Something Worse Than Torture?

The scariest thing about this Congress/CIA dispute is that whatever Leon Panetta admitted that the agency hid from Congress isn't yet known.

Four months after he was sworn in, CIA Director Leon E. Panetta learned of an intelligence program that had been hidden from Congress since 2001, a revelation that prompted him to immediately cancel the initiative and schedule a pair of closed-door meetings on Capitol Hill.

The next day, June 24, Panetta informed the House and Senate intelligence committees of the program and the action he had taken, according to Democratic and Republican members of the panels.

The incident has reignited a long-running dispute between congressional Democrats and the CIA, with some calling it part of a broader pattern of the agency withholding information from Congress. Some Republicans, meanwhile, privately questioned whether Panetta -- who has stood with CIA officers in a dispute with House Speaker Nancy Pelosi (D-Calif.) -- was looking to score points with House Democrats.

The program remains classified, and those knowledgeable about it would describe it only vaguely yesterday. Several current and former administration officials called it an "on-again, off-again" attempt to create a new intelligence capability and said it was related to the collection of information on suspected terrorists that was instituted after the Sept. 11, 2001, attacks.

Congressional Republicans said no briefing about the program was required because it was not a major tool used against al-Qaeda and other terrorist groups. They accused Democrats of using the matter to divert attention away from Pelosi's accusation that CIA officials intentionally misled her in 2002 about the agency's interrogations of suspected terrorists.

You have to love the good Germans in the Congressional GOP. As long as it had nothing to do with terrorism, it could be concealed from federally mandated oversight? First of all, that doesn't even seem right, given the hints in the article by officials that the secret program was run out of the CIA Counterterrorism Center. Second, whatever you want to say about Democrats, at least they know when to be outraged. Clearly, Republicans don't want to admit the wholly unsurprising conclusion that the CIA lies to Congress, because then Nancy Pelosi might be in for an apology. So they soft-pedal the program, which, since it's classified, cannot be revealed.

Sam Stein speculates that maybe we're talking about Seymour Hersh's executive assassination ring:

So what are the "significant actions" that these seven lawmakers insist were kept from Congress? Another theory being bandied about concerns an "executive assassination ring" that was allegedly set up and answered to former Vice President Dick Cheney. The New Yorker's Seymour Hersh, building off earlier reporting from the New York Times, dropped news of the possibility that such a ring existed in a March 2009 discussion sponsored by the University of Minnesota.

"It is a special wing of our special operations community that is set up independently," Hersh said. "They do not report to anybody, except in the Bush-Cheney days, they reported directly to the Cheney office. They did not report to the chairman of the joint chiefs of staff or to Mr. [Robert] Gates, the secretary of defense. They reported directly to him. ...

"Congress has no oversight of it," he added. "It's an executive assassination ring essentially, and it's been going on and on and on. Just today in the Times there was a story that its leaders, a three star admiral named [William H.] McRaven, ordered a stop to it because there were so many collateral deaths. Under President Bush's authority, they've been going into countries, not talking to the ambassador or the CIA station chief, and finding people on a list and executing them and leaving. That's been going on, in the name of all of us."

I do not believe that something which the CIA's own leadership didn't tell Panetta about until months into his tenure is simply benign. And at some point, this fresh horror will get out, another stain from the Bush regime. The White House cannot just ignore all this and expect it to go away.

The CIA Roadblock

About a week ago, Leon Panetta was quoted in The New Yorker saying that Dick Cheney seems like he wishes for the country to get attacked again. Panetta walked it back within 24 hours, or at least his spokesman did.

This quick shift is indicative of how the career officers are running the show inside the CIA, not Panetta, although I imagine he wasn't very hard to convince. The CIA has now gone back to its traditional role of covering up its ugliest activities, in contravention of judicial rulings and the will of the people. Take the 2004 Inspector general's report, for example, which has been described in major media and released in redacted form. The report was scheduled for release Friday, but amid insistent attempts at suppression, that release has been postponed. McJoan writes:

Greg Sargent speculates that this effort to suppress information is to try to "keep chunks that would undermine Cheney under wraps." This 2004 report from the CIA, according to various reports from officials who have seen it, will show that the CIA knew then that there was no proof that torture uncovered terror plots. One chapter of the report, which was released in heavily redacted form in response to an ACLU suit, is on "effectiveness." That chapter had been entirely redacted from the previous release.

That could be part of the resistance, but it appears that the larger part of it is that the CIA knew then, as it knows now, what it was doing was illegal. From the WaPo story:

The report further questioned the legality of using different combinations of techniques -- for example, sleep deprivation combined with forced nudity and painful stress positions, according to sources familiar with the document. While Justice Department lawyers had determined in August 2002 that the individual techniques did not constitute torture, the report warned that using several techniques at once could have a far greater psychological impact, according to officials familiar with the document.

