President Obama won’t nominate Mayer Brown partner Mark Gitenstein to head the Justice Department’s Office of Legal Policy after an outcry over his lobbying, Roll Call reports. A former top Judiciary Committee staffer for then-Sen. Joe Biden, Gitenstein drew the ire of Public Citizen and other groups. Liberal activists were particularly angry about his work on tort reform for the U.S. Chamber of Commerce. Gitenstein also served as an outside counsel for the Chamber’s Institute for Legal Reform, which led the push for a 2005 law limiting class-action lawsuits by pushing more of them into the federal court system.

The Office of Legal Policy oversees judicial nominations and legal policy. Gitenstein hasn’t registered as a lobbyist since July 2008, when he began work for the Obama campaign. Obama campaigned against the influence of lobbyists. He issued an executive order in January requiring senior appointees in his administration to recuse themselves for two years from any matters that “directly and substantially” affect their former clients.

House Speaker Nancy Pelosi (D-Calif.) gave a 26 minute interview on the Rachel Maddow Show tonight. She she covered a myriad number of issues, including her reluctance to grant immunity to ex-Bush administration officials who may have violated the law and Constitution. Excerpts from the transcript are below:

On warrantless wiretapping:

MADDOW:  You’ve been outspoken about contempt of Congress charges related to the politicization of the Justice Department and that investigation.  You have been less specific about how Congress should proceed on warrantless wiretapping and torture.

Why is that?

PELOSI:  Well, I haven’t been less specific, because we’re waiting what we had in the bill — which I did not like the bill, part of the bill that was positive, the FISA bill, was an inspector general.  We will have an inspector general’s report in July about the conduct of the government in the collection in our country.

On a proposed Truth Commission:

PELOSI:  Senator Leahy has a proposal, Truth and Reconciliation Commission, which is a good idea.  What I have some concern about there is it has immunity.  And I think that some of the issues involved here, like politicizing of the Justice Department, and the rest, may have criminal ramifications, and I don’t think we should be giving them immunity.

But we’ll find a way to go forward — because American people want us to go forward — but also making sure that the Constitution’s respected — and that’s what our issue is, whether you’re talking about separation of power, whether you’re talking about Karl Rove, Josh Bolten, and the others at the White House, not responding to subpoenas by the Congress on the subject of the Justice Department politicizing.  And so those issues are still alive.

We’re in the courts on those, we’re in negotiations with the administrations, both the Bush administration and the Obama administration, about how the executive branch responds to the legislative branch honoring our Constitution.  I don’t — I’m not — I don’t want to look back, I want to go forward, but as we try to have reconciliation, I’m a little hesitant to have immunity.

MADDOW:  And if that inspector general…

PELOSI: More than a little bit hesitant, let me say.  I don’t think we should have immunity for some of those issues.

MADDOW:  Then in terms of moving forward, if the inspector general report that comes out this summer suggests that there has been criminal activity at the official level on issues like torture, or warrant less wireless wiretapping, or rendition, or any of these other issues…

PELOSI:  No one is above the law. The president has said that.

MADDOW:  … you would support a referral for a criminal investigation, potential prosecution.

PELOSI:  Absolutely.  No one is above the law, but we have to go through 
– we have to have the facts

I mean, we are unhappy about certain things, we anecdotally know about certain things.  We will have the documentation of it, and we can go forward.

I don’t know what other criminal investigations are going on concurrently, because they are not usually publicly disclosed.  But I’m hopeful that as we go forward, the American people will have more confidence in their government and how we protect them.  Get liberty and security, they’re very compatible.  You don’t have to choose one or the other.

On what she knew about “enhanced interrogation techniques”:

MADDOW:  Let me ask you about one sort of thorny issue in this area, and I say it’s thorny because it has been invoked by the Bush administration and its supporters as a way to try to deflect calls for this accountability.

In October, 2001, you were briefed as a member of the House Intelligence Committee issues.  September, 2002, you were briefed on CIA, detention issues and enhanced interrogation issues.

Because of those briefings — and I know that you expressed concern for the NSA after that October, 2001 briefing.  You released that publicly in 2006.  But you didn’t express public concerns at the time after those briefings.

Does that raise a complication?

PELOSI:  No.  No, — the fact is, they did not brief…well, first of all, we’re not allowed to talk about what happens there but I can say they did not brief us with these enhanced interrogations that were taking place.  They did not brief us.  They were talking about an array of interrogations that they might have at their disposal.

