Charlie Savage has a report describing how Rand Paul’s hold the reconfirmation of Robert Mueller threatens to push the process beyond the time when Mueller’s ten year appointment date.

[A] necessary first step — enacting legislation that would create a one-time shortened term and make an exception to a 10-year limit on the amount of time any person may serve as director — has been delayed by Senator Rand Paul of Kentucky, a libertarian-leaning Republican who was elected last year. He is invoking a Senate rule that allows any member to block a swift vote on a bill.

There may be significantly less time to complete the steps necessary to avoid a disruption at the F.B.I. than had been generally understood.

The widespread understanding has been that Mr. Mueller’s term will expire on Sept. 3, because he started work as F.B.I. director on Sept. 4, 2001.

But the administration legal team has decided that Mr. Mueller’s last day is likely to be Aug. 2, because President George W. Bush signed his appointment on Aug. 3, 2001. Coincidentally, Aug. 2 is also the day the government will hit a debt ceiling if Congress does not raise it.

I’ll be curious, though, whether the questions Paul has submitted to be answered before the vote might also lead to a delay, too In addition to questions about:

Circumstances implicating the Iraqis indicted in Bowling Green, KY
Investigative lapses of Zacarias Moussaoui that happened under Mueller’s predecessor
A Resource Guide: Violence Against Reproductive Health Care Providers calling boycotts “intimidation” (that might be more easily answered if the government would get over its squeamishness about calling Scott Roeder a terrorist)
A Missouri fusion center report suggesting support for Ron Paul (and Bob Barr!) might be a political risk factor for domestic terrorism

Paul also asks for the FBI to describe how many time it used each of the following tools, whether against citizens or non-citizens, and how many convictions resulted:

John Doe roving wiretaps
Section 215 orders (including its use for library records)
National Security Letters
Suspicious Activity Reports

He also asked, with respect to SARs, whether they got minimized after being investigated.

Now, Paul did not ask for this data in the most savvy fashion. For example, he did not specify on his Section 215 request that he wanted details on the secret program that uses cell phone data to collect geolocation. Nor did he ask generalized questions about minimization. Nor did he specify he wanted this data in a form which he could release publicly.

But these questions are, to a significant extent, the kind of disclosures that Democrats and Paul had been pushing to add to the PATRIOT Act.

In the past, DOJ has not exactly been forthcoming with some of this information. Even assuming they’ll answer Paul in classified form (particularly his question about SARs minimization), it’s not clear how quickly they’ll be able to produce some of this information.

All of which adds to the possibility that Paul’s request might hold up Mueller’s re-confirmation past August 2. If that happens–Tom Coburn has suggested–there are a range of surveillance authorizations that might be open to challenge because no confirmed FBI Director had approved them.

Nice to see someone wring some transparency out of this silly reconfirmation process.

In an effort to keep track of breaking stories without necessarily doing a post on all of them, I’m going to start doing a post of links every day. I’ll explain more on what I’m trying to achieve with this next week. And I expect most days the post will be longer than this. But in case you were looking for reading material over the weekend…

Thomas Drake: Drake was sentenced to a year of probation today for exceeding the authorized use of a computer. I guess the only revenge Michael Hayden gets on Drake for whistleblowing about SAIC’s waste is the knowledge that he’s ruined Drake’s career. That, and that this case further institutionalizes the government’s efforts to treat leaks as espionage.

Debt Limit Distractions: The geniuses in DC are still squabbling over how much worse to make the recession by cutting government spending while money is practically free. Obama’s solution for jobs continues to be sending them overseas. Meanwhile, at a house party near, you, real people will be talking about jobs. And remember how David Plouffe claimed that Americans were feeling better about their own economic situations? They’re not.

More Bank Bailouts and Austerity in Europe: Meanwhile, country after country in Europe faces big lending costs because the banksters haven’t taken their share of losses from the crash, with Ireland leading the way. And Italy pushed through its own austerity measures today, continuing the push among most developed nations to alter the social contract to help the banks.

