During the just-underway second day of questioning for Attorney General-designee Michael Mukasey, Sen. Arlen Specter (R-PA) asked whether there's any inherent presidential power to order torture, a central constitutional contention of former Office of Legal Counsel attorney John Yoo in the famous August 1, 2002 Bybee memo (pdf). Mukasey's answer? "The president can't authorize torture because torture is barred both by statute and the constitution." Mukasey, firmly in the realm of mainstream legal opinion, said the 5th, 8th and 14th amendment prohibit torture.
The answer is revealing less for the specifics of the answer than for Mukasey's perspective on the president's constitutional authority. It turns out, contra Yoo, that the president can't do anything he wants during wartime, according to the new would-be attorney general.
Since the Coconut Road earmark scandal broke, Rep. Connie Mack (R-FL), whose district rejected $10 million for the unpopular interchange, has claimed he knew nothing about how the project made its way into the 2005 highway bill. And, in fact, he supports allowing local government to use the money for another project.
But today, The Hill's Susan Crabtree reports that Mack probably knew more than he's let on. According to a letter written by Mack in 2006 to Florida Gulf Coast University, he said he supported the interchange:
The Coconut Road Interchange, built in conjunction with the [Florida Gulf Coast University] Transportation Management Center, stands to be the cutting-edge demonstration project in America to study and improve hurricane and crisis evacuation transportation safety programs,â Mack wrote in the letter, which was addressed to Florida Gulf Coast University (FGCU) President William Merwin.
It's unclear, though, if Mack played a part in swapping the earmark's language after Congress voted on the highway bill but before the President signed the bill. Earlier this week, The Hill reported that the Congressional Research Service reviewed such post-vote earmark changes and advised that they are unconstitutional.
Douglas Feith once reportedly quipped that the State Department should be called the Department of Nice. To Blackwater, however, it might be better termed the Department of Passive-Aggressive. According to the AP, State won't exactly ask Blackwater to leave Iraq, but in true awkward-breakup fashion, it's indicating that Blackwater should get out if it wants to do the honorable thing:
Blackwater's work escorting U.S. diplomats outside the protected Green Zone in Baghdad expires in May, one [State Department] official said, and other officials told The Associated Press they expect the North Carolina company will not continue to work for the embassy after that.
It is likely that Blackwater does not compete to keep the job, one official said. Blackwater probably will not be fired outright or even "eased out," the official added, but there is a mutual feeling that the Sept. 16 shooting deaths mean the company cannot continue in its current role.
Blackwater spokeswoman Anne Tyrrell responded, "We will follow the lead of our client. If they want us to stay we will stay. If they want us to leave we will do so." Translated from the contractor-speak, that's "Fine. Be that way."
In 2003, a Baltimore area high school graduate disappeared into a âblack siteâ of the CIAâs secret prison system. He turned up at Guantanamo Bay last year. On Tuesday, he had his first meeting with an attorney. This âghost detaineeâ has spoken only once publicly (through a partially censored transcript of a Pentagon hearing earlier this year) when âhe complained of chronic abuse in American custody and said he repeatedly tried to kill himself in his despair.â (Miami Herald)
One of Michael Mukasey's first jobs will be to figure out what to do with Craig Morford, the U.S. Attorney who was brought in as Deputy Attorney General to clean up Gonzo's mess. The administration is suggesting that Mukasey can pick his own DAG, which is leading Morford supporters (particularly the other U.S. attorneys) to believe that Morford is being booted out (sub. req.) for his work on politically sensitive prosecutions. (Wall Street Journal)
The President of Oral Robert University is taking a leave of absence amid accusations of treating the school founded by his father as his own private piggy bank. I blame the growing public mistrust on this article. (LA Times)
If you liked the Protect America Act -- President Bush's sweeping revision to the Foreign Intelligence Surveillance Act signed into law in August -- you're going to love the soon-to-be-unveiled surveillance bill from the Senate intelligence committee. President Bush and Admiral Mike McConnell do, at least. A day after the White House made available to the committee "millions" of pages of material documenting how the telecommunications industry complied with warrantless requests for Americans' international communications after 9/11, the committee wrote into its bill a provision granting the industry retroactive immunity from customer lawsuits that the White House has long desired.
