Like This Wasn't Foreseeable When The Senate Confirmed Him

Mukasey Rejects Call for CIA Tape Details and Special Prosecutor

The Washington Post reports:

Attorney General Michael B. Mukasey today sharply rebuffed congressional demands for details about the Justice Department's inquiry into the destruction of CIA interrogation tapes, saying that providing such information would make it appear that the department was "subject to political influence."

In letters to the leaders of the Senate Judiciary Committee and others, Mukasey also reiterated his opposition to appointing a special prosecutor to the tapes investigation, saying he was "aware of no facts at present" that would require such a step.

"At my confirmation hearing, I testified that I would act independently, resist political pressure and ensure that politics plays no role in cases brought by the Department of Justice," Mukasey wrote. "Consistent with that testimony, the facts will be followed wherever they lead in this inquiry, and the relevant law applied."

Wouldn't you have loved to be a fly on Chuck Schumer's wall when he heard about Mukasey's response to the bipartisan inquiry by U.S. senators? And just when you think you've heard every conceivable weasel word and spinned excuse by the Bush administration's appointees for stalling, stonewalling, and not cooperating with Congress's Constitutionally-required role of oversight and investigation.

Senators Dianne Feinstein, Russ Feingold and Chuck Schumer (the senator who suggested that Bush nominate Mukasey for the job) confer during the Senate Judiciary Committee meeting to vote on sending Michael Mukasey's nomination as Attorney General to the floor of the Senate.

One letter was sent to Sens. Patrick J. Leahy (D-Vt.) and Arlen Specter (R-Pa.), the leaders of the Senate Judiciary Committee. Similar correspondence was sent to Senate Majority Whip Richard Durbin (D-Ill.) and to House Judiciary Chairman John Conyers (D-Mich.) and other House Democrats.

The three letters represent an attempt by Mukasey to push back against growing pressure from lawmakers, primarily Democrats, who have showered the Justice Department with demands for investigations or information on topics ranging from the baseball steroids scandal to allegations of rape by a former military contractor employee.

The letters also are an assertive move by the new attorney general, who was confirmed last month with the lowest level of Senate support in the past half century because of his refusal to say whether a form of simulated drowning known as waterboarding amounts to torture under U.S. law.

Mukasey replaced former attorney general Alberto R. Gonzales, who left office in September after the furor over his handling of the firings of nine U.S. attorneys and allegations that he misled Congress in sworn testimony.

The CIA disclosed last week that it destroyed videotapes in 2005 depicting interrogation sessions for alleged al-Qaeda operatives Zayn al-Abidin Muhammed Hussein, commonly known as Abu Zubaida, and Abd al-Rahim al-Nashiri. Administration officials have said that lawyers at the Justice Department and the White House, including former counsel Harriet E. Miers, advised the CIA against destroying the tapes but that CIA lawyers ruled their preservation was not required.

The Justice Department announced Saturday it had joined the CIA's inspector general in launching a preliminary inquiry into the tape destruction, and prosecutors asked the CIA to preserve any related evidence.

Leahy and Specter asked Mukasey on Dec. 10 for "a complete account of the Justice Department's own knowledge of and involvement with" the tape destruction. The two senators included a list of 16 separate questions, including whether the Justice Department had offered legal advice to the CIA about the tapes or had communicated with the White House about the issue.

Durbin had sent a letter to Mukasey Dec. 7 asking whether an investigation into the tape destruction would be pursued. Conyers and three other House Democrats authored a similar letter on the same day.

Mukasey wrote to the lawmakers that Justice "has a long-standing policy of declining to provide non-public information about pending matters.

"This policy is based in part on our interest in avoiding any perception that our law enforcement decisions are subject to political influence," Mukasey wrote to Conyers and the others. "Accordingly, I will not at this time provide further information in response to your letter, but appreciate the Committee's interests in this matter."

The tape investigation is being led by Kenneth Wainstein, head of the Justice Department's National Security Division. Wainstein held his first substantive meeting on the case Wednesday with staffers at the CIA inspector general's office, according to a law enforcement official.

Several Democrats have raised questions about the propriety of having the inquiry run by the Justice Department, whose lawyers were involved in offering legal advice about the tapes, and the CIA inspector general, whose office reviewed the tapes before they were destroyed.

CIA Director Michael V. Hayden said last week that the inspector general's office examined the tapes in 2003 "as part of its look at the Agency's detention and interrogation practices."

Also yesterday, the beleaguered head of the Justice Department's Voting Rights Section disclosed in a letter to employees that he was being transferred to another job in the agency.

John K. Tanner said he was moving to the Office of Special Counsel for Immigration-Related Unfair Employment Practices after nearly 32 years in the Civil Rights Division.

Tanner had come under fire for making a series of racially charged statements earlier this year, including a suggestion that black voters are not hurt as much as whites by voter identification laws because "they die first."

Tanner apologized for the "tone" of his remarks in House testimony, but stuck with his overall argument that demographic differences temper the impact of identification laws on minorities. Tanner also was criticized by Democrats for approving a Georgia voter identification law in 2005 that was struck down by a federal court as discriminatory.

Tanner is the subject of an investigation by the Office of Professional Responsibility into his travel records and trips he approved for a subordinate, officials have said.

The move to shift Tanner out of civil rights could be seen as a move by Mukasey to tamp down criticism of the department's recent record. But Justice also filed a friend-of-the-court brief earlier this week siding with an Indiana identification law, which has been criticized by liberal groups and many voting experts.

Meanwhile, John Cook at Radar Online reports:

Behold, the Bush Administration in chart form: Federal spending on paper shredding has increased more than 600 percent since George W. Bush took office. This chart, generated by usaspending.gov, the U.S. government's brand spanking new database of federal expenditures, shows spending on "contracts for paper shredding services" going back to 2000. Click here for the full, heartbreaking breakdown. In 2000, the feds spent $452,807 to make unpleasant truths go away; by 2006, the "Cheney Effect" had bumped that number up to $2.9 million. And by halfway through 2007, the feds almost matched that number, with $2.7 million and counting. Pretty much says it all.

HELL BENT ON DESTRUCTION Shredding contracts during Bush/Cheney

Leahy Says, "I Can't Vote For Mukasey"

The Associated Press reports:

The chairman of the Senate Judiciary Committee, Patrick Leahy of Vermont, says he won't support President Bush's nominee to be attorney general.

And that could be enough to derail Mukasey's confirmation.

Democrats are concerned that the nominee hasn't taken a full enough stand against torture. He hasn't said whether he believes the practice of waterboarding amounts to torture.

Leahy thinks that's unacceptable. He says, "No American should need a classified briefing to determine whether waterboarding is torture."

Four other Democrats on Leahy's panel have already said they won't support him. The committee decides Tuesday whether to approve the confirmation.

It's presumed that all of the Republicans on the Senate Judiciary Committee will vote to send the Mukasey nomination out of committee and to the floor of the Senate for a full vote. All then that would be needed is one yes vote on the Democrat's side of the committee. It's now all up to Chuck Schumer (who recommended Mukasey as a good bipartisan choice for Attorney General to Bush) and Dianne Feinstein (two Democrats on the committee who consistently have had trouble working on behalf of the people who elected them), Russ Feingold (who said today that he was undecided, that Mukasey "may be the best nominee we can get from this administration," and "a marked improvement over former Attorney General Alberto Gonzales"), Herb Kohl and Ben Cardin.

On the issue of torture, Schumer is, himself, 'tortured':

Schumer, who has remained uncharacteristically quiet throughout the furor, said in an interview yesterday that he is now "wrestling" with whether to vote against a nomination that he was instrumental in bringing about. He compared the controversy to the 2005 nomination battle over Chief Justice John G. Roberts Jr.

"From this administration, we will never get somebody who agrees with us on issues like torture and wiretapping," Schumer said at one point, suggesting an argument in favor of Mukasey, who faces a Senate Judiciary Committee vote on Tuesday. "The best thing we can hope for is someone who will depoliticize the Justice Department and put rule of law first."

But Schumer said minutes later that his mind is not made up: "He's the best we can get, but that doesn't necessarily ensure a yes vote. I thought John Roberts was the best we could get, but I voted no."

Mukasey may not be the only one who needs to be pressed for his opinion on waterboarding as torture, or if torture has any place at all in U.S. policy and practice. A little over three years ago, Schumer was a defender of its use:

"...I'd like to interject a note of balance here. There are times when we all get in high dudgeon. We ought to be reasonable about this. I think there are probably very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake.

