The Vice President continued his fleeting legal defense on CBS's, "Face the Nation" with Bob Schieffer. Cheney's documented attendance some Ford NSC Meetings may help overcome the apparent evidence destruction 2001-9.

We encourage TPM readers to review these and similar historical archives for evidence of Cheney's state of mind, and the legal standards he reviewed.

At the jump, we outline problems with his defense in light of information from the Ford Administration Archives, focusing on the Mayaguez Incident. Cheney was President Ford'sChief of Staff, and specifically mentioned on NSC documents.

We walk through sample archive material which would assist in prosecting Cheney and WH legal counsel.  The information relates to issues raised on TPMtv and in Dec 2008.

Overview

We encourage the TPM reading community -- including legal counsel working at CREW, Center For Constitutional Rights, EPIC, and others involved with the NSA litigation -- to expansively review the Ford Administration National Security Council meeting minutes. In those meeting minutes are specific statements -- which the meeting minutes document "concurrence" with affirmative head nods -- that personnel in attendance were in agreement.

The NYT today complained the Vice President was self-deciding which documents could or could not be reviewed; and that there were many millions of missing emails. This legal challenge of evidence in no way explains away the legal requirements the Vice President, as Chief of Staff to President Ford, knew would have been applicable Cheney is listend on the NSC meeting minutes.

We outline some of the sample points from the Ford Administration NSC Meeting Minutes. These highlight what Cheney, then as Chief of Staff and later as VP, should have known were legal requirements, and may help fill in the gaps on the missing OVP-WH emails re Geneva-FISA violations 2001-8. We've included in the citations sample questions which legal counsel may find useful when raising these issues with the Grand Jury and war crimes tribuanl. 

Specifics

There are two others important discussions which have occurred recently which the TPM community should review as background. First are the interesting notes on TPMtv (Aug 6, 2008) where TPM reviewed the Netroots Discussion on "what to do" with the war crimes issues. Second are the December 2008 statements Cheney made about the CIA program which he "approved". There's more to the story on both, which have relevance to the Vice President's statements on Face the Nation. 

This is not intended to be an exhaustive analysis of the Face the Nation transcript; nor of the Ford Administration Archives related to Cheney; nor of the TPM site related to war crimes or the NetRoots discussion; nor of the NYT coverage of the CIA's rendition. This note merely intends to illustrate how President Ford's disclosed archives may provide some assistance to those working to develop lines of evidence showing what the Vice President should have known were applicable legal standards. Arguably, once it can be shown what the Vice President knew or should have known was an applicable legal standard, the question turns not on whether there is evidence in any "missing" emails, but whether the Vice President knew the legal standards, but recklessly failed to secure evidence he would have known was foreseeably linked with a subpoena. 

General Rules of Evidence: DOJ OLC stated in memoranda that there was the risk that some of the POWs could bring claims against US personnel in foreign courts. This known, documented risk means OLC was communicating there was a legal requirement - going forward from the time the memo was written - to secure all evidence related to that foreseeable litigation. There was a known possibility that there would be subpoenas to gather evidence related to the DOJ OLC-recognized possibility of future litigation. Once, despite this known legal requirement to retain evidence in anticipation of a subpoena, that evidence is not preserved, adverse inferences can be made. 

State of Mind: One of the questions in proving intent is whether someone intended to specifically violate that law. This does not mean that circumstantial or indirect evidence cannot be used. Rather, it means that to illustrate the standards of conduct that the Vice President most likely knew were applicable do not need to rely on only evidence under the Vice President's control. Rather, his state of mind, what he knew should have been applicable, or his understanding of the law can be inferred from other information. This information relates to the information disclosed in the Ford Administration archives. 

Going Forward 

Counsel must review the Vice President's statements on Face the Nation in light of what the National Security Counsel was doing in the Ford Administration. Recall, under a war crimes investigation, there is not only no statute of limitation on the crime, there is no statute of limitation on which evidence the special counsel can use to prove the Vice President knew or should have known the legal requirements related to Geneva, war powers, combat operations, FISA, and other OVP-connected illegal activity. 

