Via chrisc, Judge Burns has severed the trials of Brent Wilkes and John Michael, on account of the health problems of the latter.

Ajudge Monday severed the trials of ex-defense contractor Brent Wilkesand banker John Michael, who are charged in connection with thecorruption scandal that sent former Rep. Randy "Duke" Cunningham toprison.

U.S.District Judge Larry Burns postponed Michael’s trial indefinitely afterattorney Raymond Granger said his client had been diagnosed with viralmeningitis.Pretrialmotions are scheduled in Wilkes’ case Tuesday, with jury selection setto begin Wednesday. Opening statements are scheduled for Oct. 9.

Given that Michael seems intent on avoiding conviction by exposing all of Tommy K’s crimes, and Wilkes seems intent on avoiding conviction by … who knows, exposing all of Congress’ crimes? I don’t think the separate trials will help either one overly much. Though it may mean that no prostitutes will show up at John Michael’s trial.

One lingering suspicion that they’re just moving this off the books:

After several requests from the Homeland Security Committee callingfor a moratorium on the controversial use of spy satellite imagery fordomestic purposes, the Department has heeded the call and delayed itsplanned October 1st launch of its new National Applications Office(NAO). The Department has cited the need to address unanswered privacyand civil liberties questions from Congress – as addressed in theCommittee’s September 6th hearing on the matter and also in lettersfrom August 22nd and September 6th from Committee Members.

Rep.Bennie G. Thompson (D-MS), Chairman of the Committee on HomelandSecurity, released the following statement regarding the decision:

“Whilewe are pleased by the Department’s decision to go back to the drawingboard and get it right, we are troubled by its silence on the secondpart of our request: that Congress also be provided ‘a full opportunityto review the NAO’s written legal framework, offer comments, and helpshape appropriate procedures and protocols.’

Even putting aside my suspicion this is just another head fake to move surveillance beyond the grasp of Congress, Thompson’s point remains. The Administration thus far refuses to allow Congress some input into what appropriate use of satellite surveillance of civilians would be.

Well, at least for the moment Chertoff says he’s not going to use satellites to peek into my bedroom. That’s one victory, anyway.

Paul Kiel reported this morning that Brent Wilkes doesn’t want the government to mention the prostitutes that Wilkes engaged as part of his bribe scheme to influence Duke Cunningham (here’s the filing). And if the Court doesn’t exclude the testimony about prostitutes, Geragos threatens, he’s going to haul the prostitute whose calendar has been submitted as a business record into court so he can delve into her record-keeping practices. That might be fun.

But I’m more interested in the possibilities presented by two of Wilkes’ other filings. The first objects to the government’s attempt to exclude duress as a defense. Geragos argues that the case law the government cites doesn’t apply, either because the cases pertained to evidence excluded during jury instructions, or because the case wasn’t directly on point.

Here, without having seen the government’s case, the defense has no way of knowing whether the prosecution’s theories of liability and evidence will necessarily foreclose a necessity or duress defense. Tellingly, the government cannot cite controlling authority holding that extortion is not a defense to the offenses charged against Mr. Wilkes. Instead, the government makes its argument through meandering statutory construction analysis and metaphor. Indeed, the only case it cites for a holding regarding the application of federal law does not address whether extortion is a defense to bribery, but rather whether extortion and bribery charges brought in the same case are mutually exclusive.

It’s unclear whether Geragos is just objecting to the government’s attempt to exclude a defense based on extortion for kicks, or whether the government was correct in anticipating that that may be what Wilkes intends to argue. In any case, though, Geragos seems intent on postponing any decision about the appropriateness of a duress defense until after he presents his case.

It may not be the Texas oilmen we’d like to plead guilty, but it is going to make others think twice before they bribe dictators to do their oil deals.

Texas oilman Oscar Wyatt Jr. pleaded guilty Monday to charges that hepaid millions of dollars to Iraqi officials to illegally win contractsconnected to the United Nations oil-for-food program.

