The folks that read and participate at Emptywheel are, in my humble opinion, without any question the best anywhere at deconstructing email issues and cases, and it sure looks to me like some of the people litigating these various matters are picking up on that too. That being the case, who could possibly deny you more fodder?

The Democratic National Committee has been suing the DOJ in DC District Court to obtain some 68 pages of emails relaing to the US Attorney purge. The main reporting to date has been from Politico:

A federal judge has handed the White House a legal victory in a battle with the Democratic National Committee over e-mails related to U.S. attorney firings.

District Judge Ellen Huvelle of the U.S. District Court for the District of Columbia ruled Thursday that the DNC does not have a right under the Freedom of Information Act to 68 pages of e-mails sent between White House and Justice Department officials simply because the White House e-mail traffic was transmitted on a server controlled by the Republican National Committee.
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In dismissing the DNC lawsuit, Huvelle ruled that it was "based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications."

Additionally, Huvelle decided that just because an RNC server was used to send the messages — 68 pages out of more than 5,000 which have been denied to the DNC — it is not enough to automatically disqualify the Justice Department from claiming a FOIA exemption in refusing to release them.

"It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications," Huvelle wrote in her opinion.

I think there are two issues to be contemplated here. The first is the relative propriety of Huvelle’s decision, and foundation therefor, in the DNC case, and the second is what implications it may have for the greater mass of contentious email issues that are percolating in our midst. Here is the full opinion rendered by Judge Huvelle in Democratic National Committee v. United States Department of Justice, CV 20070-712 (ESH-DDC).

There were originally 5,337 pages of emails responsive to the DNC’s FOIA request, but agreement was reached as to all but 68 pages. All of the e-mails at issue were sent between officials in the White House and the Department of Justice and were sent to or from an e-mail address with the domain name “GWB43.com” pertain to matters such as "responding to an upcoming Congressional hearing, formulating official responses to inquiries from outside the Executive Branch, suggesting a plan of action for the appointment of a U.S. Attorney or conferring on issues arising from such appointments, recommending revisions to documents, and pfor the hiring of new Department personnel." The sole basis for the DOJ production refusal was FOIA Exception Number 5, contained in 5 USC 552 (b)(5) which provides that the FOIA

does not apply to matters that are . . . inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . .

The critical discussion by Judge Huville is, in condensed form, as follows:

First, plaintiff’s position is based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications. While plaintiff is correct that RNC e-mail accounts were originally “supposed” to be used exclusively for political communications (see Pl.’s Ex. 3 at 5), it is clear from plaintiff’s own exhibits that, in fact, this supposition did not become reality.
…
It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications.
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Given this apparently flagrant violation of the Presidential Records Act, plaintiff contends the Court should not treat the requested e-mails as official presidential communications to which the presidential communications privilege applies under FOIA.
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However, the administration’s violation of the Presidential Records Act is, as plaintiff acknowleges (id. 8), not before this Court, and it cannot serve as a basis for determining whether the government has properly invoked Exemption 5. Moreover, plaintiff fails to point to any case law that would indicate that the server where an e-mail is housed is relevant to its treatment under FOIA. Rather, under D.C. Circuit precedent, it is the content, not the form, of the communication that determines whether it is properly exempt under Exemption 5.
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Therefore, because the form of the document does not factor into the analysis under FOIA, the Court cannot adopt a per se rule that any e-mails sent on the RNC servers are not covered by FOIA. In the absence of such a per se rule, the remainder of plaintiff’s argument collapses.

That is the Reader’s Digest synopsis, but the devil is always in the details, so if this really interests you, by all means, read the entire decision with footnotes. I think the first thing to keep in mind is that this decision was made strictly within the context of a FOIA request; the DNC would not have had standing in any other circumstance, so this is a pretty limited ruling and I don’t think anyone should get to exercised that it went south.

Notwithstanding the above, I have some issue with the way the decision blithely dispensed with the executive privilege element, which really was given short shrift. The court strains to make the claim that the DNC relies solely on the argument that the emails are reachable because they were on the RNC server; however, skips right over the impact that the fact that they were distributed to the independent third party and how that seriously undermines the executive deliberative process privilege claim. The White House knowingly and intentionally used this non-secure and violative means of communication, that distributed through non-involved parties; if they don’t act in any manner consistent with a privileged communication, how is this not a privilege buster? There are certainly arguments that might could be made to overcome the thought that this was a direct waiver of privilege, but it is pretty hard to understand how the Court, even on it’s own if necessary, didn’t address the clear prima facie appearance of a direct waiver. Bottom line, if it is viewed through the restricted lens the court set forth, this might be a correct decision; given the more detailed full view that should have occurred, not so much maybe.

