I’m working on a big post on the May 2005 Bradbury Memos. But I wanted to point out this tidbit about them in the interim.

As you might recall, the Jim Comey emails (probably leaked by the torture apologists last summer) provide a few clues about why Comey objected to the May 10, 2005 Combined memo. Significantly, he thought the memo was too general because it did not stick to the facts regarding one detainee who had already been tortured.

I also suggested a possible way to narrow the focus of the second opinion to be more responsible.

[snip]

[Alberto Gonzales' Chief of Staff Ted Ullyot] said Pat had shared my concerns, which he understood as concerns about the prospective nature of the opinion and its focus on “prototypical” interrogation.

[snip]

He mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

As it happens, just six days after the Combined memo was published, Steven Bradbury issued a set of “Best Practices” for OLC. On at least two counts, his “Best Practices” violated the entire set of the May 2005 memos. In particularly, though, he warned against writing memos that were either retrospective or overly general.

The legal question presented should be focused and concrete; OLC generally avoids undertaking a general survey of an area of law or a broad, abstract legal opinion.

[snip]

Finally, the opinions of the Office should address legal questions prospectively; OLC avoids opining on the legality of past conduct (though from time to time we may issue prospective opinions that confirm or memorialize past advice or that necessarily bear on past conduct).

And yet, the Combined memo suffered from the fault of being both retrospective to that one detainee and overly general.

I wonder if that’s one of the reasons why Michael Mukasey spiked Office of Professional Responsibility’s proposed review of these memos.

Tags: Michael Mukasey, Steven Bradbury

I’ve had a frazzled few days (dealing with stuff like dodgy cars) and I’m about to bury myself deep in the weeds. So I thought I’d throw up a few links to keep you all occupied so as to ensure there’s still something left in the likker cabinet for when I come out of the weeds later today.

Silicon inside the anthrax

First, if you didn’t already see JimWhite’s link to his diary on yet more evidence that the FBI didn’t solve the Amerithrax case, here’s another link. Jim discusses recent developments in the enduring questions regarding whether there was silicon in the anthrax or not, and does so in terms that non-scientists can understand.

The telecoms and the government making googly eyes again

Then there’s this article about a bill that Jay Rockefeller and Olympia Snowe have introduced to make it easier for the government and owners of critical infrastructure to collaborate.

If passed, the legislation would enhance collaboration between US intelligence agencies and the private sector. First, it would require the White House to designate certain technology systems as critical if their disruption threatened strategic national interests. If intelligence officials received information about a forthcoming attack targeting a specific company or critical part of the US infrastructure, a top-level private sector official with security clearance would be provided with “enough” information to defend or mitigate the attack, a congressional aide said.

The threat to critical infrastructure has become a flashpoint in the broadening debate about overall cybersecurity issues. More than 85 per cent of infrastructure that is deemed to be critical is owned or operated by the private sector.

I’m mildly sympathetic to the need to make sure the private sector cooperates in cybersecurity efforts. But I would feel a lot better about the issue if the same “critical infrastructure” companies–the telecoms–hadn’t collaborated with the Bush Administration to illegally spy on Americans. And heck, as cooperation with the Feds becomes a bigger and bigger cash cow for these companies, shouldn’t we just take them over and get better service for a reasonable price?

GAO begs to disagree

Then there are two posts on Obama’s threat to veto the intelligence authorization bill if it allows GAO to conduct investigations of the intelligence community. POGO has a good summary pointing out that this really shouldn’t be that big of a deal. And Steven Aftergood has a post with a link to and discussion of the letter the head of GAO, Gene Dodaro, sent to Intelligence Committee leadership informing him that claims made in the veto threat are inaccurate.

OMB warned that the President’s senior advisors would recommend that the President veto the bill if it included any of several provisions, including the sections concerning GAO. I write to clarify what I view as several misstatements of law and fact within OMB’s letter as it relates to GAO.

OMB’s letter posits that the passage of the GAO provisions would result in sweeping changes to the current statutory framework and provide GAO with authority it currently lacks to conduct reviews of intelligence activities. GAO strongly disagrees. GAO has well-established statutory authority to evaluate agency programs and investigate matters related to the receipt, disbursement, and use of public money under 31 U.S.C. §§ 712 and 717 and to access agency records under 31 U.S.C. § 716. These statutes and others provide GAO with the required authority to perform audits and evaluations of IC activities. Within GAO’s authority, specific safeguards exist to reflect the particularly sensitive nature of certain intelligence activities and programs.l The proposed legislative provisions in essence reaffirm GAO’s existing authority in order to address the lack of cooperation GAO has received from certain elements of the IC in carrying out work at the specific request of the intelligence committees, and other committees of jurisdiction as defined by the rules of the Senate and House.

