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Paul Kiel | November 30, 2007, 9:05AM

Courtesy of the Rudy Giuliani camp's efforts to spin the shag fund story, this is another installment in Great Moments in Damage Control! (from The New York Daily News):

Joe Lhota, a deputy mayor in Giuliani's City Hall, told the Daily News Wednesday night that the administration's practice of allocating security expenses to small city offices that had nothing to do with mayoral protection has "gone on for years" and "predates Giuliani."

When told budget officials from the administrations of Ed Koch and David Dinkins said they did no such thing, Lhota caved Thursday, "I'm going to reverse myself on that. I'm just going to talk about the Giuliani era," Lhota said. "I should only talk about what I know about."...

"I don't understand when it started. I don't understand why it started," Lhota said. "But I do know one thing: It was consistently done ... in no way shape or form did it imply a coverup."

The "no explanation" explanation seems to be the best spin the Giuliani camp has available.

Other than that, there's 1) the irrelevant focus on whether the NYPD reimbursed the backwater city agencies which originally were billed for the tryst costs -- a response that has only served to highlight that Giuliani is dodging the main issue, or 2) the fact that, in order to keep the mayor's budget artificially low, there seems to have been a policy of misallocation in his administration, of which the trips to Judith Nathan's Southampton condo were only a small part (though for some reason we haven't seen them try this line yet).

So "I don't understand when it started, I don't understand why it started" it is!

Dickie Scruggs

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Paul Kiel | November 29, 2007, 9:50AM

It's been an eventful week for the Lott clan. On Monday, Sen. Trent Lott (R-MS) announced that he'd be retiring late this year. The next day, FBI agents raided the law office of his brother-in-law, Richard "Dickie" Scruggs. Yesterday, Scruggs, his son, and three associates were indicted for bribery.

Scruggs is a hotshot plaintiff's lawyer who famously cleaned up from lawsuits against big tobacco. His recent business has focused on Katrina-related litigation, especially against State Farm Insurance.

He'd better have a great criminal defense lawyer, because the indictment from the U.S. attorney for Mississippi's Northern District is devastating (you can read it here).

Here's the basic scheme: after Scruggs led a $80 million settlement between State Farm and hundreds of clients, an attorney who had formerly worked with Scruggs disputed the $26.5 million chunk of that settlement to Scruggs' law group. Scruggs wanted his money, and he and his associates decided that the best way to get it was to bribe the county judge presiding over the case, Henry Lackey. But Lackey went to the feds as soon as Scruggs' associates made the overture. He wore a wire. And things went downhill from there. For instance, here's what a lawyer working for Scruggs said to the judge, according to the indictment:

"...[M]my relationship with Dick [Scruggs] is such that he and I can talk very private [sic] about these kinds of matters and I have the fullest confidence that if the court, you know, is inclined to rule... in favor... everything will be good.... The only person in the world outside of me and you that has discussed this is me and Dick [Scruggs].... We, uh, like I say, it ain't but three people in the world that know anything about this...and two of them are sitting here and the other one...the other one, uh, being Scruggs...he and I, um, how shall I say, for over the last five or six years there, there are bodies buried that, that you know, that he and I know where...where are, and, and, my, my trust in his, mine in him and his in mine, in me, I am sure are the same."

The indictment is replete with similarly, um, problematic quotations. There are plenty of mentions of the "package" and the "order" among Scruggs' associates (apparently conversations on tapped phones). In October and November of this year, Scruggs, through his associates, paid the judge $40,000 (and intended to pay $10,000 more). And when it came time for the order to be prepared, the indictment quotes one of Scruggs' associates as saying to two others (one of them Scruggs' son), "we paid for this ruling; let's be sure it says what we want it to say."

It's like I said: it doesn't look good for Scruggs. As for Lott, there's no indication that he had anything to do with the scheme. Whether the impending indictment, which seems to have caught Scruggs very much by surprise, had anything to do with his sudden retirement, remains (like the many other competing theories) unclear.

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Paul Kiel | November 28, 2007, 9:39AM

It's just not enough that a number of administration officials have been investigated for malfeasance; the Bush Administration takes it the extra mile. The man who's charged with investigating some of that malfeasance is himself under investigation. And he's clearly no slouch at malfeasance.

