TPM News

It all depends on what your definition of "exclusive" is.

At the heart of the debate over warrantless wiretapping is whether FISA, by its own terms, is the exclusive means for the government to undertake electronic surveillance in counterespionage and counterterrorism cases.

The plain language of the FISA statute seems clear, stating that FISA is the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."

But nothing is ever that simple with the Bush Administration.

This week Sens. Sheldon Whitehouse (D-RI) and Dianne Feinstein (D-CA) released a declassified sentence from one of John Yoo's notorious memos, written while he was serving in the Justice Department's Office of Legal Counsel. In it, Yoo managed to rationalize away the exclusivity provision of FISA in order to justify a warrantless wiretapping program outside of the FISA framework, without judicial oversight or regular reports to Congress:

"Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."

Poof! Just like that, exclusivity disappeared and the Bush Administration was free to pursue warrantless wiretaping with the official blessing of the OLC. (Former OLC attorney Jack Goldsmith has described his office's memos as "advance pardons").

The Bush Administration says it no longer relies on the Yoo memo as the legal underpinning for warrantless wiretapping, pointing instead to perhaps an even weaker rationale, the post-9/11 AUMF:

The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.

When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.

Exclusivity remains a key sticking point in passage of a new FISA law. Democrats are demanding language that erases whatever doubt there might be (although in fact there is none). The White House is balking.

Former U.S. Attorney David Iglesias, fired by the Bush administration under suspect circumstances, speaks out in an interview with this Sunday's edition of the New York Times Magazine. Iglesias, now calling himself a "disillusioned Republican," ruminates on Karl Rove's role in his firing, being jilted by the administration following his dismissal and how he plans on voting in November. (Editor and Publisher)

On the same day House Judiciary Committee Chairman John Conyers issued former Bush-adviser Karl Rove with a subpoena for his role in the firing of U.S. attorneys and the prosecution of former Alabama Gov. Don Siegelman (D), lawyers for Siegelman appealed his 2006-conviction for bribery. Siegelman claims the alleged bribes were contributions he asked for on behalf of the Alabama Education Lottery Foundation, and the sentence he received was overly harsh because he went public with suspicions that Republicans were responsible for his prosecution. (Associated Press)

A Pentagon audit has found $8.2 billion of taxpayer funds lost through contracts the U.S. Army has with contractors since the payments rarely followed federal rules. The absence of accountability in Iraq allowed contractors to receive massive payouts from the U.S. despite little or no record of results on the ground. (New York Times)

Read More →

At the same time that the House Judiciary Committee voted to issue a subpoena to former presidential adviser Karl Rove today, it released a May 5 letter from the Justice Department's Office of Professional Responsibility to committee Chairman John Conyers (D-MI) disclosing that the OPR is investigating "allegations of selective prosecution relating to the prosecutions of Don Siegelman, Georgia Thompson, and Oliver Diaz and Paul Minor."

Most reader are already familiar with the Siegelman case. Georgia Thompson, you'll recall, was the Wisconsin state employee whose federal corruption conviction, obtained by Milwaukee-based U.S. Attorney Steven Biskupic, was considered so flawed that it was thrown out by the appeals court immediately after oral arguments.

Diaz and Minor may be less familiar to TPMmuckraker readers. Diaz is a former Mississippi State Supreme Court justice, and Minor is a Mississippi attorney. Their prosecutions by U.S. Attorney Dunn Lampton have been under scrutiny by the House Judiciary Committee as well:

Diaz and his ex-wife, Jennifer, were indicted in 2003 along with prominent Gulf Coast attorney Paul Minor and two former lower court judges on federal bribery allegations. Oliver Diaz was eventually cleared of all charges. The others were not.

Separately OPR is conducting a joint investigation of the U.S. attorney firings with the DOJ inspector general.

So much for all those negotiations:

The subpoena issued Thursday orders Rove to testify before the House panel on July 10. He is expected to face questions about the White House's role in firing nine U.S. attorneys in 2006 and the prosecution of former Gov. Don Siegelman of Alabama, a Democrat.

House Judiciary Chairman John Conyers had negotiated with Rove's attorneys for more than a year over whether the former top political adviser to President Bush would testify voluntarily.

Will Chairman John Conyers (D-MI) do some ass-kicking (his words) now?

Late Update: Rep. Conyers released a statement following the vote to issue the subpoena:

"It is unfortunate that Mr. Rove has failed to cooperate with our requests," Conyers said. "Although he does not seem the least bit hesitant to discuss these very issues weekly on cable television and in the print news media, Mr. Rove and his attorney have apparently concluded that a public hearing room would not be appropriate. Unfortunately, I have no choice today but to compel his testimony on these very important matters."