"The argument was that combining the techniques amounted to torture," said a former agency official who read the report. "In essence, [Helgerson] was arguing in 2004 that there were clear violations of international laws and domestic laws."

This is ongoing CYA from the CIA. They know that torture was illegal, they're fighting tooth and nail to avoid disclosure and potential prosecutions.

Now, the CIA is currently reviewing the report from the Office of Professional Responsibility looking at the legal rationales given for torture by the likes of John Yoo, Jay Bybee and Stephen Bradbury. Eric Holder denied that the CIA will hold up the report, and that the report will be released within weeks, but of course, that's what was said about the 2004 CIA IG report. Marcy Wheeler writes:

In other words, no, Holder doesn't find it problematic that someone like John Rizzo--who remains the Acting General Counsel at CIA and who made apparently false declarations to OLC in 2002 when it first approved torture--gets a chance to review the OPR report.

Hell. Maybe if we're lucky, he'll tell DOJ that David Addington or Dick Cheney ordered him to submit that apparently false information so OLC would sign off on torture (though I doubt Rizzo--whose big career break was, like Cheney and Addington, cleaning up after Iran-Contra--will break the omerta).

As troubling as this news that CIA is reviewing the OPR report is, it does say something about the OPR report's conclusions. They implicate CIA enough that Eric Holder (not Mukasey) feels that CIA ought to get a chance to explain itself.

I've been saying for months that the CIA may have knowingly submitted false information to OLC. It may be that John Yoo and Jay Bybee used that as their excuse for their crappy opinions. Maybe, if this report ever comes out, we'll get to see whether that's the case.

The biggest roadblock to accountability and justice for torture is not the President or Nancy Pelosi or even Dick Cheney. It's so clearly the CIA. They knew what they were doing was illegal - hell, they apparently told Abu Zubaydah that they misjudged his rank despite torturing him for months. By the way, the CIA heavily redacted this transcript as well, to save their own asses. They knew as early as April 2003 that Khalid Sheikh Mohammed was lying to them when he "admitted" to certain terrorist actions or plots, a fact KSM has admitted himself.

I present this not as proof that KSM was lying about who al Qaeda had stationed in the US. Rather, it is a document written contemporaneously with the torture. And it shows what role torture-induced knowledge played for the CIA. Where KSM didn't confirm CIA's preconceptions, they assumed he was lying. Where he gave them stories of scary attacks, they wasted resources tracking them down. But, partly because they were torturing him, they had no easy way to sort through the crap to find any real intelligence.

The work of the CIA in this period really confirms the inability for torture to extract useful information. And they knew that at the time. But they continued to torture, probably because they sought information without needing it to be true - see the al Qaeda/Iraq link. And now they are desperately trying to cover up the evidence, with the full support of the weak-kneed director. And I'm sure the President understands the danger of crossing the CIA.

It's a real problem.

The Fight Over Executive Power

House leaders and the President are extremely worried that they will not get their supplemental war funding bill passed through Congress, and are whipping support among Democratic holdouts. There are a lot of moving parts and a lot of strange bedfellows.

First, a non-trivial part of the Progressive Caucus opposes any additional funding for Afghanistan, particularly given the vague, open-ended strategy put forward by the Administration. The current dynamic, where the US makes pretenses toward a counter-insurgency strategy and then steps up bombing campaigns to terrorize and inflame the local populations is anathema to a segment of the caucus.

Then, included in the bill are a tranche of money ($5 billion) for the IMF to use to lend to the developing world, an agreement that the President made at the latest G-20 summit. Almost all Republicans (and a few Democrats) oppose it and will oppose the entire supplemental as a result - because they support the troops.

Lastly and most important, attached to this bill is a truly heinous amendment written by Joe Lieberman and Lindsey Graham - but that's redundant - which would essentially rewrite the Freedom of Information Act and protect past abuses by keeping them secret.

It was one thing when President Obama reversed himself last month by announcing that he would appeal the Second Circuit's ruling that the Freedom of Information Act (FOIA) compelled disclosure of various photographs of detainee abuse sought by the ACLU. Agree or disagree with Obama's decision, at least the basic legal framework of transparency was being respected, since Obama's actions amounted to nothing more than a request that the Supreme Court review whether the mandates of FOIA actually required disclosure in this case. But now -- obviously anticipating that the Government is likely to lose in court again (.pdf) -- Obama wants Congress to change FOIA by retroactively narrowing its disclosure requirements, prevent a legal ruling by the courts, and vest himself with brand new secrecy powers under the law which, just as a factual matter, not even George Bush sought for himself.

