There was a rumor floating the Toobz yesterday that Trent Lott got out of the Senate in a hurry because of boy trouble–perhaps something that Larry Flynt dug up. That rumor has since been denied by the boy in question.

But Scott Horton points us to something that is rather more intriguing: The fact that Trent’s brother-in-law’s law office is presently being raided.

Sources in Mississippi law enforcement inform No Comment that FBI agents are now raiding the law office of Richard “Dickie” Scruggs in Oxford.

Horton has covered the non-indictment of Dickie Scruggs before. You see, Scruggs was the apparent mastermind of a plan behind loans to some Mississippi judges–loans for which Democratic lawyer Paul Minor is now doing time.

As Minor recounts it, and other lawyers with whom I spoke confirm, theidea of rushing in to support the judges who came under fire from theChamber of Commerce started with Richard Scruggs, probably the bestknown and wealthiest member of the Mississippi trial lawyers bar.Scruggs, like Minor, made loans to Mississippi judges and came under investigation in the original study launched by the FBI. However, there was a critical difference. Scruggs tends to support the Republicans, not the Democrats. In 2000, for instance, he gave $250,000 to the Bush-Cheney campaign and to the G.O.P., and only $20,000 to Democratic candidates.  And more significantly, Scruggs was the brother-in-law of Mississippi Senator Trent Lott, who at the time was the Republican leader in the U.S. Senate.

If the conduct that Minor engaged in was unlawful, then Scruggs shouldalso have been charged. Indeed, an outsider looking over the file wouldcome pretty quickly to expect to see Scruggs as the lead defendant inthe case. But that’s not the way U.S. Attorney Lampton and PublicIntegrity section head Noel Hillman saw things, and several people whohave asked to remain anonymous have told me that that Lott wasaggressive in acting to protect Scruggs.

Well, I gotta say, it’d be awfully encouraging if, just weeks after Michael Mukasey started as AG, what appears to have been another politicized prosecution was addressed.

It certainly raises questions, though, about what else might be out there.

Remember how Dick Cheney very charitably forgave Harry Whittington, the old man who had the audacity to get hit by Dick Cheney’s birdshot?

Well, Aravosis catches Bush doing Cheney one better: Bush has the kindness to forgive Gore for winning the the 2000 election.

Bush forgives Gore for Bush stealing the 2000 election. What a mensch. From the NYT:

Mr.Bush made no comment when the Nobel was announced, and today, the twostood silently, and a bit awkwardly, during the photo opportunity.

Butthe president did personally telephone Mr. Gore to extend theinvitation, and the White House changed the date of the event so Mr.Gore could attend. Mr. Bush’s press secretary, Dana Perino, toldreporters the president is willing to let bygones be bygones.

“This president does not harbor any resentments,” she said. “He never has.”

No word on whether Bush also forgives Gore for believing the earth is round, and other crazy scientific theories.

Steven Aftergood has an important post describing the squabble between the intelligence appropriations subcommittees and the intelligence committees. He explains how, even though the intelligence committees are trying to exercise more oversight over intelligence activities, the appropriators (which have increasingly become the defense subcommittee appropriators, as more intelligence activities have moved under DOD) have undercut those efforts.

The efficacy of intelligence oversight in the Senate has beendrastically undermined by procedural hurdles that enable the DefenseAppropriations Subcommittee to overrule actions taken by the SenateIntelligence Committee, Senators complained earlier this month. Toremedy this concern, a new bill has been introduced that would transfer budget appropriations authority to the Intelligence Committee.

This year, the Senate Intelligence Committee presented "four major oversight initiatives in its [authorization] bill," said Sen. Christopher S. Bond (R-MO)(pdf) at a Committee hearing on November 13. But in each case, "actionsby the appropriations committee were completely dissimilar."

AMemorandum of Agreement between the Committees that was supposed toimprove coordination between the authorizers and the appropriators hasfailed in every significant respect, he said.

Aftergood links to a Kit Bond statement, complaining about the problem. Bond explains how much more oversight SSCI has over programs than the Defense Appropriations Subcommittee (SAC-D).

