Senate Majority Leader Harry Reid (D-NV) makes a bid to avoid another edition of the administration's surveillance squeeze play. From CQ:

To guard against the expiration of a temporary surveillance law Feb. 16, Senate Majority Leader Harry Reid , D-Nev., has filed a bill that would extend it for 15 days.

The Senate is expected to pass a six-year bill overhauling the Foreign Intelligence Surveillance Act on Feb. 12, but that gives lawmakers little time to work out a compromise between the Senate bill and a House-passed version before the Presidents Day recess begins and the temporary law expires.

Reid filed the latest extension Friday “in case we can’t finish the conference negotiations in time,” spokesman Jim Manley said.

Having given in once, the Republicans have vowed not to give in again. So no matter how justified the plea, this dog won't hunt.

Note: Get ready for another round of the GOP's double-talk squeeze special, e.g. the Dem's effort to extend the bill that must not lapse is unacceptable.

Don't think we've forgotten about EPA Administrator Stephen Johnson. Because we haven't. And neither has House sleuth Henry Waxman (D-CA).

Last we heard of Johnson, he gave a masterful performance of wonkish evasion before the Senate environmental committee.

Today Waxman issued a subpoena to compel the EPA to provide "unredacted" copies of a PowerPoint presentation Johnson's staff made to him about California's petition to limit greenhouse gas emissions from cars and trucks.

The presentation shows that Johnson's staff recommended granting the petition. But Johnson ignored that and denied it anyway.

The EPA has been eager to keep the presentation away from the public's eye, even invoking a kind of executive privilege against embarrassing documents (i.e. documents that show the staff recommending one thing and the administrator proclaiming another). The EPA refused to hand over the presentation to the Senate committee in its full glory and turned over mostly blank pages. The Senate committee staff was only able to see the actual documents by going to EPA offices and pulling white tape off of the offending portions.

Apparently Waxman doesn't have patience for that sort of thing. So he's issued a subpoena. The EPA is crying foul, fretful that the committee will turn the documents over to the 16 states and five environmental advocacy groups that are suing the agency over the decision. From the AP:

"What they've subpoenaed is to get control of documents that they have seen every word of. They know what it says," [EPA spokesman Jonathan Shradar] said. "I'm not going to imply that they would turn them over to those currently in litigation, but that is a concern."

Waxman has been interviewing EPA staff as a prelude to an eventual showdown with Johnson himself.

From The Caucus:

A conservative group -– Citizens United -– that has produced a film now in distribution attacking Hillary Clinton called “Hillary, the Movie,” has its sights set on a new target: Barack Obama.

The group has budgeted about $1 million to produce a documentary film about Mr. Obama that is set to be distributed this summer. At the moment, Citizens United has its researchers poring over Mr. Obama’s records as a community organizer, state legislator and United States senator in the same way that it scoured Mrs. Clinton’s record with a highly critical eye and a sharply conservative point of view.

“Obama is a completely clean slate,” said David Bossie, president of the group. “We will develop the image that we want the people to see. We’re doing the hard work of the research right now. The American people don’t know much about Obama, except that they like his speaking style.”

Why do I have a feeling that the word "madrassa" might help fill in the picture?

As we noted earlier this week, Citizens United has embarked on a legal battle to advertise their film unconstrained by campaign finance laws. The Supreme Court will decide next week whether it will rule on the case.

Of the 24 cases of detainee abuse that the CIA's inspector general and Department of Defense have referred to the Justice Department for criminal prosecution in the last several years, the Department has declined to prosecute in 22 of them, according to a letter from a Justice Department official in response to Sen. Dick Durbin's (D-IL) question about "accountability for illegal conduct by civilians in Iraq and Afghanistan."

A prosecution team was formed in June, 2004 to handle the cases in the U.S. attorney's office for Virginia's Eastern District, and then-Attorney General John Ashcroft announced he'd be referring all pending cases there. While the Defense Department has prosecuted a number of soldiers for abuse, this team was formed to concentrate on abuses by civilian government employees.

