the vice president's office or the president's office, a White House spokesman said.

I like when new laws are made up within executive orders and the justification is essentially "Oh, I meant to do that." Under this standard, the 2nd amendment INCLUDES the right to use handguns to kill anyone Chinese, I mean, it's not actually written in there, but that was the intent. What originalists they are.