Now for the more fun part of this exercise, namely what can we take away from the decision? I think there are several goodies in there that may be useful in various places of interest to us. First off, even Judge Huvelle can’t escape making the conclusion that the facts exhibit willful violations of the PRA and Hatch Act, notwithstanding her reticence in making such a formal determination because that was not issue before the court. Albeit it in dicta, there is a good deal that supports a lot of arguments and suppositions that have long been made in the discussions at Emptywheel and TNH. I believe Marcy, and many others will find the contents of Footnote 3 of the decision to be of interest.

Pustay has categorized the 68 contested pages into six numbered groups. Group 3 includes an e-mail from the White House to DOJ forwarding an e-mail about an impending Congressional hearing and soliciting assistance and an e-mail chain regarding an internal White House discussion about how to respond to an inquiry from the North Dakota Attorney General’s Office. Group 6 includes a set of e-mails from the White House to members of the Judicial Selection Committee (“JSC”) advising on dates, times, and locations of JSC meetings and listing the participants and portions of two e-mail communications discussing a proposed plan of action regarding nominations. Group 21 includes one e-mail chain between the White House and DOJ in which the correspondents discuss potential candidates for a United States Attorney position and develop a selection process. Group 25 includes portions of two e-mails chains discussing how to handle DOJ’s response to a controversy regarding the nomination of a United States Attorney and portions of one e-mail chain in which the response to a news article about the replacement of a U.S. Attorney is discussed. Group 26 consists of various e-mails regarding the impending appointment of United States Attorneys, including a discussion of hiring issues and background information on the candidates. Finally, Group 28 is comprised of portions of e-mail communications discussing the merits and logistics of hiring of a particular individual to work at DOJ.

Shew! I did it! I survived for a full week without WiFi or wireless.

And it was nice.

A million thanks to bmaz for watching the blog this week–looks like you guys had a lot of fun without me. And a million thanks for the birthday wishes.

I’ll post more substantively once I wade through the accumulated emails and posts and news. But for now I’ve got the following questions as I read through what you’ve guys have been reading through.

• If the White House destroys hard drives of people who move on, and the people from whom we wanted email in January 2006 included three people who had already left OVP (Cathie Martin, Jenny Mayfield, and Scooter Libby), then does that mean we still don’t have emails from the relevant period for these three people (particularly the last two)?
• If Brent Wilkes’ complaints about improper leaks of his impending indictment win him a get out of jail free card, does that mean Eliot Spitzer is out of all legal danger (even while the DA is making it known that he suspects Spitzer perjured himself)?
• What does Eric Lichtblau mean when he refers to Dick Cheney’s tense relations with the NYT in December 2005?

As New York Times Editor Bill Keller, Washington Bureau Chief Phil Taubman, and I awaited our meeting, we still weren’t sure who would make the pitch for the president. Dick Cheney had thought about coming to the meeting but figured his own tense relations with the newspaper might actually hinder the White House’s efforts to stop publication. (He was probably right.)

After all, this meeting took place just a month after Cheney’s Cheney had been indicted for lying to cover up Cheney’s apparent order to leak Valerie Wilson’s identity to Judy Miller. That indictment came after the NYT made an ill-advised attempt to protect Libby–even after they knew Judy’s testimony was proof that Libby lied under oath. After having been served so well by his selective A1 cutout leaks to the NYT, why was he so cranky right after Libby was indicted?

A couple of days ago, we discussed what really happened, and what the longer term implications might be, in the Bear Stearns forced sale/bailout over the March 15-16 weekend. There have been several things that have come out since then that are right on point with what we were all chewing on. Some are directly on point to the Bear deal, some are tangentially related and some are just general economic/financial news and thoughts. Masaccio wanted somewhere to jaw about things economic related; and what masaccio wants, masaccio gets. In no particular order then, here are some of the nuts I have stumbled on; please add any and all of your own in the comments.

1) This one I added as an update to the first post, but it still sticks in my craw a little bit. There simply is no such thing as a conflict of interest to the group currently running our country I guess (and when a Supreme Court Justice doesn’t feel obligated to be concerned over interest conflicts, why should anyone else I suppose). At any rate, turns out that JPMorgan Chase & Co head Jamie Dimon held a Federal Reserve board seat while Chase was in negotiations with the Federal Reserve over a deal to acquire Bear Stearns at an insanely low price. How convenient.

