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a.k.a. US House Committee on the Judiciary, House Committee on the Judiciary
Washington Post reporters Bob Woodward and Carl Bernstein are discussing their upcoming story documenting the secret Nixon campaign “slush fund” controlled by former Attorney General John Mitchell (see Early 1970 and September 29, 1972) when Bernstein has an epiphany of sorts—a “literal chill going down my neck,” he will recall in 2005. “Oh my God,” he tells Woodward. “The president is going to be impeached.” After a moment, Woodward replies, “Jesus, I think you’re right.” Woodward then says, “We can never use that word in this newsroom.” No one in Congress has broached the subject of impeachment yet, and will not for another year, but neither journalist wants anyone to think that they might have some sort of agenda in their reporting. “Any suggestion about the future of the Nixon presidency could undermine our work and the Post’s efforts to be fair,” Bernstein will later write. The two will later decide not to include this anecdote in their book All the President’s Men (see June 15, 1974), as it would be published during the House Judiciary Committee’s impeachment investigation of President Nixon (see February 6, 1974). “To recount it then might have given the impression that impeachment had been our goal all along,” Bernstein will write. “It was not. It was always about the story.” (Woodward 2005, pp. 229-230)
President Nixon names Congressman Gerald R. Ford (R-MI) as his nominee for vice president. Two days before, Vice President Spiro Agnew resigned his office after being convicted of tax evasion charges unrelated to Watergate (see October 10, 1973). (Gerald R. Ford Presidential Library and Museum 5/3/1999) Nixon’s original choice for Agnew’s replacement is former Texas governor John Connally, in hopes that Connally can secure the 1976 GOP presidential nomination, win the election, and continue Nixon’s legacy. But Connally, Nixon’s Treasury Election, is himself under investigation for his handling of a secret Nixon campaign fund. Nixon’s close political ally and strategist Melvin Laird, Nixon’s first secretary of defense, and veteran political adviser Bryce Harlow advised Nixon to select Ford as his new vice president. Other Republicans are recommending better-known party stalwarts—former New York governor Nelson Rockefeller, California governor Ronald Reagan, Senate Watergate Committee co-chair Howard Baker, Senate Minority Leader Hugh Scott, Senator Barry Goldwater, Republican Party chairman George H.W. Bush, Connally, Laird, and others—Ford is a complete party loyalist, popular among Congressional Republicans, and an influential member of the House Judiciary Committee. By naming Ford as vice president, Laird and Barlow hope to head off any impeachment vote by that committee. On October 10, Laird phoned Ford and, according to Laird’s later recollection, said: “Jerry, you’re going to get a call from Al Haig [Nixon’s chief of staff]. I don’t want any bullsh_t from you. Don’t hesitate. Don’t talk to Betty [Ford, his wife]. Say yes.” (Werth 2006, pp. 30-31)
The House of Representatives authorizes the House Judiciary Committee to begin investigating whether grounds exist to impeach President Nixon. The Judiciary Committee is chaired by Peter Rodino (D-MI). (Gerald R. Ford Library and Museum 7/3/2007)
President Nixon still refuses to hand over the tapes subpoenaed by the Watergate special prosecutor, Leon Jaworski (see April 16, 1974). Instead, Nixon provides more edited transcripts of the tapes to the House Judiciary Committee. (Gerald R. Ford Library and Museum 7/3/2007)
Transcripts Prove His Innocence, Nixon Claims - A summary of the tapes, written by White House officials, says that the transcripts prove Nixon’s innocence. “In all of the thousands of words spoken,” the summary says, “even though they often are unclear and ambiguous, not once does it appear that the president of the United States was engaged in a criminal plot to obstruct justice.” (Johnson 5/1/1974) Shortly after the release of the transcripts, Nixon appears on television with a pile of looseleaf notebooks—the transcripts, which he says he has personally compiled—and says: “In these transcripts, portions not relevant to my knowledge or actions with regard to Watergate are not included, but everything that is relevant is included—the rough as well as the smooth—the strategy sessions, the exploration of alternatives, the weighing of human and political costs. As far as what the president personally knew and did with regard to Watergate and the cover-up is concerned, these materials—together with those already made available—will tell it all.… I want there to be no question remaining about the fact that the president has nothing to hide in this matter.” (Nixon 4/29/1974; Nixon 4/29/1974; Nixon 4/29/1974; Nixon 4/29/1974; Washington Post 2007) “As far as the president’s role with regard to Watergate is concerned,” Nixon claims, “the entire story is there.” (Reeves 2001, pp. 608) He rails against the idea of impeaching him (see February 6, 1974), saying that the charges are based on “[r]umor, gossip, innuendo, [and] accounts from unnamed sources,” and implicitly accuses former White House counsel John Dean of lying about his involvement in the Watergate cover-up (see April 6-20, 1973). The 18 ½ minute erasure on one of the key tape recordings (see November 21, 1973) is “a mystery” to him, Nixon asserts. The nation must move past Watergate to deal with more serious matters, he says. (Washington Post 2007)
Reaction Divided - Reaction on Congress is divided largely along party lines. House Minority Leader John Rhodes (R-AZ) says the transcripts show Nixon is “in substantial compliance” with a Judiciary Committee subpoena. Speaker of the House Carl Albert (D-FL) has a different view: “Why substitute other evidence when the direct evidence [the actual tapes] is available?” (Johnson 5/1/1974)
Transcripts Heavily Edited, Doctored - It quickly becomes evident that the transcripts have been heavily edited and altered, both to clean up Nixon’s language and to cloak the details of the events documented in the tapes. Only 11 of the 64 conversations cited in the subpoenas are present, and those have been doctored. The term “expletive deleted” quickly enters the political and popular lexicon, and even with much of the profanity and ethnic slurs deleted, the impression given by the transcripts is not popular with the American people; in the words of reporter Mike Feinsilber, the transcripts show Nixon “as a vengeful schemer—rambling, undisciplined, mean-spirited and bigoted.” Even the edited transcripts document Nixon participating in discussions about raising blackmail money and “laundering” payments, offering clemency or parole to convicted Watergate figures, discussing how to handle perjury or obstruction of justice charges, and debating how best to use the term “national security” to advance his own personal and political agendas. In one conversation, Dean says that one of their biggest problems is that they are not “pros” at the kinds of activities they are engaging in: “This is the sort of thing Mafia people can do.” Nixon replies: “That’s right.… Maybe it takes a gang to do that.” The Judiciary Committee immediately joins the special prosecutor in demanding the actual tapes. (Johnson 5/1/1974; Feinsilber 6/7/1999; Reeves 2001, pp. 608)
The House Judiciary Committee begins impeachment hearings against President Nixon. (Gerald R. Ford Library and Museum 7/3/2007)
Barbara Jordan (D-TX), a member of the House Judiciary Committee, makes an eloquent speech reminding her colleagues of the constitutional basis for impeaching a president (see May 9, 1974). Jordan says that America has come too far for her “to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.” Jordan reminds her colleagues that impeachment is not conviction. It proceeds “from the misconduct of public men… the abuse or violation of some public trust.” To vote for impeachment, she says, is not a vote for removing the president from office. The power of impeachment is “an essential check in the hands of this body, the legislature, against and upon the encroachment of the executive.” The framers of the Constitution “did not make the accusers and the judges the same person.… The framers confined in the Congress the power, if need be, to remove the president in order to strike a delicate balance between a president swollen with power and grown tyrannical and preservation of the independence of the executive.” It cannot become a political tool to strike against a president that a group of partisans dislikes, but must “proceed within the confines of the constitutional term, ‘high crime and misdemeanors.’” The evidence against President Nixon is enough to show that he did know that money from his re-election campaign funded the Watergate burglaries (see 2:30 a.m.June 17, 1972), and he did know of campaign official E. Howard Hunt’s participation in the burglary of a psychiatrist’s office to find damaging information against a political enemy (see September 9, 1971), as well as Hunt’s participation in the Dita Beard/ITT affair (see February 22, 1972), and “Hunt’s fabrication of cables designed to discredit the Kennedy administration.” The Nixon White House has not cooperated properly with Congress and the special Watergate prosecutor in turning over evidence under subpoena; Jordan says it was not clear that Nixon would even obey a Supreme Court ruling that the evidence must be given up (see July 24, 1974). Nixon has repeatedly lied to Congress, the investigators, and the US citizenry about what he knew and when he knew it, and has repeatedly attempted to “thwart the lawful investigation by government prosecutors.” In short, Nixon has betrayed the public trust. He is impeachable, Jordan says, because he has attempted to “subvert the Constitution.” She says: “If the impeachment provision in the Constitution of the United States will not reach the offenses charged here, then perhaps that eighteenth century Constitution should be abandoned to a twentieth century paper shredder. Has the president committed offenses and planned and directed and acquiesced in a course of conduct which the Constitution will not tolerate? This is the question. We know that. We know the question. We should now forthwith proceed to answer the question. It is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision.” (Jordan 7/25/1974)
The House Judiciary Committee adopts the first Article of Impeachment by a vote of 27-11. All the Democrats, and six Republicans, vote for impeachment. The Article charges President Richard Nixon with obstructing the investigation of the Watergate break-in (see 2:30 a.m.June 17, 1972). (Brian J. Henchey 6/7/2007; Gerald R. Ford Library and Museum 7/3/2007)
The House Judiciary Committee adopts the second Article of Impeachment (see July 27, 1974) against President Nixon. This one charges Nixon with misuse of power and violation of his oath of office. (Gerald R. Ford Library and Museum 7/3/2007) Twenty-one Democrats and six Republicans vote for the second Article. (Brian J. Henchey 6/7/2007)
The House Judiciary Committee adopts the third Article of Impeachment (see July 27, 1974 and July 29, 1974). The third Article charges President Nixon with failure to comply with House subpoenas. (Gerald R. Ford Library and Museum 7/3/2007) Twenty Democrats and two Republicans vote for the second Article. (Brian J. Henchey 6/7/2007) After voting for the third article, committee chairman Peter Rodino (D-NJ) goes to a back room, calls his wife, and weeps. He tells her, “I hope we’ve done the right thing.” (Los Angeles Times 5/8/2005)
Bill Clinton, a University of Arkansas law professor and candidate for the House of Representatives, says his opponent, John Paul Hammerschmidt (R-AR), is wrong in opposing President Nixon’s resignation, and is wrong to question whether Nixon committed impeachable offenses. Hammerschmidt now says the House should begin digging into Nixon’s alleged crimes, but Clinton retorts, “I don’t see how in the world he can say that when a year ago he was saying we should forget about it and he voted against giving funds for the House Judiciary Committee staff.” Clinton says: “I think it’s plain that the president should resign and spare the country the agony of this impeachment and removal proceeding. I think the country could be spared a lot of agony and the government could worry about inflation and a lot of other problems if he’d go on and resign.” There is “no question that an admission of making false statements to government officials and interfering with the FBI and the CIA is an impeachable offense,” Clinton says. (Arkansas Gazette 8/8/1974)
President Nixon’s speechwriter, Ray Price, writes a speech for Nixon to use in case the president chooses to stay and fight the Watergate allegations rather than resign. According to Price, who will allow the New York Times to publish the speech in 1996, Nixon is never shown this particular speech. Price’s speech acknowledges that the House Judiciary Committee has prepared articles of impeachment against Nixon (see July 27, 1974, July 29, 1974, and July 30, 1974), and that the matter will almost certainly go to the Senate for a trial. The speech has Nixon acknowledging the “smoking gun” tape of June 23, 1972 and released on August 5, 1974 (see June 23, 1972) as a conversation that could “be widely interpreted as evidence that I was involved from the outset in efforts at cover-up.” He should have made the tape available much sooner, the speech acknowledges, and excuses the lapse by saying he “did not focus on it thoroughly…” His failure to release the tape was “a serious mistake.” According to the speech, Nixon would say that he “seriously considered resigning,” but to do so “would leave unresolved the questions that have already cost the country so much in anguish, division and uncertainty. More important, it would leave a permanent crack in our Constitutional structure: it would establish the principle that under pressure, a president could be removed from office by means short of those provided by the Constitution. By establishing that principle, it would invite such pressures on every future president who might, for whatever reason, fall into a period of unpopularity.… I firmly believe that I have not committed any act of commission or omission that justifies removing a duly elected president from office. If I did believe that I had committed such an act, I would have resigned long ago…” In the long run, the benefits of Nixon staying and fighting “will be a more stable government,” avoiding “the descent toward chaos if presidents could be removed short of impeachment and trial.” America must not become like so many other countries, where “governmental instability has reached almost epidemic proportions…” For Nixon to resign could result in the destruction of the US government as it now stands, or almost as bad, would allow the government to “fall such easy prey to those who would exult in the breaking of the president that the game becomes a national habit.” (Cannon 1994, pp. 309; New York Times 12/22/1996; PBS 1/2/1997; National Archives and Records Administration 3/24/1999)
As President Nixon is resigning his office (see August 8, 1974), Watergate prosecutor Leon Jaworski receives a memo from his staff recommending Nixon be prosecuted. The memo, from Carl Feldbaum and Peter Kreindler, says: “[T]here is clear evidence that Richard M. Nixon participated in a conspiracy to obstruct justice by concealing the identity of those responsible for the Watergate break-in and other criminal offenses.… Mr. Nixon should be indicted and prosecuted.” They summarize the arguments against prosecution: Nixon has been punished enough by being forced to resign, the House Judiciary Committee voted to impeach him (see July 27, 1974, July 29, 1974, and July 30, 1974), prosecuting Nixon might “aggravate political divisions in the country,” “the times call for conciliation rather than recrimination,” and a fair trial for Nixon would be difficult “because of massive pre-trial publicity.” Those arguments are outweighed by those favoring indictment and prosecution: the “principle of equal justice under law requires that every person, no matter what his past position or office, answer to the criminal justice system for his past offenses,” especially if Nixon’s “aides and associates, who acted upon his orders and what they conceived to be his interests, are to be prosecuted for the same offenses.” Not prosecuting Nixon would further divide the country, the memo asserts, and would threaten “the integrity of the criminal justice system and the legislative process, which together marshalled the substantial evidence of Mr. Nixon’s guilt.” The Constitution provides that anyone removed from office by impeachment should be tried in a court of law. Nixon’s resignation is not “sufficient retribution for [his] criminal offenses… [a] person should not be permitted to trade in the abused office in return for immunity.” And finally, to allow the argument of massive pre-trial publicity to obviate the ability to indict and prosecute Nixon “effectively would immunize all future presidents for their actions, however criminal. Moreover, the courts may be the appropriate forum to resolve questions of pre-trial publicity in the context of an adversary proceeding.” (Leon Jaworski 1982)
The House Judiciary Committee releases its final Watergate report, a 528-page document that concludes there is “clear and convincing evidence” that Richard Nixon “condoned, encouraged… directed, coached, and personally helped to fabricate perjury,” had abused the powers of the presidency, and, had he not resigned, should have been removed from office. Ten of Nixon’s staunchest House allies release a concurring statement that says, while Nixon was “hounded from office,” he undoubtedly “impeded the FBI investigation of the Watergate affair… created and preserved the evidence of that transgression… and concealed its terrible import, even from his own counsel, until he could no longer do so. [Nixon] imprisoned the truth about his role in the Watergate cover-up so long and so tightly within the solitude of his Oval Office that it could not be unleashed without destroying his presidency.” The House votes to accept the report 412-3. Committee chairman Peter Rodino (D-NJ) says: “I feel tremendously relieved. The country can get moving again.” (Werth 2006, pp. 160-161)
C. Madison “Brick” Brewer, the general counsel of the Institute for Law and Social Research, leaves his position. The circumstances of his departure from the institute, which will later be transformed into the company Inslaw, will later be disputed. The departure is significant because Brewer will later be hired by the Justice Department to manage a contract with Inslaw (see April 1982), and will adopt a combative approach to his former employer (see April 14, 1982 and April 19, 1982).
