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The White House may have lost a battle, but they have not lost the war.

For nearly two years, D.C. watchdogs Judicial Watch and Citizens for Ethics and Responsibility in Washington have been battling in court for Secret Service records of visits to the Bush White House and the Vice President's Office. The first request was for Jack Abramoff's visits, but they also set out to discover how often his associates and various conservative religious leaders had visited. Did they know what they were in for?

Over time, the White House has tried various legal theories to block the release. There was the imposing "mosaic theory," whereby seemingly innocuous information, such as visits to the White House, could prove a national security threat when combined with other seemingly innocuous information. And there was the Vice President's secret agreement with the Secret Service that even though the Secret Service makes and keeps the visitor records, they're not really Secret Service records (even though they'd been treated that way in the past), they're White House records, and thus not subject to FOIA. Oh, and there was the Vice President's order to destroy the records. And on and on.

Today, CREW had a good day in court, with a federal judge deciding that the secret agreement was bunk and that the Secret Service records really were public records. And there was also a partial victory. The judge denied CREW's motion to declare that the Secret Service could not destroy its White House visitor records once it had transferred copies to the White House; but because the judge said the records are public records, the White House now cannot destroy them without the say-so of the National Archives and Records Administration. And when you want to destroy documents, you really don't want any red tape, do you?

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Who'll be the lucky Justice Department official?

Today House Judiciary Committee Chair John Conyers (D-MI) wrote Attorney General Michael Mukasey to request that a Department official show up for a hearing he's scheduled this Thursday on the interrogation of detainees. You see, he doesn't think too much of the Department's decision to rebuff all Congressional investigation of the CIA's destruction of the torture tapes. "Parallel congressional and executive investigations occur frequently, and therefore should not be used as a shield against proper and necessary oversight," is the way he puts it.

And he wants "a high level official to testify on this subject matter, specifically including the Department’s attempts to forestall legislative or judicial inquiry."

So which DoJ official will get to explain to dozens of lawmakers why Congressional probes should shut down until the DoJ reaches its conclusion? Probably whoever has bad luck with Rock, Paper, Scissors.

Conyers' letter is below.

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When news broke that the CIA had kept videotapes showing torture of detainees secret and then secretly destroyed them, Sen. Joe Biden (D-DE) was fast out of the gate: the scandal "leads right into the White House," he said, and the need for a special prosecutor was clear.

But that was about it. Senate Intelligence Committee Chairman Jay Rockefeller (D-WV) was quick to dismiss the need for one, saying that Congressional inquiries were enough. And the hard-charging investigation led by the House intelligence committee seemed to indicate that might be true. When Rep. Rush Holt (D-NJ), a member of the House intelligence committee, wrote Attorney General Michael Mukasey to formally request the appointment of a special prosecutor, expectations were low.

As expected, Mukasey said no. Or as he put it in a letter to Congress Friday, "I am aware of no facts at present to suggest that Department attorneys cannot conduct this inquiry in an impartial manner."

But with the Department rebuffing Congressional inquiries, Rockefeller's rationale has been turned on its head. The momentum seems to have shifted.

On Friday, House Judiciary Committee Chairman John Conyers (D-MI) said in a statement that Mukasey's "disturbing" refusal to answer Congressional questions about the tapes' destruction "calls into question whether the Department of Justice is best able to investigate these matters.”

And the same day, Sen. Ted Kennedy (D-MA) echoed Sen. Biden's comments from the week before.

Put all that together and you now have the chairman of the House Judiciary Committee and two prominent members of the Senate Judiciary Committee leaning towards a special prosecutor. Whether that momentum builds any more depends largely on how successful the House intelligence committee is in defying the Justice Department's attempt to stifle its investigation. Senate Majority Leader Harry Reid (D-NV) has said that he would call for a special prosecutor if the committee's don't get cooperation.

Last week, Jose Rodriguez, the CIA's ex-operations director who ordered the interrogation tapes destroyed in late 2005, lawyered up in a big way, landing D.C. legal superstar Bob Bennett. Now Bennett's out there earning his salt, saying that Rodriguez will invoke the Fifth if it seems like he's been picked as the fall guy:

Bennett told NEWSWEEK that his client had been "a dedicated and loy­al public servant for 31 years" and "has done nothing wrong." But he warned that Rodriguez may refuse to cooperate with investigators if he concludes that the probes are a "witch hunt." "I don't want him to become a scapegoat."


