March 29, 2024 / by 

 

Where’s Duke?

Seth Hettena notes that one of Mark Geragos’ most effective lines in the Brent Wilkes trial was the insinuation that the government backed off calling Duke Cunningham as a witness.

During his closing argument to jurors, defense attorney Mark Geragosasked jurors to keep one question in mind. If the governmentprosecutors believed Brent Wilkes had plied Congressman Randy “Duke”Cunningham with more than $600,00 in bribes, why didn’t they put theex-honorable gentleman on the witness stand?

It’s a good question. As the jury enters its third full day ofdeliberations, they may be wondering the same thing, and it remains tobe seen whether keeping Cunningham off the stand will hurt thegovernment’s case.

In his closing argument, Geragos told jurors the government didn’tcall Duke because he would never, ever admit that Brent Wilkes’contracting work was bad for the country. Prosecutor Jason Forgecountered that in rebuttal by saying that he didn’t want to call themost corrupt congressman in history and ask jurors to rely on histestimony.

So why didn’t Geragos call Cunningham ? Geragos said the governmenthad the burden of proof. When I reminded him that he had told jurors hewould call Duke, Geragos replied that Wilkes was a better witness. It’snot too hard to believe that he was worried that Duke would admit thatWilkes had bribed him. And that would be something no amount of brutalcross-examination could undo. You might as well send the jury out rightthen.

The statements from both sides leave a bit to be desired;something’s missing here. We’ll find out someday, but for now, it’sclear that both prosecutors and the defense felt there was more harmthan good in calling the Duke to testify.

So why didn’t the government call Duke to testify? In addition to Hettena’s suggestions: that Cunningham would be all-around unreliable, that Cunningham isn’t the brighest bulb ever to grace the Congressional chandelier, I’ve got another suggestion.

Perhaps the government was afraid that Cunningham would open the avenue for testimony from someone else. After all, Geragos did subpoena a whole slew of Congressmen, though he backed off after the judge warned him he needed a better developed reason to call them. Could Geragos have elicited something from Cunningham that would allow him to subpoena Jerry Lewis? That doesn’t seem too far-fetched. Perhaps just as importantly, Wilkes’ former co-defendant John Michael is due to have his day in court (his trial was postponed because he got viral menengitis). Cunningham has already revealed quite a bit about Tommy K that the government didn’t want revealed. Was the government afraid he’d do it again on the stand?


Did I Say Bear Hunting?

I haven’t seen any bears. I found a few beers, though.

Here’s a quick hits list of things I may return to on Wednesday, when I resume normal blogging.

  • The Pats beat the Colts … ugly.
  • Shane Harris reveals that the rationale for asking Qwest to break the law before 9/11 was hackers. Hackers, terrorists … same difference I guess. Though given the Administration’s troubled history with cyber-security czars, I’d like to consider the implications that their early excuses for violating our privacy pertain to cyber-security. John Conyers has finally asked for more details on the Qwest allegations.
  • Our consumer product safety czar has been doing some swank traveling, courtesy of those we are paying her to protect us from.
  • Orange County’s Republican Sheriff has been indicted. He has featured in some stories we’ve tracked earlier in this blog. And one wonders whether he was protected in the past by Bush’s USAs?
  • The judge in the AIPAC case has approved the defense scheme to call Condi et al to testify about how they leak information through lobbyists. I’m actually more optimistic than most that something might come of this. Not to mention, I’m rather interested by the complete list of those who have been called to testify.
  • Two minutes of blog hate goes permanent. The weirdest thing about this venture is that it is largely funded by International Studies entities, but every other post appears to deal with US political blogs. Which suggests 1) an ignorance about the whole range of blogging, and 2) a really bad investment for the International Studies set. Unless the serious foreign policy set is doing this because Atrios and Glenn Greenwald were mean to them. As is predictable, they don’t like pseudonymity anonymity and don’t know the difference between the two.
  • In a move that will only surprise Matt Bai and Governor Mark Warner, Pervez Musharraf suspended Pakistan’s Constitution. Don’t worry–I’m sure this won’t distract Dick from his Iran fetish in the least.
  • Both Merrill Lynch and Citibank are in some deep doo-doo for their investments in crappy mortgage loans.
  • DiFi and Schumer, as expected, will support Mukasey to be AG. I guess Schumer’s ego really is more important to him than the Constitution and the rule of law. Meanwhile, the Administration purged a former Acting Assistant AG when he opposed their waterboarding fetish. No wonder Mukasey won’t say he’s opposed to it. I think these details on the Levin purge fill in an important hole in the timeline  of the politicization of DOJ.
  • The US was the lone country, of 172, voting against a UN resolution calling for peace in space. Even our stalwart Israel felt obliged to at least abstain rather than vote against this no-brainer resolution.
  • Whistleblowers continue to be treated like crap in this country. But the press will tell you that it’s more important to have a journalist shield law than to fix our whistleblower protections. You know–because free speech is best when it has to go through a gatekeeper.
  • Bandar Bush bin Sultan has now made his second claim that Saudi Arabia had the goods on the terrorists aiming to strike at the US and UK. I thought he made the claim about the UK terrorist plot to discredit Gordon Brown–perhaps as a favor to the Tories. But that doesn’t make sense, if he’s saying the same thing about the 9/11 terrorists. What’s he doing?

