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Blather Dither Prattle and Drone

post from Docudharma - Front Page on 02 July 2009 09:21:38 PM. © Docudharma - Front Page

Might as well listen to the tacit assessments of a one ton hunk of tentacled protoplasm. At least they're fairly intelligent creatures. Because you'll never find out what's really going on by heeding the corporate harlots squawking on[...]

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Read my new book on your iPhone or iPod

post from Let's Talk Honestly on 02 July 2009 09:18:14 PM. © Let's Talk Honestly

Let’s Talk Honestly: One Black Man’s Thoughts $1.50A collection of poems and essays by George L. Cook III. These writings are inspired by Mr. Cook’s experience’s as a soldier, community activist, time in politics, coach, husband, and father. And yes they are inpsired by his experiences as a black man living in the United States [...]

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http://glciii.wordpress.com/2009/07/03/read-my-new-book-on-your-iphone-or-ipod/

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My new Amazon Kindle Book: Lets Talk Honestly:
One Black Mans Thoughts

post from Let's Talk Honestly on 02 July 2009 09:15:05 PM. © Let's Talk Honestly

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Overnight Caption Contest

post from Docudharma - Front Page on 02 July 2009 09:06:15 PM. © Docudharma - Front Page

[...]

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t-new

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Overnight Caption Contest (new)

post from Docudharma - Front Page on 02 July 2009 09:06:15 PM. © Docudharma - Front Page

[...]

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The Battle Over Dick Cheney's FBI Valerie Plame
Interview

post from TalkLeft on 02 July 2009 09:05:00 PM. © TalkLeft

When I wrote a few weeks ago about the Obama Administration taking the position that documents related to Dick Cheney's FBI interview in the Valerie Plame leaks case should not be released, it was in the context of lack of transparency and the silliness of the Government's attempted justification:

Another sign of non-transparency from Obama: His Justice Department is fighting a Freedom of Information Act request in federal court, trying to keep CREW from obtaining FBI reports and summaries of Dick Cheney's statement to the FBI over the Valerie Plame Leak. The Judge held a hearing yesterday and was very unhappy with the Government's position. He's going to review the statement himself to see if there's any reason not to release the requested documents. The Government gave this ridiculous reason: They don't want the statements "to become fodder for Cheney's political enemies or late-night commentary on "The Daily Show."

In newer developments, David Corn reports the Government has filed a new pleading containing a more substantive reason: [More...]

Corn reports Deputy Chief of the Criminal Division Lanny Breuer submitted a declaration stating "if the Cheney interview is made public it could cause public officials in the future to not cooperate with criminal investigations." From Breuer's declaration:

As a general matter, the non-public nature of law enforcement interviews can be a significant factor in securing the voluntary cooperation of witnesses. Indeed, it is not uncommon for prosecutors and law enforcement investigators to inform witnesses that, subject to applicable statutes, regulations and rules, they will attempt to maintain the confidentiality of information provided. A non-public interview can be particularly important in gaining the cooperation of senior-level White House officials given the public role of such witnesses, the sensitive nature of the subject matters that may be discussed, the potential politicization of these sensitive issues, and the possibility that whatever matter is being investigated ultimately may not warrant any law enforcement action.

Corn asks:

In other words, top government officials may only cooperate with a criminal investigation --that is, submit to questioning without being subpoenaed -- if they are promised confidentiality. Now what sort of public servant would a person be if he or she refused to help the FBI during an investigation? But Breuer claimed this is a real threat to future investigations.

Kevin Drum takes a different view and asks if any law bloggers want to respond:

I guess what I'm unclear about here is the distinction, if there is one, between an ordinary FBI interview and one with a high-ranking politico. Just speaking generally, it strikes me that it's genuinely in the public interest for interviews like these to be kept private unless they lead to criminal prosecutions. Lots of people really would would be less forthcoming during FBI investigations if they knew their interviews might become public, so it's reasonable that the default position should be that they stay confidential. That's certainly how I'd want things to stand if I were dishing dirt to the FBI.

Now, perhaps things should be different for non-ordinary people like vice presidents. But I don't know if that's part of the legal argument here or not. Are there any law bloggers out there who can step in and explain what's going on here?

First, the reason this is an issue is because Judge Emmett Sullivan ordered the following be filed by yesterday (From his order, available on PACER):

...the parties are directed to submit supplemental briefing that addresses (1) any known instances in which high level White House officials have engaged in interviews with law enforcement officials outside the context of a grand jury subpoena, and (2) what, if anything, such officials have done to protect against the content of those interviews from becoming public.

I would start with the difference between a Congressional committee subpoenaing the documents and a private interest group filing a FOIA lawsuit for them. I would also consider the parallel of grand jury secrecy, which isn't at issue here, for reasons discussed below, but which nonetheless seems relevant to me.