The White House is actively supporting a new bill jointly sponsored by Sens. Lindsey Graham and Joe Lieberman -- called The Detainee Photographic Records Protection Act of 2009 -- that literally has no purpose other than to allow the government to suppress any "photograph taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States." As long as the Defense Secretary certifies -- with no review possible -- that disclosure would "endanger" American citizens or our troops, then the photographs can be suppressed even if FOIA requires disclosure. The certification lasts 3 years and can be renewed indefinitely. The Senate passed the bill as an amendment last week.

Plenty of House Democrats are angered by the inclusion of this highly pernicious amendment. While reports allege that Nouri al-Maliki was the driving force behind preventing the release of the photos, and that he claimed "Baghdad will burn" if they're released - quite at odds with the assertion by the President that the photos show "nothing sensational." But this is clearly a precedent too far, providing the President the sole discretion to suppress information above and beyond federal statutes. Barney Frank and another slice of House progressives will not support this amendment. And if they hold firm against the President, they can succeed.

Rep. Barney Frank, D-Mass. -- who initially opposed the package and is now trying to help Democratic leaders raise support for it -- said he recently told Treasury Secretary Timothy Geithner that liberal Democrats would not likely support the package if it includes the Lieberman amendment.

"I made it clear to the administration that I believe that we can get liberals like myself who are against the war [to] vote for it because the IMF is so important, but not if the [Freedom of Information Act] exception is in it," Frank said.

Rep. Louise Slaughter, D-N.Y., previously supported the supplemental but said she would not vote for the bill if it includes the amendment.

"There is no reason in the world for us to vote to suspend" FOIA, Slaughter said.

Nick Bauman has more, and views this fight as a first step for Congress to end the imperial presidency and the march toward official secrecy.

The photo suppression bill is an abomination that is reminiscent of the worst Bush-era excesses. It gives the executive branch the power to withhold an entire category of information from public scrutiny without any review. This law is Example A of the theory of the Presidency that says citizens should just trust the benevolent executive to do the right thing. Even in you oppose releasing some of the photos, I don't see why you would want to give the White House the power to unilaterally decide what's best. It says a lot about the Congress that members are willing to give Obama this kind of power. It says a lot about Obama that he supports this bill. Thank God for Barney Frank.

Jane Hamsher has an action item. To be clear, there's an easy way out of this - the President can ask the conference committee to strip the photo-suppression amendment, at which point passage would be fairly secure on a party-line vote.

Honest Dick

Nancy Pfothenpfhaupfer wants you to know that salt of the earth Dick Cheney, the guy who chopped down the cherry tree at Mount Vernon (OK, shot it in the face, actually) and admitted it to his father, would never tell a lie:

"You know, obviously you've got different opinions on the whole issue of harsh interrogation techniques. And of course, Cheney wasn't running in the last election, but Sen. McCain, for who I worked, was very clearly opposed to all these harsh interrogation techniques. And he went on record saying, as a former prisoner of war for five years, you don't get high quality information from these types of interrogations. People will basically say anything in order to make it stop. I don't believe, however, that the former Vice President would be making statements that he knew to be inaccurate."

Shuster just breaks up laughing from that one. And mockery is the right reaction. Because we're now seeing Cheney backtracking from his own statement that CIA classified documents will show that torture saved lives.

The key moment came when his interviewer said: “You want some documents declassified having to do with waterboarding.” Cheney replied:

“Yes, but the way I would describe them is they have to do with the detainee program, the interrogation program. It’s not just waterboarding. It’s the interrogation program that we used for high-value detainees. There were two reports done that summarize what we learned from that program, and I think they provide a balanced view.”

Bear with me here, because this is crucial. Cheney is carefully saying that the documents summarize what we learned from the overall interrogation program. Torture, of course, was only a component of that program. So he’s clearly saying that the docs summarize what was learned from a program that included non-torture techniques, too.

Here’s why this is important. It dovetails precisely with what Senator Carl Levin, who has also seen these docs, says about them. Levin claims the docs don’t do anything to “connect acquisition of valuable intelligence to the use of the abusive techniques.”

Of course, Cheney's only hedging in the event that the documents do get released, so he can find some other rhetorical ground. He was perfectly content to lie when he thought that the documents would never get released to the public. The same way he lied yesterday about the Iraq war saving lives, an unprovable negative based on things Saddam Hussein had no capacity to do. It's an obvious falsehood, but he can retreat to some ground where he can claim that nobody else could prove him false. The same with him foisting 9/11 off on Richard Clarke, on the grounds that counter-terrorism was his job so only he must be responsible. Never mind that Cheney takes all kind of credit for keeping America safe AFTER 9/11. And of course this analysis neglects plenty:

When the moderator reminded Cheney that Clarke had repeatedly warned the administration about al Qaeda’s determination to attack the U.S., Cheney snarkily replied, “That’s not my recollection, but I haven’t read his book.”