Scott Bloch heads the Office of Special Counsel (OSC), an odd little agency that was set up to police federal employees of infractions that do not rise to the criminal level. The OSC's main brief is enforcing the Hatch Act, which prohibits federal employees from using government resources for political ends (so Bloch should be a busy man). He's also supposed to make sure whistleblowers do not suffer retaliation. The OSC reports to the White House.

Bloch himself has been under investigation since 2005 for a variety of infractions, including retaliating against employees who took issue with internal policies and discriminating against those who were gay or members of religious minorities. At the direction of the White House, the Office of Personnel Management's inspector general has been pressing on with an investigation of Bloch.

Which makes this all the more curious. From The Wall Street Journal:

Recently, investigators learned that Mr. Bloch erased all the files on his office personal computer late last year. They are now trying to determine whether the deletions were improper or part of a cover-up, lawyers close to the case said.

Bypassing his agency's computer technicians, Mr. Bloch phoned 1-800-905-GEEKS for Geeks on Call, the mobile PC-help service. It dispatched a technician in one of its signature PT Cruiser wagons. In an interview, [Bloch] confirmed that he contacted Geeks on Call but said he was trying to eradicate a virus that had seized control of his computer....

Mr. Bloch had his computer's hard disk completely cleansed using a "seven-level" wipe: a thorough scrubbing that conforms to Defense Department data-security standards. The process makes it nearly impossible for forensics experts to restore the data later. He also directed Geeks on Call to erase laptop computers that had been used by his two top political deputies, who had recently left the agency....

Geeks on Call visited Mr. Bloch's government office in a nondescript office building on M Street in Washington twice, on Dec. 18 and Dec. 21, 2006, according to a receipt reviewed by The Wall Street Journal. The total charge was $1,149, paid with an agency credit card, the receipt shows. The receipt says a seven-level wipe was performed but doesn't mention any computer virus.

Jeff Phelps, who runs Washington's Geeks on Call franchise, declined to talk about specific clients, but said calls placed directly by government officials are unusual. He also said erasing a drive is an unusual virus treatment. "We don't do a seven-level wipe for a virus," he said.

The punchline to all this is that even if Bloch were a paragon of integrity, his investigations of administration wrongdoing would be nearly pointless. For instance, Bloch launched an investigation of General Services Administration chief Lurita Doan after she asked her fellow employees "How can we help our candidates?" The comments had come after a political briefing by Karl Rove's aide. Bloch's investigation concluded that Doan should be fired. But that was in June. Bloch made his recommendation to the White House, which has done nothing since. And as for Bloch's wide-ranging probe of Karl Rove's political briefings to federal officials throughout the government? Don't count on any results. It's enough to make a man cynical.

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Paul Kiel | November 27, 2007, 9:41AM

Saved! That's one less trial Bernie Kerik -- and Rudy Giuliani -- have to worry about.

Granted, Kerik still faces trial on a sixteen-count criminal indictment for accepting bribes, cheating on taxes, and lying to the federal government. But no doubt it's good news for the Giuliani camp. Every little bit counts!

Yesterday, Eric DeRavin, a former New York City Correction Department officer, settled his discrimination lawsuit against the city. He'd charged that Kerik, when he led the department back in the 90's, had passed him over for promotions because he was African-American -- and because DeRavin made the mistake of crossing Kerik's mistress, Correction Officer Jeanette Pinero (one of Kerik's two mistresses who later visited Kerik at his 9/11 love nest). The court dismissed the claims about Pinero, but the city settled on the race discrimination claim for $125,000. The trial was due to begin soon, and Kerik was sure to testify. "I'm going to accept $125,000 and go away," DeRavin said, but added: "I hope Mr. Kerik gets his just desserts."

So Giuliani is spared the spectacle of Kerik testifying about why he'd passed over an African-American officer six times for promotion, the renewed focus on Kerik's romantic liaisons, and questions about why he hadn't been concerned about the fact that two different correction officers had sued the city, alleging that Kerik had retaliated against them because they'd crossed his mistress.

Because this wasn't the only suit, and it isn't the first time that the city has settled. Another correction officer, Herbert Reed, sued the city, claiming that Kerik and his underlings filed bogus disciplinary and sexual harassment actions against him after he wrote up a friend of Pinero's for insubordination. The city settled that one for $250,000 in 2003.

