Saturday, June 30, 2007

Supreme Court To Rule On Legality Of Guantanamo Detention Policy

The Supreme Court yesterday reversed itself and agreed to consider whether detainees at Guantanamo Bay have been unfairly barred from the federal courts by the Bush administration and Congress, a move that may finally determine legal rights for foreign-born terrorism suspects.

The case, which could become one of the most important of the court's next term, will address whether subjecting the detainees to military commissions instead of allowing them access to federal courts violates the Constitution. In April, the court decided not to hear an appeal from the detainees.

Yesterday's decision to change course and hear the case was so unusual that lawyers and court experts went to the archives to try to find the last time it happened. The only consensus was that it had been decades.

"The Supreme Court is going to decide the simple question: Does the Constitution protect the detainees?" said Georgetown University law professor Neal K. Katyal, who successfully argued a detainee case that the court decided just a year ago. In that case, the justices said President Bush did not have authority to set up the military tribunals that the administration thought should hear the cases against the detainees.

In April, three justices -- David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- said they were eager to hear the appeals, which presented questions that "deserve this court's immediate attention." It takes four justices to agree to take a case.

Justices John Paul Stevens and Anthony M. Kennedy said at the time that they would continue to monitor the legal proceedings involving the detainees. It takes five votes to rehear a denial, so perhaps the two justices concluded that they have seen enough. The court's order is silent on which justices agreed to hear the case.

The Bush administration had urged the court not to take the appeals. "The grant of a petition for rehearing from a denial of certiorari is an extraordinary remedy, warranted only where there have been 'intervening circumstances of a substantial or controlling effect' or 'other substantial grounds not previously presented,' " Solicitor General Paul D. Clement told the court this month, adding that petitioners had shown neither.

David Remes, a lawyer for some of the detainees who brought the case, said the court did not have to make the decision to take the case now, "so what obviously happened is the justices decided to confront the issue sooner rather than later." ...

The Supreme Court had twice ruled that Guantanamo detainees had access to federal courts to contest their incarcerations, but the court also made clear that Congress could weigh in on the issue. Lawmakers did so last fall by approving the Military Commissions Act, which stripped habeas corpus rights and mandated special military trials for the detainees.

In February, the U.S. Court of Appeals for the District of Columbia Circuit upheld the habeas corpus provision of the act, and that case is what the court agreed to hear yesterday.

Friday, June 29, 2007

Bush Claims Executive Privilege in U.S. Attorney Case

President Bush moved one step closer to a constitutional showdown with Democrats on Thursday, as the White House asserted executive privilege in refusing to comply with Congressional subpoenas for documents related to the dismissal of federal prosecutors.

The move prompted Democrats to accuse the White House of stonewalling, and seemed to put the legislative and executive branches on a collision course that could land them in court. It was the second time in Mr. Bush's presidency that he has formally asserted executive privilege, the power first recognized by the Supreme Court in a 1974 Watergate-era case.

On Thursday morning, the White House counsel, Fred F. Fielding, telephoned the Democratic chairmen of the House and Senate Judiciary Committees, which had issued the subpoenas, to inform them of Mr. Bush's decision. The president also intends to invoke executive privilege to prevent two of his former top aides, Harriet E. Miers, the former White House counsel, and Sara Taylor, the former political director, from testifying, officials said.

"With respect, it is with much regret that we are forced down this unfortunate path," Mr. Fielding wrote in a letter to the committee chairmen, Senator Patrick J. Leahy of Vermont and Representative John Conyers Jr. of Michigan. He said the committees had issued "unfettered requests."

Mr. Conyers, in a telephone interview, called the letter "an appalling response to a reasonable question," adding, "This is reckless; it’s a form of governmental lawlessness that is really astounding."

The letter seemed to lay the groundwork for how the administration will respond to a separate, unrelated, round of subpoenas, issued by the Senate panel Wednesday to the White House, Vice President Dick Cheney's office and the Justice Department for information about the domestic eavesdropping program run by the National Security Agency.

Administration officials said they had not decided how to respond to those demands, but experts said it seemed clear that the White House would refuse to comply there, too.

"Given the way in which both the U.S. attorney matter and the N.S.A. matter are now percolating through committees, I would be very surprised if there were not a major showdown over executive privilege," said Peter M. Shane, a law professor at Ohio State University and an authority on executive privilege. "It might not get to court, but there will have to be some very high pressure negotiations at a very late stage to avoid that."

The clash pits the Congressional right to conduct oversight -- in this case, an investigation into whether the Justice Department allowed partisan politics to interfere with hiring and firing of federal prosecutors -- against the president's right to unfettered and candid advice from his top aides. Experts disagree about how a court might rule.

Mr. Shane says Congress has a strong argument, because it is making a specific claim that it needs information to conduct an oversight investigation, and "specific claims of necessity usually outweigh general claims" like the one the administration asserts, arguing the president's need for unfettered advice. ...

The next step is for Democrats to decide whether to try to negotiate with the White House or to vote on a contempt resolution, a process that could take months and would lay the groundwork for sending the matter to court. Democrats did not say Thursday how they intended to proceed, although by the sound of their comments, negotiations did not seem likely any time soon.

Thursday, June 28, 2007

Senate Judiciary Committee Gets Serious About CATCH ALL

The Senate Judiciary Committee on Wednesday issued subpoenas to the White House, Vice President Dick Cheney's office and the Justice Department after what the panel's chairman called "stonewalling of the worst kind" of efforts to investigate the National Security Agency's policy of wiretapping without warrants. ...

Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the committee, said the subpoenas seek documents that could shed light on the administration's legal justification for the wiretapping and on disputes within the government over its legality.

In addition, the panel is seeking materials on related issues, including the relationship between the Bush administration and several unidentified telecommunications companies that aided the N.S.A. eavesdropping program.

Mr. Leahy said Wednesday at a news conference that the committee had issued the subpoenas because the administration had followed a "consistent pattern of evasion and misdirection" in dealing with Congressional efforts to scrutinize the program.

"It's unacceptable," Mr. Leahy said. "It is stonewalling of the worst kind."

The White House, the vice president's office and the Justice Department declined Wednesday to say how they would respond to the subpoenas.

"We're aware of the committee's action and will respond appropriately," said Tony Fratto, White House deputy press secretary.

"It's unfortunate that Congressional Democrats continue to choose the route of confrontation," Mr. Fratto added.

The route of acquiescence in the face of blatant lawbreaking -- the operative practice when the GOP controlled Congress -- is definitely the administration's preference.

Tuesday, June 26, 2007

Convicted Democratic Ex-Alabama Governor Alleges Rove Plot

As Don Siegelman, the former Democratic governor of Alabama, goes before a federal judge today to fight a recommended 30-year prison sentence, he's telling anyone who'll listen that his prosecution was engineered by White House strategist Karl Rove.

It may be a long shot as a legal argument, but at least one influential Republican and a number of Democrats are questioning whether politics may have played a role in the case.

All but a handful of more than 100 charges against the former governor were rejected, his defenders point out.

And the bribery charge on which he was convicted did not involve pocketing money personally, but rather persuading a rich business executive to put $500,000 into a campaign for a state lottery to support education.

Prosecutors said Siegelman, 61, named the executive to a state board, though the executive had held the same position under three previous governors.

The other charge on which Siegelman was found guilty, obstruction of justice, centered on trying to conceal a $9,200 deal involving a motorcycle he said he was trying to sell.

The 30 years in prison that prosecutors are asking U.S. District Judge Mark Fuller to impose could be a life sentence, his lawyers say, and more than the average meted out to murderers in Alabama.

"Congressional committees ought to investigate what in the world went on in this case," said Grant Woods, a Republican former attorney general of Arizona. Woods, who still tries high-profile cases as a special prosecutor, has reviewed the charges against Siegelman as a former colleague and friend.

"From start to finish, this case has been riddled with irregularities. It does not pass the smell test," Woods said.

Siegelman's supporters argue that his popularity and his history of attracting both black and white voters — dating to 1998, when he was elected governor — made him a target for GOP political strategists and may have played a role in a long-running effort by the offices of Republican U.S. attorneys to bring him down.

His supporters point to a welter of circumstantial and other evidence to support their view.

