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It's a mighty fine line to walk. Sen. John McCain (R-AZ) opposes torture. But when the Senate held a vote yesterday that would effectively prevent the CIA from employing torture by restricting interrogation techniques to those under the Army Field Manual, he voted against it.

You can read his extended explanation of that vote below. But here's what it comes down to. The bill yesterday would have restricted the CIA to the Army's rules for interrogating detainees. McCain believes that the CIA should have a freer hand. That includes the use of "enhanced interrogation" techniques.

Now, the Justice Department and the CIA haven't said exactly what those are. But precisely because the White House knew that they'd be fighting this battle, they've made quite an effort over the past month to broadcast that waterboarding is not on the list of possible techniques. That's what their PR offensive has been all about; waterboarding is off the table (for now), so let us keep our toys. Those other techniques "are reported to include stress positions, hypothermia, threats to the detainee and his family, severe sleep deprivation, and severe sensory deprivation," as Marty Lederman notes.

But by voting against the bill, McCain is saying that the CIA should have a free hand to employ techniques along these lines. At the same time, he stresses that the 2006 Detainee Treatment Act, the bill he himself sponsored, prohibits the use of any cruel, inhumane, or degrading treatment and treatment that "shocks the conscience." He hasn't said which of the techniques listed above meet that description. But he trusts that the Justice Department and CIA will arrive at a "good faith interpretation of the statutes that guide what is permissible."

Attorney General Michael Mukasey gave a taste of what that "good faith" interpretation is when he testified before Congress. What "shocks the conscience" depends on the circumstances, he said. Waterboarding might very well be OK, he argued, if the situation were dire enough.

But McCain says that waterboarding is torture. And as he says in his statement below, "It is, or should be, beyond dispute that waterboarding 'shocks the conscience.'" So he disagrees with the administration's "good faith" interpretation. But apparently he still has faith.

Confused? It's certainly not a position that's easily summarized. The major papers take a run at it this morning, and, well, the nuance just doesn't come through.

From The New York Times:

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The Senate ethics committee sent a letter admonishing Sen. Larry Craig (R-ID) this evening. We'll have the letter and details in a moment.

Update: Here's the letter.

Update: The complaint dings Craig for disorderly conduct (“The Committee accepts as proven your guilty plea”), trying to bully the cop who busted him by showing his business card and asking “What do you think about that?” among other things.

His attempt to erase the guilty plea, the senators write, is a craven attempt to avoid fault: “Your claims to the court, through counsel, to the effect that your guilty plea resulted from improper pressure or coercion, or that you did not, as a legal matter, know what you were doing when you pled guilty, do not appear credible.”

The senators also ding him for using campaign funds to pay his legal bills without first seeking approval from the committee.

They conclude:

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Well, that wasn't expected. An odd collection of Republicans, liberal Dems, and Blue Dogs banded together this afternoon to shoot down the House leadership's attempt to extend for 21 days the administration's surveillance bill, the Protect America Act, which is set to expire Friday.

I suppose everyone had their reasons. The Republicans because they want to help the administration put the squeeze on the Dems and pass the Senate's version of the intelligence bill. The liberal Dems (e.g. Rush Holt (D-NJ) and Dennis Kucinich (D-OH)) because they opposed the Protect America Act in the first place -- see Holt speaking on that here. And the few Blue Dogs (e.g. Leonard Boswell (D-IA) and Collin Peterson (DFL-MN)? I suppose they don't want any more delay on the issue. The full catalog of Dems, 34 in all, is below.

In any case, now it's time to see whether the administration's squeeze play will pay off. Either the House Dems will fold and the administration will get its prized retroactive immunity for the telecoms, or the dreaded time lapse will occur. And what happens then? From CQ:

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Harry Reid:

"The Senate today declared that the Army Field Manual works and torture does not. In sending the President a bill that establishes one interrogation standard for the entire U.S. government, we are taking an important step toward restoring our moral leadership in the world. Military and foreign policy experts agree that torture is counterproductive. It elicits unreliable information, puts U.S. troops at risk and undermines our counterinsurgency efforts.

"It is now up to the President to show his own moral leadership and sign this bill into law. And if he refuses to do so, I hope the Republicans who voted for this bill's passage will stand up to the President and override his veto."

So now it's on to that veto. The Senate just narrowly passed the intelligence authorization bill, which contained a provision that would effectively ban the CIA's use of waterboarding and other "enhanced interrogation" techniques forbidden by the Army Field Manual.

The final vote was rather close -- 51-45, with a few Republicans crossing over to make the difference. There were a couple remarkable "no" votes, though, from senators who've vocally opposed the use of waterboarding. Both Sen. John McCain (R-AZ), who's vocally opposed the use of waterboarding, and Arlen Specter (R-PA) voted against. We've inquired why and we'll let you know what we find out.

Update: Here's the tally.

I’m not sure if we’ll be adding a category for Best Legal Eagle Blowup to the Golden Duke Awards, but if we did, this might take the prize.

Roger Clemens' hearing today was mostly a cordial one, all things considered. But at one point, things broke down to the point where Clemens' two top-flight lawyers Lanny Breuer (formerly President Clinton's special counsel in the Lewinsky affair) and Rusty Hardin were standing behind him, their hands on his shoulders in an attempt to silence him, shouting at Waxman. Here's the video:



The issue itself was over a rather minute detail. As I understand it (not being a Mitchell Report-ologist), Brian McNamee, Clemens former trainer and main accuser, has said that Clemens first approached him about using steroids and human growth hormone after a party at slugger Jose Canseco's Miami home in 1998. Clemens' lawyers have gone after McNamee's credibility on this, offering proof that Clemens was in fact not at that party. McNamee says he saw him there.