Sample:

Now VP Cheney attended this Jan 13, 1977 NSC meeting meeting.

From: National Security Council Meeting Minutes, January 13, 1977, page 1 of 8

Citation: Box 2, National Security Adviser. National Security Council Meetings File, Gerald R. Ford Library

As you review the entire file for January 13th, you'll see some curious parallels between what was going on then and the NSA-related leaks, the AG involvement (visits to the hospital), FBI reviews (through NSLs), and legal standards applicable to surveillance. These issues come into play as we dissect Cheney's comments about the CIA rendition reported in 2008; and his comments on Face the Nation, Jan 4th, 2009.

Not to be lost in the analysis are the Mayaguez-related NSC meeting minutes. Cheney would have known that Ford was concerned with Congressional reviews, legal compliance, and separation of powers. Between 2001-8 it cannot be argued that Cheney would reasonably conclude something else. The Constitution and laws had not changed. What changed was whether the Executive viewed itself as constrained by law or not.

As you read through the Mayaguez incident, note how the specific options were framed in terms of what Congress would or would not approve. President Ford and others factored into their options the issues of whether Congress would or would not look favorably upon using specific weapon systems to retaliate. Specific weapon systems included B-52 and F-4; there were different basing modes; and concerns about Thailand vs Guam considered whether the Thai government would or would not support activity combat operations over reconnaissance.Cheney would have known from the Mayaguez incident that Congressional concerns were important. The NSC discussion included specific concerns that Members of Congress would have questions about inappropriate use of Thai runways for combat operations directed at the Cambodians.

Foreseeable Challenge of Safeguarding Information During Wartime Requires Documented Legal Compliance Program

Argument: It cannot be argued that any US government official is bound to keep protected evidence of US war crimes or illegal FISA violations.

President Ford raised the problem of leaks.  Cheney would have known about this possibility, and likely developed a prospective plan to induce people to keep quiet about illegal activity. The approach isn't simply to impose consequences for illegal activity; but to segregate the information so that it would be nearly impossible for those involved to have the full picture of their illegal activity.  Cheney likely coordinated a plan to compartmentalize the planning activity, not to protect state secrets, but to mitigate the risk that there would be a leak: The people involved would, in theory, not have enough information in-house to detect a problem; and this would dissuade people from leaking classified information to the NYT. The issue on the table is what program the Vice President had in place to, with this much illegal activity, not face the prospect of the NYT having warehouses of evidence of (illegally) classified information related to illegal activity.

The Ford Administration NSC meeting minutes illustrate this point. Cheney would have known the difficulty with ensuring absolute secrecy about US government operations even during combat. It was also widely known that once B-52 were loaded with weapons at Guam that local sources would tip off the media and the Cambodians would likely know what the US was doing on Guam in advance of the US retaliation against the Cambodians. It is absurd for the Vice President or President to suggest that legal discussions about illegal use of NSA resources would not be leaked. President Ford raised the issue of leaks in the context of the NY Times: They supposedly had too much classified information to know what to do with. It cannot be argued that the Vice President - engaging in FISA violations - would not have a similar set of leaks.

The problem isn't the leaks; the issue is whether the Vice President reasonably expected everyone to keep quiet about the FISA violations, or the questionable basis for combat operations in Iraq. Yet, on Face the Nation, the Vice President contradicted himself on the WMD issue.

