Today, after successfully winning a lawsuit against the Department of Justice, under court order, CREW received documents related to former Vice President Dick Cheney’s interview with the FBI in the investigation into the leak of Valerie Plame Wilson’s covert CIA identity. The transcript reveals that Mr. Cheney – generally credited with razor sharp intellect and recall – demonstrated an astonishing inability to recollect even simple facts much less the numerous conversations others have testified to regarding his involvement in the administration’s efforts to discredit former Ambassador Joe Wilson.Mr. Cheney’s memory frequently failed to improve, even when confronted with his own hand-written notes.

A federal judge says the FBI must publicly reveal much of its interview with former Vice President Dick Cheney during the investigation into who leaked the identity of a CIA operative.

The FBI interviewed Cheney in June 2004 as it was investigating the leak of Valerie Plame’s identity after her husband criticized the Bush administration. Both the Bush and Obama administrations said they wanted to keep the interview confidential because future vice presidents may not cooperate with criminal investigations if it became public.

But U.S. District Judge Emmet Sullivan ruled Thursday that there is no justification to withhold the entire interview since the investigation has concluded. He said that limited parts could be withheld to protect national security or personal privacy.

This does, of course, mean that the terrorists are about to win. It means that our national security is about to crumble around us. And even worse, Liz Cheney is about to embark on a fresh round of mendacious TV appearances.

A federal judge said Thursday that he wants to look at notes from the FBI’s interview with former Vice President Dick Cheney during the investigation into who leaked the identity of a CIA operative.

U.S. District Judge Emmet Sullivan‘s decision to review the documents followed arguments by Obama administration lawyers that sounded much like the reasons the Bush administration provided for keeping Cheney’s interview from the public.

Obama may as well sign a presidential proclamation which all the networks and news channels are required to air every hour on the hour, saying that everything the Bush administration wanted to hide or keep secret will indeed be kept secret.

Hats off, though, to Judge Sullivan. Here are the lemons that the Obama Justice Department presented him with:

Justice Department lawyers told the judge that future presidents and vice presidents may not cooperate with criminal investigations if they know what they say could become available to their political opponents and late-night comics who would ridicule them.

“If we become a fact-finder for political enemies, they aren’t going to cooperate,” Justice Department attorney Jeffrey Smith said during a 90-minute hearing. “I don’t want a future vice president to say, ‘I’m not going to cooperate with you because I don’t want to be fodder for ‘The Daily Show.’”

Instead of turning Jeffrey Smith into something resembling lemonade, Judge Sullivan just drily told the Justice Department they “must give him more precise reasons for keeping the information confidential”.

I would love to see this go all the way to the Supreme Court. They decided yesterday — in a 5-4 ruling that may as well be called “Let The Bastards Fry” — that “prisoners do not have a constitutional right to demand DNA testing of evidence that remains in police files.” But maybe they would find a constitutional right for vice-presidents not to be ridiculed by late-night comics?

The Justice Department made a legal filing on Wednesday, urging the Supreme Court not to reconsider the dismissal of Valerie Plame and Joe Wilson‘s lawsuit against Dick Cheney, Karl Rove, Scooter Libby and Richard Armitage:

CREW learned today that the Obama administration is opposing our request that the Supreme Court reconsider the dismissal of the lawsuit, Wilson v. Libby, et al. In that case, the district court had dismissed the claims of Joe and Valerie Wilson against former Vice President Dick Cheney, Karl Rove, Scooter Libby and Richard Armitage for their gross violations of the Wilsons’ constitutional rights.

Agreeing with the Bush administration, the Obama Justice Department argues the Wilsons have no legitimate grounds to sue. It is surprising that the first time the Obama administration has been required to take a public position on this matter, the administration is so closely aligning itself with the Bush administration’s views.

It may well be that the Obama administration’s position is legally sound:

The Wilsons sued … for damages under the First and Fifth Amendments and a common-law tort claim for the public disclosure of private facts. The District Court and the Court of Appeals both dismissed the case, finding monetary damages to be an inappropriate remedy for constitutional claims, and that the Court lacked jurisdiction because administrative remedies under the Federal Tort Claims Act were not exhausted.