A previous indictment, for instance, was scotched by another federal judge in 2004 with a scathing rebuke to the government. Just this month, a Republican lawyer signed a sworn statement that she had heard five years ago that Rove was preparing to politically neutralize the popular Siegelman.

And there are links between the case and GOP political activists, as well as an alleged failure by prosecutors or Fuller to conduct a vigorous investigation into evidence that prejudicial e-mails may have been sent to jurors during Siegelman's recent trial.

The controversy in part reflects the loss of credibility suffered by the Bush Justice Department in the wake of evidence that Rove and members of his staff played a role in the firing of eight U.S. attorneys last year. In several of those cases, U.S. attorneys targeted for removal had been criticized by Bush officials for not being sufficiently attentive to GOP political priorities.

White House spokesman Tony Fratto waved away the controversy, saying: "Someone is always making some baseless charge about Karl. Unfortunately I can't comment in this case while legal proceedings are ongoing."

The lead government attorney in the case, career prosecutor Louis Franklin, said he had not been subjected to pressure.

Political corruption cases are nothing new in Alabama. Siegelman's three gubernatorial predecessors — two Republicans and a Democrat — faced criminal inquiries. Two were indicted and convicted.

But Siegelman's case differs from the usual pattern in some ways. For example, former Gov. Guy Hunt, a Republican, was found guilty in state court of personally pocketing $200,000. And state prosecutors sought probation, not jail time, in the Hunt case.

Monday, June 25, 2007

Senate Subcommittee To Release Amaranth Report

The Bear Stearns CDO Hedge Fund exigency is reminding some people of another recent low liquidity event.

After a nine-month investigation, a bipartisan Senate subcommittee is expected to issue a report today detailing how a single hedge fund, Amaranth Advisors, dominated the North American natural gas market last year, causing high prices and extreme volatility that ultimately led to its stunning collapse.

Amaranth, once a star hedge fund, lost more than $6.5 billion on disastrous bets in the natural gas market last summer before shutting itself down. The fund's activities are still under investigation by the Commodity Futures Trading Commission.

Investigators from the Senate Permanent Subcommittee on Investigations examined millions of trading records from the two main American energy exchanges, the New York Mercantile Exchange, or Nymex, and the Intercontinental-Exchange, known by its acronym, ICE. In a 135-page report, the investigators pieced together the events that led to Amaranth's collapse, from the start of 2006 to the fateful final weeks of last September.

The report found that Amaranth held as many as 100,000 natural gas contracts in a single month, accounting for 5 percent of the total amount of natural gas consumed in the United States last year. The position was so large that it allowed the company to dominate trading in natural gas futures and push up prices.

By the end of February 2006, for example, the fund held nearly 70 percent of the open interest in the November future contracts on Nymex and nearly 60 percent in the futures for January.

It was that size that led to its collapse: Amaranth made a huge bet that natural gas spreads — or the difference between two monthly future contracts — would rise, and it kept pumping more money into that bet. When prices fell, Amaranth found itself on the wrong side of the market and could not make up for its losses.

The investigation offers a fascinating insight into the company's doomed trading strategy, revealing both missed opportunities and what appeared to be destructive greed. The turning point came in May 2006, according to the report, when Amaranth's energy portfolio showed a loss of $1 billion.

"By the end of May, at least some of Amaranth's traders and officers were aware of the firm’s predicament — that it had accumulated larger natural gas positions than it could sell profitably," the report said. "In June and July 2006, Amaranth did not, however, pare down its spread positions; it enlarged them."

By the end of August, Amaranth was pumping in more money to hold its position, but the market had taken a different direction. After starting 2006 with $7.5 billion, the fund soared to $9.2 billion and eventually collapsed to less than $3 billion.

The investigation also faults Nymex for failing to restrain Amaranth in time. Nymex officials had known since May 2006 that Amaranth had accumulated sizable holdings in several future contracts. When Nymex finally asked Amaranth to reduce its holdings, in August, the fund simply moved its assets from Nymex to ICE, an exchange that is exempt from federal regulation.

In a hearing on Capitol Hill today, Senator Carl Levin, Democrat of Michigan, who is chairman of the subcommittee that conducted the investigation, is expected to draw attention to the lack of regulatory oversight of ICE.

Among the report's recommendations, the report urges Congress to "reinvigorate" prohibitions against excessive speculation, provide more funds to the Commodity Futures Trading Commission and close the "Enron loophole," a provision in the Commodity Exchange Act, requested by Enron in 2000, that exempts crucial energy commodities from government oversight.

"Current commodity laws are riddled with exemptions, exclusions and limitations that make it virtually impossible for regulators to police U.S. energy markets," Mr. Levin said.

Update: The reports have now been issued (PDFs).

Senate Permanent Subcommittee on Investigations Staff Report - Excessive Speculation in the Natural Gas Market

Appendix - Excessive Speculation in the Natural Gas Market

White House Quietly Discussing Iraq "Decentralization" (Partition) With Congress

The Bush administration has begun exploring ways of offering Congress a compromise deal on Iraq policy to avert bruising battles in coming months, U.S. officials said.

With public support of the war dropping, President Bush has authorized an internal policy review to find a plan that could satisfy opponents without sacrificing his top goals, the officials said.

The president and senior officials "realize they can't keep fighting this over and over," said one administration official, who along with others declined to be identified because they weren't authorized to speak publicly or because decisions were pending.

The Republican White House has not opened formal negotiations with the Democratic-controlled Congress. But some senior administration officials — including Defense Secretary Robert M. Gates and U.N. Ambassador Zalmay Khalilzad — have been quietly talking with lawmakers about how to adjust policy in the months ahead. Among other ideas, they have discussed whether the United States should advocate a sharply decentralized Iraq, a notion that has seen a resurgence on Capitol Hill. ...

But whatever others in his administration are advocating, Bush has not embraced a drawdown in the absence of greater stability, administration officials emphasized.

The White House has opposed proposals in Congress to partition Iraq, or sharply decentralize its government.

That idea — what proponents of decentralization call a "federal system of government" — is favored by an unusually broad bipartisan group of senators. They were pulled together this month by Senate Foreign Relations Committee Chairman Joseph R. Biden Jr. (D-Del.), a presidential candidate, to cosponsor a nonbinding resolution supporting the federalism plan.

And the administration stance may be easing. On a trip to Iraq about a week ago, Gates openly reflected that greater emphasis outside Baghdad might prove more effective. "Perhaps we have gotten too focused on the central government, and not enough on the provinces and on the tribes and what is happening in those areas," Gates told reporters.

And U.N. Ambassador Khalilzad, who was the U.S. ambassador to Iraq until April, has discussed the federalism plan with Biden and Biden's fellow sponsor and presidential hopeful Sen. Sam Brownback (R-Kan.), lawmakers said.

Khalilzad, in an interview, rejected the idea of imposing decentralization on the Iraqis, saying it could "backfire politically … if it's a 'made-in-Washington' kind of idea."

But Khalilzad said he favored the idea of U.N. officials helping Iraqis decide, in their current deliberations over their constitution, whether to choose a structure that would transfer power to the regions. "If they want to go that route, it's certainly an option," he said.

Sunday, June 24, 2007

Ex-Surveillance Judge Criticizes Warrantless Spying

A federal judge who used to authorize wiretaps in terrorism and espionage cases criticized yesterday President Bush's decision to order warrantless surveillance after the Sept. 11, 2001, attacks.

"We have to understand you can fight the war [on terrorism] and lose everything if you have no civil liberties left when you get through fighting the war," said Royce C. Lamberth, a U.S. District Court judge in Washington and a former presiding judge of the Foreign Intelligence Surveillance Court, speaking at the American Library Association's annual convention.

Lamberth, who was appointed to the federal bench by President Ronald Reagan, expressed his opposition to letting the executive branch decide on its own which people to spy on in national security cases.

The judge said it is proper for executive branch agencies to conduct such surveillance. "But what we have found in the history of our country is that you can't trust the executive," he said.

"The executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can't be at all costs," Lamberth said at the Washington Convention Center. "We still have to preserve our civil liberties. Judges are the kinds of people you want to entrust that kind of judgment to more than the executive." ...

Lamberth took issue with Bush's approach.