[snip]

During the trial, prosecutors demonstrated that Wyatt had such a closerelationship with Iraq that he was able to meet personally with Iraqileader Saddam Hussein in December 1990 to argue for the release ofAmericans being held as potential shields in the event of a U.S.-Iraqwar.

Prosecutors played a tape for the jury of the conversation in whichHussein promised Wyatt that Americans would be released as Wyatt andformer Texas Gov. John Connally spoke sympathetically about Iraq’splight.

The government insisted that Wyatt later took advantage of thatrelationship to secure the first contract under the oil-for-foodprogram and to continue to receive oil deals after other Americancompanies were shut off prior to the U.S. invasion of Iraq in 2003.

Speaking of Texas oilmen, last I checked there were ongoing allegations that Halliburton had bribed the Nigerian government to make their oil deals when one Dick Cheney was Halliburton’s CEO. I wonder if he’ll even be charged.

Walter Pincus analyzes one of the contracts that Henry Waxman is looking at to determine how much more Blackwater’s mercenaries are costing us than a law-abiding US soldier. Pincus notes that Petraeus makes roughly $493 a day. This doesn’t appear to include benefits; figuring benes make up 1/3 of someone’s compensation–which in the private sector is often about right, but in the military is probably too small–then Petraeus might cost us, the taxpayer, $750 a day. That’s for our top commander in Iraq, $750 a day.

And here’s how a Blackwater employee gets charged:

Average day-to-day personnel, $600/day salary paid by Blackwater
Blackwater bills Regency, $850/day for operators
Regency bills ESS an average of $1100/day for all types of employees
ESS charges Halliburton which charges the US based on a per-meal basis (I’m going to go out on a limb and guess that Halliburton has some profit worked into this)

A married Iraqi sergeant serving in Iraq makes about $170/day [updated for clarity].

No wonder Bush needs another $200 billion. He’s outsourcing the actual fighting of this war to forces that cost six times as much as it would if our military still did the fighting.

It’s a good think I chose Comcast’s oligopoly service for broadband internet service and not AT&T (my two easy choices for real broadband). That’s because I tend to point out that our government is becoming a wholly owned subsidiary of AT&T. And AT&T just changed its acceptable use policy to prevent you from using AT&T’s Toobz to tell others about the bad things AT&T is doing (via boing boing).

Failure to observe the guidelines set forth in this AUP may result inAT&T taking actions anywhere from a warning to a suspension ofprivileges or termination of your Service(s). When feasible, AT&Tmay provide you with notice of an AUP violation, via Email orotherwise, and demand that such violation be immediately corrected.AT&T reserves the right, however, to act immediately and withoutnotice to suspend or terminate Service(s) in response to a court orderor other legal requirement that certain conduct be stopped or whenAT&T determines, in its sole discretion, that the conduct may (1)expose AT&T to sanctions, prosecution or civil action, (2) causeharm to or interfere with the integrity or normal operations ofAT&T’s network(s) or facilities, (3) materially or repeatedlyinterfere with another person’s use of AT&T’s Service(s) or theInternet (4) damage or disparage the reputation of AT&T or itsService(s), or (5) otherwise present a risk of harm to AT&T orAT&T’s customers , employees, officers, directors, or agents.

[snip]

You are prohibited from engaging in any other activity, illegal ornot, that AT&T determines in its sole discretion, to be harmful toits subscribers, operations, network(s), reputation, goodwill, orcustomer relations.

This telecommunications thing is really heading to a really nice place, where we can’t use the Toobz to discuss how the Toobz are being used to watch over what we do and say. But I guess we should have anticipated that.

I’ve got two small points to make about Sy Hersh’s latest, which has been covered generally just about everywhere.

What had been presented primarily as a counter-proliferation mission has been reconceived as counterterrorism.