Later Update: Conyers released the latest correspondence between Rove's attorney, Robert Luskin, and the committee, part of a lengthy back-and-forth between the parties. Apparently the subpoena was issued today after Luskin told the committee in a letter yesterday that Rove would not voluntarily testify, essentially ending the negotiations.

Still Later Update: Here's is the cover letter that Cnyers sent Luskin along with the subpoena.

Greg Sargent at TPM Election Central reports on the return of former U.S. Attorney and Karl Rove aide Tim Griffin to oppo research.

As I wrote on the main blog, TPM, especially TPMmuckraker, has a long history with Griffin. His return to doing oppo research for the RNC brings his story full circle.

For newer readers, here's our Tim Griffin reporting over the last 18 months or so. For you regulars, it's a trip down muck memory lane.

An unnamed FBI agent has come forth to report the exhaustive interrogation tactics used against Australian detainee Mamdouh Habib at Guantanamo Bay. The agent told investigators Habib was probed in two 15-hour sessions with little reprieve in between. Besides vomiting repeatedly from the stress of the tactics, Habib has claimed a female interrogator splashed him with what he believed was menstrual blood. (The Age)

After the Washington Post's four-part series on illegal immigrant detainees and the medical care they receive in Gitmo-like U.S. prisons, members of Congress are demanding answers from Dept. of Homeland Security officials, including Secretary Michael Chertoff, regarding the sub-standard care being provided. Top Senate leaders will question Chertoff and others today on the reports of negligence and detainee deaths while in the prisons. (Washington Post)

An investigation team led by Sen. Chuck Grassley (R-IA) is seeking answers to how a federal database that records Medicaid spending by the government was changed through improper channels. The main concern is whether the matter, which could include tens of billions of dollars, was a significant processing error or evidence of a larger payout impropriety to states and drug companies. (Politico)

Read More →

The Washington Post digs deeper into that Justice Department Inspector General's report on the FBI role in detainee interrogations, specifically the contentious high-level Administration disputes over torture:

Two major policy splits are highlighted in the report's account of the long to-and-fro over the tactics. One reflected a clash of cultures between the experienced interrogators at the FBI who were looking to prosecute terrorism crimes, and military and CIA officials who were seeking rapid information about al-Qaeda and were willing to push legal boundaries to do it. The report shows that FBI agents appeared more concerned about the long view, while others wanted detainees to break immediately in the panicked days after Sept. 11, 2001.

The IG report reveals that the FBI was so concerned about the techniques being used that agents began collecting allegations of abuse and placing them in a "war crimes file." Although, as we've previously noted, the FBI ultimately took a hands-off approach to torture, and the file was soon closed with no action taken.

The usual characters -- Addington, Yoo, Ashcroft -- played a role, but the report reveals some new players, mid-level officials who opposed the torture regimen:

Bruce C. Swartz, a criminal division deputy in charge of international issues, repeatedly questioned the effectiveness of harsh interrogation tactics at White House meetings of a special group formed to decide detainee matters, with representatives present from the Pentagon, the State Department and the CIA. ...

Besides Swartz, the others depicted as raising sustained objections are then-FBI assistant general counsel Marion "Spike" Bowman, who documented his concerns in written reports, and Pasquale D'Amuro, then the bureau's assistant director for counterterrorism. Michael Chertoff, who was then assistant attorney general in charge of the criminal division, raised concerns in November 2002 about the effectiveness of the military's methods, although he said later he did not recall hearing assertions that they were illegal.

But with the pressure for harsh interrogation tactics coming from the very highest levels of government, the objections of mid-level officials were barely speed bumps on the road to torture as official U.S. policy.

From the AP:

A Senate panel voted narrowly Wednesday to overturn EPA's decision blocking California and more than a dozen other states from limiting greenhouse gas emissions from vehicles.

The bill by California Democrat Barbara Boxer passed the Environment and Public Works committee 10 to 9, sending it to the full Senate.

One committee Democrat, Sen. Tom Carper of Delaware, broke with others on his side of the aisle and voted "no." A Republican, John Warner of Virginia, voted "yes," allowing the bill to pass.

In December, Environmental Protection Agency Administrator Stephen Johnson turned down California's request for a Clean Air Act waiver that would have allowed the state to require automakers to cut global warming emissions by 30% in new cars and light trucks by 2016.

Boxer's bill would deem the waiver approved.