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The Senate finally got around to yet another of the amendments to the surveillance bill. This one was sponsored by Sens. Russ Feingold (D-WI) and Chris Dodd (D-CT) and the ACLU provides this description:

A critical flaw of [the Senate intelligence committee bill] is that there is simply no prior court review of any kind of the government’s expanded surveillance. This is only exacerbated by the fact that the little court review there is – which is limited to review of guidelines after surveillance has begun – appears to not be accompanied by the explicit authority to modify surveillance procedures already under way. This amendment allows the FISA court to amend surveillance programs if it finds them to be contrary to the requirements of this bill or the Fourth Amendment, and to limit the use of illegally collected information.


The amendment was defeated 40-56, with Sens. Jay Rockefeller (D-WI), Daniel Inouye (D-HI), Tim Johnson (D-ND), Even Bayh (D-IN), Tom Carper (D-DE), and Mary Landruei (D-LA) joined the nays. Here's the roll call.

There will be at least one more vote this evening and in just a few minutes. This one is another amendment by Russ Feingold, one that would prevent "reverse targeting" -- that is, as Feingold describes it, "a practice by which the government gets around FISA’s court order requirements by wiretapping an individual overseas when it is really interested in a person in the U.S. with whom that supposed foreign target is communicating." The amendment requires the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American in the U.S.

Update: That second bill went down 38-57, also with a large number of Dems crossing over, Sens. Dianne Feinstein (D-CA), Inouye, Johnson, Landrieu, Blanche Lincoln (D-AR), Mark Pryor (D-AR), Rockefeller, and Ken Salazar (D-CO) among them.

Rep. Hank Johnson (D-GA) put the question to Attorney General Michael Mukasey: TPMmuckraker was knocked off the Justice Department's email distribution list and has been told that they can't be put back on; has there been a change in the Justice Department's policy since he became attorney general?

The "short answer," Mukasey replied, is "I'm not aware with how the distribution of press releases is arrived at. I do know that all the press releases should be on our website. So they should be generally available." Translation: we can go fly a kite.

Johnson followed up, asking if Muksaey was the one who'd made the decision. No, he said. He hadn't been aware of the issue until "it was called to my attention in a letter from the chairman." But, of course, he came prepared with his talking point.

Here's video:



A quibble: all emails sent via the Department's Office of Public Affairs are not available on the Department's website. There are a number of documents, such as the attorney general's prepared written testimony for hearings or transcripts of background briefings, which are only provided via email.

Since we were told that "[the Department's Office of Public Affairs] simply [is] not able to put everyone on the list," we haven't been able to get any further explanation, even after Chairman Conyers' letter asking about the issue. If the Department wants to explain on their website, that would be fine too. But a response of some kind would be appreciated.

Update: Well, I guess it was just a matter of time before this rose to the level of a "-gate." And The Politico is first with Muckrackergate.

Rep. Bill Delahunt (D-MA) wanted some clarity during his questioning. Was the attorney general really saying that anyone who acted pursuant to a Justice Department legal opinion was "insulated from criminal liability?"

Mukasey wanted to say it more carefully. "I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion."

But even if that opinion was "inaccurate," Delahunt wondered, and that behavior really did violate the U.S. criminal code, you're saying that someone who relied on it would effectively have "immunity from any culpability?"

"Justified reliance," Mukasey answered, "could not be the subject of a prosecution." Simple as that. "Immunity connotes culpability,” he added, so it wasn't immunity, exactly, but the effect was the same.

Delahunt (much like Sen. Joe Biden (D-DE) in the last hearing) proclaimed himself baffled. This was a "new legal doctrine" for him. He'd thought "the law is the law." What if there was a mistake? he wanted to know. What happened then?

That made no difference, Mukasey said. If a later legal opinion came to a different conclusion about whether something was lawful, the person who relied on the earlier, erroneous interpretation was still protected.

Delahunt, still baffled, wanted to know if there was a "legal precedent" for this view of the Office of Legal Counsel's power.

Mukasey replied that it was a "practical consideration."

When Delahunt asked again, Mukasey admitted, "I can't sit here and cite a case."