Murdoch Scandal: Several big developments today: Both Rebekah Brooks and Les Hinton resigned today. Of note, Prince Alwaleed bin Talal, the Saudi who owns a big chunk of News Corp, had called for Brooks’ resignation. Meanwhile, in the US, DOJ has announced it is investigating News Corp, though the investigation may be limited to whether or not the company hacked into the phones of 9/11 victims. And News Corp has hired Brendan Sullivan Jr (lawyer to both Ted Stevens and Ollie North, from Williams & Connolly.

Libya: The US and a slew of other nations have recognized Libyan rebels as the legitimate government of Libya. While the WaPo explains the US’ earlier hesitation stemmed from concerns about governance, Harold Koh had also said–in response to a question from Senator Webb–that the US was sustaining its recognition of Qaddafi because it made it easier to hold him responsible for his actions. I guess now we can assassinate him without violating our bans on such things? It will also give the US and other nations the ability to unfreeze assets.

The War on Terrorism our Constitution: Yesterday, DOJ indicted someone for linking to bomb-making instructions. Marty Lederman assesses the indictment in light of historical precedent and suggests there may be problems with both charges. Today, the DC Circuit Court ruled that TSA could continue to use naked scanners.

Corporate Torture: There have been two circuit decisions in the last week finding that corporations can held liable for torture. bmaz or I will have more comment on these in the near future. But the short version is–this question is definitely headed for SCOTUS.

You’ve found our new digs!

Thanks to Chris, Dan, Rayne, Brian, and Jason for helping with this transition–particularly Chris and Dan who helped with a lot of last minute surprises.

The site is not yet fully functional–most notably, we’re working on comments. Right now, we don’t have a registration system like we did at FDL: you need to enter your username and email address and it will need approved. Also, comments from yesterday afternoon and today at the FDL site are not yet in these posts.

Also, we don’t yet have the RSS feeds working. We have the RSS feed for the posts set up–working on comments.

We should be fully up and running early next week.

As Josh Gerstein reported, back in June, Jeffrey Sterling asked the government for details about which parts of James Risen’s account of Merlin are true and which are false. His lawyers argue that Sterling cannot be guilty of disseminating national defense information if what he disseminated–as the government claims–was actually not true.

Now, at first glimpse, this seems to be a graymail attempt: an attempt to demand information from the government it will ultimately refuse to turn over.

In addition to details of the alleged operation, the defense is entitled to know if, as a result of the publication of State of War, the identity of Human Asset No. 1 was learned by any foreign power at all. It is entitled to know if because of the publication of State of War, the Iranians shelved plans to use the blue prints that they allegedly learned, due to the publication of State of War, were allegedly flawed. The defense is entitled to know if this “Rogue Operation,” as described by Mr. Risen, did help the Iranian nuclear program in any way.

Some of this information, after all, would be the information Risen’s sources would have been trying to get out in the first place; this is precisely the kind of information the government is trying to suppress by prosecuting this case. And the emphasis on whether Iran (or another country) learned this information from Risen’s book–or from the operation itself–would make for an interesting question (though I suspect the government would retreat to a claim they’ve made before: that part of the damage comes in letting other countries know about this op).

But I’m also interested in Sterling’s focus on expert witnesses: as of June 22, when this was filed, the government had not yet revealed to the defense what expert they would call to verify that this information was actually national defense information. I suspect part of what the defense is trying to do is force that issue–and in particular, learn whether that expert will be someone who was actually involved in the operation (and therefore could refute Sterling’s version of what happened) or someone else, who would rely on second-hand information.

At a minimum, it must allow the defense to challenge the accuracy of that testimony by confronting the witness called by the government with the truth of what actually occurred.

I hope to come back to this issue in the coming days.

just as interesting as this attempt to get more information on what the government claims happened with the Merlin program is the timing. At one level, it seems very late in the process, almost a second swipe at a Bill of Particulars (the government responded to the first one by giving Sterling the chapter of Risen’s book).

But remember that this filing also came before most of the filings on whether or not Risen will have to testify. I noted that in addition to everything else the government has said to support its subpoena of Risen, they also said he cannot protect a source who passed false information. Of course, they haven’t proven that, they’ve simply gotten a grand jury to buy off on that.

It seems the stakes on whether information Sterling allegedly provided Risen was true or not have gone up. But that seems to be precisely the kind of information the government will want to keep out of court.

.