2) If there is any doubt about the fact that what is happening in relation to investment houses and the fear they sense from the financial struggles as to their continued ability to leverage and manipulate derivitive financial instruments, contemplate this:

Eight of the 10 largest donors so far to the U.S. presidential campaigns are Wall Street banks, led by Goldman Sachs, according to research Thursday from a political watchdog group. Goldman and its executives have pumped $1.7 million into the races, with 70 percent going to Democrats Barack Obama and Hillary Clinton, despite former CEO Henry Paulson’s present job as treasury secretary for the Republican Bush administration.
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After Goldman, top-giving banks are Citigroup, Morgan Stanley, Lehman Brothers, Merrill Lynch and JPMorgan Chase, which is buying troubled rival Bear Stearns in a government-engineered bailout.

3) Remember my question as to whether this was all a one off deal or was setting up some type of revolutionary precedent? Arguably this is slightly different than the $30 billion guarantee in the Chase purchase, but still, the part where the Fed makes large loans to investment houses, sure looks like it is being set up by both parties to become the new norm:

Big Wall Street investment companies are taking advantage of the Federal Reserve’s unprecedented offer to secure emergency loans, the central bank reported Thursday.

Those firms averaged $32.9 billion in daily borrowing over the past week from the new lending facility, compared with $13.4 billion the previous week. The program, which began last Monday, is part of the Fed’s effort to aid the financial system.

On Wednesday alone, lending reached $37 billion.

The Fed, for the first time, agreed on March 16 to let big investment houses temporarily get emergency loans directly from the central bank. This mechanism, similar to one available for commercial banks for years, will continue for at least six months. It was the broadest use of the Fed’s lending authority since the 1930s.

4) I don’t know what the implications of this one are, but the long time chairman of Bear Stearns just liquidated his holdings in the company. Ouch.

Bear Stearns Cos. Chairman James Cayne on Thursday dumped his entire stake in the embattled investment bank for $61 million as it appears closer to a takeover by JPMorgan Chase & Co.

Cayne sold 5.66 million shares for exactly $10.84 a share on March 25, according to a filing with the Securities and Exchange Commission. His stake was once valued at about $1 billion when the stock was trading at $171.50 per share.

5) You know, none of the financial collapse mechanisms that got us to where we are today came about by chance, these were features of the economic system that has been purveyed by the Republicans, and most critically, the Bush Administration. They didn’t just put these mechanisms in place, they goaded and bullied people into using them in order to fuel their otherwise pathetic and hollow economic system and tax cuts. The next card to collapse in this house is home equity loans:

Americans owe a staggering $1.1 trillion on home equity loans — and banks are increasingly worried they may not get some of that money back.

To get it, many lenders are taking the extraordinary step of preventing some people from selling their homes or refinancing their mortgages unless they pay off all or part of their home equity loans first. In the past, when home prices were not falling, lenders did not resort to these measures.

Such tactics are impeding efforts by policy makers to help struggling homeowners get easier terms on their mortgages and stem the rising tide of foreclosures. But at a time when each day seems to bring more bad news for the financial industry, lenders defend the hard-nosed maneuvers as a way to keep their own losses from deepening.

6) The candidates have all made major economic speeches in the last few days. Obama is here. Clinton is here. McCain is here. As masaccio has pointed out, McCain is, of course, a blithering idiot. I will leave it to you all to discuss the rest. Again, this is NOT a forum for engaging in the battle of the candidates between Obama and Clinton. Don’t violate the spirit of EW’s rules she left us with; it would make her sad on her birthday!

Anything else you all have on the finance/economic front, have at it.

UPDATE: I knew this whole Bear Stearns, slam it through on the weekend, thing looked like like a craven power play of the entitled set, and that was really my question in the Sometimes You Eat The Bear, and Sometimes The Bear Eats You post. Guess what, I may (still even odds though) not be quite as stupid as I appear! This just hit the New York Times:

The Bush administration will propose on Monday that Congress give the Federal Reserve broad authority to oversee financial market stability, in effect allowing it to send SWAT teams into any corner of the industry or any institution that might pose a risk to the overall system.

The proposal is part of a sweeping blueprint to overhaul the country’s hodge-podge of regulatory agencies, which many specialists say failed to recognize rampant excesses in mortgage lending until after they triggered what is now the worst financial calamity in decades.

According to a summary provided by the administration, the plan would consolidate what is now an alphabet soup of banking and securities regulators into a trio of overseers responsible for everything from banks and brokerage firms to hedge funds and private equity firms.

While the plan could expose Wall Street investment banks and hedge funds to greater scrutiny, it avoids a call for tighter regulation. The plan would not rein in practices that have been implicated in the housing and mortgage meltdown, like packaging risky subprime loans into securities carrying AAA ratings.

Well, what do you know? They are not only not going to clamp down on derivitives and the other Enron like aspects that have caused this mess, they are going to consolidate regulatory agencies (read see to it that there are a lot less). Wonderful; do we get a huge corporate tax cut with that I suppose?