The WiFi gods are bound to be really mad at me for the Pats win, so I may not check back in until Wednesday.


Diplomatic Renditions?

Here’s a response from Mukasey that frankly stumps me. It comes in response to a Joe Biden question on extraordinary renditions.

If the purpose [of renditions] is to gather intelligence, why would the United States trust interrogations carried out by Egyptian or Syrian intelligence agencies–agencies that the United States has long acknowledged and criticized for engaging in torture and abuse?

ANSWER: I am not aware of the facts and circumstances concerning any rendition. It is my understanding that both United States law and policy prohibit the transfer of anyone in the custody of the United States to another country where it is "more likely than not" that the person would be tortured, and should I be confirmed as Attorney General, I would ensure that the Department of Justice provides legal advice consistent with that standard. That said, I understand that there are other departments, such as the Department of Defense or the Department of State, with more direct responsibility for carrying out our policies in this area.

The answer is carefully crafted to punt. First, as everyone else in the Administration does, Mukasey simply repeats the claimed standard–no rendition to countries that torture–without guaranteeing that the country as a whole fulfills this standard.

Then Mukasey makes an interesting move. He effectively says, "renditions are not done by DOJ, so I can’t be responsible for them." Which is true, as far as I know–the FBI does not carry out renditions. It’s as if Mukasey asserts he can’t guarantee the country doesn’t engage in renditions because he’s not in charge of that area. Fair enough–and likely a sound legal strategy, to avoid any liability for the renditions that are going on.

But then Mukasey lists those departments that–in his understanding–are in charge of renditions. DOD and State.

What flummoxes me here is the inclusion of State, and the exclusion of CIA, on this list. We’ve had direct reporting of CIA involvement in renditions (such as with al-Libi). And they’re the one with the funny airlines that have no owners and no apparent flight plans. Perhaps those renditions are being done by some intelligence branch of DOD now (which might explain why the numbers for renditions carried out by CIA always seem much lower than the known cases of renditions).

So why State? Perhaps it’s as simple as State negotiating with countries before we steal their citizens (did Colin Powell’s State negotiate with Berlusconi’s government in the case of Abu Omar?). But I wonder. Is the State Department–and it’s beefy Blackwater contracts–currently involved in renditions in a way we don’t know about?


Shorter 4 Top Lawyers: To Hell with the Courts

Here’s the letter from Ashcroft, Comey, Goldsmith, and Philbin that came up so often in today’s SJC hearing. The key graf is this one, in which four top lawyers say, "to hell with the Courts, we’ve got two branches plus Cheney, who needs a third?"

Finally, we note that we are familiar with the legal analysis conducted within the Executive Branch of intelligence activities allegedly connected to the lawsuits against telecommunications carriers and with debates within the Executive Branch about that analysis. Given our experiences, we can certainly understand that reasonable people may question and wish to probe the legal bases for such intelligence activities. We firmly believe, however, that the best place for that examination and debate is not in a public lawsuit against private companies that were asked to assist their Nation, but within the Executive branch, where intelligence-gathering decisions are made, and in joint efforts between the Executive Branch·and Congress to ensure appropriate oversight.

The paragraph pretty much says it all. It comes as close as they ever do to saying, "you’ve got to listen to use because we’re the four people who objected to the illegalities of this program in the first place." Elsewhere, they don’t acknowledge why a letter from these four people might carry such weight.

But then, in their solution, they say, "to hell with the Courts. We’ve got the Executive branch and Congress"–which thus far have proved unable to "probe the legal bases for such intelligence activities" much less something they don’t mention, "hold those accountable who broke the law."

