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Larry Craig’s poorly executed bathroom sex may be a case of first impression for the Senate Ethics Committee, but a recent ACLU brief notes that the Minnesota Supreme Court ruled 38 years ago that people who have sex in closed stalls in public restrooms “have a reasonable expectation of privacy.” The ACLU brief, filed on Craig’s behalf, asserts that "the government cannot prove beyond a reasonable doubt that Senator Craig was inviting the undercover officer to engage in anything other than sexual intimacy that would not have called attention to itself in a closed stall in the public restroom.” (Boston Globe)

Representative Ted Poe (R-TX) is furious that he and other lawmakers cannot get an answer from the Department of Justice (DOJ) regarding its handling of the case of the woman who says she was raped and sexually assaulted by KBR/Halliburton employees in the Green Zone. So far, DOJ has not filed any charges and has failed to prosecute a similar case in which the accused assailant confessed to physically harassing behavior. Democratic Senators Daniel Akaka (HI), Barack Obama (IL), and Jon Tester (MT) have joined Poe in demanding answers from Michael Mukasey. (ABC’s “The Blotter”)

Tomorrow a federal judge will hear arguments to decide whether Las Vegas casinos can be used as caucus sites in the Democratic primary in Nevada later this week. If permitted, the caucusing on the strip will undoubtedly boost the turnout of the Culinary Workers Union Local 226, which has endorsed Barack Obama. The Nevada State Teachers Union and other plaintiffs in the suit (who support Hillary Clinton) against caucuses on the strip, allege that the plan creates a “preferred a class of voters.” The suit has led to charges that the Clinton campaign is attempting to suppress the voter turnout. (Washington Post)

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We've heard CIA Director Michael Hayden's confusing and risible explanation for why the CIA's torture tapes were destroyed. And there have been a number of media accounts citing dozens of unanimous government officials that haven't managed to shed much light. But today's Washington Post provides about as clear of a narrative as we're likely to get on why the tapes were made, when they were made, and why they were destroyed.

Here's what they came up with: "the taping was conducted from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee's death." CIA officials have also said that videotapes of the interrogations would have been very useful for reviewing what the detainees had said.

And here's why they were destroyed, according to the Post. The Post broke news of the CIA's black sites in November of 2005. That made CIA officials even more nervous that "the agency could be publicly shamed and that those involved in waterboarding and other extreme interrogation techniques would be hauled before a grand jury or a congressional inquiry." At the same time, the station chief in Bangkok, who'd had the tapes in a safe in the U.S. Embassy compound there for three years, was retiring and "wanted to resolve the matter before he left." So he sent a cable to CIA headquarters asking if he could destroy them.

The rest we know. Then-operations chief Jose Rodriguez checked with two CIA lawyers who said that the agency was not required to preserve them. Since no one in the administration had directly forbidden the destruction of the tapes, he went ahead and gave the station chief the go-ahead.

And no one seemed to be very upset after the deed was done: "Word of the resulting destruction, one former official said, was greeted by widespread relief among clandestine officers, and Rodriguez was neither penalized nor reprimanded, publicly or privately, by then-CIA Director Porter J. Goss, according to two officials briefed on exchanges between the two men."

The Post also has more details on the Justice Department and White House discussions about the tapes:

The tapes were discussed with White House lawyers twice, according to a senior U.S. official. The first occasion was a meeting convened by Muller and senior lawyers of the White House and the Justice Department specifically to discuss their fate. The other discussion was described by one participant as "fleeting," when the existence of the tapes came up during a spring 2004 meeting to discuss the Abu Ghraib prison abuse scandal, the official said.


And can you tell who's missing in this tally?

Those known to have counseled against the tapes' destruction include John B. Bellinger III, while serving as the National Security Council's top legal adviser; Harriet E. Miers, while serving as the top White House counsel; George J. Tenet, while serving as CIA director; Muller, while serving as the CIA's general counsel; and John D. Negroponte, while serving as director of national intelligence.


