The key swing votes have swung. Sens. Chuck Schumer (D-NY) and Dianne Feinstein (D-CA) say they're voting for, meaning that Michael Mukasey will make it through the Senate Judiciary Committee and almost certainly be confirmed as the next attorney general.

Here's Schumer's explanation, via Roll Call (sub. req.):

“I deeply esteem those who believe the issue of torture is so paramount that Judge Mukasey’s views on it should be the sole determinant of our vote,” Schumer said in a statement. “But I must respectfully disagree.

“The Justice Department is a shambles: politicized and demoralized. The belief and hope [is] that Justice Mukasey, with his experience, independence and integrity, can restore the department motivates my vote.”

And here's Feinstein, in a release just out:

"I believe that Judge Mukasey is the best we will get and voting him down would only perpetuate acting and recess appointments, allowing the Administration to avoid the transparency that confirmation hearings provide and diminish effective oversight by Congress."

Five Dems on the Senate Judiciary Committee so far have said no to Mukasey, and five Dems remain undecided. A single defection would put Michael Mukasey through. As we noted this morning, Sens. Chuck Schumer (D-NY) and Dianne Feinstein (D-CA) are considered the key swing votes.

It will surprise many people that one of those undecided senators is Russ Feingold (D-WI), and in a statement, he says he's still mulling it:

“I have not made up my mind about Judge Mukasey’s nomination to be the next Attorney General. Judge Mukasey is a marked improvement over Alberto Gonzales in many ways, including his apparent commitment to running the Department in an apolitical fashion. He may be the best nominee we can get from this administration in this respect. But I am concerned about his views on executive power, and I am weighing whether his answers to questions in that area adequately demonstrate a commitment to the rule of law. We need an Attorney General who will tell the President that he must abide by statutes enacted by Congress, and who will not equivocate on an issue as fundamental as torture. I will consider these and other issues as I weigh my vote.”

Pressure's on, Chuck! CNN is reporting that Senate Judiciary Chairman Patrick Leahy (D-VT) will announce today that he'll be voting against Michael Mukasey for attorney general on Tuesday.

Update: Here's the AP report:

"No American should need a classified briefing to determine whether waterboarding is torture," said U.S. Sen. Patrick J. Leahy, D-Vt.

The U.S. military official in charge of supporting reconciliation efforts in Iraq says that unless the Shiite-led Iraqi government takes concrete steps to embrace the Sunnis, the new, mostly-Sunni ex-insurgent militias supported by the U.S. could return to insurgency.

Shiite officials are like an "enormous lion very, very afraid of a tiny mouse," Army Colonel Martin Stanton told a blogger conference call this afternoon. That mouse, however, isn't so tiny: over the past several months, hundreds if not thousands of irregular groups of (mostly) Sunni militiamen -- called "Concerned Local Citizens" by the U.S. military -- have been formed with U.S. support. Stanton, like other military officials, estimated their number at 67,000 men under arms, with 39,000 of them operating under "security contracts" with U.S. and allied forces. Ever since the U.S. began cooperating with Sunni tribal figures who agreed to turn against al-Qaeda, the Shiites have feared that U.S.-supported Sunni gunmen represent a threat to their political dominance.

Stanton believes Shiite reluctance to bring the so-called Concerned Local Citizens into the formal security forces and to hold provincial elections -- expected to benefit the Sunnis, who boycotted the last round of provincial voting in 2005 -- might guarantee precisely the result that the Shiites fear. "How long before all of these people trying to reconcile get discouraged at the continuous rebuff and come up with their own Plan B?" he asked. Plan B, Stanton assessed, might be either formal secession or to "pick up insurgency again." When I asked what the timetable might be for the Sunni Concerned Local Citizens to go to Plan B, he replied, "God, man, if I knew that, I'd be so much happier with my job than I am right now."

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Michael Battle, the man who ran the Justice Department office that oversees all U.S. attorneys, and who made the actual phone calls to the fired U.S.A.s, gave an interview to NPR today.

As you'd expect, he doesn't have a whole lot to add. Was he asked before the firings about which U.S.A.s weren't doing a good job? Yep, but he couldn't think of any at the time. And he sat down to that infamous November, 2006 meeting with the DoJ leadership not knowing what Kyle Sampson had up his sleeve. As it turned out, they were going to fire a bunch of prosecutors, no one else there seemed to know much about it, and Battle was the one who was going to make the phone calls.

So Battle, following orders, made the calls. And it was "distasteful." A couple of months later he left, but he wants the world to know that his departure had long been planned and was unrelated. So there: his story is told.

Prosecutors scored their third conviction of a third former Alaska state lawmaker yesterday, nailing Vic Kohring on three of four counts. He was convicted of taking a couple thousand dollars in bribes from Veco executives and asking for $17,000 more (to pay off credit card debt due to health care bills).

Jurors were united in finding Kohring guilty -- and in not feeling good about it:

As they left the Federal Building, jurors looked drained but relieved after roughly nine hours of deliberations over two days. Only a few would talk. They said they anguished over their decision.

One, who declined to be identified other than as "juror No. 8," said "they didn't get the sharks. They got the minnow."

Most felt sorry for Kohring and saw him as "a very sympathetic figure," said Alan Rowe, juror No. 12.

The "sharks" in that metaphor, of course, would have to be the biggest fish in Alaska: Sen. Ted Stevens (R-AK) and his son, Ben.

Day three of deliberations for the jury in Brent Wilkes' trial begins today.

Did Wilkes' performance on the stand give them something to think about? Or are they just laboring their way through the two dozen counts in the indictment?