In fact, it was Cheney who “missed” the warning signs, not Clarke. New York Times reporter Philip Shenon’s book, “The Commission: The Uncensored History of the 9/11 Investigation,” reprinted some of Clarke’s emphatic e-mails warning the Bush administration of the al Qaeda threat throughout 2001:

“Bin Ladin Public Profile May Presage Attack” (May 3)

“Terrorist Groups Said Co-operating on US Hostage Plot” (May 23)

“Bin Ladin’s Networks’ Plans Advancing” (May 26)

“Bin Ladin Attacks May Be Imminent” (June 23)

“Bin Ladin and Associates Making Near-Term Threats” (June 25)

“Bin Ladin Planning High-Profile Attacks” (June 30)

“Planning for Bin Ladin Attacks Continues, Despite Delays” (July 2)

Similarly, Time Magazine reported in 2002 that Clarke had an extensive plan to “roll back” al Qaeda — a plan that languished for months, ignored by senior Bush officials:

Clarke, using a Powerpoint presentation, outlined his thinking to Rice. … In fact, the heading on Slide 14 of the Powerpoint presentation reads, “Response to al Qaeda: Roll back.” … The proposals Clarke developed in the winter of 2000-01 were not given another hearing by top decision makers until late April, and then spent another four months making their laborious way through the bureaucracy before they were readied for approval by President Bush.

Dick Cheney is a pathological liar, who knows enough to give himself a minor rhetorical out should anyone call him on it. He's also a pathetic child for relying on 9/11 trauma to explain their terror policies.

"Unless you were there, in a position of responsibility after September 11, you cannot possibly imagine the dilemmas that you faced in trying to protect Americans," Condoleezza Rice said last month as she admonished a Stanford University student who questioned the Bush-era interrogation program. And in his May 21 speech on national security, Dick Cheney called the morning of Sept. 11, 2001, a "defining" experience that "caused everyone to take a serious second look" at the threats to America. Critics of the administration have become more intense as memories of the attacks have faded, he argued. "Part of our responsibility, as we saw it," Cheney said, "was not to forget the terrible harm that had been done to America." [...]

Yes, we went for days with little sleep, and we all assumed that more attacks were coming. But the decisions that Bush officials made in the following months and years -- on Iraq, on detentions, on interrogations, on wiretapping -- were not appropriate. Careful analysis could have replaced the impulse to break all the rules, even more so because the Sept. 11 attacks, though horrifying, should not have surprised senior officials. Cheney's admission that 9/11 caused him to reassess the threats to the nation only underscores how, for months, top officials had ignored warnings from the CIA and the NSC staff that urgent action was needed to preempt a major al-Qaeda attack.

Thus, when Bush's inner circle first really came to grips with the threat of terrorism, they did so in a state of shock -- a bad state in which to develop a coherent response. Fearful of new attacks, they authorized the most extreme measures available, without assessing whether they were really a good idea.

Read that whole thing. It's an indictment of the worst Administration in history, who used a crisis to pursue long-sought goals, and rationalizing them through fear and deception.

Bush's Turn

I guess Cheney and Bush switched undisclosed locations for a week, and now the former pResident delivered the talking points about the torture regime.

In his largest domestic speech since leaving the White House in January, Bush told an audience in southwestern Michigan that after the September 11 attacks, "I vowed to take whatever steps that were necessary to protect you."

Although he did not specifically allude to the high-profile debate over President Obama's decision to halt the use harsh interrogation techniques, and without referencing Cheney by name, Bush spoke in broad strokes about how he proceeded after the capture of Khalid Sheikh Mohammed in March 2003.

"The first thing you do is ask, what's legal?" he said. "What do the lawyers say is possible? I made the decision, within the law, to get information so I can say to myself, 'I've done what it takes to do my duty to protect the American people.' I can tell you that the information we got saved lives."

Well, those are two different things, aren't they? "What's legal" does not necessarily equal "What do the lawyers say is possible." Especially depending on the sequencing of those events. If "what do the lawyers say is possible" comes first, and it's more "what can we get the lawyers to say is possible," then "what's legal" becomes fairly irrelevant, right? Especially when combined with "I vowed to take whatever steps that were necessary to protect you." That sounds like a vow irrespective of the law.

