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White House withholds thousands of documents from Senate CIA probe, despite vows of help
BY JONATHAN S. LANDAY, ALI WATKINS AND MARISA TAYLOR
McClatchy Washington BureauMarch 12, 2014
WASHINGTON — The White House has been withholding for five years more than 9,000 top-secret documents sought by the Senate Select Committee on Intelligence for its investigation into the now-defunct CIA detention and interrogation program, even though President Barack Obama hasn’t exercised a claim of executive privilege.
In contrast to public assertions that it supports the committee’s work, the White House has ignored or rejected offers in multiple meetings and in letters to find ways for the committee to review the records, a McClatchy investigation has found.
The significance of the materials couldn’t be learned. But the administration’s refusal to turn them over or to agree to any compromise raises questions about what they would reveal about the CIA’s use of waterboarding and other harsh interrogation techniques on suspected terrorists in secret overseas prisons.
The dispute indicates that the White House is more involved than it has acknowledged in the unprecedented power struggle between the committee and the CIA, which has triggered charges that the agency searched the panel’s computers without authorization and has led to requests to the Justice Department for criminal investigations of CIA personnel and Senate aides.
CONTINUED...
http://www.mcclatchydc.com/2014/03/12/221033/despite-vows-of-help-white-house.html
77 replies
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Brilliant piece OnyxCollie, and incredibly informative. 
I hope you don't mind that I took the liberty to re-post a huge segment of your piece titled US Attorneys and Game Theory.
The game theory was interesting, but the resulting outcome is the nut of it, imo.
(all text in bold is my emphasis)
Love this summation:
Because of the power commanded by the position of U.S. Attorney, independence and neutrality are crucial to avoid abuse. Partisan influence, coercion, or rewards for favors can turn the office of U.S. Attorney into a dangerous weapon against citizens. The Court addressed the threat posed by compromised U.S. Attorneys in Berger 295 U.S. 78 at 88:
…While he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. …Improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused, when they should carry none.
…While he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. …Improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused, when they should carry none.
Given the potential to damage lives, careers, and reputations, it is essential that safeguards be in place to prevent U.S. Attorneys from miscarrying justice.
The first move was to change the rules. In spite of the long-accepted, constitutionally sound, independence-preserving method of appointing interim U.S. Attorneys, the appointment process was radically changed with the reauthorization of the USA PATRIOT Act in 2006. Removed was the interbranch appointment from the district court; the Attorney General could now make interim U.S. Attorney appointments. Also eliminated was the 120 day period that interim U.S. Attorneys could stay in office before a district court could appoint an interim U.S. Attorney to fill the vacancy. Interim U.S. Attorneys could now remain in office indefinitely, or until the President appointed a U.S. Attorney to the district. Interim U.S. Attorney appointments bypassed Senate confirmation, leaving the determination of qualification to the Justice Department.
The insertion of this new clause into the reauthorization of the USA PATRIOT Act went unnoticed. Senators were at a loss to explain how the clause made its way into the bill. It was later determined that the Justice Department had requested Brett Tolman to insert the clause into the bill (Kiel, 2007). At the time the clause was inserted Mr. Tolman was a counsel to the Senate Judiciary Committee, of which is Sen. Arlen Specter (R-PA) is a member. Sen. Specter responded to inquiries about his involvement with the clause by saying, “I do not slip things in” (Kiel, 2007, p. 1). According to Sen. Specter, the principal reason for the change was to resolve “separation of power issues” (Kiel, 2007, p. 2). The Senate voted to repeal the clause in February 2007 (P.L. 110-34, 2007). Mr. Tolman is now a U.S. Attorney for the state of Utah.
The insertion of this new clause into the reauthorization of the USA PATRIOT Act went unnoticed. Senators were at a loss to explain how the clause made its way into the bill. It was later determined that the Justice Department had requested Brett Tolman to insert the clause into the bill (Kiel, 2007). At the time the clause was inserted Mr. Tolman was a counsel to the Senate Judiciary Committee, of which is Sen. Arlen Specter (R-PA) is a member. Sen. Specter responded to inquiries about his involvement with the clause by saying, “I do not slip things in” (Kiel, 2007, p. 1). According to Sen. Specter, the principal reason for the change was to resolve “separation of power issues” (Kiel, 2007, p. 2). The Senate voted to repeal the clause in February 2007 (P.L. 110-34, 2007). Mr. Tolman is now a U.S. Attorney for the state of Utah.