Consumer Product Safety Commissioner Nancy Nord has taken dozens of trips where airfare, accommodations and meals were financed by trade industries and manufacturers under the purview of her agency. The big winner was an $11,000 trip to China, with all costs covered by a fireworks company. (Washington Post)

CBS 60 Minutes has discovered the identity of “Curve Ball,” the Iraqi defector and secret CIA source who fabricated stories of Iraqi biological weapons that served as the pretext for the US invasion of Iraq. In addition to being a liar, Rafid Ahmed Alwan was a thief and poor student, not a chemical engineer as he claimed. (CBS 60 Minutes)

A New York City Councilman wants to know why former Mayor Rudy Giuliani thought it was appropriate to offer a no-bid contract to Motorola that resulted in faulty radios for firefighters during 9/11. The chair of the city's oversight and investigations committee says he intends to get to the bottom of the matter. (Huffington Post)

University and public librarians are alarmed that Draft House and Senate surveillance bills “allow the government to compel any ‘communications service provider’ to provide access to e-mails and other electronic information within the United States as part of federal surveillance of non-U.S. citizens outside the country.” Privacy and academic freedom are at risk because universities that run private Internet networks can be classified as Internet service providers, thus opening up entire campuses to surveillance. (Washington Post)

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No one will ever say "poor Chuck Schumer."

But Chuck is in a bind, to be sure. He's never been shy about taking credit. And when the White House was reportedly musing about selecting someone like Ted Olson to replace the attorney general who Schumer helped drive from office, Schumer didn't hesitate to publicly recommend a "consensus" candidate like his old acquaintance Michael Mukasey.

But after Sen. Sheldon Whitehouse (D-RI) finished with him, Mukasey was a consensus candidate no more. And given a second chance, he still refused to call drowning someone (under controlled circumstances) torture.

Now, as we said yesterday, it all comes down to the Senate Judiciary Committee, of which Schumer is a very vocal member. And with four Democrats already coming out against Mukasey, Schumer's in the novel position of being one of the key swing votes, reports The Washington Post:

Republicans privately say that the nominee's prospects hang on a few votes, particularly those of Schumer and Sen. Dianne Feinstein (D-Calif.), who has broken ranks with her party in the past.

Until yesterday, Schumer was ducking cameras rather than answer questions about Mukasey. And when he finally talked to reporters, it was clear why he'd been camera shy. He told reporters yesterday on a conference call that he's caught in a "substantive tough spot." And even during that call he vaulted back and forth on how he might vote:

"From this administration, we will never get somebody who agrees with us on issues like torture and wiretapping," Schumer said at one point, suggesting an argument in favor of Mukasey, who faces a Senate Judiciary Committee vote on Tuesday. "The best thing we can hope for is someone who will depoliticize the Justice Department and put rule of law first."

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A couple of weeks ago, the Senate intelligence committee passed a bill that includes retroactive immunity for telecommunications companies that collaborated with the administration's warrantless wiretapping program. And next Thursday, the Senate Judiciary Committee will get its chance. It'll be a busy week at the committee; the vote on Michael Mukasey is Tuesday.

Yesterday both Chairman Patrick Leahy (D-VT) and ranking member Arlen Specter (R-PA) expressed opposition to such immunity, as they have before. During the meeting next Thursday, members will have the opportunity to offer an amendment to strip it away from the bill. A spokeswoman for Leahy said that he's still reviewing the materials turned over just this week relating to the legal basis for the warrantless wiretapping program and hasn't decided yet whether to offer an amendment or what form it would take.

So the committed "no" votes on Michael Mukasey are up to a whopping nine. The total is likely to climb still higher, but as David pointed out yesterday, the real battle will take place in the Senate Judiciary Committee.

There, the Democrats outnumber the Republicans 10-9. And four Dems have already said they'll vote no. Chairman Patrick Leahy (D-VT) has yet to say whether he's made the full journey from "I like him" to "concerned" to "no." Sen. Chuck Schumer (D-NY), who championed Mukasey, is dodging the cameras. The rest haven't said. And though ranking member Sen. Arlen Specter (R-PA) has expressed doubts about Mukasey, it's hard to imagine him actually voting no.

So what would happen if the no votes won? Well, nothing is simple in the Senate. But by far the most likely scenario is that Mukasey's nomination would in fact die there. However, there are some maneuvers whereby Mukasey could still make it on to the Senate floor with the majority of senators on the panel opposing him.

A spokeswoman for Sen. Leahy, however, said that he expects a straightforward vote: “While there are other vote options which other senators can motion for in the committee, Sen. Leahy expects a yes-no vote in the committee on Tuesday.”

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Time to update the ol' Blackwater investigation tally. NBC reports that federal investigators are probing the company's exportation of "dozens" of silencers to Iraq and elsewhere. It's illegal to do so without permission from the State Department.

NBC reports that a whole bevy of agencies, including the Bureau of Alcohol, Tobacco and Firearms and the State Department are in on the investigation, which appears to be related to the broader federal criminal investigation for arms smuggling by Blackwater guards led by the U.S. Attorney's Office in Raleigh, N.C.

Intriguingly, NBC reports that "experts say it is not clear why Blackwater guards would need them for missions such as personal protection of diplomats."

As the feds are bearing down hard on Sen. Ted Stevens (R-AK), raiding his Alaska home and convening a grand jury in Washington, D.C., another investigation into a sitting senator has been proceeding quietly up in New Jersey.

Over the past several months, the U.S. attorney's office in New Jersey has issued two grand jury subpoenas to former clients of Kay LiCausi, a lobbyist and former aide to Sen. Robert Menendez (D-NJ). The investigation, of course, is no secret, but after a controversy raged over subpoenas issued shortly before the 2006 election, the investigation has shifted direction entirely. Now the focus seems to be whether Menendez steered lobbying contracts to his former girlfriend and then delivered government funds to those client once they'd hired her.

It's never been confirmed that LiCausi and Menendez, who's divorced, were in a romantic relationship. But the rumors were such that The New York Times didn't hesitate to report in 2005 on "the widespread belief" in New Jersey and among Menendez's former staffers that they were. And Menendez himself has never denied it, always answering queries with "that's strictly personal." Reports of the relationship have always been phrased in the past tense since 2005.