Well well well. who couldda knowd?? Acute prosecutorial foul play has ended the big Roger Clemens perjury trial at it’s gestation. From ESPN:

The judge presiding over Roger Clemens’ perjury trial declared a mistrial over inadmissible evidence shown to jurors.

U.S. District Judge Reggie Walton said Clemens could not be assured a fair trial after prosecutors showed jurors evidence against his orders in the second day of testimony.

He will hear a motion on whether a new trial would be considered double jeopardy.

Whooo boy, Judge Walton must have been a little upset. Why yes, yes, he was:

.

“I don’t see how I un-ring the bell,” he said

Walton interrupted the prosecution’s playing of a video from Clemens’ 2008 testimony before Congress and had the jury removed from the courtroom. Clemens is accused of lying during that testimony when he said he never used performance-enhancing drugs during his 24-season career in the major leagues.

One of the chief pieces of evidence against Clemens is testimony from his former teammate and close friend, Andy Pettitte, who says Clemens told him in 1999 or 2000 that he used human growth hormone. Clemens has said that Pettitte misheard him. Pettitte also says he told his wife, Laura, about the conversation the same day it happened.

Prosecutors had wanted to call Laura Pettitte as a witness to back up her husband’s account, but Walton had said he wasn’t inclined to have her testify since she didn’t speak directly to Clemens.

Walton was angered that in the video prosecutors showed the jury, Rep. Elijah Cummings, D-Md., referred to Pettitte’s conversation with his wife.

“I think that a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence,” Walton said.

Well, yes, Reggie Walton is exactly right. It was not only an inappropriate attempt at backdoor admission of what was, at the time, hearsay but, much, much, more importantly flew directly in the face of a direct and specific previous order of the court on this EXACT issue. You just do not do that, and if you do you cannot whine when the court spanks your ass. You got said ass whuppin the old fashioned way, you earned it.

So, now the germane question is where do we go from here; i.e. what about a new trial. Well, that depends on a fair amount of pretty complicated things that are not going to be self evident to those not more than intimately experienced in the nuances of technical trial law are going to understand. I will get into that in detail, and discuss the legal implications and situation, when the pleadings are filed. Judge Walton has scheduled a Sept. 2 hearing on whether to hold a new trial, or dismiss the case permanently due to double jeopardy. clemens’ defense team will have until July 29 to file the motion to dismiss with prejudice and the prosecution has until Aug. 2 to respond.

A lot of judges would have tried to paper over this bogosity by the prosecution. Reggie Walton is PISSED. He may well say they are done based on double jeopardy. Those are gonna be fun briefs, and a very interesting oral argument.

One further thing, despite the incredibly short tenure of this jury trial – literally really in the first day of evidentiary presentation – today’s antics were NOT the first instance of prosecutorial misconduct. Oh no, the government was acting maliciously and unethically from the get go in the opening statements.

[Judge Walton] said it was the second time that prosecutors had gone against his orders — the other being an incident that happened during opening arguments Wednesday when assistant U.S. attorney Steven Durham said that Pettite and two other of Clemens’ New York teammates, Chuck Knoblauch and Mike Stanton, had used human growth hormone.

Walton said in pre-trial hearings that such testimony could lead jurors to consider Clemens guilty by association. Clemens’ defense attorney objected when Durham made the statement and Walton told jurors to disregard Durham’s comments about other players.

Yes, boy howdy, that is precisely right.

I think that the Laura Pettite bit, coupled with the improper attempt at prohibited guilt by association in the openings makes a fast pattern to malicious prosecution. If Reggie wants, he can dismiss and ground it upon both mistrial and sanction for malicious.

I’ve been telling people for years that it was NOT just former IRS goon come FDA stoolie agent Jeff Novitsky (although it all starts with him) that was malfeasant in the BALCO cases, including the Mitchell report kerfuffle, it was the AUSAs too.

This mendaciousness is just bogus and deplorable. Congratulations to Judge Reggie Walton for fingering it for what it is. Now dismiss this bunk forever please.

Republicans are big fans of projection. When they’re neck-deep in conflicts of interest, they like to hide it by accusing Democrats of such conflicts. When they leak stuff, they accuse Democrats. When they mismanage stuff, they accuse Democrats.

And yesterday, Darrell Issa got caught doing just that.

