If there's a burning question that's arisen from Brent Wilkes' trial, it's not whether Wilkes is guilty. It's: 'Just how stupid is Duke Cunningham?'

According to testimony, Cunningham's (alleged) bribers were in agreement: his stupidity made him an easy mark. Wilkes' former employee testified that Wilkes told her Duke was "not the brightest congressman up there. We can work with him.”

And Mitchell Wade told jurors that Wilkes and Wade considered him to be “of below-average intelligence.” So while the unending stream of bribes kept Cunningham willing to do whatever the defense contractors wanted, you couldn't just tell him to go harass Pentagon officials because they weren't paying the bills. Wade said that the lawmaker was so thick that they had to "spell out for Duke exactly what he had to say."

He wasn't kidding. Earlier this week, prosecutors entered into evidence a set of talking points that Wade had prepared for Cunningham in 2004 for a call to a Pentagon official. We've posted a copy here, courtesy of Seth Hettena, the author of the recent book on Cunningham, Feasting on The Spoils, who's been blogging the trial. In the talking points, Wade made sure Duke's mind wasn't upset by any ambiguity. A sample:

Certainly Wade knew what he was doing. After all, look what happens when Cunningham is left to his own devices.

You can say this for the Senate intelligence committee's surveillance bill: it goes to some length to guard against "reverse targeting" -- that is, tapping foreigners' communications into the U.S. when the real intention is to target a U.S. person, thus circumventing warrant requirements. The bill repeatedly bans the "intentional" targeting of U.S. citizens' communications without warrants.

For instance, the bill says the NSA "may not intentionally target any person known at the time of the acquisition to be located in the United States," nor can it "intentionally" target a such a person "if the purpose of such acquisition is to target for surveillance a particular, known person reasonably believed to be inside the United States."

Should the surveillance happen to target such a person, though, the collection can probably stand, unless the FISA Court finds -- after the fact -- that the procedures resulting in such accidental surveillance were unreasonable. However, as anyone who's ever watched a sporting event knows, lots of reasonable plans result in the opposite outcome from the one intended. And that doesn't mean the game stops.

The Senate intelligence committee's surveillance bill is hot off the presses, and our crack team of overworked TPMm interns is hard at work adding it to our Document Collection.

You can read the bill here and use the comment thread to highlight what you think is notable.

Adm. Mike McConnell, the director of national intelligence, isn't saying straight out whether or not he supports the Senate intelligence committee's surveillance bill. While it might seem as if the bill -- the text of which is still unavailable -- gives McConnell even more latitude to conduct surveillance than his cherished Protect America Act does, McConnell is playing it close to the vest.

"Our FISA team will look closely at the wording of the bill to make sure it does not have unintended consequences," says McConnell spokesman Ross Feinstein. "We will continue to work on a bipartisan basis to make sure any FISA modernization bill meets the requirements that the [director of national intelligence] has set."

The Washington Post reported yesterday that McConnell was on board with the bill. But it looks like the DNI is wary of committing himself to anything yet. The last time McConnell indicated his approval of a congressional surveillance measure, after all, it didn't turn out so well.

Over at Wired's Threat Level blog, Ryan Singel takes a look at how generous the telecommunication companies have been to Senate intelligence committee Chair Jay Rockefeller (D-WV). As Singel notes, Rockefeller had received very little in contributions from the telecoms through last year. But that "changed around the same time that the companies began lobbying Congress to grant them retroactive immunity from lawsuits seeking billions for their alleged participation in secret, warrantless surveillance programs that targeted Americans."

He provides a vivid illustration:

Last month, Newsweek reported on the power lobbyists who've been working hard for the telcos to get an immunity provision.

Perhaps it was only a matter of time before the FBI opened an investigation into shady State Department inspector general Howard "Cookie" Krongard. House oversight committee chairman Henry Waxman (D-CA) has accused Krongard both of quashing numerous inquiries into corruption in Iraq and retaliating against employees who alerted committee staff to the problem. Now, National Journal reports (not available online), the FBI wants to ask Krongard's former employees some questions:

FBI agents recently interviewed a former senior official at the State Department's Office of the Inspector General as part of a preliminary inquiry by a federal oversight group into charges that the department's IG, Howard Krongard, blocked investigations of suspected fraud and waste by contractors in Iraq and Afghanistan.