LiCausi started work for Menendez back when he was in the House in 1998. She was 26. Four years later she left with the title of chief of staff of his New Jersey office, a position that the Times called "midlevel" -- she supervised six people. But immediately she began raking in some hefty contracts, not only as a lobbyist, but also as a fundraiser for Menendez and the Democratic Congressional Campaign Committee. Menendez admitted to the Times that he'd "encouraged" the DCCC to hire her for the $10,000 a month spot. And no doubt he was responsible for the work on his political committees, where she was also making another $10,000 a month fundraising for both his political action committee and his campaign. And then there were the lobbying contracts which also rolled in.

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Sen. Chuck Schumer (D-NY) was an early and vocal advocate for Michael Mukasey, which means that he's currently in the uncomfortable and, for him, novel position of being the least vocal of Senate Democrats.

Things have gotten so bad that Schumer, known as a legendary publicity hound on the Hill, is ducking cameras:

On Wednesday, Mr. Schumer was uncharacteristically reluctant to discuss his views. He avoided television crews waiting outside an unrelated news conference and refused to answer questions about the judge’s letter on waterboarding.

“I’m not going to comment on Judge Mukasey here,” he said. “I’m reading the letter, I’m going over it.”

And Roll Call reports (sub. req.) that Schumer's early support for Mukasey has damaged "somewhat" his status in the caucus:

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Donald Rumsfeld’s “snowflakes” (memos in which he sprinkled his brilliant musings to his staff) include references to Muslims as people who avoid “physical labor,” and advice to his minions that they “keep elevating the threat,” and “link Iraq to Iran.” Another “snowflake,” (he produced 20 to 60 each day) urged military analysts to “talk about Somalia, the Philippines, etc. Make the American people realize they are surrounded in the world by violent extremists." A former Rumsfeld aide complains that journalists are now seizing on only a few “snowflakes” in an avalanche of more than 20,000. (Washington Post)

As we reported earlier this week, the State Department is forcing employees to fill open positions in Iraq. In a town-hall meeting yesterday, those employees voiced their ire, with one employee saying, "I'm sorry, but basically that's a potential death sentence and you know it. Who will raise our children if we are dead or seriously wounded?" Not to be outdone, the administrator running the meeting compared the dissent over the policy to America's former acceptance of slavery. (AP)

Erik Prince has a new boss. The Department of Defense’s Reconstruction Operations Centers is taking over control of the State Department’s security convoys. But the Reconstruction Operations Center is outsourced through a $475 million contract to the British firm Aegis. This means that Erik Prince now will answer to Aegis CEO Tim Spicer, the guy who used his “mercenary army to launch a counter-coup of the government of Sierra Leone” and “plotted the overthrow of the authorities in Equatorial Guinea.” (Wired)

Lifelong Rudy buddy Bernie Kerik is facing new accusations, this time from his lawyers. They accuse him of welching on $200,000 in legal bills that he ran up during his latest criminal investigation. (Smoking Gun)

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When you get right down to it, Michael Mukasey has refused to answer the question of whether waterboarding is torture for three reasons, which he provided in his letter to Senate Democrats earlier this week. Two of those are readily disputable (not wanting to tip off "our enemies," for example), but the key to his rationale appears to be his expressed fear that the attorney general's public acknowledgment that waterboarding is torture would place interrogators in "personal legal jeopardy."

By this logic, he can't come out and say that waterboarding is torture because the consequences would be disastrous. The New York Times takes a look at that question today and reports that Mukasey is "steering clear of a potential legal quagmire for the Bush administration" by not answering the question.

One legal expert provides the worst case scenario:

Scott L. Silliman, an expert on national security law at Duke University School of Law, said any statement by Mr. Mukasey that waterboarding was illegal torture “would open up Pandora’s box,” even in the United States. Such a statement from an attorney general would override existing Justice Department legal opinions and create intense pressure from human rights groups to open a criminal investigation of interrogation practices, Mr. Silliman said.

“You would ask not just who carried it out, but who specifically approved it,” said Mr. Silliman, director of the Center on Law, Ethics and National Security at Duke. “Theoretically, it could go all the way up to the president of the United States; that’s why he’ll never say it’s torture,” Mr. Silliman said of Mr. Mukasey.

A Pandora's Box! Does Mukasey have any choice?

But the key word here would have to be "theoretical." "Theoretically," yes, Mukasey's outright condemnation of waterboarding as "repugnant" not just to him personally, but also to the law, would open the door to criminal liability.

But there would appear to be some insurmountable obstacles to that actually happening.

On the question of criminal liability, Marty Lederman, formerly of the Justice Department's Office of Legal Counsel, the office that later provided the legal basis for the use of waterboarding in the field, writes that "There is no possibility -- none -- that the Department of Justice would ever prosecute anyone who acted in reliance on OLC's legal advice about what techniques were lawful." Such a prosecution would in effect pit the Justice Department against itself.

The Times adds that "prosecution in the United States, even under a future administration, would face huge hurdles because Congress since 2005 has adopted laws offering legal protections to interrogators for actions taken with government authorization." (The threat of lawsuits, though far less dire, seems a greater possibility.)

But that theoretical fear is a strong one. The Times notes that Jack Goldsmith, the former chief of the OLC, has said that the Bush Administration lives in constant fear of being prosecuted for their actions. It's for that reason the OLC's ability to issue “free get-out-of jail cards” made Goldsmith's tenure such a disaster for the administration. Having worked so hard to get those cards, the administration sure wouldn't have nominated someone who might take them back.

He's up, then he's down. But only one thing counts in the nomination of Michael Mukasey for attorney general, and that's the votes. So we've set up a chart to track them as senators announce their stances. Just today, Sens. Dick Durbin (D-IL) and Sheldon Whitehouse (D-RI) announced that they will be voting against.

Mitchell Wade, that other high-profile (alleged) briber of Duke Cunningham, got hit with a $1 million fine from the Federal Election Commission, what the commission calls "the second largest penalty ever paid in the 32-year history of the FEC."

