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Paul Kiel | February 28, 2008, 9:49AM

You can understand their exasperation. The administration and Congressional Republicans have done everything in their power to protect the telecoms. They used every legislative tactic at the ready, made every speech or public pronouncement possible, and even engaged in occasional theatrics to drive the point home: Congress will not be passing, and the President will not be signing, any surveillance bill into law that does not give the telecoms retroactive immunity for having helped the administration break the law.

And despite all that, the telecoms still seem not to understand which side their bread is buttered on. "GOP leadership aides are grumbling that their party isn’t getting more political money from the telecommunications industry," Roll Call reports (sub. req.):

“It’s quite discouraging,” said one GOP leadership aide, referring to the disparity in giving from the telecommunications industry in light of the FISA debate, but also the broader lack of support for Republicans from the business community in general.

“These companies just won’t do anything,” the aide said. “Even when you have the Democrats working against their bottom line.”...

[A Republican lobbyist said] “There’s no question that from time to time staff, and maybe some Members, say to fellow travelers: ‘Are you giving us some air cover? Are you helping us help you?’”

The news is not all bad. The telecoms still give more money to Republicans than to Democrats, Roll Call reports; "Of the four major phone companies, only Sprint is now favoring Democrats overall." The other three, AT&T, Verizon and Qwest, still know their bread and butter, but are favoring Republicans "by slimmer margins than in years past." The reason is clear: with the Dems in power, of course, the telecoms need to spread the wealth.

But the House Republican campaign committee, Roll Call points out, is $29 million poorer than its Democratic counterpart. How are the Republicans supposed to return to power if they can't even convince companies whom they're working to protect from billions of dollars in lawsuits to pony up?

Perhaps, as one GOP leadership aide puts it, the telecoms will find religion again when they realize “these guys are not good for business.”

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Paul Kiel | February 27, 2008, 9:52AM

I don't know how the administration can be expected to successfully fear-monger with articles like this being written. It's not helpful.

Ever since the Protect America Act lapsed a little more than a week ago, the administration has been emphasizing the grave danger the country is in. Sure, experts and Democrats say that surveillance of terrorist groups authorized under the lapsed law should continue unabated. But don't listen to them.

The administration delivered what should have been the coup de grâce on Friday, when the director of national intelligence informed Congress that the feared consequence of the law's lapse was already upon us. "We have lost intelligence information this past week as a direct result of the uncertainty created by Congress' failure to act," they wrote, underlining the sentence to add that needed emphasis. Telecoms weren't cooperating with wiretap requests out of that "uncertainty." Unfortunately, the troublesome telecom apparently quickly became certain, because those administration officials had to announce that the dark hour was over only "hours later."

The New York Times sheds some much needed light on the situation this morning. The most crucial revelation is this:

Theoretically, intelligence officials would have to revert to older — and, they say, more cumbersome — legal standards if they were now to stumble onto a new terrorist group that was not covered by a previous wiretapping order. But that has not happened since the surveillance law expired, administration officials said.

This is crucial because the administration's direst warnings have had to do with being unable to wiretap new targets. But apparently the powers granted by the Protect America Act were so sweeping that after a week, the NSA hasn't run into that problem yet.

The apparent "uncertainty" which the administration hyped last week for one telecom had hinged on a legal issue: "whether the government could expand existing wiretapping orders to include new phone numbers or e-mail addresses in surveillance of the same targets covered by the original orders," the Times reports. That issue has been resolved. And an anonymous "lawyer in the telecommunications industry" tells the Times that he's "seen little practical effect on the industry’s surveillance operations since the law expired."

BUT that doesn't mean Democrats and Americans should not be afraid: administration officials "emphasized that the uncertainty of the legal landscape threatened to disrupt future operations."

You can be sure that you'll be hearing about every bump on the road until the administration gets its precious retroactive immunity for the telecoms.

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Paul Kiel | February 26, 2008, 9:55AM

It's a free country, damn it, and the FEC ought to quit hasslin' John McCain.

That, at least, is the shorter version of the letter the McCain campaign's lawyer Trevor Potter (a former FEC chairman himself) sent the FEC yesterday. In the letter, Potter argued that the campaign didn't need the FEC's say-so to opt out of the public financing system. As the AP reports:

...Potter said the Supreme Court concluded that public financing for campaigns is constitutional because it is voluntary. "As a result, candidates have a constitutional right to withdraw from the program."

To recall the stakes: the public financing system for the primaries entails a $54 million spending limit, an amount that McCain has pretty much already spent. If the FEC were to decide that he could not leave the program, it would be an incredible problem for his campaign.