The revelations in following is just stunning:
The changes came to light in December 2006 when eight U.S. Attorneys were forced to resign their posts, seven of them resigning on the same day (U.S. Dept. of Justice, 2008). One of the U.S. Attorneys was in the process of an investigation. Carol S. Lam had just successfully prosecuted congressman Randy “Duke” Cunningham (R-San Diego, CA) of accepting bribes in return for steering in excess of $70 million to two defense contractors (Pincus, 2006). Ms. Lam was forced to resign after indicting Kyle “Dusty” Foggo, the no. 3 man at the Central Intelligence Agency, who had connections to Brent Wilkes and Mitchell Wade, two men involved in the Cunningham scandal (Pincus, 2006). On February 19, 2008, Mr. Wilkes was convicted of bribery, conspiracy, and fraud and was sentenced to 12 years in prison (Eggen, 2008). Mr. Foggo was convicted of corruption on September 29, 2008 (Johnston, 2008).
The reason the government provided for Ms. Lam’s departure was that she refused to prosecute immigration cases (Steinhauer and Lipton, 2007). However, a review of court records spanning five years had shown Ms. Lam to be ranked among the top 10 of the 93 U.S. Attorneys for prosecutions and convictions, with immigration cases providing the bulk of her prosecutions (McCoy and Johnson, 2007).
U.S. Attorney Margaret Chiara was asked to resign in November 2006. Ms. Chiara claims to have been notified by the Justice Department to resign from her post in order to make way for “an individual they wanted to advance” (Lipton, 2007, p. 1). The Justice Department cited poor performance and low office moral as the reasons for her dismissal, yet Ms. Chiara said her office had increased felony convictions by 15 percent (Lipton, 2007). Recounting an email exchange with Michael Elston, the deputy attorney general’s chief of staff, Ms. Chiara said Mr. Elston had told her that she “erroneously assumed that good service guaranteed longevity” and that she and other U.S. Attorneys were “being asked for their resignations without good cause” (Lipton, 2007, p. 1).
U.S. Attorney Bud Cummins was forced to resign on December 20, 2006. Mr. Cummins’ replacement, Tim Griffin, was appointed to the position five days earlier (Arkansas Times, 2006). Mr. Griffin had previously worked for the Republican National Committee and had been an opposition researcher for presidential advisor Karl Rove (Satter, 2006).
U.S. Attorney John McKay was forced to resign on December 7, 2006. In a hearing before the Senate Judiciary Committee, McKay recounted a phone call he had received shortly after the November 2004 election from Ed Cassidy, then chief of staff to Rep. Doc Hastings (R-Washington) (Seattle Post-Intelligencer, 2007). Mr. McKay had said that the call was to inquire about an investigation into allegations of voter fraud in the close election win of Democratic Gov. Chris Gregoire. Mr. McKay withheld any comments about the investigation and “told Cassidy he was sure the call was not intended to suggest that Hastings was calling for a federal investigation, because that would be improper” (Seattle Post-Intelligencer, 2007, p. 1). The Republican National Committee and Gov. Gregoire’s opponent, Republican Dino Rossi, had brought a lawsuit forward to challenge the results of the election. Lacking evidence to support the claims of fraud, Judge John Bridges ruled against the plaintiffs (Seattle Post-Intelligencer, 2007).