Update: We neglected to mention that the settlement was a result of a complaint from watchdog Citizens for Responsibility and Ethics in Washington.

The fine is for reimbursing employees at his firm MZM for $78,000 in contributions they made to Rep. Virgil Goode (R-VA) and ex-Rep. Katharine Harris (R-FL). Another MZM exec, Richard Berglund, got hit with a $42,000 fine. Both of them have already pled guilty to criminal charges for the scheme. Berglund was sentenced earlier this year to a year of probation and $5,000 in fines. Wade continues to cooperate with the government in its ongoing investigation of his bribery activities, recently testifying against fellow contractor Brent Wilkes at his trial.

Although Jim King, formerly an aide to Michael Hayden when the CIA chief ran the National Security Agency, was also under investigation by the FEC for his contributions at MZM, the FEC did not to fine him.

The FEC makes a point of saying that it uncovered no evidence that either Goode or Harris knew about the scheme. Wade wooed both of them in order to get earmarks for MZM facilities. In both cases, he was successful -- only Harris bungled the job and failed to land the $10 million she was seeking. Goode requested a total of $9 million for the Foreign Supplier Assessment Center in his Virginia district, which MZM was hired to run. Unfortunately, the center folded after Wade pled guilty, sticking the town, Martinsville, with the bill.

So Michael Mukasey's new line is that waterboarding may be "repugnant," but he's not sure if the Spanish-Inquisition-era torture technique is illegal. Or, to put it another way, he can't say for sure if the practice is illegal until he's confirmed as attorney general.

Mukasey should listen to longtime counterterrorism expert Malcolm Nance. Nance, a veteran of counterterrorism operations in Iraq, has written a moving post for the counterinsurgency blog Small Wars Journal explaining, in more detail than anyone else has in public, what exactly waterboarding is. And Nance knows what he's talking about. As a former instructor at the Navy's training program, Nance (full disclosure, a TPMm pal) confesses that he "personally led, witnessed and supervised waterboarding of hundreds of people" -- not detainees, of course, but would-be SEALs, so they could learn how (hopefully) to resist torture. That training program, known as Survival, Evasion, Resistance, Escape (SERE), became a template for how to abuse detainees in U.S. custody.

Nance's experience leads him to some sharp conclusions:

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So what's next for Alberto Gonzales' former chief of staff Kyle Sampson? Where does a senior Justice Department official with an expertise in politicization, who has experience orchestrating a purge of prosecutors, engaging in a clumsy cover-up, and getting drubbed when testifying before Congress, go next?

The answer: working for drug companies. The Salt Lake Tribune reports that Sampson has landed a gig with the mega-firm Hunton & Williams, in their food and drug practice. There, Sampson will help companies navigate the wilds of Food and Drug Administration regulation, among other duties. The Tribune also reports that the firm has landed a much bigger fish in Sheldon Bradshaw, who, in true revolving door fashion, recently resigned as general counsel of the FDA. Bradshaw also has DoJ experience -- he was one of the political appointees overseeing the notoriously politicized Civil Rights Division. So he and Sampson will likely get along fine.

But wait! Let's not forget Bradley Schlozman who had his own version of what a "loyal Bushie" is -- his phrase for it was "good Americans." Earlier this month, The Kansas City Star reported that Schlozman has opted for a quiet retirement from his rigorous politicization duties at the Department. He'll be practicing tax law at a Kansas City law firm.

The troubles of both, however, are not over, as they are both currently under investigation by the Department's inspector general, whose report on the mess at the DoJ is still forthcoming.

Even though Jack Abramoff is about to celebrate his one year anniversary of reporting to prison, House sleuth Henry Waxman (D-CA) hasn't forgotten about the convicted briber.

Oversight committee chairman Waxman is continuing to press for evidence of the lobbyist's ties to the White House, and in a letter to White House counsel Fred Fielding today, he reveals that that the administration has turned over 3,700 pages of documents related to Abramoff, but refused to turn over 600 pages more, because they “contain internal deliberations among White House employees, or that otherwise implicate Executive Branch prerogatives.”

Waxman tells the White House to either follow through and claim executive privilege for the documents or hand them over. He also muses with (one imagines) a crafty grin, "Given the prior statements by White House officials, it is surprising that there would be this volume of documents of internal deliberations involving Mr. Abramoff."

The scandal created when Waxman released a report last year about Abramoff's significant contacts with the White House forced the resignation of Karl Rove's aide Susan Ralston (who also, coincidentally, used to be Abramoff's personal assistant). Our favorite revelation remains an email where one of Abramoff's associates calls then-White House political director Ken Mehlman a "rock star" for being such a helpful ally.

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You really can't blame Brent Wilkes. After all, it can be such a drag getting a refund.

During his second day of cross-examination yesterday, Wilkes testified that he hadn't sought to reclaim $100,000 he'd paid Duke Cunningham -- the money was supposedly to buy Duke's yacht, but the congressman kept both the cash and the boat --, because it was, well, awkward. He needed Duke's help up there on the Hill, and he didn't want to needlessly upset his crucial friend. Best to let sleeping dogs lie. And when the prosecutor asked Wilkes if he'd ever asked any of his lawyers or accountants to get involved, Wilkes testified: "The consensus advice was that it was better not to pursue it." I bet it was.

But there was even more awkwardness ahead for Wilkes. When Cunningham asked him to wire $525,000 to a New York firm (run by Thomas Kontagiannis), Wilkes jumped at the chance. But not simply because Duke asked him to -- because he was told it was a great investment opportunity: 9% return short-term! Did he ask for an investment prospectus? Assessments? Any information at all? Nope, he received adequate assurances about the investment over the phone.

But the money disappeared (well, it actually went towards paying off Cunningham's mortgage). Did Wilkes seek to recoup the money? "Wilkes said he tried to get the money returned but was unsuccessful, and did not know where the money went." Well, you win some, you lose some.

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The Senate Judiciary Committee will hold it's vote on Michael Mukasey's nomination to attorney general this coming Tuesday, Chairman Patrick Leahy (D-VT) announced today.