Hamilton's Account - Inslaw owner William Hamilton will later say that Brewer is asked to leave because he is unable to perform his duties, but is given sufficient time to find another job instead of being forced out. Inslaw vice president John Gizarelli will corroborate Hamilton’s account, telling the House Judiciary Committee under oath that Hamilton told him Brewer had been asked to resign.
Contradictory Statements by Brewer - Brewer will give different accounts of his departure. He will tell investigators from the Justice Department’s Office of Professional Responsibility (OPR): “At no time did he [Hamilton] ever say you are fired and at no time did he [Hamilton] ever indicate great dissatisfaction with my performance.… I never felt that I was discharged, let alone wrongfully discharged.” He will repeat this line to investigators from the House committee: “I never thought that he asked me to leave. It has always been my understanding that I was not asked to leave. I have never viewed my departure from the institute as either being a discharge, or forced.” However, another statement he will make puts a different slant on this; he tells the OPR: “[I]t has been my view that Mr. Hamilton obviously wanted me gone. He had been sending these signals, if not directly indicating a job dissatisfaction, since April, and it was now February, almost one year later, and I was still extricating myself.” In addition, Brewer will say in a court appearance: “On one occasion Mr. Hamilton came and said to me, ‘can you go to lunch?’ I explained that I couldn’t. And he said, ‘Well, what I have to say over lunch I can say right now. I think you ought to find [an] alternative—that you ought to leave the Institute.’”
Impact - The committee will comment, “The circumstances surrounding Mr. Brewer’s departure from the institute appear to have had a major influence over his views about Inslaw and its president, Mr. Hamilton.” Gizarelli will say that he had occasional contact with Brewer before his departure, and: “[H]e thought that Mr. Hamilton was insane. And I think he meant that literally. He did make comments about his rationality, his sanity, thought he wasn’t capable of leading an organization. The tenor of his remarks were to me very startling.” (US Congress 9/10/1992)
The research team for David Frost, in the midst of marathon interviews with former President Richard Nixon (see Early 1976), has a week to prepare for the upcoming four-hour interview sessions on Watergate (see April 6, 1977).
Countering the 'Other Presidents Did It, Too' Defense - Researcher James Reston Jr. tackles Frost’s possible response to what Reston feels will be Nixon’s last line of defense: that what he did was simply another instance in a long line of presidential misconduct. “Nixon nearly persuaded the American people that political crime was normal,” investigative reporter Jack Anderson had told Nixon biographer Fawn Brodie, a line that haunts Reston. Brodie gives Reston a study commissioned by the House Judiciary Committee (see February 6, 1974) and authored primarily by eminent Yale historian C. Vann Woodward, a study examining the history of presidential misdeeds from George Washington through Nixon. The study was never used. Brodie says that Frost should quote the following from Woodward’s introduction to Nixon: “Heretofore, no president has been proved to be the chief coordinator of the crime and misdemeanor charged against his own administration as a deliberate course of conduct or plan. Heretofore, no president has been held to be the chief personal beneficiary of misconduct in his administration or of measures taken to destroy or cover up evidence of it. Heretofore, the malfeasance and misdemeanor have had no confessed ideological purposes, no constitutionally subversive ends. Heretofore, no president has been accused of extensively subverting and secretly using established government agencies to defame or discredit political opponents and critics, to obstruct justice, to conceal misconduct and protect criminals, or to deprive citizens of their rights and liberties. Heretofore, no president had been accused of creating secret investigative units to engage in covert and unlawful activities against private citizens and their rights.” Frost will ultimately not use the quote, but the quote helps Reston and the other researchers steer their course in preparing Frost’s line of questioning.
Frost Better Prepared - As for Frost, he is much more prepared for his interrogation of Nixon than he has been in earlier sessions, prepped for discussing the details of legalities such as obstruction of justice, corrupt endeavor, and foreseeable consequence. Nixon undoubtedly thwarted justice from being served, and Frost intends to confront him with that charge. Reston worries that the interview will become mired in legalities to the point where only lawyers will gain any substantive information from the session. (Reston 2007, pp. 112-114)
The Justice Department issues a request for proposals (RFP) for the installation of public domain PROMIS software. Two of the 104 companies that ask for the request for proposals submit bids. However, one of them, Systems Architects, Inc., has problems in its bid and the contract will be awarded to the other, Inslaw (see March 1982).
Problems with Installation Concept - The installation is to be on minicomputers and word processors, although both Inslaw, which developed PROMIS, and other potential bidders had previously advised the department not to try to perform PROMIS functions on word processing equipment, as it is not powerful enough. One reason for this is that PROMIS involves over 500,000 lines of Common Business Oriented Language (COBOL) program code and requires a very large-capacity computer at this time. In addition, Inslaw advises the department to move toward the use of more powerful computers that could perform both case management and word processing. However, the department ignores the advice.
Existence of Privately-Funded Enhancements 'Explicit' - There will later be an argument about how much the department should pay Inslaw for the software. This dispute will turn on privately-funded enhancements to the application Inslaw says it makes after an initial version of PROMIS was developed using government money. According to a report drafted by the House Judiciary Committee, during the contract negotiations, Inslaw is “explicit in stating to the department that its version of PROMIS had been enhanced with private funds and future enhancements funded outside the department’s contract were expected.” Nevertheless, the department will say that it owns the software, and will cite as support amendments to the RFP that make available to all bidders copies of the pilot project software, and state that the RFP does not anticipate redevelopment of the public domain PROMIS software used in the pilot offices. If any alterations are made under the contract, they are to be made available to the offices using a current version. Regarding the amendments, the committee will comment, “Unfortunately, this language may also have blinded department management to the idea that Inslaw had made privately funded enhancements that were its property.” (US Congress 9/10/1992)
C. Madison “Brick” Brewer gets the job of supervising a contract with Inslaw for the installation of the PROMIS database and search application (see March 1982). (US Congress 9/10/1992; Fricker 3/1993) According to a report by the House Judiciary Committee, Brewer gets the job from William P. Tyson of the Justice Department’s Executive Office for US Attorneys (EOUSA). (US Congress 9/10/1992) However, according to Wired magazine, Brewer is appointed by EOUSA Director Laurence McWhorter, who had told a previous candidate for the position that he was “out to get Inslaw” (see Spring 1981). (Fricker 3/1993) Brewer had originally been hired by the EOUSA in January. (US Congress 9/10/1992) He once worked for Inslaw, but was allowed to resign when its founder William Hamilton found his performance inadequate (see 1976). (Fricker 3/1993) Brewer will soon demonstrate his hostility to Inslaw, and the company will ask that he be replaced (see April 14, 1982, April 19, 1982, and Mid-April 1982).
Importance of Job - As the project manager, Brewer is involved in all major contract and technical decisions, including forming the department’s position on Inslaw’s claim that it should be paid for privately-funded enhancements it makes to PROMIS. Brewer also reports on progress on the contract to the department’s PROMIS Oversight Committee (see August 13, 1981 or Before).
Comment by Assistant Attorney General - Assistant Attorney General Lowell Jensen will later comment: “I would think that the better path of wisdom is not to do that [i.e. hire an allegedly fired employee to direct the contract of his former employer] if that’s possible to do. I think that it’s better to have these kinds of issues undertaken by people who don’t have questions raised about them one way or the other whether they are biased in favor of or against the people they deal with.” However, this thinking apparently does not impact the department’s decision to hire Brewer.
House Judiciary Committee Investigation - In the light of these circumstances, the House Judiciary Committee will call the appointment a “curious choice,” partly because Brewer tells it: “I was not a computer person. We talked about my role viewed as being liaison, the person who would make things happen, a coordinator. It was not contemplated that I would, by osmosis or otherwise, learn computer science.” After interviewing Justice Department staff, the committee will find that it is “unable to determine how Mr. Brewer came to be considered for the position.” The committee will also point out: “The potential conflict of interest was an unsatisfactory situation irrespective of his admittedly negative feelings about his forced resignation from the company. Had Mr. Brewer taken actions which could have been construed to unduly favor Inslaw throughout the life of the contract, similar questions of potential conflict could just as easily have arisen either from within the department or from outside competitors of the company.”
Findings of Government Accountability Office and Permanent Subcommittee on Investigations - The Government Accountability Office and Congress’s Permanent Subcommittee on Investigations (PSI) will find that Brewer’s appointment as project manager creates an appearance of a conflict of interest that should have been avoided by the department. The PSI report will say, “The staff finds that the department exercised poor judgment in ignoring the potential for a conflict of interest in its hiring of the PROMIS project director [Brewer], and then, after receiving allegations of bias on his part, in failing to follow standard procedures to investigate them in a timely manner.”
Courts' Opinions - During the legal proceedings that stem from a dispute between Inslaw and the department, two courts will comment on the issue. George Bason, of the Bankruptcy Court for the District of Columbia, will say, “On the basis of the evidence taken as a whole, this court is convinced beyond any doubt that Brewer was consumed by hatred for and an intense desire for revenge against Mr. Hamilton and Inslaw, and acted throughout this matter in a thoroughly biased and unfairly prejudicial manner toward Inslaw.” William Bryant, of the District Court for the District of Columbia, will add, “The nature and circumstances of his separation from that employment are somewhat in dispute, but it is clear that Brewer was not happy in his job when he left it after being urged to do so by Hamilton.”