The Bush DOJ, on behalf of Cheney, asserted executive privilege among other claims after the House Oversight Committee had issued a subpoena for the Cheney interview. The Wilson's responded at the time:

“Today the president took the unprecedented step of asserting executive privilege to thwart congressional efforts to review Vice President Cheney’s interview with Special Prosecutor Patrick Fitzgerald concerning the betrayal of Valerie Wilson’s covert CIA identity. We agree with Congressman Waxman that the position taken by the president is ludicrous.

The American people have a right to know what role the vice president played in the leak of Ms. Wilson’s covert identity for political purposes. The fact that the Attorney General is recommending the assertion of executive privilege reveals that this Department of Justice is as beholden to the White House as that run by former Attorney General Alberto Gonzales.

I agree the Congressional Committee had a right to know. It was conducting a parallel investigation and the material it requested wasn't protected by grand jury secrecy. I don't think the American public did at that point. Or now. The lawsuit at issue here is not related to the Congressional investigation, even though the documents it requests mirror those the Committee requested. It is a Freedom of Information Act request by a public interest group, CREW.

U.S. Attorney Patrick Fitzgerald told the House Oversight Committee in this letter (pdf) that grand jury secrecy doesn't apply to its subpoena of these documents. Still, Cheney's 2004 interview by federal prosecutors was part of the grand jury investigation into the leak of Plame's identity. He may not have testified in front of the grand jury, but the grand jury was investigating the case and the interview was conducted as part of that investigation.

Vice President Dick Cheney was recently interviewed by federal prosecutors who asked whether he knew of anyone at the White House who had improperly disclosed the identity of an undercover C.I.A. officer, people who have been involved in official discussions about the case said on Friday.

...The interview of the vice president was part of a grand jury investigation into whether anyone at the White House violated a federal law that makes it a crime to divulge the name of an undercover officer intentionally.

As then President Bush said about his own interview, it was a criminal matter:

"In terms of whether or not I need advice from my counsel, this is a criminal matter, it's a serious matter, I have met with an attorney to determine whether or not I need his advice. And if I deem I need his advice, I'll probably hire him."

The Government may not disclose matters occurring before the grand jury. One reason is to protect the names and reputations of the innocent, those who don't get indicted.

The grand jury in the United States has become both a sword and a shield of justice: a sword, because it can investigate crime and indict criminals; a shield, because by its secret and nonpublic nature, it can protect the innocent against unfair publicity. These important powers carry equally grave responsibilities to see that such powers are not abused. Unless motivated by the highest sense of justice, a grand jury might return indictments not warranted by the evidence and thus become a source of oppression to innocent citizens.

Rule 6(e) of the Federal Rules of Criminal Procedure contains the secrecy rule and exceptions. One exception is that federal officials may share information with each other, but only in the conduct of their official duties. The Congressional investigation seems to fit this. A Freedom of Information Act request by private citizens does not.

But, CREW is not seeking the actual interview of Cheney. According to it's Cross-Motion for Summary Judgment (pdf), it is seeking matters occurring outside the grand jury, specifically:

1) “FBI report summarizing interview of Vice President Richard B. Cheney” (28 pages);
“FBI handwritten notes summarizing interview of Vice President Richard B. Cheney” (22 pages);
3) “FBI handwritten notes (annotated on outline of questions to be asked) summarizing interview of Vice President Richard B.Cheney” (17 pages).

The FBI agent summaries were taken during the Cheney interview. Even though the interview, and the agents' notes of it don't fall under grand jury secrecy rules, I think the same principles should apply.

If the shoe were on the other foot, and you were a person interviewed by prosecutors and federal officials conducting a grand jury investigation, and you were not indicted, would you want a summary of your interview disclosed to the public? What if you were one of the people who was talked about in that person's grand jury interview? Would you want a one-sided account by that person disclosed to the public?

Not everyone talks to the FBI voluntarily, even without a subpoena. Some people are threatened with criminal charges unless they agree to an interview. Others refuse and are granted immunity and then compelled to talk. Or as part of a proffer for a deal. Or out of fear their loved ones will be targeted if they don't comply with the Government's request. These interviews are one-sided and not subject to cross-examination by representatives of individuals who are the discussed during the interview. These interviews may or may not be reliable.

Criminal trials take place in public. Criminal investigations take place in private. Even though this isn't a grand jury secrecy case, I think in order to protect the privacy and reputation of those who are mentioned or discussed by the subject of a law enforcement interview, the reports of these interviews, untested by cross-examination, should remain in government hands and not subject to release via a FOIA request.

This shouldn't be decided on executive privilege. Or on the basis of whether federal officials will clam up when those investigating possible criminal conduct want to interview them.