He said the special court, established by the Foreign Intelligence Surveillance Act, met the challenge of reacting quickly to the Sept. 11 attacks. Lamberth was stuck in a carpool lane near the Pentagon when a hijacked jet slammed into it that day. With his car enveloped in smoke, he called marshals to help him get into the District.

By the time officers reached him, Lambert said, "I had approved five FISA coverages [warrants] on my cellphone." He also approved other warrants at his home at 3 a.m. and on Saturdays.

"In a time of national emergency like that, changes have to be made in procedures. We changed a number of FISA procedures," Lamberth said.

Normal FISA warrant applications run 40 to 50 pages, but in the days after Sept. 11, the judge said, he issued orders "based on the oral briefing by the director of the FBI to the chief judge of the FISA court."

Lamberth would not say whether he thought Bush's warrantless surveillance was constitutional. "Judges shouldn't give advisory opinions, and I was never asked to give an opinion in court," he said.

But, he said, when the NSA briefed him about the program, he advised the agency to keep good records so that, if any applications came to the FISA court based on information obtained from the warrantless surveillance, the court could rule on the legality.

He said he never got such an application.

Lamberth defended the court against those who say it is rubber stamp and said if the government is working properly, most applications should be approved.

"We're making sure there's not some political shenanigan going on or some improper motive for the surveillance," Lamberth said. "The fact that they have to submit it to us keeps them honest."

Lambert also criticized FBI Director Robert Mueller for allowing the agents in charge of all 56 FBI field offices to approve National Security Letters. These allow agents to demand information from phone companies, Internet service providers and corporations without court warrants in national security cases.

The Justice Department's inspector general recently estimated there were 3,000 violations of law between 2002 and 2005 in the FBI's use of the letters.

"Once they saw how the field offices had screwed this all up, I thought that would be a good time to centralize the approvals" in one Washington office that could enforce the rules uniformly, Lamberth said. "Unfortunately, Mueller and (Attorney General Alberto) Gonzales did not do that."

Saturday, June 23, 2007

Laws Are For Other People

First, the Office of the Vice President claimed they were exempt from a certain law regarding classified material.

Now, the Office of the President is making the same claim.

The nation is by now used to President Bush acting as if he were above the law, and issuing "signing statements" reserving the right to ignore enacted law, but there is probably more to their reluctance to be bound by the secrecy law in question than meets the eye.

The White House said Friday that, like Vice President Dick Cheney's office, President Bush's office is not allowing an independent federal watchdog to oversee its handling of classified national security information.

An executive order that Bush issued in March 2003 — amending an existing order — requires all government agencies that are part of the executive branch to submit to oversight. Although it doesn't specifically say so, Bush's order was not meant to apply to the vice president's office or the president's office, a White House spokesman said.

The issue flared Thursday when Rep. Henry A. Waxman (D-Los Angeles) criticized Cheney for refusing to file annual reports with the federal National Archives and Records Administration, for refusing to spell out how his office handles classified documents, and for refusing to submit to an inspection by the archives' Information Security Oversight Office.

The archives administration has been pressing the vice president's office to cooperate with oversight for the last several years, contending that by not doing so, Cheney and his staff have created a potential national security risk.

Bush amended the oversight directive in response to the Sept. 11 terrorist attacks to help ensure that national secrets would not be mishandled, made public or improperly declassified.

The order aimed to create a uniform system for classifying, declassifying and otherwise safeguarding national security information. It gave the archives' oversight unit responsibility for evaluating the effectiveness of each agency's classification programs. It applied to the executive branch of government, mostly agencies led by Bush administration appointees — not to legislative offices such as Congress or to judicial offices such as the courts.

"Our democratic principles require that the American people be informed of the activities of their government," the executive order said.

But from the start, Bush considered his office and Cheney's exempt from the reporting requirements, White House spokesman Tony Fratto said in an interview Friday.

Cheney's office filed the reports in 2001 and 2002 but stopped in 2003.

As a result, the National Archives has been unable to review how much information the president's and vice president's offices are classifying and declassifying. And the security oversight office cannot inspect the president and vice president's executive offices to determine whether safeguards are in place to protect the classified information they handle and to properly declassify information when required.

Those two offices have access to the most highly classified information, including intelligence on terrorists and unfriendly foreign countries.

Waxman and J. William Leonard, director of the Information Security Oversight Office, have argued that the order clearly applies to all executive branch agencies, including the offices of the vice president and the president.

The White House disagrees, Fratto said.

"We don't dispute that the ISOO has a different opinion. But let's be very clear: This executive order was issued by the president, and he knows what his intentions were," Fratto said. "He is in compliance with his executive order."

Fratto conceded that the lengthy directive, technically an amendment to an existing executive order, did not specifically exempt the president's or vice president's offices. Instead, it refers to "agencies" as being subject to the requirements, which Fratto said did not include the two executive offices. "It does take a little bit of inference," Fratto said.

Steven Aftergood, director of the Federation of American Scientists' government secrecy project, disputed the White House explanation of the executive order.

He noted that the order defines "agency" as any executive agency, military department and "any other entity within the executive branch that comes into the possession of classified information" — which, he said, includes Bush's and Cheney's offices.

Cheney's office drew criticism Thursday for claiming that it was exempt from the reporting requirements because the vice president's office is not fully within the executive branch. It cited his legislative role as president of the Senate when needed to break a tie. ...

Several security experts said they were not aware that the president had exempted his own office from the oversight requirements. ...

"If they get a blank check, it's a recipe for disaster. I can't think of a quicker way to break down the credibility of the entire security-classification system."

Blanton noted that the White House had acknowledged that a substantial number of in-house e-mails had disappeared in recent years, at a time when investigators wanted to review them for possible evidence of inappropriate leaks of classified information.

"If there are all these great safeguards in place, then where are the e-mails?" Blanton asked.

Not to mention all sorts of 9/11 related material.

Friday, June 22, 2007

Ashcroft Talks To House Intelligence Committee About CATCH ALL

Former Attorney General John Ashcroft testified yesterday in front of the House Intelligence Committee about administration disputes over the extra-legal NSA warrantless surveillance program (CATCH ALL).

The administration was sharply divided over the legality of President George W. Bush's most controversial eavesdropping policies, a congressman quoted former Attorney General John Ashcroft as telling a House panel.

"It is very apparent to us that there was robust and enormous debate within the administration about the legal basis for the president's surveillance program," Intelligence Committee Chairman Silvestre Reyes told reporters after a closed-door meeting with Ashcroft on Thursday.

The point is critical to two matters being considered in the Democratic-controlled Congress: One is the House and Senate Intelligence committees' review of 1978 Foreign Intelligence Surveillance Act, which includes an extensive examination of the president's warrantless eavesdropping program.

The other is the House and Senate Judiciary Committees' parallel examinations of current Attorney General Alberto Gonzales' service to the administration. Under that probe, former Deputy Attorney General James Comey revealed that Gonzales, then White House counsel, tried to pressure him and a critically ill Ashcroft to certify the legality of the wiretapping program, which involved listening in on phone calls and intercepting email.

Comey and Ashcroft, who was in intensive care during Gonzales' 2004 hospital visit, refused to comply.

Also Thursday, the Senate Judiciary Committee authorized — but did not issue — subpoenas to Gonzales and to the custodian of records at the Executive Office of the President for all administration documents on the legality of the program. The panel approved giving Chairman Patrick Leahy, a Democrat, authority to issue the subpoenas, 13-3, with Republican Sens. Arlen Specter, Orrin Hatch and Chuck Grassley voting with the Democrats.

The White House made no move to comply.

"It's important for Congress to understand that the information the committee is requesting is highly classified and not information we can make available," said Bush spokesman Tony Fratto. "Also important is for Congress to respect our need to ensure that internal executive branch deliberations are confidential.

Democrats have insisted that the hospital story appears to contradict Gonzales' congressional testimony that there had been no significant disagreement within the administration over the program. Gonzales has stood by his testimony.

Thursday, June 21, 2007

'Enhanced Interrogation Technique' Skullduggery

"We have to work the dark side..." --Dick Cheney, in the aftermath of 9/11.