These were both longstanding suits (DeRavin filed in 2000, Reed in 2001), filed long before Giuliani was forced to break with Kerik in the wake of his disastrous nomination to be Secretary for the Department of Homeland Security in December, 2004. But Giuliani would probably say that we should file it away as just another aspect (click here for all the aspects) of Giuliani's admitted "mistake" in supporting Kerik for the nomination (after first appointing him commisioner of corrections, then the NYPD, then making him his business partner). Everybody makes mistakes, right?

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Spencer Ackerman | November 26, 2007, 9:08AM

When last we left the Bush administration's so-called benchmarks for strategic progress in Iraq -- that is, the political progress that military success allows -- they weren't being met, and the White House didn't care. Now that the year's almost over and the administration is beginning to bring the "surge" troops home, it's worth asking: what happened to the benchmarks? The New York Times reports that the administration has quietly given up on them, preferring nebulous goals for which it's easier to claim success.

With American military successes outpacing political gains in Iraq, the Bush administration has lowered its expectation of quickly achieving major steps toward unifying the country, including passage of a long-stymied plan to share oil revenues and holding regional elections.

Instead, administration officials say they are focusing their immediate efforts on several more limited but achievable goals in the hope of convincing Iraqis, foreign governments and Americans that progress is being made toward the political breakthroughs that the military campaign of the past 10 months was supposed to promote.

The short-term American targets include passage of a $48 billion Iraqi budget, something the Iraqis say they are on their way to doing anyway; renewing the United Nations mandate that authorizes an American presence in the country, which the Iraqis have done repeatedly before; and passing legislation to allow thousands of Baath Party members from Saddam Hussein’s era to rejoin the government. A senior Bush administration official described that goal as largely symbolic since rehirings have been quietly taking place already.

In January, the entire point of the surge, according to President Bush, was to achieve sectarian reconciliation. The surge has had quite a few tactical successes, as would be expected with an infusion of 30,000 troops and a smarter, population-centric approach. But that's an unfortunate footnote to a four-plus-year war -- and one susceptible to reversal -- without political progress, as any half-awake counterinsurgency expert can attest. And, once again, the Bush administration has substituted at least some tangible definition of success for what amounts to a PR strategy. Remember this when Bush and the 2008 GOP presidential candidates praise the surge to high heaven and castigate liberals for opposing its manifest, shining wisdom.

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Spencer Ackerman | November 23, 2007, 9:00AM

It's not just foreign-to-domestic calls involving suspected terrorists. Nor library, business and medical records of American citizens in (mostly) terrorism-related cases. The list of circumstances under which law enforcement can jettison probable cause as a standard for obtaining information is expanding to include... carrying a cellphone.

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

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

Basically, as carriers increasingly offer subscribers the ability to stay informed of where their associates are at all times, law enforcement gets an investigative tool. In one recent case, a DEA agent sought a drug-trafficking suspect's Nextel tracking information from a judge simply by asserting that the suspect was trafficking drugs, thereby turning probable cause on its head. The agent didn't get away with it in this case, but in several other recent cases, courts issued warrants based on a determination that the location information provides "specific and articulable facts" relevant to an ongoing criminal investigation.

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Rudy Giuliani

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Paul Kiel | November 21, 2007, 10:04AM

Why can't people just trust Rudy Giuliani?

As today's piece in The Chicago Tribune points out, Giuliani is a deviation from the mold of the successful businessman turned politician. Instead, Giuliani went from politics into business, and the success of that business relied in large part on Giuliani's continued prestige and the promise that he would eventually return to politics.

Giuliani Partners (not to be confused with Bracewell & Giuliani, the law firm he joined in 2005), which has been steadily growing since it's formation in 2002, is a consultancy. Which is a fancy way of saying that it does whatever its clients need it to do. Mostly, that seems to have been some form of security consulting -- but it's been nearly impossible to find out, because Giuliani won't say who the firm's clients are or were.

Today's Tribune takes a look at one of those clients:

Nine days after registering his presidential exploratory committee last November, Rudolph Giuliani appeared in Singapore to help a Las Vegas developer make a pitch for a $3.5 billion casino resort....

Giuliani's public involvement in the gaming bid began at a September 2006 news conference in Singapore hosted by Mark Advent, CEO of Eighth Wonder LLC, a Las Vegas development company heading one of three consortia competing to build the Sentosa Integrated Resort.

Giuliani Security & Safety LLC, a division of Giuliani Partners, was to provide security on a celebrity-studded, multibillion-dollar project featuring participation by soccer legend Pele, chef Alain Ducasse, New Age guru Deepak Chopra and designer Vera Wang, according to Advent.