MADDOW:  Techniques in the abstract, as if they were not being used?

PELOSI:  We were never told they were being used.

MADDOW:  You were told they weren’t being used?

PELOSI:  Well, they just talked about them, but — the inference to be drawn from what they told us was that these are things that we think could be legal.  And we have a difference of opinion on that.  But they never told us that they were being be used, because that would be a different story altogether.

We had many disagreements with them all along the way on how they collect information in our country and what they think might be acceptable.  They have never gotten any comfort from me on any of those issues, no matter what they want to say publicly.  And they know that I cannot speak specifically to the classified briefing of that kind.   
But I can say flat out, they never told us that these enhancement interrogations were being used.

MADDOW:  And they have said publicly — they have cited those briefings as essentially congressional consent for what they did. And , A – you say the consent was not given, and B – you say you can not explain the extent to which consent was not given because you’re not allowed to discuss the briefing. 

PELOSI:  What I’m saying to you is they never told us that those techniques were being used.

MADDOW:  But did they tell you that they think water boarding is legal now?

PELOSI:  They may have given the inference that there were some debate that, that water boarding could be of course I disagree with that.  But the issue is, are you going to use such a thing?  And they had not ever briefed us that.  That was the case.

But let me say this.  There is a whole series of meetings that relate to a collection of information in terms of FISA…

MADDOW:  Yes.

PELOSI:  … where they know that they had very strong resistance from me in my capacity as intelligence — the senior Democrat on the Intelligence Committee.  They’ve never had, we’ve never had in the leadership of the Congress, certainly a speaker of the House, a person with as much intelligence background as I have.  So I have some discernment about it, and that’s why, one of the reasons why I had such sorrow over the war in Iraq is that so many people voted for it when the intelligence wasn’t there to support that claim.

…

PELOSI:  And there is no justification on anything that — any excuse, justification, or anything, on any briefing that they have given.

On the irony of how she could not raise her objections in public because the programs were classified:

MADDOW:  Well, let me just ask you one last detailed question on that, though.  And I’ll ask you about Iraq as well.

But on the NSA, just a couple of weeks after 9/11, the very start of October, 2001, you were briefed on the NSA’s spying program and you objected.  You wrote a letter to the NSA saying, I’m concerned about this warrant less spying.

PELOSI:  Right.

MADDOW:  The NSA responded to you with a letter, and I know…

PELOSI: It’s all redacted ,it’s all redacted.

MADDOW: And I printed it out, I actually have it because it’s funny. So much has been redacted. What they released is absolutely nothing. 

PELOSI: Like “Dear Congresswoman” Redact, redact, redact.

MADDOW: Sincerely yours,

PELOSI: Sincerely yours,

MADDOW:  Exactly.  But was there something in that letter that, and I know it’s redacted, so it can’t be released publicly. But was there something in that letter that made you feel like, you know what?  I objected privately.  I should not object publicly?  I should not…

PELOSI:  Well, you can’t.  You can’t.

MADDOW: You can’t speak out about the content of what you have been briefed on – but isn’t there a way that you can say, I’m a senior member of the House Intelligence Committee, I believe that we are doing something that we should not be doing?

PELOSI:  You cannot do that publicly, and that’s something that I think we have to change in terms of — because your hands are pretty much tied.  And we were relentless with them on this score in terms of questioning them on what they were doing and fighting them on it.  And this is a very nature of battle, and it’s one of the reasons I’m looking very closely at some of the appointments in the Obama administration, to make sure that nobody who had anything to do with this in the Bush administration has any cloak of authority and experience, and should be appointed at any level, advisory or at any level in the Bush Administration.

MADDOW:  But you think the rules should be changed in terms of what members…

PELOSI:  No — who can you go to?  Can you go to the chief justice of the Supreme Court?  Can you — these are issues, mind you, that you can’t even talk to your staff about.  I have a security adviser, but we can’t talk — you can’t talk to anybody about it.

And that just isn’t right, because it gives all the cards to the administration.  And then if you say anything about it, you have violated our national security.  And it shouldn’t be that way.

MADDOW: It neuters the oversight rule for voters.

PELOSI:  It does, and that’s what we’re going to change, because you can’t — even with a Democratic president — you don’t want any president, Democrat or Republican, to have that kind of authority.  And that will happen. 
I think with the cooperation of this administration that, again, some of this has come out in terms of the attorney general being in the hospital.  And, you know, some of these things have come out because of leaks and the rest.  It gives you some picture of the lengths that they would want to go, that even their attorney general did not want to sign a letter to give the authority to go forward.