Brewer's Motivation - Inslaw attorney Harvey Sherzer will comment in court on one of the motivations apparently driving Brewer: “[H]e seemed to think there was something wrong with a contractor benefiting from a government contract.… The gist of what he seemed to be saying was that by performing this contract Inslaw and Mr. Hamilton, specifically, was making an effort to expand the company. And there seemed to be a negative inference toward Inslaw’s ability to use the base created by this contract to expand.” (US Congress 9/10/1992)
Office of Professional Responsibility Conclusion - On the contrary, the Justice Department’s Office of Professional Responsibility will examine the matter and rule there is no conflict of interest. Brewer will later tell a federal court that everything he does regarding Inslaw is approved by Jensen. Jensen had previously supervised a product known as DALITE, which lost a major contract to Inslaw in the 1970s. (Fricker 3/1993)
Inslaw asks the Justice Department to appoint a manager other than C. Madison “Brick” Brewer to run the PROMIS project that Inslaw is working on for the department. Brewer had formerly worked for Inslaw, but had left under a cloud (see 1976), and later been hired by the department to supervise the contract between it and Inslaw (see April 1982). Following initial problems with Brewer (see April 14, 1982 and April 19, 1982), Inslaw asks Associate Deputy Attorney General Stanley E. Morris to replace him, as Inslaw owner William Hamilton thinks he has antagonistic feelings toward Inslaw due to their past. However, departmental officials say that Brewer’s skills and prior employment with Inslaw were important factors in his hiring by the department. Laurence McWhorter, deputy director of the Executive Office for US Attorneys, will later say that Brewer’s employment by Inslaw qualified him to “run the implementation of a case tracking system for US attorneys” and “to basically direct the implementation of a case tracking system in US attorneys offices.” The House Judiciary Committee will comment, “It is difficult to understand, however, how… McWhorter could make this statement” because Brewer himself admitted that at the time he left Inslaw, “he had very little, if any, experience in managing computer projects and government ADP [automated data processing] procurement law,” and he also “admitted to a lack of experience or detailed understanding of computers or software.” (US Congress 9/10/1992)
Inslaw’s attorney James Rogers writes to the Justice Department in an attempt to allay fears the department has about the implementation of the company’s PROMIS software for it. Rogers provides Associate Deputy Attorney General Stanley E. Morris with a detailed description of what the company plans to do to market the software commercially from the next month, and asks that the department respond to Inslaw to “ensure that these representations are correct.” Rogers says that the version of PROMIS the company will market comprises three parts: (1) the original application developed with government money (see Mid-1970s); (2) enhancements made by Inslaw using private money (see April 2, 1982 and July 17, 1982); and (3) an enhancement made for the Bureau of Justice Statistics (see Before May 17, 1982). Parts (1) and (3) do not entitle Inslaw to market the software commercially themselves. However, part (2) does. At the Justice Department, both C. Madison “Brick” Brewer, who supervises the PROMIS contract, and Peter Videnieks, the department’s contracting officer, are unhappy with this intention. The House Judiciary Committee will comment that this letter is “followed by a very antagonistic meeting” between Brewer and Inslaw representatives, and that Brewer and Videnieks continue “to believe that, because the department was currently funding the implementation of PROMIS, they could ignore Inslaw’s proprietary interest in the privately funded enhancements made to the PROMIS software.” (US Congress 9/10/1992)
Peter Videnieks, the Justice Department’s contracting officer, writes to Inslaw and says that it is in default of a clause in a contract between it and the government on the installation of PROMIS software. The clause concerns advance payments made by the department, which Inslaw needs to receive for its work under the contract in order to keep on operating as a business. Due to Inslaw’s poor financial situation, the House Judiciary Committee will comment that withholding the advance payments would have a “devastating impact” on the company, and Videnieks will later say he was aware of this, stating, “I think I was advised at the same time that Inslaw may indeed have difficulty in meeting the December payroll, and I think in general I was advised that they were in bad financial condition.” Due to its lack of cash, Inslaw had assigned rights to the advance payments to a financial institution to secure a line of credit. Justice Department PROMIS project manager C. Madison “Brick” Brewer will say that the reason the department is considering terminating the advance payments is a loan Inslaw has from the Bank of Bethesda, under which a lien was placed on the advance payments received by Inslaw from a specific account (not the account itself). According to Brewer, the lien is contrary to the contract and places the government in financial risk. (US Congress 9/10/1992)
Congress passes the Competition in Contracting Act. President Reagan signs the bill but issues a signing statement instructing the executive branch that a portion of the bill is unconstitutional, and directs agencies not to obey the law created by that section. A losing bidder who would have won a contract under that portion of the bill files a lawsuit, and a federal judge rules that the Reagan administration has no choice but to follow the entirety of the law. Attorney General Edwin Meese insists that the executive branch has the inherent power to interpret the Constitution as it sees fit, and declares the administration will not obey the judge’s ruling. An appeals court upholds the judge’s ruling and criticizes the Reagan administration for trying to seize a sort of line-item veto power without going through Congress. The House Judiciary Committee votes to cut off funding for Meese’s office unless the White House obeys the court rulings, and Meese withdraws his objections. (Savage 2007, pp. 231-232)
In an analysis of an Inslaw proposal for the resolution of the PROMIS dispute, the Executive Office for US Attorneys (EOUSA), a Justice Department component, says that Inslaw has not made any proprietary enhancements to the software. “It appears [to the department] that there are no proprietary enhancements,” says the analysis sent by William P. Tyson, the EOUSA director, to Jay Stephens, the deputy associate attorney general. “All proposals received from Inslaw attempt to force the department into acknowledging Inslaw’s proprietary interest in the US attorneys’ version of PROMIS by offering a license agreement for software maintenance,” Tyson adds. According to the memo, accepting Inslaw’s proposal “would, in effect, ratify Inslaw’s claim that the software is proprietary; not only the micro-computer version which Inslaw proposes to develop, but also the Prime mini-computer version currently operational in 20 districts.” The Justice Department’s position means that it would have unlimited rights to the software. The House Judiciary Committee will later comment that the department “may have used its ‘unlimited rights’ posture as a pretextual basis for its national and international distribution of Enhanced PROMIS outside of the department.” (US Congress 9/10/1992)
Deputy Attorney General Arnold Burns is told that the Justice Department has waived its rights to enhanced PROMIS software (see August 11, 1982). Following a letter asking about the Inslaw case from Senator Charles Mathias (see July 9, 1986), Burns asks subordinates about the litigation with Inslaw and is told the company wants the department to pay royalties. Burns then suggests that the issue should be turned around and that a claim against Inslaw should be made for it to pay royalties to the government, which funded the development of the first version of PROMIS (see Mid-1970s). However, further research comes up with a result shocking to Burns, who will say in 1988, “The answer that I got, which I wasn’t terribly happy with but which I accepted, was that there had been a series of old correspondence and back and forthing [sic] and stuff, that in all of that, our lawyers were satisfied that Inslaw could sustain the claim in court, that we had waived those rights, not that I was wrong that we didn’t have them but that somebody in the Department of Justice, in a letter or letters, as I say in this back and forthing [sic], had, in effect, waived those rights.” The House Judiciary Committee will later comment, “Considering that the deputy attorney general was aware of Inslaw’s proprietary rights, the department’s pursuit of litigation can only be understood as a war of attrition between the department’s massive, tax-supported resources and Inslaw’s desperate financial condition, with shrinking (courtesy of the department) income.” The committee will add, “In light of Mr. Burns’ revelation, it is important to note that committee investigators found no surviving documentation (from that time frame) which reveal the department’s awareness of the relative legal positions of the department and Inslaw, on Inslaw’s claims to proprietary enhancements referred to by Mr. Burns.” (US Congress 9/10/1992)
Richard Willard, assistant attorney general of the civil division, writes a memo to Deputy Attorney General Arnold Burns about the Inslaw affair. According to Willard, George Bason, the bankruptcy court judge dealing with the Justice Department’s alleged theft of enhanced PROMIS software, should be taken off the case. Willard writes that Bason’s conduct is “so extraordinary that it warranted reassignment to another judge.” The House Judiciary Committee will comment that department officials are “concerned” about Bason’s handling of the case “very early in the litigation,” and that they think Bason tends to believe statements made by Inslaw. The committee will add: “The department believed that Judge Bason disregarded the sworn statements of department witnesses. The department also believed that Judge Bason made lengthy observations regarding the credibility of its witnesses and that Judge Bason’s uniformly negative conclusions were based on inferences not supported by the record.” Therefore, by the summer of 1987, the department is “actively seeking ways to remove Judge Bason from the case.” Bason will rule in favor of Inslaw in the autumn (see September 28, 1987). (US Congress 9/10/1992)
According to a sworn statement made to the House Judiciary Committee by Martin Bloom, clerk of the Bankruptcy Court for the District of Columbia, the administration of the court by the clerk’s office is “up to par” by “the latter part of 1987.” Chief Judge Aubrey Robinson will agree with Bloom, complimenting the bankruptcy court’s judge, George Bason, on improvements in the court’s administrative condition in remarks to an annual judicial conference.
Condition of Clerk's Office Later Becomes Important - The condition of the clerk’s office will later become significant because it will apparently be an important factor in the non-reappointment of Bason later this year (see December 15, 1987). For example, a confidential report about his possible reappointment (see December 8, 1987) will say, “Judge Bason evidenced no inclination to come to grips personally with the management challenge posed by the terrible shortcomings of the Office of the Clerk of our Bankruptcy Court.” Bason is currently at loggerheads with the Justice Department over the Inslaw case (see June 19, 1987) and will rule in favor of Inslaw in September (see September 28, 1987).
Previous Poor Condition - It will be established that the clerk’s office was not in good condition when Bason took over the bankruptcy court in the mid-1980s, although a May 1986 report said that the system was being brought under control and Bloom will blame the previous clerk for the problems. Bloom will also say that Bason takes an active role in providing whatever assistance he can in improving the administrative condition of the court.
Committee's Assessment of Court - However, the committee that fails to reappoint Bason will somehow come to believe that it is still a mess at this time and that this is Bason’s fault, although an investigation by the House Judiciary Committee will find that “most of the district and circuit judges interviewed [who were on the reappointment committee] said that they had little or no contact with Judge Bason and were not in a position to have firsthand knowledge of the condition of his court.” Neither Bloom nor the previous clerk will be interviewed by the panel about the court’s administration and, according to Bason, there is no mechanism in place for the judges to personally evaluate it. The committee will comment: “Considering that poor administrative controls seemed to be one of the primary reasons for Judge Bason’s failed attempt at reappointment, it is unusual that neither Judge Bason nor the other individuals most responsible for the administration of the court were interviewed by the panel. Judge Robinson made a telling comment to committee investigators when he said it is unfortunate bankruptcy judges are selected by judges furthest removed from the bankruptcy court.” (US Congress 9/10/1992)
An apparently unofficial, confidential memo marked “read and destroy” is drafted about the four final candidates for the position of judge at the Bankruptcy Court for the District of Columbia. The memo is clearly critical of the incumbent, George Bason, who is up for reappointment. Bason recently displeased the Justice Department by ruling against it in the Inslaw affair over the alleged theft of enhanced PROMIS software (see September 28, 1987). The memo states that “its purpose is to ‘help’ elucidate in particular our reasoning in ranking the candidates as we did,” and describes each of the four. The House Judiciary Committee will comment: “What is striking about the memorandum is that the description of each candidate except Judge Bason begins with positive commentary about the individual. The section describing Judge Bason begins, ‘I could not conclude that Judge Bason was incompetent.’ Other phrases used to describe Judge Bason include ‘he is inclined to make mountains out of molehills,’ ‘Judge Bason seems to have developed a pronounced and unrelenting reputation for favoring debtors,’ and finally, ‘Judge Bason evidenced no inclination to come to grips personally with the management challenge posed by the terrible shortcomings of the Office of the Clerk of our Bankruptcy Court.’” The memo is addressed to Judge Norma Johnson, who Bason will allege may have been an instrument of a campaign waged against him by the Justice Department (see May 1988). The panel appointing the bankruptcy court judge will meet a week later and decide not to give the position to Bason, but to a Justice Department lawyer who represented the government in the Inslaw case (see December 15, 1987). After Bason asks appeals court judges to reconsider his non-reappointment (see January 12, 1988), the memo will be circulated to them. The memo is unsigned, but an appeals court judge who later provides the memo to the House Judiciary Committee investigating the Inslaw affair will say another judge on the appointment panel drafted it. However, this judge will deny having done so. When, some years later, several members of the panel are asked by the committee whether they saw this memo, they will say they do not recognize it. (US Congress 9/10/1992)
George Bason, a bankruptcy judge who recently found in favor of Inslaw in a dispute over the Justice Department’s alleged theft of enhanced PROMIS software (see September 28, 1987), is not reappointed to the bench. Bason had been appointed in February 1984 instead of another judge who had resigned mid-term, but a decision is now taken to replace him with a Justice Department attorney named Martin Teel, who had appeared before him in the Inslaw case. Although the official report for the appointments panel about the candidates did not criticize Bason (see November 24, 1987), a subsequent unofficial report addressed to Norma Johnson, the head of the panel, did (see December 8, 1987). The unofficial report claimed that there were shortcomings in Bason’s administration of the clerk’s office, although the office appears to be running smoothly by this time (see Second Half of 1987). Several judges on the selection council will later say they did not know much about the candidates, and therefore relied on Johnson and her interpretation of reports prepared about them. The House Judiciary Committee will find that Johnson’s oral presentation “played a large role in the selection,” that Johnson ran the panel “firmly,” and that the other members “relied on her judgment.” Overall, it will call the selection process “largely informal, undocumented, and highly subjective.” Bason learns he will not be reappointed from Chief Judge Patricia Wald, of the US Court of Appeals, on December 28. Bason will later say that Teel was not qualified for the position (see January 12, 1988) and that the department had influenced the selection process in order to have him removed from the bench (see December 5, 1990). In this context, Bason will point out to the House committee that Johnson had previously worked with a departmental official named Stuart Schiffer, so he could have influenced her against Bason (see May 1988). Bason will also note that Johnson worked with Judge Tim Murphy for 10 years from 1970, and that Murphy had later worked as the assistant director on the implementation of PROMIS at the Justice Department. (US Congress 9/10/1992)
The Public Integrity Section (PIS), a Justice Department oversight component, decides not to open a preliminary investigation of the Inslaw affair over the department’s alleged misappropriation of PROMIS software (see February 1988). The decision is communicated in a memo drafted by William F. Weld, the assistant attorney general for the department’s criminal division, of which the PIS is a part. The PIS finds that at least some of the people Inslaw complains about, including Attorney General Edwin Meese, former Deputy Attorney General Lowell Jensen, and Deputy Attorney General Arnold Burns, are appropriate targets of an investigation and that Inslaw is generally a credible source for allegations. However, according to Weld, the information Inslaw provides is not specific enough to constitute grounds to begin a preliminary investigation of the need for an independent counsel. This is because the PIS regards the facts Inslaw presented as unsupported speculation that the officials were involved in a scheme to get the enhanced PROMIS software. Therefore, the review should be closed “due to lack of evidence of criminality.” The House Judiciary Committee will be critical of the PIS’s finding, calling its investigation “shallow and incomplete,” and saying the department appeared to be “more interested in constructing legal defenses for its managerial actions rather than investigating claims of wrongdoing which, if proved, could undermine or weaken its litigating posture.” (US Congress 9/10/1992)
The Office of Professional Responsibility (OPR), an oversight unit at the Justice Department, issues a report on the Inslaw affair over the department’s alleged theft of enhanced PROMIS software. The report finds that allegations of bias made by Inslaw and seconded by a bankruptcy court (see September 28, 1987) against departmental officials are unsupported. Inslaw had questioned the performance of former Attorney General Edwin Meese, former Deputy Attorney General Lowell Jensen, former Deputy Attorney General Arnold Burns, and others. The OPR says that the court’s findings on misconduct by department officials are “clearly erroneous.” In addition, the report says: “There is no credible evidence that the department took or stole Inslaw’s enhanced PROMIS by trickery, fraud, and deceit. Additionally, we have found no credible evidence that there existed in the department a plot to move to convert Inslaw’s Chapter 11 bankruptcy to one under Chapter 7 of the bankruptcy code.” The House Judiciary Committee will be extremely critical of this investigation, commenting, “During its investigation OPR chose to ignore the court’s findings and conclusions that there was bias against Inslaw at the department.” In addition, the committee will say that the OPR looked at the bias allegations in isolation and “incredibly” did not examine the merits of the contract dispute, meaning its conclusions on the taking of PROMIS and the type of bankruptcy were “gratuitous,” especially as Burns had told it the department agreed Inslaw owned the enhancements it made to PROMIS (see August 11, 1982). The committee will also point out that the OPR’s deputy counsel, Richard M. Rogers, said he was recused from the investigation because of his association with Burns, although he was present when Meese provided a sworn statement. In this context, the committee will highlight problems found by the Government Accountability Office with OPR around this time (see February 7, 1992). (US Congress 9/10/1992)
Former Attorney General Edwin Meese is interviewed by the House Judiciary Committee about the Inslaw affair. He says that he cannot recall any discussions with former Justice Department official Lowell Jensen about office automation or case tracking at the department. He adds that if there were such a discussion, it would have been casual conversation. (US Congress 9/10/1992) However, Jensen previously said he discussed the “whole Inslaw matter” with Meese (see June 19, 1987).
