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Those who've already checked in at TPM today know what's going on.

The big change here at TPMm is that readers will now need to create a TPM account to comment. And the switch-over also unfortunately means that comments made to posts this morning were lost. Sorry about that.

As you'll eventually see in the right sidebar by the end of the day, the new setup allows us to promote muckraker-related posts by users at TPMCafe. Andrew explains that a bit more here.

Take 'er for a spin and let us know how it goes. Keep in mind, however, that things are sure to be rather bumpy for the next few hours.

After Michael Mukasey's genially hostile performance yesterday, maybe it's become apparent that genial hostility is the name of the game:

Senate Democrats plan to delay a floor vote on President Bush’s nominee for the No. 2 post at the Justice Department until the department responds to several Judiciary Committee oversight letters.

Majority Whip Richard J. Durbin , D-Ill., said Thursday that the nomination of Mark Filip for deputy attorney general will be “held on the floor” until the panel receives responses, adding that Democrats have notified the department of the demand.


Among the letters that have yet to be answered:

Leahy and Arlen Specter of Pennsylvania, the panel’s top Republican, also wrote to Mukasey and Director of National Intelligence Michael McConnell on Dec. 21 asking them to preserve any audio or video recordings of detainee interrogations. The two lawmakers asked Mukasey and McConnell to canvass the government for such recordings and report back to the committee.


Mukasey so far has proven a mildly superior correspondent to Alberto Gonzales. Which is to say that he occasionally answers a letter.

The Senate has been in a logjam on the new surveillance bill since last week, when Republicans prevented the Democrats' attempts to hold simple majority votes on a number of amendments (the Republicans want a 60-vote threshold).

And ever since both houses finally agreed to a fifteen-day extension to the Protect America Act on Tuesday, the two sides have gone underground for negotiations.

According to a source on the Hill, discussions have been progressing. Yesterday, Senate Majority Leader Harry Reid (D-NV) made an offer on how to proceed, to which Senate Minority Leader Mitch McConnell (R-KY) made a counteroffer.

Most of the details of those discussions are unknown. But, as might be expected, the Dodd/Feingold amendment, which would strip retroactive immunity for the telecoms that collaborated with the administration's warrantless wiretapping program, is at the center of the dispute. According to the source, McConnell's counteroffer included votes on seven of the proposed amendments (which seven is unknown -- there are a number of important amendments offered by a variety of lawmakers), but, crucially, Dodd/Feingold was not one of them.

In a letter to McConnell late yesterday, portions of which the source provided, Reid wrote McConnell, "That amendment – which Sen. Dodd has been talking about for months – goes to the heart of the FISA debate. It is ludicrous to think he should not be allowed to offer that amendment."

Again, the details of these offers (including the proposed vote thresholds) are unknown. And McConnell is clearly objecting to more than just Dodd's amendment. Reid's letter refers to "several" amendments missing from McConnell's counteroffer. So the two sides still have a ways to go. Discussions continue today. We'll keep you updated.

Though former president Bill Clinton accompanied Canadian mining financier Frank Giustra to Kazakhstan on Giustra's private jet, accompanied him to a meeting with that nation's repressive president, received a $31 million donation from Giustra for his charitable foundation and a pledge for $100 million to William J. Clinton Foundation, Clinton claims he did nothing to help Giustra ink a mining deal with the Kazakhstan president that is worth tens of millions of dollars. Clinton's spokesperson said there was "no discussion" of the deal when the two met with the Kazakhstan president. (New York Times)

President Bush acted swiftly after championing clean coal technology at the State of the Union address Monday. Within 24 hours, Secretary of Energy Samuel Bodmean decided to shelve the FutureGen project - "the cleanest fossil fuel powered plant in the world" - possibly because an Illinois site was chosen over one in Texas. Senator Durbin (D-IL) noted that “In 25 years on Capitol Hill, I have never witnessed such a cruel deception." (Think Progress)

Rep. John Conyers (D-MI) has requested that former Attorney General John Ashcroft testify at a hearing next month that will look into the hiring of former government officials as monitors in settlements between corporations and the government. Ashcroft recently received a contract worth between $28 million and $52 million to monitor a settlement involving Zimmer Holdings Inc. (New York Times

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When someone comes out with a book called The Commission: The Uncensored History of the 9/11 Investigation, you know it's not going to be a fawning portrait of the commission's thoroughness and objectivity. And indeed the book, by New York Times reporter Philip Shenon, has some revelations that are sure to challenge its reputation.