And how have they done? Well, there have been no indictments. The DoJ official, Brian Benczkowski, disclosed that two of the cases remained pending -- it's unknown what those cases are. Benczkowski said that there had only been four referrals by the CIA's inspector general in the last year, and all four had been declined. You can read that letter here.

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There's still plenty to learn. From The Wall Street Journal (sub. req.):

The CIA's secret interrogation program has made extensive use of outside contractors, whose role likely included the waterboarding of terrorist suspects, according to testimony yesterday from the CIA director and two other people familiar with the program.

Many of the contractors involved aren't large corporate entities but rather individuals who are often former agency or military officers. However, large corporations also are involved, current and former officials said. Their identities couldn't be learned....

According to two current and former intelligence officials, the use of contracting at the CIA's secret sites increased quickly in the wake of the 9/11 attacks, in part because the CIA had little experience in detentions and interrogation. Using nongovernment employees also helped maintain a low profile, they said.

The use of contractors continues, CIA Director Michael Hayden has admitted. That led Sen. Dianne Feinstein (D-CA) to ask Attorney General Michael Mukasey for an answer as to whether it is legal for contractors to employ "enhanced interrogation techniques," a question he said he didn't know the answer to during the hearing last week. That letter is below.

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We know what Attorney General Michael Mukasey thinks about investigating the CIA's use of waterboarding. Not gonna do it.

And that's precisely what he said in a letter to Sen. Dick Durbin (D-IL), who's been hounding him on the issue, yesterday (you can read Mukasey's letter here). But Durbin thinks that Mukasey is missing the point. He writes:

...I did not request nor suggest that those who relied on the Justice Department’s advice should be investigated. Rather, as I said in my letter, “a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law” (my emphasis).

In other words, Mukasey's responses have been focused on whether the CIA agents (and possibly contractors) who carried out the waterboarding should be prosecuted. But Durbin says the emphasis should be on those who authorized the activity. He explains: "Under U.S. law, command responsibility is a well-established theory of liability that covers those who authorize violations of law."

And accordingly, Durbin writes that he will ask the Justice Department’s Inspector General and the Office of Professional Responsibility "to investigate the conduct of Justice Department officials who advised the CIA that waterboarding is lawful." You can read Durbin's letter in full below.

A similar investigation was launched in January, 2006 into whether the Department had properly reviewed the administration's warrantless wiretapping program; Bush ended it just as quickly as it began, however, by denying investigators the necessary security clearances. Shortly after Mukasey took office, that investigation started up again.

Durbin had demanded answers to a number of outstanding questions from Mukasey and said that he would hold the nomination of Mark Filip as deputy attorney general until he got them. Since Mukasey responded, he writes, he will release his hold on Filip's nomination.

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Christopher Ward, reportedly at the center of a federal investigation into financial irregularities during his time as treasurer of the National Republican Congressional Committee (NRCC), resigned from the consulting firm Political Compliance Services Inc. (PCS) "as of Jan. 31." PCS has lost a number of clients since the investigation was first made public last week. Meanwhile, NRCC Chairman Rep. Tom Cole (R-OK), sought to reassure a meeting of the House Republican Conference yesterday that allegations against Ward "are not problems that will keep us from competing in the fall." (Roll Call, The Hill)

Last Halloween, Julie L. Myers, an assistant secretary of homeland security, was part of a three judge panel that awarded an Immigration and Customs Enforcement (ICE) worker a "most original costume" award for dressing as an escaped prisoner and wearing blackface. Myers apologized but now lawmakers say that Myers misled them at her Senate confirmation hearing in which she asserted that that she was unaware that the award winner was wearing make-up. A Freedom of Information Act request by CNN turned up 113 official photographs from the Halloween event that, according to House Homeland Security Committee Chairman Bennie Thompson (D-MS), demonstrate how "obvious" it was "to the naked eye" that the award-winning employee was wearing makeup. (Washington Post)

Despite efforts of watchdog groups and some members of Congress to curtail the use of earmarks, the appropriations committees of the House and Senate have begun to ask for earmark requests this week. With President Bush directing federal agencies to ignore some earmarks and threatening to veto any bill that does not cut earmarks "in half", the fate of this year's earmarks remains uncertain. (The Hill)

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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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Just to complete the theme of the day, Michael Mukasey said today that if Congress passed contempt citations against current and former White House officials based on their refusal to respond to subpoenas, the Justice Department would not enforce them, as federal law instructs.