(The appeals court decision, by the way, was 2-1. And they threw out the lawsuit partly because “Congress exempted the offices of the president and vice president from a federal law protecting the privacy of individuals” and because “any suit would involve the disclosure of sensitive intelligence information”.)

But even if the Justice Department position is sound in law, surely it’s not just about law but also about justice?

There have been no criminal charges as a result of the leak. Libby was sentenced to 2.5 years in prison for obstructing justice and making false statements to a grand jury investigating this case; however, this sentence was commuted by President Bush.

Citizens for Responsibility and Ethics in Washington (CREW) … complained that “the government had moved to have the case dismissed before the Wilsons had the opportunity to uncover the details of how Ms. Wilson’s covert identity was revealed.”

Regardless of the legal merits of the case, the Obama administration’s decision to openly oppose this appeal is disappointing. It is unconscionable that there has been no accountability in a case where power was so clearly abused in a blatant effort to punish someone who brought the truth to light.

I’m not sure what the Obama administration thinks it’s gaining by opposing the appeal. If it is so legally misconceived, the Supreme Court will presumably reject it anyway. It seems the sensible course of action may have been to simply stay out of the fray. But the Obama administration seems to eagerly embrace every opportunity to embrace, defend or protect from public scrutiny some of the Bush-Cheney administration’s ugliest decisions. It wouldn’t have anything to do with an all-consuming need to keep portraying itself as bipartisan, would it?

In other news, President Obama yesterday addressed the state secrets privilege in his are-you-ready-to-rrrrrrumble match-up with Prick Cheney:

…while this principle is absolutely necessary in some circumstances to protect national security, I am concerned that it has been overused. It is also currently the subject of a wide range of lawsuits. So let me lay out some principles here. We must not protect information merely because it reveals the violation of a law or embarrassment to the government. And that’s why my administration is nearing completion of a thorough review of this practice.

And we plan to embrace several principles for reform. We will apply a stricter legal test to material that can be protected under the state secrets privilege. We will not assert the privilege in court without first following our own formal process, including review by a Justice Department committee and the personal approval of the attorney general. And each year we will voluntarily report to Congress when we have invoked the privilege and why because, as I said before, there must be proper oversight over our actions.

On all these matters related to the disclosure of sensitive information, I wish I could say that there was some simple formula out there to be had. There is not. These often involve tough calls, involve competing concerns, and they require a surgical approach. But the common thread that runs through all of my decisions is simple: We will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it’s uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don’t know, and when I release something publicly or keep something secret, I will tell you why.

That’s fine, fine rhetoric. When the walk he’s walking is no longer diametrically opposite to the talk he’s talking, I’ll be sure to give him a round of applause for it.

For now, the question I have for the President is: if the administration is still nearing completion of a thorough review of this practice, then why the eff has the Justice Department been taking such extreme stands on the issue — even more extreme than the Bush Justice Department did — instead of waiting for the review to be completed?

The House Government Reform Committee had issued a subpoena to Attorney General Michael B. Mukasey for the report of an FBI interview of Vice President Dick Cheney and other documents relating to the Valerie Plame leak investigation.

To nobody’s surprise, including the committee’s, Georgie is yet again hiding behind the skirts of executive privilege.

Everybody knows the script by heart at this point; both sides, as well as any bystanders who are still paying attention:

Rep. Henry A. Waxman (D-Calif.), the panel’s chairman, said yesterday that Bush’s claim of executive privilege in the case is “ludicrous” and vowed to move ahead with a contempt citation against Mukasey.

First, you vow to move ahead with a contempt citation. Then you explain (several times) that you mean what you say, extending the explicit or implicit deadline for compliance each time. Then you threaten to really move ahead with a contempt citation, which obliges you to extend the deadline yet again. Then you do so move. And I forget what happens next. Maybe because I kind of stopped paying attention a while back. Or maybe because nothing actually does ever happen. Which, of course, is the whole point of shadowboxing.

What I found interesting, though, were some of the statements made by Alberto “Buttercheeks” Gonzales‘ worthy successor as he wrote to Bush to recommend the executive privilege assertion.