Of course, the chances of the FEC of doing anything are zilch right now, because David Mason, the Republican chairman, is one of only two commissioners. Four nominees are stuck in the Senate because of the fight over Hans von Spakovsky. But Mason has written the McCain campaign to tell them that McCain cannot withdraw from the program without the FEC's say-so, since McCain effectively entered into a contract when he opted in to the program last year.

Potter, as you can see above, doesn't think much of that argument. But then there's the other problem: the McCain campaign's creative financing, the very clever $1 million bank loan last December. The burning question for Mason is whether the loan was just clever enough or too clever by half.

We outlined the deal in detail here. But the basic idea is that McCain's lawyers knew he could not use the $5.8 million in public matching funds the FEC had certified for his campaign as collateral for the loan, since that would have effectively locked him into the program. So the campaign promised the bank that if he lost the primary, he'd opt out of public financing, but stick in the race, and then opt back in, get those matching funds, and then pay off the bank. That way, voila! he wasn't using that prior certification as collateral. If you're confused, you're not the only one.

The bank's lawyers (one of them another former FEC chairman) laid it out in a letter which also made its way to the FEC:

"The bank does not now have, nor did it ever receive from (McCain's campaign) committee, a security interest in any certification of matching funds," [Scott] Thomas and lawyer Matthew S. Bergman wrote....

The loan documents specifically state that the collateral did not include McCain's right to the public funds. But the agreement with Fidelity & Trust Bank of Bethesda, Md., required him to reapply for matching funds if he withdrew from public financing and lost early primary contests.

"It is our understanding that, to date, none of those events have occurred," the bank lawyers wrote.

Very clever.

So now we'll see if the FEC's current chairman buys all this. And no matter what he says, it seems likely this issue is far from resolved.

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Paul Kiel | February 25, 2008, 9:30AM

Got your popcorn? If it's too early for that, a cup of coffee will do. Last night 60 Minutes finally aired its segment on the Don Siegelman case, and here it is, in all its 9-minute glory:

Ever since June of last year, the Siegelman case has, more than any other, been the prime example of selective prosecution in the Bush Justice Department, culminating in a House Judiciary Committee hearing last October. Siegelman, a popular Dem governor when prosecutors set their sights on him, is currently serving out his sentence for bribery charges.

60 Minutes' piece is an excellent distillation of the case. There's Republican lawyer Jill Simpson's recollection of a conference call where Karl Rove's friend William Canary recalled talking to his buddy Karl about sicking the Justice Department on Siegelman, saying that his “girls would take care of him,” referring to U.S. attorney Leura Canary (his wife) and another U.S. attorney in the state. And there's the Justice Department's renewal of vigor after the first prosecution against Siegelman fell flat on its face.

But there was more, the most significant revelation being that prosecutors had coached their star witness to the point where he had to write his carefully recollected testimony over and over again to make sure he got it right. Such notes, 60 Minutes reports, should have been turned over to Siegelman's defense attorneys. They were not.

And there seems to be a fitting capstone to the piece's broadcast. At least one CBS affiliate in Alabama, Scott Horton and Larisa Alexandrovna report, went dark during the broadcast. Just went dark. The station claimed that there was a technical difficulty which lasted only for the segment on Siegelman ("NewsChannel 19 lost our program feed from CBS"). Boy, is that bad luck. But not to worry -- they got the problem worked out and rebroadcast the segment that night at 10. During the Oscars.

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Paul Kiel | February 22, 2008, 9:43AM

It still remains to be seen whether yesterday's New York Times piece will be the last word on John McCain's relationship with Vicki Iseman. For now, the Times quoted anonymous aides saying that they'd suspected there was an affair ongoing; McCain denies that there was.

But remember that the Times piece ran under the memorably lame headline, "For McCain, Self-Confidence on Ethics Poses Its Own Risk." There's a broader point there. Set aside the issue of the nature of his relationship with Iseman, and you have the undeniable conflict of McCain, the chest-beating reformer, being so undeniably close to lobbyists. That, many have pointed out, is the real story. The man who's absurdly proclaimed that "I’m the only one the special interests don’t give any money to" is surrounded by lobbyists.

And The Washington Post, a day after it ran its own Iseman story on page one, goes with that story on today's front page under the concise headline, "The Anti-Lobbyist, Advised by Lobbyists."

The story involves quite a roll call:

-- "His campaign manager, Rick Davis, co-founded a lobbying firm whose clients have included Verizon and SBC Telecommunications."

-- "His chief political adviser, Charles R. Black Jr., is chairman of one of Washington's lobbying powerhouses, BKSH and Associates, which has represented AT&T, Alcoa, JPMorgan and U.S. Airways."

-- "Senior advisers Steve Schmidt and Mark McKinnon work for firms that have lobbied for Land O' Lakes, UST Public Affairs, Dell and Fannie Mae."