Rep. Robert Wexler (D-FL) was the one who first popped the question. If Congress passed a citation against White House chief of staff Josh Bolten, who, along with former White House counsel Harriet Miers and Karl Rove, refused to show up when subpoenaed by Congress as part of the U.S. attorneys investigation -- would the DoJ enforce it?

Mukasey's simple answer was "no." Enforcing the contempt citation is "not permitted when the president directs a direct adviser of his, somebody who directly advises him, not to appear or when he directs any member of the executive not to produce document."

This is not much of a surprise. The administration has been saying this since last summer. And Mukasey indicated some wariness on the question during his confirmation hearing -- although he said he hoped he wouldn't have to make that decision.

So now Congress knows what the answer will be if the Congressional leadership ever decides to bring it to a vote.

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The Senate finally got around to yet another of the amendments to the surveillance bill. This one was sponsored by Sens. Russ Feingold (D-WI) and Chris Dodd (D-CT) and the ACLU provides this description:

A critical flaw of [the Senate intelligence committee bill] is that there is simply no prior court review of any kind of the government’s expanded surveillance. This is only exacerbated by the fact that the little court review there is – which is limited to review of guidelines after surveillance has begun – appears to not be accompanied by the explicit authority to modify surveillance procedures already under way. This amendment allows the FISA court to amend surveillance programs if it finds them to be contrary to the requirements of this bill or the Fourth Amendment, and to limit the use of illegally collected information.

The amendment was defeated 40-56, with Sens. Jay Rockefeller (D-WI), Daniel Inouye (D-HI), Tim Johnson (D-ND), Even Bayh (D-IN), Tom Carper (D-DE), and Mary Landruei (D-LA) joined the nays. Here's the roll call.

There will be at least one more vote this evening and in just a few minutes. This one is another amendment by Russ Feingold, one that would prevent "reverse targeting" -- that is, as Feingold describes it, "a practice by which the government gets around FISA’s court order requirements by wiretapping an individual overseas when it is really interested in a person in the U.S. with whom that supposed foreign target is communicating." The amendment requires the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American in the U.S.

Update: That second bill went down 38-57, also with a large number of Dems crossing over, Sens. Dianne Feinstein (D-CA), Inouye, Johnson, Landrieu, Blanche Lincoln (D-AR), Mark Pryor (D-AR), Rockefeller, and Ken Salazar (D-CO) among them.

Rep. Hank Johnson (D-GA) put the question to Attorney General Michael Mukasey: TPMmuckraker was knocked off the Justice Department's email distribution list and has been told that they can't be put back on; has there been a change in the Justice Department's policy since he became attorney general?

The "short answer," Mukasey replied, is "I'm not aware with how the distribution of press releases is arrived at. I do know that all the press releases should be on our website. So they should be generally available." Translation: we can go fly a kite.

Johnson followed up, asking if Muksaey was the one who'd made the decision. No, he said. He hadn't been aware of the issue until "it was called to my attention in a letter from the chairman." But, of course, he came prepared with his talking point.

Here's video:

A quibble: all emails sent via the Department's Office of Public Affairs are not available on the Department's website. There are a number of documents, such as the attorney general's prepared written testimony for hearings or transcripts of background briefings, which are only provided via email.

Since we were told that "[the Department's Office of Public Affairs] simply [is] not able to put everyone on the list," we haven't been able to get any further explanation, even after Chairman Conyers' letter asking about the issue. If the Department wants to explain on their website, that would be fine too. But a response of some kind would be appreciated.