The shift in targeting reflects three developments. First, thePresident and his senior advisers have concluded that their campaign toconvince the American public that Iran poses an imminent nuclear threathas failed (unlike a similar campaign before the Iraq war), and that asa result there is not enough popular support for a major bombingcampaign. The second development is that the White House has come toterms, in private, with the general consensus of the Americanintelligence community that Iran is at least five years away fromobtaining a bomb. And, finally, there has been a growing recognition inWashington and throughout the Middle East that Iran is emerging as thegeopolitical winner of the war in Iraq.

This, it seems to me, invites a logical approach to combating this idiocy. The Bushies are admitting, at least among themselves, that their "laptop of death" campaign (and other silliness) didn’t work. It didn’t work, of course, because it was manufactured bullshit. From the line, " the White House has come toterms, in private, with the general consensus of the Americanintelligence community that Iran is at least five years away fromobtaining a bomb," I assume the intelligence community looked at how sketchy the whole laptop of death campaign was, and refused to condone Administration warmonger based on that rationale. So they’ve simply invented a new rationale. Any bets on whether or not the intelligence community gets to review the evidence behind the allegations about Iran supplying Iraqi insurgents?

In any case, their ability and willingness to pivot like this and change the entire rationale for their war in Iran ought to be reason enough to oppose the idea. That’s true, first of all, because it strongly suggests both rationales were just more manufactured evidence. But also because, as the Iraq war showed us, if we go to war without a clearly defined rationale and goal, we’re going to get stuck in yet another desert quagmire.

And we’re going to forestall the discussions about the real reasons we’d be going to war against Iran.

Gary Hengstler, Director Reynolds Center for the Courts and Media. Importance of having a judicial strategy for the media. Who makes editorial decisions now? previously, you’d give everyone access. BC of conglomeration, editorial decisions are not being made by journalists, they’re being made by commercial interests. Justice is in the entertainment and media field becoming a commodity. Tools to work with the media. Protective order. If you’re a journalist, they’re a gag order; if you’re a judge, they’re a protective order. Are they doing the reverse of what they were intended to, because in the absence of having the lawyers who know about the case, you’ll have the people who are speculating. To what extent is that counter-productive.

LeRoy Millette, Jr., Circuit Court, Prince William County. Presided over Bobbitt case, and John Mohammad case. One of the most important things in Mohammad trial was appointing really good lawyers. They agreed not to speak to the media. They considered the possibility that Mohammad would be tried in other jurisdictions. Incredible amount of discovery that was available–a lot of it that would not be allowed in trial. Did not put that information out for the media to have access to. Biggest problem: Malvo had confessed, that confession was suppressed in Fairfax, believe it was disgruntled law enforcement official. Main tool for a fair jury was change of venue. Gave jurors numbers, they used judges lunch room, questioned jurors to make sure they remained impartial. Want to make court room as normal as you can.

Terry Ruckriegle, Breckenridge, presided over Kobe’s trial (not the poodle, but the basketball player). Information got leaked before charges were filed. Decorum order, outlining guidelines for conduct. Approximately 20% of the filings were on the part of the media responding trying to open proceedings.
Court Reporter accidentally released portion of transcripts from closed hearings. Issued an order to delete and destroy those transcripts. "Of course, as you heard Lucy Dalglish say earlier, that’s prior restraint, which is like poking a sleeping bear with a stick." That order worked temporarily, Colorado Supreme Court upheld in 4-3 decision. Justice Breyer issued an order. Eventually released about 90% of those transcripts. Accuser’s civil attorneys launched a blitz as a result of the release, eventually withdrew from suit. Possibility of prosecutors, defense attorneys, other sources, you may have another source of information being put out to the public through the public.

This panel matches Communications scholar Kim Gross with Scott Bullock with the Institute of Justice and Steve Shapiro of ACLU. Gross talked a lot about framing, particularly the coverage of race and crime. Bullock is talking a lot about working with the media, particularly reaching out to opinion leaders.

Bullock is also talking about putting a client’s story up front in their narrative. Clients have to be comfortable speaking to the press–they even do media training. Importance of providing as much of the documents up front.