Ralph McNamara, who was a deputy assistant inspector general at State, was forced out of his job over the summer after raising concerns that Krongard had thwarted investigations into the safety of the new U.S. Embassy in Baghdad, which is still under construction. McNamara said in an interview that he met with the agents at FBI headquarters in September for about an hour and answered questions about Krongard...

The FBI's interview with McNamara signals new potential headaches for Krongard, who has been the subject of complaints by six other current and former staffers in the IG's office of impeding investigations into contract fraud and waste in Iraq and Afghanistan. Some of those aides have received protection from retaliation under the federal whistle-blower statute.

It took two days of hearings for the Senate Judiciary Committee to reinforce its consensus that Michael Mukasey should be attorney general. The panel asked Mukasey tough questions about torture, detentions, surveillance and the president's inherent wartime powers. But those questions might have been misdirected. That's because an obscure Justice Department lawyer, Steven G. Bradbury, the acting head of the Office of Legal Counsel (OLC), might actually be more important to the war on terrorism than the attorney general.

It's also a position that's arguably more important to the administration too, since the OLC chief has the power to issue what former chief Jack Goldsmith called "an advance pardon" for dubious activities.

Yet while Bradbury has been serving as the acting head of the office since early 2005, he's never been confirmed for the spot. Senate Democrats continue to express opposition to Bradbury's nomination and say he remains in the position illegally.

Bradbury, a respected conservative lawyer, was nominated by President Bush in June 2005 to fill the void left by Goldsmith. The Office of Legal Counsel's job is to give guidance about whether certain government policies or presidential prerogatives are legal. But it's not meant to be an advocate for the president himself -- that's the White House counsel's responsibility. Goldsmith, in an agonizing reappraisal during 2003 and 2004, ended up rescinding earlier OLC directives about interrogation, expressed discomfort over administration plans to try terrorism suspects in military tribunals, and was part of a near-revolt in DOJ over warrantless surveillance, all of which is documented in Goldsmith's meditation on presidential authority, The Terror Presidency.

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In a letter today, Sen. Barack Obama (D-IL) urged the acting attorney general to fire voting rights section chief John Tanner. Citing Tanner's remarks earlier this month that "minorities don't become elderly the way white people do: They die first," Obama wrote that "Through his inexcusable comments, Mr. Tanner has clearly demonstrated that he possesses neither the character nor the judgment to be heading the Voting Rights Section." He concluded: "For that reason, I respectfully request that you remove him from his position."

Tanner made the comments as justification for his decision to overrule Justice Department staff attorneys and approve a Georgia voter ID law that was subsequently halted by a federal appeals court. Tanner made the novel argument that such laws actually discriminate against whites.

Things are only getting worse for Tanner. In a couple weeks, he'll appear before the House Judiciary Committee, where he'll get to explain personally to its 78 year-old African-American chairman that minorities don't "become elderly." He'll also have to explain why he took the unprecedented step of publicly assuring officials in Columbus, Ohio that there had been no discrimination against African-Americans in the allocation of voting machines for the 2004 election. The fact that African-Americans had to wait in long lines deep into the night, he said, was due to "the tendency" for "white voters to cast ballots in the morning" and "for black voters to cast ballots in the afternoon."

This is second time this month that Obama has come out hard against a controversial figure from the Civil Rights Division. Earlier, he joined with Sen. Russ Feingold (D-WI) in blocking the nomination of Hans von Spakovsky to the Federal Election Commission.

Obama's letter is below.

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The State Department is floating the idea that Blackwater's Iraq contract should be allowed to expire in May. But Blackwater clearly doesn't want that to happen. And it's seeking some new blood to reignite the spark that's gone out of their relationship.

Via R.J. Hillhouse's excellent contractor blog, it seems that Blackwater is investing in a new head of Iraq contracts. Yesterday, Blackwater posted a job opening for a regional coordinator on State's Worldwide Protective Services Contract, the official title for State contractor services on Iraq. Perhaps Blackwater just wants to have a good caretaker during its final months in Baghdad. Or maybe, as Hillhouse writes, it's "a sign that Blackwater is not planning on leaving Iraq anytime soon."