-- "McCain recently hired Mark Buse to be his Senate chief of staff. Buse led the Commerce Committee staff in the late 1990s and early 2000s, and was until last fall a lobbyist for ML Strategies, representing eBay, Goldman Sachs Group, Cablevision, Tenneco and Novartis Pharmaceuticals."

-- "McCain's top fundraising official is former congressman Tom Loeffler (R-Tex.), who heads a lobbying law firm called the Loeffler Group. He has counseled the Saudis as well as Southwest Airlines, AT&T, Toyota and the Pharmaceutical Research and Manufacturers of America."

McCain, of course, insists that he's incorruptible. During yesterday's press conference, he proclaimed “I’ve never done any favors for anybody — lobbyist or special interest group — that’s a clear, 24-year record.” Maybe he just keeps all those lobbyists around to test his fortitude.

John McCain

Today's Must Read

Paul Kiel | February 21, 2008, 9:36AM

This John McCain does not need.

While he's busy this morning responding to this morning's New York Times story, the AP reports that the head of the Federal Elections Commission is questioning whether McCain will be allowed to drop out of the public financing system.

The reason, of course, stems from McCain's too-clever-by-half $4 million bank loan in December. We outlined the deal on Monday.

To review briefly: in December, McCain, who'd earlier opted in to the public financing system, needed cash. The FEC had already certified that he was owed $5.8 million in public matching funds -- but he wouldn't be getting that money until March. And he didn't want to absolutely commit yet to using that system, because it would limit his campaign to spending only $54 million through the end of August. And FEC rules say that using public matching funds as collateral locks a candidate into the system.

So McCain struck a deal with the bank: he promised to only commit to using the system if he lost the primary. If he won, he would opt out of the program, and he'd be more than able to pay the bank back, because the funds would come flowing. McCain's lawyers were evidently very pleased with the canniness of this arrangement.

If you're confused by this, don't worry: so, apparently, is FEC Chairman David Mason. McCain officially notified the FEC earlier this month that he was no longer in the public financing system for the primary. Now Mason has responded with a letter saying essentially, not so fast. It looks like you used the public matching funds as collateral.

Update: You can read the letter here.

If the FEC ultimately decided that McCain could not opt out of the system, the consequences would be severe for him. He'd be limited to spending $54 million through August -- meaning that the Democratic nominee would be able to outspend him several times over.

But there's a major catch, of course. The FEC can't take any official action, because it's still shut down over the deadlock in the Senate. The FEC needs four commissioners to act; it currently only has two.

So all the FEC can do for now is send inquiries. But if by some miracle the impasse in the Senate were broken, it could mean trouble for McCain.

CIA Tapes

Today's Must Read

Paul Kiel | February 20, 2008, 9:47AM

You remember former CIA official Jose Rodriguez. He's the guy at the center of the criminal investigation into the destruction of the CIA's torture tapes. The videotapes, you'll remember, documented interrogation techniques authorized by Justice Department lawyers and the White House on two detainees. CIA interrogators (and possibly contractors) waterboarded the two detainees and possibly exposed them to a range of other techniques, such as inducing hypothermia. The investigation is not focusing on the use of those techniques, though. The focus is the destruction of the tapes.

But back to Rodriguez. The line from White House and senior CIA officials has been that they repeatedly advised against destroying the tapes. Rodriguez (via his lawyer) says that advice was never unequivocal. The New York Times has a story today exploring that breach between Rodriguez, who ran the CIA's clandestine service, and the leadership.

The story goes something like this: Porter Goss, then the director of the CIA, was viewed as something of a buffoon by the career officers. They didn't like the crew he brought in (like his #3 Dusty Foggo, who was subsequently indicted for taking bribes from Brent Wilkes), and they didn't like the way he ran the place. So Rodriguez pretty much ran things the way he thought they ought to be run in his division. And when the issue of whether to destroy those tapes arose again in late 2005, he did what he thought was right. He saw the tapes as "a sort of time bomb that, if leaked, threatened irreparable damage to the United States’ image in the Muslim world, his friends say, and posed physical and legal risks to C.I.A. officers on them."

And Goss... did nothing. The Times reports that there is "no record of any reprimand or punishment" in Rodriguez's personnel file at the agency. Because:

People close to Mr. Goss, who knew from his Congressional years how explosive accusations of cover-up could be, insist he told Mr. Rodriguez the tapes should be preserved.

But if Mr. Goss believed Mr. Rodriguez had disobeyed him, why did he not punish the clandestine service chief? One former C.I.A. official said White House officials had complained about the news media firestorm that accompanied the departure of [two CIA officials who'd resigned] a year earlier, and Mr. Goss felt he could not risk another blowup.

And of course the administration kept the whole thing quiet for more than two years until the Times blew the whistle. Too bad there's never a convenient time for "another blowup."