The book is being closely held until its release next month, but Max Holland, a D.C. area blogger and author, was somehow able to snag an advance audio copy at his local bookstore.

A lot of what has been "censored," it turns out, revolves around the commission's executive director Philip Zelikow. According to Holland, Shenon reports that Zelikow 1) hid the depth and breadth of his relationship to key members in the administration, 2) had a number of private conversations with Karl Rove (funny how he keeps popping up) while he was on the panel, and 3) succeeded in softening the final report's judgment on the Bush Administration's responsibility.

Star ABC muckraker and TPM alum Justin Rood confirmed Holland's account, and got Zelikow's response.

But on to the revelations. First, about what Zelikow failed to disclose. He was a former aide to Condoleezza Rice, and had a long relationship with her. That was well known. But:

According to Shenon, however, Zelikow failed to disclose several additional and egregious conflicts-of-interest, among them, the fact that he had been a member of Rice’s NSC transition team in 2000-01. In that capacity, Zelikow had been the “architect” responsible for demoting Richard Clarke and his counter-terrorism team within the NSC. As Shenon puts it, Zelikow “had laid the groundwork for much of went wrong at the White House in the weeks and months before September 11. Would he want people to know that?”


Zelikow denies this and says he recused himself from anything to do with the NSC transition. Update: Sorry for the lack of clarity here. Zelikow is not denying that he was on the transition team; that fact was reported by The Wall Street Journal as far back as 2003. He's denying that he hid that fact from the commission.

Second, about those phone calls. Shenon reports that not only did Zelikow frequently talk to Rove, but that he tried to hide it, even requesting that his secretary not take messages. Zelikow denies this, too, and tells Justin, "I never discussed the 9/11 Commission with him, not at all. Period."

And then there's Zelikow's influence on the final product:

Even after his recusal, Zelikow continued to insert himself into the work of “Team 3,” the task force responsible for the most politically-sensitive part of the investigation, counter-terrorism policy. This brief encompassed the White House, which meant investigating the conduct of Condoleeza Rice and Richard Clarke during the months prior to 9/11. Team 3 staffers would come to believe that Zelikow prevented them from submitting a report that would have depicted Rice’s performance as “amount[ing] to incompetence, or something not far from it.”


On this count, Zelikow has a glass half-full view of things:

Out of 85 staffers, half a dozen were disgruntled, Zelikow told ABC News. "Under the circumstances, that was a pretty low fraction," he said. "But they all talked to Shenon."

As I noted earlier, Mukasey indicated early in the hearing that the criminal investigation of the CIA's destroyed torture tapes may well explore whether the interrogation techniques shown on those tapes were legal. But as Mukasey made clear, that may or may not happen.

So Sen. Sheldon Whitehouse (D-RI) wanted to know, is the Department of Justice investigating whether the sorts of techniques used by CIA agents were torture? And if not, why not?

Well, they aren't. And as for the why not, he and Mukasey went round and round on the question for two rounds of questioning. Here's Whitehouse's second try:



In this and the other exchange it became apparent that there were two justifications for Mukasey's stance.

The first you might call the real reason. It's one he succinctly described earlier when he said "I [am not] going to call into question what people do or have done, when it's not necessary to do so."

The second rested on a legal argument that was seemingly less self-justifying -- but he had real trouble getting it to stand up under Whitehouse's questioning.

The main issue, he argued, was whether the proper "authorizations" were given.