Charles Hayes, a surplus computer dealer, claims he has purchased computers with PROMIS software installed on them from the US Attorneys’ Office for the Eastern District of Kentucky. Hayes, who the House Judiciary Committee will say has “alleged ties to both United States and foreign intelligence communities,” says that the Harris-Lanier word processing equipment he purchased came with 5 1/4-inch computer disks and he believes these disks contain the enhanced version of the PROMIS software. When the committee investigates, the Justice Department refuses to provide some computer equipment related to these allegations (see February 12, 1991), but the disks turn out not to contain the software (see February 13, 1991). (However, the computer equipment Hayes purchased does contain sensitive information that should not have been disclosed, including grand jury material and information regarding confidential informants.) Hayes will also make a number of other allegations about PROMIS. According to an October 1990 memo drafted by William Hamilton, owner of the company that developed PROMIS, Hayes told him he can identify 300 locations where the software has been installed illegally by the government. In addition, a businessman named Earl Brian allegedly sold the software to the CIA in 1983 for implementation on computers purchased from Floating Point Systems and what the CIA called PROMIS Datapoint. Brian has supposedly sold about $20 million of PROMIS licenses to the government. Hayes will later make the same claims in person to the committee on numerous occasions, adding that he has received information from unnamed sources within the Canadian government saying that Brian sold the PROMIS software to the Canadian government in 1987. The committee will say that he makes “numerous promises” that confirming documentation will be provided by unnamed Canadian officials. However, on August 16, 1991, Hayes will say the Canadian officials have decided not to cooperate with the committee. In its final report, the committee will call the allegations “intriguing,” but point out that Hayes “has not provided any corroborating documentation.” (US Congress 9/10/1992)
The Washington Post reports that the Justice Department has asked an appeals court to consider its dispute with Inslaw over enhanced PROMIS software for mediation. The request was made several months earlier (see June 28, 1990), but the process requires confidentially, so the leak forces Inslaw to withdraw and ends the mediation attempts. The House Judiciary Committee will comment that the leak was “completely contrary to the standards of the Appellate Program.” The committee will add: “It is difficult to understand the department’s strategy by this action. It may be that the department wanted to maintain the facade of working diligently to settle a sticky contract dispute while working behind the scenes to sabotage it and keep pressure on Inslaw by forcing it to expend additional resources on legal support during the mediation process. If this is the case, the department was successful. But the department also succeeded in maintaining a near-flawless record of seeking delay over resolution and raising the level of suspicion about its motives to a point where the public trust in the untarnished pursuit of justice is subject to grave doubts.” (US Congress 9/10/1992)
A Canadian government official says that Canada is using the PROMIS software, according to Inslaw owners William and Nancy Hamilton. The Hamiltons pass the information on to the House Judiciary Committee, which is investigating allegations that the US Justice Department has misappropriated an enhanced version of the software from Inslaw and passed it on to other governments. The official, Marc Valois of the Canadian Department of Communications, apparently says that PROMIS is being used to support 900 locations around the Canadian government. (US Congress 9/10/1992) Another Canadian official will soon make a similar statement (see January 1991), but both he and Valois will later say they were not referring to Inslaw’s PROMIS, but to a product of the same name from a different company (see March 22, 1991).
The CIA says that it does not have the PROMIS database and search application (see Mid-1970s). The statement is made in response to a letter sent to CIA Director William Webster by the House Judiciary Committee on November 20 asking him to help them “by determining whether the CIA has the PROMIS software.” In response the CIA states, “We have checked with Agency components that track data processing procurement or that would be likely users of PROMIS, and we have been unable to find any indication that the [CIA] ever obtained PROMIS software.” However, information contradicting this will subsequently emerge. For example, a retired CIA official whose job it is to investigate the Inslaw allegations internally will tell Wired magazine that the Justice Department gave PROMIS to the CIA: “Well, the Congressional committees were after us to look into allegations that somehow the agency had been culpable of what would have been, in essence, taking advantage of, like stealing, the technology [PROMIS]. We looked into it and there was enough to it, the agency had been involved.” However, the official will say that when the CIA accepted PROMIS, it did not know that there was a serious dispute about the Justice Department’s ownership of the software. (Fricker 3/1993)
A second Canadian government official says that Canada is using the PROMIS software, according to Inslaw owners William and Nancy Hamilton. The Hamiltons pass the information on to the House Judiciary Committee, which is investigating allegations that the US Justice Department has misappropriated an enhanced version of the software from Inslaw and passed it on to other governments. The official, Denis LaChance of the Canadian Department of Communications, apparently says that PROMIS is being used by the Royal Canadian Mounted Police to support its field offices. (US Congress 9/10/1992) Another Canadian official had previously made a similar statement (see November 1990), but both he and LaChance will later say they were not referring to Inslaw’s PROMIS, but to a product of the same name from a different company (see March 22, 1991).
Juval Aviv, an Israeli businessman resident in the US, makes allegations to the House Judiciary Committee about the distribution of PROMIS software. Aviv, who claims to be a former member of Mossad, says he can provide information that a businessman named Earl Brian sold the enhanced version of the PROMIS software to US government agencies outside the Justice Department, including the CIA, NSA, NASA, and the National Security Council. Aviv also claims Brian sold the software to Interpol in France, the Israeli Air Force, and the Egyptian government, the latter through the foreign military assistance program. He also says the software was converted for use by both the United States and British Navy nuclear submarine intelligence data base. Aviv says there are witnesses and documents to corroborate his allegations, but refuses to repeat these claims under oath or provide any further information. These charges will be mentioned in the committee’s final report on the Inslaw affair, but the committee will not endorse them. (US Congress 9/10/1992) Aviv previously collaborated on the book Vengeance, which purports to describe Mossad’s assassination campaign after a terrorist attack at the 1972 Munich Olympics. The book will later be made into a film, Munich, by Steven Spielberg. However, intelligence writers Yossi Melman and Steven Hartov will call the book a “Walter Mitty fabrication,” adding: “[O]ur investigations show that Aviv never served in Mossad, or any Israeli intelligence organisation. He had failed basic training as an Israeli Defence Force commando, and his nearest approximation to spy work was as a lowly gate guard for the airline El Al in New York in the early ‘70s.” (Melman and Hartov 1/17/2006)
Ari Ben-Menashe, a former employee of an Israeli intelligence agency, says he is willing to testify before the House Judiciary Committee in its investigation into the alleged theft of PROMIS software. In return, however, he asks the committee to arrange an extension for his US visa, which is about to expire, and to provide him with immunity from any prosecution. The immunity is to relate to information and documents he allegedly possesses regarding the illegal distribution and sale of an enhanced version of the software by businessman Earl Brian to the Israeli government. However, the committee refuses the request, and Ben-Menashe will later provide a sworn statement with no conditions (see May 29, 1991). (US Congress 9/10/1992)
The Justice Department refuses to provide the House Judiciary Committee with some equipment and documentation relating to its alleged theft of an enhanced version of the PROMIS software. The refusal is in response to a request for access to the equipment and documents sent by the committee in November, following allegations by used computer dealer Charles Hayes (see August 1990). However, W. Lee Rawls, the assistant attorney general for the Office of Legislative Affairs, says that although the committee can see the equipment and examine the documents that came with it based on a civil writ of possession, the committee cannot operate the equipment. Nor can the department provide a printout of the information contained in the equipment, as it does not have such a printout and “disclosure of this information would compromise an ongoing criminal investigation.” In addition, the committee cannot have access to some documents in civil division files, as providing them could harm a pending criminal investigation relating to the matter. These documents are non-public witness statements, attorneys’ notes about the statements and conversations with prosecutors, draft pleadings and memoranda, and other material, as well as exhibits sealed by a court. (US Congress 9/10/1992)
Charles Hayes, a computer dealer who claims a US attorney’s office has mistakenly given him a copy of the PROMIS application (see August 1990), hands over to the House Judiciary Committee disks he says contain the software. Hayes also makes a sworn statement about his assertions, saying he thinks PROMIS was copied onto the disks from the original media by personnel at the attorney’s office. However, when the committee examines the disks, it finds only training programs for the computers. In addition, William Hamilton, the owner of the company that developed the application, tells the committee it is “highly implausible” that the 5 1/4-inch disks could contain the enhanced version of the software. He adds that if PROMIS was being used on the computers Hayes purchased, it would have to be the public domain version, which is owned by the Justice Department, not the enhanced version owned by Inslaw. (US Congress 9/10/1992)
A Canadian government official tells the US House Judiciary Committee that Canada is reluctant to cooperate with the committee’s inquiry into the alleged theft of a version of the PROMIS software by the US Justice Department and its subsequent passage to Canada. This is in response to a letter sent on February 26, 1991, in which the committee asked Canadian Ambassador Derek Burney for help determining what version of the software the Canadian government was using. The official, Jonathan Fried, counselor for congressional and legal affairs at Canada’s Washington embassy, says that “Canadians had been burned once before by Congress,” and imposes conditions on Congressional questioning of Canadian officials. The conditions are that interviews of individuals be conducted only in the presence of lawyers for the relevant departments and their superiors and that no Canadian public servants would be witnesses in any foreign investigative proceedings. The committee accepts these conditions in mid-March, and identifies the two Canadian officials it wants to speak to (see November 1990 and January 1991). (US Congress 9/10/1992)
Shortly before the US House Judiciary Committee interviews two Canadian officials who have said Canada has the allegedly stolen PROMIS software (see November 1990 and January 1991), the Canadian government contacts the committee and imposes a further condition on the interviews. The Canadians had already insisted the officials be accompanied by minders (see Shortly After February 26, 1991), but now says that, in addition, they will only answer questions specifically related to the software. They will not answer questions about any allegations that four software programs that may have been acquired by the Canadian government may be derivates of the PROMIS software. If the committee wants information about such alleged derivatives, it will have to submit a written request. (US Congress 9/10/1992)