What's Bennett angling for? Well, the line's in the water.

Today's the big day: the Senate debates a permanent overhaul of surveillance law to replace the administration's sweeping Protect America Act, which expires February 1. (Didja see Sen. Feingold's TPMCafe post on all this?)

One milestone on the road to today's debate was a White House agreement to let the Senate intelligence committee and the leaders of the judiciary committee see the legal justifications for its constellation of warrantless surveillance programs. Now Sen. Harry Reid (D-NV), the Democratic leader, wants the full Senate to be able to review the closely-held documents. He wrote to intelligence czar Michael McConnell yesterday:

We appreciate that you have provided access to the documents necessary for evaluation of this issue to the Senate Intelligence and Judiciary Committees, as each has in turn considered it. As the debate now moves to the full Senate, I believe it is of critical importance that all Senators who will be called upon to vote on this important question have an opportunity to review these key documents themselves so that they may draw their own conclusions. In my view, each sitting Senator has a constitutional right of access to these documents before voting on this matter.

I strongly urge you to make the documents previously provided to the Intelligence and Judiciary Committee regarding retroactive immunity available in a secure location to any Senator who wishes to review them during the floor debate


One Senator who read those documents, Sheldon Whitehouse (D-RI), has already said in a recent speech that the legal basis for the program spelled out in the documents made him "increasingly dismayed and amazed." They amount, in Whitehouse's view, to a legal doctrine for presidential lawbreaking. Maybe Reid, who's said he opposes retroactive immunity, is pushing a gambit to kill the telecom immunity provisions of the surveillance bill through the disinfecting power of sunlight.

Add another name to the wall of fame. Newsweek reports that John Negroponte -- Mike McConnell's predecessor as director of national intelligence -- told then-CIA Director Porter Goss not to destroy the torture tapes. That instruction, apparently documented, is going to be crucial: advocates for Jose Rodriguez, the CIA official who destroyed the tapes in 2005, have said that they did not receive clear instructions from their superiors firmly telling them to preserve the recordings.

In the summer of 2005, then CIA director Porter Goss met with then national intelligence director John Negroponte to discuss a highly sensitive matter: what to do about the existence of videotapes documenting the use of controversial interrogation methods, apparently includ­ing waterboarding, on two key Al Qaeda suspects. The tapes were eventually de­stroyed, and congressional investigators are now trying to piece together an extensive paper trail documenting how and why it happened.

One crucial document they'll surely want to examine: a memo written after the meeting between Goss and Negroponte, which records that Negroponte strongly advised against destroying the tapes, according to two people close to the investigation, who asked for anonymity when discussing a sensitive matter. The memo is so far the only known documentation that a senior intel official warned that the tapes should not be destroyed. Spokespeople for the CIA and the intel czar's office declined to comment, citing ongoing investigations.


Tally it up. Advising against destruction were: Rep. Jane Harman (D-CA) with Nancy Pelosi "concurring," Goss as both a congressman and CIA director, Harriet Miers, anonymous DOJ officials, and Negroponte. Those with an appetite for destruction were, of course, Rodriguez and, reportedly, lawyers within the CIA's operations directorate.

As Paul noted in the Must Read, the leaders of the House intelligence committee aren't exactly impressed by the Justice Department's attempt to halt their investigation of the destruction of the CIA's torture tapes. Reading the letter that Assistant Attorney General Kenneth Wainstein and CIA Inspector General John Helgerson sent to the committee, it's not hard to see why.

We've added the Wainstein-Helgerson letter to our document collection, and you can read it in its entirety here.

On Friday, Wainstein and Helgerson asked the House to shut down its probe. Their rationale? Avoiding needless duplication that would complicate the Justice/CIA IG "preliminary" inquiry into the tape destruction:

Based upon our review of the Committee's requests to date, we believe our inquiry will encompass the same documents and witnesses. Our ability to obtain the most reliable and complete information would likely be jeopardized if the CIA undertakes the steps necessary to respond to your requests in a comprehensive fashion at this time. This includes requests for interviews with [Inspector General's office employees], which the DOJ has determined to be problematic because they are potential witnesses in the matter under our inquiry.


