TPM News

As we noted yesterday, the administration is determined to strike a longterm security agreement with Iraq while avoiding the Constitutional requirement that the Senate ratify treaties.

To avoid that outcome, the administration has said that any agreement with Iraq will contain no security guarantee -- just an agreement that U.S. forces will remain in Iraq. Voila! no treaty.

Rep. Gary Ackerman (D-NY) isn't convinced. And during a hearing Tuesday before a House foreign affairs subcommittee, he grilled the State Department's Iraq coordinator about the deal.

But in a State Department official's written reply to Ackerman's questions (which you can see here), the administration showed that it has another trick up its sleeve.

Congress doesn't have to approve any agreement with Iraq, the official writes, because it already has... sorta. That came in the form of the 2002 Iraq war authorization, which authorized force to neutralize the "continuing threat posed by Iraq." Apparently in the administration view, that was also a blanket authorization for the ensuing occupation of Iraq.

Ackerman, speaking yesterday, wasn't convinced: "I don't think anybody argues today that Saddam Hussein is a threat," he said. "Is it the government of Iraq that's a threat?"

But if he doesn't buy that, then there's also Congress' post-9/11 authorization, the official writes, which "authorized the President to use all necessary and appropriate force against nations, organizations, or persons involved in the September 11, 2001 attacks on the United States." Because the president has said that the invasion was consistent with that authorization, it apparently is. Or at least by their way of seeing things.

Still skeptical? Oh! But there's more. "In addition, Congress has repeatedly provided funding for the Iraq war, both in regular appropriations cycles and in supplemental appropriations." Little did they know that with their annual appropriations, they were tacitly approving a longterm deal.

Evidently, the adminstration is convinced that if they continue to throw enough stuff at the wall, something will stick.

For some reason, Dems in Congress remain unconvinced. Rep. Bill Delahunt (D-MA) even told the Post that the letter "creates the basis for a constitutional confrontation."

Despite recent signs that House Democrats will likely ultimately vote on a bill that contains retroactive immunity for the telecoms, negotiations on a final version of the surveillance bill remain ongoing. Dems, after saying that a vote might come as early as this week, now seem unclear when it might happen.

In a conference call with bloggers today, House Speaker Nancy Pelosi (D-CA) made it clear that her highest priority for a surveillance bill was that it contain a so-called "exclusivity" provision -- a measure that would explicitly state that the bill would be the "exclusive means" by which the government would conduct surveillance, or in other words, the president does not have the power to ignore the law if he/she so pleases.

"Exclusivity is the issue," she said.

The Bush administration, which circumvented FISA to conduct its warrantless wiretapping program, does not want its hands tied. And a majority of Republicans helped vote down an exclusivity amendment offered by Sen. Dianne Feinstein (D-CA) in the Senate, where by bipartisan agreement, the measure required 60 votes. There is such a provision in the House's surveillance bill, which passed last year.

Pelosi says that she "absolutely" opposes retroactive immunity for the telecoms, but that she "didn't want the fight to be so focused there that we neglect exclusivity." Pelosi added that the House leadership was "at the mercy of the 17 or 18 Democrats in the Senate who are voting with the Republicans on this" and said that "we are trying to work with the Dems in the Senate to come to an agreement" on exclusivity, immunity, and other issues.

So this will be an interesting variable to add to the mix as the bill negotiations continue. Would Republicans in the Senate support a bill that had exclusivity in it? And would the President veto a bill that had it?

Last month, Supreme Court Justice Antonin Scalia pronounced in an interview with the BBC that it was "extraordinary" to think that "so-called torture" might be prohibited by the Constitution.

Well, to the quotes from that memorable interview ("You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and therefore it's no good'" and "Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?") you can add this, from Scalia's speech at the University of Central Missouri yesterday:

Of torture, Scalia said: "It’s a bad thing to do. But not everything that is bad is unconstitutional."


I guess torture is different from "so-called" torture. So to review your lesson in Scalia jurisprudence for the day: so-called torture, i.e. face-smacking, "sticking something under the fingernails," and one presumes, waterboarding, inducing hypothermia, and the like -- that's OK. Not only is it Constitutional, it's "absurd" to say you can't do it. Torture, on the other hand, is "a bad thing to do" -- presumably because it's against the law. But still A-OK by the Constitution. Class is adjourned.

Via ThinkProgress.

From Newsweek:

The Canadian government is no longer using evidence gained from CIA interrogations of a top Al Qaeda detainee who was waterboarded.