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Paul Kiel | February 19, 2008, 9:37AM

Victory! Only 47 years after the Bay of Pigs, Fidel Castro has toppled from power. Or resigned to hand power to his brother. In any case, he's gone.

You can read his resignation letter here. In it, the relic of the Cold War looks forward to the future:

Fortunately, our Revolution can still count on cadres from the old guard and others who were very young in the early stages of the process. Some were very young, almost children, when they joined the fight on the mountains and later they have given glory to the country with their heroic performance and their internationalist missions. They have the authority and the experience to guarantee the replacement. There is also the intermediate generation which learned together with us the basics of the complex and almost unattainable art of organizing and leading a revolution.

The path will always be difficult and require from everyone’s intelligent effort. I distrust the seemingly easy path of apologetics or its antithesis the self-flagellation. We should always be prepared for the worst variable. The principle of being as prudent in success as steady in adversity cannot be forgotten. The adversary to be defeated is extremely strong; however, we have been able to keep it at bay for half a century.

On the adversary's side of things, the scramble begins. President Bush has chimed in with his hope that Castro's move will usher in a new era. And it's a prime opportunity for primary candidate jockeying -- already the calls are coming for the candidates to outline a new approach to Cuba.

Surveillance

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Paul Kiel | February 18, 2008, 9:41AM

Did you feel it at the base of your stomach when you woke up Sunday morning? That fear? No wonder: the Protect America Act finally expired Saturday night.

The nation is currently undefended. Well, that's not true. The National Security Agency can no longer surveil terrorists. Well, that's not true either. The NSA can continue surveillance of terrorist groups authorized under the Protect America Act for one year, and new warrants sought need to be authorized by the Foreign Intelligence Surveillance Court under the FISA law. The new warrants will mean more paperwork.

The president hit the airwaves for the fourth consecutive morning on Saturday to drive the fear home.

But Mike McConnell, the director of national intelligence, a man well acquainted with the taste of his own foot, put it unfortunately succinctly during an interview with NPR:

"It's true that some of the authorities would carry over to the period they were established for one year. That would put us into the August, September time frame. However, that's not the real issue. The issue is liability protection for the private sector. We can't do this mission without their help."

Perhaps realizing the unfortunate quotability of that phrasing, McConnell took to Fox News yesterday to reassert the direness of the situation. McConnell, once upon a time broadly respected by lawmakers of both parties, seems determined to destroy the vestiges of his credibility. Keep in mind that even The Washington Times ran a story that concluded the sunset of the Protect America Act "will have little effect on national security."

McConnell's main theme was once again guaranteeing immunity for the telecoms ("the private sector, although [they] willingly helped us in the past, are now saying, 'You can't protect me. Why should I help you?'"). But he also strove to make the case that returning to the FISA law would be a calamity -- it would mean "increased danger." Besides reintroducing the old canard that the FISA law had not been updated since 1978 and so was hopelessly unable to deal with modern technologies, McConnell argued that the necessary paperwork would cripple surveillance. "If I'm in court arguing for an authorization, then I'm missing a dynamic situation," he argued. To listen to McConnell, you'd think the same people monitoring the surveillance were the ones stuck in court (actually, they have lawyers for that). And never mind that the old FISA law permits a period of surveillance prior to securing the warrant.

Of course, McConnell said way back in August that having a debate about surveillance was a bad idea, because "some Americans are going to die." So you can understand his frustration that it's still drawing on.

Surveillance

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Paul Kiel | February 15, 2008, 9:43AM

What happened? The administration did everything right. The invocation of "countless American lives" hanging in the balance, the specter of terrorists delightedly chatting away undetected, the urgency emphasized by a threat to delay a long-scheduled presidential trip to Africa in order to secure the nation against attack.

That's right, the Protect America Act, the surveillance bill the administration pushed through Congress last August in a brilliantly executed squeeze play, will expire at midnight. The House should have already folded by now and simply passed the Senate's surveillance bill, complete with retroactive immunity for the telecoms. But the Dems haven't; they're sticking to the bill they passed months ago. What gives?

It might have something to do with the fact that the lapsing of the Protect America Act (PAA) won't substantially affect things at all. The old FISA law will kick back into effect. And authorizations granted under the PAA in the last six months to wiretap entire terrorist groups will stick for an entire year. In the words of House intelligence committee Chair Silvestre Reyes (D-TX), "Things will be fine."

In a conference call with journalists yesterday, Kenneth L. Wainstein, the head of the Justice Department's national security division, did his best to back up the president's warnings, but, according to The Washington Post, all he could come up with was that expiration of the law would require "more paperwork and time." The humanity!