Update: As I said earlier, it's worth recalling former OLC chief Jack Goldsmith's comments that the OLC has the power to dispense "advance pardons."

It's not even a close call, says Rep. Lamar Smith (R-TX). If you've got a terrorist, and he has information that could save thousands of Americans lives, waterboarding is a no-brainer: "99% of the American people" would support such a technique, he said. I guess that weak-kneed 1% would be the Democrats in Congress.

Smith began by saying, "I just want to express the personal opinion that I hope the administration will not be defensive about using some admittedly harsh but nonlethal interrogation techniques, even techniques that might lead someone to believe they're being drowned even if they're not."

Not content with his own take on American public opinion, Smith wanted Mukasey's opinion. Wouldn't you agree, he wanted to know, that 99% of the American people would endorse such techniques if they were used on a "known terrorist" with a "high expectation" that such information could save thousands of American lives?

Mukasey demurred. "I can't sit here and say what I think 99 percent of people would do." He began "I have, kind of, an instinct, but...:" before Smith went on, satisfied that his point had been made.

Of course, Smith could have relied on an actual poll of American public opinion, rather than his own instinct. Like, say, this CNN poll from late last year, where two-thirds of respondents said that waterboarding is torture and 58 percent said that the government shouldn't be allowed to use the technique. But that would have been much less gratifying.

A transcript of the exchange is below.

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The Justice Department will not investigate whether CIA agents engaged in torture by waterboarding detainees, Attorney General Michael Mukasey said earlier.

Ditto goes for the administration's warrantless wiretapping program, Mukasey added later, when asked by Rep. Jerrold Nadler (D-NY) whether he would appoint a special counsel to investigate.

The question came after Mukasey had baldly asserted that it was not a "practical view" that the president could order someone to act outside the law. Nadler wanted to know if the president hadn't done just that with his warrantless wiretapping program, which had ignored the constraints of FISA.

Well, Mukasey said, the President had ordered that on the advice of the Justice Department that it was lawful. So, just as he will not initiate an investigation of waterboarding since the DoJ had given its OK, he will also not investigate whether the warrantless wiretapping was lawful, since it was legal, because the DoJ said it was ("there are views on both sides of that" he acknowledged).

Mukasey also went back to correct his statement during last week's hearing that he "didn't know" if the President had ordered the warrantless wiretapping outside the law. Silly me, he said, of course it was legal -- it was authorized by the DoJ.

Update: Here's the video:



Now you know why Jack Goldsmith, the former chief of the DoJ's Office of Legal Counsel, said that OLC has the power to issue “free get-out-of jail cards,” or "advance pardons" with its opinions.

Update: Here's the transcript:

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Well, not that there was much mystery about it, but Attorney General Michael Mukasey immediately put any ambiguity to rest when he began his testimony before the House Judiciary Committee this morning.

Chairman John Conyers (D-MI) put it to him: since administration officials have disclosed that CIA agents waterboarded three detainees, "are you ready to start a criminal investigation?"

"No, I am not," was the direct answer.

His reasoning was a repeat of his answer to Sen. Sheldon Whitehouse (D-RI) last week. The CIA waterboarded those detainees with the authorization of a Justice Department legal opinion from the Office of Legal Counsel. So the Justice Department "cannot possibly" investigate, he said, U.S. employees for an act they committed on the basis of Justice Department advice. Such an action, he explained, would send a message that interrogators could no longer safely rely on that advice going forward.

Update: Here's video:



Mukasey also refused Conyers' request to see the OLC opinions that authorized waterboarding, because they discussed techniques of what remains a "classified program." Conyers protested that every member of the committee was cleared to see top secret material, but Mukasey was unmoved, though offered to continue "ongoing discussions" with the committee -- discussions of which Conyers seemed to be unaware.

Update: A transcript of the exchange is below.

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From The New York Times:

At the time that the Central Intelligence Agency destroyed videotapes of the interrogations of operatives of Al Qaeda, a federal judge was still seeking information from Bush administration lawyers about the interrogation of one of those operatives, Abu Zubaydah, according to court documents made public on Wednesday.

The court documents, filed in the case of Zacarias Moussaoui, appear to contradict a statement last December by Gen. Michael V. Hayden, the C.I.A. director, that when the tapes were destroyed in November 2005 they had no relevance to any court proceeding, including Mr. Moussaoui’s criminal trial.