When you review the transcript you'll notice a problem: Cheney wanted Schieffer to believe that the US government, before the invasion, somehow missed the fact that the Iraqis had a problem with their infrastructure. This defies reason: The same people supposedly looking in "great detail" the WMD issues should have also noticed - while doing their inspections - that there was a marginal problem with the infrastructure. Schieffer raised the issue, and it appears someone prompted Schieffer through an ear piece to raise the WMD-infrastructure contradiction with Cheney. The Vice President did not adequately explain on Face the Nation why the US-connected intelligence that was supposedly scurrying around Iraq looking for WMD did not notice a problem with the infrastructure. The absurdity is that the US government apparently fabricated evidence about non-existent WMD; yet, when it came to supposedly obvious, self-evident problems with the infrastructure, the Vice President would have us believe the opposite: nobody saw anything out of the ordinary; and these problems were not factored into the pre-invasion plans. IN truth, the Vice President wants it both ways, which could for the basis for a prosecutor trap:

Either the Vice President is lying in 2008 about the infrastructure problems known going forward from 2003; or

the Vice President was lying in 2002 about the WMD risks.

The Vice President will find things that don't exist re WMD, but pretend that obvious things were not noticeable re infrastructure problems. This defies reason and forms the basis to make reasonable adverse inferences:

The decision to invade was not made because all options had been exhausted, but because of a pre-determined timeline which people like Rumsfeld would have carefully reviewed, to include detailed timelines. This decision to go to war was outside what Geneva permitted;

The planning to go to war did not factor into the analysis the reasonable planning required of an occupying power to analyze the existing infrastructure situation on the ground, and adequate provide for the post-invasion requirements. This again is a violation of Geneva;

The pre-invasion planning did not adequately ensure that detaining troops were adequately trained on the laws of war, and US legal counsel did not adequately meet their Geneva obligations to ensure that the US combat troops were adequately supported by competent legal counsel to ensure the US government's legal obligations under Geneva were met.

This calculus contradicts what the Vice President and DOJ OLC legal counsel would have us believe about the President. It is deception for the Vice President and his legal counsel to pretend that the President is not constrained by Congress; or that Congress has no role in influencing the President in which specific weapon systems he, as Commander in Chief, uses in wartime. A natural outflow of this calculus would affect the battlefield commander's decisions.

Cheney and others on DOJ OLC would (incorrectly) have us believe opposite: That the President during wartime, cannot be constrained by Congress; or that the combatant commanders cannot have Members of Congress looking over their head. The Vice President and President, through the DOJ OLC and White House counsel have perpetuated the myth that combatant commanders are free to do what they want; and that they are free from any oversight by Congress.

The orders must be lawful. The Vice President cannot explain why President Ford was concerned about Congressional oversight and questions about B-52 basing, the types of weapons used, and whether Thailand or Guam was or wasn't used to launch retaliatory strikes. Congress has the joint responsibility and legal duty to involve itself; and when the President, as now, refuses to permit Congressional oversight, the Congress is complicit with the illegal activity once Congress approves funds for that dubious Executive activity. Congressional malfeasance or refusal to conduct impeachment investigation is not a ratification of the alleged war crime; but alleged evidence of Members of Congress complicity with and malfeasance re the illegal policy.

Arguably, the NSC only acts upon the basis of a Presidential decision or written memoranda. The NSC isn't like the Politburo that acts above the President' or does things in secret without the President knowing about it. Going forward from 1977, legal counsel should review the specific situation where President Ford openly discussed the NSC process flowing from the Presidential decision; then contrasting this with what the NSC would have continued under Bush-Cheney 2001-8. It doesn't matter whether the emails are missing.

The question is whether there are policy memos outlining why the NSC was or wasn't 2001-8 doing the same as we read in the Ford Administration archives. There must be memoranda at least discussing the issues; or a discussion of why there should be no change in legal compliance requirements; or a discussion of what would permit the NSC to do things without a Presidential order. Either way, the President and Vice President knew with certainty what was going on. They're in charge, and had a legal duty to ensure those acting under them were doing what the Executive wanted. Inaction - by way of failure to prosecute - is not a ratification of the illegal activity; it's evidence, despite illegal activity, the President and Vice President did not exercise oversight responsibility over personnel under their direct command during wartime. Once this is proven, the US forces and contractors making these decisions have a problem. Either:

Geneva Issues Are Implicated

A. Unlawful Combatants

They were outside what the President said was permitted, and these US forces-contractors were not acting with lawful authority, and could be stripped of their Geneva protections; and/or

B. Disbarment

These protections can also be stripped of legal counsel who knew of this illegal activity and refused to enforce Geneva; or who were actively aware of the illegal conduct, but did not remove themselves from this illegal planning; and/or

C. Illegal Orders

 They were acting under orders of the President to violate Geneva.