As you may recall, there is a lot of spooky intrigue raising it’s ugly head lately in South America. It is hard to tell if the Bushies are just trying to screw up every continent before they leave office, or if there is some type of master plan, especially between South America and the Middle East. As a quick recap, early in March we saw Soviet Russian arms dealer extraordinaire Viktor Bout arrested in Thailand on what appears to have been a US warrant stemming from information "obtained" in a Colombian execution raid into Ecuador to kill Raul Reyes, the FARC Number 2, based upon US suggestion and intelligence. The upstart of all that seemed to be that FARC was trying to either obtain and/or sell uranium. Oh and by the way, the rumor was nicely planted that FARC had been given $300 million to get involved in this uranium terrorism by Hugo Chavez our new arch-enemy from Venezuela. Then, of course, there is our old friend Chiquita Bananas who, as opposed to Chavez/Venezuela, we do know has supported FARC terrorism. Jeebus.

The latest piece of this convoluted puzzle comes today with the announcement that the FARC uranium has been "found".

The seizure of up to 66 pounds of low-grade uranium linked to the FARC rebels adds weight to the evidence found in a captured rebel laptop that the guerrillas were interested in buying and selling the material, according to the Colombian Defense Ministry.

But the 30 kilos of uranium found Wednesday in plastic bags dug up about three feet from a road in southern Bogotá was "impoverished," the ministry said, and in that state could not have been used to make a radioactive bomb.

Uranium is the new "Colombian Gold"! The bit about the uranium being found 3 feet from the road to the FARC camp is almost hilarious. Almost. Um, let’s see, Chavez, terrorists, uranium and a fortuitously discovered laptop computer. That doesn’t sound at all like any Fourth Branch government we all know and love does it? Especially not on the heels of the recent visit the Saudis received from Cheney.

The other half of this two headed post involves a different arms merchant freakshow, this one being underwritten by the US government. In a long expose just published in the New York Times, the story is told of a couple of skateboard punk looking ammunition suppliers in their early 20’s, from Miami, that have been given US contracts worth hundreds of millions of dollars to supply ammunition and ordnance to our Afghani partners.

Since 2006, when the insurgency in Afghanistan sharply intensified, the Afghan government has been dependent on American logistics and military support in the war against Al Qaeda and the Taliban.

But to arm the Afghan forces that it hopes will lead this fight, the American military has relied since early last year on a fledgling company led by a 22-year-old man whose vice president was a licensed masseur.

With the award last January of a federal contract worth as much as nearly $300 million, the company, AEY Inc., which operates out of an unmarked office in Miami Beach, became the main supplier of munitions to Afghanistan’s army and police forces.

Fast Times At Ridgemant High The Pentagon I guess. The NYT story is long, but stunning in it’s depiction of incompetence; and I am talking about our government and the Pentagon, not the skateboard punk arms merchants (although they are rich in that detail too).

What in the world is our government doing?

UPDATED to correct spelling error on "Colombian" per suggestion of BrendanX.

That whole financial disaster, black hole rivaling the Great Depression, collapse of the American economy thing is oh so last week eh? Because from what I can tell this week, Britney has been on a sitcom, Barrack (gasp!) has listened to a fiery preacher man, Bush and McCain say stupid things (okay, that is not news, but it is being reported on), and Hillary (gasp!) won’t quit a race that is essentially neck and neck (and this reference does not make this a thread for discussion of the horserace, so give that a rest). What happened to the biggest financial crisis in our nation’s history?

What was the the Bear Stearns takeover/bailout about anyway? Who really benefitted in the present? What does it portend for the future? I don’t have these answers; but I have a lot of questions and the ground seems to be morphing so fast on this that not only are we not getting answers, the real questions are getting left behind in the wake. To paraphrase Wilson Pickett, we need to "slow this mustang down" and think about what has occurred and where it will lead us for the future. Really, the implications are pretty incredible. The federal government, under the cover of a spring weekend, stepped in to force one private financial company to sell itself to another private financial company at a price more than fifteen times less than the market valuation at the time. And then the government pledged the public’s money to guarantee the worst parts of the deal. Wow. And here I thought the free market was the golden holy rule for those currently running our country into the ground.

How did something so huge, and with so many far ranging implications, happen literally overnight? One thing is sure, if the economy was as great as they say, and Bush and his band of merry pillagers were on top of everything as much as they claim, this never would have happened. There has been plenty of discussion about the sub-prime shitpile and the exponential rise in derivitives in the financial industry, but my question here is what really happened with the Bear Stearns deal itself? Thankfully, people that know a whole lot more about this than I do are starting to ask the right questions. Today’s example is an outstanding article, "Liberalisation’s Limit", by Mark Thoma at The Economist’s View.