Advent estimated that he spent more than $30 million to assemble and present his plans to Singaporean authorities.

He declined to disclose the fees paid to Giuliani, but described them as "fair and priceless."

Besides the obvious potential conflicts of interest this creates for a future president, there's the more pressing concern of not knowing who Giuliani has chosen to do business with. You might say his track record of business associates doesn't quell suspicion.

The piece goes on to tug on one thread. Giuliani Partners was working for Eighth Wonder, one of the companies making the resort bid -- and Eighth Wonder partnered with another company (called Melco) to make that bid. It turns out that the former CEO of that company, Stanley Ho, is "a controversial Hong Kong billionaire who has ties to the regime of North Korea's Kim Jong Il and has been linked to international organized crime by the U.S. government." A mobbed-up casino mogul is the shorter version of that description. The company is currently run by his son.

Now, Giuliani didn't work directly for Ho, and the spokeswoman for his firm called the link between Stanley Ho and the Eighth Wonder partnership "a stretch." And surely, if his business ties become an issue in the campaign, there will be other relationships that will prove more troublesome. But it just goes to show what little people know about how he's made his money for the past five years.

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Spencer Ackerman | November 20, 2007, 9:24AM

Remember that recently-impaneled grand jury looking at Blackwater's Nisour Square shootings? Turns out it's not just about Blackwater.
Four years into the occupation, prosecutors are attempting to build the first criminal case against private security companies -- who up until now worked in a system rigged to ensure unaccountability.

The Washington Post:

The Washington grand jury has issued subpoenas to several private security firms, including Blackwater, a legal source briefed on the probe said yesterday. Authorities are seeking company "after-action" reports and other documents that may shed light on specific incidents, he said.

The source, speaking on the condition of anonymity because of the sensitivity of the probe, declined to say which incidents have been targeted, but he said the investigation ranges well beyond Blackwater. Private security companies in Iraq "have been shooting a lot of people," he said.

That's an understatement.

There's no word from the piece about which non-Blackwater firms are in the grand jury's crosshairs, nor which incidents are potentially criminal. As the paper reports, the Iraqi government claims it knows more than 20 potential criminal incidents involving private security companies -- most of which it lays at the feet of Blackwater -- but whether that list has anything to do with the grand jury's focus is unknown.

Also unknown is the specific law which the security firms could be accused of breaking:

But the U.S. government's ability to prosecute remains hampered by the lack of clarity over what laws may apply. For instance, contractors were immunized from Iraqi laws under a June 2004 order signed by the U.S. occupation authority. That ruling remains in effect.

In addition, investigations are complicated by questions about evidence, jurisdiction and the availability of witnesses. "If they're going to try to indict, they've got a lot to overcome," said Patricia A. Smith, an Alexandria lawyer who represents two former employees of Triple Canopy, a private security firm based in Herndon, in a civil lawsuit. The former employees say they were wrongfully terminated after reporting that their Triple Canopy team leader fired shots into the windshield of a taxi for amusement last year on Baghdad's airport road.

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Spencer Ackerman | November 19, 2007, 9:17AM

State Department Inspector General Howard "Cookie" Krongard's new strategy to get out of a possible perjury investigation? Begging.

It turns out Krongard has retained a criminal defense lawyer named Barbara van Gelder. (Maybe for the perjury fight, maybe because of the FBI's recent parley with Cookie's subordinates.) Van Gelder wrote to Rep. Henry Waxman (D-CA) on Saturday to ask the House oversight committee chairman to cancel an upcoming hearing on whether Krongard lied to the committee about what he knew of his brother's (since-renounced) position on Blackwater's advisory board. According to van Gelder, the committee would be doing little more than interfering in an unseemly family feud: "There is no legitimate purpose to be gained by publicly pitting two brothers against each other."

And yet she makes it so tempting. Van Gelder provided what she describes as Krongard's notes of his crucial phone conversation with his brother Buzzy on Halloween. Buzzy says he told Cookie he was joining the Blackwater board during that conversation. Van Gelder says that's not so, and Cookie has evidence to prove it. Take it away, Justin:

A page van Gelder purports to be Howard's contemporaneous notes on the conversation appear to indicate Buzzy Krongard said he had no financial ties to Blackwater and would not take the board position he had been offered.

"No financial interest whatsoever," the alleged notes read. The word "no" is underlined. "Was on short list for Advisory Board but is not taking it," the document states.