Take the hypothetical: If we knew that there was a nuclear bomb hidden in an American city and we believed that some kind of torture, fairly severe maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most senators, maybe all, would say, "Do what you have to do."

So it's easy to sit back in the armchair and say that torture can never be used. But when you're in the foxhole, it's a very different deal.

And I respect -- I think we all respect the fact that the president's in the foxhole every day. So he can hardly be blamed for asking you or his White House counsel or the Department of Defense to figure out when it comes to torture, what the law allows and when the law allows it and what there is permission to do..."

~Senator Chuck Schumer to witness Attorney General John Ashcroft at Senate Judiciary Committee hearing about the Bush administration's anti-terror policy, June 8, 2004.

What's For Schumer To Be Undecided About?

Judiciary Chairman Endorsed Justice Nominee but Says He, Like Other Democrats, Is Concerned About Torture Question

Sen. Charles Schumer, foreground, said he is "wrestling" with the decision of whether to recommend a full Senate confirmation vote for Michael Mukasey. Schumer talked to reporters about Mukasey and other topics yesterday with fellow Senate Democrats, from left, Harry Reid, Richard Durbin and Patty Murray. (By Melina Mara -- The Washington Post)

The Washington Post reports:

As Democratic opposition builds over attorney general nominee Michael B. Mukasey, no Democratic lawmaker has found himself in a tighter spot than Sen. Charles E. Schumer (N.Y.), who had eagerly recommended the former federal judge as a consensus candidate.

After Mukasey refused to say whether an interrogation technique called waterboarding amounts to illegal torture, Schumer has watched a growing number of his colleagues announce their opposition to the judge.

Schumer, who has remained uncharacteristically quiet throughout the furor, said in an interview yesterday that he is now "wrestling" with whether to vote against a nomination that he was instrumental in bringing about. He compared the controversy to the 2005 nomination battle over Chief Justice John G. Roberts Jr.

"From this administration, we will never get somebody who agrees with us on issues like torture and wiretapping," Schumer said at one point, suggesting an argument in favor of Mukasey, who faces a Senate Judiciary Committee vote on Tuesday. "The best thing we can hope for is someone who will depoliticize the Justice Department and put rule of law first."

But Schumer said minutes later that his mind is not made up: "He's the best we can get, but that doesn't necessarily ensure a yes vote. I thought John Roberts was the best we could get, but I voted no."

The outcome of Schumer's internal struggle could prove pivotal to Mukasey's chances, as a growing number of Democrats, including four other members of the Judiciary Committee, have announced their opposition to the nominee, as have all four senators who are seeking the Democratic presidential nomination.

The deteriorating political situation led President Bush yesterday to mount a vigorous defense of Mukasey, saying that Democrats are subjecting the former federal judge to standards that no candidate for attorney general could meet.

"It's wrong for congressional leaders to make Judge Mukasey's confirmation dependent on his willingness to go on the record about details of a classified program he has not been briefed on," Bush said in a speech at the Heritage Foundation in Washington. "If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general. That would guarantee that America would have no attorney general during this time of war."

But key Democrats continued to signal opposition to the suddenly controversial nominee. Senate Majority Leader Harry M. Reid (D-Nev.) said his position is not "much of a secret," saying Mukasey's attempt at explaining his view on waterboarding has left his nomination in doubt.

Sen. Edward M. Kennedy (D-Mass.) announced his opposition yesterday, becoming the fourth Democrat on the Judiciary Committee to promise a no vote. Judiciary Chairman Patrick J. Leahy (D-Vt.), who originally predicted easy confirmation but has since become deeply critical of Mukasey, is expected to announce his position today in Vermont.

All nine Republicans on the committee are likely to support Mukasey, but if all 10 Democrats oppose the nominee, the confirmation would die in committee.

Republicans privately say that the nominee's prospects hang on a few votes, particularly those of Schumer and Sen. Dianne Feinstein (D-Calif.), who has broken ranks with her party in the past. Should Schumer and Feinstein side with other Democrats in opposition, Judiciary Republicans are likely to seek to forward the nomination with a neutral or negative recommendation to the full Senate for a confirmation vote.

Schumer originally suggested Mukasey to head the Justice Department eight months ago, after the senator became the first Democrat to call for the resignation of then-Attorney General Alberto R. Gonzales over his handling of the firings of nine U.S. attorneys. Schumer, whose chief counsel is a former federal prosecutor in the Manhattan courts that were overseen by Mukasey, had also recommended him as a worthy Supreme Court candidate in 2005.

But Mukasey, who was sailing to an easy confirmation, alarmed many Democrats on Oct. 18 when he repeatedly refused to say whether waterboarding is torture. The technique, which simulates drowning, has been used by the CIA but is barred by the U.S. military and has been widely condemned as torture by human rights groups.

Mukasey tried to mollify Democrats by saying in a letter earlier this week that he found the technique personally "repugnant," but he reiterated that he could not determine whether it is illegal without being privy to classified details.

Mukasey's response has been deemed insufficient by many Democrats and sparked an outcry among antiwar liberals who provided much of the political energy -- and financial contributions -- that propelled Democrats to the majority. Schumer, who chairs the Democratic Senatorial Campaign Committee, needs those supporters as he tries to expand the majority next year. One group, Democrats.com, began an e-mail campaign last night urging its supporters to withhold donations to Schumer if he votes for Mukasey.

During yesterday's telephone interview, Schumer said that his decision will hinge largely on whether he believes Mukasey would be independent of the White House. He said that was "called into question" by some of Mukasey's views.

"The question is whether he will show the requisite independence," Schumer said. "That's what I want to clear in my own head. . . . If Congress passes a law forbidding waterboarding, would he enforce that?"

Schumer's colleagues are keenly aware of his awkward position. In announcing his opposition to Mukasey on Wednesday, Majority Whip Richard J. Durbin (D-Ill.) said he could not predict the outcome of the close vote and noted the undecided posture of Schumer, with whom Durbin lives in a group house of Democrats. "I haven't polled my colleagues, including the one I live with," Durbin said.

Some Republicans, meanwhile, are openly chortling at Schumer's dilemma.

"Mukasey and Schumer, aren't they partners? Wasn't that the Schumer pick?" Sen. Trent Lott (R-Miss.) said yesterday. "It's become a problem for him."

Leahy & Specter Balk at Blanket Telecom Immunity

The Seattle Times reports:

The Senate Judiciary Committee's top Democrat and Republican expressed reluctance Wednesday to granting blanket immunity to telecommunications carriers sued for assisting the government's warrantless-surveillance program.

Committee Chairman Patrick Leahy, D-Vt., and the ranking Republican, Sen. Arlen Specter, R-Pa., had said that before even considering such a proposal, they would need to see the legal documents underpinning the program, which began after the Sept. 11 attacks and were put under court oversight in January.

On Tuesday, the committee was given access to some of the documents. But Leahy said Wednesday that he had a "grave concern" about blanket immunity. The activities seem to be "in violation of the privacy rights of Americans" and of federal domestic-surveillance law, he said.

The immunity provision sought by the White House would wipe out about 40 lawsuits that accuse AT&T, Verizon Communications and Sprint Nextel of invading Americans' privacy and constitutional rights by assisting the government in domestic surveillance without a warrant.

Specter agreed that the "courts ought not to be closed" to such lawsuits.

I'm almost sorry Leahy and Specter telegraphed their concerns before they were given access to all of the documents. It seems unlikely now that the Bush administration would allow them access now, and will probably move into its standard campaign of rhetoric, charging opponents with "playing politics with Americans' security."

Mukasey says, "Bush Can Ignore the Law"

On Chuck Schumer's Recommendation, Democrats Expected To Vote For Bush's Nominee For Attorney General
The Washington Post reports:

Attorney general nominee Michael B. Mukasey suggested today that the president could ignore federal surveillance law if it infringes on his constitutional authority as commander in chief.

Under sharp questioning about the Bush administration's warrantless eavesdropping program, Mukasey said there may be occasions when the president's wartime powers would supersede legal requirements to obtain a warrant to conduct wiretaps.

In such a case, Mukasey said, "the president is not putting somebody above the law; the president is putting somebody within the law. . . . The president doesn't stand above the law. But the law emphatically includes the Constitution."

Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said he was "troubled by your answer. I see a loophole big enough to drive a truck through."