Then there's this unprovable "the information we got saved lives" statement, and considering that George Bush himself signed the executive order barring public disclosure of specific information gained through torture, and furthermore, he could have released them himself at the time if he wanted to be vindicated. For his part, Carl Levin has called B.S.

Regarding Cheney's claim that classified documents will prove his case -- documents that Levin himself is also privy to -- Levin said: "But those classified documents say nothing about the numbers of lives saved, nor do the documents connect acquisition of valuable intelligence to the use of abusive techniques. I hope that the documents are declassified, so that people can judge for themselves what is fact, and what is fiction."

Pretty unequivocal. But the last thing that Bush and Cheney want would be declassification. Because their tough-guy stance that torture saves lives works out better for them than chalking intelligence up to sugar free cookies.

This got to me:

The former president earned a noisy standing ovation when asked what he wants his legacy to be.

"Well, I hope it is this: The man showed up with a set of principles, and he was unwilling to compromise his soul for the sake of popularity," he said.

By the way, I'm willing to believe that Bush didn't compromise his soul. He probably didn't know about the worst stuff, and anyway you can't compromise a soul that would say this:

In the week before [Karla Faye Tucker's] execution, Bush says, Bianca Jagger and a number of other protesters came to Austin to demand clemency for Tucker. "Did you meet with any of them?" I ask.

Bush whips around and stares at me. "No, I didn't meet with any of them," he snaps, as though I've just asked the dumbest, most offensive question ever posed. "I didn't meet with Larry King either when he came down for it. I watched his interview with [Tucker], though. He asked her real difficult questions, like 'What would you say to Governor Bush?' "

"What was her answer?" I wonder.

"Please," Bush whimpers, his lips pursed in mock desperation, "don't kill me."

...wonder if George would listen to the advice of his commanders on this one:

MacCallum: (Ticking time bomb scenario)

Gen. Petraeus: ....T here might be an exception and that would require extraordinary but very rapid approval to deal with, but for the vast majority of the cases, our experience downrange if you will, is that the techniques that are in the Army Field Manual that lays out how we treat detainees, how we interrogate them -- those techniques work, that's our experience in this business.

MacCallum: So is sending this signal that we're not going to use these kind of techniques anymore, what kind of impact does this have on people who do us harm in the field that you operate in?

Gen. Petraeus: Well, actually what I would ask is, does that not take away from our enemies a tool which again have beaten us around the head and shoulders in the court of public opinion? When we have taken steps that have violated the Geneva Conventions, we rightly have been criticized, so as we move forward I think it's important to again live our values, to live the agreements that we have made in the international justice arena and to practice those.

If Petraeus admits that we violated the Geneva Conventions, isn't he calling indirectly for prosecutions of those who ordered such violations?

Rape At Abu Ghraib

We were told by the President that the photos he chose not to release were nothing particularly sensational and would do nothing to shed more light on the debate. British papers tend toward the lurid and dramatic, but they have an on-the-record source who is fairly unassailable.

Photographs of alleged prisoner abuse which Barack Obama is attempting to censor include images of apparent rape and sexual abuse, it has emerged.

At least one picture shows an American soldier apparently raping a female prisoner while another is said to show a male translator raping a male detainee.

Further photographs are said to depict sexual assaults on prisoners with objects including a truncheon, wire and a phosphorescent tube.

Another apparently shows a female prisoner having her clothing forcibly removed to expose her breasts.

Detail of the content emerged from Major General Antonio Taguba, the former army officer who conducted an inquiry into the Abu Ghraib jail in Iraq.

Allegations of rape and abuse were included in his 2004 report but the fact there were photographs was never revealed. He has now confirmed their existence in an interview with the Daily Telegraph.

The Pentagon denied these allegations, as did Press Secretary Robert Gibbs. They dismissed the Telegraph report and essentially called them untruthful. But of course, they're not attacking the source, and that is Major General Taguba, who knows more about the Abu Ghraib scandal than anybody.

“These pictures show torture, abuse, rape and every indecency.

“I am not sure what purpose their release would serve other than a legal one and the consequence would be to imperil our troops, the only protectors of our foreign policy, when we most need them, and British troops who are trying to build security in Afghanistan.

“The mere description of these pictures is horrendous enough, take my word for it.” [...]

Maj Gen Taguba’s internal inquiry into the abuse at Abu Ghraib, included sworn statements by 13 detainees, which, he said in the report, he found “credible based on the clarity of their statements and supporting evidence provided by other witnesses.”
Among the graphic statements, which were later released under US freedom of information laws, is that of Kasim Mehaddi Hilas in which he says: “I saw [name of a translator] ******* a kid, his age would be about 15 to 18 years. The kid was hurting very bad and they covered all the doors with sheets. Then when I heard screaming I climbed the door because on top it wasn’t covered and I saw [name] who was wearing the military uniform, putting his **** in the little kid’s ***…. and the female soldier was taking pictures.”