But in a letter to Bush released by Waxman’s committee, Mukasey argued that some of the reports include summaries of conversations between Bush and his aides, which are covered by executive privilege. Mukasey also warned that releasing such documents could imperil future Justice Department probes.

“Future probes”, of course, means “possible future probes”. Mukasey doesn’t seem to have clarified whether he meant the future probes that will never actually get off the ground, or the ones that will manage not to go anywhere.

From the same letter:

“I am greatly concerned about the chilling effect that compliance with the committee’s subpoena would have on future White House deliberations and White House cooperation with future Justice Department investigations,” Mukasey wrote.

Funny how the Attorney General of the U.S. carries around in his head the unquestioned assumption that future presidents will have the same cavalier disregard for the laws of the land and our time-honored system of checks and balances that George Bush has had. (The cavalier disregard that will doubtless constitute a major part of Bush’s sorry-ass presidential legacy.)

(2)
It seems that Mukasey had to dig pretty deep into his larder of novel and specious arguments to justify the claim of executive privilege:

The decision by the White House to refuse to honor the subpoena from Democratic Rep. Henry Waxman’s House Oversight and Government Reform Committee for Cheney’s interview was hardly unexpected, given the administration’s history of fiercely protecting presidential prerogatives. What was surprising to some legal scholars was the basis for shielding the FBI interview report. It was covered, Mukasey said, by what he called “the law-enforcement component of executive privilege.”

“As far as I know, this is an utterly unprecedented executive-privilege claim,” said Peter Shane, an Ohio State University law professor who is an expert on executive privilege and separation-of-powers issues. “I’ve never heard this claim before.”

Normally, claims of executive privilege are invoked to protect the disclosure of the president’s communications with his top advisers. But in this case, the White House invoked the claim to keep secret Cheney’s responses to FBI agents (hardly what anybody would call his advisers), who were grilling him as part of the now-closed criminal investigation headed by Fitzgerald.
[...]
… a number of former federal prosecutors and legal scholars said that Mukasey’s argument that future White House officials wouldn’t cooperate with the Justice Department if Cheney’s 302 report were to be publicly disclosed seemed a stretch. (The legal claims were prepared in part by Office of Legal Counsel chief Stephen Bradbury, whose legal opinions on interrogation and torture have come under fire from Congress).

“Creative is a good word to describe it,” said Mark Rozell, another executive-privilege expert who is a professor at George Mason University’s School of Public Policy, about the attorney general’s contention. “This is really an argument to protect the White House’s own political interests and save it from embarrassment.”

Mr. Chairman, I believe that it would signal a special treatment, the same thing that happened with the commutation. And the President has always held a certain standard for a granting pardons, even going back to when he was governor, and I worked for him then. And that is, that the person must first repay his debt to his society, and second, must express remorse for the crimes which he committed. And we have seen neither of that from Scooter Libby at this point.

Maybe not firing Karl Rove should have given McClellan a clue that Bush wasn’t exactly a towering paragon of ethical behavior?

I. Lewis “Scooter” Libby, the former aide to Vice President Dick Cheney whose sentence for lying and obstructing justice in the CIA leak case was commuted by President Bush last summer, has dropped his legal appeal.
[...]
“We remain firmly convinced of Mr. Libby’s innocence,” his attorney, Theodore Wells, said in a statement today. “However, the realities were that after five years of government service by Mr. Libby and several years of defending against this case, the burden on Mr. Libby and his young family of continuing to pursue his complete vindication are too great to ask them to bear.”

In case you misunderstand the position of Libby/Wells, the reason for dropping the appeal boils down to: “Of course we’ll win the appeal, but it’s not worth winning”:

“The appeal would lead only to a retrial,” he said, “a process that would last even beyond the two years of supervised release, cost millions of dollars more than the fine he has already paid, and entail many more hundreds of hours preparing for an all-consuming appeal and retrial.”

The L.A. Times, instead of wiping away tears from their eyes, chose to impugn the motives of Libby and Wells this way:

The decision also reflects the political reality that if the appellate court granted a new trial, it would probably occur during the administration of the next president, who might not share Bush’s interest in helping his former official.