The job will operate out of Blackwater's Moyock, North Carolina offices. Interested applicants should be able to work "in a busy office environment" that's "subject to frequent interruptions" (which may or may not include FBI agents executing search warrants).

"Polling...showed public confidence in the judicial system increasing from 6% to 25%." No, that's not the Gonzales bounce; those confidence levels, a measure of Iraqi sentiment, were provided by the Inspector General for Iraq Reconstruction as signs of progress. Now, Iraqis are only twice as likely to prefer their fate be determined by a coin toss rather than by a jury of their peers. (ABC's The Blotter)

I guess we shouldn't be surprised. Back when Alberto Gonzales was Attorney General, he oversaw the investigation by the Inspector General into leaked information about warrantless wiretapping that spawned the now-infamous New York Times' article. But several witnesses in that investigation were also witness against Gonzales in an investigation into the legality of the wiretapping program itself (an investigation that Bush curtailed last year). Gonzales took no apparent steps to recuse himself. (Huffington Post)

Carol Lam speaks! The former U.S. Attorney has ended a notable silence to speak with her alma mater about the firestorm surrounding her very public firing this past December. (Stanford Lawyer)

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As expected, the Senate intelligence committee has passed its surveillance bill. Also as expected, retroactive legal immunity for telecommunications companies complying with President Bush's warrantless surveillance program is part of the bill. Not exactly as expected: it won't be the FISA Court that determines who complied with the program. It will be the attorney general:

The Senate bill would direct civil courts to dismiss lawsuits against telecommunications companies if the attorney general certifies that the company rendered assistance between Sept. 11, 2001, and Jan. 17, 2007, in response to a written request authorized by the president, to help detect or prevent an attack on the United States.

Suits also would be dismissed if the attorney general certifies that a company named in the case provided no assistance to the government. The public record would not reflect which certification was given to the court.

So you'll never know, if the Senate bill becomes law, if your phone company gave any communications material when the National Security Agency came calling without a warrant. Prediction: as of January 2009, Michael Mukasey can have any sinecure he likes with the telecom company of his choice. (Well, maybe not Qwest.)

In addition to the telecom provision, the bill also doesn't give the FISA Court any up-front role in foreign-targeted surveillance, unlike the Dems' now-stalled Restore Act in the House. It seems from this early report that the bill's major difference with the Protect America Act is that the FISA Court will have a larger role in reviewing the government's so-called minimization procedures -- that is, how NSA analysts redact identifying information of U.S. persons caught up in the surveillance web. For this, remarked Sen. Jay Rockefeller (D-WV), chairman of the intelligence committee, "FISA has a much larger role now."

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Tim Starks of Congressional Quarterly reports that Senate Majority Leader Harry Reid (D-NV) plans to bring the Senate's surveillance bill up for floor debate in mid-November. That's despite the hold that Sen. Chris Dodd (D-CT) plans to place on the measure -- something first reported by Election Central's Greg Sargent.

The Senate intelligence committee is still marking up the bill behind closed doors, according to staffers. A joint statement from committee leaders Jay Rockefeller (D-WV) and Kit Bond (R-MO) will follow when the mark-up concludes, but that may not occur today.

As for the bill's early support, here's Starks (not available online):

Sen. Dianne Feinstein, D-Calif., praised Rockefeller and Bond's efforts to put together a bipartisan bill, but added that "I have concerns" about the legislation. She offered no specifics.

Asked if he was comfortable with the legislation, Sheldon Whitehouse, D-R.I., would only say, "I'll be doing some stuff in markup."

Bond said "we'll see" if other Republicans line up to support the legislation, noting that senators are "as independent as hogs on ice."

Starks also reports that Reid and whip Dick Durbin (D-IL) want to see the legal documentation the White House gave to the committee about warrantless surveillance before casting their votes.

Of course, they closed with the hookers.