The translator was an American Egyptian who is now the subject of a civil court case in the US.

Three detainees, including the alleged victim, refer to the use of a phosphorescent tube in the sexual abuse and another to the use of wire, while the victim also refers to part of a policeman’s “stick” all of which were apparently photographed.

These aren't really even new allegations - Seymour Hersh made them several years ago, and has continued to make the charge. Not to mention that, aside from the decision to release the photos, there are legal issues at play here.

Gen. Taguba says he supports President Obama's decision to withold the photos, arguing that "The mere description of these pictures is horrendous enough, take my word for it." Fine—the debate over whether to release the photos is legitimate. I have a more immediate question. If the government is in possession of photographic evidence of an American soldier raping someone, has that soldier been prosecuted? The relevant section of the Uniform Code of Military Justice is here:

(a) Any person subject to this chapter who commits an act of sexual intercourse with a female not his wife, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.

It would take a pretty incompetent prosecution to fail to convict someone of a rape for which there is clear photographic evidence. But I can't find any public reference to such a court martial, let alone a conviction.

Maybe that would be "looking backward" and not forward.

This is outrageous and the Administration risks a major credibility gap when they continue to stand mute instead of addressing it. They lose authority at home and around the world by the day.

Obama DoJ Drops The AIPAC Spy Suit

So Jon Stewart's premature speculation that nobody in the Jane Harman/AIPAC case got what they wanted was upended today when the government dropped charges against the two former AIPAC staffers.

Prosecutors said they will ask a judge to dismiss the case against Steven J. Rosen and Keith Weissman because a series of court decisions had made it unlikely they would win convictions. The two are former lobbyists for the American Israel Public Affairs Committee, or AIPAC, an influential advocacy group.

Rosen and Weissman were charged in 2005 with conspiring to obtain classified information and pass it to journalists and the Israeli government. They were the first non-government civilians charged under the 1917 espionage statute with verbally receiving and transmitting national defense information. Some lawyers and First Amendment advocates have said the case would criminalize the type of information exchange that is common among journalists, lobbyists and think-tank analysts.

Harman had nothing to do with this, and I don't want to speculate on that. I just used it as a news peg to express my support for this dropping of charges. The case was less about Rosen and Weissman and more about the criminalization of journalistic practices that would have a chilling effect on the ability of investigative reporters to do their job. We have an overclassification problem in this country, used by the government to hide embarrassing secrets. So good for Obama in this case.

Commanding Officer Of The Army Of Stupids

Can I just say that I love wingnut Congressman Pete Hoekstra's Twitter feed? Not just because he responds to the fact that he doesn't know how to spell the names of people he's worked with for decades on Capitol Hill by saying "lighten up, it's called Twitter" (hm?), but because he uses it to leak unauthorized national security information:

Rep. Pete Hoeksra (R-MI), the ranking member of the House intelligence committee, revealed classified intelligence information on Twitter when he reported on his “congressional trip to Iraq this weekend that was supposed to be a secret.” “Just landed in Baghdad,” messaged Hoekstra, who was part of a delegation led by John Boehner (R-OH). CQ reports, “Before the delegation left Washington, they were advised to keep the trip to themselves for security reasons."

The ironies here are rich. First, Hoekstra is the former head of the House INTELLIGENCE Committee. He has repeatedly spoken about the dangers of revealing national security information, and wanted to eliminate whistleblower protections because it would "compromise national security." Also, this isn't the first time Hoekstra has inadvertently revealed national security secrets. That was back in 2006 in perhaps my favorite wingnut FAIL. Hoekstra, who was convinced that we found the weapons of mass destruction in Iraq, pushed the National Intelligence Director to put internal Iraqi documents on the Web, so the "Army of Davids" could sort through them and prove, PROVE, that Iraq had WMD and ties to al Qaeda. And this is how Pete Hoekstra put nuclear secrets on a public website:

Yesterday Rep. Peter Hoekstra (R-MI), chairman of the House Permanent Select Committee on Intelligence, blamed the New York Times and the IAEA for the leak of sensitive Iraqi documents — a “nuclear primer” on how to build an atomic bomb — on a public government website:

Concerns by the New York Times and the IAEA prompted the government to shut down the website. The IAEA, “fearing that the information could help states like Iran develop nuclear arms,” privately protested last week to the American ambassador. The Bush administration shut down the site on Thursday evening, only after the New York Times “asked about complaints from weapons experts and arms-control officials.”