GAO acknowledges and does not seek to displace the special relationship between the congressional intelligence committees and the IC. However, GAO does not agree with the Administration’s view, originating in a 1988 opinion of the Department of Justice’s Office of Legal Counsel, that the creation of the congressional intelligence oversight structure (codified at 50 U.S.C. § 413) implicitly exempted reviews of intelligence activities from the scope of GAO’s existing audit authority.2 Neither the language of section 413 nor its legislative history provides support for this position. Moreover, the executive branch has expansively applied the 1988 opinion as precluding GAO reviews of matters that extend well beyond traditional intelligence activities. This has resulted in GAO frequently being unable to obtain the access or cooperation necessary to provide useful information to the Congress on matters involving the IC.

GAO is basically saying the Obama Administration is taking an expansive read of an old OLC opinion that–GAO claims–ignores the relevant law to try to prevent competent oversight of the intelligence community.

Not much to say about the War now…

Finally, there’s this, from Mark Hosenball. Not surprisingly, the UK’s Iraq War Inquiry wants to ask Bush Administration leaders why they brought us into an optional war in Iraq. Also not surprisingly, those Bushies have no intention of cooperating.

British government sources tell Declassified that investigators for Britain’s official Iraq War inquiry panel—which has been conducting a lengthy probe into the origins and conduct of the war—want to make a fact-finding trip to the United States. One sensitive item on the agenda: trying to get interviews with former Bush administration officials.

But the sources, who asked for anonymity when discussing private information, said there are already indications that Bush administration “principals”—senior policymaking officials including George W. Bush and Dick Cheney—have indicated that they have no intention of talking to the British investigators.

[snip]

Bush and Cheney are not the only ones who are expected to turn down the Brits’ invitation. The U.K. source acknowledged that other top-tier Bush administration officials—including Condoleezza Rice and Donald Rumsfeld—are unlikely to speak with the U.K. inquiry, which has no power to compel their cooperation. The Washington Post reported that Stephen Hadley, Bush’s former national-security adviser, has been among those “voicing a strong disinclination to participate.” If the higher ups won’t talk, the panel hopes at least to secure interviews with lower-level U.S. officials who had a hand in planning and carrying out the invasion.

Golly! What ever might Dick and Bush and Condi and Rummy and Hadley have to hide?

Time has another one of those Rahm v. Holder profiles. It is notable from the slew of other ones for two reasons.

The anonymous source calling Holder a coward

First, the story features several main sources for this story: Lindsey Graham, speaking on the record.

Holder, issuing no-nonsense statements like this, on the record:

And it’s Holder’s experience in the law-enforcement system that makes him such a strong believer in its ability to put terrorists like KSM away forever. “We should have great faith in the resilience of our systems, the resilience of our people, the toughness that has always separated Americans from other peoples in this world, and that’s what’s made this country great,” he says.

And at least one anonymous White House aide (AKA Rahm).

What I especially love about about that anonymous White House aide is that the guy who is too chicken to speak on the record seems to be parroting GOP attacks calling Holder weak on terror.

Republicans, meanwhile, were busy turning Holder into the poster child for White House weakness on terrorism, and some polls showed that most Americans agreed with them. “The only two people who still believe in civilian trials,” says one of the meeting’s attendees, “are Holder and the President.”

Brave anonymous White House aide!! Singlehandedly fighting terrorism by hiding behind anonymity!!

Lindsey’s July (?) meeting with Holder and December meeting with Obama

The article also provides a useful timeline for two meetings Lindsey had with the Administration, first an July (or August) meeting with Holder.

By July, Obama had asked Holder to decide whether it was feasible to prosecute KSM in a civilian court. Holder chewed on that question for weeks. Meanwhile, Obama’s chief of staff, Rahm Emanuel, who opposed civilian trials, asked Holder to meet with Republican Senator Lindsey Graham of South Carolina, a key centrist vote on matters of counterterrorism. Graham told Holder he strongly opposed civilian trials for the alleged 9/11 conspirators and that they could affect his support for closing Guantánamo Bay prison, a key Obama goal.

And then a December meeting with Obama.

When Obama met with Graham in early December, the Senator laid out his case against civilian trials. But the President said he thought Holder had the better side of the argument. “I just agreed to disagree with the President on that issue,” Graham told TIME.

Those meetings are interesting both for the way they match up to the timeline of the attacks on Holder and Greg Craig (which started in earnest around the time of the first meeting, and culminated in the December meeting after Craig had been ousted.

I’d really love to know the logic for the Obama meeting. After all, this was before the Christmas day bombing, when the Administration was still basking in the success of the foiled Zazi plot. And it came at a time when the Democrats had 60 votes in the Senate.

So why meeting with Lindsey?

It sure suggests the push against civilian trials is more about politics than efficacy.

But we knew that.

Tags: Eric Holder, Greg Craig, Lindsey Graham, Rahm Emanuel