We have almost 50 professional staff on this Committee who spend all their time doing nothing but intelligence oversight, day in and day out. The Defense Appropriations Committee has fewer than one half dozen staff who write the intelligence appropriation which is fewer than 1/10th of their bill.

[snip]

Our Committee has held scores of intelligence oversight hearings this year; the Defense Appropriations Committee has held notably few. I think the disparity is clear and speaks for itself. What I’m saying is, let’s effectively bring the oversight power to bear on the budget; right now it is disjointed.

[snip]

But that is my point, that Committee is consumed with defense matters, not intelligence matters. That Committee is wrapped up in a nearly half a trillion dollars appropriations bill, with less than one tenth of it comprising the National Intelligence Program that the SSCI oversees. SAC-D as currently constructed cannot give intelligence the attention it deserves with all its other responsibilities.

And then Bond complains of the unauthorized programs that remain in the 08 budget.

For example, this Committee is currently conferencing our FY08Intelligence Authorization Act with the House, and we’re looking at anumber of issues where our bill is disjointed from the FY08 DefenseAppropriations Act. As recently as a few hours ago, my staff wasreceiving calls from intelligence officials worried about a number ofpotential “A not A” (appropriated but not authorized) issues. That’snot a showstopper in most fields, but when it comes to nationalsecurity and intelligence, it usually does not make a whole lot ofsense.

That’s the kind of thing, of course, that got Duke Cunningham in trouble.

This is odd.

As I explained earlier, Brent Wilkes’ lawyer Mark Geragos is trying to subpoena a bunch of lawyers and journalists, in hopes (he claims) of discovering who was leaking about the Wilkes/Foggo indictments before the indictments came down, and in further hopes of getting Wilkes’ convictions thrown out because of governmental misconduct. I’m particularly interested in Lisa Myers’ subpoena because she’s a hack frequently targeted for GOP spin, and because I think the leak she received may have had as much to do with the Gonzales clique’s attempts to bury their firing of Carol Lam as it had to do with sincere content. That is, the leak probably was misconduct, but not in any way that could help Wilkes.

Here’s how Geragos first described the leak to Myers.

a televisionreporter told me that an attorney at the Justice Department mainoffices in Washington D.C. (“Main Justice”) had disclosed that MainJustice believed that it could no longer exercise its normalsupervisory role because the leaks of the indictment “would now makeany action taken by Main Justice appear to be political”. [my emphasis]

But Geragos never contends that Myers reported on this leak–she just told him its contents directly.

Here’s how Geragos describes Myers in his motion to subpoena her (and the others).

Lisa Myers is a senior investigative correspondent for NBC NightlyNews. She can testify that she spoke to a person within the Departmentof Justice who told her that they had the seen the indictment(s) andgave her other detailed information. [my emphasis]

And here’s the language in Geragos’ proposed order for the subpoena to Myers.

Lisa Myers
[Address Redacted]

a. To bring with you or to provide via mail or facsimile, any and allwritten or electronic information including but not limited to papers,notes, documents, correspondence, emails, records, internal memoranda,phone logs, and/or other documentation pertaining to the sources you referred to in any news reports about the pending indictment(s) against Brent Wilkes, Kyle Dustin Foggo, and/or John Michael.

b. To bring with you or to provide via mail or facsimile, any and all draft(s) of the indictment(s) against Brent Wilkes, Kyle Dustin Foggo, and/or John Michael that you received at any point in the investigation and in any format. [my emphasis]

Given Geragos’ two earlier statements, (a) would not be relevant, because Myers never didany news reports on the leak she received. And (b) would not berelevant, because Myers claims only that her DOJ source told her he hadseen the indictment; Myers never claimed to have seen the indictmentherself.

So, provided that the earlier two representations Geragos made aboutMyers’ story are correct, then Myers will have nothing responsive tothe subpoena. And Geragos knows it.

Of course, Geragos could ask for the identity of her DOJ source–about whom she never did a TV report. That person would certainly be a government leaker–and would have violated grand jury secrecy. But Geragos doesn’t ask for that information, which is precisely the information he claims he needs.