Quoting Martin Wolf once more, he says "times of crisis are when new functions emerge." This article is something I came across in a search – it’s an "interview" of Carter Glass by the Minneapolis Fed – that discusses how crises cause change (you’ll see why interview is in quotes).

Two additional topics are discussed in the "interview" that have come up here recently, the erosion of the "walls between commercial and investment banks" that occurred in the late 1990s (that’s when this interview was conducted), and the erosion of regulatory authority as banks found ways to evade regulations, i.e. "national banks had created affiliates as a way of doing precisely those things that the National Bank Act prohibited them from doing." Thus, in that respect, the motivation for the regulatory change that produced the Glass-Steagall act is the same as the motivation for more regulatory control today – the existence of a shadow banking system outside of regulatory authority that has the ability undermine faith in the financial system, or to produce feedback effects that can cause banks under the Fed’s authority to fail

Please, read the entire article (and, really, the links and sources cited therein too), it is very good.

Okay, so if I understand this correctly, the government took an unprecedented (at least under the modern Fed structure) action to insure, with the people’s money, a privately sector non-traditional bank entity; and the general conclusion is that this will have to now be the new norm, but there may be a little bit of regulation in the offing in return. This seems to be exactly where Treasury Secretary Hank Paulson and Senators Baucus and Grassley of the Senate Finance Committee are headed.

Maybe this was all the right and necessary thing to do. Maybe not. Here is what I have seen in the week plus since the Bear deal hit the public conscience. JP Morgan Chase bought Bear for less than the office building was worth, the people at Bear that got themselves into this mess are getting bonuses to stay on and create more mess, even Morgan/Chase realized the deal was too absurd and raised the purchase price, average citizens and homeowners still cannot get an ounce of relief from their government, there is no talk of banning the financial instruments that got us here and instead the government is moving to adopt, incorporate and insure them, and the financial institutions that created this nightmare have all had big gains in their stock prices because "investors" now see them as being protected by the government.

Did we just save the economy or just make a bunch of the wealthiest Bush/Republican base a whole lot better off at the expense of the taxpayers?

UPDATE: Hey, here’s a good one. Turns out that JPMorgan Chase & Co head Jamie Dimon held a Federal Reserve board seat while Chase was in negotiations with the Federal Reserve over a deal to acquire Bear Stearns at an insanely low price. How convenient.

UPDATE TWO: A post on this subject has come up on FDL by Robert Johnson, one of the presenters at the big TBA conference that Marcy recently attended. "Crisis on Wall Street – Shock Doctrine Opportunity – Notes from Take Back America Panel" Take a look at it.

I am probably going to get in deep doo doo for this, but, as Ralph Waldo Emerson said, "Nothing great was ever achieved without enthusiasm". I have thought about doing this since Marcy took off for vacation, but have been hesitating because I wasn’t sure about letting the cat out of the bag as to her birthday. But, what da ya know, Looseheadprop has freed that kitty in her latest post at FDL (very nice post and timeline she did I might add, so take a gander at it).

At any rate, Friday is our intrepid leader Marcy’s birthday. I am here to tell you, keeping this here car known as the Emptywheel blog well maintained, full of fuel and on the road is more work than it looks like. Marcy not only does that consistently day in and day out, she does it with a style, grace, competence and consistency that is unmatched in the blogosphere. The effort she leads here is not only informational and enjoyable reading, it is of demonstrated importance in the effort to expose and repair all of that which is currently broken in our government. Quite frankly, I think you all know this better than I can put into words anyway.

So, in light of the foregoing, I am going to suggest that we have a little fundraising effort for the one that makes all of this possible here. I feel a little goofy doing this, but, you know, I can’t think of any more valuable or worthwhile endeavors. So, if you have a couple of extra Euros, please contribute to keeping this the finest forum in the toobz. You folks are the greatest readers and participants anywhere. Thank you.

On Marcy’s most recent Hatfill post, I made a mostly flippant comment on the dogs in the Hatfill case:

What if Hatfill is just a pig and leaves pizza crusts around everywhere he goes and the dogs are smelling that? What are the customary industry standards for certification of anthrax sniffing dogs anyway; and who sets and regulates them? Or is this just some “wonder mammal” like Lassie or Flipper or something? Was there video of the searches with the wonder dogs? Because there sure should have been. Or are these yet more video items of evidence that have been “misplaced”? What was the nature of the dog’s response? Did it emit a “plaintiff wail” like Nicole Simpson’s Akita? (Great trivia: Nicole’s Akita was named “Kato” too). I don’t see how the dog(s) here meet any evidentiary standards for admissibility or reliance by a court.

Despite it being mostly in jest, that comment had what I consider to be a critical, if not the critical, point in it. From what it appears, the only bit of "evidence" (and I use that descriptor loosely here, and in the generic sense, because I don’t think there was any proper evidence at all) against Hatfill that served as the basis for identifying him was that the dogs had alerted.