But the Democrats seem callously immune to this new burden. The fear just didn't stick this time around (certainly by no fault of the White House). The House broke for a week's recess yesterday -- and not only did the Dems refuse to pass the Senate's version, but they also had the gall to pass contempt resolutions against White House officials on the same day.

It was, The New York Times reports, "the greatest challenge to Mr. Bush on a major national security issue since the Democrats took control of Congress last year."

So now it's down to the nitty gritty. House Judiciary Committee Chair John Conyers (D-MI) has announced that he'll be working through the recess to reach a compromise. Presumably the other key players (Sens. Patrick Leahy (D-VT) and Jay Rockefeller (D-WV) and Rep. Silvestre Reyes (D-TX), along with the ranking members on the intelligence and judiciary committees) will be sticking around too. We'll see what they come up with.

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Paul Kiel | February 14, 2008, 9:23AM

It's a mighty fine line to walk. Sen. John McCain (R-AZ) opposes torture. But when the Senate held a vote yesterday that would effectively prevent the CIA from employing torture by restricting interrogation techniques to those under the Army Field Manual, he voted against it.

You can read his extended explanation of that vote below. But here's what it comes down to. The bill yesterday would have restricted the CIA to the Army's rules for interrogating detainees. McCain believes that the CIA should have a freer hand. That includes the use of "enhanced interrogation" techniques.

Now, the Justice Department and the CIA haven't said exactly what those are. But precisely because the White House knew that they'd be fighting this battle, they've made quite an effort over the past month to broadcast that waterboarding is not on the list of possible techniques. That's what their PR offensive has been all about; waterboarding is off the table (for now), so let us keep our toys. Those other techniques "are reported to include stress positions, hypothermia, threats to the detainee and his family, severe sleep deprivation, and severe sensory deprivation," as Marty Lederman notes.

But by voting against the bill, McCain is saying that the CIA should have a free hand to employ techniques along these lines. At the same time, he stresses that the 2006 Detainee Treatment Act, the bill he himself sponsored, prohibits the use of any cruel, inhumane, or degrading treatment and treatment that "shocks the conscience." He hasn't said which of the techniques listed above meet that description. But he trusts that the Justice Department and CIA will arrive at a "good faith interpretation of the statutes that guide what is permissible."

Attorney General Michael Mukasey gave a taste of what that "good faith" interpretation is when he testified before Congress. What "shocks the conscience" depends on the circumstances, he said. Waterboarding might very well be OK, he argued, if the situation were dire enough.

But McCain says that waterboarding is torture. And as he says in his statement below, "It is, or should be, beyond dispute that waterboarding 'shocks the conscience.'" So he disagrees with the administration's "good faith" interpretation. But apparently he still has faith.

Confused? It's certainly not a position that's easily summarized. The major papers take a run at it this morning, and, well, the nuance just doesn't come through.

From The New York Times:

Read more »

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Paul Kiel | February 13, 2008, 9:51AM

“Some people around here get cold feet when threatened by the administration,” is how Sen. Patrick Leahy (D-VT) put it.

Yesterday, the Senate enthusiastically endorsed the Administration's wireless wiretapping program (and voted to stop the 40 or so lawsuits against the telecoms for cooperating with it). Now the question becomes whether members of the House will stand by their bill, which contains stronger court oversight of the spying and does not contain retroactive immunity for the telecoms.

The early signs from the House leadership have been that they will strongly oppose the Senate version. The chairmen of the two relevant committees, House Judiciary Committee Chair John Conyers (D-MI) and House intel committee Chair Silvestre Reyes (D-TX), both say they oppose the Senate bill. Conyers has said outright that he opposes such immunity, while Reyes says he needs more time to review the documents from the program "to make a determination." The House leadership has been making similar noises.

But it will indeed be a battle. The administration has put the pressure on any way it can. It's threatened to veto any bill that does not grant retroactive immunity to the telecoms. It is refusing to agree to any further extension of the Protect America Act -- which, after last month's 15-day extension is set to lapse this Friday -- and is revving up for another round of excoriating Democrats for attempting to extend that deadline while simultaneously warning what a calamity it will be if the bill does lapse.

And, as in August, when both houses passed the administration's sweeping Protect America Act, a group of moderate Democrats in the House are set to bolt. From The Los Angeles Times:

Senior congressional aides said there was no clear path to a compromise on the issue. But a series of recent defections by moderate Democrats in the House raises prospects that the White House position -- or something close to it -- eventually may prevail....

Reluctant to be portrayed as depriving the government of a key tool in the war on terrorism, 21 members of a bloc of moderate House Democrats signed a letter endorsing the Senate approach. Senior Democratic aides said those defections suggested there might be enough support in the House to pass the Senate bill.