Well, isn't Mukasey's emphasis on "authorizations" really the Nuremberg defense? Whitehouse wanted to know. "I had authorization and therefore I'm immune from prosecution?"

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Michael Mukasey is attorney general in large part due to Sen. Chuck Schumer's (D-NY) support. And in his questions today, Schumer started by commending a number of Mukasey's actions (restarting the OPR investigation into the warrantless wiretapping program, tapping a well-qualified prosecutor to investigate the CIA tapes' destruction), but then said that he was "disappointed" in Mukasey in other ways. And he tried his best to give Mukasey a hand and pull him out of the swamp.

His question was simple. You've said that waterboarding is "repugnant." So, if it is repugnant, don't you think that a ban of waterboarding is a good thing? Wouldn't you support that?

Mukasey didn't take Schumer's hand. He said he'd need to mull it over. Here's the video:



Schumer was unhappy. "You have already stated something to be repugnant... Why could something “repugnant” not be outlawed?"

"Senator, I don't want to trivialize the question," he replied, "but I'll refrain from naming all the other things that I find repugnant." Whether something is repugnant to him, he said, is not a good basis for whether it should be outlawed. "I want to analyze it as a policy matter." He said that he didn't want to put his own "personal tastes" into his office; he wanted to hear everything there was to hear about it from all his advisers. Before that time, he couldn't say.

"I have to tell you how profoundly in this particular situation I disagree with you," Schumer closed.

Update: Here's the transcript:

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Sen. Dick Durbin (D-IL) picked up where Sen. Joe Biden (D-DE) left off. Does the attorney general really think that it depends on the circumstances when you can waterboard somebody?

Here's the video:



Durbin pressed the point that the Senate had, on a broad bipartisan basis, prohibited "such practices with the McCain amendment" (the 2005 Detainee Treatment Act).

But the Senate had also "voted down a bill that would prohibit waterboarding," Mukasey replied.

"You still think that the jury is out on whether the Senate believes that waterboarding is torture?" Durbin wanted to know.

"The question... is whether the Senate has spoken clearly enough in the legislation that it has passed...."

"Where is the lack of clarity in the McCain legislation?"

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Michael Mukasey finally got into the nitty gritty of how he thinks about torture, and he seemed to finally show his hand.

Sen. Joe Biden (D-DE) said that he'd been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden -- the Jack Bauer scenario -- but not OK to waterboard someone for more pedestrian information?

Mukasey responded that it was "not simply a relative issue," but there "is a statute where it is a relative issue," he added, citing the Detainee Treatment Act. That law engages the "shocks the conscience" standard, he explained, and you have to "balance the value of doing something against the cost of doing it."



What does "cost" mean, Biden wanted to know.

Mukasey said that was the wrong word. "I mean the heinousness of doing it, the cruelty of doing it, balanced against the value.... balanced against the information you might get." Information "that couldn't be used to save lives," he explained, would be of less value.

Marty Lederman blogs: "What this reveals is that DOJ and Mukasey have concluded that waterboarding is categorically not torture, and is not 'cruel treatment' under Common Article 3 (even though it is, by Mukasey's own lights, "cruel" -- go figure)."

Biden responded, "You're the first I've ever heard to say what you just said.... It shocks my conscience a little bit."

Update: Here's the transcript:

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Here's the most fruitful of the responses about waterboarding that the senators were able to elicit from Mukasey so far.

Sen. Ted Kennedy (D-MA) had a long wind up before delivering his punch. After detailing how objectionable waterboarding was, how it was clearly torture, as clearly as robbing a bank is stealing, he came out with: "Would waterboarding be torture if done to you?"



"I would feel that it was," Mukasey replied. But then he devolved into his practiced take which he detailed in his letter last night. He can't just come out and say that waterboarding is clearly torture when done to anyone, he says, "because of the office that I have." It was a brief moment of clarity.

Update: Actually, Mukasey's responses to two other questions, detailed above, proved even more clear.

Update: Here's the transcript:

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