If you said David Addington, Dick Cheney's chief of staff, you were right. Alberto Gonzales is another notable exception. Although The New York Times has reported that Addington, who's done so much to shape the administration's torture policy, took part in discussions about the tapes, he somehow didn't make the list here. The Times also cited a "former senior intelligence official" as saying that "there had been “vigorous sentiment” among some top White House officials to destroy the tapes." But the official wouldn't specify who that was. I think we might have our winners.

House Judiciary Committee Chair John Conyers (D-MI) thinks it's nice that the Justice Department has launched a criminal investigation of the CIA's destruction of its torture tapes, but it's not good enough. John Durham may be a tough, unimpeachable prosecutor, but he'll still be reporting up the chain to Attorney General Michael Mukasey.

Arguing that the Department has a "clear conflict of interest" because "high Administration officials" are necessarily implicated -- they approved the interrogation methods documented on the tapes and were involved in the discussions about whether to destroy them -- Conyers wrote Mukasey today to formally request that he appoint a special counsel. 18 Democratic members of the committee also signed on. Conyers has consistently called for a special prosecutor to be appointed.

The letter is posted in full below. A judiciary subcommittee will be holding a hearing to hear from experts on the subject this Thursday.

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We here at TPM get hundreds of emails each day, ranging from reader emails to press releases. And it took me a while to notice that on October 10th of last year, the Justice Department stopped sending us their releases. We had been on their list for well more than a year.

Now, my immediate impulse was not to expect the worst. But suspicion is natural to a muckraker. Last spring and summer, we published countless posts related to malfeasance at the Department (actually, I count 682 posts under our U.S. Attorneys tag), coverage which several mainstream outlets have acknowledged. Not only that, but I had done a story enumerating the false statements that Brian Roehrkasse, the Department's Director of Public Affairs, had made in the course of the U.S. attorney scandal. (Bud Cummins, one of the fired U.S. attorneys, subsequently published his own piece calling Roehrkasse a "willing liar.") Perhaps someone had derived a certain petty satisfaction by knocking us off the list.

So, because of that suspicion, and knowing the difficulty of extracting a response from the Department, I asked one of our TPM research hounds, Andrew Berger, to call their Office of Public Affairs every day until we got back on their distribution list -- or until we got an explanation. He started his mission last Monday. Finally, today, we got our answer, one that will strike TPMm readers as vintage Bush DoJ. They just don't have room for our email address on the distribution list:

Mr. Berger,

I appreciated your desire to be in tune with DOJ press releases, however, unfortunately I am not able to add you to our distribution list. As you may realize we have a lot of requests to be put on our media lists and we simply are not able to put everyone on the list. We do however have all our press releases on our website and update them the minute they are released so I would suggest looking there. You can also always call us with press inquiries. Thanks again for your interest.

Sincerely,

Jamie Hais Press Assistant Office of Public Affairs Department of Justice


For the record, this is the first time that any Congressional office or government agency has told us this.

We've since asked Ms. Hais for an explanation of the Department's criteria for inclusion. And we'll keep calling.

2012, 2020, forever. Whatever the terms hashed out between the administration and Nouri al-Maliki's government, the administration has said that they won't have to consult Congress to finish the deal.

As we reported back in November, that wouldn't be unusual, as these types of agreements (called Status of Forces Agreements) are typically handled solely by the executive branch. It's not a "formal" treaty, the kind the Constitution dictates must be ratified by two-thirds of the Senate. And White House war adviser Douglas Lute has made it clear that the negotiations "will lead to the status of a formal treaty."

But Congress is maneuvering to make sure that they get a say. Today, Rep. Rosa DeLauro (D-CT) will introduce the Iraq Strategic Agreement Review Act of 2008, which would require the administration to consult with Congress on the agreement and withhold funds for the agreement if it did not come in the form of a formal treaty. “We simply cannot allow the Administration to finalize an agreement that could lead to permanent bases in Iraq and other major economic and political commitments without Congressional consultations and approval," she says in a statement on the bill.

Last month, Sen. Hillary Clinton (D-NY) introduced a similar bill in the Senate, which would also withhold funds for any agreement that wasn't a formal treaty. Sen. Sheldon Whitehouse (D-RI) is as of now the sole co-sponsor. The bill was referred to the Senate foreign relations committee. It seems likely that Senate Republicans will put their vaunted obstruction powers to work on this one.