Whether this will result in any ramifications is unclear. One of the difficult things about the issue of whether the concealment of the tapes and then their destruction violated any court orders is that judges didn't know that they existed and so couldn't ask for them. So far, government lawyers have successfully run the gauntlet, but it's not over yet.

Rep. William Jefferson's (D-LA) case seems on track to be the most litigated criminal case in Congressional corruption history, it seems. From The Times-Picayune:

A federal judge Wednesday refused to dismiss bribery charges against Rep. William Jefferson, D-New Orleans, rejecting arguments that grand jury testimony had improperly involved "speech and debate" issues protected by the Consitution.

The decision could delay the scheduled Feb. 25 start of the trial if Jefferson chooses to appeal the ruling to the 4th U.S. Circuit Court of Appeals. A ruling there also could be appealed to the U.S. Supreme Court.

In an interview with the Associated Press, Rear Adm. Mark Buzby confirmed that the U.S. Naval base in Guantanamo houses a secret prison set apart from the detention center already known to the public. Camp 7 houses 15 "high value detainees" who, according to the military, need to be segregated from other prisoners in order to prevent them "from retaliating against long-term detainees who have talked to interrogators." (AP)

In light of allegations that a former treasurer for the National Republican Congressional Committee, Christopher Ward, engaged in "financial irregularities" while doing work for the committee, four GOP Congressional campaigns have cut ties (sub. req.) with the consultant. Ward had been the treasurer for each of the campaigns. Meanwhile, yesterday House Minority Whip Roy Blunt (R-MO) sought to downplay the scandal, saying that it will be "a very short-term distraction." (Roll Call, The Politico)

Lawyers for Majid Khan, the former suburban Baltimore high school student, U.S. resident, and current Guantanamo Bay detainee (since 2003), have amassed more than 500 pages of top-secret notes taken from visits with Khan at Guantanamo. The attorneys assert that this material includes evidence that their client was subjected to "systematic torture" in secret CIA prisons that was videotaped. The Senate Intelligence Committee will review this evidence in a closed session on Friday. (Time)

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If it's seemed to you that the administration has blundered its way into its recent pro-waterboarding PR offensive, you're right.

It all started, Newsweek reports, when John Negroponte blurted out in an interview that "waterboarding hasn't been used in years":

Negroponte's comments, which were seen as confirmation that waterboarding had in fact been used before that, were not cleared beforehand and caught White House officials off guard, according to [a] senior administration official. "It was an accidental disclosure," said the official. It also forced a reassessment of whether the administration should at least publicly confirm Negroponte's remarks, if only to reap whatever public-relations benefit could be derived from the slip.


That's right: the "public-relations benefit." You might think that admitting to a technique internationally condemned as torture would have no PR pluses. But not from the administration's point of view. Negroponte's comments came right before Attorney General Michael Mukasey's scheduled appearance before the Senate Judiciary Committee, and the thinking, apparently, was that now Mukasey could state publicly that waterboarding is not a currently authorized technique (although it might be deemed necessary and legal in certain "circumstances," but let's not focus on that). That should help satisfy all those petulant Democrats and human rights activists, right?

For some reason, it seems to be having the opposite effect. Sen. Dick Durbin (D-IL) has called for a criminal investigation based on the disclosure that waterboarding occurred. And human rights activists have finally gotten the break they've been waiting for. From The Washington Post:

Tom Malinowski, Washington advocacy director for Human Rights Watch, said the Bush administration's admissions about waterboarding mark an important milestone. "It's not an abstract debate anymore," Malinowski said. "They've acknowledged that they've waterboarded people, and virtually every legal authority in the United States believes that waterboarding is torture and a crime."


Note: Newsweek also sheds light on those supposedly unique circumstances that led to the waterboarding of the three detainees in 2002 and 2003:

A former senior intelligence official who was working for the government at the time said intelligence officials were petrified that terrorists had smuggled a nuclear weapon into the United States and were planning to blow up New York City. The scenario was like a real-life episode of "24," the official said. Ultimately, the nuclear threat proved bogus.

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