Update: Well, I guess it was just a matter of time before this rose to the level of a "-gate." And The Politico is first with Muckrackergate.

Rep. Bill Delahunt (D-MA) wanted some clarity during his questioning. Was the attorney general really saying that anyone who acted pursuant to a Justice Department legal opinion was "insulated from criminal liability?"

Mukasey wanted to say it more carefully. "I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion."

But even if that opinion was "inaccurate," Delahunt wondered, and that behavior really did violate the U.S. criminal code, you're saying that someone who relied on it would effectively have "immunity from any culpability?"

"Justified reliance," Mukasey answered, "could not be the subject of a prosecution." Simple as that. "Immunity connotes culpability,” he added, so it wasn't immunity, exactly, but the effect was the same.

Delahunt (much like Sen. Joe Biden (D-DE) in the last hearing) proclaimed himself baffled. This was a "new legal doctrine" for him. He'd thought "the law is the law." What if there was a mistake? he wanted to know. What happened then?

That made no difference, Mukasey said. If a later legal opinion came to a different conclusion about whether something was lawful, the person who relied on the earlier, erroneous interpretation was still protected.

Delahunt, still baffled, wanted to know if there was a "legal precedent" for this view of the Office of Legal Counsel's power.

Mukasey replied that it was a "practical consideration."

When Delahunt asked again, Mukasey admitted, "I can't sit here and cite a case."

Update: As I said earlier, it's worth recalling former OLC chief Jack Goldsmith's comments that the OLC has the power to dispense "advance pardons."

It's not even a close call, says Rep. Lamar Smith (R-TX). If you've got a terrorist, and he has information that could save thousands of Americans lives, waterboarding is a no-brainer: "99% of the American people" would support such a technique, he said. I guess that weak-kneed 1% would be the Democrats in Congress.

Smith began by saying, "I just want to express the personal opinion that I hope the administration will not be defensive about using some admittedly harsh but nonlethal interrogation techniques, even techniques that might lead someone to believe they're being drowned even if they're not."

Not content with his own take on American public opinion, Smith wanted Mukasey's opinion. Wouldn't you agree, he wanted to know, that 99% of the American people would endorse such techniques if they were used on a "known terrorist" with a "high expectation" that such information could save thousands of American lives?

Mukasey demurred. "I can't sit here and say what I think 99 percent of people would do." He began "I have, kind of, an instinct, but...:" before Smith went on, satisfied that his point had been made.

Of course, Smith could have relied on an actual poll of American public opinion, rather than his own instinct. Like, say, this CNN poll from late last year, where two-thirds of respondents said that waterboarding is torture and 58 percent said that the government shouldn't be allowed to use the technique. But that would have been much less gratifying.

A transcript of the exchange is below.

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The Justice Department will not investigate whether CIA agents engaged in torture by waterboarding detainees, Attorney General Michael Mukasey said earlier.

Ditto goes for the administration's warrantless wiretapping program, Mukasey added later, when asked by Rep. Jerrold Nadler (D-NY) whether he would appoint a special counsel to investigate.

The question came after Mukasey had baldly asserted that it was not a "practical view" that the president could order someone to act outside the law. Nadler wanted to know if the president hadn't done just that with his warrantless wiretapping program, which had ignored the constraints of FISA.

Well, Mukasey said, the President had ordered that on the advice of the Justice Department that it was lawful. So, just as he will not initiate an investigation of waterboarding since the DoJ had given its OK, he will also not investigate whether the warrantless wiretapping was lawful, since it was legal, because the DoJ said it was ("there are views on both sides of that" he acknowledged).

Mukasey also went back to correct his statement during last week's hearing that he "didn't know" if the President had ordered the warrantless wiretapping outside the law. Silly me, he said, of course it was legal -- it was authorized by the DoJ.

Update: Here's the video:

Now you know why Jack Goldsmith, the former chief of the DoJ's Office of Legal Counsel, said that OLC has the power to issue “free get-out-of jail cards,” or "advance pardons" with its opinions.