Yesterday, Mukasey provided 172 pages (pdf) of written responses to questions from senators. Let the vote whipping begin!

Nobody said the Republicans were going to take it lying down. From The Politico:

With House Democrats considering a floor vote on a contempt resolution against current and former White House aides, Republicans have begun privately plotting a public relations offensive designed to persuade the majority party to drop the issue and move on.

Top GOP leadership and Judiciary Committee staff held a strategy session Tuesday to discuss targeting conservative Democrats — especially those who represent Republican-friendly districts — with floor speeches, private lobbying and other efforts, if Democrats proceed with plans to hold top White House officials in contempt, according to participants in the meeting. Republicans called the emergency session after learning top Democrats were privately asking their members if they should force votes to hold White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers in contempt for failing to provide testimony as part of congressional investigations.

The House Judiciary Committee passed the contempt resolutions in July, remember, after Miers failed to even show up (see image of empty seat above) after receiving a subpoena related to the U.S. attorney firings.

At least someone is supporting Rep. Doolittle (R-CA). He has received $32,000 in contributions to his legal campaign from other lawmakers, with a third of the cash coming from Sen. Orrin Hatch (R-UT). Hatch has also provided support for Sen. Ted Stevens (R-AK) despite the fact that Stevens faces a looming FBI corruption probe. (Sacbee.com)

Abdallah Higazy, a student at Brooklyn Polytech, was once known as the “mysterious” Egyptian man who fled a hotel room near the World Trade Center on Sept. 11, 2001, leaving behind a Koran, an Egyptian passport, and an aviation radio that prosecutors said could have allowed him to communicate with the hijacked airliners. We now know that the radio belonged to a pilot who had previously used the hotel room, that a hotel security guard made false statements about Higazy to the FBI, and that Higazy says his false confession that the radio was his came after an FBI agent threatened to have his family in Egypt tortured. Higazy’s case is now in federal court. (New York Times)

Despite spending over $100 billion to rebuild Iraq, reconstruction of essential services like water and electricity is still flagging behind American benchmarks (sorry, we don't use the "b" word anymore). The Office of the Special Inspector General for Iraq Reconstruction reported yesterday that much spending has not produced anything useful, such as American efforts to reinforce a dam outside Mosul. Which is kind of important, given that the Army Corp of Engineers labeled the Mosul Dam the "most dangerous dam in the world" last year. (NY Times, AFP)

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The State Department explores new frontiers of lawlessness.

Two days ago, the AP broke the story that the State Department had offered immunity to Blackwater guards for their statements following the September 16th Nisour Square shootings that left 17 Iraqi civilians dead.

The State Department didn't have an immediate reply to the story and seemed to be caught off guard. A "senior State Department official" told ABC that "If anyone gave such immunity it was done so without consulting senior leadership at State." Immunity? Who authorized such a thing?

But apparently such a move wasn't so unprecedented. In fact, it was "routine," reports the AP:

Limited immunity has been routinely offered to private security contractors involved in shootings in Iraq, State Department officials said Tuesday, denying such actions jeopardized criminal prosecution of Blackwater USA guards accused of killing 17 Iraqi civilians....

At the State Department, [State Department spokesman Sean] McCormack said "these kinds of issues are not new." He said Justice Department officials "can take steps to work around" any limited immunity agreements. "They provide limited protections that would not preclude a successful criminal prosecution," he said.

A second senior State Department official, speaking on condition of anonymity because of the ongoing inquiry, said the agency has for years required its security contractors to give written statements within hours of any so-called "use of deadly force" in Iraq.

Waivers granting a security worker limited immunity — by barring those statements in a criminal case against the worker — are a "routine part" of the investigations by the Bureau of Diplomatic Security, the official said.

So now the full scope of the lawlessness which State Department contractors in Iraq enjoy becomes clear. Not only do those contractors operate in a legal gray zone apparently beyond the reach of current law, but the State Department routinely offered immunity to guards involved in incidents in order to get their version of the story, making the prospect of prosecution all the more improbable.

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After Mukasey's response, Sen. Joe Biden (D-DE), also on the Senate Judiciary Committee, is now a nay.

Just out from Sen. Dick Durbin (D-IL), who has a seat on the Senate Judiciary Committee:

"We asked Judge Mukasey a simple and straightforward question: is waterboarding illegal?"

"While this question has been answered clearly by many others -- including John McCain, the Judge Advocates General, and John Warner -- Judge Mukasey spent four pages responding and still didn’t provide an answer."

"Why is this important? Because the way we treat our prisoners determines how captured Americans are treated. It matters because Americans expect a nominee to the top law enforcement position in the country to give a straight answer. It matters because doing the right thing and taking the moral high road are central to our nation's values."

"Judge Mukasey makes the point that in the law, precision matters. So do honesty and openesss. And on those counts, he falls far short.”

Durbin's statement itself falls short of saying unequivocally whether he will vote against Mukasey. He said earlier, however, that his vote depends on Mukasey calling waterboarding torture.

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) on Mukasey's answer:

“Based on an initial review of his response to the letter, I remain very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal and below the standards and values of the United States. I await his response to other written questions and letters from Republican and Democratic Senators that were sent to him last week, and I will consult with Senator Specter and other Members of the Judiciary Committee before scheduling Committee consideration of this nomination.”

So we'll count that as "I'm still mulling it."

In his letter to Senate Democrats today, attorney general nominee Michael Mukasey walks a fine line. He calls waterboarding, as described by the Dems in a detailed letter last week, as "on a personal basis, repugnant to me." But he says that such a description depends on a hypothetical use of such a technique, and "in any legal opinion the actual facts and circumstances are critical." You can read Mukasey's letter here.