Two Canadian officials who had previously said that the Canadian government was using Inslaw’s PROMIS software now tell the US House Judiciary Committee that it is not. In an interview with the committee, officials Denis LaChance and Marc Valois of the Canadian Department of Communications say that they had incorrectly identified software used by the Canadians as being Inslaw’s PROMIS (see November 1990 and January 1991), whereas in fact it was actually project management software from a company called the Strategic Software Planning Corporation that is also called PROMIS. Despite an objection by the Canadians to them being asked about PROMIS derivatives in Canada (see Before March 22, 1991), the two officials also say they do not use or know of a derivative of Inslaw’s PROMIS in Canada. The president of the Strategic Software Planning Corporation will later acknowledge in a sworn statement to committee investigators that his company had sold a few copies of his firm’s PROMIS software to the Canadian government in May 1986. (US Congress 9/10/1992)
The US Court of Appeals for the District of Columbia reverses two rulings in favor of Inslaw in the dispute over enhanced PROMIS software, following an appeal by the Justice Department (see October 12, 1990). The rulings had been issued by Bankruptcy Court for the District of Columbia (see September 28, 1987) and the US District Court for the District of Columbia (see November 22, 1989). The reversal is granted on what a House Judiciary Committee report favorable to Inslaw will call “primarily jurisdictional grounds.” The appeal court says the bankruptcy court was the wrong place to litigate the issues it decided and, in any case, the department has not violated automatic stay bankruptcy provisions. However, the appeal court notes that both lower courts found that the department had “fraudulently obtained and then converted Enhanced PROMIS to its own use,” and that “such conduct, if it occurred, is inexcusable.” (US Congress 9/10/1992)
Ari Ben-Menashe, a former Israeli intelligence employee, provides a sworn statement to the House Judiciary Committee on the PROMIS affair. He had previously said he would only tell what he knows under conditions (see February 6, 1991), but now waives this demand. Ben-Menashe says under oath that, in 1982, businessman Earl Brian and Robert McFarland, a former director of the National Security Council, provided the public domain version of PROMIS software to the Israeli government’s special intelligence operation Defense Forces. (This version was owned by the Justice Department; correspondence indicates the department provided a version of the software to Israel in 1983—see May 6, 1983 and May 12, 1983). Ben-Menashe also alleges he was present in 1987 when Brian sold an enhanced version of the software (which would have been owned by Inslaw) to the Israeli intelligence community and the Singapore armed forces and that, after these sales were completed, approximately $5.5 million was placed in a foreign bank account to which Brian had access. He also says that Brian sold the public domain version of PROMIS to military intelligence organizations in Jordan in 1983 and to the Iraqi government in 1987, a transaction brokered by a businessman named Carlos Cardoen. Ben-Menashe further claims that he has information about the sale of a public domain version of PROMIS by Israel to the Soviet Union in 1986, and the sale of the enhanced version to the Canadian government coordinated by Brian. Ben-Menashe states that various unnamed Israeli officials would corroborate his statements, but refuses to identify these officials or provide evidence to corroborate his statements unless he is called as an official witness for the committee under a grant of immunity. The committee decides not to grant immunity and will include these claims in a section of its report that merely states what witnesses told it, without endorsing their claims. (US Congress 9/10/1992) Ben-Menashe will go on to be involved in numerous major and minor international scandals, picking up a chequered reputation for honesty. (Hilsum 2/25/2002)
Attorney General Richard Thornburgh informs the House Judiciary Committee that he will not attend a committee hearing the next day, despite previously saying he would. The hearing is to discuss the committee’s access to departmental documents and the Inslaw affair, in which the department had allegedly stolen an enhanced version of the PROMIS application. According to a report by the committee, Thornburgh refuses to appear because a “press release announcing the hearing had been unduly aggressive and contentious and not in keeping with the tenor of an oversight hearing.” (US Congress 9/10/1992)
Responding to a Congressional subpoena (see July 25, 1991), the Justice Department sends most documents requested about the alleged theft of a version of the enhanced PROMIS software to the House Subcommittee on Economic and Commercial Law. However, the department says that 51 documents or files are missing and cannot be found. A report issued by the House Judiciary Committee in September 1992 will say that the subcommittee has still not received an adequate explanation on how the documents came to be missing. (US Congress 9/10/1992)
The body of Daniel Casolaro, a journalist who had investigated the Inslaw affair and matters he believed to be related, is embalmed. This occurs before his family is notified and before a coroner’s investigation. The House Judiciary Committee will later comment that the embalming “may have limited the effectiveness of autopsies or toxicological examinations.” (US Congress 9/10/1992)
Lois Battistoni, a former employee of the Justice Department’s criminal division, says that the PROMIS application may have been transferred from the department to a private business. She makes the claim in a sworn statement for the House Judiciary Committee in October 1991, and again in an interview in February of the next year. According to Battistoni, a criminal division employee had previously told her that there was a company chosen to take over PROMIS implementation contracts served by Inslaw at that time. This company was apparently connected to a top department official through a California relationship. Inslaw owner William Hamilton will speculate that this company is Hadron, Inc., as it was owned by businessman Earl Brian, who was linked to former Attorney General Edwin Meese. However, Battistoni says that she has little firsthand knowledge of the facts surrounding these allegations, and does not provide the committee with the name of the criminal division employee who made the claim to her, indicating department employees are afraid to cooperate with Congress for fear of reprisal. She also makes a number of allegations about the involvement of department employees in the destruction of documents related to the affair. (US Congress 9/10/1992)
John Schoolmeester, a former Customs Services program officer, says that Peter Videnieks, a Justice Department official who worked on the implementation of PROMIS software, is linked to a company called Hadron, Inc., owned by Earl Brian, a businessman involved in the PROMIS affair. Schoolmeester makes the claim in two sworn statements provided to the House Judiciary Committee on October 10 and November 6, 1991. Schoolmeester says he has direct knowledge of ties between Videnieks and Hadron, Inc., prior to Videnieks’ employment with the Justice Department. According to Schoolmeester, Videnieks, as a contracting officer for the Customs Service, was involved with several Hadron, Inc. contracts, and he would necessarily have met with Dominic Laiti (a former Hadron chief executive officer) on a regular basis, because that was the way Laiti conducted business. However, Videnieks tells the committee under oath that he does not know and has not had any conversations with Laiti or Brian. Schoolmeester also says that Brian is “the behind-the-scenes guy at Hadron,” but he is not certain whether Videnieks met with him. Finally, he says that Brian is well connected in Washington and had connections with former Attorney General Edwin Meese and several Congressional figures. (US Congress 9/10/1992)
A judge hearing the PROMIS case for the Department of Transportation Board of Contract Appeals (DOTBCA) says that findings by the Bankruptcy Court for the District of Columbia and the US District Court for the District of Columbia have left a “cloud” over the Justice Department. The two courts originally found for Inslaw (see September 28, 1987 and November 22, 1989), which is in dispute with the department over an enhanced version of the PROMIS software, but these rulings were overturned on appeal, mostly on jurisdictional grounds (see May 7, 1991). At a hearing, counsel for the department says, “I think those trials speak for themselves, and every order has been vacated.” However, the judge responds: “There is one problem. The fact that a judge or a court doesn’t have jurisdiction doesn’t mean that the court is completely ignorant. True, Mr. Bason [the bankruptcy court judge] and Mr. Bryant [the judge that heard the initial appeal] did not have jurisdiction, but they did make some very serious findings on the basis of sworn testimony. They had been truly vacated, and it may be that all the statutes to run have run and they can’t go anywhere. Those cases may be dead forever. But it has left a cloud over the respondent [the department].” The House Judiciary Committee will comment: “As the DOTBCA judge concluded, there definitely remains a cloud over the department’s handling of Inslaw’s proprietary software. Department officials should not be allowed to avoid accountability through a technicality or a jurisdiction ruling by the Appeals Court.” (US Congress 9/10/1992)
Attorney General William Barr appoints Nicholas Bua, a retired federal judge from Chicago, as his special counsel to investigate and advise him on the Inslaw controversy. The affair has been running for nearly a decade and stems from a dispute over a contract signed by the Justice Department and Inslaw in 1982 (see March 1982). However, because Bua does not have independent status, the House Judiciary Committee will comment, “as long as the investigation of wrongdoing by former and current high level Justice officials remains under the ultimate control of the department itself, there will always be serious doubt about the objectivity and thoroughness of the inquiry.” (US Congress 9/10/1992)
Canada’s ambassador to the US, Derek Burney, writes to the House Judiciary Committee saying that neither the Canadian Royal Mounted Police nor the Canadian Security Intelligence Service (CSIS) have the PROMIS software developed by Inslaw or derivatives thereof. The statement is in response to an October letter from the committee, which is investigating the alleged theft from Inslaw of a version of the software and its subsequent passage to Canada. According to Burney, both the Mounties and the CSIS told him that not only do they not use Inslaw’s PROMIS or any software believed to be a derivative of it, but that they do not use any case management software at all. The committee will comment: “The ambassador’s conclusory statement did not provide an offer or an opportunity for further verification of the allegations received concerning the government of Canada. Without direct access to [the Mounties], CSIS, and other Canadian officials, the committee has been effectively thwarted in its attempt to support or reject the contention that Inslaw software was transferred to the Canadian government.” (US Congress 9/10/1992)
Former Drug Enforcement Agency (DEA) agent Lester Coleman submits a sworn affidavit to a court hearing the dispute between Inslaw and the Justice Department about the alleged theft of PROMIS software.
PROMIS Allegedly Provided to Middle Eastern Countries - Coleman says that in spring 1988 he worked with a DEA proprietary company in Nicosia, Cyprus. He found that the DEA was using the company to sell computer software called “PROMISE” or “PROMIS” to drug abuse control agencies in Cyprus, Pakistan, Syria, Kuwait, and Turkey. Coleman claims to have seen reels of computer tapes and computer hardware being unpacked at the Nicosia Police Force Narcotics Squad. The boxes allegedly bore the name and red logo of a Canadian corporation with the words “PROMISE” or “PROMIS” and “Ltd.” According to Coleman, the DEA’s objective in aiding the implementation of this system in these countries was to enhance the United States’ ability to access sensitive drug control law enforcement and intelligence files. Coleman adds that a DEA agent was responsible for both the propriety company, Eurame Trading Company, Ltd., and its initiative to sell “PROMIS(E)” computer systems to Middle Eastern countries.
Apparent Link to Case against Michael Riconosciuto - Coleman also says he believed the agent’s reassignment in 1990 to a DEA intelligence position in Washington State prior to the arrest of Michael Riconosciuto in March 1991 on drug charges was more than coincidental. Riconosciuto has also made a number of claims about PROMIS. According to Coleman, the agent was assigned to Riconosciuto’s home state to manufacture a case against him. Coleman says this was done to prevent Riconosciuto from becoming a credible witness concerning the US government’s covert sale of PROMIS to foreign governments.
Meeting with Danny Casolaro - Coleman also says he was contacted by the reporter Danny Casolaro on August 3, 1991. Casolaro apparently told him he had leads and hard information about (1) Justice Department groups operating overseas, (2) the sale of the “PROMIS(E)” software by the US government to foreign governments, (3) the Bank of Credit and Commerce International (BCCI), and (4) the Iran-Contra scandal.