Hoekstra, on the other hand, was responsible for making that information public in the first place. Last November, he and Sen. Pat Roberts (R-KS) wrote to Director of National Intelligence John Negroponte and asked him to the post the Iraqi documents.

The fact that Hoekstra is retiring means that my favorite Twitter feed will be less vital, but also that American secrets won't be constantly revealed to the world, so it balances out.

Sandy Berger With Papers Down His Pants

In 2004, practically the entire Democratic convention was overshadowed with story upon story of former Clinton National Security Adviser Sandy Berger grabbing classified documents from the National Archives and using them for testimony with the 9-11 Commission. While it appeared that Berger was using them to refresh his memory about counter-terrorism operations rather than sell out his country to the Koreans, this was seen as dead-solid proof of Democratic perfidy and their lack of seriousness on national security, indeed their inability to be trusted with the most crucial secrets of the nation. Before that you can go back to toe-sucker Dick Morris becoming the story at the 1996 DNC.

Did this get mentioned on even one cable news report today?

A Justice Department report scolds former Attorney General Alberto Gonzales for mishandling highly classified documents about an eavesdropping program and interrogating terror detainees — two of the Bush administration's most sensitive counter-terror efforts.

The report says Gonzales failed to store the documents in proper secure facilities and at one point took them home. The report released Tuesday also says he stored them in his briefcase because he did not know the combination to the safe at his house.

Justice Department Inspector General Glenn A. Fine referred the security breach to the department's National Security Division. But the reports says prosecutors there declined to bring charges against Gonzales.

Why would they? It's Bush's Justice Department, after all, right?

I really hate even wondering if a fair standard will ever get applied to stories about Democrats and Republicans because it won't. Not anytime soon. But surely, on the day that George Bush speaks to RNC delegates, the fact that his Fredo, his handpicked Attorney General, the man who could be sitting on the Supreme Court right now if he had his way, mishandled classified information about illegal programs ought to get at least a mention, no?

(Maybe Berger should have used the "I forgot" defense like Fredo?)

...emptywheel has a lot more on this, including connections to the FISA fight.

How Fourthbranch Works

Newsweek's Michael Isikoff has posted a fascinating interview with J.William Leonard, the head of the National Archives' Information Security Oversight Office (ISOO), which deals with classified documents from the executive branch. He was the major figure in the fight by Dick Cheney to define his office as a fourth branch of government existing outside executive branch accountability. I've been calling him "Fourthbranch" ever since (like the Taco Bell ad: "think outside the Constitution"). In the interview, Leonard details just how uniquely Cheney and his minions see their responsibilities to other government agencies.

NEWSWEEK: Explain how all this happened.

Leonard: Up until 2002, OVP was just like any other agency. Subsequent to that, they stopped reporting to us…At first, I took that to be, 'we're too busy.' Then we routinely attempted to do a review of the OVP and it was at that point in time it was articulated back to me that: 'well they weren't really subject to our reviews.' I didn't agree with it. But you know, there is a big fence around the White House. I didn't know how I could get in there if somebody didn't want me to.

So how did matters escalate?

The challenge arose last year when the Chicago Tribune was looking at [ISOO's annual report] and saw the asterisk [reporting that it contained no information from OVP] and decided to follow up. And that's when the spokesperson from the OVP made public this idea that because they have both legislative and executive functions, that requirement doesn't apply to them.…They were saying the basic rules didn't apply to them. I thought that was a rather remarkable position. So I wrote my letter to the Attorney General [asking for a ruling that Cheney's office had to comply.] Then it was shortly after that there were [email] recommendations [from OVP to a National Security Council task force] to change the executive order that would effectively abolish [my] office.

Who wrote the emails?

It was David Addington.

No explanation was offered?

No. It was strike this, strike that. Anyplace you saw the words, "the director of ISOO" or "ISOO" it was struck.

Here we have the Fourthbranch way. Assume the laws don't apply to you; when pressed, threaten to abolish the law or the agency that attempts to execute it. And since Cheney is not a lawyer, his appointed henchman in these matters is now David Addington. There's always one degree of separation for Fourthbranch, be it Libby or Addington or whoever. And the new firewall may get torched by the ongoing torture tape investigation.

The House Intelligence Committee has scheduled a hearing on January 16 (pdf) regarding the destruction of CIA interrogation videotapes of two al Qaeda suspects held in secret overseas prisons, Abu Zubaydah and Abd al-Rahim al-Nashiri.

The order to destroy the tapes allegedly was given by Jose Rodriguez who at that time was head of the CIA’s clandestine service. Rodriguez, who has hired lawyer Robert Bennett to represent him, has no intention of being the scapegoat.

The TimesonLine reports Rodriguez is seeking immunity for his testimony. Who might he give up?