Again, the party in and of itself is not a very consequential detail. But since it goes to McNamee's credibility, Clemens' lawyers have been hammering on it. And during Rep. Henry Waxman's (D-CA) questions, Waxman revealed that when Waxman's committee inquired after the name of Clemens' nanny at the time who was supposedly at this party, Clemens' lawyers immediately tracked her down and interviewed her at Clemens' home. The nanny would supposedly be a key witness on this ultimately inconsequential detail.

Waxman didn't allege anything exactly, but it was clear from his questions that he was hinting that Clemens' lawyers had wanted to get to the nanny first in order to make sure she remembered things "correctly." Clemens' lawyers were enraged, Hardin at one point shouting in response to one of Waxman's questions about whose idea that was, "It was my idea! It was my idea to investigate what witnesses know, just like any other lawyer in the free world does!"

Transcript of the exchange is below.

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As expected, things are finally moving forward in the House today to bring contempt resolutions against White House officials for ignoring Congressional subpoenas as part of the U.S. attorney firings investigation.

House Judiciary Committee Chair John Conyers (D-MI) introduced two resolutions this afternoon related to the subpoenas. The first is a criminal contempt resolution against White House chief of staff Josh Bolten and former White House counsel Harriet Miers -- both were subpoenaed and did not respond, citing the White House's invocation of executive privilege. But Conyers also filed a resolution that Speaker Nancy Pelosi (D-CA) file a civil suit against the White House.

Update: You can read both of those resolutions as prepared here. The second resolution would authorize the House Judiciary Committee to go to court, where it would be represented by the House general counsel

That second resolution would serve as an available alternative should Attorney General Michael Mukasey follow through on his threat not to enforce the criminal citation. The battle would then head into court, where a judge would have a shot at sorting out the White House's far-reaching assertion of privilege.

The House rules committee is expected to meet and begin work on both of these resolutions in the next hour.

This is what the administration's recent pro-waterboarding PR offensive had been leading up to. But the Republican side backed down.

Later this afternoon, the Senate will be voting on a bill authorizing the government's intelligence activities. Included in that bill is a measure sponsored by Sen. Dianne Feinstein (D-CA) that would restrict the interrogation methods the CIA could use to the Army Field Manual, which bans waterboarding and other harsh techniques currently used by the CIA. The Republicans had been expected to challenge that provision, forcing a vote. But they didn't. After a vote on the bill in 90 minutes or so, it will be on its way to the President, who has already announced that he will veto it.

So why the sudden retreat? It's not clear how the votes would have come down, exactly. But Sen. John McCain (R-AZ), who has frequently spoken out against waterboarding, was considered a key vote, creating the potentially awkward situation of him taking a stand against the president. 60 votes would have been needed to retain the measure. Now that situation has been avoided -- for now. If the president follows through with his veto threat, the Senate would hold a vote to override the veto, and McCain's vote would become an issue again, though perhaps this time, not such a crucial one.

It's a nightmare scenario for a witness. When Roger Clemens went to testify this morning before the House oversight committee, lawmakers, armed with testimony from two other witnesses, tried to spring what they could on him to catch him in a lie.

Sitting at the same table -- on the other side of an investigator on the Mitchell Report on steroids in baseball -- was Brian McNamee, Clemens' former trainer, who has said under oath and said again today that he injected Clemens with steroids and human growth hormone (HGH) a number of times.

And in the first round of questions, Rep. Elijah Cummings (D-MD) came at Clemens with a second line of attack: Clemens' friend and former teammate Andy Pettite had told the committee under oath that he'd had a couple conversations with Clemens and one key conversation in particular where Clemens had told him that he'd taken HGH. Ouch. You can see video here:



Clemens denies it all. He's already called McNamee a liar and launched a lawsuit against him. As for Pettite, Clemens said that he must be "misremembering," and said that the conversation was really about "a TV show, something that I've heard about three older men that were using HGH and getting back their quality of life from that." Cummings kept producing more details from Pettite's testimony and Clemens kept claiming that Pettite had misremembered. The denials culminated in this memorably tangled answer:

"Once again, Mr. Congressman, I think he misremembers the conversation that we had. Andy and I's relationship was close enough to know that if I would have known that he had done HGH, which I now know, if he was knowingly knowing that I had taken HGH, we would have talked about the subject. He'd have come to me to ask me about the effects of it."


So should Clemens be up for Best Testimonial Trainwreck in 2008?

A transcript of the exchange is below.

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Yup, here we go again. Beat that drum!

Right on cue, Bush made a statement from the Oval Office this morning to deliver a simple message to House Democrats: if they do not immediately fold and pass the Senate's version of the surveillance bill, then they are jeopardizing "the lives of countless Americans." Because "at this moment, somewhere in the world, terrorists are planning new attacks on our country." House Dems want more time to negotiate the differences between the House and Senate bills, so they've asked for an extension to the administration's sweeping Protect America Act, which passed in an alarmist panic back in August.

But no. That is unacceptable. The only possible course of action is to embrace the Senate bill, a "good bill":

Unfortunately, the House has failed to pass a good bill. And now House leaders say they want still more time to reach agreement with the Senate on a final bill. They make this claim even though it is clear that the Senate bill, the bill passed last night, has significant bipartisan support in the House.

Congress has had over six months to discuss and deliberate. The time for debate is over. I will not accept any temporary extension....

The House's failure to pass the bipartisan Senate bill would jeopardize the security of our citizens. As Director McConnell has told me, without this law, our ability to prevent new attacks will be weakened. And it will become harder for us to uncover terrorist plots. We must not allow this to happen. It is time for Congress to ensure the flow of vital intelligence is not disrupted. It is time for Congress to pass a law that provides a long-term foundation to protect our country. And they must do so immediately.

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