Two of the prostitutes who serviced Duke Cunningham and Brent Wilkes during their 2003 trip to Hawaii wrapped up the prosecution's case, and now it's Wilkes' turn. How much of a case he'll put on is entirely unclear. His lawyer Mark Geragos has threatened to call Cunningham himself to testify, but who knows if he'll follow through? It's also unclear whether Geragos will try to get other lawmakers to testify about their relationship with Wilkes -- as part of his defense that his gifts to Cunningham were just the way Washington worked for a defense contractor.

Both of the prostitutes told the same story: Wilkes' nephew brought them into the hotel suite. And from there:

"They asked us if we wanted to get naked and get into the Jacuzzi," [Donna] Rozetta said.

"What did you do," prosecutor [Phillip] Halpern asked.

"We got naked and got in the Jacuzzi," Rozetta replied.

The Jacuzzi calls to mind another hot tub moment in the Cunningham saga.

After Cunningham fed Rozetta some grapes, there was an argument over who got which hooker. Wilkes, much to Cunningham's dismay, claimed the blond, named Tammy McFadden. Or as McFadden testified, "The one I ended up with was the one who was running the show."

And even though he wasn't paying, Cunningham apparently felt that he'd "got the short end of the straw." And indeed, Cunningham did ask for a different prostitute the next night. But Rozetta seems to have been none too impressed with Cunningham herself -- she identified him in the courtroom as the one with "heavy jowls and a puffy face."

But the real star yesterday for prosecutors was Wilkes' nephew Joel Combs, who was Wilkes' right hand man. Combs and Mitchell Wade, Wilkes' onetime colleague and then competitor, really comprise the foundation of the government's case. Earlier this week, Wade detailed about how all those gifts he gave to Cunningham really were bribes.

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Michael Mukasey sought to assure senators (and seems to have been successful) that there'd be no repeat of the U.S. attorney firings scandal on his watch.

So, now that Mukasey's hearings are done, what do the fired U.S. attorneys think about Alberto Gonzales' replacement?

Former U.S.A. for New Mexico David Iglesias, for one, is pleased. "It appears to me that he gets it," he told me. "He understands the necessity for having an independent attorney general and an independent Department of Justice." Iglesias added that he liked "the fact that he's a former federal prosecutor. He understands that you have to build an absolute firewall from politics."

I'd "really be surprised if my colleagues hold different views from this," he added.

Sen. Chuck Schumer's (D-NY) been paying attention to the Don Siegelman case, and today he asked Michael Mukasey to take a look at whether Karl Rove had been instrumental in kick-starting the prosecution.

Mukasey replied that those sorts of issues should be heard first on Siegelman's appeal, which is ongoing. So Schumer took the consolation prize of asking Mukasey to look into it after the appeal. Mukasey agreed.

Mukasey also agreed to look at a study by two university professors (first reported here, by the way) that found an overwhelming tendency for Bush's Justice Department to pursue Democrats over Republicans. (More on that here.) In early May, Democrats asked the Department's inspector general to investigate the study's findings; but there's been no indication such an analysis ever took place.

Mukasey has firmly established that he's against torture -- yesterday he even compared it to the Holocaust (see also here).

But what exactly does that mean? Sen. Sheldon Whitehouse (D-RI) asked Mukasey if he thought waterboarding was Constitutional. "If waterboarding is torture... torture is not Constitutional," he replied.

Whitehouse wasn't satisfied. "That is a massive hedge.... It either is or it isn't." Doesn't Mukasey have an opinion on whether waterboarding is torture? He went on to describe the technique, which involves using a wet rag to make the detainee feel like he's drowning. Mukasey replied with the same answer: "If it amounts to torture, then it is not Constitutional."

I'm very disappointed," Whitehouse said, adding that Mukasey's reply had been "purely semantic."

"Sorry," replied Mukasey.

While Mukasey doesn't think there's an inherent presidential right to torture -- which he said is explicitly prohibited by the Constitution -- that's not to say he doesn't take a broad interpretation of the president's Article II authority. Reiterating an answer he gave yesterday, he told Sens. Patrick Leahy (D-VT), Dianne Feinstein (D-CA) and Russ Feingold (D-WI) that the president, for example, can authorize surveillance outside the Foreign Intelligence Surveillance Act.

