Archive for category: emptywheel

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.

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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.

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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.

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As several folks have pointed out to me, Scottie McC is getting chatty:

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

I’m not really going to hold my breath that this contains any new revelations. But I am intrigued by one thing: the mention of Andy Card, Bush’s Chief of Staff. We’ve known that Bush, Cheney, Libby, and Rove were intimately involved in this gig. But if we can pull Andy Card in–something Ted Wells alluded to during the trial–it might get interesting.

And, just as a reminder, Card and Scottie left the White House within Read more →

The BoGlo reports what we already know–many of the people at Gitmo who have been determined to not be a threat in status review hearings remain in Gitmo. And, at the same time, some people who have been released to their home country have not undergone review hearings.

About a quarter of detainees who were cleared to leave GuantanamoBay prison after hearings in 2005 and 2006 remain in custody, raisingquestions among inmates and their lawyers about the legitimacy of thesystem of hearings to review evidence against the prisoners.

The military’s failure torelease all of those who were cleared to leave – combined with the factthat dozens of other inmates who were not cleared have nonetheless beenreleased – has led many inmates and their lawyers to contend that thesystem is a sham, and that the real decisions are being made elsewhere.

Themilitary says most of the cleared inmates remain in custody because ofdifficulties in negotiating terms of their release to their homecountries. But officials also acknowledge that the hearings are not thefinal decision on an inmate’s fate, and that the Pentagon retains thepower to hold even those who have been cleared by the three-officerpanels who review the inmates’ cases.

For example, if you’re Saudi, they Read more →