There is growing evidence of high-level coordination between the Central Intelligence Agency and the U.S. military in developing abusive interrogation techniques used on terrorist suspects. After the Sept. 11 attacks, both turned to a small cadre of psychologists linked to the military's secretive Survival, Evasion, Resistance and Escape program to "reverse-engineer" techniques originally designed to train U.S. soldiers to resist torture if captured, by exposing them to brutal treatment. The military's use of SERE training for interrogations in the war on terror was revealed in detail in a recently declassified report. But the CIA's use of such tactics -- working in close coordination with the military -- until now has remained largely unknown.

According to congressional sources and mental healthcare professionals knowledgeable about the secret program who spoke with Salon, two CIA-employed psychologists, James Mitchell and Bruce Jessen, were at the center of the program, which likely violated the Geneva Conventions on the treatment of prisoners. The two are currently under investigation: Salon has learned that Daniel Dell'Orto, the principal deputy general counsel at the Department of Defense, sent a "document preservation" order on May 15 to the chairman of the Joint Chiefs of Staff and other top Pentagon officials forbidding the destruction of any document mentioning Mitchell and Jessen or their psychological consulting firm, Mitchell, Jessen and Associates, based in Spokane, Wash. Dell'Orto's order was in response to a May 1 request from Sen. Carl Levin, the Democratic chairman of the Senate Armed Services Committee, who is investigating the abuse of prisoners in U.S. custody. ...

Close coordination between the CIA and the Pentagon is referred to in military lingo as "jointness." A retired high-level military official, familiar with the detainee abuse scandals, confirmed that such "jointness" requires orchestration at the top levels of government. "This says that somebody is acting as a bridge between the CIA and the Defense Department," he said, "because you've got the [CIA] side and the military side, and they are collaborating." Human-rights expert Scott Horton, who chairs the International Law Committee at the New York City Bar Association, also says that the cross-agency coordination "reflects the fact that the decision to introduce and develop these methods was made at a very high level." ...

"The irony -- and ultimately the tragedy -- in the migration of SERE techniques is that the program was specifically designed to protect our soldiers from countries that violated the Geneva Conventions," says Brad Olson, president of the Divisions for Social Justice within the American Psychological Association. "The result of the reverse-engineering, however, was that by making foreign detainees the target, it made us the country that violated the Geneva Conventions," he says. ...

Until last month, the Army had denied any use of SERE training for prisoner interrogations. "We do not teach interrogation techniques," Carol Darby, chief spokeswoman for the U.S. Army Special Operations Command at Fort Bragg, said last June when Salon asked about a document that appeared to indicate that instructors from the SERE school taught their methods to interrogators at Guantánamo.

But the declassified DoD inspector general's report described initiatives by high-level military officials to incorporate SERE concepts into interrogations. And it said that psychologists affiliated with SERE training -- people like Mitchell and Jessen -- played a critical role. According to the inspector general, the Army Special Operations Command's Psychological Directorate at Fort Bragg first drafted a plan to have the military reverse-engineer SERE training in the summer of 2002. At the same time, the commander of Guantánamo determined that SERE tactics might be used on detainees at the military prison. Then in September 2002, the Army Special Operations Command and other SERE officials hosted a "SERE psychologist conference" at Fort Bragg to brief staff from the military's prison at Guantánamo on the use of SERE tactics.

Wednesday, June 20, 2007

Bush To Veto Stem Cell Bill

Religious kookery makes bad public policy.

President Bush has chosen to use his veto pen three times - twice on the stem cell issue where politics, ethics and science collide.

Pushing back against the Democratic-led Congress, Bush plans to veto a bill Wednesday that would have eased restraints on federally funded embryonic stem cell research, White House spokesman Tony Fratto said.

At the same time, Bush will issue an executive order directing the Health and Human Services Department to promote research into cells that, like human embryonic stem cells, also hold the potential of regenerating into different types of cells that might be used to battle disease.

Democrats made the stem cell legislation Bush promised to veto a top priority when they took control of the House and Senate in January. They do not, however, have enough votes to override a veto.

In his veto threat, the president accused Democrats of recycling an old measure that he already vetoed and argued that the bill would mean American taxpayers would - for the first time - be compelled to support the deliberate destruction of human embryos.

"The president supports and encourages stem cell research, including using embryonic lines, as long as it does not involve creating, harming or destroying embryos," Fratto said. "That is an ethical line that should not be crossed."

Fratto said Bush would outline an initiative that could make federal funding available for research on additional "pluripotent" stem cells - ones that can give rise to any kind of cell in the body except those required to develop a fetus.

The National Institutes of Health says these stem cells offer the prospect of having a renewable source of replacement cells and tissues to treat Parkinson's and Alzheimer's diseases, spinal cord injury, stroke, burns, heart disease, diabetes, osteoarthritis and rheumatoid arthritis and other conditions.

Scientists were first able to conduct research with embryonic stem cells in 1998, the NIH says. There were no federal funds for the work until Bush announced on Aug. 9, 2001, that his administration would make the funds available for lines of cells that already were in existence.

Currently, states and private organizations are permitted to fund embryonic stem cell research, but federal support is limited to cells that existed as of Aug. 9, 2001. The latest bill is aimed at lifting that restriction.

The science aside, the issue has weighty political and ethical implications.

Public opinion polls show strong support for the research, and it could return as an issue in the 2008 elections.

Opponents of the latest stem cell measure insisted that the use of embryonic stem cells was the wrong approach on moral grounds -- and possibly not even the most promising one scientifically. These opponents, who applaud Bush's veto, cite breakthroughs involving medical research conducted with adult stem cells, umbilical cord blood and amniotic fluid, none of which involve the destruction of a human embryo.

This will be the third veto of Bush's presidency. His first occurred last year when he rejected legislation to allow funding of additional lines of embryonic stem cells -- a measure that passed over the objections of Republicans then in control. The second legislation he vetoed would have set timetables for U.S. troop withdrawals from Iraq.

Senate Majority Leader Harry Reid appealed to Bush on Tuesday to put his veto pen back in his pocket. Reid said the measure acknowledges the ethical issues at stake and offers even stronger research guidelines than exist under the president's current policy.

House Speaker Nancy Pelosi used Bush's veto threat as a reason to send out an e-mail letter soliciting contributions to the Democratic Congressional Campaign Committee to help elect more Democrats.

"By vetoing a bill that expands stem cell research, the president will say 'no' to the more than 70 percent of Americans who support it, 'no' to our Democratic Congress' fight for progress, and 'no' to saving lives and to potential cures for diseases such as diabetes and Parkinson's," Pelosi wrote. "He will say 'no' to hope."

Tuesday, June 19, 2007


No reasonable person should have assumed that President Bush's signing statements were merely an empty assertion of presidential powers.

Bush was certainly going to exercise his claimed right to ignore the laws in question.

And he has.

Federal officials have disobeyed at least six new laws that President Bush challenged in his signing statements, a government study disclosed yesterday. The report provides the first evidence that the government may have acted on claims by Bush that he can set aside laws under his executive powers.

In a report to Congress, the non partisan Government Accountability Office studied a small sample of the bill provisions that Bush has signed into law but also challenged with signing statements. The GAO found that agencies disobeyed six such laws, while enforcing 10 others as written even though Bush had challenged them.

House Judiciary Committee chairman John Conyers , Democrat of Michigan, said yesterday that the GAO's findings demonstrated a need for a more "extensive review" of how the government has followed up on hundreds of other laws challenged by Bush.

"The administration is thumbing its nose at the law," said Conyers, one of the lawmakers who commissioned the GAO study.

A signing statement is a legal document filed in the Federal Register the day a president signs a bill into law. It instructs the executive branch about how to implement the new statutes the bill creates, and sometimes it states that certain provisions are unconstitutional and need not be enforced as written.

Bush's signing statements have drawn fire because he has used them to challenge more than 1,100 sections of bills -- more than all previous presidents combined. The sample the GAO studied represents a small portion of the laws Bush has targeted, but its report concluded that sometimes the government has gone on to disobey those laws.

For example, one law requires the Customs and Border Patrol to relocate its illegal immigrant checkpoints near Tucson every seven days to prevent smugglers from being able to predict where they are, but the agency failed to do so. The border patrol told the GAO that the law is flawed because it "diverts resources," and it characterized the requirement as "advisory."