Feingold challenged Mukasey on exactly what he's saying. Was Mukasey arguing that any activity to "safeguard against a national security threat" would justify violating a statute? After some legal argumentation, Mukasey replied, essentially, that going outside a statute is an extreme step, and implied that he'll take steps to ensure that "push doesn't come to shove" between presidential authority and statutory limitation. But he left the door open for at least some nebulous presidential power that trumps congressional attempts at limitation. John Yoo might have a bad headache, but his skull is probably intact.

When a U.S. attorney tried to get Alberto Gonzales to reconsider the Department's decision to seek the death penalty for a defendant, he was told that Gonzales had already spent a "significant amount of time" on the issue -- meaning "5 to 10 minutes." When Sen. Arlen Specter (R-PA) asked Gonzales about that case, he couldn't remember it. That USA, Arizona's Paul Charlton, was among the nine fired U.S. attorneys, and this instance of "insubordination" was cited as justification.

So today, Sen. Russ Feingold (D-WI) asked Michael Mukasey what his approach to the death penalty would be. And he promised to "review every such decision" to seek the death penalty "in excruciating detail." Presumably that means more than 5-10 minutes.

But when pressed as to whether he would promise to speak to U.S. attorneys who disagreed with the Department's decision to seek death, Mukasey refused. He'd want to have that U.S. attorneys' views "made known" to him, he said. But he's concerned, he said, about similar cases getting "different treatments in different jurisdictions."

So it's unclear if Charlton's view that "if a government seeks to take another person's life it should do so on only the best of evidence" would get a more sympathetic hearing from Mukasey.

Now it's John Yoo's head that's exploding.

During the just-underway second day of questioning for Attorney General-designee Michael Mukasey, Sen. Arlen Specter (R-PA) asked whether there's any inherent presidential power to order torture, a central constitutional contention of former Office of Legal Counsel attorney John Yoo in the famous August 1, 2002 Bybee memo (pdf). Mukasey's answer? "The president can't authorize torture because torture is barred both by statute and the constitution." Mukasey, firmly in the realm of mainstream legal opinion, said the 5th, 8th and 14th amendment prohibit torture.

The answer is revealing less for the specifics of the answer than for Mukasey's perspective on the president's constitutional authority. It turns out, contra Yoo, that the president can't do anything he wants during wartime, according to the new would-be attorney general.

Since the Coconut Road earmark scandal broke, Rep. Connie Mack (R-FL), whose district rejected $10 million for the unpopular interchange, has claimed he knew nothing about how the project made its way into the 2005 highway bill. And, in fact, he supports allowing local government to use the money for another project.

But today, The Hill's Susan Crabtree reports that Mack probably knew more than he's let on. According to a letter written by Mack in 2006 to Florida Gulf Coast University, he said he supported the interchange:

The Coconut Road Interchange, built in conjunction with the [Florida Gulf Coast University] Transportation Management Center, stands to be the cutting-edge demonstration project in America to study and improve hurricane and crisis evacuation transportation safety programs,” Mack wrote in the letter, which was addressed to Florida Gulf Coast University (FGCU) President William Merwin.

It's unclear, though, if Mack played a part in swapping the earmark's language after Congress voted on the highway bill but before the President signed the bill. Earlier this week, The Hill reported that the Congressional Research Service reviewed such post-vote earmark changes and advised that they are unconstitutional.

Douglas Feith once reportedly quipped that the State Department should be called the Department of Nice. To Blackwater, however, it might be better termed the Department of Passive-Aggressive. According to the AP, State won't exactly ask Blackwater to leave Iraq, but in true awkward-breakup fashion, it's indicating that Blackwater should get out if it wants to do the honorable thing:

Blackwater's work escorting U.S. diplomats outside the protected Green Zone in Baghdad expires in May, one [State Department] official said, and other officials told The Associated Press they expect the North Carolina company will not continue to work for the embassy after that.

It is likely that Blackwater does not compete to keep the job, one official said. Blackwater probably will not be fired outright or even "eased out," the official added, but there is a mutual feeling that the Sept. 16 shooting deaths mean the company cannot continue in its current role.