The back channel negotiations have already begun. And as no one seems to be able to tell what might happen next, we'll just have to wait and see.

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Paul Kiel | February 12, 2008, 9:32AM

It's amazing how seriously people can take a little thing like a presidential caucus.

Everyone has been all over the Washington Republican Party's back over this caucus result thing. But as the party's spokesman laid out to me yesterday, Chairman Luke Esser owed it to the party faithful to announce results Saturday, because no one likes to go to bed with things unresolved.

OK, so it seems that at least four counties had transmitted the wrong information to the party on Saturday. They were supposed to be counting the stated preference of the elected precinct delegates, and they'd counted the sign-in sheets, which reflected the preference for all their caucus attendees -- two measures that seem to have little to do with one another. Oops. As the party spokesman stressed to me yesterday, it's their first time reporting results on the same day, so perhaps mistakes were inevitable.

But never fear! The party has fixed that mistake (at least partially, one of those counties hasn't provided the correct information yet) and John McCain is still in the lead. With 96% percent reporting, he's up 25.6% to Mike Huckabee's 23.3%.

Now maybe the media and Mike Huckabee's lawyers will get off the state GOP's back. The main thing to realize, they want everyone to know, is how little Saturday's caucus bears any relation to the final slate of delegates Washington State will send to the national Republican Convention this summer. From The Seattle Times:

Due to the way Republicans select their delegates, the results could bear little resemblance to the presidential preferences of the 40 Washington state delegates ultimately sent to the GOP national convention in September.

"Nobody won or lost anything on Saturday," said Vance, now a public affairs consultant and McCain supporter. "But every other state had been able to report a 'winner,' so there was expected there would be a 'winner' in Washington state."

So the "winner" of the "caucus" (according to the party's "count") was McCain. Probably. So enough with the fuss already.

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Paul Kiel | February 11, 2008, 9:47AM

Back in the summer of 2005, just as journalists were toiling to produce the first books on what had gone so horribly wrong in Iraq, the Army was handed a thorough study by the RAND Corporation, its federally-financed research arm.

And it came, as one might expect, to some sharp conclusions. It faulted the President and Condoleezza Rice, Don Rumsfeld's Pentagon, Colin Powell's State Department, and Gen. Tommy Franks' Central Command for a variety of shortcomings, all essentially for their role in not adequately preparing for securing postwar Iraq. The report provided a strategy for how the Army and the government in general might avoid a similar plight the next time around (the short version: try preparing for the aftermath).

Unclassified versions of RAND reports are regularly made public, and the researchers had hoped a version of this report would be too. But, as The New York Times reports this morning, the Army wasn't happy with the product. So they buried it. The reason, an Army official explains, is that the report was just too gosh darn informative:

“After carefully reviewing the findings and recommendations of the thorough RAND assessment, the Army determined that the analysts had in some cases taken a broader perspective on the early planning and operational phases of Operation Iraqi Freedom than desired or chartered by the Army.... Some of the RAND findings and recommendations were determined to be outside the purview of the Army and therefore of limited value in informing Army policies, programs and priorities.”

Another Pentagon official, this one whispering to the Times anonymously, gives another version:

A Pentagon official who is familiar with the episode offered a different interpretation: Army officials were concerned that the report would strain relations with a powerful defense secretary and become caught up in the political debate over the war. “The Army leaders who were involved did not want to take the chance of increasing the friction with Secretary Rumsfeld,” said the official, who asked not to be identified because he did not want to alienate senior military officials.

Of course, the report still isn't publicly available, and from what the Times describes, it would make for interesting reading. Overlaying the various critiques of the agencies, the report cites a general principle (The Cheney Principle of Prewar Bravado?) that explains the general failure:

One serious problem the study described was the Bush administration’s assumption that the reconstruction requirements would be minimal. There was also little incentive to challenge that assumption, the report said.

“Building public support for any pre-emptive or preventative war is inherently challenging, since by definition, action is being taken before the threat has fully manifested itself,” it said. “Any serious discussion of the costs and challenges of reconstruction might undermine efforts to build that support.”

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Paul Kiel | February 8, 2008, 9:49AM

If the Bush Administration has taught us anything, it's that "torture" is in the eye of the beholder. It's the singular truth behind the repeated proclamations that "we do not torture."

The recent PR offensive has employed the same legerdemain. Administration officials have been making public statements about the use of waterboarding based on the same set of facts for the past week. But a simple shift in emphasis leads to a different headline.

Take, for instance, CIA Director Michael Hayden's testimony before the House intelligence committee yesterday. The New York Times proclaims "C.I.A. Chief Doubts Tactic to Interrogate Is Still Legal." The AP goes with "CIA Boss: Waterboarding May Be Illegal."