I read Wilkes’ motion to subpoena journalists and others with great interest. I’ll return to three details later:

• The naming of Seth Hettena as the journalist who allegedly showed Mark Geragos a copies of two indictments; Geragos had earlier refused to give prosecutors Hettena’s name.
• The lack of a subpoena for Dan Dzwilewski, the Special Agent in Charge who retired suddenly in the midst of this whole scandal and, presumably, one leading candidate to have leaked details of the potential indictments.
• The lack of a subpoena for anyone at Main DOJ, even though one of the leaks Geragos complained about came from there.

Lisa Myers Received a Leak from Main DOJ

But for the moment, I’d like to focus on the other revelation in Wilkes’ motion to subpoena these people. Lisa Myers, a producer at NBC, is the person who claimed to have been told that Main DOJ could no longer exercise oversight over the San Diego investigation because of the earlier leaks. Here’s how the request for subpoena describes Myers:

Lisa Myers is a senior investigative correspondent for NBC Nightly News. She can testify that she spoke to a person within the Department of Justice who told her that they had the seen the indictment(s) and gave her other detailed information.

And here’s how Geragos described her–anonymously–when he was first making a stink about the pre-indictment leaks (this is the only TV reporter Geragos describes; note that Geragos never alleged that Myers had reported this publicly, which pretty much undercuts his argument that the leaks prevented Wilkes from getting a fair trial).

Around the same time the print reporters were disclosing to me detailedknowledge of the draft indictments, and stating that governmentofficials were showing them copies of draft indictments, a televisionreporter told me that an attorney at the Justice Department mainoffices in Washington D.C. (“Main Justice”) had disclosed that MainJustice believed that it could no longer exercise its normalsupervisory role because the leaks of the indictment “would now makeany action taken by Main Justice appear to be political”.

This purported leak was central to Geragos’ theory that Wilkes wouldn’t have been indicted if it weren’t for the tumult surrounding the Carol Lam firing.

The DOJ Leak as Spin and Damage Control

The leak is particularly significant for two reasons. First, because it’s one of only two leaks tying Lam’s firing to the Wilkes indictment. And second, because this leak was almost certainly deliberate spin to push back against Lam. As I point out in this post on the leak (click through for a timeline), Main DOJ had already taken active steps to prevent Lam from finishing her ongoing cases, and the Gonzales crowd at DOJ had already been panicking about Lam long before any leaks appeared.

looseheadprop has a post at FDL that deserves more attention. Particularly this paragraph:

In 2005, in response to a petition dated March 10, 2004 by the DOJ and FBI, [Ed. note, if you only have time to click on one link—this is it!] the FCCissued a report and Order that said that CALEA applied tofacilities-based broadband Internet access providers and providers ofinterconnected (with the PSTN, Public Switched Telephone Network)Voice-over-Internet-Protocol (VOIP) services. There’s a great wiki here.   BTW, the hospital room confrontation between Comey and Ashcroft happened on March 10, 2005. [sic, MarkC is right, this should read 2004]

She makes a really interesting catch: DOJ, FBI, (whose heads on that date, were James Comey and Robert Mueller, then in the thick of a squabble with the Administration over "the Program") and DEA asked the FCC to issue a report stating that CALEA applied to things like cable providers, in addition to telecommunications companies. They submitted that request on the very same day as the hospital confrontation–when DOJ was fighting with the Administration over the legality of its illegal wiretap program. The FCC obliged DOJ’s request for a ruling the following year, thereby legally expanding the universe of communications providers who could be compelled to let the Feds into their networks. The coincidence of timing suggests that one legal issue that Comey may have believed needed to be fixed was the laws pertaining to cable-based communications systems. Or, it could just be a coincidence of timing.

At this point, I’ve got more questions than answers about the potential coinkydink. These are:

• If part of the problem with the program was that prior to the FCC ruling, they were illegally requiring the participation of cable companies (companies like Time Warner and Comcast), then why haven’t we seen any discussion of the cable companies in any of the reporting on this?
• The DEA participated in the request to the DEA. But we know from Mueller’s notes from the time that the DEA wasn’t included in any of the high-level meetings on the program. Does this rule against the coincidence being meaningful?
• To what degree do the various FISA amendment bills explicitly or implicitly include cable providers I think it’s fairly implicit in the SSCI bill’s definition of Electronic Communication Service Provider:

(D) ELECTRONIC COMMUNICATION SERVICE PROVIDER- The term `electronic communication service provider’ means–

  `(i) a telecommunications carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);

`(ii) a provider of electroniccommunications service, as that term is defined in section 2510 oftitle 18, United States Code;

  `(iii) a provider of a remote computing service, as that term is defined in section 2711 of title 18, United States Code;

`(iv) any other communication serviceprovider who has access to wire or electronic communications either assuch communications are transmitted or as such communications arestored; or

  `(v) an officer, employee, or agent of an entity described in clause (i), (ii), (iii), or (iv). [my emphasis]

But why not say it directly?