Update: Here's the transcript:

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Well, not that there was much mystery about it, but Attorney General Michael Mukasey immediately put any ambiguity to rest when he began his testimony before the House Judiciary Committee this morning.

Chairman John Conyers (D-MI) put it to him: since administration officials have disclosed that CIA agents waterboarded three detainees, "are you ready to start a criminal investigation?"

"No, I am not," was the direct answer.

His reasoning was a repeat of his answer to Sen. Sheldon Whitehouse (D-RI) last week. The CIA waterboarded those detainees with the authorization of a Justice Department legal opinion from the Office of Legal Counsel. So the Justice Department "cannot possibly" investigate, he said, U.S. employees for an act they committed on the basis of Justice Department advice. Such an action, he explained, would send a message that interrogators could no longer safely rely on that advice going forward.

Update: Here's video:

Mukasey also refused Conyers' request to see the OLC opinions that authorized waterboarding, because they discussed techniques of what remains a "classified program." Conyers protested that every member of the committee was cleared to see top secret material, but Mukasey was unmoved, though offered to continue "ongoing discussions" with the committee -- discussions of which Conyers seemed to be unaware.

Update: A transcript of the exchange is below.

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From The New York Times:

At the time that the Central Intelligence Agency destroyed videotapes of the interrogations of operatives of Al Qaeda, a federal judge was still seeking information from Bush administration lawyers about the interrogation of one of those operatives, Abu Zubaydah, according to court documents made public on Wednesday.

The court documents, filed in the case of Zacarias Moussaoui, appear to contradict a statement last December by Gen. Michael V. Hayden, the C.I.A. director, that when the tapes were destroyed in November 2005 they had no relevance to any court proceeding, including Mr. Moussaoui’s criminal trial.

Whether this will result in any ramifications is unclear. One of the difficult things about the issue of whether the concealment of the tapes and then their destruction violated any court orders is that judges didn't know that they existed and so couldn't ask for them. So far, government lawyers have successfully run the gauntlet, but it's not over yet.

Rep. William Jefferson's (D-LA) case seems on track to be the most litigated criminal case in Congressional corruption history, it seems. From The Times-Picayune:

A federal judge Wednesday refused to dismiss bribery charges against Rep. William Jefferson, D-New Orleans, rejecting arguments that grand jury testimony had improperly involved "speech and debate" issues protected by the Consitution.

The decision could delay the scheduled Feb. 25 start of the trial if Jefferson chooses to appeal the ruling to the 4th U.S. Circuit Court of Appeals. A ruling there also could be appealed to the U.S. Supreme Court.

In an interview with the Associated Press, Rear Adm. Mark Buzby confirmed that the U.S. Naval base in Guantanamo houses a secret prison set apart from the detention center already known to the public. Camp 7 houses 15 "high value detainees" who, according to the military, need to be segregated from other prisoners in order to prevent them "from retaliating against long-term detainees who have talked to interrogators." (AP)

In light of allegations that a former treasurer for the National Republican Congressional Committee, Christopher Ward, engaged in "financial irregularities" while doing work for the committee, four GOP Congressional campaigns have cut ties (sub. req.) with the consultant. Ward had been the treasurer for each of the campaigns. Meanwhile, yesterday House Minority Whip Roy Blunt (R-MO) sought to downplay the scandal, saying that it will be "a very short-term distraction." (Roll Call, The Politico)

Lawyers for Majid Khan, the former suburban Baltimore high school student, U.S. resident, and current Guantanamo Bay detainee (since 2003), have amassed more than 500 pages of top-secret notes taken from visits with Khan at Guantanamo. The attorneys assert that this material includes evidence that their client was subjected to "systematic torture" in secret CIA prisons that was videotaped. The Senate Intelligence Committee will review this evidence in a closed session on Friday. (Time)

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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.

Did this fight really end before it started?

It's starting to seem all of a piece.