Here's what Hayden said, in response to a question of whether waterboarding was a "prohibited technique":

HAYDEN: It's not a technique that I've asked for. It is not included in the current program. And in my own view, the view of my lawyers and the Department of Justice, it is not certain that that technique would be considered to be lawful under current statute.

Now, Hayden could have simply said "yes." But "yes" would not have been the right answer, exactly. Because what Hayden is saying is really no different from what Attorney General Michael Mukasey has testified: that waterboarding could possibly be used in certain pressing circumstances (the Jack Bauer scenario), but that in order for it to be used, the CIA would first have to ask for it, then the Justice Department would have to determine whether it's legal, and then the President would have to sign off on it.

So, in Hayden's words, "it is not certain" that waterboarding would be considered to be lawful. But Mukasey, the guy who runs the department that makes these determinations, made it crystal clear last week that it is far from certain that it is unlawful. "It is unresolved," in his words.

There was a similarly telling moment in Mukasey's testimony yesterday. Rep. Adam Schiff (D-CA) was pressing him on waterboarding and torture. Don't you think that it hurts America's standing in the world not to have a "bright line" on torture? he wanted to know. To which Mukasey responded:

We have a bright line. We bar the torture. The evaluation of whether a particular practice constitutes torture could be presented to me only in a particular situation, namely, whether it was defined, part of a proposed program, in which case I would pronounced on it one way or the other, as I think I...

Schiff countered:

And you think that's a bright line that we can hold up to the rest of the world, that it depends on whether it's part of a program authorized by an attorney in the Office of Legal Counsel? Is that the standard we would ask the rest of the world to hold up?

And don't forget that the guy responsible for making these determinations at the Justice Department, Steven Bradbury, the current acting head of the Office of Legal Counsel, has consistently given the White House what it wants, including two secret memos in 2005 that authorized a battery of enhanced interrogation techniques, including waterboarding. So much so that the White House has kept him in the spot for three years without Senate confirmation and is ready to go to battle for him again now.

Hayden, for his part, has certainly been striving to communicate that it is extremely unlikely, if not impossible, that the CIA would use waterboarding again. One could just take his word for it. On the other hand, that's a message more than a little muddled by Vice President Dick Cheney's speech yesterday:

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Paul Kiel | February 7, 2008, 9:44AM

If it's seemed to you that the administration has blundered its way into its recent pro-waterboarding PR offensive, you're right.

It all started, Newsweek reports, when John Negroponte blurted out in an interview that "waterboarding hasn't been used in years":

Negroponte's comments, which were seen as confirmation that waterboarding had in fact been used before that, were not cleared beforehand and caught White House officials off guard, according to [a] senior administration official. "It was an accidental disclosure," said the official. It also forced a reassessment of whether the administration should at least publicly confirm Negroponte's remarks, if only to reap whatever public-relations benefit could be derived from the slip.

That's right: the "public-relations benefit." You might think that admitting to a technique internationally condemned as torture would have no PR pluses. But not from the administration's point of view. Negroponte's comments came right before Attorney General Michael Mukasey's scheduled appearance before the Senate Judiciary Committee, and the thinking, apparently, was that now Mukasey could state publicly that waterboarding is not a currently authorized technique (although it might be deemed necessary and legal in certain "circumstances," but let's not focus on that). That should help satisfy all those petulant Democrats and human rights activists, right?

For some reason, it seems to be having the opposite effect. Sen. Dick Durbin (D-IL) has called for a criminal investigation based on the disclosure that waterboarding occurred. And human rights activists have finally gotten the break they've been waiting for. From The Washington Post:

Tom Malinowski, Washington advocacy director for Human Rights Watch, said the Bush administration's admissions about waterboarding mark an important milestone. "It's not an abstract debate anymore," Malinowski said. "They've acknowledged that they've waterboarded people, and virtually every legal authority in the United States believes that waterboarding is torture and a crime."

Note: Newsweek also sheds light on those supposedly unique circumstances that led to the waterboarding of the three detainees in 2002 and 2003:

A former senior intelligence official who was working for the government at the time said intelligence officials were petrified that terrorists had smuggled a nuclear weapon into the United States and were planning to blow up New York City. The scenario was like a real-life episode of "24," the official said. Ultimately, the nuclear threat proved bogus.

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Paul Kiel | February 6, 2008, 9:50AM

What a long way we've come.

Remember when Vice President Dick Cheney off-handedly admitted to an interviewer that "a dunk in the water" is a "no-brainer" if it can save lives? The White House did its utmost to deny the obvious.