During a second day of hearings on his nomination, Mukasey defended several of the Bush administration's most controversial legal policies, prompting a drop in temperature in his previously warm relations with Democrats on the committee.

Mukasey, for example, endorsed the administration's views of expansive presidential authority in the use of executive privilege, saying it would be inappropriate for a U.S. attorney to press for contempt charges against a White House official protected by a claim of executive privilege.

Mukasey also demurred when he was repeatedly asked whether a simulated drowning technique known as waterboarding constitutes unlawful torture. Mukasey had strongly condemned the use of harsh interrogation tactics yesterday and said that the president could not order treatment that violated constitutional prohibitions.

But Mukasey said he could not elaborate on what techniques might be allowed, and specifically refused to answer questions from Democrats about whether waterboarding specifically was unconstitutional, saying he did know enough about what the technique entailed.

"If it is torture as defined by the Constitution, or defined by constitutional standards, it can't be authorized," Mukasey said.

Mukasey's remarks stood in sharp contrast to his comments during his first day of testimony yesterday, when he stopped short of embracing the Bush administration's legal views on several important topics and criticized its policies or legal reasoning in several areas.

The apparent shift prompted criticism from several committee Democrats, who largely showered Mukasey with praise yesterday and have predicted that he will be easily confirmed to replace former attorney general Alberto R. Gonzales.

During a break in testimony, Leahy told reporters that he was concerned about a "sudden change" in Mukasey's answers regarding the limits of presidential power.

"There were far clearer answers yesterday than there were today," Leahy said.

Yesterday, Sen. Russell Feingold (D-Wis.) pressed Mukasey on the limits of federal surveillance law with little success. Today, after Mukasey more clearly embraced the argument that such a law might infringe on presidential authority, Feingold complained that Mukasey had gone from being "agnostic" to holding a "disturbing view."

"You suggest that I've gone overnight from being an agnostic to being a heretic; I haven't," Mukasey responded, though he did not elaborate.

Mukasey also amplified his opposition to a proposed federal shield law for journalists, which has been approved by the Judiciary Committee in the wake of several high-profile cases in which reporters were jailed or threatened with contempt charges for refusing to divulge sources. Mukasey said that the current system has worked "passably well" and that any problems could likely be solved by changes to internal Justice Department rules.

Mukasey, who worked briefly as a wire service reporter and later represented media organizations as an attorney in private practice, echoed Bush administration arguments that such a law could be used to protect journalists who also are acting as spies or terrorists.

Yesterday, Mukasey said that he would chart an independent path for the Justice Department after Gonzales's tumultuous tenure, testifying that he would not be afraid to disagree with the president and would resign rather than implement policies that he believed violated the Constitution.

Mukasey also said the president cannot use his powers as commander in chief to override prohibitions against using torture or cruel, inhuman and degrading conduct in the interrogation of prisoners.

"Are you prepared to resign if the president were to violate your advice and in your view violate the Constitution?" asked Sen. Arlen Specter (R-Pa.). Mukasey responded: "That would present me with a difficult but not a complex problem. I could either try to talk him out of it or leave."

These and other strongly worded remarks reflected the former federal judge and prosecutor's desire to position himself as an independent legal thinker who, unlike Gonzales, has no long-standing ties to the current White House. "I'm not a bashful person, and I'm not going to become a bashful person if I'm confirmed," Mukasey said late in the day.

But Mukasey also declined to directly answer some questions related to controversial surveillance, detention and interrogation issues, and he suggested that in some policy areas his views might differ little from those of his predecessor.

During a sparring session with Feingold, for example, Mukasey declined to say whether the president could order a violation of federal surveillance law.

Mukasey said he could not provide an informed analysis without being briefed on the classified program but noted that some lawyers think the law does not entirely limit the president.

"I find your equivocation here somewhat troubling," Feingold responded.

Mukasey also expressed conservative views on social issues as divergent as obscenity and immigration, saying he would consider more robust prosecution of those caught being in the country illegally.

Most of the committee's Democrats, including Leahy, yesterday nonetheless repeated earlier predictions that Mukasey will be confirmed easily and with strong bipartisan support. "I'm encouraged by the answers," Leahy told reporters.

Yesterday's session was interrupted for several hours by a congressional ceremony for the Dalai Lama.

Sen. Charles E. Schumer (D-N.Y.), who had recommended that the White House nominate Mukasey, said Mukasey needs to rescue the Justice Department from its "greatest crisis since Watergate."

Much of the praise for Mukasey was accompanied by barely disguised swipes at Gonzales. "I think it's time for a steady hand, for a professional," said Sen. Jeff Sessions (R-Ala.). Schumer was more critical, saying Gonzales "was not much more than a potted plant" as attorney general.

Gonzales, a longtime friend and confidant of President Bush, resigned in August amid allegations that he bowed to White House demands in the firing of nine U.S. attorneys and on controversial national security policies, and then misrepresented his role during testimony on Capitol Hill.

Gonzales, who has hired a private defense attorney, is under investigation by the Justice Department over whether he lied to Congress or improperly tried to influence a congressional witness.

Democrats had earlier threatened to hold up the Mukasey hearings until they received more documents from the White House related to congressional investigations of the prosecutor firings and other issues. Those demands were put on hold, but Democrats say they will not abandon their probes.

Mukasey avoided a question about whether he would allow a U.S. attorney to pursue contempt charges against the White House if it refused to hand over the documents at issue, as Justice Department procedures provide.

Mukasey, 66, was calm and soft-spoken during much of his testimony, witnessed in the hearing room by family members and friends, including former FBI director Louis J. Freeh. Leahy and other lawmakers described Mukasey as candid and direct compared with Gonzales, who was widely accused of giving vague and evasive testimony.

When questioned about a Justice Department legal opinion issued early in the Bush administration, and since rescinded, that narrowly defined the acts that constitute torture, Mukasey replied differently than Gonzales had at his own confirmation hearing in early 2005.

Although Gonzales had repudiated that document, he repeatedly declined to directly answer questions about the limits of executive branch legal authority to undertake harsh interrogation methods that could be used on terrorism suspects. Mukasey said flatly that the president's commander-in-chief powers do not give him the authority to order torture or cruel treatment, which are prohibited by U.S. laws and international treaties.

At the same time, Mukasey essentially agreed with Gonzales's contention that a president can find a law unconstitutional.

While Gonzales had strongly defended the detention of terrorism suspects at Guantanamo Bay, Cuba, Mukasey called it a "black eye" for the United States because "we are detaining people apparently without end." He also suggested that it would be difficult to close Guantanamo Bay soon and defended an earlier comment that prisoners there were treated better than many U.S. citizens.

Under questioning from Leahy, Mukasey promised to recuse himself from any investigations that might touch on the GOP presidential campaign of former New York mayor Rudolph W. Giuliani, a longtime friend and political ally. Mukasey also vowed to limit contact between Justice Department officials and "political figures," and to discourage bringing charges close to an election.

In response to questions about rising crime rates, Mukasey said he would consider reallocating resources for anti-gang programs and other efforts. The Justice Department has diverted funds and personnel from crime-fighting to focus on counterterrorism and immigration cases, shortchanging anti-gang and anti-crime efforts.

"We can't turn our society into something not worth preserving in order to preserve it," he said.

Code for, "We're going to use the unlimited police state capabilities that Congress gave the executive branch for combating terrorism against any and all that we deem to be our enemies. That includes Democrats, blacks, hispanics, liberals."

How Difficult Is It To Answer?

Democrats on Senate Judiciary committee ask Michael Mukasey, "Is this torture?"



The Associated Press reports:

In an intense exchange Thursday with three Democrats, President Bush's nominee for attorney general left the door open for allowing a terrorism-era interrogation technique that simulates drowning.

Michael Mukasey, a retired federal judge, issued highly-conditioned statements that so-called waterboarding violates the Constitution only if it is defined as torture.

The answer is unclear.

In an executive order this summer, Bush allowed the use of some harsh interrogation techniques but his administration refused to say whether waterboarding was among them. Congress has banned waterboarding as part of a detainee treatment law.

During Thursday's proceedings, Senate Democratic Whip Dick Durbin probed for Mukasey's opinion.

"I'm hoping that you can at least look at this one technique and say: that clearly constitutes torture, it should not be the policy of the United States to engage in waterboarding," said the Illinois Democrat.

"It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else," Mukasey replied.

That sounds clear, doesn't it? But wait...