Again, the point isn't that there is or isn't missing email; but that there is a reasonable conclusion that there were Geneva violations, Cheney's experience under Ford well informed him of these legal issues; yet, the Vice President would have us believe that these legal requirements were not applicable, despite his experience as Chief of Staff under Ford where these legal issues were debated.

Either the President or the Vice President was in charge. However, Cheney would have us believe the opposite. His twist on things from the December 2007 disclosures on Rendition paints a misleading picture about the relationship between the Vice President, CIA, and the rendition program. The Vice President is misleading the public when he said in December 2007 that the CIA brought to the Vice President various options. Cheney is misrepresenting how the NSC does things; and what really happened.

Contrary to the Vice President's statements in December 2007, the CIA was not - tail between their legs - seeking to get permission to do anything. There was no regard for legal compliance. The issue wasn't whether there was a lawful program, but the opposite: The players fully expected the activity to remain secret, out of the public eye despite the DOJ OLC cautions that there would be litigation.

But suppose the Vice President's statements about the CIA's "seeking permission" for the activity - are true: Then this would contradict what the Vice President did or didn't do: He didn't ensure there was a legal compliance program in place, as the DOJ OLC legal warnings about future litigation would have prompted.

The Ford Administration documents paint a different picture about the relationship between the President and Congress on the use of power, and the relationship between Presidential decisions - top down - flowing through the NSC, into the CIA, and the applicable of power against the POWs.

The Ford Administration archives also show that Rumsfeld was a stickler for details, going so far as to repeat his concern that there was not an adequate timeline to show how the various players would dovetail when the US was planning its response to the seizure. Rumsfeld was adamant that there be a timeline of events so that the decision makers could see how the various pieces fit together. Yet, with the rendition and POW abuses, we're asked to believe the opposite: That someone else did something, the President didn't know, and that the events fell together on their own without any Presidential coordination.

As you read through the archives in the Ford Administration when they discuss the basing options, note closely how the staff and President are factoring Congressional approval or disapproval in the various options. The negotiation points Kissinger and others raised at the meeting show that the Executive - not just President Ford - had a legal duty to comply with the Constitution, consider the impact Congress might have on the President, and review how the proposed negotiation points did or did not sit with Congress.

Yet, Cheney would have us believe the opposite: That once there was "war" the President could do what he needed; and that the Congress agreed with the FISA-NSA activity. This assertion defies what we can read in the Ford Administration archives about the legal requirement - which Cheney, as Chief of Staff - knew about: That the President had notification requirements; that there were budget considerations; that Members of Congress had to be briefed and satisfied with the approaches; and that specific weapons systems could only be used once the implications of their use were factored into the calculus.

Cheney would have us believe that the Congress agreed to the NSA-FISA violations; and that they were fully briefed. This is irrelevant. The FISA requirements do not permit the President, with concurrence of Congress, to violate the law; the opposite is true: FISA cannot be violated. Whether the Congress did or didn't agree in advance or in secret is a red herring. Cheney would have known, especially given his position in the Ford Administration, to heed the lessons of FISA; and understand the legal compliance issues stemming from the Ford Administration.