But the strategy has changed. Now administration officials are proclaiming in the open that yes, the U.S. waterboarded three detainees, yes, it was legal, and yes, there's a possibility we'd do so again. The stress, of course, is on the fact that waterboarding is not in the current authorized battery of interrogation techniques. But nevertheless, there it is. The administration has apparently decided that this is a debate they can win out in the open. From The Wall Street Journal (sub. req.):

Mark Lowenthal, a former senior CIA official who previously worked on Capitol Hill, said the debate over the aggressive antiterrorism tactics had become clouded by emotion and the administration brought forth the new details in an attempt to make its case more directly. "They feel like this debate has become...somewhat difficult, and they want to get it back on track," said Mr. Lowenthal.

As we reported late yesterday, Sen. Dick Durbin (D-IL) has already called for a criminal investigation. Anyone who watched Michael Mukasey's performance one week ago knows what the answer will be.

The major threat, as the administration sees it, is pending bipartisan legislation that would restrict the CIA to using the Army Field Manual as its guide to interrogating detainees. Yesterday, Hayden made a twofold response to that.

The first, as noted above, was to stress that the "circumstances" are very different from what they were five or six years ago -- and it's unlikely that waterboarding will be used again.

The second was to argue that the "enhanced interrogation" techniques were only employed by a small group of professionals (both CIA employees and contractors) who really know what they're doing. They've only been used on approximately thirty out of 100 detainees, he said. The Army Field Manual governs a much larger population of detainees and interrogators do not receive the same "exhaustive" training as those working for the CIA. It makes no sense, or as he put it: "it would make no more sense to apply the Army Field Manual to CIA -- the Army Field Manual on interrogations -- than it would be to take the Army Field Manual on grooming and apply it to my agency" (see below for Hayden's full argument on this).

It will be interesting to see how successful this more straightforward strategy will have. A number of key Republican swing votes -- including Sen. John McCain (R-AZ) -- would make the difference.

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Paul Kiel | February 4, 2008, 9:40AM

At the very least, if the Bush Administration expires and we are still at war only in Iraq and Afghanistan, we can count ourselves lucky.

The New York Times reports on the latest treasure unearthed by Wikileaks, a 2005 27-page document showing the U.S. military's Rules of Engagement in Iraq. Most worrying of all, the rules allowed for cross-border raids into Iran or Syria:

In a section on crossing international borders, the document said the permission of the American defense secretary was required before American forces could cross into or fly over Iranian or Syrian territory. Such actions, the document suggested, would probably also require the approval of President Bush.

But the document said that there were cases in which such approval was not required: when American forces were in hot pursuit of former members of Mr. Hussein’s government or terrorists....

It stated that the American commander engaged in the pursuit, however, should consult with top commanders in Baghdad, “time permitting.”

The Times notes that it's unknown whether this ever happened or whether the rules are any different now. Hold your breath.

But there are other interesting aspects to the document. Certainly the preoccupation with former members of Saddam Hussein's government, rather than foreign terrorists, was not reflected in the administration's rhetoric at the time.

And then there's this:

Apparently in a carryover from the intelligence failures of the Iraq invasion in early 2003, the document says the United States Central Command, which oversees operations in the Middle East, gave American commanders in Iraq the authority to attack mobile “W.M.D. labs”; such labs for making germ weapons were later determined not to exist.

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Paul Kiel | February 1, 2008, 9:40AM

So, after all that, after all the back room offers and counteroffers and fear-mongering and delaying, the Senate has finally struck a deal on the surveillance bill, and everyone has agreed to it, including Sens. Dodd and Feingold, so there should be no filibustering this time around. They'll get to voting on it all on Monday.

Most crucially, the Dodd/Feingold amendment, which would strip retroactive immunity for the telecoms from the bill, will only need 51 votes to pass. The same goes for the related Specter/Whitehouse amendment, which instead of offering immunity to the telecoms, would replace the federal government as the defendant in all the lawsuits.

There are, of course, other important amendments we'll be keeping an eye on. Sen. Feingold has a number, including one that would require a warrant when the target of the surveillance is a U.S. citizen or resident. This prevents the government from sneakily avoiding the trouble of a warrant by claiming that the focus is a foreign person; so-called "reverse targeting." Feingold's amendment would theoretically prevent that by requiring a FISA court warrant for surveillance of a foreign person where the "significant purpose" of the collection is to target a U.S. person located in the United States.

And the Republicans will have their own amendments which would loosen the bill's scope. Like one from Sen. Kit Bond (R-MO) that "would change definitions in the law to allow surveillance without a warrant in cases that involve the proliferation of weapons of mass destruction," as CQ's Tim Starks describes it. There's more detail on the vote thresholds required on the various amendments here.

So tune back in Monday to see what happens. It will be a much different kind of debate than last time around. The President, as expected, signed the bill extending the Protect America Act for 15 days, so Monday's vote will not have the same time pressures. It will be a vote on retroactive immunity without the administration's squeeze play. We'll see what happens.