You can watch the entire interview below; the full transcript can be found here.

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Sorry guys, I know it hurts, but this is not Eric Holder’s twitter feed. For a second we thought our greatest fantasy had come true, then we saw this: “Some scary dudes in this gitmo place. May have to ship em to China lol.” Whoever this Holder impersonator is, he/she’s quite a character: “Back from gitmo lol. They have a McDonalds and a BK and a KFC and surfing. Don’t know why anyone would want to leave.”

Three members of the Senate Judiciary Committee sent FBI Director Robert Mueller a letter today praising the bureau’s decision to cut off contacts with the Council on American-Islamic Relations (CAIR). I broke news of the FBI’s new policy last month here for the Investigative Project on Terrorism.

CAIR is a prominent Muslim advocacy group. The FBI had worked closely with CAIR since the 9/11 attacks on civil rights issues and community outreach, and CAIR had used those contacts in its own literature to promote its legitimacy.

But the problem is: CAIR was also named an unindicted co-conspirator in the government’s successful prosecution of a Texas-based Islamic charity with ties to Hamas. A Dallas jury convicted former officials of the Holy Land Foundation for Relief and Development in November on all counts of providing financial and political support to Hamas, a US-designated foreign terrorist organization.

CAIR’s chairman emeritus, Omar Ahmad, was also named an undicited co-conspirator. FBI wiretaps released at trial showed CAIR’s executive director, Nihad Awad, participating with Ahmad in early Hamas-related organizations meetings with the charity’s officers. FBI Agent Lara Burns at trial called CAIR a front organization for Hamas, and evidence seized by the bureau showed CAIR was conceived precisely to beef up Hamas’s clandestine PR efforts in the US.

So for years, we had some members of the FBI working on community outreach with a group that other members of the FBI had linked to Hamas. Moreover, the Holy Land prosecution was a big one for the Justice Department. A previous trial in 2007 had ended in a mistrial and acquittal on some counts. Prosecutors in the Counterterrorism Section led by Barry Jonas and the US Attorney Office in Dallas revamped their arguments and won on second try. Had they lost, it would have been a huge public relations blow, as the government had failed to win convictions in some other prominent terrorism-support cases.

New York Democrat Charles Schumer and two Republicans, Jon Kyl of Arizona and Tom Coburn of Oklahoma, signed the letter to Mueller. Of the FBI decision to end contacts with CAIR, they wrote: “We certainly support that action, and it would be helpful to us to understand the situation more fully.”

My take on it: The FBI is a big bureaucracy, and the people meeting with CAIR hadn’t fully digested the evidence against it in the bureau’s own files. Hey, it happens. But given the stakes for the government in the second Holy Land trial, the situation apparently became untenable. Go here to read a letter from the bureau’s Oklahoma City Field Office to local Muslims about its decision to end community outreach programs involving CAIR. The decison to end contacts with CAIR was made quietly at FBI headquarters last summer, with orders filtering down to field offices last fall.

The Department of Justice will support the Bush administration’s position in District Attorney’s Office for the Third Judicial District v. Osborne, turning down a request from the Innocence Project to reverse the previous administration’s position, reports BLT: The Blog of Legal Times.  The case involves prisoners’ access to DNA evidence in postconviction proceedings in the state of Alaska.  Alaska’s view is that prisoners do not have the constitutional right to obtain DNA evidence to help them prove their innocence, even if the prisoners pay all of the expenses.

President Obama’s decision in this matter has caught some by surprise, given the success of DNA evidence in exonerating prisoners, as well as the president’s support for access to DNA evidence when he was a state senator in Illinois.

The specifics: In 1993, William Osbourne was convicted of sexual assault and kidnapping in the death of a prostitute.  During the trial, Osbourne’s lawyer did not request a DNA test of semen in a condom found at the scene of the crime.  When Osbourne appealed his conviction, Alaska courts said he was not entitled to DNA evidence for testing.  That ruling was reversed by the U.S. Court of Appeals for the Ninth Circuit, and now Alaska has brought the case before the Supreme Court.

Deputy solicitor general Neal Katyal will be representing the government, while Peter Neufeld, co-founder of the Innocence Project, will represent Osbourne.