Four names in the White House have surfaced so far. My money is on Cheney lawyer (now his Chief of Staff) David Addington.

Reports have cited four White House and OVP staffers as having discussed the tapes with the CIA, and have gone out of their way to assure that three of them advised against destruction. Only Addington is left hanging out to dry. And of course, the CIA ignored the advice of everyone but Addington.

It's hard to understate the level to which Fourthbranch runs this government without being subject to regular government scrutiny. Just this week he's been implicated in denying a waiver to California to set their own greenhouse gas emissions targets. You can add that to the secret energy meetings, enabling the Enron energy blackouts in California in 2001, the Plame leak, official secrecy including making up a classification for his own documents, the tax cuts ("This is our due!"), war in Iraq, the looming threat of war in Iran, environmental policy, and well, everything in the Angler series.

The Office of the Vice President is a relic of the compromise that forged the Constitution, almost wholly unnecessary in the function of a 21st-century state. While it seemed a useless honorific only given meaning when a President died in office (and there are plenty of other ways to create a line of succession), it lingered because nobody could fathom anything bad arising from it.

They never met Fourthbranch.

Fourthbranch Oozes Back Into The Third Branch - But Still Stonewalls

Mike Allen definitely got played when he wrote this headline:

Dems force Cheney flip-flop on secret docs

Dick Cheney's office is abandoning a justification for keeping the Vice-President's secret papers out of the hands of the National Archives.

Officials working for Cheney had tried to claim he is separate from the executive branch, but they will no longer pursue that defense, senior administration officials tell The Politico.

Believe me, I like any headline that begins "Dems force Cheney." But they haven't force him to do a whole lot. While his lawyers are giving up on trying to justify the ridiculous Fourth Branch of government claim, they aren't at all done resisting efforts to release information:

Dick Cheney's chief of staff, David Addington, issued a letter to Sen. John Kerry (D-MA) today defending the Vice President's interpretation of his office being outside the executive branch - only this time, he said it was because Cheney's office isn't an "agency."

A copy of the letter from David Addington to Sen. John Kerry, D-Mass., was released to RAW STORY. Kerry said the "legalistic" response from Addington "raises more questions than it purports to answer."

"Dear Senator Kerry," Addington writes. "The executive order on classified national security information -- Executive Order 12958 as amended in 2003 -- makes clear that the Vice President is treated like the President and distinguishes the two of them from 'agencies.'"

No longer satisfied with the Vice President's office's claim that Cheney is actually an admixture between the legislative and executive branch, Addington now posits that the Vice President's office is not an "agency."

"The executive order gives the [Information Security Oversight Office], under the supervision of the Archivist of the United States, responsibility to oversee certain activities of 'agencies,' but not of the Vice President or the President."

It will not surprise you to know that if you're a constitutional scholar and you actually READ the executive order in question, Addington's reasoning is transparently silly.

Most importantly, Addington's argument would appear to be inconsistent with the statute that required the promulgation of the E.O. in the first place, the Counterintelligence and Security Enhancements Act of 1994, which requires (50 U.S.C. 435(a)) the President to "establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government." (Thanks to "gnarly trombone" in the comments for the cite.) Unless there is some reason to think that Congress did not mean to cover the Office of the Vice President in this directive -- which would surprise me, although I don't know anything about the intracacies of this statute -- then the E.O. must be construed to cover that Office. (Unless, of course, the statute would to that extent unconstitutionally impinge on the Commander in Chief's authority . . . but who would be so audacious as to make that far-fetched argument? (Yes, that's a rhetorical question.)

TPM Muckraker has more on this.

The Senate Judiciary Committee decided to step into this nonsense, albeit from a different angle, by issuing subpoenas for documents relating to the warrantless wiretapping program. This impacts Abu G as well, last seen dodging protestors in Idaho, since he claimed under oath that there was no internal disputes about the warrantless wiretapping program, yet James Comey testified the exact opposite and in fact detailed the nature of the dispute (as well as his Midnight Ride to stop Fredo and Card from preying upon John Ashcroft when he was sick in the hospital. The Judiciary Committee is seeking documents from DoJ as well.

But the fact that they're subpoenaing documents from the OVP means that Fourthbranch will have to trot out an executive privilege argument again. At which point he'll be again asked to comply with executive branch rules regarding oversight of classified information procedures. So Fourthbranch has stepped into a vicious cycle.

The Democrats in the Congress have really pounced on this. It's great theater. Hopefully they can walk and chew gum, and press this advantage elsewhere as well.

UPDATE: Fredo's also been dragging his feet on the supposed "investigation" of Cheney's exemption from oversight rules, and so House leaders have written him.