Which seems to me, at least, as a really nice way of saying, no, trust us, we started this, we assure you it’ll get taken care of.

Update: See Stoller for Ashcroft’s financial conflicts of interest in writing this letter, and Big Tent Dem for the conflict of interest of the bigwigs who wrote the WSJ article cited so commonly in today’s hearing.

Hey bigwig lawyer types: when you’re being paid to say something, it makes what you say a whole lot less credible.


Jane Harman Responds

Jane Harman sent a response to this post via a staffer.

What rubbish!  For those like me whoinsist that the President’s domestic surveillance program must complyfully with the Constitution and the 4th Amendment, the only way forCongress to get there is with a veto-proof majority.  That’s why I’mworking with Republicans.  Got a better idea?

I opposed the FISA-gutting ProtectAmerica Act last August and supported the much-improved H.R. 3773,which did not include retroactive immunity for telecommunicationscompanies.  I call on the White House to do more than share selecteddocuments with a handful of Senators – how do we know what the WhiteHouse is not providing?  In my view, the question of retroactiveimmunity cannot even be considered until Congress is fully informedabout what happened and under what authority.

It’s the same response she posted to drational’s diary at DKos, which responds to the same WaPo passage I used, but takes a different approach than I did in discussing it.

Given that Harman is sending the same response to both drational and I, it’s unclear what she means with her response. What, precisely, is rubbish? I can think of several things she might be labeling rubbish, but it’s unclear which possibility she intended.

  • The report from the WaPo, that Harman is "quietly exploring avenues of compromise with Pete Hoekstra"?
  • That, as the WaPo implied, Harman is among those centrist Dems who "hope those talks can dovetail with the Senate intelligencecommittee’s own bipartisan measure on surveillance of suspectedterrorists"–which of course includes immunity for the telecoms?
  • That her negotiations include the provision of immunity for the telecoms, something both drational and I implied–which I, at least, took to be a clear implication from the WaPo coverage, since it listed the SSCI bill as the basis for compromise?
  • That she is bypassing HPSCI and HJC, which have been tasked by party leadership to come up with a revision to FISA, an assertion made by me but not by drational?
  • That it is appropriate to consider primary challenges for someone who effectively turns us back into a minority party by working with Republicans on her own compromise rather than working to build support for the bills supported by the party?
  • That Harman, "appears to have been one of the only Democrats (if not the only Democrat) to have approved uncritically" of the domestic wiretap program, an assertion made by me but not by drational?
  • That Harman, with Jello Jay and Pelosi, are "willing to compromise on every surveillance concession demanded by the White House," an assertion made by drational but not by me?
  • That Harman and Jello Jay and Pelosi are seeking immunity for themselves, also an assertion made by drational and not by me?

Like I said, given her comments it’s not clear what she’s thinking. If she is saying it’s rubbish that she was one of the only Dems to have approved uncritically of the program, I’d love to hear it, because every other Dem who was briefed on the program has either said they expressed criticism during the process or that the Administration allegations about "majority approval" don’t include them.

And if Harman is trying to say that she is not, in fact, considering immunity in back channel discussions with Hoekstra–or even that those back channel discussions aren’t going on–I’d love to know that, too.

But I will say this. Telecom immunity is an issue about which Democrats might be able to withstand Administration demands. If its caucus goes along. Therefore I still object to back channel discussions–if they’re taking place–if they put telecom immunity on the table.


Oh Madame Secretary…?

In an email to Laura Rozen and Jeff Lomonaco this morning, I predicted Henry Waxman would be mightily interested in the news that the Blackwater guards involved in the September 16 shooting had been granted immunity.

In any case, I suspect Condi will regret that she didn’t mention thiswhen visiting Congress last week. I assume we’ll have a letter fromWaxman at about 1:00 PM today.

Sure enough, at 1:23, the Committee sent out the letter.

Apparently, Waxman wrote it before CNN started reporting yet more anonymous sources saying the whole thing is a big joke, that the guards didn’t get immunity. Or rather, they try to dodge the issue by pretending the claim pertained to blanket immunity (which it never did).

No blanket immunity deal was offered to Blackwater guards for theirstatements regarding a shootout in Iraq last month that left 17 Iraqicivilians dead, two senior State Department officials told CNN Tuesday.

However, some kind of limited immunity was apparently offered by StateDepartment investigators when they questioned the Blackwater personnelapparently involved in the shootings, the officials said.