In his signing statement of Oct. 18, 2005, Bush instructed the border patrol to view the "relocation provision as advisory rather than mandatory" on the assertion that only the president has the constitutional authority to decide how to deploy law enforcement officers.

None of the laws the GAO investigated included the president's most controversial claims involving national security, such as his assertion that he can set aside a torture ban and new oversight provisions in the USA Patriot Act because he is the commander in chief. Such material is classified. ...

Of the other five laws that the study found were disobeyed, two provisions required agencies to get permission from a congressional committee before taking certain actions. In both cases, the agencies notified the committee but acted without their permission -- just as Bush's signing statements instructed them.

The other three provisions involved the executive branch giving information to congressional oversight committees, including plans for emergency housing following a disaster; budget documents related to certain military operations in Iraq and Afghanistan; and a proposal to fix a problem related to funding for military medical services. In all three cases, the administration did not obey the laws as written.

The GAO conducted its study by looking at all the provisions in 11 appropriations bills for fiscal year 2006 that Bush challenged in signing statements. It counted 160 such laws that the president had claimed a right to ignore.

Investigators then selected a representative sample of 19 bill provisions Bush had targeted and asked agencies to explain whether and how they had obeyed the provisions. It found that 10 such laws were enforced as written, six were not enforced as written, and three did not have to be enforced because the circumstance envisioned had not materialized.

The revelation that investigators had found six laws that were disobeyed within the small sample prompted angry words from the other lawmaker who commissioned the GAO study, Senate Appropriations Committee chairman Robert Byrd, Democrat of West Virginia. He called Bush's signing statements a "power grab" that undermined Congress's authority to write the laws.

"The White House cannot pick and choose which laws it follows and which it ignores," Byrd said. "When a president signs a bill into law, the president signs the entire bill. The administration cannot be in the business of cherry-picking the laws it likes and the laws it doesn't."

Monday, June 18, 2007

GAO To Examine Sarasota Voting Machines

A House Administration Committee task force has asked the Government Accountability Office (GAO) to complete its examination of disputed voting machines quickly and report findings by July 27.

The GAO will scrutinize equipment used in Sarasota County, Fla., where Democrat Christine Jennings is contesting her loss in last year’s 13th Congressional District election.

GAO investigators are assigned to determine to what extent machines were responsible for the lower number of votes cast for Congress than for other races.

Jennings contends electronic voting machine errors are to blame for 18,000 ballots being recorded without a congressional choice.

The task force agreed last month to allow the GAO to design a plan to investigate the election, in which Republican Vern Buchanan was certified the winner by 369 votes.

The goal of completing work July 27 put the GAO on a faster timetable; the agency had suggested filing a report in September.

Rep. Charlie Gonzalez, D-Texas, chairman of the three-member task force, said the schedule that now has been set "respects the need to arrive at a solution sooner rather than later."

Jennings also has contested the election outcome in Florida courts, where she has appealed a ruling in the Republican's favor. Last month, Jennings filed a motion to stay her appeal, saying the move was meant to defer to the congressional investigation.

Sunday, June 17, 2007

Bush Met Quietly Last Week With Group of Top Jewish-American Leaders

The "West Bank first" strategy was doubtlessly among the key topics discussed in this unprecedented (and hushed-up) meeting.

As he prepared for a visit this week from Israel's prime minister, President Bush held an unannounced meeting with the top leadership of the United States' Jewish community to discuss the dramatic events in the Middle East and other foreign policy issues.

Bush meets with smaller groups of Jewish leaders from time to time, but the gathering Thursday was the first time he had met with the entire leadership community, about 50 heads of Jewish advocacy, service and religious organizations of different political orientations.

The White House did not disclose the private session on the president's schedule, and officials asked participants to treat Bush's remarks as off the record. Present for the session were the president's most senior aides, including Secretary of State Condoleezza Rice, national security adviser Stephen J. Hadley, White House Chief of Staff Joshua B. Bolten and political adviser Karl Rove. ...

The U.S. consul general in Jerusalem met with Abbas on Saturday and indicated that an international embargo on funds for the Palestinian Authority will be lifted once a new government is sworn in. ...

"I don't think the U.S. strategy to strengthen President Abbas even stands a chance of success," said Haim Malka, a Middle East specialist at the Center for Strategic and International Studies.

Iran was probably on the agenda as well.

Saturday, June 16, 2007

Like Rats From The Proverbial Ship

Another Justice Department official involved in last year's dismissals of federal prosecutors is resigning, department officials said on Friday.

In this case, the departure of Michael J. Elston, chief of staff to the outgoing deputy attorney general, Paul J. McNulty, had been expected since Mr. McNulty announced last month that he would step down this summer.

At one point, Mr. Elston compiled a list of prosecutors for possible removal, but his principal involvement came after the firings in February when he exchanged e-mail messages with H. E. Cummins III of Arkansas, one of the ousted United States attorneys.

Mr. Cummins testified later to the Senate Judiciary Committee that he regarded Mr. Elston's message as a veiled threat to retaliate against any ousted prosecutor who spoke to a reporter.

Mr. Elston said he was "shocked and baffled" by Mr. Cummins's assertions and denied that his e-mail message was intended to silence any of the dismissed prosecutors.

Mr. Elston is the fifth Justice Department official who played a role in the dismissals to resign in recent months. In addition to Mr. McNulty, others are D. Kyle Sampson, former chief of staff to Attorney General Alberto R. Gonzales, and Monica M. Goodling, a senior aide to Mr. Gonzales.

Michael Battle, who ran an office that serves as a link to the Justice Department’s 93 United States attorneys, departed in March but said his resignation was not tied to the dismissals.

Friday, June 15, 2007

Arizona Senator Blocks Subpoena Vote on NSA Program

The Republican defense of administration lawbreaking in the NSA warrantless surveillance affair continues with a seemingly desperate move by a GOP senator.

A Republican senator blocked a vote in the Judiciary Committee on whether to authorize subpoenas to the Justice Department to obtain secret legal opinions and other documents related to the National Security Agency's program of domestic eavesdropping. The action by Senator Jon Kyl of Arizona will block the vote for a week. After the vote next Thursday, Senator Patrick J. Leahy, Democrat of Vermont and chairman of the committee, can decide whether to issue the subpoenas or use them as leverage in negotiations with the Bush administration over access to the documents.

Thursday, June 14, 2007

More FBI Data Collection Violations Found

We have noted here on several occasions the increasing use (and abuse) in the post 9/11 environment of investigatory tools such as National Security Letters by the FBI (see inter alia, Use Of National Security Letters Increasing and Justice IG Finds Abuse of National Security Letters).

It turns out now that the deeper these programs are examined, the more instances of questionable uses of these tools are being found.

An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.

The new audit covers just 10 percent of the bureau's national security investigations since 2002, and so the mistakes in the FBI's domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.

The vast majority of the new violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorized to collect. The agents retained the information anyway in their files, which mostly concerned suspected terrorist or espionage activities.

But two dozen of the newly-discovered violations involved agents' requests for information that U.S. law did not allow them to have, according to the audit results provided to The Washington Post. Only two such examples were identified earlier in the smaller sample. ...

Of the more than 1,000 violations uncovered by the new audit, about 700 involved telephone companies and other communications firms providing information that exceeded what the FBI's national security letters had sought. But rather than destroying the unsolicited data, agents in some instances issued new National Security Letters to ensure that they could keep the mistakenly provided information.

Subpoenas Issued To Former WH Officials

Congress issued subpoenas ... for former presidential counsel Harriet Miers and political director Sara Taylor, reaching directly inside the White House for the first time in the probe of the firings of federal prosecutors.

The Bush administration appeared in no hurry to encourage the pair to testify, as the subpoenas demanded. Complying could set a precedent for testimony by another adviser not yet on the subpoena list: presidential counselor Karl Rove.

The Democratic chairmen of House and Senate committees implicitly threatened a constitutional showdown if the White House does not comply with the subpoenas -- or strike a deal.

"The bread crumbs in this investigation have always led to 1600 Pennsylvania," said House Judiciary Committee Chairman John Conyers, D-Mich. "This investigation will not end until the White House complies with the demands of this subpoena in a timely and reasonable manner so that we may get to the bottom of this."