Anyway, those are my initial thoughts. And yours?

I can’t say I’m surprised by this news–that some courts are approving government use of cell phone GPS data without first requiring the government to demonstrate probable cause.

Federal officials are routinely asking courts to order cellphonecompanies to furnish real-time tracking data so they can pinpoint thewhereabouts of drug traffickers, fugitives and other criminal suspects,according to judges and industry lawyers.

In some cases, judges have granted the requests without requiringthe government to demonstrate that there is probable cause to believethat a crime is taking place or that the inquiry will yield evidence ofa crime. Privacy advocates fear such a practice may expose averageAmericans to a new level of government scrutiny of their daily lives.

But I invite you to consider the implications of this legal logic:

And in December 2005, Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York,approving a request for cell-site data, wrote that because thegovernment did not install the "tracking device" and the user chose tocarry the phone and permit transmission of its information to acarrier, no warrant was needed.

Let’s see. It looks like this:

Gov’t did not install tracking device >  User chose to use cell phone with tracking device > No need for the government to get a warrant to ask the telecom company for data on the tracking device

That looks frighteningly like this logic:

Gov’t did not install telecommunications fiber > User chose to use telecommunications fiber to make a call/send an email > No need for the government to get a warrant to ask the telecom company for data on the private citizen’s use of the telecom fiber

It’s the same logic Donald Kerr, Principal Deputy National Intelligence Director uses when he says we shouldn’t expect anonymity anymore–that we sacrifice all of that when we avail ourselves of neat telecommunications or Toobz tools.

Cannonfire is right. People have gotten way too excited over this Scottie McC "revelation." I’d advise you all to look closely at what John Dean had to say about the flap on Olbermann:

Dean: Well, there’s very little that’s specific in this. I actuallythought about calling the publisher today. He’s a very ablepublisher–Peter Osnos, Public Affairs, good journalist. He knowsexactly what he’s doing. But if he says there’s not much more, andthat’s the indication, I think that’s maybe why they put this out as agood tease, to get bookstores interested in the book. [my emphasis]

Scottie McC’s publisher has pulled off quite the coup–taken a detail that was, largely, already known, and used it to cause a stir about a book that will not yet be published for another 6 months. Already, Dodd is calling for an investigation, folks are calling for HJC or Waxman to hold a hearing. What the left has done is read one publishing blurb designed to generate this kind of buzz, and played right into the plan. Congratulations. You’re all making Scottie McC rich.

What Scottie Said

That said, I guess it would pay to look more closely at what we know, so that everyone can calm down and stop putting dollars into Scottie McC’s pockets. Let’s look again at what Scottie says (and has said before, and his spokespeople have said since).

The most powerful leader in the world hadcalled upon me to speak on his behalf and help restore credibility helost amid the failure to find weapons of mass destruction in Iraq. So Istood at the White house briefing room podium in front of the glare ofthe klieg lights for the better part of two weeks and publiclyexonerated two of the senior-most aides in the White House: Karl Roveand Scooter Libby.

There was one problem.  It was not true.

I had unknowingly passed along false information. And five of thehighest ranking officials in the administration were involved in mydoing so: Rove, Libby, the vice President, the President’s chief ofstaff, and the president himself. -from What Happened

Or, to translate:

• It was not true that Rove and Libby had nothing to do with the leak of Valerie Wilson’s identity.

We’ve know this detail–that Rove and Libby were involved in leaking Valerie Wilson’s identity since Fall 2005 and earlier.

• Scottie unknowingly passed on false information.