Mentioned by House Committee in Report - These charges will be mentioned in the House Judiciary Committee’s final report on the Inslaw affair, but the committee will not endorse them. (US Congress 9/10/1992)
Later Conviction for Perjury - Coleman will later admit fabricating a claim that a secret drug sting enabled terrorists to evade airport security in the bombing of Pan Am Flight 103, which was blown up over Lockerbie, Scotland, in 1988. Pleading guilty to five counts of perjury, he will say he lied for a variety of reasons: to obtain money, to evade pending federal charges that he filed a false passport application, to enhance his status as a consultant on international security and terrorism, and to get back at the United States Drug Enforcement Administration for firing him. (New York Times 9/12/1997)
Robert Nichols, an apparently significant player in the Inslaw affair and a contact of Daniel Casolaro, a journalist who investigated the matter, provides a telephone interview to the House Judiciary Committee. Nichols was allegedly a key contact of Casolaro’s (see Before August 10, 1991), although the reporter was found dead the previous year (see August 10, 1991). Despite providing the telephone interview, Nichols declines to make a sworn statement. (US Congress 9/10/1992)
The House Judiciary Committee asks US Attorney General William Barr to appoint an independent counsel to investigate Iraqgate. (Colhoun 1992)
US Attorney General William Barr rejects the House Judiciary Committee’s request for him to appoint an independent counsel (see July 9, 1992), reasoning that the committee’s accusations are too “vague.” He informs them that the Justice Department will instead continue with its own “investigation” of Iraqgate. (Colhoun 1992)
The Justice Department provides limited information to the House Judiciary Committee about actions performed under the new Patriot Act (see October 26, 2001). Representative James Sensenbrenner (R-WI) had demanded answers to 50 questions regarding the Patriot Act from Attorney General John Ashcroft, or else he would “start blowing a fuse.” Among other things, Sensenbrenner wanted to know how many times the Justice Department had implemented wiretaps under the act, and threatened Congressional subpoenas and opposition to the act when it comes up for renewal. Sensenbrenner and the Judiciary Committee receive far less than originally requested, with the Justice Department asserting that much of the information is classified and cannot be revealed. Sensenbrenner declares himself satisfied. (Savage 2007, pp. 114-115)
Justice Department officials generate a list of US Attorneys by judicial district, with basic information about each one (names and relative sizes of district: “small,” “medium,” or “large”). Some have handwritten annotations included. Most of the names will be redacted when the list is released to the House Judiciary Committee in April 2007, but the names of US Attorneys fired in 2006 (see March 10, 2006, December 7, 2006, and December 20, 2006) are included. Kevin Ryan of the Northern District of California has the following annotation: “tough district; don’t know if he’d fit in to the mix very well,” and another indecipherable phrase. Carol Lam of the Southern District of California is notated as “very independent.” The officials who generate and notate the list are not identified. (US House of Representatives, Committee of the Judiciary 4/13/2007 )
Representative John Conyers (D-CA), the ranking member of the House Judiciary Committee, writes a letter to committee chairman James Sensenbrenner (R-WI), asking that the committee open an investigation into the Plame Wilson identity leak. Sensenbrenner will not respond to Conyers’ letter. (Waxman 12/2005)
Though the issue of abuse of National Security Letters (NSLs) has become an issue of concern for many civil libertarians and constitutional scholars (see October 25, 2005 and January 2004), Congress fails to conduct any meaningful oversight on their use and abuse. Pat Roberts (R-KS), the chairman of the Senate Intelligence Committee, says that the use of NSLs by the FBI is perfectly legal, “non-intrusive,” and “crucial to tracking terrorist networks and detecting clandestine intelligence activities.” The FBI provides enough information to Congress in “semi-annual reports [that] provide the committee with the information necessary to conduct effective oversight,” he says. Roberts is referring to the Justice Department’s classified statistics, which have only been provided three times in four years, and give no specific information about the NSLs. The Justice Department has repeatedly refused requests by committee members for a sampling of actual NSLs, a description of their results, or an example of their contribution to a particular case. In 2004, the Senate asks the Attorney General to “include in his next semiannual report” a description of “the scope of such letters” and the “process and standards for approving” them. The Justice Department fails to do so, or even to reply to the request. Representative Zoe Lofgren (D-CA), a House Judiciary Committee member, says that congressional Democrats have little recourse: “The minority has no power to compel, and… Republicans are not going to push for oversight of the Republicans. That’s the story of this Congress.” The Justice Department notes that its inspector general, Glenn Fine, has not reported any abuses of the NSLs, but those reports beg the question: how can citizens protest searches of their personal records if they are never notified about such searches? Fine says, “To the extent that people do not know of anything happening to them, there is an issue about whether they can complain. So, I think that’s a legitimate question.” (Gellman 11/6/2005)
Republican Party officials in Wisconsin prepare a report, “Fraud in Wisconsin 2004: A Timeline/Summary,” that purports to document 65 “voter fraud” instances that they claim had a negative impact on the 2004 elections. US Attorney Steven Biskupic will investigate the claims in the report and find no evidence that crimes were committed. The document is later released by the House Judiciary Committee as part of its investigation into the 2006 US Attorney firings (see March 10, 2006, December 7, 2006, and December 20, 2006); Biskupic is listed for firing just after the report is disseminated (see March 2, 2005). The document is written by Chris Lato, the communications director for the Wisconsin Republican Party, under the auspices of the state GOP’s executive director Rick Wiley. Wiley commissioned the report for White House political chief Karl Rove; in 2007, a source described in the Milwaukee Journal-Sentinel as having “knowledge of the situation” will tell a reporter: “The report was prepared for Karl Rove. Rick wanted it so he could give it to Karl Rove.” The 30-page report spans the time period from August 31, 2004 through April 1, 2005, and contains reports and summatives with titles such as “RPW [Republican Party of Wisconsin] News Release: Evidence of Election Fraud Piles Up.” In March 2005, White House counselor Dan Bartlett, whose primary role is handling communications issues, identifies Wisconsin as one of the states from which the White House had “received complaints about US Attorneys.” In April 2005, Rove sends a copy of the report to White House counsel Harriet Miers, with a handwritten note calling it “a good summary” of the various voter fraud allegations in Wisconsin, and a notation about an allegation of more votes being cast in certain precincts than those precincts have registered voters, with “proof” of that allegation being that a “local newspaper” assigned “an investigative reporter” to look into the charges. “I was assured Saturday while I was in Milwaukee that the issue of more voters than people on the registration list is real,” Rove writes to Miers. The information in the RPW report will later be incorporated into a larger report disseminated in July 2005 by the American Center for Voting Rights Legislative Fund (ACVR), entitled “Vote Fraud, Intimidation & Suppression in the 2004 Presidential Election.” ACVR officials Brian Lunde and Mark “Thor” Hearne will write that their report “documents hundreds of incidents and allegations from around the country.… [T]housands of Americans were disenfranchised by illegal votes cast on Election Day 2004.… [P]aid Democrat operatives were far more involved in voter intimidation and suppression activities than were their Republican counterparts.” The report concludes that “government-issued photo ID” requirements will “help assure” that “no American is disenfranchised by illegal votes.” (Bice 4/7/2007 ; Bleifuss 4/18/2007; US House of Representatives, Committee on the Judiciary 7/30/2009 ) US Attorney David Iglesias will later say of ACVR and similar organizations: “I hope the media keeps shining the spotlight on groups like the American Center for Voting Rights, the ACVR, who has been engaging in this type of voter suppression actions, especially targeting elderly people and minorities. And I mean, if you’re an American citizen who is not a felon, you have the right to vote.” (Goodman 6/4/2008) Miers will later testify that she has a vague recollection that she believed there was another explanation besides voter fraud for Rove’s “more voters than people on the registration list” characterization. She will recall hearing from the Justice Department “[t]hat the voting precinct in the county lines didn’t match. So in fact, there were instances where it really could be people voting in larger numbers than actually was the county population.” She will say that she believes she learned this from Deputy Attorney General Paul McNulty, but will not state this with certainty. “[I]t may be that it came from Bill Kelley,” she will say, referring to her deputy William Kelley. (US House of Representatives, Committee on the Judiciary 6/15/2009 )
Kyle Sampson, the deputy chief of staff for Attorney General Alberto Gonzales (see February 15, 2005), sends a list of the 93 current US Attorneys to White House counsel Harriet Miers. Each US Attorney is listed in either plain type, boldface, or “strikeout,” meaning a line is drawn through their name. In a follow-up email on March 2, Sampson explains that, “putting aside expiring terms, the analysis on the chart I gave you is as follows:
Bold - “Recommend retaining; strong US Attorneys who have produced, managed well, and exhibited loyalty to the president and attorney general.
Strikeout - “Recommend removing; weak US Attorneys who have been ineffectual managers and prosecutors; chafed against administration initiatives, etc.
Nothing - “No recommendation; not distinguished themselves either positively or negatively.”
On the copy of the chart released to the House Judiciary Committee in 2009, most of the US Attorneys’ names are redacted. The ones who are not redacted are listed as follows:
Paul K. Charlton, Arizona (see November 14, 2001 and December 2003): nothing;
Bud Cummins, Eastern Arkansas (see January 9, 2002 and April or August 2002): strikeout.
Debra W. Yang, Central California: boldface.
Kevin Ryan, Northern California (see August 2, 2002 and February 2003): nothing. (Ryan’s name is in a different font than the others, suggesting that it has been re-entered; it is difficult to tell from the copy of Sampson’s chart if his name is in boldface or not.)
Carol C. Lam, Southern California (see November 8, 2002 and February 7-11, 2005): strikeout.
Patrick Fitzgerald, Northern Illinois (see October 24, 2001): nothing.
Margaret M. Chiara, Western Michigan (see November 2, 2001 and July 12-16, 2004): strikeout.
Thomas B. Heffelfinger, Minnesota: strikeout.
Dunn O. Lampton, Southern Mississippi: strikeout.
Todd P. Graves, Missouri (see October 11, 2001 and March 2002): nothing.
Daniel G. Bogden, Nevada (see November 2, 2001 and February 2003): nothing.
Christopher J. Christie, New Jersey (see December 20, 2001): boldface.
David C. Iglesias, New Mexico (see October 18, 2001 and 2002): boldface.
Anna Mills S. Wagoner, Central North Carolina: strikeout.
Mary Beth Buchanan, Western Pennsylvania: boldface.
John McKay Jr., Western Washington (see October 24, 2001 and May 2002): strikeout.
Steven M. Biskupic, Wisconsin: strikeout.
Thomas A. Zonay, Vermont: boldface.
On March 2, Sampson sends an email to Miers indicating some revisions to the chart. Heffelfinger and Biskupic have their statuses changed to “strikeout” (referenced above), and Matt Orwig, the US Attorney for the Eastern District of Texas, is listed in boldface. Miers, a Texas native, responds, “Good to hear about Matt actually.” Sampson replies, somewhat cryptically and with careless punctuation and capitalization: “yes he’s good. oversight by me.” (US House of Representatives, Committee on the Judiciary 6/15/2009 )
White House counsel Harriet Miers sends an email that says the White House has decided not to renominate US Attorney David Iglesias of New Mexico (see October 18, 2001) to his current position. The reason for the decision is complaints by New Mexico Republicans that Iglesias has not adequately addressed the issue of Democratic voter fraud in their state (see 2002, August 17, 2004, September 7 - October 6, 2004, September 15-19, 2004, September 23 - October 2004, and May 6, 2005 and After). Miers writes that the “decision” to replace Iglesias with someone more palatable to New Mexico Republicans has been made. At this time, the House Judiciary Committee will note in 2009, the Justice Department has given Iglesias “top rankings” (see 2002 and November 14-18, 2005 ), “so this decision was clearly not just the result of the White House following the department’s lead,” as Miers and White House political chief Karl Rove will later maintain. (US House of Representatives, Committee on the Judiciary 8/11/2009; Bresnahan and Gerstein 8/12/2009)
Representative John Conyers (D-MI), the ranking member of the House Judiciary Committee, and 91 other House members send a letter to President Bush asking that White House political adviser Karl Rove either explain his role in outing CIA official Valerie Plame Wilson, or resign. Conyers and the co-signers write, “[W]e believe it is not tenable to maintain Mr. Rove as one of your most important advisers unless he is willing to explain his central role in using the power and authority of your administration to disseminate information regarding Ms. Plame [Wilson] and to undermine her husband, Ambassador Joseph Wilson.” House Minority Leader Nancy Pelosi (D-CA) and Minority Whip Steny Hoyer (D-MD) do not sign the letter, but send their own letter to House Speaker Dennis Hastert (R-IL) asking that relevant House committees schedule hearings on the Plame Wilson matter. In their letter, Pelosi and Hoyer write: “We urge you to direct that committees with jurisdiction over the Plame matter schedule hearings immediately. In previous Republican Congresses the fact that a criminal investigation was underway did not prevent extensive hearings from being held on other, much less significant matters” (see July 29, 2005). (Raw Story 7/15/2005)
Representative John Conyers (D-CA), the ranking member of the House Judiciary Committee, writes a letter to committee chairman James Sensenbrenner (D-WI), asking that the committee open an investigation into the Plame Wilson identity leak. Conyers’s letter will not receive a response. Sensenbrenner has already ignored one such request (see October 30, 2003). (Waxman 12/2005)
Representative Rush Holt (D-NJ) introduces a resolution that would request the Bush administration to divulge the name, or names, of the White House officials responsible for leaking the CIA status of Valerie Plame Wilson to the press (see June 13, 2003, June 23, 2003, July 7, 2003, 8:30 a.m. July 8, 2003, July 8, 2003, 11:00 a.m. July 11, 2003, 8:00 a.m. July 11, 2003, Late Afternoon, July 12, 2003, 1:26 p.m. July 12, 2003, and July 12, 2003). The resolutions are referred to four House committees: Judiciary, International Relations, Armed Services, and Intelligence. The Republican leadership votes the resolution down in each committee, arguing in each case that to make such a request would interfere with the Justice Department’s ongoing criminal investigation. In December 2005, the Democrats on the House Judiciary Committee will write, “This argument would seem to be disingenuous given that there are numerous precedents for Congressional committees investigating concurrently with the Justice Department and with other matters under criminal review by the executive branch, most notably many concurrent investigations by the Republican Congress involving the Clinton administration.” (Waxman 12/2005)
John Conyers (D-MI), the ranking member of the House Judiciary Committee, sends a letter to President Bush and Vice President Dick Cheney asking about recent revelations that Cheney authorized the leak of classified information to reporters (see January 23, 2006 and February 2, 2006). Conyers writes that such an authorization, if true, would constitute “an abuse of power at best, and may be outright unlawful at worst.… [I]t would appear that neither classified nuclear information nor Valerie Plame’s status as a covert agent or the name of her employer warranted declassification.” Conyers asks whether the report is true, and whether Bush, Cheney, or any of their staff members authorized former Cheney aide Lewis Libby or anyone else “to declassify and leak information to the media relating to the Iraq war and the use of pre-war intelligence on any occasions,” and if so, what the legal basis for such declassifications would be. He also asks if Bush intends to stand by his promise to “take the appropriate action” against anyone who leaked classified information” (see September 30, 2003). (Jeralyn Merritt 2/10/2006)
Attorney General Alberto Gonzales says he will sharply limit the testimony of former attorney general John Ashcroft and former deputy attorney general James Comey before the Senate Judiciary Committee. The committee is preparing for hearings on the warrantless wiretapping program authorized by President Bush several months after the 9/11 attacks (see Early 2002). Gonzales says that “privilege issues” will circumscribe both men’s testimony: “As a general matter, we would not be disclosing internal deliberations, internal recommendations. That’s not something we’d do as a general matter, whether or not you’re a current member of the administration or a former member of the administration.” He adds, “You have to wonder what could Messrs. Comey and Ashcroft add to the discussion.” Comey was an observer to the late-night visit by Gonzales and then-White House chief of staff Andrew Card to Ashcroft’s hospital room, where Gonzales and Card unsuccessfully attempted to persuade the heavily sedated Ashcroft to reauthorize the program after Comey, as acting attorney general, determined the program was likely illegal (see March 10-12, 2004). Committee chairman Arlen Specter (R-PA) says he has asked Gonzales for permission to call Comey and Ashcroft to testify, but has not yet received an answer. Specter says, “I’m not asking about internal memoranda or any internal discussions or any of those kind of documents which would have a chilling effect.” Specter will ask Ashcroft and Comey to talk about the legal issues at play in the case, including the events surrounding the hospital visit. In the House Judiciary Committee, Republicans block an attempt by Democrats to ask Gonzales to provide legal opinions and other documents related to the program. (Eggen 2/16/2006)
Retired AT&T technician Mark Klein (see December 15-31, 2005 and July 7, 2009), working with a civil liberties group about his knowledge of governmental illegality in eavesdropping on Americans’ telephone and Internet communications (see Early January 2006), is concerned that the New York Times will not publish a story featuring his allegations and evidence against AT&T and the National Security Agency (NSA). Klein was “outed” by Los Angeles Times editor Dean Baquet to the US intelligence apparatus after Klein approached a Los Angeles Times reporter about his story, and Klein is concerned that he lacks the protection that publicity would afford him (see February 11, 2006 and After). New York Times reporters James Risen and Eric Lichtblau fail to contact Klein for weeks during this time period, leaving Klein to wonder if the New York Times, like the Los Angeles Times before it, will fail to publish his story. Klein emails Risen and Lichtblau his full set of AT&T documents proving his allegations in mid-February (see December 31, 2005). Meanwhile, he sends emails containing selected documents to a number of Congressional members. Only one, House Representative Pete Stark (D-CA), responds, promising that he will present Klein’s information to the House Judiciary Committee, but, as Klein will write, “I never heard anything from the Judiciary Committee, or any other committee for that matter.” (PBS Frontline 5/15/2007; Klein 2009, pp. 63)
US Justice Department official Craig Donsanto, the director of the election crimes branch, sends an email to a colleague expressing his incredulity that the US Attorney for Eastern Wisconsin, Steven Biskupic, brought a case against Wisconsin procurement official Georgia Thompson. Thompson was released in April by an appeals court which overturned her conviction and found that Biskupic’s prosecution was based on extraordinarily sketchy evidence (see April 5, 2007). Many critics now believe that the case was politically motivated (see April 7-10, 2007, April 16, 2007, and April 24, 2007). “Bad facts make bad law. How in heck did this case get brought?” Donsanto writes in an email to Justice Department official Raymond Hulser. The press will not report on Donsanto’s consternation until September 2007, when it will be turned over to the House Judiciary Committee, involved in an investigation of the 2006 US Attorney purge (see March 10, 2006, December 7, 2006, and December 20, 2006). Committee chairman John Conyers (D-MI) will say in a statement: “This email demonstrates that even Justice Department insiders thought the Thompson case was seriously flawed. This only underscores the need for further investigation into the administration’s alleged role in politicizing prosecutions.” Biskupic was once named on a list of US Attorneys to be fired (see March 2, 2005), but was later removed from the list. Attorney General Alberto Gonzales will later testify that he does not know why Biskupic was considered for removal or why he was taken off the list. (Foley 9/6/2007)
Representative John Conyers (D-MI), chairman of the House Judiciary Committee, writes a letter to President Bush asking him to allow his top White House officials to explain why he commuted convicted felon Lewis Libby’s prison sentence (see July 2, 2007). Conyers says Bush should “waive executive privilege and provide relevant documents and testimony” about the decision. (CBS News 1/25/2007) As far as is known, Conyers receives no reply from the White House.