What follows in the letter is an extended treatment intended to give Democrats a sense of how he would approach the issue. Mukasey explains that he can't definitively say that waterboarding is torture because 1) he doesn't know whether it is in use, or whether a similar technique is in use, 2) he doesn't want any public statement of his on the issue to place any interrogators in legal jeopardy, and 3) "I would not want any statement of mine to provide our enemies with a window into the limits or contours of any interrogation program we may have in place and thereby assist them in training to resist the techniques we actually may use."

But all that said, Mukasey clearly aims to assure Dems that he's not in favor of waterboarding, either: "I emphasize in closing this answer that nothing set forth above, or in my testimony, should be read as an approval of the interrogation techniques presented to me at the hearing or in your letter, or any comparable technique." He continues:

As I testified, if confirmed I will review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law. If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the President and will rescind or correct any legal opinion of the Department of Justice that supports use of the technique.

So now we'll see if Democrats think that's good enough.

Move over Veco, the seafood industry needs some room in the federal corruption investigation of Sen. Ted Stevens (R-AK).

Until now, only Stevens' son Ben Stevens, a former state Senate President, had been publicly ensnared in the fishing probe targeting earmarks that went to companies simultaneously paying the younger Stevens consulting fees. But this evening, the AP reports the seafood probe includes Ted Stevens, the longest-serving Republican in the U.S. Senate.

Investigators want to know if Stevens deliberately ushered $180 million in earmarks and wrote legislation that would lead to consulting fees and stock options for his son.

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As expected, Michael Mukasey did not change his position on the waterboarding question. From the AP:

President Bush's nominee for attorney general told the Senate Judiciary Committee on Tuesday that he does not know whether waterboarding is illegal. He pledged to study the matter and to reverse any Justice Department finding that endorses a practice that violates the law or the Constitution.

"If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the president and will rescind or correct any legal opinion of the Department of Justice that supports the use of the technique," Michael Mukasey wrote to the committee's 10 Democrats.

We'll have Mukasey's full answer, as well as the reaction from Democrats and Republicans who've said that they're vote on Mukasey depends on this answer, as they become available.

Update: Time had some background of the negotiations to produce this evidently unsatisfactory statement in a story today. You won't be shocked to learn that Dick Cheney played a typically inflexible role in the back and forth:

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Last week, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) pronounced himself pleased that the administration had handed over four "previously undisclosed documents" relating to the administration's interrogation policies. As he wrote to White House counsel Fred Fielding in a letter: "The release of these documents restarts the incremental process of providing necessary information to Congress and to the American people about the Administration’s legal justifications and policies with regard to torture and interrogation." After months of stonewalling, it was a new day!

Well, not so much. Apparently three of the four documents, called "previously undisclosed," in the committee's press release at the time, were already in the public domain.

For instance, Leahy could have gone to the ACLU's website to read the February 4, 2005 letter from Acting Assistant Attorney General Daniel Levin that the administration handed over. And the December 30, 2004, memo (pdf) from Levin that famously redefined torture? The Justice Department released that publicly itself at the time. The third document Leahy cites is private testimony (pdf) by a former Justice Department official back in July, 2004, to the House intelligence committee. That, too, is in the public record.

And the fourth? It remains classified, although it's general contents have already been widely reported.

Keep in mind that the administration has still not turned over any of the memos during Alberto Gonzales' tenure as attorney general, such as the ones reported by The New York Times earlier this month.

Leahy's statement is below.

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Since news broke yesterday that the State Department had offered immunity deals to the Blackwater guards involved in the September 16th Nisour Square shooting, which left seventeen Iraqis dead, inquiries from Democrats have mounted, and the State Department has evidently been scrambling to respond.

And it's evident what their response is: at least we didn't offer absolute, blanket immunity to the guards from prosecution. As part of the PR offensive, two "senior State officials" stressed just that point to CNN earlier today. But the AP, which broke the story, never reported any such thing.

The type of immunity offered the guards was "use" immunity, meaning that the guards were offered the ability to talk with the promise that their statements couldn't be used in a criminal prosecution. ABC got a hold of the statements today and confirms this.

So State Department spokesman Sean McCormack tried to look on the bright side in a press briefing:

"The kinds of, quote, 'immunity' that I've seen reported in the press would not preclude a successful criminal prosecution," he insisted.

"The Department of State cannot immunize an individual from federal criminal prosecution," he added.

There are a couple of problems with that, however.

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With presidential primary politics, things move faster. Now the number of senators who have unequivocally opposed Mukasey's nomination is four. Says Sen. Hillary Clinton (D-NY):

"We cannot send a signal that the next attorney general in any way condones torture or believes that the president is unconstrained by law. His failure to do so leaves me no choice but to oppose his nomination."

A large number of senators have put off any definitive answer on Mukasey until he again answers whether waterboarding qualifies as torture.

Here's Toby Moore, formerly a redistricting expert under John Tanner in the voting rights section, explaining why he, and so many other career employees left the Civil Rights Division.

Moore explained that he'd left because he'd found there was "no sense" in doing his work "if it didn’t make a difference in the decisions being made." Tanner and the political appointees above him, Moore explained, decided issues "of significance and controversy" (like whether to approve Georgia's voter ID law) based on "political expediency." So Moore, and many other career analysts and attorneys, left.

After the brutal questioning by Rep. Artur Davis (D-AL), Rep. Keith Ellison (D-MN) followed up. This time, voting rights section chief John Tanner had a brief reply as to what he was really apologizing for, when he apologized for saying that minorities "die first."

"I hurt people," Tanner said quietly into the microphone.

Eventually, under Ellison's incredulous questioning, Tanner admitted that "people age in the same way." To which Ellison replied: "My dad is almost eighty. He's black."

If there's been a more brutal examination of a witness in a Congressional hearing since the days of Alberto Gonzales, I haven't seen it.

Rep. Artur Davis (D-AL) laid into voting section chief John Tanner during the hearing today over his comment earlier this month that "our society is such that minorities don't become elderly the way white people do. They die first." Tanner made the remarks as justification for his conviction that voter ID laws actually discriminate against whites. In Tanner's calculus, since minorities don't age "the way white people do," the effect of voter ID laws on the elderly means that whites are disproportionately affected. And since younger African-Americans frequently carry IDs because of racial profiling and the need to cash checks at "a check cashing business," voter ID laws actually favor African-Americans.