It's unclear what else the bill will contain. The House Democratic surveillance measure that Republicans blocked yesterday allowed for non-individualized court orders approving surveillance of targets "reasonably believed" to be outside the U.S. and possessing "foreign intelligence information," a provision that has divided civil libertarians. That measure is too restrictive to the Bush administration, which wants all foreign-directed surveillance outside the purview of the FISA Court, even in cases where foreigners call into the United States. Until the Senate bill is released today, it won't be clear whether there's a prior-review role for the court in foreign-directed surveillance.
But on the most contentious aspect of the debate -- retroactive legal immunity for telecommunications companies cooperating with the Bush administration -- the Senate has apparently justified the ACLU's worst fears. Here's what The Washington Post, citing congressional sources, reports about how the immunity will work:
The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.
Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.
Well, so much for this post. As our homeboy Greg Sargent has been reporting throughout the day, the Democratic leadership of the House yanked consideration of the Restore Act after a clever bit of GOP parliamentary chicanery threatened to force Democrats into seeming to vote against spying on Osama bin Laden. See Greg's latest for the details.
Tomorrow, the FISA theatrics continue as the Senate intelligence committee is scheduled to unveil its counterpart to the Restore Act, complete with a pledge of allegiance to al-Qaeda, one-ply toilet paper and the murder of kittens. Or something like that -- I'm going from a forthcoming GOP press release.
Here's something else you never would have heard from Alberto Gonzales.
Sen. Chuck Schumer (D-NY) quizzed Mukasey about one specific assertion of executive privilege by the White House in the U.S. attorney firings probe -- namely their claim that correspondence with people outside the White House were covered by privilege and should not be turned over to Congress. The case Schumer mentioned referred to an email from the chairman of the New Mexico Republican Party to the White House about New Mexico's U.S. attorney, David Iglesias.
After a preamble about how he could see certain circumstances where outside communication might be covered by privilege, Mukasey told Schumer that he'd read the letter from the White House counsel's office claiming privilege for such communications. "I will admit to you that my first reaction to that section of the letter was, 'Huh?'" But he added that he'd like "to take a closer look at the facts" before that was his final reaction.
The procedures for trying enemy combatants in military tribunals are still up in the air. But Mukasey testified that he would rule out coercion-gotten information from admissibility. Asked by Sen. Lindsey Graham (R-SC) about confessions gotten through waterboarding, Mukasey professed ignorance about what waterboarding entails, but said, "I would be uncomfortable with any evidence used in trial that is coerced."
Now that two Veco executives have pleaded guilty to buying politicians, two former legislators have been convicted on bribery charges, two more lawmakers are awaiting trial and two thirds of the federal delegation is under FBI investigation, Alaska has decided maybe it should start looking into some of this corruption stuff.
But, too late.
Gov. Sarah Palin released a letter today from the Justice Department telling the state to drop its investigation into whether Veco paid for political polling, fearing the inquiry may interfere with the wide-ranging and ongoing federal probe. The letter is available here.
In her letter, Brenda Morris, deputy principal of the Public Integrity Section at the Justice Department, tried to let down Alaska's Attorney General Talis Colber easy:
We understand and appreciate that all levels of law enforcement - local, state and federal - have an interest in ensuring that government and its officials operate free of illegal influences. However, because of the long-standing federal investigation into these matters, we believe that concurrent state investigative activity will have the effect of compromising certain aspects of the ongoing federal public corruption investigation.
A federal judge in Detroit wants to know if politics motivated the prosecution of lawyer and former Democratic gubernatorial candidate Geoffrey Fieger, who is accused of illegally donating $127,000 to John Edwards' campaign in 2004, the Detroit Free Pressreports.
U.S. District Judge Paul Borman also wanted to know why it took 75 to 80 federal agents to raid Fieger's law office and confront 32 employees on the doorsteps after dark in November 2005.
"I'm just trying to figure out how it went down," Borman told Assistant U.S. Attorney Lynn Helland. He said he couldn't recall that many agents involved in any other raid during his 13 years on the federal bench.
Borman is considering a request from Fieger's lawyers to allow them to investigate whether the White House or former Justice Department officials instigated the prosecution. That investigation could include deposing former Attorney General Alberto Gonzales and Karl Rove.