In any case, Waxman (as you’d expect) asks the money question:

5. When did you, Deputy Secretary of State John Negroponte, former Assistant Secretary of
State Richard Griffin, Ambassador David Satterfield, and Ambassador Ryan Crocker
leam of the grant of immunity?

Given that the whole theme of Condi’s testimony before Waxman’s committee had to do with cover-ups, I imagine Waxman is very interested in learning whether Condi or Griffin or Satterfield neglected to tell the committee this little detail when they testified.


Time for Another Primary Challenge for Jane Harman

Buried in this article on Democrats compromising with Republicans, I noticed this paragraph:

And as Democratic leaders push their own legislation to rein in the wiretapping program, Rep. Jane Harman (D-Calif.) has been quietly exploring avenues of compromise with Rep. Peter Hoekstra (Mich.),the ranking Republican on the House intelligence committee. CentristDemocrats hope those talks can dovetail with the Senate intelligencecommittee’s own bipartisan measure on surveillance of suspectedterrorists.

Jane Harman, of course, is a former member of the HPSCI. Only, with the changeover in Congress, she got bounced from HPSCI and relegated to chairing the Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment over at Homeland Security, which means she is not in a formal position of leadership on this issue. Harman made news last month when she called the Republicans on their bullshit attempts to use a sketchy terrorist threat as an excuse to push FISA amendment through. But she also appears to have been one of the only Democrats (if not the only Democrat) to have approved uncritically of Bush’s illegal wiretap program.

But now, apparently, she’s taking it upon herself to negotiate her own version of a FISA Amendment, presumably one designed to bypass HJC (which wants nothing to do with telecom immunity) and HPSCI, which under Reyes is proving to be increasingly skeptical of Bush’s BS.

How nice, that the one Democrat who gave approval to this illegal program is the one now negotiating immunity for them. Not a conflict of interest there, not at all.


We’ve Seen This Before

Kagro X has a post focusing, again, on Michael Mukasey’s evasions about the Constitution. Kagro focuses not on Mukasey’s confusion about whether water-boarding is torture, but whether the President can ignore existing laws.

Any president — and I mean any president — ought to beable to depend on a certain amount of deference from his or herAttorney General, of course. This ordinarily goes without saying, butin this case must be said because it sets up an irreconcilable paradox.Is it even possible to serve an administration that regularly assertsconstitutional interpretations like the one Judge Mukasey did andprotect the fundamental rule of law which underlies our entireconstitutional system of government? How could it be so?

[snip]

An "administration" that sends distinguished federal judges toCapitol Hill and puts them in a position requiring them to hedge onanswers to such basic questions as must a president obey federalstatutes is operating so far outside the bounds of normalcy already,that it hardly seems worth anyone’s time to pretend that an AttorneyGeneral is necessary to the functioning of the government at all.

I’d like to reinforce Kagro’s point by pointing to the consistency, across time and nominees, of the Administration’s AG candidates on this Constitutional question. Here’s the complete context of the Mukasey comment that Kagro is focused on.

LEAHY: And,lastly, where Congress has clearly legislated in an area, as we’ve donein the area of surveillance with the FISA law, something we’ve amendedrepeatedly at the request of various administrations, if somebody — ifit’s been legislated and stated very clearly what must be done, if youoperate outside of that, whether it’s with a presidential authorizationor anything else, wouldn’t that be illegal? 

MUKASEY: Thatwould have to depend on whether what goes outside the statutenonetheless lies within the authority of the president to defend thecountry.

LEAHY: Where does the president get that authority? Ithinking of the Jackson opinion and others. Where does he get theauthority if it’s clearly enunciated what he can do, law that hesigned, very clearly enunciated? I mean, the president say, Thisauthority, I’m going to order the FBI to go in and raid 25 housesbecause somebody told me they think someone’s there. We’re not going towait for courts, we’re not going to do anything else. There’s nourgency, but we’d just kind of like to do that.

MUKASEY: We’d kind of like to do that is not any kind of legitimate assertion of authority.

AndI recognize that you’ve posited the case that way for a reason. But thestatute, regardless of its clarity, can’t change the Constitution.That’s been true since the Prize cases. And it was true before that.

LEAHY:Can a president authorize illegal conduct? Can the president — can apresident put somebody above the law by authorizing illegal conduct?

MUKASEY:The only way for me to respond to that in the abstract is to say thatif by illegal you mean contrary to a statute, but within the authorityof the president to defend the country, the president is not puttingsomebody above the law; the president is putting somebody within thelaw.

Can the president put somebody above the law? No. The president doesn’t stand above the law.