According to documents obtained by NEWSWEEK, the Canadian Security Intelligence Service (CSIS), the country's national-security agency, last month quietly withdrew statements by alleged Al Qaeda leader Abu Zubaydah from public papers outlining the case against two alleged terror "sleeper" operatives in Ottawa and Montreal....

Asked why the statements from Zubaydah had been dropped from the dossiers..., Bernard Beckhoff, a spokesman for Canada's public safety ministry, which oversees CSIS, said he could not comment on developments in either case because they are both still before the courts. But he then added, pointedly: "The CSIS director has stated publicly that torture is morally repugnant and not particularly reliable. CSIS does not knowingly use information which has been obtained through torture."


It's worth recalling that the Canadians aren't the only ones with a problem with Zubaydah's credibility. There's also the FBI.

FBI Director Robert Mueller admitted to Congress yesterday that his agency had improperly spied on Americans through the use of administrative subpoenas called national security letters. According to Mueller, a Justice Department report will soon document the agency's recurring invasion of Americans' privacy in 2006. An FBI audit shows that the FBI potentially violated laws or its own policies on more than 1,000 occasions from 2003 to 2005. (Washington Post)

The newly proposed Office of Congressional Ethics, if enacted into law, will only be allowed to initiate new investigations during July and August. Moreover, any investigation that OCE pursues must be approved by the House ethics committee but that committee is notorious for its glacial movement. One GOP aide notes that “it’s interesting Democrats have devised an ‘ethics reform’ bill that basically guarantees that investigations are punted until after Election Day." It's also interesting that Democratic leaders failed to rally support for their own measure and bring the bill to a vote (sub. req.) yet again. (Politico, Roll Call)

President Bush seems intent on securing a conviction of a Guantanamo Bay detainee (other than that of the Australian prisoner who made a plea deal) before his term expires. With new charges just filed against another Guantanamo prisoner, the trial calendar is full and resources for defendants are scarce. This appears to be an effort to set "up dry runs of the untested legal process that will be used to prosecute self-professed Sept. 11 mastermind Khalid Shaikh Mohammed and five other "high-value" prisoners later this year." (LA Times)

Read More →

On February 1st of this year, National Republican Campaign Committee Chairman Tom Cole (R-OK) abruptly released a statement about recently discovered "irregularities in our financial audit process." That was it: no details about whether money might have been stolen, just word that they'd seen fit to bring in the federal authorities.

The details, as they've come, have been embarrassing for the committee, which works to get Republicans elected to the House (which was already hurting in comparison to its Democratic counterpart before all this began).

According to The New York Times this morning, it all began to unravel when Rep. Mike Conaway (R-TX), a CPA, asked to meet with the audit firm that was supposedly checking the NRCC's books, an idea that apparently no one had had for several years. Christopher Ward, then the NRCC's treasurer, finally relented, but then chickened out 30 minutes before and fessed up that there actually hadn't been any audits.

It was ultimately discovered that Ward had been faking the audits since 2003. The Politico, which laid out this general outline of events early last month, reported that Ward had forged everything, including the letterhead. So when it came time to actually talk to the people who'd supposedly written those fake reports, it all unraveled.

The FBI is currently investigating, and it's not clear yet why Ward was so keen to hide the real numbers. But as the Times reports this morning, the signs are not good. NRCC internal audits since Ward's discovery show that "hundreds of thousands of dollars are missing and presumed stolen." And it gets worse: there are apparently indications that "the financial irregularities might extend beyond the national committee to the campaign funds of individual Republican lawmakers who also worked with Mr. Ward, a longtime party operative."

Ward had been with the NRCC since 1993 and worked for dozens of Republican campaign committees, political action committees, and other organizations. It'll be interesting to see what the FBI turns up.

Like a house of cards. From the AP:

A Swiss bank has dropped its lawsuit against Web site Wikileaks.org for posting sensitive customer data.

Lawyers for Bank Julius Baer filed court papers Wednesday in San Francisco that officially ended the case.


Remember that a judge initially went along with the bank's request to block access to the site, an order that was broadly criticized as unconstitutional. And when a bunch of journalism and civil liberties groups got involved, the judge threw up his hands.

It was a landmark ruling by any measure. On April 2, 2007, the Supreme Court ruled that the Environmental Protection Agency had the authority to regulate greenhouse gas emissions, and that it had to act. The justices made the choice clear: the agency had to determine whether greenhouse gases contribute to climate change or not. Environmental groups exulted that, after several years of stalling, the administration would finally be forced to do something.