Now that Libby has dropped his appeal, the White House can no longer hide behind the skirts of “ongoing-legal-investigation”. As you might expect, the question came up at yesterday’s White House press briefing. It was, in fact, the very first question:

Q Scooter Libby dropped his appeal in the CIA leak case. How will that affect whether the President issues a pardon for him?

MS. PERINO: Well, we never comment on whether or not the President will be granting or not granting pardons to anybody. So I’m not able to comment.

Q So it’s still an open question?

MS. PERINO: Well, you know, if he chooses to pursue a pardon, there is that route. And of course the Constitution provides the President the powers of the pardon. And we just cannot speculate, as we don’t on any possible pardons.

Q Okay. Well, now that the appeal — there is no longer any appeal, can you speak to what the President thinks about Scooter Libby disclosing the name of a CIA official?

MS. PERINO: I did not have a chance to talk to — chance to speak to the President after this announcement was made this morning, and so I don’t have his immediate reaction. He gave a lengthy statement in July in regards to the commutation and so I’ll have to refer you to that for now.

Q But he didn’t talk about what Scooter Libby had actually done in that –

MS. PERINO: And as I said, I haven’t spoken to the President about it, so I’m not able to provide you anything else at this moment.

Q Is he expected to do pardons during the Christmas break?

MS. PERINO: I have to give the same answer, which is we don’t speculate on any possible pardons.

The White House press corps is no doubt holding out King Bruce’s spider as a role model to themselves. How long can Dana claim she hasn’t been able to speak to George?

Georgie Bush was asked a great question at his press conference yesterday. What followed was, even by Georgie’s standards, unbelievable:

Q Mr. President, I wanted to ask you about accountability. You’re a big believer in it, you’ve talked about it with regard to the public schools. But given the performance of Iraqi leaders, given your decision to commute the sentence of Lewis Libby, you’ve also stood by the Attorney General recently — there have been a lot of questions about your commitment to accountability. And I’m wondering if you could give the American people some clear examples of how you’ve held people accountable during your presidency?

THE PRESIDENT: Lewis Libby was held accountable. He was declared guilty by a jury and he’s paid a high price for it.

Al Gonzales — implicit in your questions is that Al Gonzales did something wrong. I haven’t seen Congress say he’s done anything wrong. As a matter of fact, I believe, David, we’re watching a political exercise. I mean, this is a man who has testified, he’s sent thousands of papers up there. There’s no proof of wrong. Why would I hold somebody accountable who has done nothing wrong? I mean, frankly, I think that’s a typical Washington, D.C. assumption — not to be accusatory, I know you’re a kind, open-minded fellow, but you suggested holding the Attorney General accountable for something he did wrong.

Libby was convicted by a jury, and sentenced by a judge, only to have his sentence commuted by Bush.

And so naturally this, in the mind of George W. Bush, is a clear example of Bush holding someone accountable during his presidency.

Someone needs to point out to Georgie that putting satirists out of work messes up the unemployment numbers his administration is so fond of touting.

As for that defense of Buttercheeks, what is there to be said that hasn’t already been said a few hundred thousand times by others recently?

But that wasn’t even the most bizarre thing Bush said in response to this question. So help me Gods, this is where Georgie ended up, after a mighty riff: I hold the “forces of murder and intolerance” responsible for 9/11 September the 11th.

Q If I could follow — sorry. Given the decision to commute the sentence of Libby and given the performance of Iraqi leaders, is it fair for people to ask questions about your commitment to accountability?

THE PRESIDENT: I would hope people would say that I am deliberate in my decision-making; I think about all aspects of the decisions I make; and I’m a fair person.

Back to Iraq, no question they haven’t made as much progress as I would have hoped. But I also recognize how difficult the task is. And I repeat to you the fundamental question is, does it matter whether or not there is a self-governing entity that’s an ally in the war on terror in Iraq? Does it matter? Does it matter to a guy living in Crawford, Texas? Does it matter to your children? As you know from these press conferences, I have come to the conclusion that it does matter. And it does matter because enemies that would like to do harm to the American people would be emboldened by failure.