A year ago, on July 27, 2010, Issa accused the Financial Crisis Inquiry Commission of partisanship, largely because Democrats passed the Dodd-Frank financial reform bill before the FCIC reported its conclusions. Of particular note, Issa claimed Democrats on the FCIC were letting partisan ties direct their work.

Yet, as a report released by Elijah Cummings yesterday makes clear, the Republicans were the ones being directed by outside influences–both by their own partisan considerations, as well as two possible lobbyists. The report found that:

• Immediately after Republicans took the House last November, some Republicans on the Committee started tailoring their contributions to make sure they would serve the goal of setting up a repeal of Dodd-Frank. Of particular note, Commissioner Peter Wallison started sending emails warning, “It’s very important, I think, that what we say in our separate statements not undermine the ability of the new House GOP to modify or repeal Dodd-Frank.”
• Wallison (who is a fellow of AEI) also tailored his contributions–including his separate statement–largely to parrot the discredited theories of AEI fellow (and former Fannie Mae official) Edward Pinto. Pinto argued that the entire crash was caused by HUD’s affordable housing policy. Wallison’s mindless insistence on advancing Pinto’s theory got so bad that the special assistant to Republican FCIC Vice Chairman, Bill Thomas, suggested, “I can’t tell re: who is the leader and who is the follower. If Peter is really a parrot for Pinto, he’s putting a lot of faith in the guy.” Not only did Wallison serve Parrot’s propaganda, though: he also shared confidential documents made available to the FCIC, violating its ethics standards.
• Thomas himself consulted with–and shared confidential information with–someone outside the Commission: the CEO of a political consulting firm, Alex Brill (he’s also a fellow at AEI). At one level, Brill seems to have been offering Thomas political advice. But it also appears Brill may have been trying to cushion the damage done by the FCIC to Citibank’s reputation.

Now, Cummings released this report partly because Issa refused to call Thomas and Wallison as witnesses in his inquiry into problems with the FCIC. And the release of the report seems to have convinced Issa to indefinitely postpone the investigation into the FCIC.

Good–this is precisely the kind of thing I was thinking of when I suggested we needed someone like Cummings to babysit Issa.

But it also seems like a good time to turn this into a much bigger attack.

As Cummings’ FCIC report makes clear, what Wallison and Thomas appear to have done is unethically misuse funds appropriated by Congress. While it’s not entirely clear who the ultimate beneficiaries of their ethical lapses are–aside from, vaguely, the banksters, both men were collaborating improperly with AEI fellows. More clearly, both men appear to have violated their ethical obligations–a set of rules–to try to make sure banksters didn’t have to follow any rules passed under Dodd-Frank.

Issa is teeing off today, again, against Elizabeth Warren. I do hope Cummings finds ample opportunity to remind Issa that it’s clear he’s doing the bidding not of transparency or oversight or the American people, but rather a number of corrupt banksters trying to avoid playing by the rules.

The ACLU has just FOIAed the CIA and Director of National Intelligence for any information on Juan Cole. It asks for,

e-mails, letters, faxes, or other correspondence, memoranda, contemporaneous notes of meetings or phone calls, reports or any other material relating to the gathering, collecting, copying, collating, generating or other use of information and material regarding Professor Cole,

The FOIA is addressed to CIA, Director of National Intelligence, and DOJ.

Now, far be it for me to tell ACLU how to FOIA–after all, they’re the best in the business at wringing embarrassing documents out of the government.

But they might want to FOIA DOD, too.

You see, there’s something that has been haunting me about this description from James Risen’s story on this.

According to Mr. Carle, Mr. Low returned from a White House meeting one day and inquired who Juan Cole was, making clear that he wanted Mr. Carle to gather information on him. Mr. Carle recalled his boss saying, “The White House wants to get him.”“ ‘What do you think we might know about him, or could find out that could discredit him?’ ” Mr. Low continued, according to Mr. Carle.

Mr. Carle said that he warned that it would be illegal to spy on Americans and refused to get involved, but that Mr. Low seemed to ignore him.

That first request elicited, Carle told Amy Goodman, four paragraphs of information, one of which included derogatory information.

