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What did John Ashcroft really know about the warrantless surveillance program?

According to FBI Director Robert Mueller's notes on the March 10, 2004 visit to Ashcroft's hospital room, Ashcroft told Andrew Card and Alberto Gonzales that "strict compartmentalization rules" by the White House prevented him from "obtaining the advice he needed" about the warrantless surveillance program. At first glance, I thought that meant that Ashcroft himself was prevented from knowing certain aspects of the program. Several commenters read it differently, and judged that Ashcroft was complaining that his key advisers were barred from information about the program that would inform Ashcroft about its legality. And today, the Washington Post backs them up, citing anonymous official sources.

This, however, seems like two sides of the same coin. If Ashcroft couldn't consult with senior legal advisers about Program X, the White House was essentially keeping Ashcroft -- and the Justice Department -- in the dark about the legal basis for the surveillance program, expecting him to simply bless the effort without asking too many questions. After all, Ashcroft's tenure showed a consistent deference to presidential prerogative -- most notably, when he warned the Senate about the Patriot Act that "those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists." If Ashcroft couldn't vet the program with his legal advisers, it's an open question about what he really "knew" about its legality. Sure enough, as soon as the program was opened to Ashcroft's deputy, Jim Comey, a longtime U.S. attorney and Justice official, Comey saw a program riddled with legal problems.

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There's no shortage of intrigue over the Bush administration's warrantless surveillance efforts contained in FBI Director Robert Mueller's just-released notes on the March 10, 2004 tussle in John Ashcroft's hospital room between Alberto Gonzales, Andy Card and Jim Comey.

First thing to note. Mueller testified on July 26, contra Gonzales, that the legal dispute between Gonzales and Acting Attorney General Jim Comey that prompted the rush to Ashcroft's hospital room had to do with the program now known as the Terrorist Surveillance Program. (Gonzales insisted on July 24, as he had in testimony last year, that Comey objected to "other intelligence activities," not the TSP.) The surveillance program known as the TSP was but one component of a constellation of surveillance activities, even though Comey and others at the time of the March 2004 controversy considered the whole effort -- authorized under a single 2001 executive order -- to be a unitary enterprise. Now notice that all throughout Mueller's memo, he refers to "program" -- singular.

Secondly, the only non-redacted portion of the notes concerns the Ashcroft hospital visit, which takes up only a scant four paragraphs. Ashcroft -- who, contrary to Gonzales' portrayal, is described in Mueller's notes as "feeble, barely articulate, clearly stressed" -- isn't talking about what happened during the visit. But Mueller reveals something intriguing. According to the FBI director, Ashcroft tells Card and Gonzales that "he was barred from obtaining the advice he needed on the program" -- again, note program, singular -- "by the strict compartmentalization rules of the [White House.]" Now that's cronyism! For the first time, there's the suggestion that even John Ashcroft -- the attorney general of the United States and by all accounts a loyal Bushie -- didn't know all there was to know about the warrantless surveillance efforts. Apparently, Ashcroft wasn't considered trustworthy enough to be kept in the loop on the most legally controversial program of them all -- though his counterpart at the White House, and eventual successor, clearly was.

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Who would have guessed the company that recently swept Ben Stevens off to sea amidst his -- and his father's -- compounding legal woes also happens to be a major federal contractor? Roll Call did.

The younger Stevens took a job aboard a Bering Marine Corp. vessel in hopes of raising some cash to cover his mounting legal expenses. Apparently the consulting fees he earned over the years-- $775,000 from various seafood companies and $240,000 from Veco -- are running out.

Bering Marine is a subsidiary of transportation company Lynden.

Lynden CEO Jim Jansen has had long-standing ties to Ben Stevens. According to Opensecrets.org, Lynden paid Stevens $10,000 to work as a federal lobbyist in 1997.

Additionally, Jansen and Ben Stevens both served on the board of directors of the Alaska Fisheries Marketing Board, a nonprofit organization created by Ted Stevens to funnel millions in federal dollars to the state’s fishing industry. The FBI and IRS are investigating both Stevens and the members of the AFMB’s board of directors as part of the widening federal probe.