But the law emphatically includes the Constitution. It starts with the Constitution. [my emphasis]

Leahy is concerned about whether Bush can just decide to operate outside of FISA–or any other law that explicitly limits the behavior of the Executive Branch. But he’s also concerned about whether the Administration can offer immunity for someone who follows the President’s orders in operating outside of statute.

This exchange looks remarkably similar to one between Pat Leahy and Alberto Gonzales–back before we knew the extent of Gonzales’ craven willingness to put law aside for politics. The topic is different–Leahy is asking about torture, not wiretapping. But the response is almost the same.


McConnell’s Earmarks

I’m less interested in the local angle on Mitch McConnell’s placement of earmarks to benefit BAE in this year’s defense appropriations bill than what it says about our military industrial complex.

Sen. Mitch McConnell, R-Ky., is pushing $25 million in earmarkedfederal funds for a British defense contractor that is under criminalinvestigation by the U.S. Justice Department and suspected by Americandiplomats of a "longstanding, widespread pattern of briberyallegations."

McConnelltucked money for three weapons projects for BAE Systems into thedefense appropriations bill, which the Senate approved Oct. 3. TheDefense Department failed to include the money in its own budgetrequest, which required McConnell to intercede, said BAE spokeswomanSusan Lenover.

Yes, it appears that McConnell expects to get some jobs in Lexington out of this deal, and yes, BAE appears to have donated to the Mitch McConnell polisci fund.

But what interests me is that yet another well-connected defense contractor got a contract that the experts  "running" our military said they don’t need. No doubt as I speak, Brent Wilkes is testifying that such practices are necessary for the efficient function of business. And no doubt that BAE’s execs, if they ever come to be in Wilkes’ place (testifying to try to avoid jail time) would say the same thing that Wilkes is saying: that this was necessary work and that it was all a well-intentioned mobilization of the contracting system in DC. I mean, BAE flack Susan Lenover is already pushing that line: the civilians in DOD "failed to include the money in its own budget request, which required McConnell to intercede." Why is it that the folks in DOD don’t know about this requirement, but the Minority Leader does? It sure sounds like it is a political requirement, and not a military one.

See, the point is not that McConnell will get some university program named after him. It’s that there continues to be a whole lot of slush laundered through the defense industry; it appears to be the slush that is the product, not the bombers or helicopters or document scanning services. But we have no idea where that slush is going, beyond the re-election of corrupt Republicans (and a few Democrats). Particularly given the profile of the folks involved in the BAE scandal (call me crazy, but anytime I see Maggie Thatcher’s sone and Bandar bin Sultan involved in a scheme, I’m more worried about coups in oil-producing countries than I am about graft, regardless of how bad the graft is), it seems pertinent to ask where the slush is going–and why the Minority Leader knows about it, but the military does not.


The FISA Report

Laura links to a CQ story based on this SSCI report on FISA. As Starks noted in his CQ article, the report reveals that the telecom companies did not have the requisite approval from the Attorney General for the period following the hospital confrontation; rather, they had White House Counsel Alberto Gonzales’ approval.

The committee’s published report on legislation (S 2248) that wouldrewrite the rules for government surveillance states thattelecommunications companies participating in the NSA program receivedregular letters affirming President Bush had authorized the program.

But all but one of the letters also stated that the attorney generalhad determined the program to be lawful, according to the report. Thatletter, which covered a period of “less than sixty days,” insteadstated that “the activities had been determined to be lawful by thecounsel to the president.”

I’ll have my own excerpts of the report in a post shortly. But for now, consider some implications of this:

  • Bush did not authorize the program personally after Comey refused to authorize it; Gonzales did. Presumably, they were trying to protect the President (and the Vice President) from responsibility for having done so. But where, then, does the legal responsibility for having violated the Telecommunications Act lie? With the telecoms, for taking authorization from the White House Counsel–who is not approved by the Senate–rather than the Attorney General? Furthermore, does this expose Gonzales legally? Update: I need to make a correction. The report makes clear that Bushauthorized the program at each step. It’s just that for thepost-hospital confrontation period, he was relying on Gonzales tocertify it was legal.
  • I wonder whether Bush told the telecoms why Gonzales was approving the program rather than Comey subbing for Ashcroft? Did the telecoms know that Comey, not Gonzales, was acting AG? Did Bush simply say Gonzales had approved the program because Ashcroft was sick?
  • This report says nothing about the pre-9/11 activities Nacchio has alleged.
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