It's irrelevant that he found these rules or guidelines cumbersome. There was nothing preventing him as Vice President from working with Congress to reform the FISA and develop a weapon system, intelligence gathering too, or procedures that would get the job done. This Vice President did the opposite: Induced Congress to agree to something that violated FISA. Its irrelevant that Congress, after the violations, granted immunity to the telecoms. Congress has no judicial power to change the outcome of pending litigation against the telecoms. Had the Vice President's activities 2001-8 been reasonably lawful, there would be no reason to retroactively ask for immunity. It is a speculative argument for Cheney on Face the Nation to argue that, had there been no questionable conduct, there might be questions about why more wasn't done. Speculative arguments mean nothing: The question is what was the law; what did the Vice President know; and what did the Vice President do.

Dubious (Paraphrased) Statements on Face the Nation, Jan 4th 2009

The Vice President ~dubious statements~ on Face the Nation should be contrasted with the NSC meeting minutes from the Ford Administration:

~Congress was involved with the decision.~ The question is whether Members of Congress agreed to remain silent about illegal activity; and agreed to an illegal program outside what FISA permitted. The Ford Administration archives show that Cheney, as Chief of Staff, knew or should have known the importance of legal compliance, even during wartime. The aim of Cheney was to assert power in secret without complying with the legal requirements, a standard he knew or should have known from the Ford Administration.

~If there had been no Guantanamo or FISA violations, the question would have been why nothing was done.~ This is speculative and not a credible legal argument. The known standards are the conventions and FISA requirements. Cheney has not addressed why he did not work with Congress to Amend FISA; and why he had confidence, despite the leaks of the Ford Administration, that the NYT would not after 2001 get more information related to questionable government activity than it had in 1977.

~ The President recertified the program every 30 to 45 days.~ FISA doesn't permit this outside judicial review.

~ The AG signed off on the decision.~ The Vice President contracts himself. An AG approval, if the necessary condition and sufficient condition, would have meant that no Congressional approval was required for the activity. This is not within what FISA allows. Yet, the Ford Administration referred to CRA (Continuing Resolution Authority) as once check the Congress had if Ford did not timely notify Congress of his planned retaliation against the Cambodians. Cheney in 2009 is hard pressed to explain why the same Constitutional checks in 1977 would no longer apply 2001-2009.

~Congress hasn't impeached because the activity was appropriate.~ The Vice President is playing the game that Congressional inaction is a legal retaliation This if false. The question is whether Congress has refused to enforce the laws of war; and whether the House might impeach the Vice President or President after they leave office. The Constitution does not constrain when the House might impeach. There are legal arguments for impeaching Cheney after he leaves office.

~We do not believe the American public's civil rights have been violated with this NSA activity." This is a red herring and a meaningless, unenforceable "belief". It is designed to sound like something but it is carefully worded. Anyone can believe anything; when the Vice President says he doesn't believe civil rights were violated, this is irrelevant. The question is the law and FISA. Civil rights of Americans are not the same as FISA requirements on the Executive Branch. The question isn't narrowly whether the NSA activity did or didn't violate civil rights, but whether the President and Vice President did or didn't violate Federal law.

~Without impeachment, the President's actions are lawful." More This incorrectly implies that a failure of Congress to gather evidence legalizes the President's activity. Wrong, as the Constitution says the President and other officers remain subject to prosecution after leaving office.

Sample Citations From Ford Archives

Here are some notes from the Ford Archives with sample questions for TPM discussion Re the grand jury or war crimes tribunal consideration.

Importance of Constitutional Considerations in Executive Orders

One of the questions has been why this much illegal activity has been permitted to occur without adequate, timely legal challenges from within the Department of Justice, or outside legal counsel.

Bush 41, then CIA Director:

"[T]he Executive Order has proved to be a major contribution to reform by putting the Intelligence Community within the proper constitutional framework."

Look at line four (4) from the bottom, and ask about the internal audits which should have been done:

From: National Security Council Meeting Minutes, January 13, 1977, page 2 of 8;

Citation: Box 2, National Security Adviser. National Security Council Meetings File, Gerald R. Ford Library

It appears the Vice President did not anticipate that the illegal FISA violations and war crimes would be detected; or if detected that there would be litigation. The problem resulted when, after the illegal activity was disclosed, the evidence was destroyed without regard to whether the DOJ OLC legal memoranda - stating there were foreseeable requirements to produce evidence - would or wouldn't be met.