Similar to Mr. McKay was the firing of U.S. Attorney David Iglesias. Mr. Iglesias received calls at his home by Sen. Pete Domenici (R-NM) and Rep. Heather Wilson (R-NM). Mr. Iglesias testified before the Senate that the calls were to question the progress of an investigation of voter fraud in the upcoming election of Rep. Wilson. Mr. Iglesias said he was pressured to bring an indictment before the election. According to Mr. Iglesias:
I was at home. This was the only time I’d ever received a call from any member of Congress while at home during my tenure as United States Attorney for New Mexico. …I recognized the voice as being Senator Pete Domenici. And he wanted ask me about the matters of the corruption cases that had been widely reported in the local media. I said, “All right.” And he said, “Are these going to be filed before November?” And I said I didn’t think so, to which he replied, “I’m very sorry to hear that.” And then the line went dead (Iglesias, 2007, as cited in McKay, 2008, p. 282, 283).
Conversely, of the U.S. Attorneys who were not fired, there were the “…80-85 percent, I would guess, who are doing a great job, are loyal Bushies, etc.” (Sampson, 2005, p. 1), who have been the subject of allegations of political prosecutions. A report from Professors Emeritus Donald C. Shields and John F. Cragan of the University of Missouri and Illinois State University respectively, shows that of 375 elected officials investigated and/or indicted, 10 involved independents, 67 involved Republicans, and 298 involved Democrats. “U.S. Attorneys across the nation investigate seven times as many Democratic officials as they investigate Republican officials, a number that exceeds even the racial profiling of African Americans in traffic stops” (Shields & Cragan, 2007, p. 1).
A July 2008 Justice Department report indicated illegal hiring practices based on political or ideological affiliations for career positions. The report stated that more qualified candidates were passed over in favor of political cronies. From the report:
Elston said that Goodling made it clear to him that she did not want Democrats detailed to the ODAG because she had a ‘farm system’ approach to filling vacancies in the Department, and she wanted to ‘credential’ Republicans so that they could move on to higher positions. Elston also stated that there were some Republicans that Goodling did not want to hire as detailees because they were not ‘Republican enough’ (U.S. Department of Justice, 2008, pp. 47, 48).
Emails released by the Justice Department and interviews conducted by congressional investigations revealed involvement by White House officials Karl Rove and Harriet Miers in the firing of the U.S. Attorneys (Jordan, 2007; Eggen and Solomon, 2007). The White House refused to cooperate, citing blanket executive privilege claims (Leahy, 2007). The claims of executive privilege were made despite any communication with the President regarding the U.S. Attorney firings (Holman, 2007).
Sen. Patrick Leahy had asked the White House to provide documents and testimony regarding the U.S. Attorney firings. In response, Sen. Leahy was repeatedly offered “an unacceptable ‘take it or leave it’ offer of limited document availability and off-the-record, backroom interviews with no transcript, no oath, and no ability to follow up” (Leahy, 2007, p. 3). Further attempts to accommodate the White House by the Senate Judiciary Committee and the House Judiciary Committee were refused (Leahy, 2007).
Mr. Rove, Ms. Miers, and White House chief of staff Joshua Bolton were subpoenaed to appear before the Senate and House Judiciary Committees (Kane, 2007). In a letter to George Manning, legal counselor for Harriet Miers, House Judiciary Committee Chairman John Conyers threatened to use inherent contempt (Conyers & Sanchez, 2007). Inherent contempt is a procedure where:
The individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. (Kaiser, Oleszek, Halstead, Rosenberg & Tatelman, 2007, p. 37).
None of the subpoenaed officials appeared and were later found to be in contempt of Congress (Kane, 2008; Washington in Brief, 2008). No further criminal action was brought against Ms. Miers and Mr. Bolton. Citing a 1984 legal opinion, Attorney General Michael Mukasey said that the refusal to appear before Congress “did not constitute a crime” (Eggen, 2008, p. A02).
In conclusion, it is apparent that the White House (and the Republican National Committee by extension) had changed the rules to obtaining power. U.S. Attorneys who prosecute high-ranking government officials could be removed from office. U.S. Attorneys could be removed from office and replaced by partisan operatives. U.S. Attorneys who refuse to prosecute voter fraud cases in swing states due to flimsy evidence could be removed from office. Political prosecutions were conducted to influence elections. Illegal hiring practices ensured solidarity.
The Administration, having changed the rules (and abandoned others), was able to predict the moves of its opponent. The Democratically-controlled Congress adhered to its moral principles and was submissive in the face of a greater power. The Administration offered little to Congressional investigators, and later when it became apparent there would be no retaliation or consequences, gave nothing.