Under subsequent questioning by Chairman Patrick Leahy, D-Vt., Mukasey said the practice of waterboarding, if defined as torture, can't be permitted by the president.

"If it is torture as defined by the Constitution, or defined by constitutional standards, it can't be authorized," Mukasey said.

Okay, now you've lost me. And apparently, the member of the committee as well...

Judiciary Committee members, most lawyers themselves, have little tolerance for parsing after earlier hearings in which then-Attorney General Alberto Gonzales on dozens of occasions either did not answer questions or blamed a faulty memory for not answering them.

"Is waterboarding constitutional?" pressed Sen. Sheldon Whitehouse, D-R.I. "It either is or it isn't."

Mukasey again demurred, saying he doesn't know what's involved in the technique.

"If it amounts to torture, it is not constitutional," the nominee replied.

"I'm very disappointed in that answer," Whitehouse said. "I think it's purely semantics."

The president himself has repeatedly said "We don't torture" and argued that intense interrogations are sometimes necessary to elicit information about terrorist plots.

The White House suggested Thursday that Mukasey's answers were vague because he does not know the specifics of the program.

"Judge Mukasey is not in a position to discuss interrogation techniques which are necessarily classified," said White House spokesman Tony Fratto. "He would only be read-in to classified programs after being confirmed."

So far, Mukasey has told senators he will reject any White House meddling in Justice Department matters and resign if his legal or ethical concerns about administration policy are ignored. He also said he's resistant to passing a law shielding reporters from being forced to reveal their sources, saying it would be much easier to fix internal Justice Department practice if need be.

Majority Democrats, aided by some Republicans, have urged passage of a media shield because they say it would protect reporters and government whistleblowers who reveal improper or illegal official activity. Fifty news outlets, including The Associated Press, support the legislation.

The Bush administration has issued a veto threat, saying that subpoenas for reporters are relatively rare and that a shield would make it harder to track down leakers of classified information.

Mukasey said that he has reservations about the legislation because it sets too high a legal threshold for prosecutors to meet to overcome the shield. Proving that the disclosure is needed to prevent an attack is difficult in advance, the nominee said Wednesday.

The measure also pending defines a journalist too broadly and might inadvertently protect, for example, bloggers who are also spies or terrorists, Mukasey said.

And yet when all is said and done, apparently Mukasey is a "shoo-in."

Patrick Leahy: "Intel Committee About to 'Cave' on Surveillance & Telecom Immunity"

The Hill reports:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) on Thursday condemned Intelligence Committee Democrats for brokering a deal with the White House that would provide retroactive immunity for telephone companies that assisted the Bush administration’s controversial warrantless wiretapping program.

At the second day of confirmation hearings for President Bush’s Attorney General-nominee Michael Mukasey, Leahy warned that “the Intelligence Committee is about to cave on this,” citing pressure from the White House and press reports suggesting the administration had gotten its way.

“[Administration officials] know that it was illegal conduct and that there is no saving grace for the president to say, ‘Well, I was acting with authority,’ ” said Leahy. “Otherwise there wouldn't be so much pressure on us to immunize illegal conduct by either people acting within our government or within the private industry.”

Leahy’s remarks signal that a bipartisan accord to overhaul the 1978 Foreign Intelligence Surveillance Act (FISA), reached Wednesday by the Intelligence panel’s leaders and the White House, could divide Democrats and hit a roadblock on his panel as well. The Intelligence Committee marks up the bill Thursday afternoon, after which it will be referred to Judiciary, where more Democrats have openly opposed retroactive immunity language.

His comments also come as House Democratic efforts to overhaul the law are falling into disarray, after House Republicans used parliamentary maneuvers to force leaders to pull the Democrats’ FISA rewrite from the floor late Wednesday.

Attempting to resolve a central point of contention, Senate Intelligence panel Chairman Jay Rockefeller (D-W.Va.) reportedly reached a deal Wednesday with Director of National Intelligence Mike McConnell to give full retroactive immunity to telephone companies if they can demonstrate they were cooperating lawfully with the secret wiretapping program when suits were levied against them.

Not all Democrats on the Judiciary Committee appeared to share Leahy’s concerns. Sen. Dianne Feinstein (D-Calif.), who sits on both the Judiciary and Intelligence panels, signaled she was likely to support the bipartisan approach.

“At this stage, it is a bipartisan bill,” Feinstein said. “I’m absolutely convinced that the only way we can legislate on this is on a bipartisan basis. This bill so far is bipartisan — that’s good news.”

When Dianne Feinstein says, "It's a bipartisan bill," she means that DINOs are in agreement with it, and not that it reflects any Democratic values, which happen to be the values of the majority of people in the state that elected her. Unfortunately, Feinstein isn't up for reelection until 2012 (should she choose to run again at age 79), so constituents only recourse is to flood her offices with mail and phone calls pressuring her to represent the people of California as they wish to be represented.

During the hearing, Democrats launched fresh criticism at Mukasey’s interpretation of FISA. After the nominee indicated that Bush was not acting illegally by going beyond that statute in authorizing eavesdropping without court warrants, Leahy called that argument “a loophole big enough to drive a truck [through].”

Whether the president is acting illegally “would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country,” Mukasey said.

And all we hear is Mukasey is a shoo-in to replace Alberto Gonzales as Attorney General.

White House to Give Senate Panel Surveillance Program Documents

The Washington Post reports:

The White House agreed yesterday to give Senate intelligence committee members and staff access to internal documents related to its domestic surveillance program in a bid to win Democratic lawmakers' support for the administration's version of an intelligence measure.

The move was meant in part to defuse a months-long clash between Congress and the Bush administration over access to legal memoranda and presidential decisions underpinning the Terrorist Surveillance Program, which allowed the government to eavesdrop without court warrants on communications between people in the United States and abroad when one of the parties is a terrorism-related suspect.

Some of the documents had been demanded by Senate Judiciary Committee members as a condition for considering the administration's nomination of former judge Michael B. Mukasey as the nation's 81st attorney general. Sen. Patrick J. Leahy (D-Vt.), the committee's chairman, dropped that condition weeks ago but said yesterday that he still wants to see the documents.

Leahy told reporters after a meeting with Mukasey yesterday that he nonetheless expects Mukasey "to be confirmed" after a nomination hearing today, at which Mukasey is to be escorted into the room by Leahy and the committee's ranking Republican, Sen. Arlen Specter (Pa.). Mukasey is to be formally introduced by Sens. Joseph I. Lieberman (I-Conn.) and Charles E. Schumer (D-N.Y.).

Schumer indicated after meeting separately with Mukasey yesterday that he expects the judge to promise to undertake a review of the department's legal justifications for the administration's counterterrorism policies, which are the subject of some of the documents made available to intelligence committee staff and members for review at the White House.

Mukasey has indicated that he strongly supports the administration's counterterrorism effort.

Committee member Dianne Feinstein (D-Calif.), who also sits on the Judiciary panel, said however that when one of her staff members reviewed the documents, "he wasn't impressed." She added that she was unsure whether the documents the staff member saw were exactly what Leahy was seeking.

Sen. Christopher S. Bond (Mo.), the intelligence committee's ranking Republican, was more positive. "We're getting the information I think we need."

But House Democrats, who plan to vote today on a bill that would restrict domestic surveillance powers more tightly than the administration wants, complained yesterday that they should have been permitted the same access.

"Although even these materials are far short of the information that Congress has requested for more than a year on this crucial subject, we are extremely disappointed that the available information is being withheld from the House," Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said in a letter yesterday to White House counsel Fred F. Fielding.

Besides trying to quiet congressional accusations of a coverup, the administration wants in particular to win support for a legal provision providing immunity for telecommunications companies that have been sued for violating privacy rights when they assisted the government's domestic surveillance effort.

White House spokesman Tony Fratto said that administration officials "routinely meet with members of Congress and their staffs to provide them with information they need when they are considering and drafting legislation." In this case, he said, members of the Senate intelligence panel "requested access to certain materials to assist their consideration" of relief for the companies.

In addition to seeking documents related to the surveillance program, Leahy has sought internal legal opinions related to torture issues involving terrorism suspects and testimony from White House advisers connected to the firing of nine U.S. attorneys last year.

Leahy said his questioning at the hearing today will be aimed at eliciting statements from Mukasey about the legality of torturing terrorism suspects and threats to the independence of federal prosecutors that impinge on their efforts to pursue cases regardless of political sensitivities. "How are you going to clean up this mess?" Leahy said he probably will ask Mukasey.