The same rule should apply to Cheney as to everyone else. In my view, the Congressional Committee had a right to the documents since they are federal officials investigating a matter related to the subject matter of the grand jury's Valerie Plame leak investigation. But CREW and the public don't. It's too bad that Dick Cheney is the one who wins if the material is not released to CREW and the public, but I'd rather have that than a precedent that allows reports of law enforcement interviews of the average citizen who ultimately is not indicted, and who may have slandered Tom, Dick and Mary during their interview, subject to public disclosure.

So while the Government's grounds are weak and unpersuasive, for other reasons, I hope the documents are not be released to the CREW and the public.

Documents:

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Into the Land of Bones

post from Docudharma - Front Page on 02 July 2009 09:04:09 PM. © Docudharma - Front Page

One change makes you larger,And one change makes you small,And the ones Obama gives you, don't do anything at all.Go ask Geithner, when he's ten feet tall.Bring a shovel with you, he's WAY down in that 10 trillion dollar rabbit hole no Obamabots want to[...]

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Deflation

post from AMERICAblog News| A great nation deserves the truth on 02 July 2009 09:03:00 PM. © AMERICAblog News| A great nation deserves the truth

Krugman says "we're heading into Japanese-style deflation territory." And, he's got the chart of "wage change" to prove it.

Earlier this year, Krugman told us "getting out of a deflationary trap is very, very hard."

I don't like the sound of this. All I know is that if Krugman thinks it's bad, it is.

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Mark Levin compares Obama to Bernie Madoff: 'He
is taking a wrecking ball to this society'

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Mark Levin is happy now that he's got a bestseller decrying the tyranny certain to descend upon America under liberal rule, which Sean Hannity touted on his Fox News show last night. The appearance produced some plum bon mots fresh from Planet Wingnuttia:

Levin: What's going on in this country is really anti-liberty. The president is -- you know, they just put Bernie Madoff away for life. The president's policies are Bernie Madoff times a thousand. He is taking a wrecking ball to this society.

Levin evidently seems to have conveniently forgotten that Bernie Madoff was an exemplar of the laissez-faire capitalism practiced by Republicans generally and George W. Bush particularly. This is essentially accusing the person in charge of cleaning up after a demolition with having wielded the wrecking ball in the first place.

Levin also keeps referring throughout to Obama and his policies as "something foreign" and claims that he's undermining the Constitution.

Levin also claims that Obama "wants to destroy the health-care system that most of us like."

Oh really? That must be so, if your definition of "most of us" is "less than 15 percent of the population".

I suspect "us" for Levin and Hannity is their little claque of right-wing pundits and wealthy Republicans, as well as Levin's perfervid readers who've been just as eagerly drinking the Limbaugh/Beck Kool Aid.

He wraps up with this classic bit of wingnuttery:

Levin: This president has some very bizarre and alien viewpoints, ah, that were -- that, that were, you know, he was indoctrinated with, and now that I believe that he really believes in, and advances. He is a -- he is about as left wing and about as radical as anybody ever to be in the Oval Office.

Hoo boy. Talk about bizarre and alien. It must be quite the interesting view, out there on Planet Wingnuttia.

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Administration Asks for Two Month Delay on CIA
Torture Report

That "holy grail" CIA torture report that is reportedly wil undercut claims that torture provided any useful intelligence, the one that was supposed to have been released yesterday, and a few weeks before that, might be held now until August 31.

At least, that's what the administration has requested. The ACLU, the organization that brought the FOIA case which resulted in the order that the document be released will challenge that request. Spencer has the details, including the documents:

The Justice Department argues that the volume of material it needs to go through in the CIA’s 2004 inspector general report is just too great to meet any pre-August 31 timetable. Not only is the IG report itself 200 pages, that’s just one of 319 documents under review as part of the case.

The ACLU replies that the CIA and the Justice Department have already missed three deadlines for the agreed-upon disclosure, and lawyer Amrit Singh writes that she’s “disturbed by the clear trend emerging in the government’s repeated delays in disclosure of documents critical to a complete understanding of the CIA’s interrogation program.” She says that instead of delaying, Judge Alvin Hellerstein should order the “expediting the reprocessing and release of all CIA documents at issue.”

Spencer also has this statement from the ACLU's national security chief Jameel Jaffer:

The CIA has already had more than five months to review the inspector general’s report, and the report is only about two hundred pages long. We’re increasingly troubled that the Obama administration is suppressing documents that would provide more evidence that the CIA’s interrogation program was both ineffective and illegal. President Obama should not allow the CIA to determine whether evidence of its own unlawful conduct should be made available to the public. The public has a right to know what took place in the CIA’s secret prisons and on whose authority.

It's hard to see what a delay of two months will necessarily gain the administration given, as Jaffer points out, they've already had five months to try to figure out what to do about it. The predictable response was just what they got, the ACLU upped the ante by requesting that all of the CIA documents that are pending release be expedited. At this point, the report is going to be damaging no matter what--damage likely intensified by the efforts to delay its release.

Stay tuned for the court's response, probably after the holiday weekend.