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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.

TPMLivewire