Mukasey has already sought to assure lawmakers in private that he will not let politics intrude on the department's decisions. "He will be light-years better than his predecessor," Leahy said, referring to former attorney general Alberto R. Gonzales, who resigned in late August after making a series of statements about the attorney firings and surveillance programs that were disputed by his former colleagues and lawmakers from both parties.

Congress Seeks Justice Department Documents on Interrogation

The New York Times reports:

The Democratic chairmen of the Senate and House Judiciary Committees asked the Justice Department today to turn over secret legal opinions issued in 2005 that authorized the use of harsh interrogation techniques against terrorism suspects after the Department publicly repudiated torture as “abhorrent” in a 2004 opinion.

The 2005 legal opinions, disclosed for the first time by The New York Times, remain in effect, according to officials familiar with the Bush administration’s policy on interrogation. One provided legal justification for the use of a battery of aggressive tactics and a second said the techniques did not amount to “cruel, inhuman, or degrading” practices under international agreements.

Senator Patrick J. Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, said it appeared that the Justice Department lawyers had “reversed themselves and reinstated a secret regime, in essence reinterpreting the law in secret.” He said his committee had been seeking information about the Justice Department’s legal interpretations of the law for two years without success and urged the administration to cooperate.

Representative John Conyers Jr. of Michigan, who heads the House Judiciary Committee, requested that the Justice Department’s opinions be turned over to the House panel as well and asked the department to make available for a hearing Steven G. Bradbury, of the department’s office of legal counsel, who signed the 2005 opinions.

Mr. Leahy also said his committee would hold confirmation hearings on the nomination of Michael B. Mukasey to be attorney general on Oct. 17.

Officials at the White House and the Justice Department said the 2005 legal memorandum did not change the administration’s statement in 2004 that publicly renounced torture as “abhorrent.”

“The policy of the United States is not to torture,” said Dana Perino, the White House press secretary. “The president has not authorized it, he will not authorize it.”

“But he had done everything within the corners of the law to make sure that we prevent another attack on this country,” she said at a news briefing today.

“I am not going to comment on any specific alleged techniques,” Ms. Perino said. “It is not appropriate for me to do so. And to do so would provide the enemy with more information for how to train against these techniques.”

Asked whether the disclosure of the 2005 memorandum could harm national security, Ms. Perino said. “You know, it’s secret for a reason. It’s not secret just because we want it to be a secret. It’s secret because it is classified, and classified for the reasons to protect the country from terrorists who are determined to attack us.”

The Justice Department’s spokesman, Brian Roehrkasse, said in a statement that he could not comment on classified legal advice, but he reiterated that any opinions by the department were consistent with the public 2004 memorandum on interrogations. He said the Bush administration’s “strong opposition to torture” had been consistent.

He expressed the department’s support for Mr. Bradbury, whose nomination to be permanent head of legal counsel’s office has been blocked by Senate Democrats. Mr. Roehrkasse said Mr. Bradbury “has worked diligently to ensure that the authority of the office is employed in a careful and prudent manner.”

In the areas of domestic surveillance and detainee issues, Mr. Roehrkasse said Mr. Bradbury’s “efforts have strengthened cooperation among the branches in these key national security areas.”

John Roberts's Health Never Came Up In Confirmation Hearings

There is no record of any discussion of the 1993 seizure or of Roberts's health in general during his confirmation hearings.

The Washington Post reports:

Chief Justice John G. Roberts Jr. was rushed to a hospital here Monday afternoon after suffering a seizure at his summer island home, a Supreme Court spokeswoman said.

Sen. Arlen Specter (R-Pa.), who chaired the hearings, told CNN on Monday night that senators were told about the previous episode but did not find it serious enough to ask Roberts about.

Roberts, 52, fell on a dock after having a "benign idiopathic seizure," said Kathleen Landin Arberg, the court's public information officer. She said that Roberts has "fully recovered from the incident" but that he would remain at Penobscot Bay Medical Center here overnight for observation.

Arberg said that the chief justice, who has presided over the court for two terms, received minor scrapes from the fall but that a "thorough neurological evaluation . . . revealed no cause for concern."

She said he experienced a similar event in 1993 but had no recurrence until Monday.

Seizures are any sudden, abnormal electrical activity in the brain. While some are focused in one part of the brain, others can be generalized. Not all seizures involve convulsions. Arberg's description of a benign idiopathic seizure indicates an episode whose origins are unknown.

Newsweek reported in November 2005 that Roberts suffered a seizure in January 1993 while golfing. "It was stunning and out of the blue and inexplicable," Larry Robbins, a Justice Department colleague, told the magazine. Robbins said Roberts was not allowed to drive for several months after the seizure and took the bus to work. The magazine quoted a senior White House aide as describing the episode as an "isolated, idiosyncratic seizure."

There is no record of any discussion of the 1993 seizure or of Roberts's health in general during his confirmation hearings. Sen. Arlen Specter (R-Pa.), who chaired the hearings, told CNN on Monday night that senators were told about the previous episode but did not find it serious enough to ask Roberts about. Roberts has no known history of major illness.

Roberts, the youngest member of the Supreme Court, took office as chief justice in September 2005 after being nominated by President Bush to replace the late William H. Rehnquist.

Roberts's seizure occurred around 2 p.m., Arberg said, when he was stepping off a boat after doing errands near his home on Hupper Island, which is about halfway up the Maine coast.

Hupper Island is part of the village of Port Clyde, which is contained in the town of St. George, according to Town Manager John M. Falla. He said that the island is not connected to the town by bridge, and that Roberts was brought by private boat to the mainland and taken by ambulance to the hospital, about 20 miles away.

St. George Fire Chief Tim Polky told the Associated Press that Roberts was "conscious and alert when they put him in the rescue [vehicle] and took him to Penobscot Bay Medical Center."

The chief justice was admitted by an emergency room doctor and seen by Judd Jensen, a staff neurologist, said Chris Burke, the hospital's director of marketing and communications.

He said Roberts was "aware and alert" when he arrived at the community medical facility, which is nestled among trees on the edge of Rockport, a picturesque Maine village about 90 miles northeast of Portland. He declined to say what the chief justice's full neurological evaluation entailed.

Burke said some of Roberts's aides had visited the hospital more than a year ago, when the chief justice bought the nearby vacation home. "Folks came by and checked out the facilities. That's a normal precaution for anyone in his position," he said.

Burke said he thinks doctors consulted with Roberts's regular physicians in the Washington area during the chief justice's evaluation.

Roberts was resting in a regular patient room on Monday night and had some friends with him, Burke said.

"Most seizures last from 30 seconds to two minutes and do not cause lasting harm," according to background information posted online by the National Institute of Neurological Disorders and Stroke, part of the National Institutes of Health. "However, it is a medical emergency if seizures last longer than 5 minutes or if a person has many seizures and does not wake up between them."

While seizures can be the result of a brain disorder such as epilepsy, the institute notes that they can also be a consequence of fevers, head injuries or even medication side effects.

Roberts and his wife, Jane Sullivan Roberts, bought the Hupper Island house last summer from Steve Thomas, former host of the PBS home-improvement series "This Old House."

The Bangor Daily News reported last year that the house is about 225 feet from shore, with a right of way to the beach and a water view toward Port Clyde General Store on the mainland. The island has 20 to 30 homes and more than a mile of shoreline.

When Roberts was confirmed by the Senate on Sept. 29, 2005, by a vote of 78 to 22, he became the youngest chief justice in more than 200 years and the third-youngest ever to assume the office.

Since the court adjourned in late June, Roberts has taught at a law school summer program in Europe and attended an international judicial conference in Paris. He was back in Washington last week, and on Friday left work early to attend a party celebrating his daughter's seventh birthday. The Robertses have two young children.

Roberts was originally nominated to succeed Justice Sandra Day O'Connor, who announced in July 2005 that she was retiring. But upon Rehnquist's death, Bush decided to make Roberts his nominee for chief justice and later nominated Samuel A. Alito Jr. to replace O'Connor.