Tanner kicked off the hearing by repeating his apology for the comment, regretting that his "explanation of the data came across in a hurtful way."

But Davis wasn't mollified. I'm "not sure what you’re apologizing for," he said. Did he still think the statement was correct? "It is a sad fact..." Tanner began. Is that accurate? Davis pressed. Tanner began to say that he believed census data in Georgia (the subject of the most controversial voter ID law) showed that life expectancy among minorities was lower.

"But that's not what you said," Davis said. Tanner admitted that his was a "very clumsy statement." Davis pressed on: is it "accurate that minorities don't become elderly because white people do?" When you say "'they die first,' who is 'they?'" he asked.

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Rep. Don Young (R-AK) didn't just look out for Alaska when he chaired the House transportation committee. He saw the big picture, keeping in mind the myriad of needs across the country, particularly in those districts that hosted fundraisers for Young's campaign fund. For example, after voters in Arkansas donated thousands to him and his PAC, he helped channel some $415 million in earmarks to the state, situated about 4,000 miles away from his district.

The Arkansas Democrat Gazette reports that this week the town of Pine Bluff kicked off construction of a highway interchange project. Pine Bluff residents donated $66,000 to Young's campaign fund just before their needed-earmark appeared in the pork-filled highway bill of 2005:

...the connector has seen more than its share of congressional attention over the years. It started with a $ 100 million earmark in 1998 as well as an additional $ 40 million six years later. In 2006, Congress set aside $ 72 million more for the project.

Many credit U. S. Rep. Mike Ross, D-Ark., and his predecessor, Rep. Jay Dickey, R-Ark., as well a grass-roots lobbying effort that included throwing fundraisers for a former influential chairman of the House Transportation and Infrastructure Committee, Rep. Don Young, R-Alaska.

When Young's tenure as transportation committee chair ended, he offered the Anchorage Daily News his thoughts:

"Now I can say this is for Alaska and not have to be worried about, you know, Arkansas," said Young with a grin.

Rep. Jerrold Nadler (D-NY) kicked off the questioning today by asking John Tanner about his involvement in forcing through an approval of the infamous 2005 Georgia voter ID law (here's the whole sorry story). Tanner overruled the recommendation from Civil Rights Division staff attorneys to reject the law and then made the unprecedented move of silencing their opposition. After Tanner recommended approval of the law (one day after the staff recommended against that), a federal appeals court judge later barred implementation of the law, comparing it to a Jim Crow-era poll tax.

Under questioning today, Tanner avoided discussing his clash with his own staff, who had made their recommendation in a forcefully worded memo. Instead, he put the emphasis on the fact that he'd "made the decision." When Nadler pushed, Tanner replied, " I can't discuss internal deliberations," and made reference to the "confidence of our clients." This apparent invocation of attorney-client privilege seemed to catch Nadler off guard. But isn't that public information? he asked. Tanner declined to elaborate, instead emphasizing again that the decision was his based on "careful analysis."

In the Georgia ID memo, Tanner also made the questionable move of reversing the usual Justice Department practice of including his own contrary opinion when he disagreed with the staff recommendation. Instead of forwarding on his staff's recommendation alongside his own to the Department leadership, Tanner simply removed the staff's dissent. When Nadler asked him if he'd abandoned this "longstanding practice," Tanner replied, "That has not been the uniform practice." But was that the general practice? Nadler countered. "Prior to that time, it had not been done," Tanner admitted.

The hearing, broadcast on C-SPAN 3 and streaming on the House Judiciary Committee's website, just got under way. Voting rights section chief John "They Die First" Tanner is, of course, the star witness.

Rep. John Conyers (D-MI) kicked it off with, "We're in a crisis, and it's the duty of this committee to determine what went wrong."

Nancy Nord, the acting chair of the Consumer Product Safety Commission (the nation’s top official for consumer product safety) is asking lawmakers to reject legislative efforts to increase the agency’s authority, budget or staff. Nord also opposes tougher penalties for safety violations, policies to facilitate public reports of faulty products, and protections for industry whistle-blowers. Did we mention that Nord has criticized legislation that bans lead from all toys because it is not practical? (New York Times)

The Director of National Intelligence, Mike "Debate kills America" McConnell, is set to disclose today that the national intelligence activities have run a tab this year of $40 billion, kicking the annual total spending on spying up to $50 billion. For comparison, that's about double the cost from 1998, and up slightly from 2005's $44 billion estimate. Guess you can put a price on safety (sometimes, you can even declassify it). (Washington Post)

The White House made a few changes to its Center for Disease Control report on global climate change prior to the testimony of Director Gerberding last week. To put the phrase "small changes" in context, the White House report basically cut the initial version in half. Thankfully, DeSmog Blog has the original with all the White House markups. Take a look. (DeSmog Blog)

Rudolph Giuliani is creating a “lawyer’s nightmare” by maintaining his lucrative day job at Giuliani Partners. Though Giuliani had promised to step down many months ago, he continues to draw a salary, run the risk of a Federal Elections Commission violation, and create the impression that the firm’s clients would benefit from a Giuliani presidency. (Washington Post)

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With Rep. John Murtha (D-PA), what you see is what you get. He's the man who opined to The New York Times that "deal making is what Congress is all about" and called the Democrats' ethics reform bill "total crap."

And in today's profile in The Wall Street Journal, he's quoted telling an attendee at a fundraiser in Johnstown, his hometown, that bringing federal dollars there "is the whole goddamn reason I went to Washington."

And he's certainly done that:

Mr. Murtha has steered at least $600 million in earmarks to his district in the past four years, according to Taxpayers for Common Sense, a nonpartisan Washington group. The nonprofit group estimates he's sent $2 billion or more to the district since joining the appropriations committee....