You knew it was too good to be true when we reported that former White House advisor Karl Rove had agreed to testify in front of the House Judiciary Committee. Well, you were right. At the time, Rove’s attorney agreed that President George Bush’s invocation of executive privilege only applied to the U.S. Attorneys matter, and not the Siegelman affair (click here for more background on the privilege claim).  Now Rove’s lawyer Robert Luskin says that Rove will not appear to testify before House Judiciary Committee Chairman John Conyers (D-MI) if Conyers is unwilling to allow Rove to set boundaries to his own testimony, reports Keith Perine at Congressional Quarterly.  The deadline for Rove to comply with Conyers’s most recent subpoena is Feb. 23.

This morning, David Weigel with The Washington Independent caught up with former Attorney General Alberto Gonzales as he was leaving the Capitol Hill Club.  Weigel asked Gonzales if he would participate in a truth commission, as proposed by Senator Patrick Leahy (D-Vt).  Gonzales responded:

“My view has always been to be as cooperative as possible, and that’s what I’ve been with respect to everything. As far as I’m concerned I’ve got nothing to hide and I’ll cooperate. Every time I’ve been asked to cooperate, I’ve cooperated. In terms of what happens in the future, I’m not going to comment on that, but that is what I’ve done in the past.�

“I think only a fool would be unconcerned about any kind of commission or investigation in this political town and in this political climate. Having said that, again, because I feel like I’ve got nothing to hide and I’ve done nothing wrong, I’m not worried about the truth, so long as what we’re talking about is the truth and things don’t become politicized.� 

Brad Delong, a professor of economics at U.C. Berkeley and prolific blogger, has written a six-page letter to Berkeley’s chancellor Robert Birgeneau requesting the dismissal of Boalt Law professor John Yoo.  He put special emphasis on the fact that he had wanted to write the letter for a long time, but could not hold back any longer in the aftermath of Newsweek’s exclusive about the conclusions reached by the Office of Professional Responsibility in regards to professional misconduct in the writing of the torture memos.

Delong’s letter is well worth reading as he convincingly explains why dismissing professor Yoo is not only justified, but is in the best interest of the university as well as the notion of academic freedom.

The full letter, which he posted on his blog with the subject line: “I Never Thought I Would Grow Up to Be the Kind of Crank Who Wrote Letters to the Chancellor Trying to Get My Colleagues Fired…” can be read below:

 

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Earlier today, the D.C. Circuit Court overturned a ruling made by U.S. District Judge Ricardo M. Urbina last October that 17 Chinese Muslim Uighurs had to be released into the United States from Guantanamo Bay since they were no longer considered “enemy combatants” and their safety could not be guaranteed if they were returned to their homeland China.  

All three judges agreed to overturn the ruling, while two of them: Judge Karen LeCraft Henderson and Judge A. Raymond Randolph agreed that the courts did not have the power to compel the United States government to admit foreigners into the country.  In his opinion, Randolph made the point that ”Never in the history of habeas corpus has any court thought it had the power to order an alien held overseas brought into the sovereign territory of a nation and released into the general population.”

But Judge Judith W. Rogers, while concurring with Randolph and Henderson, argued that the courts ultimately had the authority to order of the Uighurs into the United States, but admitted that he had acted “prematurely.”  She argued that he had acted before evaluating relevant immigration statutes that could have made their release into the United States unlawful.  Government lawyers argued that the Uighurs received military training at camps run by a group later determined by the government to be a terrorist organization.  They argued that immigration laws prohibit people who received such training from entering the United States.

The ruling creates another bind for President Barack Obama, who now has to decide what to do with the detainees.  Diplomatic efforts to get another country to agree to accept the detainees have failed thus far, mainly due to Chinese pressure.  If released to China, the detainees would likely be imprisoned by the government.

Senate Majority Leader Harry Reid’s (D-Nev.) chief counsel, Ron Weich, will be nominated by President Obama for head of the Justice Department’s Office of Legislative Affairs, reports BLT: The Blog of Legal Times.

Weich held different committee assignments from 1989 to 1997, including time as counsel to Sen. Arlen Specter (R-Penn.) on the Senate Judiciary Committee, counsel to the Senate Labor and Human Resources Committee, and counsel to the Senate Judiciary Subcommittee on the Constitution.  Weich then spent eight years as a lobbyist at Zuckerman Spaeder.  Some of his clients included the American Civil Liberties Union, the American Psychological Society, and the Leadership Conference on Civil Rights.  Since then, Weich has been the top lawyer for Reid and helped shepherd then-Attorney Genral nominee Eric Holder through his confirmation hearings.