But, she argues, Waxman shouldn't seek to resolve the contradiction between the two accounts -- one of which was administered under oath, and the other of which was formally reported to Congressional investigators. Van Gelder is surely worth every penny.

Oh, and if that name sounds familiar: Barbara van Gelder, an ex-federal prosecutor, was last seen representing former OMB procurement official David Safavian.

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Spencer Ackerman | November 16, 2007, 9:21AM

Hear that? Those are the hosannas of civil libertarians.

The Senate Judiciary Committee, by a single vote, passed a surveillance bill yesterday. And it doesn't include retroactive legal immunity for telecommunications companies that complied with the Bush administration's warrantless surveillance programs. Since the Senate intelligence committee's version of the FISA Amendments Act of 2007 does have the immunity provision, Sen. Harry Reid (D-NV), the majority leader, has the discretion to choose which bill to bring to the Senate floor for a vote.

It's more than clear by now that the White House wants the immunity provision badly. AT&T whistleblower Mark Klein says that the reason isn't to spare the telecoms financial indemnity, or a matter of "fairness," as administration officials claim. Rather, it's to stop some 40 class-action suits against the companies from revealing how massive, how domestic and how illegal warrantless surveillance was between 2001 and 2007. Revelations from those suits could even, hypothetically at least, lead to criminal charges against administration officials and telecom companies. So needless to say, the White House is none too pleased with the Senate Judiciary Committee right now. And it won't be pleased with Reid if he brings the judiciary committee's bill to the floor.

The New York Times reports that an immunity compromise pushed by Rep. Arlen Specter (R-PA) has some support:

Senator Arlen Specter of Pennsylvania, the ranking Republican on the panel, is pushing a plan that would substitute the federal government as the defendant in the lawsuits against the telecommunications companies. That would mean that the government, not the companies, would pay damages in successful lawsuits.

Senator Sheldon Whitehouse, Democrat of Rhode Island, said in an interview after the vote Thursday that he would support a compromise along the lines of the Specter proposal.

Mr. Whitehouse was one of two Democrats who voted against an amendment proposed by Senator Russ Feingold, Democrat of Wisconsin, that would have banned immunity for the companies. “I think there is a good solution somewhere in the middle,” Mr. Whitehouse said.

Perhaps, but that assumes the White House wants a compromise. In another headache for President Bush, the House passed its companion surveillance bill, the Restore Act, yesterday, and that doesn't include telecom immunity either. We'll see who blinks first.

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Paul Kiel | November 15, 2007, 9:08AM

There are rare moments when you, the citizen, can feel like you've really made a difference.

Not since Scooter Libby has a devoted, loyal public servant been in such need of your help. Alberto Gonzales was set upon by hordes of journalists and Democrats and finally stepped down for the good of his beloved Justice Department. But his ordeal is not over. Because his enemies misrepresented certain carefully-chosen phrasings as lies, he is being investigated by that same department. "But what can I do?" you ask?

Contribute to the Alberto R. Gonzales Legal Expense Trust:

David G. Leitch, a Gonzales friend and general counsel at the Ford Motor Co., wrote in an e-mail solicitation to potential contributors last month that Gonzales is "innocent of any wrongdoing" but does not have the means to pay for his legal defense after a career spent mostly in public service.

"In the hyper-politicized atmosphere that has descended on Washington, an innocent man cannot simply trust that the truth will out," Leitch wrote. "He must engage highly competent legal counsel to represent him. That costs money, money that Al Gonzales doesn't have."

Leitch also wrote that Gonzales's attorney, George J. Terwilliger III of White & Case in Washington, "has substantially reduced his fees to represent Al Gonzales, but the costs will likely be high nonetheless." A contribution form asking for donations to the Alberto R. Gonzales Legal Expense Trust suggests amounts from $500 to $5,000.

Sure, the business elite, former administration officials and ambassadors (and then finally the President) came through for Scooter Libby. But Gonzales is still exposed to the forces of injustice. Won't you do your part?

You might never have a similar chance again. The Washington Post notes that "legal defense funds are common in Washington, but not for attorneys general." So act now!