Except that they didn't. Nearly a year after that ruling, which required the EPA to make a decision, the agency still hasn't. And with Administrator Stephen Johnson at the helm, there's no sign that it's going to happen anytime soon.

This is made all the more remarkable by the fact that Johnson, in blocking California's attempt to regulate greenhouse gases, has made it clear that the EPA considers them pollutants. As Georgetown Law professor Lisa Heinzerling, who wrote the lead brief in the Supreme Court case, Massachusetts v. EPA argues, "Johnson concluded that California's problems aren't "compelling and extraordinary" because they're no worse than the very bad problems the rest of the country faces as a result of climate change." That reasoning, she says, made explicit the EPA's view "that greenhouse gases endanger public health and welfare." That leaves Johnson with no choice, she writes.

But Johnson is a stubborn opponent. Yesterday, Sen. Dianne Feinstein (D-CA) asked Johnson a simple question during a Senate appropriations subcommittee hearing: How many staff at the EPA does he have working on this? Johnson, a Zen master of digression, mind numbing minutiae ("gobbledygook"), and generally thwarting questioners, never gives a simple answer. Here's the video:



After a digression covering Judge Antonin Scalia's minority opinion and all the other things that the EPA is considering ("I can go on and on"), Feinstein had had it.

"Let me ask you this... all right let me ask you this question. How many personnel right now are working on the endangerment finding?"

Read More →

If you're a staffer at the Environmental Protection Agency, you might have found yourself wondering what the point is. As EPA Administrator Stephen Johnson likes to put it, the final decision is his to make. And he has a history of disregarding the recommendations of EPA staff when he makes them.

Which makes this not very surprising:

Unionized EPA workers are withdrawing from a cooperation agreement with the political appointees who supervise them over controversies including the agency's refusal to let California regulate greenhouse gas emissions from cars and trucks.

Nineteen union local presidents representing more than 10,000 Environmental Protection Agency employees signed a letter to Administrator Stephen L. Johnson last Friday accusing him of "abuses of our good nature and trust."...

The union locals involved represent the vast majority of EPA workers around the country. Signers included William Evans, president of the EPA headquarters chapter of the National Treasury Employees Union.

Evans said that the purpose of the Clinton-era National Labor-Management Partnership Council was for senior agency officials and workers to deal with workplace and other issues before the decision stage.

Instead, "what we found is decisions are being made and they're being presented to us," said Evans.


You can read the letter from Public Employees for Environmental Responsibility here.

As you can see, the union senses a pattern in Johnson's leadership. Scientific standards get junked they say, "whenever political direction from other federal entities or private sector interests so direct." Johnson's denial of a waiver for California's greenhouse gas rules, of course, being a prime example.

We'll have a little bit more on Johnson in a bit.

This month, President Bush is expected to veto a Senate bill that would restrict the CIA to using interrogation techniques approved by the Army Field Manual. That would unequivocally outlaw waterboarding, the inducement of hypothermia, sensory deprivation, and other "enhanced interrogation" techniques that have been in the CIA's arsenal.

The veto is likely to survive an attempt by Senate to override because ever since 9/11, the administration and Republicans (including Sen. John McCain) have preferred to keep legal restraints on CIA interrogators loose.

But the FBI, which, unlike the CIA had ample experience with interrogation, took a different tack. During today's hearing before the Senate Judiciary Committee, Chairman Patrick Leahy (D-VT) asked FBI Director Robert Mueller why:

LEAHY: And you have a policy, as does the military, the military handbooks, not to use coercive techniques like waterboarding. Why do you have that policy?

MUELLER: There are a number of reasons that probably contributed to the development of that policy years ago. Generally, our questioning has been, in the past, done in the United States, and the results of our questioning often end up in a court. Whereas, you and other who have been prosecutors know the question of voluntariness is at issue for the admissibility of information you have.

And, consequentially, the policy was established, I would imagine, given our particular unique mission here and the operation under the Constitution, the applicable statutes and the attorney general guidelines.

It also is a result, I believe, of the analysis of our Behavioral Science Unit as to effective use of particular techniques where we believe that the rapport-building technique is particularly effective.


Mueller also acknowledged that the "rapport-building" approach apparently was quite successful with Saddam Hussein.

Remember that down in Guantanamo Bay, FBI and military interrogators (the "Clean Team") had to re-examine detainees because the techniques used by CIA interrogators meant that the testimony would not hold up in court. Not that the director of national intelligence has any doubt that "enhanced interrogation" techniques produce reliable information ("we can tell in minutes if they are lying"). I guess it's just a different way of doing things.

TPMLivewire