"The White House cannot have it both ways -- it cannot stonewall congressional investigations by refusing to provide documents and witnesses while claiming nothing improper occurred," added Senate Chairman Patrick Leahy, D-Vt.

White House officials pointed out that White House Counsel Fred Fielding already has offered a compromise by suggesting that Miers, Taylor, Rove and their deputies be interviewed by committee aides in closed-door sessions, without transcripts (and not under oath -- ed.note). Leahy and Conyers have rejected that offer.

"The committees can easily obtain the facts they want without a confrontation by simply accepting our offer for documents and interviews," White House spokeswoman Dana Perino said Wednesday. "But it's clear that Senator Leahy and Representative Conyers are more interested in drama than facts."

No, the real equation is like this: the committees are actually more interested in facts than lies.

The judiciary panels, acting two days after Republicans blocked an effort to hold a no-confidence vote on Attorney General Alberto R. Gonzales, also sought White House documents about its involvement in the dismissals and efforts to respond to Congressional inquiries into whether as many as nine United States attorneys were removed for political reasons. ...

Congressional investigators have largely completed their interviews of Justice Department officials and assembled thousands of pages of departmental documents. Yet they still cannot definitively answer such basic questions as who initiated the effort to oust the nine prosecutors, how the nine were selected and whether their dismissals were motivated by a desire to push a political agenda, like accelerating investigations of Democrats or protecting Republican elected officials from scrutiny, as some members of Congress have asserted.

The inquiry has at least made clear that Ms. Miers and Ms. Taylor, among others at the White House, helped orchestrate the effort, despite an early statement by the Bush administration denying such a role.

National Journal has posted a copy of Miers' subpoena (5 page pdf).

Wednesday, June 13, 2007

Senate Committee To Vote on NSA Subpoenas

There could be an important development today in the attempt to establish congressional oversight of the extra-legal NSA warrantless surveillance program (CATCH-ALL).

The Senate Judiciary Committee is set to vote Thursday on whether to authorize subpoenas to gain access to Justice Department documents related to the National Security Agency's domestic wiretapping program, including a series of secret legal opinions.

The vote comes a week after Democratic leaders on a House Judiciary subcommittee threatened to issue subpoenas for the same documents.

The chairman of the Senate committee, Patrick J. Leahy, Democrat of Vermont, and its ranking Republican, Arlen Specter of Pennsylvania, wrote to Attorney General Alberto R. Gonzales on May 21 seeking access to the documents and asked for a response by June 5. The panel will vote on whether to authorize Mr. Leahy to issue subpoenas for the documents He could decide to subpoena the documents or to use that power as leverage with the Justice Department.

Tuesday, June 12, 2007

Priorities Are Priorities

It's not like consumer and patient groups are greasing the wheels in Washington, so they shouldn't expect to get a fair hearing of their concerns.

While revising their drug-review policy last year, Food and Drug Administration officials met 112 times with industry representatives but only five times with consumer and patient groups, according to data out Monday from the House Appropriations Committee.

The FDA provided the data in response to questions submitted in March by Rep. Maurice Hinchey, D-N.Y.

The meetings occurred between October 2005 and December 2006 and focused on the Prescription Drug User Fee Act, under which manufacturers help pay for the review of their new drugs. ...

"The FDA has essentially become the government affairs office of the pharmaceutical industry," Hinchey said in a statement, which called the relationship between the agency and industry "far too cozy and inappropriate." Hinchey is the author, and Bart Stupak, D-Mich., the chief co-sponsor of an FDA reform bill that would prohibit the agency from collecting fees from the companies it regulates. Instead, the money would be deposited into the general fund of the U.S. Treasury.

According to the Appropriations Committee, two officials of the Biotechnology Industry Organization and two officials of the Pharmaceutical Research and Manufacturers Association attended at least half of the 112 meetings.

'No Confidence' Vote Fizzles

Back in April, when the entire liberal blogosphere was united in predicting Alberto Gonzales' imminent departure from his position of Attorney General, readers here found the following confident prediction:

During Attorney General Gonzales' "reconfirmation hearing" yesterday, the beleaguered chief law enforcement officer of the nation committed no errors grievous enough to force President Bush to send him packing.

His answers were at times in variance with the known facts. But that probably won't bother his boss.

His job looks safe, considering his long friendship with the president. At least until any new evidence surfaces in the U.S. attorney dismissal scandal.

Since then, there has been additional evidence of wrongdoing in the U.S. Attorney scandal. And -- while antagonizing lawmakers on both sides of the aisle -- Gonzales still retains the full support of the only person who counts.

Atty. Gen. Alberto R. Gonzales survived a climactic no-confidence vote in the Senate Monday, and with the support of the White House appeared to have weathered a months-long storm of criticism and investigation that once imperiled his tenure at the Justice Department.

Most Republicans, even those who had been critical of Gonzales, closed ranks, and Democrats fell well short of winning the votes necessary to move forward with a resolution declaring that the Senate and the "American people" had lost confidence in the embattled attorney general. Senate Democrats' attempt to bring up the resolution got 53 of the 60 votes needed to end unlimited debate.

Democrats vowed to continue their investigation into whether Gonzales, in tandem with the White House, had politicized hiring decisions and various investigations at the Justice Department in ways that would boost Republicans. There were signs that Democrats were on the verge of taking that investigation to a new level, possibly by issuing subpoenas to the White House for documents and testimony of such figures as political operative Karl Rove.

But the no-confidence vote suggests that the Democrats do not have the political might to force the issue.

Gonzales had already won a vote of confidence from President Bush weeks ago. "There is only one vote that matters, and he's got it," said Charles Black, a Republican political consultant with ties to the White House.

Supporters of a similar resolution in the House said they feared that, after the Senate vote, the House leadership would table the measure without voting on it.

Monday, June 11, 2007

Pwned !

A dozen administration-smooching lawyers get pwned by Judge Walton.

A dozen of the country's most respected constitutional scholars have leapt to I. Lewis "Scooter" Libby's aid, asking a federal judge if they could try to convince him about critical legal questions that favor letting Libby remain free while he appeals his conviction in the Valerie Plame leak case.

Within hours of Friday's filing from the scholars, U.S. District Judge Reggie B. Walton wrote back. In the teeny-tiny print of a footnote, he said he was delighted to know that such a distinguished group was available to help argue on behalf of criminal defendants on "close questions" of the law.

Walton promised he'd ring them up very soon when -- instead of Vice President Cheney's former chief of staff facing the threat of the slammer -- there might be poor defendants who need big legal minds to avoid incarceration.

Walton sentenced Libby last week to 30 months in prison and will hold a hearing on Thursday to consider whether Libby can remain free while his case is appealed.

"It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant," Walton wrote in granting the scholars' request.

He added: "The Court trusts that this is a reflection of these eminent academics' willingness in the future to step up to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions."

Indeed, it was an impressive group, including former Supreme Court nominee Robert Bork and ... Alan Dershowitz. ...

Also joining the brief were Vikram Amar of the University of California's Hastings law school, Randy Barnett and Viet Dinh of Georgetown, Douglas Kmiec and Robert Pushaw of Pepperdine, Richard Parker of Harvard, Gary Lawson of Boston University, Thomas Merrill of Columbia, Earl Maltz of Rutgers and Robert Nagel of the University of Colorado.

The group argued in a six-page brief that Libby, who was convicted of lying to investigators probing the leak of Plame's identity, has a decent shot at appeal on the question of Special Counsel Patrick J. Fitzgerald's appointment to investigate that leak. That appointment was likely inappropriate, they argued, because Fitzgerald lacked any supervision that would make his superiors "politically accountable."

Sunday, June 10, 2007

U.S. Rejected Litvinenko's Asylum Bid

Before Alexander Litvinenko, the former Russian intelligence agent fatally poisoned in London last year, sought asylum in Britain, he first tried to flee to the United States, according to a new book that also offers fresh details of his uneasy life and relationship with the former KGB agent now accused of murdering him.