This is one more example of Democrats' failure, dereliction of duty, in checking the damage that Bush and Republicans have inflicted on the nation. John Roberts's nomination never should have gotten passed out of the Senate Judiciary Committee. Roberts's seizure history would not have, nor should it have, eliminated him from serving on the highest court in the land. But failing to get Roberts on the record about his health history, under oath, demonstrates Democrats' inept efforts to block the Bush administration's agenda. Democrats rolled over for John Roberts' confirmation when there was abundant evidence that he was ideologically unsuited for the court. Patrick Leahy, Russ Feingold, Herb ("I will vote my hopes today and not my fears") Kohl all voted to pass Roberts's name out of committee and on.

For a lifetime seat on the U.S.S.C., Herb, you vote your fears.

As Joe Biden said when he voted against Roberts, "He will have more impact on our lives, in the future of our children's lives, than any of us and all of us combined."

These Democratic Senators voted to confirm Roberts: Max Baucus, Ben Nelson, Mark Pryor, Ken Salazar, Byron Dorgan, Herb Kohl, Patrick Leahy, Patty Murray, Jeff Bingaman, Jay Rockefeller, Bob Byrd, Tom Carper, Bill Nelson, Ben Johnson, Herb Kohl, Kent Conrad, Mary Landrieu, Ron Wyden, Chris Dodd, Blanche Lincoln, Joe Lieberman and Carl Levin.

Democrats consistently fail to convince Americans because Democrats don't even try.

Sara Taylor, Confused As To Whom/What She Swore An Oath To

The Washington Post's profile of Sara Taylor and her journey to the White House:

On a snowy evening in December 1998, Sara M. Taylor, the daughter of a former pipe fitter at a John Deere plant in Iowa, came to a meeting at the Capital Hilton. Washington had grown dark and quiet, and the hotel restaurant was empty, save two people: Omaha financial guru Warren Buffett, and the man she was there to meet -- Karl Rove. Rove had just helped reelect George W. Bush as governor of Texas, and now Rove and Bush had begun the slow process of building a presidential run.

Over the course of an hour Rove quizzed her on the politics of her home state. Her dad, before she was born, had done a stint in the Iowa legislature, and two years earlier she'd taken a year off from her studies at Drake University to work on the presidential campaign of Texas senator Phil Gramm. They spoke about the coalitions needed to win -- social conservatives and the agriculture constituency -- and about the need to meet people personally. Suddenly, Bush himself walked in, plopped down beside her and Rove and drilled her about what he needed to know to win Iowa. In a matter of months, Taylor moved back to Iowa, helping to set up Bush's 2000 win. She was 24.

That was the beginning of Taylor's relationship with the two men. The end is proving more difficult to resolve.

After eight years working with Bush and Rove through two presidential campaigns and two turbulent administrations, Taylor, now 32, finds herself unable to exit gracefully. After leaving her post as White House political director in May out of what she says was a search for normalcy, she now finds herself part of the unending congressional probe into the dismissal of nine U.S. attorneys.

Yesterday, after the White House invoked executive privilege regarding any meetings, conversations and deliberations she had in the matter, Taylor became the latest high-level political appointee to testify before the Senate Judiciary Committee. These constraints led to a torturous session, and both sides expressed frustration over what she could and couldn't say. Under questioning yesterday, she refused to answer several questions and testified that she never spoke or met with President Bush about plans to fire the U.S. attorneys last year.

Said friend and former White House communications director Nicolle Wallace: "I just feel like it's incredibly unfair that she's being caught in what's really a struggle between Congress and the White House."

Taylor's been in tough fights before. Following her service for Bush in Iowa, she moved on to South Carolina, Washington state and Michigan. After the cliffhanger election, she was dispatched to Florida to help with recount efforts. Often pulling volunteers from Texas off the floor for not paying attention to their tasks, she eventually developed a pinpoint tracking system that literally traced each recounted ballot.

"It's methodical," Taylor said one evening last week over dinner on Capitol Hill. "You create a system to check every ballot and then you have a spreadsheet in place to tell you where you are. We always knew if we lost one vote or picked one up."

Described by her former colleagues as a tireless worker, Taylor's stature only grew after Bush took control of the White House in 2001. First charged with overseeing the Midwest in the political office led by Ken Mehlman, she joined the 2004 reelection campaign as a top strategist. Taylor was involved in everything from media planning and travel schedules to polling and research.

Asked about her rapid rise, Taylor, who was a finance major in college, said, "I would argue a lot of it had to do with my analytical ability. I think a lot of political operatives have good people skills and great social skills and work really hard, but everyone's not really good at math."

"I was the media director and her title was deputy strategist," said Mark McKinnon. "But functionally she basically did 80 percent of the work for me and [chief campaign strategist] Matthew Dowd. She knows polling, she knows media, she knows the field. For someone her age she has more knowledge than someone with a lifetime of campaigning."

Taylor's reward? A spot as the White House political director after the departure of Matthew Schlapp. From a mid-level staffer, Taylor came back to the White House to advise the senior staff and the president on domestic political issues and played an important role in anything involved with Bush's domestic agenda. Her new role meant constant contact with Rove, whose relationship with Taylor evolved from first "a teacher and leader to almost more of a partner," said Wallace.

"He makes you a better person because he's so methodical and is so smart and never misses anything and is demanding in a good way," Taylor said of her former boss. "He just doesn't have time for error. You can't put a value on the training process."

Another lesson learned?

"Even when you think an e-mail is private, it never is," she said, in reference to a disparaging e-mail involving the firing of Bud Cummins, the U.S. attorney in Little Rock.

By last December, after the Democrats won control of both the House and the Senate, Taylor had had enough. By her own account, she could never separate her personal and professional lives and found herself exhausted, ready to start a new life away from the White House. In May, she left.

A clean break it wasn't. After taking time off for the first time in years, she traveled to Europe and returned home to a subpoena.

She wasn't terribly surprised. Last year Taylor signed up for professional liability insurance after noting comments made by some Democrats on the 2006 campaign trail about wanting to investigate the White House.

But now she's on several hooks. This week she found out the insurance will not cover her legal costs. Moreover, she's restrained from fully telling her side of things, from moving on.

"It's a very difficult position to be in," she said. "The president has exerted executive privilege and I have great respect for the president. The problem for you as an individual is that this comes at a huge personal cost financially.

"But this is a bigger issue than me. I understand the president is doing what he believes is right."

Ms. Taylor is bound by no law which prevents her from testifying in full to the Senate Judiciary Committee. Bush's claim of executive privilege is just that, a statement that carries no force of law. If Ms. Taylor decided to talk to the committee, Bush would have to go to court to get a restraining order preventing it.

So now, everybody waits.

For what? Nobody will actually say, but, like children lining up for the latest Harry Potter book or movie, everyone waits wishing for some kind of magical break. Absent Bush and Cheney having a "come to Jesus"-moment and confessing outright to six years of criminal acts, it doesn't look as if any break is on the horizon or anytime beyond that. Bush and Cheney have artfully, if not illegally, covered their tracks, and the Democratic Congress is afraid (or so they say) to challenge those tactics in the courts for fear that the last twenty-five years of conservative-stacking of the courts will settle these issues for all time in Bush's ("Unitary Executive") favor.

If that is the case, the sooner Americans learn that truth the better. We've been like the proverbial frog in the pot of water being brought to a boil on the stove. Democratic inaction has enabled Bush, Cheney and Republicans to rob and murder, both at home and abroad, in all of our names. If the people are ever to get our nation back, Democrats are going to have to be bold and stand up to every one of Bush's moves.

And citing Sara Taylor for contempt of Congress is a good place to start. Either way (her talking or not after being cited for contempt) works for Democrats. Americans would see a second woman (the first was Judith Miller) doing jail time so that these cowardly men can walk free. These are not sympathetic characters, any of them.

A contempt of Congress citation just might be the best thing to happen to Ms. Taylor. If she continues to believe that the oath she took was to Bush and not to the Constitution, perhaps some time in jail might help to clear her mind of neocon programming. Another secret defense fund, such as the one that neocons set up for Scooter Libby, would undoubtedly be established, and Ms. Taylor could wind up a very rich young woman. However this shakes out, I think it's a safe guess that Ms. Taylor's silence guarantees her a highly lucrative future.



Call Senator Leahy's office (202 224-4242) and urge him to ratchet up the heat.

RNC Destroyed Rove's & Others' E-Mails

The House Committee on Oversight and Government Reform reports:

The Oversight Committee has been investigating whether White House officials violated the Presidential Records Act by using e-mail accounts maintained by the Republican National Committee and the Bush Cheney ‘04 campaign for official White House communications. This interim staff report provides a summary of the evidence the Committee has received to date, along with recommendations for next steps in the investigation.