We all saw, in the tragic case of the late Richard Jewell, the horrendous and deleterious effects of a defective identification on an individual for an infamous crime. It is simply unconscionable to hang such a collar on someone without substantial credible hard evidence. And, quite frankly, the aura and implications of the anthrax case were, and are, far worse that the Atlanta Olympic park bombing. An entire nation was brought to a standstill and was trembling from a terrorist act that was capable of being repeated anywhere, at any time, in the country via the mail. So the United States government better have a pretty strong case before it implicates someone such as Hatfill in such a crime.

What substantial and credible hard evidence was the identification of Hatfill based on? Well, as has been previously discussed, he had worked in the bio-agent/anthrax field, had the technical expertise and, according to profilers, the personality to do the anthrax deed. The government indicates that he may be one of 50 or fewer people who had the skills to do it and had access to the strain. Then you add in allegations of violence in his past and ties to South African apartheid militias, and you can certainly understand why he was being looked at. While such information is not all entirely innocuous background, it is certainly nothing more than circumstantial and does not inculpate Hatfill; the only alleged link of Hatfill to the actual crime with the anthrax letters, at least that we are aware of to date, was the dogs. That’s it; there is nothing else. What are the standards for admissibility of dog scent (bloodhound) evidence? Well, it is controlled by Rule 702 of the Federal Rules of Evidence, which is a codification of what is colloquially known as the Daubert rule. Rule 702 of the Federal Rules of Evidence, which governs the admissibility of all scientific and technical knowledge/information in Federal trial courts, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Anytime that you hear attorneys, or others, whether here or anywhere else, talking about the admissibility of scientific evidence, tests and standards, forensic evidence and tests, details of computer programs and hardware, or anything else scientific and/or technical, they are talking about getting evidence in under Rule 702. It is of critical importance to many of the legal issues that we tackle here. Now, although the language is not explicitly included in the rule, Rule 702 is held to rely and incorporate the factors delineated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In fact, the formal annotation to Rule 702 provides the operative language:

Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors explicated by the Daubert Court are (1) whether the expert’s technique or theory can be or has been tested – that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community.

Alright; now that we have a lay of the land, let’s see what occurred with the Hounds of Hatfill. First off, and I don’t know if it was already a misperception, or was fueled by the goof off portions of my earlier comment, but the dogs at issue in Hatfill were NOT "anthrax sniffers". Indeed, as several readers correctly mused, the dogs would be harmed by the anthrax just as humans are, and arguably faster and more seriously because their olfactory membranes would lend to greater exposure.

Although the facts are a bit sketchy, it appears fairly clear that the three dogs used in Hatfill, Lucy, Knight and TinkerBelle, either directly, or, more likely, through the use of an experimental, untested and unapproved device known as a "Scent Transfer Unit", were "given the scent" of the envelopes/letters that had, at one point, contained the anthrax and, allegedly, alerted in the presence of Hatfill. I found a reprint of a Baltimore Sun article in the UCLA Epidemiology Journal, that is outstanding on all of the background on the use of scent dogs in the Hatfill case. Although several key quotes will be relayed below, the entire article is well worth a read.

Whatever the FBI’s ultimate conclusion, the controversy over the bureau’s use of bloodhounds reveals a surprisingly haphazard approach to enlisting outside forensic help in one of the largest investigations in U.S. history. If charges are ultimately brought against anyone, the debate over how the dogs were used could be a hurdle in proving the case.
…
In this crucial case, the 15-year FBI veteran who selected the handlers and dogs is an explosives expert who says he has no experience using bloodhounds himself. Agent Rex Stockham acknowledges that the California handlers and their methods are viewed skeptically in the field, though he says the critics base their opinions on prejudice, not evidence.

"The guys in Southern California are social outcasts in the bloodhound handling community," said Stockham, a forensic examiner in the explosives unit at the FBI Laboratory in Washington.
…
The two major associations, the Law Enforcement Bloodhound Association and the National Police Bloodhound Association, "are out there talking trash about us," Stockham said. In fact, he said, he was virtually "laughed out" of one training seminar at which he tried to present results of the California handlers’ work.

Well that doesn’t sound very good does it? I wonder what a scientist would say about the use of the three stooges dogs in the Hatfill case and I wonder if the improper use of these dogs could ever lead to a lawsuit against the government for the use of bat shit crazy techniques? Lo and behold, the article answers those questions:

"As a scientist, what they’re supposed to have done [in the anthrax case] sounds like a miracle," said Brisbin, a bloodhound handler himself. "Every time I ask a dog to identify a suspect under controlled conditions, the dog can’t do it."