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Spencer Ackerman | November 14, 2007, 9:07AM

It's looking grim for Blackwater. Although the FBI hasn't finished its investigation into the September 16 shootings at Nisour Square -- in which 17 Iraqi civilians were killed -- The New York Times reports that the company's guards at the square, by and large, opened fire without provocation:

Federal agents investigating the Sept. 16 episode in which Blackwater security personnel shot and killed 17 Iraqi civilians have found that at least 14 of the shootings were unjustified and violated deadly-force rules in effect for security contractors in Iraq, according to civilian and military officials briefed on the case....

Investigators have concluded that as many as five of the company’s guards opened fire during the shootings, at least some with automatic weapons. Investigators have focused on one guard, identified as “turret gunner No. 3,” who fired a large number of rounds and was responsible for several fatalities.

Investigators found no evidence to support assertions by Blackwater employees that they were fired upon by Iraqi civilians. That finding sharply contradicts initial assertions by Blackwater officials, who said that company employees fired in self-defense and that three company vehicles were damaged by gunfire.

About the only bright spot for Blackwater: bureau officials appear inclined to give the guards the benefit of the doubt about the first round of shootings, in which Blackwater guards fired upon a white Kia sedan that didn't heed a traffic officer's order to stop at the square.

But so far, the FBI's account of the shooting is mostly in line with that of the Iraqi government and the U.S. military. In front of Congress and in a recent PR blitz, Blackwater owner and CEO Erik Prince has insisted that Blackwater guards were under attack. "There was definitely incoming small arms fire from insurgents," Prince told Wolf Blitzer last month. Blackwater has also consistently urged Congress, the press and the public to await the outcome of the FBI's investigation before passing judgment on the company.

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Spencer Ackerman | November 13, 2007, 9:18AM

Get beyond the surge. Go further than the talk about population protection being the new basis for U.S. efforts in Iraq. The Joint Campaign Plan is the comprehensive strategy for Iraq employed by General David Petraeus and Ambassador Ryan Crocker. It's a fairly important document. And Congress can't see it, reports Rachel Van Dongen for Roll Call. (sub. req.)

In television interviews and press conferences, Gen. David Petraeus has described the Joint Campaign Plan as the key military and diplomatic strategy to stabilize Iraq.

Developed by the “big brains” on the ground, Petraeus points to a “unified” effort with U.S. Ambassador to Iraq Ryan Crocker to achieve political and military security in Iraq by 2009.

Yet despite repeat efforts at the highest levels and Pentagon promises, Congress has been unable to get a current copy of the plan.

After persistent requests from House Armed Services Chairman Ike Skelton (D-Mo.), the issue has moved up the Congressional chain of command to Speaker Nancy Pelosi (D-Calif.). According to an aide, Pelosi asked President Bush for the document several months ago in a White House meeting. Since then, Pelosi’s staff has “repeatedly” requested a copy, her aide said, but has not yet received one.

A spokeswoman for the House Armed Services Committee generously declined to attribute the stonewalling to partisan politics. Yet the committee's request for the plan has been outstanding since the Pentagon missed a March 30 deadline for it. What's more, even though Congress hasn't seen the document, the head of a Government Accountability Office unit mentioned in October 30 testimony that his team saw the plan on a recent trip to Iraq.

Nor is Congress the only one left in the dark about why it can't see the plan. Van Dongen called the White House for an explanation, and it sent her to the Iraq command, known as Multinational Force-Iraq. An MNFI spokesperson told her, "I do not know why the White House would refer you to us regarding these questions." The Pentagon didn't reply, either. Three cheers for openness in government!

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Spencer Ackerman | November 12, 2007, 8:50AM

Your typical wartime logistics operation: from supplier to vendor to transport to customer... oh, and corrupt warehouser who'll sell your weaponry to the insurgency while U.S. military officers look the other way.

Welcome to the operation to get guns to the Iraqi security services, circa 2004-2005. According to Government Accountability Office investigations -- and at least one criminal investigation -- over 190,000 weapons sent to Iraq for the Iraqi security forces disappeared almost as soon as they got off the C-17s. General Petraeus, who was in charge of the effort at the time, commented recently that he thought expeditious delivery of weapons was more important than proper bookkeeping. The New York Times details that his men truly internalized that message -- even to the point of opting not to notice when Iraqi warehousers would turn contractor-run armories into a private, for-profit arms dealership.