-          How does the Vice President explain the refusal to comply fully with FISA, Geneva, and the US Constitution?

-          Why is the Vice President claiming the President can issue an executive order after 2001 saying the CIA -- or persons indirectly supporting US combat objectives -- are permitted to conduct illegal activity in violation of Geneva on foreign soil?

-          How does the VP explain the disregard for the Constitution in the NSA programs which violated FISA; yet he was at NSC meetings where these legal compliance issues were raised, discussed, and compliance programs were implemented and audited to ensure fully compliance with the Constitution?

-          How does the VP explain one set of intelligence activities that showed deference to the Constitution as the Supreme Law in the Ford Administration; but this legal standard seems lost 2001-8?-          How does the Vice President explain the DOJ OLC concern with future war crimes litigation in the DOJ OLC legal memoranda; but no adequate compliance program to ensure FISA was followed to ensure all persons were treated fairly under Geneva?

-          What is the reason the Executive Branch has ignored the well known Ford Administration documents outlining the legal standards applicable to the intelligence community during combat operations?

-          Why should we believe that it was impossible for the US to fully comply with FISA when in 1977 the CIA director showed deference to the Constitutional principles this DOJ OLC and White House legal counsel have shown reckless disregard?

-          What was the DOJ OLC and White House legal counsel plan to explain away Cheney's presence at the Ford Administration National Security Council meetings discussing the same legal issues this Vice President says cannot be reviewed or publicly examined?

-          Who is the Vice President to argue that a second set of violations - under Bush 2001-8 - which matched the abuses prompting the Ford Administration legal reviews are not subjects of public interest and the FOIA process?

-          How many times do the reckless legal counsel working for the President and DOJ OLC expect to make under FISA and Geneva before they are lawfully challenged for their reckless violation of standards they have well known since 1977 were fully applicable to a President during wartime: FISA, Geneva, and Congressional oversight authority through CRA?  

Compliance Audits

Some people have the mis-impression that there are no audits in the intelligence community. Wrong. There are several ways. Once is an internal NSC audit. The second is through Congress. The public needs to understand what broke down; and what reforms are needed to ensure, when the system is compromised, what backup options exist to ensure there remain legal compliance audits.

Here, we see the NSC conducting audits; but the question turns on why the Congress, absent these internal audits, were not reviewing the President's intelligence activities.  The NSC discussed applying EO 11905 where the NSC would periodically review operations:

Citation: Box 2, National Security Adviser. National Security Council Meetings File, Gerald R. Ford Library

From: National Security Council Meeting Minutes, January 13, 1977, page 5 of 8

Note the process applying EO 11905

The NSC was, at one time, required to conduct these audits; and these reports are available for public review. The public needs to understand what plan there is to compel the Congress to produce and publish similar compliance reviews of Congress; and review whether or not the Congress is or isn't conducting adequate oversight of the intelligence community. Congress is hard pressed to explain why NSC could conduct self-audits for later publication; but Congress is not required to similarly produce public reports.

-          What is the plan of the Vice President to demonstrate that the legal compliance audits were fully done?

-          Absent this evidence, what can Congress show they were doing to fully conduct oversight on issues which the Executive was not reviewing?

-          What is the plan of Congress to publish in the National Archives records of internal Congressional reviews?

-          When will Congress agree that documents related to their FISA-Geneva oversight are public records which should, as Presidential records, be safeguarded and formally provided to the national archives for public examination?

Economic Intelligence

The NSC once had a functioning Economic Intelligence Board, This helped assess economic risks to national security.