Indeed, a federal jury awarded $1.7 million last year to a man wrongly accused of rape after police identified him in part based on the use of Slavin’s bloodhound, TinkerBelle. DNA evidence later proved the man, Jeffrey Allen Grant, had not committed the rape. (Emphasis added)

The dogs in this case were traditional bloodhounds by breed, but with unconventional training, no certification and both their handlers and use have been widely criticized, roundly discredited and basically taken as a joke by both most courts (though at least one did accept their use) and by pretty much everybody expert in the forensic bloodhound field. There is pretty much zero chance that any competent court would find the dog scent evidence in Hatfill to be credible, reliable or admissible for anything under Rule 702; and it is both malicious and inconceivable that this "evidence" was used to implicate him.

Grover Norquist can pretty much pull the drain plug now; the job of eviscerating the United States Government "down to the size where we can drown it in the bathtub" is about complete. The latest breaking news out of the Pentagon is that the US mistakenly shipped ICBM warhead nuclear triggering mechanisms to Taiwan.

The Pentagon announced on Tuesday that it mistakenly shipped non-nuclear components for an intercontinental ballistic missile to Taiwan from a U.S. Air Force base in Wyoming.
…
At a Pentagon news conference, Air Force Secretary Michael Wynne said the misshipped items were four nose cone assemblies for ICBMs. He also said they were delivered to Taiwan in March 2005 and had been sent instead of helicopter batteries that had been ordered by Taiwan.
…
”It is a component for the fuse in the nosecone for a nuclear system,” Wynne said. ”We are very concerned about it.”

Well, that’s understandable. Because thermonuclear warhead triggers probably look just like helicopter batteries, right? Oy and ugh.

Apparently, the Cheney/Bush Administration planting of "the fucking stupidest guy on the face of the planet" at the Pentagon is paying dividends even after Doug Feith is long gone, because there seems to be some real competence issues over there, and, critically, with regard to our military’s handling of it’s nuclear weapons. As you might recall, it was not long ago that there were some empty quivers and bent spears out of another upper mid-west Air Force Base. In late August, 2007, six live nuclear cruise missiles went missing.

The nuclear weapons were “lost” for 36 hours after taking off on August 29 on a cross-country journey from the remote Minot air force base in North Dakota to Barksdale in Louisiana. Major-General Richard Newton, air force deputy chief of staff, said there was an “unprecedented” series of procedural errors, which revealed “an erosion of adherence to weapons-handling standards”.

There is bound to be a lot of speculation and discussion on the latest incident that is just now being revealed in spite of the fact that it occurred all the way back in 2005. Hopefully, it will also renew the discussion of the Minot/Barksdale incident, which kind of faded from the national conscience (if you want a decent rundown on some of the various theories and weird facts on the Minot/Barksdale event, see here). So how will the Six Sigma management geniuses of the Bush Administration respond to these disturbing examples of incompetence with weapons of mass destruction? My bet is there is a big promotion and endowment with lifetime wingnut welfare in order for their top political lackeys in charge of Pentagon oversight.

UPDATE: Per William Ockham’s comment, the NYT story has indeed been updated substantially and the pentagon is now referring to the lost items as "fuses" for the warhead triggering mechanism, apparently in an attempt to distinguish what was mis-shipped from the entire trigger mechanism. I am somewhat suspicious of that, but it is the latest incarnation of the government’s story.

Ah, the constantly evolving case of Bungalow Eliot and all the Spitzer snitchers. I have, for the most part, held off on too deep of an analysis on Spitzer because I didn’t think we had anything resembling the real story to operate from, and it kind of plays into the hands of the puppetmasters to constantly race down the false paths they provide (works on the media every time though eh?). That has not changed; the one thing we know for sure is that we don’t know the whole story for sure.

If I wasn’t the first to say that this was an investigation of a person searching for a crime to validate it after the fact, I was right up there. Every now and then even brain dead squirrels find a nut. The Public Corruption section of the US Attorney’s Office for the Southern District of New York, clearly in conjunction with DOJ Main, went on an Easter egg hunt in Eliot Spitzer’s yard under the pre-determined assumption that there were eggs there, and were prepared to plant some if they couldn’t find any. That much is fairly evident at this point, but how did this convoluted persecution really start? And why?

The latest revelation is, of course, that the mondo bondage Republican dirty trickster Roger Stone is knee deep in the primordial muck on the Spitzer hunt. Sex, prostitutes, money, power and dirty political tricks; who could have ever imagined that the Stoner might be involved? Eh, okay, we all should have known. By now, you have all probably got the basics on the Stone angle that has emerged; but just in case, here is a brief recap. Roger Stone is a long time GOP dirty trick and bag man. On Friday March 21, by way of a McClatchey article from the Miami Herald, we learned that:

Almost four months before Gov. Eliot Spitzer resigned in a sex scandal, a lawyer for Republican political operative Roger Stone sent a letter to the FBI alleging that Spitzer ”used the services of high-priced call girls” while in Florida.