Institute of Justice does a lot of eminent domain cases (they did Kelo). But since there’s such a localized focus on these issues, it’s hard to get a national story out of it. Until they could put a national number on it, it didn’t really pick up on a national level. A 60 Minutes story appeared just before SCOTUS took Kelo. And when SCOTUS rules against Kelo, it led to a backlash against the practice of takings.

Shapiro emphasizes a point that Bullock made: you can lose in court and win in the court of public opinion. But more importantly, you can win in the court of law but lose in the court of public opinion (cites Brown v. Board of Education and Roe v. Wade). This suggests that litigation is just one tool among other advocacy tools. Shapiro emphasizes importance of giving lawyers media training–you wouldn’t send a lawyer to court without preparing the case, so you shouldn’t send a lawyer out without media training.

Shapiro mentions there are certain news outlets that aren’t interested in real debate (hmmm, wonder which that could be?), so he won’t go on those outlets.

Shapiro describes how the selection of clients connects to the framing of the narrative (that is, you can pick which client to build a case around, and you can time the first press conference). It’s the criminal justice stories the media is not covering at all that are the real concern.

Shapiro describes trying to find the message that worked with the American public to sustain Geneva Convention for Gitmo detainees. The reciprocity didn’t work (not least, because OBL isn’t going to extend Geneva Convention to our people). But what did work is for Americans to say, "we’re better than that."

On the comparative access panel, we got the European and Canadian perspective on media access, with a really interesting panel from Gavin Phillipson arguing that in the US the claims of the First Amendment are actually serving commercial interests. He argued that the British system, which made people responsible for leaks, was better.

Lucy Dalglish argued that we don’t have as much access as the others made out.

I asked whether the Wen Ho Lee and Hatfill cases are forcing us into a position akin to the British one Phillipson described–that media organizations have to pay the price for improper government leaks. Dalglish didn’t really respond, but the WaPo lawyer agreed afterwards that’s where we may be heading.

In the Institutional Response to Crisis, Judith Clair and Ron Dufresne used my example of the 80% of the blogosphere that was "dreck" (not my word") and the 20% that had acquired reputation. Clair talked about understanding the structure of the blogosphere before crisis, so you could reach out to the blogosphere. Dufresne pointed out that you might not want to reach out to the 80%–how do you identify who is what? This is, of course, a question Congress and the Courts and everyone else is trying to figure out.

Robert Levick said 56% of reporters are getting their story ideas from blogs, 80% from the web. He does institutional response stuff–say, representing drug companies. So from his perspectives, the fact that the blogs are focusing on things like bad pet food, putting his potential clients behind the mark, is a bad thing. [emptywheel editorial comment: Question is, could someone from his perspective ever flip that? Could you dump enough bloggers-for-pay out there to write credible stuff that was pro-corporate? Or will it always (hopefully) appear dubious??]

Levick talking about Katrina as the loss of Bush’s credibility, bc it was a breach of promise. Spinach and pet food–spinach is selling better than it ever has. Toys in China, we’ve got inspectors in China, which gives a symbolic fact to allow for resolution.

Levick, describing what one of his Arab clients have to say regarding whether lawyers should take the lead on crisis response or not: "Lawyers should be on the bus, they should not be driving the bus." Nervous laughs all around.

The first thing that happened on the Lacrosse case "lessons learned panel" (chaired by Chemerinsky) was the University Relations VP, John Burness, thanking "Dean Chemerinsky." As Chemerinsky said, "that’s a different media issue."

Burness then described a former employee of Cheney and Duke alumni calling to ask if there was any way he (or she) could help. Burness responded: You can get your former boss to go hunting again.

Sergio Quintana, reporter from local NBC station. Describing national media getting the access, and not the local media. And the local media getting lumped in with the national media and their mistakes. Emily Rotberg, one of the Chronicle’s (Duke’s student paper) reporters, echoes the sentiment. She describes a TV reporter using one of her front page stories.