The information the Committee has received in the investigation reveals:
The number of White House officials given RNC e-mail accounts is higher than previously disclosed. In March 2007, White House spokesperson Dana Perino said that only a “handful of officials” had RNC e-mail accounts. In later statements, her estimate rose to “50 over the course of the administration.” In fact, the Committee has learned from the RNC that at least 88 White House officials had RNC e-mail accounts. The officials with RNC e-mail accounts include Karl Rove, the President’s senior advisor; Andrew Card, the former White House Chief of Staff; Ken Mehlman, the former White House Director of Political Affairs; and many other officials in the Office of Political Affairs, the Office of Communications, and the Office of the Vice President.

White House officials made extensive use of their RNC e-mail accounts. The RNC has preserved 140,216 e-mails sent or received by Karl Rove. Over half of these e-mails (75,374) were sent to or received from individuals using official “.gov” e-mail accounts. Other heavy users of RNC e-mail accounts include former White House Director of Political Affairs Sara Taylor (66,018 e-mails) and Deputy Director of Political Affairs Scott Jennings (35,198 e-mails). These e-mail accounts were used by White House officials for official purposes, such as communicating with federal agencies about federal appointments and policies.

There has been extensive destruction of the e-mails of White House officials by the RNC. Of the 88 White House officials who received RNC e-mail accounts, the RNC has preserved no e-mails for 51 officials. In a deposition, Susan Ralston, Mr. Rove’s former executive assistant, testified that many of the White House officials for whom the RNC has no e-mail records were regular users of their RNC e-mail accounts. Although the RNC has preserved no e-mail records for Ken Mehlman, the former Director of Political Affairs, Ms. Ralston testified that Mr. Mehlman used his account “frequently, daily.” In addition, there are major gaps in the e-mail records of the 37 White House officials for whom the RNC did preserve e-mails. The RNC has preserved only 130 e-mails sent to Mr. Rove during President Bush’s first term and no e-mails sent by Mr. Rove prior to November 2003. For many other White House officials, the RNC has no e-mails from before the fall of 2006.

There is evidence that the Office of White House Counsel under Alberto Gonzales may have known that White House officials were using RNC e-mail accounts for official business, but took no action to preserve these presidential records. In her deposition, Ms. Ralston testified that she searched Mr. Rove’s RNC e-mail account in response to an Enron-related investigation in 2001 and the investigation of Special Prosecutor Patrick Fitzgerald later in the Administration. According to Ms. Ralston, the White House Counsel’s office knew about these e-mails because “all of the documents we collected were then turned over to the White House Counsel’s office.” There is no evidence, however, that White House Counsel Gonzales initiated any action to ensure the preservation of the e-mail records that were destroyed by the RNC.

The Presidential Records Act requires the President to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented … and maintained as Presidential records.” To implement this legal requirement, the White House Counsel issued clear written policies in February 2001 instructing White House staff to use only the official White House e-mail system for official communications and to retain any official e-mails they received on a nongovernmental account.

The evidence obtained by the Committee indicates that White House officials used their RNC e-mail accounts in a manner that circumvented these requirements. At this point in the investigation, it is not possible to determine precisely how many presidential records may have been destroyed by the RNC. Given the heavy reliance by White House officials on RNC e-mail accounts, the high rank of the White House officials involved, and the large quantity of missing e-mails, the potential violation of the Presidential Records Act may be extensive.

There are several next steps that should be pursued in the investigation into the use of RNC e-mail accounts by White House officials. First, the records of federal agencies should be examined to assess whether they may contain some of the White House e-mails that have been destroyed by the RNC. The Committee has already written to 25 federal agencies to inquire about the e-mail records they may have retained from White House officials who used RNC and Bush Cheney ’04 e-mail accounts. Preliminary responses from the agencies indicate that they may have preserved official communications that were destroyed by the RNC.

Second, the Committee should investigate what former White House Counsel Alberto Gonzales knew about the use of political e-mail accounts by White House officials. If Susan Ralston’s testimony to the Committee is accurate, there is evidence that Mr. Gonzales or counsels working in his office knew in 2001 that Karl Rove was using his RNC e-mail account to communicate about official business, but took no action to preserve Mr. Rove’s official communications.

Third, the Committee may need to issue compulsory process to obtain the cooperation of the Bush Cheney ’04 campaign. The campaign has informed the Committee that it provided e-mail accounts to 11 White House officials, but the campaign has unjustifiably refused to provide the Committee with basic information about these accounts, such as the identity of the White House officials and the number of e-mails that have been preserved.

Documents and Links
• Investigation of Possible Violations of the Presidential Records Act [.pdf]
• Deposition of Susan Ralston [.pdf]
• Errata Sheet for Deposition of Susan Ralston [.pdf]

It's time (long past) for both the Senate and House Judiciary and Oversight Committees to petition the court for a special master, subpoena and impound the machines before any Republican officials do anymore tinkering with the machines in their effort to find more emails.

I don't know what is taking Democrats so long to have done this. They should have instantly gone to court back in March when it was first discovered that the White House was using a "double-bookkeeping system" for their communications.

Makes You Want To Go, "Have You No Sense Of Decency, Sir?"

In the NYT, Adam Cohen writes:

Opponents of Gov. Jim Doyle of Wisconsin spent $4 million on ads last year trying to link the Democratic incumbent to a state employee who was sent to jail on corruption charges. The effort failed, and Mr. Doyle was re-elected — and now the state employee has been found to have been wrongly convicted. The entire affair is raising serious questions about why a United States attorney put an innocent woman in jail.

The conviction of Georgia Thompson has become part of the furor over the firing of eight United States attorneys in what seems like a political purge. While the main focus of that scandal is on why the attorneys were fired, the Thompson case raises questions about why other prosecutors kept their jobs.

The United States Court of Appeals for the Seventh Circuit, which heard Ms. Thompson’s case this month, did not discuss whether her prosecution was political — but it did make clear that it was wrong. And in an extraordinary move, it ordered her released immediately, without waiting to write a decision. “Your evidence is beyond thin,” Judge Diane Wood told the prosecutor. “I’m not sure what your actual theory in this case is.”

A couple of weeks ago, the Senate Judiciary Committee decided to make this case their business, although not swiftly enough to have kept Thompson out of prison in the first place:

The Senate Judiciary Committee asked Attorney General Alberto Gonzales to provide documents related to the prosecution of a former state worker in Wisconsin whose bid-rigging conviction was overturned last week by a federal appeals court.

In a letter sent Tuesday, committee chairman Patrick Leahy, D-Vt., and five other Democratic senators said they were "concerned whether or not politics may have played a role" in the case against Georgia Thompson.

She was accused of favoring a company with ties to Democratic Gov. Jim Doyle, and her conviction became an issue last year in his campaign for re-election when his opponents used it to slam him in television ads.

Wisconsin Democrats have long questioned whether the decision by U.S. Attorney Steven Biskupic to prosecute Thompson was an attempt to go after Doyle, who faced a tough run against then-U.S. Rep. Republican Mark Green. Biskupic was appointed by President Bush.

A message left by The Associated Press for Biskupic's spokeswoman was not immediately returned Tuesday.

Meanwhile, a key prosecution witness at the trial said Tuesday he's glad the woman has been acquitted and freed, saying "she's not a crook."

Frank Kooistra, an associate dean at the University of Wisconsin-Madison, and Thompson served on a committee that evaluated proposals from companies seeking a contract to book travel for state employees.

Kooistra and other committee members testified last summer at Thompson's trial on charges she steered the contract worth up to $750,000 to Adelman Travel Group because it had developed a close relationship with Gov. Jim Doyle's administration.

A jury found her guilty of fraud charges, and she was sentenced to 18 months in federal prison. But a federal appeals court said last week that prosecutors lacked evidence. It ruled that Thompson was innocent and ordered her immediate release after four months behind bars.

"I'm really happy for Georgia," Kooistra said. "I don't think the punishment that was dished out was fair and so I'm happy that this has happened and I hope she gets her life back to order."

He added: "She is really a nice person. She's not a crook or a criminal."

The prosecution has sparked calls from some Democrats, including Rep. Tammy Baldwin, for Congress to look into whether it was intended to tarnish Doyle's re-election campaign last year. Biskupic's spokeswoman has denied that.