The letter, dated Nov. 19, said Miami Beach resident Stone learned the information from ”a social contact in an adult-themed club.” It offered one potentially identifying detail: The man in question hadn’t taken off his calf-length black socks "during the sex act.”

Interesting that Roger is throwing these Stones, because he has a bit of a glass house problem in the tawdry sex department. You might have picked up on the part where he supposedly learned his information at "an adult-themed club". Now that is the one nugget of info in this mess that is undoubtedly accurate. You see, Stone and his wife are notorious spouse swapping kinky players on the adult swinger circuit. Family values the country can be proud of!

You know, I don’t really care what people do with their private sex lives as an issue of morality; but I do care deeply about the integrity and propriety of American criminal law and the Department of Justice that drives it. In that regard, here, here, here and here are the affidavits, complaint and prior stories of note in the Spitzer case that I have seen to date impinging on the genesis of the case and that are in the public domain (if anybody is aware of others not listed, please leave a link in comments). Here is my question: Just who is the A1 cutout for whom here? Stone says he relayed the dirt on Spitzer to the Feds only four months ago; exactly how are we, the American public, supposed to reconcile that with the sworn statements and posturing of our Federal officers and DOJ/US Attorneys that are contained in the record to date that indicate the investigation is much older? If Stone was corroborating evidence for information already possessed by the Feds, why wouldn’t they disclose it? Because, last I heard, said Federal authorities were still not supposed to lie, omit material facts, and otherwise disingenuously mislead the Court. There is no historical record of such perfidy with this Administration right?

Emails? We don’t need no stinkin hard drives and email! And that is pretty much what the Bush Administration has told Judge John Facciola and the DC District Court, not to mention you, me and the rest of the citizens the government is supposed to work for. As you will recall, CREW and the National Security Archive (NSA) have been fighting Bushco for some time now over the missing emails. Yesterday I received the following in an email from the lead attorney on the matter for the NSA, Meredith Fuchs:

Since you have been following the White House e-mail story, I thought you would be interested in the latest government filing. Striking that they failed to respond to the court’s specific questions. Even though they are engaged in a major project trying to find hundreds of days worth of e-mail, they still don’t scknowledge that they have a problem.

Moreover, there are some things that simply are not credible in Ms. Payton’s declaration. For instance, she claims that EOP replaces 1/3 of their computers each year and so there are not likely to be any around from 2003-2005. Yet, she also says EOP has no record of which computers were replaced and when. How do they know they are not replacing the same 1/3 each year if there is no record.

Ms. Fuchs has a knack for the understatement when she muses that "there are some things that simply are not credible", both as to Theresa Payton’s statements and the government’s position as a whole. In a sick kind of way, you almost have to marvel at the intestinal fortitude of the Bushies to so ferociously and completely yank the chain of every court they come in contact with. Whatever the people and their Congress want, whatever the courts demand, the answer from the Bush Brigade is always "nope". The audacity of nope.

Here is the EOP (Government) Response pleading filed yesterday (3/21/08), and Here is the sworn declaration in support thereof filed by everybody’s favorite technical guru, Theresa Payton.

As you will recall, CREW and NSA had applied for an Order To Show Cause, which was granted by Judge Facciola with a return deadline of yesterday. In a nutshell, the Administration has responded that it has destroyed most all of the hard drives that could contain the missing emails and therefore "it would be fruitless to undertake an e-mail recovery plan that the court proposed." I know you all are as shocked as I am at this turn of events (insert appropriate Condiliar Rice bewilderment phrase here).

It appears that there is some new information, or at least expansion of previous information and positions, in the EOP response pleading and, more importantly, the latest Declaration of Theresa Payton. I will be very interested to see what our local tech experts have to say about this, and how they, from a practical standpoint, think Judge Facciola and the Court should respond as to orders and sanctions. My quick take is that it sure was cavalier of Bushco to keep on destroying hard drives and computers with all this information on them when they have been on notice, both from the Presidential Records Act and Pat Fitzgerald’s inquiries, that they had a legal duty to preserve evidence and records and that the emails were an important issue. But they willfully destroyed anyway.

Legal Disclaimer: As I was a little tough on my Bay State friends yesterday in Trash Talk, I wanted to honor them by posting the video to the song that kept running through my mind as I was drafting this. That would be "Hard Driving Man" by one of Beantown’s best, The J. Geils Band. J. Geils Band is one of the best live concert bands ever; Boston can be proud of these boys.