The Bush Administration has subjugated the Constitution in its quest for power and none dare call it treason.
The reason the government provided for Ms. Lam’s departure was that she refused to prosecute immigration cases (Steinhauer and Lipton, 2007). However, a review of court records spanning five years had shown Ms. Lam to be ranked among the top 10 of the 93 U.S. Attorneys for prosecutions and convictions, with immigration cases providing the bulk of her prosecutions (McCoy and Johnson, 2007).
U.S. Attorney Margaret Chiara was asked to resign in November 2006. Ms. Chiara claims to have been notified by the Justice Department to resign from her post in order to make way for “an individual they wanted to advance” (Lipton, 2007, p. 1). The Justice Department cited poor performance and low office moral as the reasons for her dismissal, yet Ms. Chiara said her office had increased felony convictions by 15 percent (Lipton, 2007). Recounting an email exchange with Michael Elston, the deputy attorney general’s chief of staff, Ms. Chiara said Mr. Elston had told her that she “erroneously assumed that good service guaranteed longevity” and that she and other U.S. Attorneys were “being asked for their resignations without good cause” (Lipton, 2007, p. 1).
U.S. Attorney Bud Cummins was forced to resign on December 20, 2006. Mr. Cummins’ replacement, Tim Griffin, was appointed to the position five days earlier (Arkansas Times, 2006). Mr. Griffin had previously worked for the Republican National Committee and had been an opposition researcher for presidential advisor Karl Rove (Satter, 2006).
U.S. Attorney John McKay was forced to resign on December 7, 2006. In a hearing before the Senate Judiciary Committee, McKay recounted a phone call he had received shortly after the November 2004 election from Ed Cassidy, then chief of staff to Rep. Doc Hastings (R-Washington) (Seattle Post-Intelligencer, 2007). Mr. McKay had said that the call was to inquire about an investigation into allegations of voter fraud in the close election win of Democratic Gov. Chris Gregoire. Mr. McKay withheld any comments about the investigation and “told Cassidy he was sure the call was not intended to suggest that Hastings was calling for a federal investigation, because that would be improper” (Seattle Post-Intelligencer, 2007, p. 1). The Republican National Committee and Gov. Gregoire’s opponent, Republican Dino Rossi, had brought a lawsuit forward to challenge the results of the election. Lacking evidence to support the claims of fraud, Judge John Bridges ruled against the plaintiffs (Seattle Post-Intelligencer, 2007).
Similar to Mr. McKay was the firing of U.S. Attorney David Iglesias. Mr. Iglesias received calls at his home by Sen. Pete Domenici (R-NM) and Rep. Heather Wilson (R-NM). Mr. Iglesias testified before the Senate that the calls were to question the progress of an investigation of voter fraud in the upcoming election of Rep. Wilson. Mr. Iglesias said he was pressured to bring an indictment before the election. According to Mr. Iglesias:
I was at home. This was the only time I’d ever received a call from any member of Congress while at home during my tenure as United States Attorney for New Mexico. …I recognized the voice as being Senator Pete Domenici. And he wanted ask me about the matters of the corruption cases that had been widely reported in the local media. I said, “All right.” And he said, “Are these going to be filed before November?” And I said I didn’t think so, to which he replied, “I’m very sorry to hear that.” And then the line went dead (Iglesias, 2007, as cited in McKay, 2008, p. 282, 283).
Conversely, of the U.S. Attorneys who were not fired, there were the “…80-85 percent, I would guess, who are doing a great job, are loyal Bushies, etc.” (Sampson, 2005, p. 1), who have been the subject of allegations of political prosecutions. A report from Professors Emeritus Donald C. Shields and John F. Cragan of the University of Missouri and Illinois State University respectively, shows that of 375 elected officials investigated and/or indicted, 10 involved independents, 67 involved Republicans, and 298 involved Democrats. “U.S. Attorneys across the nation investigate seven times as many Democratic officials as they investigate Republican officials, a number that exceeds even the racial profiling of African Americans in traffic stops” (Shields & Cragan, 2007, p. 1).
