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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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