Rove Subpoenaed Again

MSNBC host Keith Olbermann had George Washington University law professor Jonathan Turley on his show last night.

Olbermann: "Joe Wilson's dream of watching Karl Rove frog marched out of the White House in handcuffs is gone, but a new dream has been born tonight. What about a turd-blossom perp walk out the front door of Fixed News down the street?"

Turley told Olbermann that "the president has once again forced a constitutional crisis. He's basically telling Congress that even if I did politicize the Justice Department, even if there's crimes here, I can tell people not to give you evidence. And we have now this . . . long list of people that are refusing to testify upon orders of the president.

"Congress has to do something about that. If it's not going to become a virtual governmental unit, it has to do something when people look at the Congress straight in the eye and say, I just don't give a darn whether you're subpoenaing me or not. I'm not going to show up. So it's a direct challenge to the Legislative Branch."

A New Yoo Memo

Robert Barnes writes in The Washington Post that when Bush administration officials wanted to institute warrantless domestic surveillance after the Sept. 11, 2001, attacks, they had a problem: "A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the 'exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted.'

"But the administration did not want to follow FISA, because the law requires court approval. . . .

"This created a quandary that then-Justice Department lawyer John C. Yoo resolved in [an Office of Legal Counsel] memo."

The memo remains classified, but Democratic Sens. Sheldon Whitehouse (R.I.) and Dianne Feinstein (Calif.) managed to get one sentence declassified. According to Yoo: "Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."

Whitehouse was not impressed: "I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn't say that," he said in a statement. "Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day."

Blogger emptywheel (Marcy Wheeler) wrote about this on Wednesday, noting that after the sentence was declassified, Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs, sent a letter to Whitehouse and Feinstein, "trying to claim that Yoo's opinion is unremarkable."

From the Benczkowski letter: "The general proposition (of which the November 2001 statement is a particular example) that statutes will be interpreted whenever reasonably possible not to conflict with the President's constitutional authorities is unremarkable and fully consistent with the longstanding precedents of OLC, issued under Administrations of both parties."

Torture Watch

Matthew Lee writes for the Associated Press: "Secretary of State Condoleezza Rice on Thursday defended tough interrogation techniques for terrorism suspects approved by the Bush administration in the wake of 9/11, saying they were necessary to protect America from new attacks.