FBI Director Robert Mueller testifies before the House Judiciary Committee about the NSA’s warrantless wiretapping program (see Early 2002), which many believe to be illegal. Mueller directly contradicts testimony given the day before by Attorney General Alberto Gonzales (see July 24, 2007), where Gonzales claimed that “there has not been any serious disagreement about the program that the president has confirmed.” Mel Watt (D-NC) asks Mueller, “Can you confirm that you had some serious reservations about the warrantless wiretapping program that kind of led up to this?” Mueller replies, “Yes.” Later, Sheila Jackson-Lee (D-TX) asks about the now-notorious visit by Gonzales and then-chief of staff Andrew Card to then-Attorney General John Ashcroft’s hospital room, where they tried to pressure the heavily sedated Ashcroft to reauthorize the program (see March 10-12, 2004). Gonzales testified that he and Card visited Ashcroft to discuss “other intelligence matters,” and not the NSA surveillance program. Jackson-Lee asks, “Did you have an understanding that the conversation was on TSP?” referring to the current moniker of the NSA operation, the “Terrorist Surveillance Program.” Mueller replies, “I had an understanding that the discussion was on an NSA program, yes.” Jackson-Lee says, “I guess we use ‘TSP,’ we use ‘warrantless wiretapping,’ so would I be comfortable in saying that those were the items that were part of the discussion?” Mueller agrees: “The discussion was on a national NSA program that has been much discussed, yes.” (Speaker of the House 7/26/2007; Stout 7/26/2007)
Notes made by FBI Director Robert Mueller about the 2004 attempt by then-White House counsel Alberto Gonzales and then-chief of staff Andrew Card to pressure ailing Attorney General John Ashcroft to reauthorize the secret NSA warrantless wiretapping program contradict Gonzales’s July testimony before the Senate Judiciary Committee about the events of that evening (see March 10-12, 2004 and July 24, 2007). Gonzales’s testimony was already at odds with previous testimony by former deputy attorney general James Comey (see May 15, 2007). Gonzales testified that Ashcroft was lucid and articulate, even though Ashcroft had had emergency surgery just hours before (see March 10-12, 2004), and he and Card had merely gone to Ashcroft’s hospital room to inform Ashcroft of Comey’s refusal to authorize the program (see May 15, 2007). But Mueller’s notes of the impromptu hospital room meeting, turned over to the House Judiciary Committee today, portray Ashcroft as “feeble,” “barely articulate,” and “stressed” during and after the confrontation with Gonzales and Card. (US Department of Justice 8/16/2007; Eggen 8/17/2007; Associated Press 8/17/2007) Mueller wrote that Ashcroft was “in no condition to see them, much less make decision [sic] to authorize continuation of the program.” Mueller’s notes confirm Comey’s testimony that Comey requested Mueller’s presence at the hospital to “witness” Ashcroft’s condition. (Roh 8/16/2007)
Mueller Directed FBI Agents to Protect Comey - The notes, five pages from Mueller’s daily log, also confirm Comey’s contention that Mueller had directed FBI agents providing security for Ashcroft at the hospital to ensure that Card and Gonzales not be allowed to throw Comey out of the meeting. Gonzales testified that he had no knowledge of such a directive. Mueller’s notes also confirm Comey’s testimony, which held that Ashcroft had refused to overrule Comey’s decision because he was too sick to resume his authority as Attorney General; Ashcroft had delegated that authority to Comey for the duration of his hospital stay. Gonzales replaced Ashcroft as attorney general for President Bush’s second term. Representative John Conyers (D-MI), chairman of the House Judiciary Committee, says that Mueller’s notes “confirm an attempt to goad a sick and heavily medicated Ashcroft to approve the warrantless surveillance program. Particularly disconcerting is the new revelation that the White House sought Mr. Ashcroft’s authorization for the surveillance program, yet refused to let him seek the advice he needed on the program.” (Ashcroft had previously complained that the White House’s insistence on absolute secrecy for the program had precluded him from receiving legal advice from his senior staffers, who were not allowed to know about the program.)
Notes Contradict Other Testimony - Mueller’s notes also contradict later Senate testimony by Gonzales, which he later “clarified,” that held that there was no specific dispute among White House officials about the domestic surveillance program, but that there was merely a difference of opinion about “other intelligence activities.” (Johnston and Shane 8/16/2007; Eggen 8/17/2007) In his earlier Congressional testimony (see July 26, 2007), which came the day after Gonzales’s testimony, Mueller said he spoke with Ashcroft shortly after Gonzales left the hospital, and Ashcroft told him the meeting dealt with “an NSA program that has been much discussed….” (Frieden 7/25/2007) Mueller did not go into nearly as much detail during that session, declining to give particulars of the meeting in Ashcroft’s hospital room and merely describing the visit as “out of the ordinary.” (House Judiciary Committee 7/26/2007; Johnston and Shane 8/16/2007) Mueller’s notes show that White House and Justice Department officials were often at odds over the NSA program, which Bush has lately taken to call the “Terrorist Surveillance Program.” Other information in the notes, including details of several high-level meetings concerning the NSA program before and after the hospital meeting, are redacted.
Call for Inquiry - In light of Mueller’s notes, Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, has asked the Justice Department’s inspector general, Glenn Fine, to investigate whether Gonzales has misled lawmakers—in essence, committed perjury—in his testimony about the NSA program as well as in other testimony, particularly statements related to last year’s controversial firings of nine US attorneys. Other Democrats have asked for a full perjury investigation (see July 26, 2007). (Eggen 8/17/2007) Leahy writes to Fine, “Consistent with your jurisdiction, please do not limit your inquiry to whether or not the attorney general has committed any criminal violations. Rather, I ask that you look into whether the attorney general, in the course of his testimony, engaged in any misconduct, engaged in conduct inappropriate for a Cabinet officer and the nation’s chief law enforcement officer, or violated any duty.” (Associated Press 8/17/2007)
Several inquiries are launched into the destruction by the CIA of videotapes showing detainee interrogations.
The Justice Department begins a preliminary inquiry. It writes to the CIA’s top lawyer, John Rizzo, noting he has undertaken to ensure all currently existing records are preserved. (Associated Press 12/8/2007)
The CIA’s Inspector General begins an inquiry. One of the questions it will address is whether the destruction was obstruction of justice. (Jordan 12/11/2007) However, some Democratic lawmakers raise questions about the propriety of inquiries run by the Justice Department, as its lawyers offered advice about the tapes, and the CIA Inspector General, who reviewed the tapes before they were destroyed. (Eggen and Warrick 12/15/2007)
The House Intelligence Committee starts an inquiry. Committee chairman Silvestre Reyes says it is planning a “broad review” of the CIA’s detention and interrogation program, but adds, “I’m not looking for scapegoats.” (Mazzetti 12/8/2007) The committee requests all cables, memos and e-mails related to the videotapes, as well as legal advice given to CIA officials before the tapes were destroyed. (Johnston and Mazzetti 12/15/2007)
The Senate Intelligence Committee also begins an inquiry. (Dean 12/14/2007)
The House Judiciary Committee sends letters to CIA Director Michael Hayden and Attorney General Michael Mukasey asking whether the Justice Department provided the CIA with legal advice. (Hess 12/7/2007)
The House Committee on Oversight and Government Reform investigates whether the Federal Records Act has been violated. (Dean 12/14/2007)
There is a debate in a court case involving 11 Guantanamo detainees about whether the tapes were subject to a preservation order issued by the judge in that case (see December 14, 2007).