Yesterday, administration officials publicly acknowledged that CIA agents, with Justice Department authorization, had waterboarded three detainees. And the administration is eager to prevent that authorization from being threatened. According to Senate Dems, the White House has refused to strike a deal on pending nominees until the Senate deals with the Justice Department official who's authorized the use of enhanced interrogation techniques including waterboarding.

For more than three years, Steven Bradbury has been the acting head of the Office of Legal Counsel, the crucial Justice Department office that has the power to issue "advance pardons," as former OLC head Jack Goldsmith put it. But Senate Democrats, because of Bradbury's role in approving the warrantless wiretapping program and enhanced interrogation techniques that include waterboarding, have opposed White House efforts to have him confirmed and remove his acting status.

That hasn't kept him from the job, however. It is, after all, a position that is supposed to require Senate confirmation. While Democrats, especially Sen. Dick Durbin (D-IL) have held firm, Bradbury has simply acted as the head of OLC. The Dems say that the administration has broken the law to keep him in the spot.

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And they've finally started voting! First up is an amendment sponsored by Sen. Ben Cardin (D-MD) that would decrease the bill's sunset from six years to four. Sixty votes are need for the measure to pass. It's unclear when exactly the other measures, including the Dodd/Feingold anti-retroactive immunity provision, will get votes.

We'll let you know what the results are as things develop.

Update: The amendment fails 49-46.

It worked in August. It didn't work last week. But Senate Majority Leader Harry Reid (D-NV) says the White House and GOP seem set to give it a third try. From CQ:

Legislation to overhaul the Foreign Intelligence Surveillance Act remained stalled in the Senate Tuesday, held hostage by a partisan clash over procedures for consideration of an unrelated economic stimulus package.

A frustrated Majority Leader Harry Reid , D-Nev., complained that Republicans were blocking his efforts to schedule votes on proposed amendments to the bill (S 2248). He questioned Minority Leader Mitch McConnell ’s commitment to the legislation, saying Republicans have declined to allow FISA to move forward.

“The Orwellian Bush administration has now slopped over into the Senate, and now the Republican leader is now becoming Orwellian himself,” Reid said. “They want to stall the FISA legislation as long as they can, and they’ve done a pretty good job, because they want this legislation to be completed at the last minute, to give the House and the Senate conferees little time to work on this.”

It was one of the most familiar refrains from the White House's mouthpieces over the past several years: we don't discuss interrogation techniques. Take, for instance, this characteristic exchange between White House spokeswoman Dana Perino and a reporter at a briefing in December, after Perino explained that "al Qaeda listens closely to everything that we do and say"...

Q But when you have a former CIA officer, John Kiriakou, now saying that waterboarding was used -- since you're saying the interrogations were legal; he's saying on the record now, waterboarding was used in at least one case. You're saying waterboarding is legal?

MS. PERINO: Ed, I'm saying I'm not commenting on any specific technique. I'm not commenting on that gentleman's characteristics of any possible technique. I've given you a very general statement about interrogations being legal, limited and --

Q You just said it was legal.

MS. PERINO: I'm sorry?

Q You said it was within the legal framework.

MS. PERINO: Yes.

Q Everything that was done.

MS. PERINO: Yes.

Q So waterboarding is legal.

MS. PERINO: I'm not commenting on any specific techniques. And you can ask me all sorts of different ways, and we can go back and forth, but I'm not going to do it, Ed.

Only a few weeks ago, the line was still in vogue. But no more.

What's changed? Congress is pushing legislation that would limit the use of waterboarding, in addition to other enhanced interrogation techniques. So "the consensus" in the administration was to reverse course.

It's reminiscent of the White House's recent reversal with regard to documents concerning the administration's warrantless wiretapping program. For nearly a year, they ignored the House intelligence committee's request. But now that retroactive immunity is being fiercely contended in the new surveillance bill, the White House had a change of heart.

Note: TPM Reader BM writes in to ask that we remind readers on what this medieval torture technique entails. Not a bad idea. See here for a detailed description by former Navy instructor Malcolm Nance and here for a history lesson.

The administration's pro-waterboarding PR offensive continues!