Two Army majors, John Isgrigg III and Timmy W. Cox, assigned to the equipping mission told the Times about racing against other military units to claim palletized guns off the planes delivering them. They and their colleagues are open about how they didn't care about keeping proper records of their cargo, claiming that fastidiousness in a complex procurement operation is a hindrance to the mission:

“We had folks getting killed because equipment wasn’t moving,” said Col. Randy Hinton, the majors’ superior officer. “Were there times when all the right forms were not signed? Probably. But we had a mission to do, and we were going to do it the best way we could at that time.”

An interesting approach to following the law. The trouble is that their negligence, in part, led to an atmosphere of tolerance for weapons smuggling.

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Paul Kiel | November 9, 2007, 9:40AM

Bernie Kerik indicted!

Wait a minute, you say. Is this about the thing with his nanny? No. The thing where he conspired with Jeanine Pirro, Hillary Clinton's one-time Republican opponent for the Senate, to illegally spy on her own husband to catch him cheating? No again. So it's about the dozens of illegal gifts Kerik accepted from his friend, Lawrence Ray, while head of the New York Police Department and the city's Department of Corrections. Sort of.

Granted, it's hard to keep it all straight. But the indictment, expected to be unsealed today, reportedly concentrates on just two of Bernie Kerik's bad choices.

The first was to let Interstate Industrial Corporation, a construction company with alleged ties to the Gambino crime family, pay $165,000 to renovate his apartment. At the time, 1999, Kerik was New York City's corrections commissioner. Interstate also had Kerik's brother and the aforementioned Lawrence Ray, who was best man at Kerik's wedding, on the payroll. And coincidentally, Interstate was vying for business with the city. Although Interstate didn't end up getting that contract, Kerik did manage to vouch for the company to city investigators, telling them that Interstate was clean of mob ties. He failed to mention, however, that the company was paying for his apartment job.

The second bad decision was to accept $200,000 in rent from one of the city's biggest real estate developers, Steve Witkoff (who, by the way, owns my favorite NYC building, the Woolworth). Kerik let Witkoff pay the $9,000 in monthly rent for his Upper East Side digs around the time he left city government, but kept the whole thing off the books. (The feds apparently will not accuse Witkoff of wrongdoing.)

The rest of the charges in the indictment you can call fallout from those bad choices. He did not report either substantial sums of money when it came time to pay taxes. And he for some reason neglected to mention them on his 2004 application to run the Department of Homeland Security.

We'll get a copy of the indictment itself when it's available. For now, contemplate just how bad of a decision it was for Rudy Guiliani to recommend Kerik for the jobs of NYC's top cop, and then head of DHS.

Update/Correction: Actually, the nanny does appear to have made her way into the indictment.

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Spencer Ackerman | November 8, 2007, 9:08AM

"It's really surprising that Blackwater is still out there killing people."

That's a quote from the director of Iraq's state-run television network, looking back in anger to an February shooting that prefigured the Nisour Square incident in September. In February, Blackwater guards on the roof of the Justice Ministry building in Baghdad's Salihiya neighborhood shot and killed three security guards at the nearby Iraqiya TV compound. There was no recompense to the victims' families. A cursory State Department investigation cleared Blackwater in full. And an Iraqi judge, citing CPA Order 17 --which gave U.S. contractors immunity from Iraqi prosecution -- rejected a court petition filed by the network.

The details remain subject to debate. Blackwater claims it was under attack, and the State Department backs up the company. Iraqis at the TV station and the Interior Ministry say the Blackwater guards opened fire without provocation. The story was first reported by Leila Fadel of McClatchy in September, and today Steve Fainaru of The Washington Post has an in-depth look at the incident.

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Spencer Ackerman | November 7, 2007, 9:14AM

Cliche as it may be to say: Mr. Klein goes to Washington.

Tomorrow the Senate Judiciary Committee will get its hands on the surveillance bill passed by the intelligence committee last month. The bill blesses warrantless surveillance of foreign-domestic communications related to gathering foreign intelligence, but its most infamous provision is the legal immunity it seeks to grant telecommunications companies that complied with the Bush administration's warrantless surveillance program from 2001 until this January. Civil libertarians are enraged at the provision, which will invalidate a number of class-action lawsuits against the telecoms currently pending. Now they have a new lobbying ally: Mark Klein.

Klein is the retired AT&T technician who disclosed in late 2005 how his former employer had allowed the NSA to use Room 641A of 611 Folsom Street in San Francisco as a vacuum cleaner to capture untold millions of phone and e-mail communications. (You can read his first-hand account here, in a pdf.) His revelations formed the basis for a lawsuit, Hepting v. AT&T, currently before a federal court. Now he's trying to convince Senators not to preempt the case, reports The Washington Post.