GLENN CARLE: Yes, that’s correct. I was—the following day, I came to work and was asked to represent my office at the senior staff meeting, which is routine. And I did. And it was also routine that I take a memorandum of some sort up to the front office, I believe, for the White House. And I thought that I should know what I was doing for the morning, and I read the memo, and it was a memo on Professor Cole with four paragraphs, as I recall, only one of which was about inappropriate personal information. The other three struck me as innocuous. I don’t remember specifically what they said, but one of the four.

Now maybe it’s Carle’s reference, also in the Democracy Now interview, to the Plame outing. But I can’t help but think of how the White House got people across the national security community to reveal that Plame worked for the CIA: They kept asking for information on Wilson’s trip, long after they had already gotten the information they purportedly needed. So, for example, the day after John Hannah briefed Cheney on the trip, Cheney asked someone at CIA for more information on the trip, using incorrect information that would need corrected (I suspect this request was made at a Deputies Committee meeting at the White House, and I think Libby is the one who formally made the request). Then, two days later and almost certainly after Cheney had been briefed personally by (he says) George Tenet as well as (records show) John McLaughlin, and almost certainly after Libby had gotten information from Marc Grossman on Plame’s work at the CIA, Cheney and Libby called the CIA from a meeting with Cathie Martin, to ask for information they already knew. That call was ultimately how Martin learned, from Bill Harlow, that Plame worked for the CIA.

You see, the White House kept asking for the same information they already knew so they could try to get the CIA to share that information in a way they could use it. Of course, along the way, they increased the circle of people who knew that information, which is one of the things that led to the leak of Plame’s identity.

Now, this may not be what is happening here: an attempt to get CIA to take note of information about Cole the White House believed was derogatory.

But it would be worth checking to see whether likely co-participants in a meeting with National Intelligence Council’s David Low or CIA’s Deputy Director for intelligence, John A. Kringen also got similar requests–not least because DOD, with its CIPA program, would likely have been less squeamish about digging up dirt on Cole.

In any case, given the way the government responds to FOIAs, we’ll probably learn more about this in 5 years or so.

In its statement of Administration policy on HR 2055–which funds military construction–the Administration expressed concern that the Senate had cut $100 million funding for two projects in Bahrain.

The Administration is worried, you see, that such cuts would signal that we do not “stand by its allies.”

The Administration is concerned about the reduction in funding for military construction projects in Bahrain as well as those associated with the relocation of United States Marines to Guam. Deferring or eliminating these projects could signal that the U.S. does not stand by its allies or its agreements such as the realignment of forces from Okinawa to Guam.

Because it’s very important to “stand by” our allies, I guess, when the abuse their own people.

Across the pond–in the investigation of British complicity with the torture of Binyam Mohamed and others–the Supreme Court has told the government it can’t present secret evidence.

The supreme court has outlawed the use of secret evidence in court by the intelligence services to conceal allegations that detainees were tortured.

The decision will be seen as a significant victory for open justice, but the panel of nine judges pointed out that parliament could change the law to permit such “closed material procedures” in future.

The appeal was brought by lawyers for MI5 seeking to overturn an earlier appeal court ruling that prevented the service from suppressing accusations British suspects had been ill-treated at Guantánamo Bay and other foreign holding centres.

And here in the land where such secrets have become the norm, Apuzzo and Goldman reveal one of the reasons why DOJ is taking a closer look at Manadel al-Jamadi’s death: because the CIA guy in charge of an unofficial interrogation program in Iraq went beyond clear directions from HQ.

Steve Stormoen, who is now retired from the CIA, supervised an unofficial program in which the CIA imprisoned and interrogated men without entering their names in the Army’s books.

The so-called “ghosting” program was unsanctioned by CIA headquarters. In fact, in early 2003, CIA lawyers expressly prohibited the agency from running its own interrogations, current and former intelligence officials said. The lawyers said agency officers could be present during military interrogations and add their expertise but, under the laws of war, the military must always have the lead.

This detail is interesting for another reason. The AP notes that Stormoen asked to use torture tactics.

Tactics such as waterboarding and sleep deprivation, which the CIA used in other overseas prisons, were prohibited at Abu Ghraib without prior approval. In videoconferences with headquarters, Stormoen and other officers in Iraq repeatedly asked for permission to use harsher techniques, but that permission was never granted, one former senior intelligence official recalled.