Update: Here's the text of the bill.

From The Los Angeles Times:

Congress asked the Justice Department to investigate whether former AL MVP Miguel Tejada lied to House committee staff when he was interviewed in 2005 in connection with the Rafael Palmeiro steroids case.

House Oversight and Government Committee chairman Henry Waxman opened today's hearing into the Mitchell Report about drug use in baseball by announcing that he and ranking minority member Tom Davis sent a letter to Attorney General Michael Mukasey today.


You can read the letter, which walks through the interview with Tejada, here (pdf).

It's a date. The last time they tangoed, they stepped on each others' toes. But the Senate Judiciary Committee will be hearing again from Attorney General Mukasey, for the first time after his narrow confirmation, on January 30th.

Things started out rough for Attorney General Michael Mukasey.

First he only managed confirmation by the skin of his teeth, because he refused to brand waterboarding as torture. Then he ticked everybody off when the Justice Department asked Congress to shut down their investigations of the CIA torture tapes' destruction until the DoJ finished up. And then there's the KBR rape case.

But Mukasey's a man with a big heart and big plans. Or something like that. Roll Call reports (sub. req.) that Mukasey "has shelved any animosity he might feel toward Democrats."

Among the signs of good will: occasionally consulting with members of Congress (with Alberto Gonzales as your predecessor, it's easy to impress). He's already reached out to a number, Roll Call reports, including Sen. Sheldon Whitehouse (D-RI), whose questions caused all that waterboarding-trouble, and Sen. Patrick Leahy (D-VT). A Justice Department aide is quoted saying "The new attorney general’s view is whether we’re going to agree or disagree on the merits, I want to have a good personal relationship with Pat Leahy.”

That will be put to the test when Mukasey appears before the Senate Judicary Committee at the end of this month (Update: the hearing has been scheduled for January 30th). Leahy has promised to grill Mukasey about the CIA tapes investigation and his views on waterboarding. And a Leahy aide tells Roll Call that the proof is in the pudding: “The relationship between the attorney general and the Judiciary Committee is still developing, and there are outstanding requests from the chairman and others for information and cooperation.”

And about House Judiciary Committee Chair John Conyers (D-MI)? He got a "courtesy call," before Mukasey was confirmed and though "they got along personally, Justice Department aides said, the House is particularly partisan." So it seems that the charm offensive won't be concentrating on the House.

The House intelligence committee had a choice: Hear what the CIA official who actually ordered the destruction of the torture tapes has to say -- inevitably compromising the ongoing criminal investigation? Or kick the can down the road.

The House intelligence committee will deal with this later:

Jose A. Rodriguez Jr., the former Central Intelligence Agency official who ordered the destruction of interrogation videotapes in 2005, will not be required to appear on Wednesday at a closed Congressional hearing on the matter but may be called to testify later, an official briefed on the inquiry said Monday.


The House's probe goes on, though, even without its star witness. The CIA's general counsel John Rizzo will testify tomorrow, the Times reports.

In response to investigations by the Justice Department, the CIA Inspector General, and Congress, the CIA has begun a search for more audio or videotapes of interrogations. Officials believe that the CIA does not have any more recordings that it made itself, but that it may have recordings made by other intelligence services. (Newsweek)

Congressional leaders and government watchdog groups are continuing to ask questions about no-bid contracts awarded by federal prosecutors to former Bush administration officials to monitor corporations as part of settlements in fraud and corruption cases. Questions about corporate monitors - who are paid by the companies they monitor - first arose when it was revealed recently that former attorney general John Ashcroft was awarded a no-bid contract worth over $25 million. (Washington Post)

The competition for former Rep. Roger Wicker's (R-MS) seat on the House Appropriations Committee is shaping up as a battle over the Republican Party's disposition towards earmarks. Former Majority Leader Dick Armey (R-TX) says that the appointment of Jeff Flake (R-AZ), who has been critical of the earmark process, would make a "major statement" that the Republican Party is serious about "ending wasteful earmarks and bringing transparency to the Appropriations Committee." (The Hill)

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