The plain-spoken, bespectacled Klein, 62, said he may be the only person in the country in a position to discuss firsthand knowledge of an important aspect of the Bush administration's domestic surveillance program. He is retired, so he isn't worried about losing his job. He did not have security clearance, and the documents in his possession were not classified, he said. He has no qualms about "turning in," as he put it, the company where he worked for 22 years until he retired in 2004.

"If they've done something massively illegal and unconstitutional -- well, they should suffer the consequences," Klein said. "It's not my place to feel bad for them. They made their bed, they have to lie in it. The ones who did [anything wrong], you can be sure, are high up in the company. Not the average Joes, who I enjoyed working with."

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Paul Kiel | November 6, 2007, 9:42AM

So now that the country has undergone its collective tutorial on the torture technique waterboarding (see here, here, and here if you missed class), Congress is ready to begin voting on the nomination of Michael Mukasey for attorney general.

It's starts this morning with the Senate Judiciary Committee, where Sens. Chuck Schumer (D-NY) and Dianne Feinstein (D-CA), who both reason that the Bush Administration is not likely to offer a better nominee, are expected to provide the key swing votes to put him through.

And then it's on to the full Senate. As we've said before, that's always been a safer vote for Mukasey, because of the likely support of moderates. But that ease is by design, Roll Call reports (sub. req.), because Majority Leader Harry Reid (D-NV) decided to play the nomination hands off. Reid himself made it easier on the troubled committee Dems but refraining from announcing his position on Mukasey (which he told The Washington Post was not "much of a secret"), and the circumstances of the vote will diminish any likely further controversy:

“He’s been encouraging people to have a full-throated debate, but ... he’s actually been discouraging people from filibustering or slowing down the nomination,” one knowledgeable Senate Democratic source said of Reid.

So it looks like there will be plenty of bluster aimed at satisfying civil liberties groups who are outraged that Mukasey won’t unequivocally say that he considers simulated drowning, or waterboarding, torture.

But in the end, a Democratic-led filibuster of the nominee is unlikely, given Reid’s hands-off approach to the nomination. Even if a few Democrats decided to erect a 60-vote threshold for Mukasey’s nomination, it’s not hard to imagine that 11 or more Democrats would vote with the chamber’s 49 Republicans to beat back the filibuster....

“With these kinds of nominations, it’s very hard to highlight a party position,” Reid spokesman Jim Manley said. He added, “This gets to the core of what the Senate is all about — the traditional role of advice and consent. ... In the end, it’s up to each individual Senator to decide how they’re going to vote on these nominees.”

But not to worry: there will be a kind of consolation prize for all those outraged civil liberties groups. Sen. Ted Kennedy (D-MA) will offer a bill that would specifically outlaw waterboarding -- so that even if we have an attorney general who hedges on whether it's torture, his hands would be tied.

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Spencer Ackerman | November 5, 2007, 9:40AM

Everything you need to know about Pervez Musharraf's weekend declaration of martial law -- or, in his felicitous words, his placement of the Pakistani constitution in "abeyance"-- prominent journalist Ahmed Rashid tells you:

The other prime targets [of the declaration] were not the extremists terrorizing major swaths of northern Pakistan but the country's democratic, secular elite. Dozens of judges, lawyers and human rights workers have been arrested. Others have gone into hiding. Asma Jahangir, Pakistan's leading human rights activist, is under house arrest. She appealed yesterday for the Bush administration "to stop all support of the unstable dictator as his lust for power is bringing the country close to a worse form of civil strife."

So will the Bush administration listen to Jahangir, who's precisely the sort of person President Bush promised to support in his second inaugural? No, reports The New York Times.

Though Secretary of State Condoleezza Rice and Central Command chief Adm. William Fallon implored Musharraf not to declare martial law, Islamabad sees itself as having a free hand now that it's defied the administration. Says Musharraf's mouthpiece Tariq Azim Khan, "They would rather have a stable Pakistan — albeit with some restrictive norms — than have more democracy prone to fall in the hands of extremists. ... Given the choice, I know what our friends would choose."

Consider Rice's statement yesterday to a Fox News interviewer in Jerusalem:

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Paul Kiel | November 2, 2007, 9:51AM

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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Paul Kiel | November 1, 2007, 9:50AM

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.