According to "Death of a Dissident," written by Litvinenko's friend Alex Goldfarb and his widow, Marina, to be published Tuesday by Free Press, Litvinenko nearly won a new life in the United States when he fled Russia in 2000. But at the last minute, he was told that officials in Washington had "changed their mind" and would not give him a visa. Litvinenko then fled to Britain, where he was killed in November at age 43, poisoned with a lethal dose of the rare radioactive isotope polonium-210.

The book recounts that in late October 2000, Goldfarb, a former Russian biologist who had become a U.S. citizen, flew from New York to Turkey, where Litvinenko had gone with his wife and their 6-year-old son, Anatoly, after they fled Russia. Goldfarb took them to the U.S. Embassy in Ankara, where Litvinenko was questioned for four hours by a man identified only as Mark, who Litvinenko believed was an American intelligence agent. Litvinenko was then told to go back to his hotel to await the decision from Washington as to whether he would be given the visa he needed to enter the United States. ...

As Litvinenko waited for Goldfarb's cellphone to ring with news from the U.S. Embassy, he spotted a man he believed was a Russian agent watching him. After pretending to go up to their hotel rooms, Litvinenko, his family and Goldfarb got into a car and sped to Istanbul, more than 200 miles away. Goldfarb said he turned off his cellphone "because I was afraid that we could be tracked somehow."

When Goldfarb switched on his phone and finally talked to Mark, who had left many messages, he said: "Good news, pal, we're taking them. Twenty minutes, we'll pick them up."

But then Goldfarb told him they were in Istanbul.

"Istanbul? Why in the world did you go there?"

"Someone was watching at the hotel, so we ran."

"I see. Well, that's a complication. Is anyone watching you now?"

"I don't think so."

"Okay, keep your phone on. I'll get back to you."

When Mark called again, his voice was different: "Bad news, pal, they've changed their mind. We are not taking them."

No explanation was given for why the decision was reversed, though Goldfarb and Marina Litvinenko said they assumed that helping Litvinenko couldn't be done quietly. U.S. officials did not want to risk aggravating Russian President Vladimir Putin, who had recently taken office. ...

During his hours at the U.S. Embassy, Litvinenko had given the Americans a name they had eagerly sought, according to the book, though the name is not disclosed. In the interview, Goldfarb said it was the name of an American based in Germany who had frequent business dealings in Russia.

When rejected by the United States, the Litvinenkos and Goldfarb then bought tickets to fly to Moscow via London. Since the flight was only stopping over in London to meet the connecting flight, Litvinenko did not need a visa to enter the United Kingdom. But once at Heathrow Airport, he sought asylum, which was eventually granted.

Saturday, June 09, 2007

Supreme Court Ruling Will Mandate More Hard-Liners on Capital Case Juries

A decision by the Supreme Court on Monday that made it easier for prosecutors to exclude people who express reservations about the death penalty from capital juries will make the panels whiter and more conviction-prone, experts in law and psychology said this week.

The jurors who remain after people with moral objections to imposing the death penalty are weeded out, studies uniformly show, are significantly more likely to vote to find defendants guilty than jurors as a whole.

It has long been the law in every state with capital punishment that only people who are prepared to apply the death penalty may serve on capital juries. Monday's decision, which involved a juror's equivocation about the death penalty on learning that life without parole was an option, has the potential to make capital juries even less representative.

"It could give judges the authority to exclude about half the population from service in death penalty cases," said Samuel R. Gross, a law professor at the University of Michigan. That is because support for the death penalty drops from more than 60 percent to about half when life in prison is the alternative.

Even before Monday's decision, a significant minority of Americans were ineligible to serve as jurors in death penalty cases. According to a poll to be released today by the Death Penalty Information Center, a nonprofit group in Washington that is critical of the death penalty as currently applied, 39 percent of Americans say they have a moral objection to the death penalty that would disqualify them from serving in a capital case. The poll's margin of sampling error was plus or minus three percentage points.

Most of the research in this area is conducted by people and groups opposed to the death penalty. But prosecutors do not dispute the finding that capital juries are more apt to convict, arguing instead about the magnitude of the effect.

In a series of recent cases, the Supreme Court has narrowed the availability of the death penalty, barring its use on the mentally retarded and juvenile offenders, and has overturned death sentences based on flawed jury instructions, racial bias in choosing jurors and defense lawyers' incompetence.

Some death penalty opponents found it hard to reconcile those cases with Monday’s decision on the jury selection process that lawyers call death qualification.

"We may have a line of jurisprudence that is at war with itself," said Eric M. Freedman, a law professor at Hofstra University. "You can't simultaneously keep expanding the bounds of death qualification and also manifest a special concern for innocence in capital cases. As a brute matter of statistics, the farther you go in death qualification, the more wrongful convictions you will get."

Prosecutors say that death qualification is a necessary and narrowly tailored requirement that prevents only people who are unable to follow the law from serving as jurors. ...

(Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association) conceded that the process of excluding opponents of the death penalty also conferred an advantage on prosecutors.

"I won't deny," he said, "that a death-qualified juror is probably more likely to be willing to look at a guilty verdict. I think that the difference is negligible."

Robert Blecker, a professor at New York Law School who supports the death penalty, agreed that "death-qualified jurors are slightly more conviction prone" than people opposed to the death penalty in all circumstances, whom he referred to as abolitionists.

"It makes sense and is consistent with human nature that abolitionists as a class are more pro-defendant in general and less willing to convict," Professor Blecker said. But the many safeguards in the system, he said, outweigh that slight distorting effect. "On balance, the system is, as it should be, skewed to prefer sentencing to life those who really deserve to die, rather than condemning those who deserve to live."

Jurors eligible to serve in capital cases are "demographically unique," said Brooke Butler, who teaches psychology at the University of South Florida. Professor Butler has interviewed more than 2,000 potential jurors over the past seven years and has written several articles on the topic.

"They tend to be white," she said. "They tend to be male. They tend to be moderately well-educated -- high school or maybe a little college. They tend to be politically conservative -- Republican. They tend to be Christian -- Catholic or Protestant. They tend to be middle socioeconomic status -- maybe $30,000 or $40,000" in annual income.

In a study to be published in Behavioral Sciences and the Law, a peer-reviewed journal, Professor Butler made an additional finding. "Death-qualified jurors," she said, "are more likely to be prejudiced -- to be racist, sexist and homophobic."

A 2001 study in The University of Pennsylvania Journal of Constitutional Law, drawing on interviews with 1,155 capital jurors from 340 trials in 14 states, found that race played an important role in the willingness of jurors to impose death sentences.

In cases involving black defendants and white victims, for instance, the presence of five or more white men on the jury made a 40 percentage point difference in the likelihood that a death sentence would be imposed. The presence of a single black male juror had an opposite effect, reducing the likelihood of a death sentence to 43 percent from 72 percent.

Friday, June 08, 2007

Stevens May Be Facing His Own 'Bridge To Nowhere'

Sen. Ted Stevens (R-Alaska) has hired lawyers and has been instructed by the FBI to preserve records relevant to a federal investigation into corruption in his home state, a newspaper reported Thursday.

As part of a larger inquiry, federal agents are investigating the remodeling of Stevens' Alaska home in 2000. The investigation is linked to the VECO Corp. bribery case that last month produced guilty pleas from two executives of the oilfield service company, according to law enforcement officials.

"They put me on notice to preserve some records," Stevens, 83, told the Washington Post, declining to say what kinds of records were involved.

Stevens, the longest-serving Republican in Senate history, declined to comment Thursday.

Three contractors who worked on the remodeling project at Stevens' home in Girdwood, a resort town south of Anchorage, have said the FBI asked them to turn over their records from the job. One, Anchorage contractor Augie Paone, has previously said VECO executives — including former Chief Executive Bill Allen — helped oversee the home remodeling project.

Paone testified before a federal grand jury in December and has said that he sent bills on the remodeling project to VECO, where someone examined them for accuracy before forwarding them to Stevens. Paone has said as far as he knew, Stevens paid the bills.

Allen pleaded guilty May 7 to bribery and other charges and is cooperating in the inquiry, which has focused on last year's negotiations for a new oil and gas tax in Alaska and a proposed natural gas pipeline that would have benefited VECO.

The inquiry has produced federal indictments against one current and two former GOP members of the Alaska House on bribery and extortion charges.