Over the past several years, Lynden companies have secured scores of federal contracts, according to federal records compiled by FedSpending.org. Since 2000, the various companies connected to Lynden and the Jansen family have received at least $312 million in federal funding, much of it coming through contracts with the Department of Defense.


Still no word on when Stevens will be back on land.

During his testimony before the House Judiciary Committee last month, FBI Director Robert Mueller revealed that he had kept notes of the infamous encounter between James Comey and Alberto Gonzales over John Ashcroft's hospital bed. Mueller had taken the notes, he said, because the situation was "out of the ordinary."

Well, here they are. They were turned over to the Committee earlier this week and released by Chairman John Conyers (D-MI) today. We'll have analysis of what they tell us in a moment.

Update: Here's Conyers' statement:

“Director Mueller’s notes and recollections concerning the White House visit to the Attorney General’s hospital bed confirm an attempt to goad a sick and heavily medicated Ashcroft to approve the warrantless surveillance program. Particularly disconcerting is the new revelation that the White House sought Mr. Ashcroft’s authorization for the surveillance program, yet refused to let him seek the advice he needed on the program.

“Unfortunately, this heavily redacted document raises far more questions than it answers. We intend to fully investigate this incident and the underlying subject matter that evoked such widespread distress within the Department and the FBI. We will be seeking an unredacted copy of Director Mueller’s notes covering meetings before and after the hospital visit and expect to receive information from several of the individuals mentioned in the document.”

Whatever happened to John Rizzo, the longtime CIA lawyer nominated to become chief CIA counsel? Rizzo, who vetted CIA interrogation guidelines as an agency attorney, got through a contentious June nomination hearing largely by equivocating on whether any detainee in CIA custody was tortured. But his nomination never received a vote from the Senate intelligence committee. And now it's clear why: Ron Wyden (D-OR) is blocking Rizzo from moving through the process.

“I’m going to keep the hold until the detention and interrogation program is on firm footing, both in terms of effectiveness and legality,” said Senator Ron Wyden of Oregon. Mr. Wyden said he was troubled that John Rizzo, who is the Central Intelligence Agency’s interim general counsel, did not object to a 2002 memo authorizing interrogation techniques that stop just short of inflicting pain equal to that accompanying organ failure or even death. Mr. Wyden also said he was concerned that an executive order issued last month by Mr. Bush did not clarify legal guidelines regarding detentions and interrogations.


Rizzo said at his confirmation hearing that, even in retrospect, he didn't regret assenting to the Justice Department's infamous "torture memo." (An embarrassed DOJ repudiated the memo in 2004.) It's hard to see how the CIA can salvage this nomination. That would make Rizzo, at the time the agency's acting head lawyer, the only administration official involved with crafting interrogations policy to have his career suffer as a result.

Well, not so bad apparently. Ex-Rep. Bob Ney's (R-OH) former chief of staff Will Heaton was sentenced to two years of probation today for his involvement with Ney and Jack Abramoff.

Apparently the judge was mollified by Heaton's extensive cooperation with investigators -- wearing a wire for conversations with Ney and even passing on documents from Ney's office.

Heaton's youth (he's still a ripe 29) was also a factor. As prosecutors wrote in a recent court filing, Heaton was tapped to be Ney's chief of staff at 24 exactly because he was young and unqualified. "Ney intentionally hired and quickly promoted young, inexperienced staffers - who did not receive any formal ethics training from Congress - so that the staffers would have neither the knowledge nor the maturity to question Ney's conduct," prosecutors wrote. And he kept all those young staffers in line by making sure they knew that if they stepped out of line, they'd be cut off from all the lobbyist freebies.

Most of the major cooperators in the Abramoff investigation (such as Ney's prior chief of staff Neil Volz) have yet to be sentenced, as they continue to cooperate with investigators.

In a letter today, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) asked the Justice Department's inspector general to probe whether Alberto Gonzales has made false or misleading statements. The IG, Glenn Fine, a former prosecutor who's respected by Democrats and Republicans alike, is already engaged in a joint probe with the Department's Office of Professional Responsibility of the U.S. attorney firings and general politicization at the DoJ.