This would have put Stormoen in Iraq asking to use things like waterboarding not long after someone in OVP suggested waterboarding a different detainee, Muhammed Khudayr al-Dulaymi.

At the end of April 2003, not long after the fall of Baghdad, U.S. forces captured an Iraqi who Bush White House officials suspected might provide information of a relationship between al Qaeda and Saddam Hussein’s regime. Muhammed Khudayr al-Dulaymi was the head of the M-14 section of Mukhabarat, one of Saddam’s secret police organizations. His responsibilities included chemical weapons and contacts with terrorist groups.

[snip]

Duelfer says he heard from “some in Washington at very senior levels (not in the CIA),” who thought Khudayr’s interrogation had been “too gentle” and suggested another route, one that they believed has proven effective elsewhere. “They asked if enhanced measures, such as waterboarding, should be used,” Duelfer writes. “The executive authorities addressing those measures made clear that such techniques could legally be applied only to terrorism cases, and our debriefings were not as yet terrorism-related. The debriefings were just debriefings, even for this creature.”

Duelfer will not disclose who in Washington had proposed the use of waterboarding, saying only: “The language I can use is what has been cleared.” In fact, two senior U.S. intelligence officials at the time tell The Daily Beast that the suggestion to waterboard came from the Office of Vice President Cheney.

Now, I have always imagined that Cheney tried to order up military interrogators to waterboard Khudayr; OVP wasn’t exactly getting along with the CIA in 2003. But you do have to wonder why Stormoen ignored HQ’s directions on torture.

A detainee in what Jeremy Scahill describes as “a secret prison buried in the basement of Somalia’s National Security Agency (NSA) headquarters, where prisoners suspected of being Shabab members or of having links to the group are held”–one with key US involvement–describes his internment this way.

I have been here for one year, seven months. I have been interrogated so many times. Interrogated by Somali men and white men. Every day. New faces show up. They have nothing on me. I have never seen a lawyer, never seen an outsider. Only other prisoners, interrogators, guards. Here there is no court or tribunal.

Scahill’s entire article, describing our counterterrorism efforts in Somalia, is of course a must read, particularly given questions raised by the Ahmed Abdulkadir Warsame indictment.

But given my non-debate with Benjamin Wittes about drones and sovereignty (though these programs go far beyond drone strikes), I wanted to point to Scahill’s description of the arrangement the US has with Somalia in this.

According to well-connected Somali sources, the CIA is reluctant to deal directly with Somali political leaders, who are regarded by US officials as corrupt and untrustworthy. Instead, the United States has Somali intelligence agents on its payroll. Somali sources with knowledge of the program described the agents as lining up to receive $200 monthly cash payments from Americans. “They support us in a big way financially,” says the senior Somali intelligence official. “They are the largest [funder] by far.”

[snip]

It is unclear how much control, if any, Somalia’s internationally recognized president, Sheikh Sharif Sheikh Ahmed, has over this counterterrorism force or if he is even fully briefed on its operations. The CIA personnel and other US intelligence agents “do not bother to be in touch with the political leadership of the country. And that says a lot about the intentions,” says Aynte. “Essentially, the CIA seems to be operating, doing the foreign policy of the United States. You should have had State Department people doing foreign policy, but the CIA seems to be doing it across the country.”

While the Somali officials interviewed for this story said the CIA is the lead US agency coordinating the Mogadishu counterterrorism program, they also indicated that US military intelligence agents are at times involved. When asked if they are from JSOC or the Defense Intelligence Agency, the senior Somali intelligence official responded, “We don’t know. They don’t tell us.”

Not only is the bulk of our relationship with Somalia going through these intelligence channels to intelligence channels. But it also relies on African Union forces.

The [defense bill authorizing increased counterterrorism support in Somalia], however, did not authorize additional funding for Somalia’s military, as the country’s leaders have repeatedly asked. Instead, the aid package would dramatically increase US arming and financing of AMISOM’s forces, particularly from Uganda and Burundi, as well as the militaries of Djibouti, Kenya and Ethiopia.

I understand that Somalia is one of the most challenging places to work, given the absence of any viable state (save, perhaps, al-Shabaab). But our direct–and secret–control of other territories is worth thinking seriously about.