Scottie has been saying this for years, as well, ever since his tiny credibility took a hit when it became clear his public exonerations were false. In other words, Scottie still maintains that he, at least, had no idea the public exoneration was false.

• Rove, Libby, the Vice President, Andy Card, and the President "were involved" in having Scottie "unknowingly pass on false information."

Please note (again, as Cannonfire points out), Scottie says nothing about the President being "knowingly" involved. He doesn’t even detail how the President was involved. Given the way this Administration builds in plausible deniability, and given the degree to which the leak of Valerie Wilson’s name included a "secret mission" (as Libby lawyer Bill Jeffress called it) involving just Bush, Cheney, and Libby, I’m not sure that Scottie McC would know even if Bush were the mastermind of this leak and cover-up.

And he certainly doesn’t say so in this excerpt.

There is not one but two articles in the WaPo today suggesting DHS’ massive corruption is impeding its efforts to get protective scanners in place at our ports and border. The first article explains that implementation of the big radiation detectors designated for the borders will be delayed, again.

For more than a year, Homeland Security Secretary Michael Chertoffand others have told Congress that the costly next-generation machineswould sharply improve the screening of trucks, cars and cargocontainers for radiological material. In announcing contracts in July2006 to buy as many as 1,400 of the devices, Chertoff said they wereready to be deployed in the field for research. He recently calledtheir acquisition a "vital priority."

But in the face of growing questions by government auditors,Congress and border officials about the machines’ performance, Chertoffhas decided that they don’t operate well enough and need more work. Itcould be another year before they are ready, officials said.

More intriguingly, it suggests Chertoff’s DHS may be meddling with thedata surround the machines to try to get them approved for use.

In a Nov. 16 letter to Congress, the director of the DNDO said hisstaff members were looking into allegations that someone there directedpersonnel from the National Institute of Standards and Technology, who were helping analyze recent results of testing of the machines, to delete some of the data.

"We have also issued a preservation notice to all personnel who haveworked on the ASP program directing them to preserve all documents,e-mail, and memoranda relating to the ASP program," Vayl Oxford,director of the nuclear detection office, wrote to Rep. John D. Dingell (D-Mich.), chairman of the Energy and Commerce Committee, which has been examining the program.

Because if you’re paying $1.2 billion for a radiation detectors, you’re apparently not paying for a guarantee they’ll work, and you’ve got to fudge with the data to make it look right.

As I pointed out in this post, the Senate Intelligence Committee used a remarkable argument to justify giving the telecoms immunity in their FISA bill. Basically, it argued the telecoms could neither prove or disprove whether they were entitled to immunity according to existing statutes, because the mean old Bush Administration had invoked State Secrets. And therefore, the invocation of State Secrets put them in an unfair position as they tried to defend themselves against lawsuits.

To the extent that any existing immunity provisions are applicable,however, providers have not been able to benefit from the provisions inthe civil cases that are currently pending. Because the Government hasclaimed the state secrets privilege over the question of whether anyparticular provider furnished assistance to the Government, anelectronic communication service provider who cooperated with theGovernment pursuant to a valid court order or certification cannotprove it is entitled to immunity under section 2511(2)(a)(ii) withoutdisclosing the information deemed privileged by the Executive branch.

[snip]

Providers who did not assist the Government are similarly unable toextract themselves from ongoing litigation, because the assertion ofthe state secrets privilege makes it impossible for them to demonstratetheir lack of involvement.

So the logic, in general, is that it is unfair for a defendant in a civil suit to be prevented from defending itself because the government has invoked State Secrets and thereby prevented the defendant from introducing the evidence that would prove its innocence or its immunity.

Of course, the Senate Intelligence Committee is only making that argument in the context of its desire to convince telecoms to cooperate with the government, regardless of the laws that are supposed to guide that cooperation. I’d bet you that, if a defendant were unable to defend itself from lawsuits because the government invoked State Secrets, and if that defendant had not cooperated with the government in illegal wiretapping, no one would bat an eye at the injustice.

Well, we’re going to get to see just that in the civil suit against Joseph Nacchio and other former Qwest officials. Because there, the government is invoking State Secrets in a case against individuals who refused to cooperate because–at least Nacchio claims–they believed cooperation would have been against the law.