Today, White House spokesman Tony Fratto made clear that this was a clear, conscious decision to make the push, and that it's an interrogation tool they definitely want to have as an option going forward:

"And so the consensus was that on this one particular technique that these officials would have the opportunity to address them — in not just a public setting, but in a setting in front of members of Congress, and to be very clear about how those techniques were used and what the benefits were of them."

Fratto said CIA interrogators could use waterboarding again, but would need the president's approval to do so. That approval would "depend on the circumstances," with one important factor being "belief that an attack might be imminent," Fratto said.

Fratto also apparently used the administration's it's not torture because "we do not torture" line. And "torture is illegal" and this was deemed legal therefore it's not torture. You can choose your favorite tautology.

I think for the first time, Fratto also flatly said that the attorney general (John Ashcroft) approved the use of waterboarding. We'll have the transcript of Fratto's remarks as soon as they're available.

Ever since Rep. Tom Cole (R-OK), the chairman of the National Republican Campaign Committee, disclosed that "we learned earlier this week of irregularities in our financial audit process," people have been scrambling to find out what's up. Cole pointed to a single former employee as the culprit, and said that the irregularities might "include fraud."

Today, the Politico reports that, the employee, Chris Ward, was a longtime employee of the NRCC, and the committee, already hurting in comparison with its well-funded House Democratic counterpart, may be in for even more hurt as Ward's "irregularities" are sorted out:

“There is a sense that this could be very damaging to the committee,” said a Republican insider close to the GOP leadership.

The precise details of the suspected accounting irregularities and their possible fallout are not entirely clear. NRCC officials and top GOP leaders are being tight-lipped in large part because the FBI is investigating the matter. An outside lawyer advising members and staff has warned everyone at the committee to keep quiet....

As treasurer, Ward was in charge of NRCC bookkeeping, tracking tens of millions of dollars in political contributions and expenditures. He has been at the center of NRCC bookkeeping for more than a decade.....

Several sources familiar with the investigation suspect the reporting irregularities could go back many years.

Real Clear Politics noted earlier this week that Ward served as treasurer "for campaign committees and leadership PACs including those of Reps. Jim Walsh, Jim Saxton, Peter Roskam, Lamar Smith and Denny Rehberg as well as Senator John Ensign's leadership PAC." It's unclear if they may all be in for a hurting.

Update: Raw Story also notes that Ward was a partner at the firm that handled $230,000 worth of business for the Swift Boat Vets in 2004. So he got around.

Regulations prohibit presidential candidates from using their PACs to directly influence the election, but before it stopped making donations last October, Sen. Barack Obama's (D-IL) Hopefund PAC donated (sub. req.) over $300,000 to House and Senate Democrats. "Of that amount, $117,500 went to Members who are now supporting his presidential bid, though at the time of his contributions many of them had not yet announced their endorsements." (Roll Call)

Admiral Michael Mullen, chairman of the Joint Chiefs of Staff, will testify today about the “significantly stressed” condition of the nation’s military forces. Mullen believes that the wars in Iraq and Afghanistan have “prevented our forces from fully training for the full spectrum of operations and impacts our ability to be ready to counter future threats.” (AP)

Defense Secretary Robert Gates will tell Congress today that he can’t offer a realistic estimate of the cost of the war in Iraq for the coming year. This marks a retreat from promises the Pentagon made last year about detailing the costs. Gates instead will offer a “place-holder” for war expenses (about $70 billion now, and $100 billion in additional requests if current rates of war spending continue). (LA Times, AP)

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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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Earlier today, CIA Director Michael Hayden confirmed that the U.S. had subjected three detainees to waterboarding.

Sen. Dick Durbin (D-IL) thinks that’s worth exploring. And in a letter today, he called on Attorney General Michael Mukasey to open an investigation:

In light of your testimony that, “There are circumstances where waterboarding is clearly unlawful,” the Justice Department should investigate the instances in which the Administration has used waterboarding to determine whether any laws were violated…. Needless to say, a Justice Department investigation should explore whether waterboarding was authorized and whether those who authorized it violated the law.