See: "Economic Intelligence Board"

Citation: Box 2, National Security Adviser. National Security Council Meetings File, Gerald R. Ford Library

From: National Security Council Meeting Minutes, January 13, 1977, page 2 of 8

The current "out of the blue" economic crisis suggests the phrase "Economic Intelligence Board" as part of the NSC seems lost on the US after 2001. Rather, the US appears to have missed the boat on gathering economic intelligence, and ensuring the NSC was adequately positioned to assess economic risks to the US.

-          What role did the Vice President have in reviewing economic risks to the US after 2001?

-          Once the US decided to wage combat operations and consolidate intelligence, why was there no effort within OVP to review world economic risk factors within the NSC structure?

-          Is there an explanation from the Vice President why, given his experience in the Ford Administration with the EIB, that there was no adequate information about the world financial situation when conducting risk assessments to the national security of the United States?   

NSC Decision Memoranda

Cheney's been creating a smokescreen about what goes on between the Executive, NSC, and CIA agents. Contrary to his Dec 2008 statements where he suggested the CIA was taking a bottom-up approach to informing Cheney of their "cnocerns," the Ford Administration Archives illustrate the top-down relationship between the President, OVP, the NSC, and CIA activites.

"The NSC system was set in motion by identification of an issue requiring a presidential decision."

President Gerald R. Ford's Executive Order 11905:

United States Foreign Intelligence Activities February 18, 1976

[Text from the Weekly Compilation of Presidential Documents, Vol. 12, No. 8, February 23, 1976]

Once NSC is linked, there is a Presidential decision before that NSC action. NSC doesn't operate in a vacuum nor is it independent. This is the language that is fatal to the President: Once key personnel are identified on key DOD emails, this implicates the NSC; and would attach with that document a decision memoranda for the President. Once OVP-Cheney admits they were involved by approving a CIA operation re POWs, this would mean the President was approving that activity.The truth is that the CIA wasn't doing this on their own, but they were reacting to an external concern about legal compliance. The CIA rendition was premised on the assumption it would not be detected; and once detected, it would never be litigated. However, even foreign-placement of US-captured foreign fighters would never address the DOJ OLC concerns about foreseeable litigation.

-          What was the process the President used to notify the CIA of their requirement to participate in rendition of POWs to Eastern Europe?

-          Why should we believe the CIA really came forward with their concerns or their plans, as if the OVP was merely engaging in a ministerial review?

-          Why should we believe Cheney's assertions in December 2007 that he was merely approving something that the CIA had done on their own; and that the CIA had not been acting on orders of the President through the NSC to do something?

-          Why should we believe the VP's Dec 2007 assertions that the CIA was "concerned" with legal compliance, yet the record after 2001 shows us the CIA refused to keep video tapes connected with foreseeable litigation, as DOJ OLC said was possible?

NIE

The Ford Administration notes highlight the attention Rumsfeld gave to the NIE, and its relationship to policy. This is also evident in his attention to the details on the Mayagez incident.

[Quote, underlining in original, quotations added here, not in original]: "Secretary Rumsfeld: The NIE is a good one. The only question I have is how we tie it to policy judgments or make it a basis for policy rather than using it as policy. There are some net assessment judgments involved and they should drive decisions. There should be a very serious live review of these matters in the future."

From: National Security Council Meeting Minutes, January 13, 1977, page 8 of 8

Citation: Box 2, National Security Adviser. National Security Council Meetings File, Gerald R. Ford Library

Contrast the above statements Rumsfeld made in 1977 about the NIE, with those Cheney made on Face the Nation: You'll see a very different approach. On one hand the NIE stretches information about WMD to absurd levels; but the pre-war planning misses the obvious infrastructure problems and POW treatment requirements. The oversight raises the prospect of reckless war crimes planning by Cheney and others.

-          Why should we believe Cheney's assertion on Face the Nation that the US government was reasonably planning to invade Iraq when it (allegedly recklessly disregarded) "missed" obvious infrastructure problems, but it invented evidence of WMD threats?

-          Where is there an imminent threat from the existing WMD intelligence, as required under Geneva?