The inspector general has the power to refer matters for a criminal investigation, but Leahy doesn't want him to stop there:

I ask that you review the Attorney General’s testimony and compare it with other testimony and evidence to determine whether his testimony was in any instances intentionally false, misleading, or inappropriate. Consistent with your jurisdiction, please do not limit your inquiry to whether or not the Attorney General has committed any criminal violations. Rather, I ask that you look into whether the Attorney General, in the course of his testimony, engaged in any misconduct, engaged in conduct inappropriate for a cabinet officer and the nation’s chief law enforcement officer, or violated any duty – including the duty set out in federal regulations for government officials to avoid any conduct which gives the appearance of a violation of law or of ethical standard, regardless of whether there is an actual violation of law.


Perjury can be a high bar for prosecutors to reach -- but so too should there be a high standard for the conduct of the attorney general. Leahy's request leaves room for Fine to find that Gonzales statements aren't quite criminal, but that he's shamed the department by being such a shifty and unreliable witness. Such a finding, Democrats can hope, might provide the knockout blow.

We'll have more on Gonzales' trouble with the truth in a little bit.

The letter is below.

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Will Heaton, former aide to Rep. Bob Ney (R-OH), is set to be sentenced today. As we noted last week, Heaton wore a wire to a meeting with Ney that helped the federal government build a case against the incarcerated former lawmaker.

The owner of a recently collapsed Utah mine has a history of skirting safety regulations by leveraging his political contacts. In 2003, the owner met with the district manager for the Mine Safety and Health Administration who was ordering the mine be shut down for repairs. After threatening to have the district manager fired, the owner said, "Mitch McConnell calls me one of the five finest men in America, and last time I checked he was sleeping with your boss," a reference to the fact that McConnell's wife is the Secretary of Labor. (Huffington Post)

Mississippi residents have brought in a huge amount of federal aid targeted for Katrina victims, largely in part because of the political connections of their governor and former RNC chairman Haley Barbour. But the ones who have benefited most from Barbour's legal pilfering? His family members, who have brought in hundreds of thousands of dollars in Katrina-related business fundings. (Bloomberg)

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The Justice Department argued yesterday before a three-judge panel of the 9th Circuit Court of Appeals in San Francisco that two class-action lawsuits involving warrantless surveillance needed to be thrown out of court for potentially exposing state secrets. And it practically got laughed out of court.

The two cases, Hepting v. AT&T and al-Haramain v. Bush, both center on aspects of the secret surveillance effort run by the National Security Agency after September 11, 2001. In the former case, an ex-AT&T employee claims that the company illegally provided the government with access to a panoply of subscriber information through a system of communications hubs along the west coast. The latter case involves an al-Qaeda-linked charity that claims to have evidence that it was the target of illegal surveillance.

The Justice Department claims that neither case can go forward without compromising crucial intelligence-gathering materials, and asked the judges to dismiss them. Deputy Solicitor General Gregory G. Garre and DOJ lawyer Thomas M. Bondy didn't find them particularly sympathetic.

"This seems to put us in the 'trust us' category," Judge M. Margaret McKeown said about the government's assertions that its surveillance activities did not violate the law. " 'We don't do it. Trust us. And don't ask us about it.' "

At one point, Garre argued that courts are not the right forum for complaints about government surveillance, and that "other avenues" are available. "What is that? Impeachment?" Pregerson shot back.

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The FBI wants to know why oil services company Veco Corp. won federal contracts worth $170 million to provide the National Science Foundation with polar and arctic research support, despite having no experience in the field, the Anchorage Daily News reports.

Veco won the federal awards right around the time CEO Bill Allen oversaw the remodeling of Stevens' Girdwood home, another field in which Veco had no prior experience.

Stevens, who has long supported NSF arctic research, would have had authority over NSF funding as a senior member of the Senate Commerce Committee, though no evidence has surfaced holding Stevens responsible for directly securing the contracts for Veco.

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