A July 2008 Justice Department report indicated illegal hiring practices based on political or ideological affiliations for career positions. The report stated that more qualified candidates were passed over in favor of political cronies. From the report:
Elston said that Goodling made it clear to him that she did not want Democrats detailed to the ODAG because she had a ‘farm system’ approach to filling vacancies in the Department, and she wanted to ‘credential’ Republicans so that they could move on to higher positions. Elston also stated that there were some Republicans that Goodling did not want to hire as detailees because they were not ‘Republican enough’ (U.S. Department of Justice, 2008, pp. 47, 48).
Emails released by the Justice Department and interviews conducted by congressional investigations revealed involvement by White House officials Karl Rove and Harriet Miers in the firing of the U.S. Attorneys (Jordan, 2007; Eggen and Solomon, 2007). The White House refused to cooperate, citing blanket executive privilege claims (Leahy, 2007). The claims of executive privilege were made despite any communication with the President regarding the U.S. Attorney firings (Holman, 2007).
Sen. Patrick Leahy had asked the White House to provide documents and testimony regarding the U.S. Attorney firings. In response, Sen. Leahy was repeatedly offered “an unacceptable ‘take it or leave it’ offer of limited document availability and off-the-record, backroom interviews with no transcript, no oath, and no ability to follow up” (Leahy, 2007, p. 3). Further attempts to accommodate the White House by the Senate Judiciary Committee and the House Judiciary Committee were refused (Leahy, 2007).
Mr. Rove, Ms. Miers, and White House chief of staff Joshua Bolton were subpoenaed to appear before the Senate and House Judiciary Committees (Kane, 2007). In a letter to George Manning, legal counselor for Harriet Miers, House Judiciary Committee Chairman John Conyers threatened to use inherent contempt (Conyers & Sanchez, 2007). Inherent contempt is a procedure where:
The individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. (Kaiser, Oleszek, Halstead, Rosenberg & Tatelman, 2007, p. 37).
None of the subpoenaed officials appeared and were later found to be in contempt of Congress (Kane, 2008; Washington in Brief, 2008). No further criminal action was brought against Ms. Miers and Mr. Bolton. Citing a 1984 legal opinion, Attorney General Michael Mukasey said that the refusal to appear before Congress “did not constitute a crime” (Eggen, 2008, p. A02).
In conclusion, it is apparent that the White House (and the Republican National Committee by extension) had changed the rules to obtaining power. U.S. Attorneys who prosecute high-ranking government officials could be removed from office. U.S. Attorneys could be removed from office and replaced by partisan operatives. U.S. Attorneys who refuse to prosecute voter fraud cases in swing states due to flimsy evidence could be removed from office. Political prosecutions were conducted to influence elections. Illegal hiring practices ensured solidarity.
The Administration, having changed the rules (and abandoned others), was able to predict the moves of its opponent. The Democratically-controlled Congress adhered to its moral principles and was submissive in the face of a greater power. The Administration offered little to Congressional investigators, and later when it became apparent there would be no retaliation or consequences, gave nothing.
The Bush Administration has subjugated the Constitution in its quest for power and none dare call it treason.
The obvious question is why hasn't our new Constitutional Lawyer/Senator/President of the United States made no requests for Congress to repeal the Patriot Act, and restore Constitutional compliance to our "democratic" governance system.
Curious as to whether or not your paper was published beyond your political science class?
Excellent piece, again, thank you for this.
"Major Major had been born too late and too mediocre. Some men are born mediocre, some men achieve mediocrity, and some men have mediocrity thrust upon them. With Major Major it had been all three. Even among men lacking all distinction he inevitably stood out as a man lacking more distinction than all the rest, and people who met him were always impressed by how unimpressive he was." ― Joseph Heller, Catch-22
After the restoration of justice, what I had hoped to see change most was the "money trumps peace" thing.
Like any good catch, justice and peace are inter-related; and like any good catch in the money-trumps-peace world, mutually exclusive.
Thanks for posting this Octafish! 