-          Why should the public believe this war was anything but a war of discretion along an artificial timeline without regard to resource obligations, legal requirements, POW treatment plans, or other Geneva obligations?

- Without a credible NIE, what was the basis for policy in iraq: If they can't get it right on infrastructure, what broke down with Congressional oversight through budget authority?

Tamm and Classified Information

Tamm is the DOJ Staff counsel who disclosed he spoke with the NYT about illegal FISA violations. The government has not adequately proven this activity was lawful, but attempted to immunize the telecoms by passing an "immunity" act. The US government has not prosecuted Tamm because it appears they cannot prove Tamm committed a violation: It is arguably not illegal to disclose evidence of illegal US government activity.Cheney as Chief of Staff to Ford would have known of this legal challenge, which Ford discussed with the NSC in 1977:

Kissinger: . . . "First you must be able to prove that information is really vital to national security and that is frequently not very easy to do." 

Citation: Box 2, National Security Adviser. National Security Council Meetings File, Gerald R. Ford Library;

From: National Security Council Meeting Minutes, January 13, 1977, page 5 of 8 ]

- Why is the Vice President surprised there were similar DOJ concerns 2001-2009 that President Ford in 1997 well discussed at the National Security Council meeting?

- How was the OVP involved with abuses of compartmentalization to hide evidence of illegal activity, and make it difficult for those involved with these FISA-Geneva violations to learn what was really going on; or work with others to disclose evidence of this illegal activity?

~ End of Sample Extracts From Ford Administration Archives ~

Conclusions

The reckless legal compliance programs 2001-9 are related to illegal agreements to ignore the legal issues well raised in the Ford Administration Archives. The Vice President's Jan 4th 2009 statements on Meet the Press are wholly inconsistent with the legal duties he knew or should have known, as documented in the Ford Administration Archives.

The President and Vice President have failed to adequately exercise their Constitutional obligations. Congres, in failing to conduct a timely impeachment investigation, has been complicit with this reckless abuse of power. The breakdowns in Presidential and Congressional oversight have left the US with poorly managed combat operations, reckless use of combat forces in violation of FISA, and a breakdown in oversight of critical economic risks facing the US.

The President and Vice President are most likely not fully cooperating with email and records archiving because they know their standard of conduct did not fully meet the legal requirements under both FISA and Geneva. They have contradicted themselves. The Vice President has made dubious assertions:

Asking us to believe the same people in the CIA who did not fully retain evidence were supposedly concerned with legal compliance issues; but the same people under NSC control were acting on their own despite known procedures putting the President at the head of those legal compliance requirements.

Congress, because it has been complicit with Geneva and FISA violations during wartime, has no interest in adequately conducting oversight of these issues. It is an error to believe the "political" process will adequately conduct oversight, gather information.

Rather, the question is what catalyst, short of a threat of external combat operations directed against the US, will compel the American legal community to fully embrace their legal obligations, and competently conduct a criminal inquiry into these legal issues.

TPMtv has correctly raised the issues of where do we go from here. The question isn't narrowly one of what do we do about the history; but what reforms are required to ensure this abuse of power does not happen again. One the table must include more than simple legislative reforms, but the options to modernize the Constitution to separate, dilute, and more effectively manage power. 

Constitutional reforms cannot be limited to amendments. The States should discuss the current Constitutional structure over needed modernizations. This state-level discussion cannot be with the threat of Federal level withholds. The Federal Government cannot be permitted to exploit the current financial crisis facing the states. It is a questionable negotiation tactic for the Federal Government to threaten to withhold needed state-level bailouts in exchange for State-level promises not to seek Constitutional reforms.

Recommendations

The TPM community should keep an eye on the Presidential libraries for other evidence which may help establish the frame of mind of those involved with the alleged Geneva-FISA violations 2001-8.

Fact finding must be done with an eye to more than confronting the abuses, but with insuring these abuses cannot occur again.

The reforms must include a serious discussion of Constitutional, not just legal reforms.