His earmarks in the current bill are $166.5 million, more than any other House member, Taxpayers for Common Sense says. Mr. Murtha's spokesman did not dispute this year's total, but said without providing details that it is down by half from last year.

Of course, the important thing about those federal dollars (through defense appropriations) is that they go to his district -- certainly not whether the military wants or needs the programs that they fund. Murtha has proven something of a miracle worker, taking Johnstown from its low point in 1983 of 24% unemployment to its current healthy 5%. As John Wilke of the Journal puts it, "If John Murtha were a businessman, he'd be the biggest employer in this town." Wilke notes one Murtha-supported business in particular: "Another beneficiary: MTS Technologies, run by a man who got his start some 40 years ago shining shoes at Mr. Murtha's Johnstown Minute Car Wash."

You can take your pick as to which of Murtha's programs to pick on for waste or worthlessness, and Wilke chooses a few. But the recent firestorm over the National Drug Intelligence Center is a good case in point:

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Expect to hear a lot more about this.

You might remember that the first official word from U.S. officials about the Nisour Square shootings was a preliminary investigation by the State Department's Bureau of Diplomatic Security (BDS) that relied primarily on statements from Blackwater witnesses. Now we find out that the BDS offered immunity to those guards for those statements. So not only did the State Department rush to release what appears from the military's review of the incident to be a whitewash -- but it might have also fatally compromised the FBI's investigation of the incident. From the AP:

The FBI took over the case early this month, officials said, after prosecutors in the Justice Department's criminal division realized it could not bring charges against Blackwater guards based on their statements to the Diplomatic Security investigators.

Officials said the Blackwater bodyguards spoke only after receiving so-called "Garrity" protections, requiring that their statements only be used internally — and not for criminal prosecutions.

At that point, the Justice Department shifted the investigation to prosecutors in its national security division, sealing the guards' statements and attempting to build a case based on other evidence from a crime scene that was then already two weeks old....

It's not clear why the Diplomatic Security investigators agreed to give immunity to the bodyguards, or who authorized doing so.

Bureau of Diplomatic Security chief Richard Griffin last week announced his resignation, effective Thursday. Senior State Department officials, speaking on condition of anonymity, have said his departure was directly related to his oversight of Blackwater contractors.

Here's some strange news coming out of the Alaska trial of former state Rep. Vic Kohring. It turns out that when former Veco CEO Bill Allen testified last month in a separate corruption trial about being blackmailed by his own nephew, the strong-arming was related to Sen. Ted Stevens' (R-AK) suspect home renovation.

Allen was defensive on the stand that day, the Anchorage Daily News reported, combating questioning from defense attorneys that he actually threatened to kill his nephew:

Allen said he didn’t make such a threat. “Not me, no. I told them (him?) I’d beat the shit out of him,” Allen said.

Later, he said: “I never did say that I would kill him. No. I wouldn’t have done that … because his mother is my sister.”

Today Allen clarified while under cross-examination that his nephew was blackmailing him over “Ted Stevens’ house.” Just what his nephew was threatening to do (go to the feds?) is unclear.

Allen also testified again today that Veco paid for some of the renovations that doubled Stevens' home, but he didn’t know how much Veco spent.

Friday night, we reported that the House Judiciary Committee had mistakenly sent the email addresses of would-be whistleblowers to everyone who had written in to the committee's Justice Department politicization tip line. A committee spokesperson responded to that story with a statement apologizing for the "technological error."

In a statement released this afternoon (which can be read in full below) a committee spokesperson clarified that the error was, in fact, human. For those of you interested in the nitty gritty, the "nonpartisan, clerical employee" of the committee who was tasked with sending the email out to the list screwed up by assuming that checking "private" in Microsoft Outlook's Distribution List function meant that recipient names would be hidden. Alas, not so.

The full statement is below.

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And there there were three. Sen. Barack Obama (D-IL) joins Sen. Chris Dodd (D-CT) and Bernie Sanders (I-VT) in unequivocally opposing Michael Mukasey's nomination as attorney general.

For a company that was supposed to be outside the law, investigations of Blackwater have been proliferating like wild ever since the September 16th Nisour Square shooting, which left seventeen Iraqis dead. The number has been growing so fast, in fact, that we lost count.

So we decided to catch up. Here, then, is our rundown of the ongoing investigations that have been reported. If we miss one, let us know and we'll update our tally.

House oversight committee chairman Henry Waxman (D-CA) has, of course, been leading the charge over the preceding months in an investigation that has followed a number of strands. Waxman's probe of the 2004 ambush in Fallujah led to the conclusion that Blackwater's cost-cutting was at the heart of the debacle. And he's continued to widen the scope of the probe since the Nisour Square shootings. As such, it's impossible to detail all of its aspects here. It's concentrated, however, on four main areas:

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Oh well. John "Pat" Philbin's career with the Director of National Intelligence is indeed over before it started. From the AP:

"We do not normally comment on personnel matters," DNI spokesman Ross Feinstein said Monday. "However, we can confirm that Mr. Philbin is not, nor is he scheduled to be, the director of public affairs for the Office of the Director of National Intelligence."

Feinstein said earlier that Philbin's job change had been put on hold while McConnell reviewed his record.

We assume that Philbin will be holding a press conference with himself in the wake of this development.

Voting rights section chief John Tanner has apologized for saying earlier this month that "minorities don't become elderly the way white people do: They die first."

The apology went out to a number of attendees of the National Latino Congreso, where Tanner made the remarks. You can see one of them, to the president of the League of United Latin American Citizens, here. The letter is dated Friday, October 26, a week after Sen. Barack Obama (D-IL) publicly called for Tanner to be fired based on those remarks.

In the letter, Tanner does not recant his analysis that voter ID laws actually discriminate against whites, but does apologize that his "explanation of the data came across in a hurtful way." Others who worked in the Justice Department, of course, including Toby Moore, a former redistricting expert in the section who will testifying alongside Tanner tomorrow, disagreed with more than his tone.

The full text of the letter is below:

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