Thursday, June 07, 2007

Cheney Linked To CATCH-ALL

The bulldogging of NSA's CATCH-ALL program down the throats of reluctant officials had the direct involvement of Vice President Cheney, according to one DOJ insider.

Vice President Cheney told Justice Department officials that he disagreed with their objections to a secret surveillance program during a high-level White House meeting in March 2004, a former senior Justice official told senators yesterday.

The meeting came one day before White House officials tried to get approval for the same program from then-Attorney General John D. Ashcroft, who lay recovering from surgery in a hospital, according to former deputy attorney general James B. Comey.

Comey's disclosures, made in response to written questions from the Senate Judiciary Committee, indicate that Cheney and his aides were more closely involved than previously known in a fierce internal battle over the legality of the warrantless surveillance program. The program allowed the National Security Agency to monitor phone calls and e-mails between the United States and overseas.

Comey said that Cheney's office later blocked the promotion of a senior Justice Department lawyer, Patrick Philbin, because of his role in raising concerns about the surveillance. ...

According to Comey, the hospital visit was preceded by a March 9, 2004, meeting at the White House on the Justice Department objections. It was attended by Cheney; Gonzales; Card; Cheney's counsel then, David S. Addington; and others, Comey said.

Comey also named eight Justice Department officials who were prepared to quit if the White House had not backed down, including FBI Director Robert S. Mueller III, current U.S. Attorney Chuck Rosenberg of Alexandria and Jack Goldsmith, who headed the Office of Legal Counsel and led an internal legal review of the surveillance program.

Wednesday, June 06, 2007

Abramoff/White House Contacts Still Under Scrutiny

Congressional investigators are still trying to get to the bottom of the Jack Abramoff-related skullduggery. And they are looking anew at the White House.

House Democrats are expanding their investigation into ties between jailed GOP lobbyist Jack Abramoff and the White House and have contacted several Abramoff associates recently about testifying to Congress.

The contacts were disclosed Tuesday by a House Democratic aide and an attorney familiar with the matter who both spoke on condition of anonymity because the investigation by the House Oversight and Government Reform Committee is ongoing.

The aide declined to identify those the committee wants to talk to. Last month committee Chairman Henry Waxman, D-Calif., indicated he intended to seek testimony from people who'd worked as lobbyists with Abramoff as well as from former and current White House and administration officials who might have knowledge of Abramoff's connections with the White House.

A committee spokeswoman declined comment. A message for a White House spokesman wasn't immediately returned.

The Government Reform Committee released a report last year saying that Abramoff and his associates had 485 lobbying contacts with White House officials between January 2001 and March 2004.

But Waxman, who became committee chairman in January after Democrats retook control of Congress, says important questions remain unanswered. These include whether White House officials paid for sports and concert tickets and meals they got from Abramoff and his associates, and whether they took official actions as a result, Waxman says.

Abramoff last year pleaded guilty to conspiracy and other charges and admitted defrauding his clients. A two-year investigation into his influence peddling has led to the conviction of a congressman along with 10 former House aides and Bush administration officials. One sitting congressman, GOP Rep. John Doolittle of California, remains under investigation.

Susan Ralston, a key aide to presidential political strategist Karl Rove who had worked for Abramoff, resigned last October after the Government Reform report showed she had extensive contacts with Abramoff.

Waxman wants Ralston to testify, but she is refusing to do so without a grant of immunity, according to a memo Waxman released last month after lawyers for his panel questioned her in private. Meanwhile Waxman wants to talk to others.

Abramoff associates named in his committee's report last year as having extensive contacts with the White House include Neil Volz and Tony Rudy, who have both pleaded guilty to federal charges; Kevin Ring, a one-time Doolittle aide who is under federal investigation; and Todd Boulanger and Shawn Vasell, both still lobbyists.

Tuesday, June 05, 2007

CBC, House Democratic Leadership At Odds Over Jefferson

Democratic leaders fear that Rep. William J. Jefferson's indictment yesterday on racketeering and bribery charges, coming exactly one year after House Speaker Nancy Pelosi engineered his ouster from the powerful Ways and Means Committee, could rekindle a smoldering dispute between the speaker and black lawmakers who were once pillars of her power. ...

The Democratic steering committee, which sets committee assignments, will convene this week to consider whether to remove Jefferson from his last committee post: a seat on the Small Business Committee, a relative backwater of power. Senior House Democratic leadership aides said he almost certainly would be dropped. Some leadership aides suggested emissaries could be dispatched within days to ask for Jefferson's resignation from the House. ...

Senior leadership aides cautioned that a quick resignation under pressure could set a dangerous precedent, suggesting that a politicized Justice Department could target troublesome lawmakers with specious indictments. Jefferson spokeswoman Remi Braden-Cooper said that neither the congressman nor his staff had been contacted by the speaker's office. ...

With lawmakers just beginning to return to Washington from a week-long break, it was not clear last night whether Jefferson's indictment would unite Democrats against the nine-term House member, or whether it would reignite tensions between the black Caucus and Pelosi. She made a "culture of corruption" a central attack line in last year's campaign against Republicans.

A serious rupture with the black caucus would divide Democrats at a time when unity is needed to confront Republicans on the war in Iraq and as they face off with President Bush on domestic spending. Despite Davis's initial statement of support, many prominent black lawmakers remained silent. A spokesman for Rep. Maxine Waters (D-Calif.) said she would not discuss Jefferson's case.

But last June, many members of the caucus were incensed when the Democratic Caucus voted to remove Jefferson from the Ways and Means Committee, where he had a hand in tax, trade and health-care policy. Federal investigators were closing in on Jefferson, with guilty pleas from his business associates and word of cash found bundled in his freezer.

The black caucus accused Pelosi of a racially tinged double standard. As she was moving against Jefferson, she allowed Rep. Alan B. Mollohan (D-W.Va.), who is white, to remain on the Appropriations Committee despite dealing with his own federal investigation. Mollohan, now chairman of the Appropriations subcommittee that funds the departments of Commerce and Justice, did recuse himself in issues involving federal law enforcement.

Monday, June 04, 2007

Efforts Seen This Summer To Make GOP Pay For Iraq War Support

The Republicans think that they have the Democrats on the run over the issue of the Iraq war.

The Democrats are planning a series of moves to try to prove the GOPers wrong.

Democratic congressional leaders, whose efforts to force a withdrawal from Iraq were stymied last month, plan a summer of repeated Iraq-related votes designed to force Republican lawmakers to abandon the White House before the fall.

At the same time, antiwar groups are expanding their campaign to pressure GOP incumbents in their home states.

Both efforts seek to ensure that anxious Republican lawmakers — many of whom have said they want to wait until September to assess President Bush's Iraq strategy — get no break from the war over the summer. ...

Tom Matzzie, campaign manager for Americans Against Escalation in Iraq, the leading coalition against the war, promised an equally unpleasant summer for Republicans whenever they return home.

"Our job is to go into the congressional districts of members and create a political environment that is toxic," he said. "The public is there already. It is really about focusing their anger." ...

Democrats — who are still working out the sequence of the summer's votes — are wary of overplaying their hand, even with popular support for a congressionally mandated troop withdrawal.

"Votes for the sake of having votes doesn't really help us. What we need are votes that show we are gaining in strength. So we need to be thoughtful," said Rep. Jim McGovern (D-Mass.), a leading war critic who sponsored legislation last month to mandate withdrawal by next spring.

"But it is incredibly important that the debate continue in June and July. It keeps the pressure on the White House, and it keeps the pressure on Republicans to break with the president," he said. "At a minimum, we need to be building … for a showdown in September."

While antiwar lawmakers push ahead, so too will the antiwar groups that have played an influential role in the national debate over Iraq.

Americans Against Escalation in Iraq, a coalition of organizations including, and the Service Employees International Union, plans to hire 80 people this summer to organize rallies and other protest activities aimed primarily at Republican lawmakers, Matzzie said.

The coalition also plans an aggressive television advertising campaign, particularly against Republicans who are up for reelection next year and seen as vulnerable, such as Sens. Susan Collins of Maine, John E. Sununu of New Hampshire and Norm Coleman of Minnesota.

"Our goal," Matzzie said, "is political extinction for war supporters."