I recognize there’s a debate here in America as to whether or not failure in Iraq would cause there to be more danger here in America. I strongly believe that’s the case. It matters if the United States does not believe in the universality of freedom. It matters to the security of people here at home if we don’t work to change the conditions that cause 19 kids to be lured onto airplanes to come and murder our citizens. (Kids? Your Presidentiality, Mohammed Atta was 33 when he plowed that plane into the WTC.)

The first question one has to ask on Iraq is, is it worth it? I could not send a mother’s child into combat if I did not believe it was necessary for our short-term and long-term security to succeed in Iraq. Once you come to the conclusion that it’s worth it, then the question you must ask is, how difficult is the task of a young democracy emerging? Those who study the Articles of Confederation would recognize that there are difficult moments in young democracies emerging, particularly after, in this case, tyrannical rule.

That’s not to say that, Dave, we shouldn’t be pushing hard for all opportunities for reconciliation. But for those of us who believe it’s worth it, we’ll see progress. For those who believe it’s not worth it, there is no progress. And that’s going to be the interesting debate. And what it’s going to come down to is whether or not the United States should be in Iraq and in the region in a position to enable societies to begin to embrace liberty for the long-term. This is an ideological struggle.

Now, I recognize some don’t view it as an ideological struggle, but I firmly believe it is an ideological struggle. And I believe it’s a struggle between the forces of moderation and reasonableness and good, and the forces of murder and intolerance. And what has made the stakes so high is that those forces of murder and intolerance have shown they have the capacity to murder innocent people in our own country. I put that in the context of accountability.

I put the whole of that last speech in the context of lunacy. In a more enlightened country wouldn’t this man have been committed a long time ago?

In the country that we used to be, a case like that of Troy Davis would have caused spontaneous, widespread outrage:

A Georgia man is scheduled to be executed by lethal injection on Tuesday for killing a police officer in 1989, even though the case against him has withered in recent years as most of the key witnesses at his trial have recanted and in some cases said they lied under pressure from police.
[...]
Three of four witnesses who testified at trial that Davis shot the officer have signed statements contradicting their identification of the gunman. Two other witnesses — a fellow inmate and a neighborhood acquaintance who told police that Davis had confessed to the shooting — have said they made it up.
[...]
The circumstances of the case have provoked criticism beyond the usual groups that oppose the death penalty.

“There is no more serious violent crime than the murder of an off-duty police officer who was putting his life on the line to protect innocent bystanders,” William S. Sessions, FBI director under presidents Ronald Reagan and George H.W. Bush, wrote recently in an op-ed piece in the Atlanta Journal-Constitution. But “serious questions have been raised about Davis’s guilt. . . . It would be intolerable to execute an innocent man.”

In the country we have become, his case is only now starting to gain national attention. And he’s due to be executed tomorrow.

Executing Davis would be unconscionable. It looks like we’re about to find out how far we have evolved as a nation, from who we used to be. And this has nothing to do with George Bush. This is quite simply a matter of who we are.

We seem to be a nation of laws that do not deliver justice. We seem to be a nation that does not care if our laws do not deliver justice.

We care passionately about using otherwise-to-be-discarded embryos for stem cell research. We do not care about executing people who are very probably innocent of any crime.

Maybe it’s still not be too late to take action to try to influence the state of Georgia? The only information I’ve found online about registering a protest, and asking for Davis’ death sentence to be commuted, asks you to appeal to the State Board of Pardons and Paroles, rather than the Governor.

Ironic to come face to face with the word commute again, isn’t it? Scooter Libby‘s sentence was commuted because it was clear to Bush that it was excessive, even though it fell within the sentencing guidelines for the crime that Bush had no doubt he was guilty of. Troy Davis is about to be executed (not just sodomized but executed) for a crime he probably did not commit, because recent laws dictate that questionable, trumped-up evidence cannot be questioned at this late stage. And Bush is planning to look the other way? He’s planning to say (even if just by omission), what can I do, it’s too late for justice?

Or maybe it’s still not too late to take action to try to pressure Bush to commute Davis’ sentence? Maybe some good can still come out of the Libby commutation?