You can read the letter in full below.

When Sen. Sheldon Whitehouse (D-RI) pressed the attorney general on this question last week, one of the arguments Mukasey deployed for not investigating was that the notion of any possible torture was hypothetical. Well, it’s not so hypothetical any more, Durbin is saying.

Durbin also says that he will keep a hold on the administration’s nominee for deputy attorney general, Mark Filip, until Mukasey answers this letter and a number of other letters from Congress. He explains: “I respect Judge Filip and do not object to his continued public service but at some point you must accept your responsibility under our Constitution to acknowledge the role of Congress.”

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Bush threatens a veto. Reid replies:

“I'm not sure why the Administration feels the need to issue a veto threat on the foreign surveillance bill when Senate Republicans will not even let it come to the floor for debate. This veto threat is part of a White House strategy to jam the bill through Congress with procedural maneuvers and political gamesmanship. We call on Republicans to allow the legislative process to work so that the Senate can pass a strong bipartisan bill.

“Democrats remain committed to giving our intelligence professionals the tools they need while protecting the privacy of law abiding Americans. Unfortunately, Republicans seem more interesting in scoring political points than crafting bipartisan solutions that make America more secure.”

Just in case the President's priorities were not clear:

President Bush issued a veto threat Tuesday in the debate to update terrorist surveillance laws, rebuking Democratic plans to deny retroactive legal protections for telecommunications providers that let the government spy on U.S. residents after the Sept. 11, 2001, attacks....

The Bush administration's warning was aimed at legislative amendments that would bar retroactive immunity to phone companies and other telecom providers that have given the government access to e-mails and phone calls linked to people in the United States. Without the retroactive protections, the letter noted, telecom providers might be unwilling to help the government track down terror suspects in the future as they were asked to do in the days following the 2001 attacks.

Update: Here's the letter from Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell in which they lay out the president's veto threat.

Finally, we get it right from the horse's mouth. From Human Events, via MoJo:

Prince’s book, tentatively titled We Are Blackwater, will be released this summer. It is the only insider’s account of the controversial company that has supplied bodyguards and support-and-rescue personnel to hot spots around the world, including the battlefields of Afghanistan and Iraq.

Prince, a former Navy SEAL, will reveal how he created Blackwater, refute criticisms of the company, and take the reader on thrilling Blackwater missions into hostile territory, from rescuing teenage missionaries in Africa, to helicoptering wounded Marines to safety, to inventing, testing, and manufacturing armored vehicles to better protect our troops in the field.

No word yet on whether Prince will be outsourcing the work to a ghostwriter.

Last month, Director of National Intelligence Michael McConnell caused a stir when he seemed to admit in a New Yorker article that waterboarding would be torture if done to him.

But as I pointed out at the time, McConnell actually made a strange qualification. He has a problem with his nose, he said ("I don't know if it's some deviated septum or mucus membrane, but water just rushes in"). So waterboarding would be torture to him -- because swimming without covering his nose is torture to him.

Coverage of Lawrence Wright's New Yorker piece, however, tended to focus on his statement, "Whether it's torture by anyone's else definition, for me it would be torture."

And in today's Senate intelligence committee hearing, Sen. Dianne Feinstein (D-CA) pressed him on this point. And McConnell insisted that Wright and the New Yorker had taken the quote "totally out of context." And waterboarding, he wants everyone to know, "is a legal technique used in a specific set of circumstances. You have to know the circumstances to be able to make the judgment."

Well, we've posted McConnell's remarks today alongside the original excerpt from the New Yorker piece so you can decide for yourself whether McConnell was taken "totally out of context." It seems to me that he was not -- and that it's just his position that is confusing. It's apparent from McConnell's remarks here and to Wright that he believes that waterboarding, artfully applied, is unquestionably legal. You just get the sensation of drowning. But "waterboarding taken to its extreme could be death," he explained today. "It could drown someone." And that seems to be where he draws the line.

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