What's missing from that explanation? Oh yeah -- an explanation of how the House inquiry would actually jeopardize the DOJ/CIA IG probe.

Lawyers for the suburban Baltimore Guantanamo detainee Majid Khan have asked that a federal court review their client’s detention and interrogation in secret CIA custody. Khan maintains he was a victim of state-sponsored torture. Earlier this week, an appeals court ordered the government not to destroy any evidence pertaining to Khan’s treatment. (McClatchy)

The Bush administration announced that it will take control of the promotions of military lawyers at Guantanamo Bay, less than a week after the prison camp's legal adviser praised the military tribunal system there. Retired Major General Thomas Romig, the Army's top JAG from 2001 to 2005, described the scheme as an effort "to control the military JAGs" by signaling that if they want a promotion they need to "bow to their political masters on legal advice." (Boston Globe)

An apparently innocent man who was held at one of the CIA's "black sites" gave a detailed description of his captivity, which lasted 19 months until he was released suddenly and without explanation. He tried to kill himself during captivity and the CIA put him in the care of mental health professionals who gave him pills and a Rubiks cube and told him not to give up hope. (Salon.com)

A subsidiary of Boeing, Jeppesen Dataplan Inc., now openly acknowledges its role in helping the CIA transport terrorism suspects to secret CIA prisons for “extraordinary rendition.” Jeppesen is the target of an ACLU lawsuit, which alleges that transported prisoners were subjected to “forms of cruel, inhuman and degrading treatment.” The government has asked that the suit be rejected because it touches upon sensitive state secrets. (Boston Globe)

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"It smells like the coverup of the coverup."

That's Rep. Jane Harman's (D-CA) take. And Rep. Pete Hoekstra's (R-MI) wasn't any different.

In case you were already out the door late Friday afternoon when the news broke, the Justice Department, along with the CIA's inspector general, informed the House intelligence committee that they'd told the CIA not to cooperate with the committee's investigation into the CIA's torture tapes. Congress would just have to wait until the joint Justice Department-CIA probe was done (when? who knows) before they got any answers. The reason given was that it would "jeopardize" the Justice Department's investigation if the CIA gave the committee all the information it wanted while at the same time cooperating with the DoJ inquiry.

Chairman Silvestre Reyes (D-TX) and Hoekstra pronounced themselves "stunned." There's "no basis" for the DoJ to do that, they said. Harman, the former ranking member on the committee, said the same yesterday.

The ground is being laid for an ol' fashioned separation-of-powers showdown. Hoekstra went further, saying "I think we will issue subpoenas." With Republican backup, it should prove pretty easy for Reyes to pull the trigger. Hoekstra even singled out CIA Director Mike Hayden, promising to hold him "accountable."

And remember, Hoekstra and Reyes weren't the only lawmakers Michael Mukasey's Justice Department upset on Friday. Mukasey sent a friendly none-of-your-business letter in response to the Senate Judiciary Committee's questions about the CIA tapes. Chairman Patrick Leahy (D-VT) was "disappointed" and promised to make that clear when Mukasey appeared before his committee in the new year.

At this point, it's worth observing that Michael Mukasey has been on the job as attorney general barely a month and has already united both parties in Congress against him. That's some quick work.

But wait! The Department also argued Friday that a federal judge should not hold a hearing on the tapes, saying that a hearing would be "both unnecessary and potentially disruptive.” Lawyers representing 12 detainees at Guantanamo had asked for one. Is a three branches free-for-all in the works?

Sen. Barack Obama (D-IL), who called on Justice Department officials to fire John Tanner back in October, has a glass-half-empty view of Tanner's resignation. A statement just out:

"It's unacceptable that the Administration is simply shuffling deck chairs by moving Mr. Tanner to another important position in the Justice Department. During his tenure, he made offensive, intolerant comments about minorities in an attempt to defend voter identification laws that threaten voting rights, and that's why I called on him to be fired. It's time we restore confidence in the Department by appointing public servants who are truly committed to upholding our civil rights."

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