Steven Bradbury, the head of the Justice Department’s Office of Legal Counsel (OLC), tells the House Judiciary Committee that the Bush administration routinely allowed the CIA to use interrogation tactics that were “quite distressing, uncomfortable, even frightening,” as long as they did not cause enough severe and lasting pain to constitute illegal torture. One of those techniques, waterboarding, is legal and not torture, Bradbury says, because it is a “procedure subject to strict limitations and safeguards.” Those standards and limitations make waterboarding as used by the CIA substantially different from historical uses of the technique as it was employed during the Spanish Inquisition and by the Japanese during World War II. Bradbury, asked if waterboarding violates US and international laws against torture, says it does not. Waterboarding as practiced by the CIA bears “no resemblance” to what torturers in time past have done. “There’s been a lot of discussion in the public about historical uses of waterboarding,” Bradbury says. The “only thing in common is the use of water.” Spanish and Japanese water torture techniques “involved the forced consumption of a mass amount of water.” When asked if he is aware of any “modern use” of waterboarding that involves the “lungs filling with water,” Bradbury says he is not. Bradbury says that the Japanese forced the ingestion of so much water that it was “beyond the capacity of the victim’s stomach.” Weight or pressure was then applied by standing or jumping on the stomach of the victim, sometimes leading to “blood coming of the victim’s mouth.” The Spanish Inquisition would use the technique to the point of “agony or death.” The CIA does not do that, Bradbury says. “Strict time limits” are involved—presumably governing the length of time that interrogators can induce the sensation of drowning. Additionally, “safeguards” and “restrictions” make waterboarding a much more controlled procedure. Together, waterboarding as practiced by the CIA is not torture. However, Bradbury admits that recent Supreme Court decisions have changed the OLC’s analysis, and says that in 2006 the CIA stopped using waterboarding. (Kiel 2/14/2008; Eggen 2/18/2008)
Bradbury's Comparison 'Obscene' - Bradbury claimed that no water entered the lungs of three al-Qaeda captives subjected to the practice; many believe that those captives had cellophane or cloth over their noses and mouths while waterboarded. Torture experts say that practice poses a serious risk of asphyxiation. Former OLC official Martin Lederman says he finds Bradbury’s testimony “chilling.” Lederman notes that “to say that this is not severe physical suffering—is not torture—is absurd. And to invoke the defense that what the Spanish Inquisition did was worse and that we use a more benign, non-torture form of waterboarding… is obscene.” Human rights experts have said that the CIA’s particular form of waterboarding is similar to those practiced by such regimes as the Khmer Rouge in Cambodia, the French colonial government in Algeria, and the government of Myanmar (Burma). All three of those regimes have been criticized for brutality and flagrant human rights violations. (Eggen 2/18/2008)
Attorney General Michael Mukasey refuses to refer a House contempt citation against two of President Bush’s top officials to a federal grand jury. The House has found former White House counsel Harriet Miers and White House Chief of Staff Joshua Bolten in contempt of Congress for refusing to answer Congressional subpoenas (see February 14, 2008), but Mukasey says neither Bolten nor Miers have committed any crimes. House Speaker Nancy Pelosi (D-CA) has, in return, given the House Judiciary Committee the authority to file a lawsuit against Miers and Bolten in federal court. Mukasey says Bolten and Miers were right to ignore the subpoenas because both were acting at President Bush’s behest. Pelosi retorts: “The American people demand that we uphold the law. As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.” Democrats want the filing to move swiftly so that a judge might rule before the November elections; a key tenet of Democratic political strategy is the accusation that the Bush administration has abused its executive powers and considers itself above the law. Bolten and Miers were subpoenaed to testify about the possible political motivations behind the 2006 firings of nine US attorneys. Mukasey agrees with the Bush administration in saying that neither Miers nor Bolten, as officials of the executive branch, are required to answer to Congress for their actions, “The contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president’s claim of executive privilege,” he writes. “Accordingly, the department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime.” Judiciary Committee chairman John Conyers (D-MI) says of Mukasey’s decision: “Today’s decision to shelve the contempt process, in violation of a federal statute, shows that the White House will go to any lengths to keep its role in the US attorney firings hidden. In the face of such extraordinary actions, we have no choice but to proceed with a lawsuit to enforce the committee’s subpoenas.” (Kellman 2/29/2008)
The House Judiciary Committee asks a federal judge to compel two White House officials to testify about the firings of eight US attorneys in 2007. Former White House counsel Harriet Miers and current White House Chief of Staff Joshua Bolten have both refused to testify, ignoring subpoenas from the Judiciary Committee (see February 14, 2008), and Attorney General Michael Mukasey has refused to enforce the subpoenas (see February 29, 2008). The White House steered the refusals. Judge John D. Bates, a federal district court judge in Washington, is overseeing the case. The suit says that neither Miers nor Bolten may avoid testimony by citing executive privilege, as both they and the White House have asserted. White House press secretary Dana Perino calls the suit “partisan theater,” and adds, “The confidentiality that the president receives from his senior advisers and the constitutional principle of separation of powers must be protected from overreaching, and we are confident that the courts will agree with us.” Judiciary Committee chairman John Conyers (D-MI) vehemently disagrees, saying, “The administration’s extreme claim to be immune from the oversight processes are at odds with our constitutional principles.” Conyers warns, “We will not allow the administration to steamroll Congress.” House Minority Leader John Boehner (R-OH) calls the suit a waste of time and accuses the committee of “pandering to the left-wing swamps of loony liberal activists.” The case is central to the ongoing tension between the White House and Congress over the balance of power between the two branches. Constitutional law professor Orin S. Kerr says the case raises fresh issues. While the Supreme Court recognized executive privilege in 1974, it acknowledged that executive privilege was not absolute and could be overturned in some instances, such as a criminal investigation. No court has ruled whether a claim of executive privilege outweighs a Congressional subpoena. According to lawyer Stanley Brand, who is involved in the suit for the Democrats, the committee turned to the legal system to avoid the possibility of charging Miers and Bolten with contempt and trying them in Congress on the charges. Such an action, Brand says, would be unseemly. (House Judiciary Committee v. Miers & Bolten 3/10/2008 ; Lewis 3/11/2008)
The American Civil Liberties Union (ACLU) responds to a just-released Justice Department report about prisoner abuse at Guantanamo and in US-run prisons in Iraq and Afghanistan (see May 20, 2008). “Today’s OIG [Office of the Inspector General] report reveals that top government officials in the Defense Department, CIA, and even as high as the White House turned a blind eye to torture and abuse and failed to act aggressively to end it,” says ACLU executive director Anthony Romero. “Moreover, the country’s top law enforcement agency—the FBI—did not take measures to enforce the law but only belatedly reported on the law’s violations. It’s troubling that the government seems to have been more concerned with obscuring the facts than with enforcing the law and stopping the torture and abuse of detainees. Had the government taken action in 2002, perhaps the disgrace of Abu Ghraib and other abuses could have been avoided.” Senior ACLU official Caroline Fredrickson says: “Attorney General Michael Mukasey recently testified to Congress that he cannot prosecute anyone for anything approved by Justice Department opinions that authorized detainee abuse (see February 7, 2008). But no one gets immunity for acts they should have known were illegal. The filtering up of information from FBI agents to high government officials makes claims of immunity even more incredulous.” And ACLU senior legislative counsel Christopher Anders says: “This new report should become exhibit A at the next Congressional hearing on the Bush administration’s use of torture. The House Judiciary Committee is in the middle of the first thorough Congressional review of the development and implementation of the torture policies at the top levels of government. The questions are who did what and what crimes were committed. This Justice Department report helps answer both questions.” (American Civil Liberties Union 5/20/2008)
The House Judiciary Committee releases a May 5 letter written to Chairman John Conyers (D-MI) by the Justice Department’s Office of Professional Responsibility (OPR—see May 5, 2008). The letter advises Conyers that OPR is investigating “allegations of selective prosecution relating to the prosecutions of Don Siegelman, Georgia Thompson, and Oliver Diaz and Paul Minor.” The House and Senate Judiciary Committees are investigating widespread allegations of politically-driven prosecutions by the Justice Department under the Bush administration. Former Governor Don Siegelman (D-AL) is facing bribery charges. Georgia Thompson is a former Wisconsin state employee convicted of corruption by US Attorney Steven Biskupic (see April 14, 2007), but who was set free after an appeals court found the case against her irreparably flawed. Diaz, a former Mississippi State Supreme Court justice, and Minor, a Mississippi lawyer, were both prosecuted by US Attorney Dunn Lampton, and the cases for both are being investigated by the House Judiciary Committee as being possibly driven by partisan political interests. (Kiel 2/25/2008; Kurtz 5/22/2008; Thomas 2011)
Fifty-six Democratic members of the House of Representatives send a letter to Attorney General Michael Mukasey, asking him to appoint a special counsel to investigate whether top Bush administration officials committed crimes in authorizing the use of waterboarding and other harsh interrogation tactics against suspected terrorists (see April 2002 and After). The lawmakers, who include John Conyers (D-MI), the chairman of the House Judiciary Committee, and House Intelligence Committee members Jan Schakowsky (D-IL) and Jerrold Nadler (D-NY), cite “mounting evidence” that senior officials personally sanctioned the use of such extreme interrogation methods. An independent investigation is needed to determine whether such actions violated US or international law, the letter states. “This information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law,” the letter says. It adds that a broad inquiry is needed to examine the consequences of administration decisions at US detention sites in Iraq, at Guantanamo, and in secret prisons operated by the CIA. The interrogation methods have resulted in “abuse, sexual exploitation and torture” that may have violated the War Crimes Act of 1996 and the American Anti-Torture Act of 2007. “Despite the seriousness of the evidence, the Justice Department has brought prosecution against only one civilian for an interrogation-related crime,” the letter reads. “Given that record, we believe it is necessary to appoint a special counsel in order to ensure that a thorough and impartial investigation occurs.” Conyers tells reporters after sending the letter, “We need an impartial criminal investigation.” The entire detainee controversy is “a truly shameful episode” in US history, he says. “Because these apparent ‘enhanced interrogation techniques’ were used under cover of Justice Department legal opinions, the need for an outside special prosecutor is obvious.” The Justice Department refuses to comment on the letter. Jennifer Daskal of Human Rights Watch says that the letter is significant even if Mukasey refuses to appoint a special counsel. “The fact that so many representatives have called for the investigation helps lay the groundwork for the inevitable reckoning and accounting that the next administration is going to have to do regarding this administration’s practices,” she says. (US House of Representatives 6/6/2008; Warrick 6/7/2008; United Press International 6/7/2008)
David Addington, the chief counsel for Vice President Cheney and one of the architects of the Bush administration’s torture policies (see Late September 2001), testifies before the House Judiciary Committee. He is joined by Justice Department lawyer John Yoo, who authored or contributed to many of the legal opinions that the administration used to justify the torture and “extralegal” treatment of terror suspects (see November 6-10, 2001). Addington, unwillingly responding to a subpoena, is, in Washington Post reporter Dana Milbank’s description, “nasty, brutish, and short” with his questioners. (Milbank 6/27/2008) He tells lawmakers that the world has not changed much since the 9/11 attacks: “Things are not so different today as people think. No American should think we are free, the war is over, al-Qaeda is not coming.” (Barnes 6/27/2008)
Refusing to Define 'Unitary Executive' - Committee chairman John Conyers (D-MI) peppers Addington with questions about the Bush administration and its penchant for the “unitary executive” paradigm, which in essence sees the executive branch as separate and above the other two, “lesser” branches of government. Addington is one of the main proponents of this theory (see (After 10:00 a.m.) September 11, 2001). But instead of answering Conyers’s questions, he slaps away the questions with what Milbank calls “disdain.”
Addington: “I frankly don’t know what you mean by unitary theory.”
Conyers: “Have you ever heard of that theory before?”
Addington: “I see it in the newspapers all the time.”
Conyers: “Do you support it?”
Addington: “I don’t know what it is.”
Conyers (angrily): “You’re telling me you don’t know what the unitary theory means?”
Addington: “I don’t know what you mean by it.”
Conyers: “Do you know what you mean by it?”
Addington: “I know exactly what I mean by it.”
Open Contempt - He flatly refuses to answer most questions, and treats the representatives who ask him those questions with open contempt and, in Milbank’s words, “unbridled hostility.” One representative asks if the president is ever justified in breaking the law, and Addington retorts, “I’m not going to answer a legal opinion on every imaginable set of facts any human being could think of.” When asked if he consulted Congress when interpreting torture laws, Addington snaps: “That’s irrelevant.… There is no reason their opinion on that would be relevant.” Asked if it would be legal to torture a detainee’s child (see After September 11, 2002), Addington answers: “I’m not here to render legal advice to your committee. You do have attorneys of your own.” He offers to give one questioner advice on asking better questions. When asked about an interrogation session he had witnessed at Guantanamo, he replies: “You could look and see mouths moving. I infer that there was communication going on.” At times he completely ignores questions, instead writing notes to himself while the representatives wait for him to take notice of their queries. At other times, he claims an almost complete failure of memory, particularly regarding conversations he had with other Bush officials about interrogation techniques. (Milbank 6/27/2008) (He does admit to being briefed by Yoo about an August 2002 torture memo (see August 1, 2002), but denies assisting Yoo in writing it.) (Barnes 6/27/2008) Addington refuses to talk more specifically about torture and interrogation practices, telling one legislator that he can’t speak to him or his colleagues “[b]ecause you kind of communicate with al-Qaeda.” He continues, “If you do—I can’t talk to you, al-Qaeda may watch C-SPAN.” When asked if he would meet privately to discuss classified matters, he demurs, saying instead: “You have my number. If you issue a subpoena, we’ll go through this again.” (Khanna 6/26/2008; Milbank 6/27/2008)
Yoo Dodges, Invokes Privilege - Milbank writes that Yoo seems “embolden[ed]” by Addington’s “insolence.” Yoo engages in linguistic gymnastics similar to Addington’s discussion with Conyers when Keith Ellison (D-MN) asks him whether a torture memo was implemented. “What do you mean by ‘implemented’?” Yoo asks. Ellison responds, “Mr. Yoo, are you denying knowledge of what the word ‘implement’ means?” Yoo says, “You’re asking me to define what you mean by the word?” Ellison, clearly exasperated, retorts, “No, I’m asking you to define what you mean by the word ‘implement.’” Yoo’s final answer: “It can mean a wide number of things.” (Milbank 6/27/2008) Conyers asks Yoo, “Could the president order a suspect buried alive?” Yoo responds, “Uh, Mr. Chairman, I don’t think I’ve ever given advice that the president could order someone buried alive.” Conyers retorts: “I didn’t ask you if you ever gave him advice. I asked you thought the president could order a suspect buried alive.” Yoo answers, “Well Chairman, my view right now is that I don’t think a president—no American president would ever have to order that or feel it necessary to order that.” Conyers says, “I think we understand the games that are being played.” Reporter Christopher Kuttruff writes, “Throughout his testimony, Yoo struggled with many of the questions being asked, frequently delaying, qualifying and invoking claims of privilege to avoid answering altogether.” (Human Rights First 6/26/2008; Kuttruff 6/27/2008)
Fox News correspondent Molly Henneberg, during a broadcast of Fox’s “straight news” show America’s Newsroom, repeats the false claim made by religious groups that the Local Law Enforcement Hate Crimes Prevention Act (LLEHCPA) would allow individuals or groups to “be prosecuted for their religious beliefs.” Some conservative religious groups have claimed that, under the proposed legislation, they could be, in Henneberg’s words, “prosecuted for their religious beliefs if they believe that homosexuality is a sin, that it could gag ministers who preach that, or even if a church may not want to marry a gay couple. There is concern that they could face lawsuits as well.” Henneberg fails to report that Section 8 of the bill says: “Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by the Constitution,” and the First Amendment to the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The House Judiciary Committee’s report on the bill clearly states, “Nothing in this legislation would prohibit the constitutionally protected expression of one’s religious beliefs.” Henneberg does not report the committee’s finding. Later in the broadcast, anchor Bill Hemmer notes that supporters claim “there’s nothing in this law that will stymie the free expression of any religion” (see October 13, 2009). (Media Matters 4/29/2009)
The House Judiciary Committee accidently reveals the surname of the covert CIA officer who caused the death of Afghan detainee Gul Rahman in November 2002. The officer, whose last name is now known to be Zirbel, had Rahman doused with water then left him with few clothes in the cold. Rahman was later found dead (see November 20, 2002). The surname is uncovered in a footnote to a document drafted by lawyers acting for Jay Bybee, who is accused of improper conduct over his drafting of memos that effectively authorised the CIA to torture prisoners, which the committee posts at its website. Although sections of the document are redacted, it appears censors failed to remove Zirbel’s name in this one instance. After the document is highlighted in the press in late March, the name will be redacted in the version of it posted at the committee’s website, but will survive elsewhere on the Internet. (Mahoney and Johnson 10/9/2009 ; Horton 3/28/2010; Mayer 3/31/2010)
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