Biskupic's case was built on the testimony of committee members as well as e-mails and other documents in which he tried to show Adelman had a tight relationship with Doyle's administration. The ties included $10,000 in campaign donations from Adelman's chief executive before and after winning the contract and contacts the company had with Doyle and his aides.

Kooistra testified that he and all other committee members but Thompson wanted to give the contract to Omega World Travel after the company edged out Adelman by 21 points on a 1,200 point scale after an initial evaluation.

Kooistra testified he was angry when Thompson asked them if they wanted to inflate their scores for Adelman. When they refused, he was also furious that Thompson considered the close scores a tie and initiated a tiebreaker called a best-and-final offer.

Adelman ended up winning after its final bid was lower.

Kooistra testified Thompson cited political reasons in wanting to favor the Wisconsin-based company over its Virginia rival. He interpreted that to mean she was under pressure to favor an in-state company even though that was not supposed to be considered.

To this day, Kooistra said he's not sure what motivated Thompson's behavior.

Thompson testified she was simply trying to get the best deal for the state and other evaluators had put too much emphasis on the style, not substance, of the proposals. She denied that her bosses wanted Adelman to win.

Thompson, through her lawyer, told the state Monday she's interested in returning to work in the coming days. The state also will give her $68,000 in back pay and may help her pay legal fees.

Where does she go to get her good name back, not to mention her home and possessions? Why should the taxpayers of Wisconsin be on the hook for Georgia Thompson's legal fees? Why isn't the federal government reimbursing her legal fees, and then going after the Republican party?

This is the Kafka-esque nightmare of every liberal since Bush and Cheney came into office: Americans' guaranteed rights and protections lost through Republicans' methodical deconstruction of the Constitution. The congressional oversight that was written into the Constitution by the founders didn't anticipate the tactics of Bush, Cheney, Rove, Republicans and their cronies.

The wheels of justice move very slowly. Unfortunately, with Democrats (who are also professional politicians) heading the effort, it's unlikely to be as thorough an investigation as necessary to sweep and deter these corrupt practices from our system of government.

White House says, "The E-Mail On Those RNC Laptops May Be Missing"

May be missing?



Wouldn't they already know? Haven't they talked with their employees, checked to see if it's still there? Or was this the White House's way of obstructing justice, signaling all those who have RNC laptops to go back and be sure that when they deleted their email, they did it with a 'secure' delete (which overwrites the email so it can't be recovered)?

The LATimes reports:

The White House said Wednesday that it may have lost what could amount to thousands of messages sent through a private e-mail system used by political guru Karl Rove and at least 50 other top officials, an admission that stirred anger and dismay among congressional investigators.

The e-mails were considered potentially crucial evidence in congressional inquiries launched by Democrats into the role partisan politics may have played in such policy decisions as the firing of eight U.S. attorneys.

This potentially affects the Abramoff case, too. From Mother Jones:

Not only did White House officials think better of using their official emails, they also instructed the lobbyists who did business with them to avoid the White House system. "...It is better to not put this stuff in writing in their email system because it might actually limit what they can do to help us, especially since there could be lawsuits, etc.," one lobbyist to wrote to Jack Abramoff in August 2003 after Abramoff accidentally pinged former Karl Rove aide Susan Ralston on her White House address. "Dammit. It was sent to Susan on her rnc [Republican National Committee] pager and was not supposed to go into the WH system," Abramoff replied.

In 2004, U.S. News & World Report reported that White House staffers were using Web-based email accounts specifically to keep their emails from entering the public record ("I don't want my E-mail made public," one White House "insider" told the magazine). With the Hatch Act, "want" doesn't enter into it.

The White House said an effort was underway to see whether the messages could be recovered from the computer system, which was operated and paid for by the Republican National Committee as part of an avowed effort to separate political communications from those dealing with official business.

"The White House has not done a good enough job overseeing staff using political e-mail accounts to assure compliance with the Presidential Records Act," White House spokesman Scott Stanzel said in an unusual late-afternoon teleconference with reporters.

As a result, Stanzel said, "we may not have preserved all e-mails that deal with White House business."

He refused to estimate how many e-mails may have been lost, but the system was used by dozens of officials for more than six years.

"This is a remarkable admission that raises serious legal and security issues," said Rep. Henry A. Waxman (D-Los Angeles), chairman of the House Committee on Oversight and Government Reform, which is investigating the role of electoral politics in administration policymaking. "The White House has an obligation to disclose all the information it has."

The missing e-mails not only add to the growing legal and public relations woes for the White House and Rove's political operation, but also to the problems of Atty. Gen. Alberto R. Gonzales. Gonzales, who is under fire for the handling of the U.S. attorney dismissals, was serving as White House counsel at the time the Republican National Committee's parallel communications system was set up.

His office had at least partial responsibility for establishing ground rules for using the private system.

The White House briefing Wednesday occurred a few hours after the staff of Waxman's committee and staff of the House Judiciary Committee met with White House officials to discuss the e-mails.

The White House has informed congressional investigators that it will not be able to meet the committee's deadline of Friday to turn over the communications.

The House aides are expected to meet with the Republican National Committee's legal staff today. A committee spokesman said the GOP hopes to cooperate as much as possible but provided no further details.

The e-mails were sent through a communications system created in conjunction with the RNC early in the Bush administration. Rove and others were given special laptop computers and other communications devices to use instead of the government communications system when dealing with political matters.

The parallel system was designed to avoid running afoul of the Hatch Act, which prohibits using government resources for partisan purposes, White House officials have said.

But evidence has emerged that system users sometimes failed to maintain such separation and used the private system when communicating about government business.

For example, before the U.S. attorneys were fired, a Rove deputy used an account maintained by the Republican National Committee in discussions with Justice Department officials about replacing some of the regional prosecutors. One e-mail requested a meeting between top officials at the Justice Department and a member of President Bush's campaign team to discuss one U.S. attorney who was among those to be fired.

The Justice Department turned over those e-mails at the request of several congressional committees.

Waxman said some of the documents suggest White House personnel may have used the political email accounts "to avoid creating a record of the communications."

Loss of the e-mail files would create a potential legal problem for the Bush White House: compliance with the Presidential Records Act, which was passed in 1978 in response to the Watergate scandal that enveloped Richard M. Nixon's presidency. The law was designed to ensure that presidential papers were preserved for historical and investigative purposes.

Rove's operation appears to have gone much further. Today, 22 staffers have e-mail accounts issued by the Republican National Committee, Stanzel said, noting that it is a tiny percentage of the 1,000 political appointees in the executive office.

Since 2001, about 50 staffers e-mailed using the system, he said. One former White House staffer told National Journal recently that Rove uses his RNC e-mail account for 95% of his e-mail communications.

One former White House official, Assistant Press Secretary Adam Levine, told The Times that he was issued a private laptop computer but he found the dual system so cumbersome that he decided to use only his official White House computer.

However, Levine recalled seeing White House staff members moving fluidly between their official computers and the laptops provided by the RNC.

Stanzel said that the law has gray areas defining what sort of activity is permitted using government resources, and that some employees may have opted for the RNC system to avoid any suggestion of a Hatch Act breach or because the private equipment was easier to use.

But, he added, "I can say that historically the White House didn't give enough guidance to staff on how to avoid violating the Hatch Act while following the Records Act. We didn't do a good enough job."

Some former employees recall receiving briefings on the Hatch Act. At the time of the 2004 Republican convention, newspaper accounts described emphatic warnings to White House staffers not to use government-issued cellphones for politically related calls.

Now, Stanzel said, the White House has begun a formal review that will include new training material for staff members on maintaining records with special attention to those with RNC accounts.

In addition, the White House will begin the forensic process of trying to reconstruct any lost records. That will probably be hampered by an RNC policy of automatically erasing most e-mail after 30 days. Since 2004, White House records have been exempt, Stanzel said, though individuals might have been able to kill out e-mail messages.

The White House will also explore whether the hard drives of laptop computers might have preserved a record of e-mailed communications.

How about getting these laptops (and all other communications' gadgets that the RNC provided to these government employees) impounded? Before there's a reprise of the early days in the Department of Justice's Plame-leak investigation, when (then White House counsel and now) Attorney General Alberto Gonzales waited twelve hours before ordering the White House staff to preserve documents and electronic files. That's an open invitation to shred, delete, and "talk among yourselves and get your stories straight," i.e., obstruct justice.

Why aren't Democrats in Congress pressing for the appointment of a special master to take possession of these laptops? If not for their own investigations, then for the Abramoff case.