Blackwater spokeswoman Anne Tyrrell responded, "We will follow the lead of our client. If they want us to stay we will stay. If they want us to leave we will do so." Translated from the contractor-speak, that's "Fine. Be that way."

In 2003, a Baltimore area high school graduate disappeared into a “black site” of the CIA’s secret prison system. He turned up at Guantanamo Bay last year. On Tuesday, he had his first meeting with an attorney. This “ghost detainee” has spoken only once publicly (through a partially censored transcript of a Pentagon hearing earlier this year) when “he complained of chronic abuse in American custody and said he repeatedly tried to kill himself in his despair.” (Miami Herald)

One of Michael Mukasey's first jobs will be to figure out what to do with Craig Morford, the U.S. Attorney who was brought in as Deputy Attorney General to clean up Gonzo's mess. The administration is suggesting that Mukasey can pick his own DAG, which is leading Morford supporters (particularly the other U.S. attorneys) to believe that Morford is being booted out (sub. req.) for his work on politically sensitive prosecutions. (Wall Street Journal)

The President of Oral Robert University is taking a leave of absence amid accusations of treating the school founded by his father as his own private piggy bank. I blame the growing public mistrust on this article. (LA Times)

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If you liked the Protect America Act -- President Bush's sweeping revision to the Foreign Intelligence Surveillance Act signed into law in August -- you're going to love the soon-to-be-unveiled surveillance bill from the Senate intelligence committee. President Bush and Admiral Mike McConnell do, at least. A day after the White House made available to the committee "millions" of pages of material documenting how the telecommunications industry complied with warrantless requests for Americans' international communications after 9/11, the committee wrote into its bill a provision granting the industry retroactive immunity from customer lawsuits that the White House has long desired.

It's unclear what else the bill will contain. The House Democratic surveillance measure that Republicans blocked yesterday allowed for non-individualized court orders approving surveillance of targets "reasonably believed" to be outside the U.S. and possessing "foreign intelligence information," a provision that has divided civil libertarians. That measure is too restrictive to the Bush administration, which wants all foreign-directed surveillance outside the purview of the FISA Court, even in cases where foreigners call into the United States. Until the Senate bill is released today, it won't be clear whether there's a prior-review role for the court in foreign-directed surveillance.

But on the most contentious aspect of the debate -- retroactive legal immunity for telecommunications companies cooperating with the Bush administration -- the Senate has apparently justified the ACLU's worst fears. Here's what The Washington Post, citing congressional sources, reports about how the immunity will work:

The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.

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Well, so much for this post. As our homeboy Greg Sargent has been reporting throughout the day, the Democratic leadership of the House yanked consideration of the Restore Act after a clever bit of GOP parliamentary chicanery threatened to force Democrats into seeming to vote against spying on Osama bin Laden. See Greg's latest for the details.

Tomorrow, the FISA theatrics continue as the Senate intelligence committee is scheduled to unveil its counterpart to the Restore Act, complete with a pledge of allegiance to al-Qaeda, one-ply toilet paper and the murder of kittens. Or something like that -- I'm going from a forthcoming GOP press release.

Here's something else you never would have heard from Alberto Gonzales.

Sen. Chuck Schumer (D-NY) quizzed Mukasey about one specific assertion of executive privilege by the White House in the U.S. attorney firings probe -- namely their claim that correspondence with people outside the White House were covered by privilege and should not be turned over to Congress. The case Schumer mentioned referred to an email from the chairman of the New Mexico Republican Party to the White House about New Mexico's U.S. attorney, David Iglesias.

After a preamble about how he could see certain circumstances where outside communication might be covered by privilege, Mukasey told Schumer that he'd read the letter from the White House counsel's office claiming privilege for such communications. "I will admit to you that my first reaction to that section of the letter was, 'Huh?'" But he added that he'd like "to take a closer look at the facts" before that was his final reaction.

The procedures for trying enemy combatants in military tribunals are still up in the air. But Mukasey testified that he would rule out coercion-gotten information from admissibility. Asked by Sen. Lindsey Graham (R-SC) about confessions gotten through waterboarding, Mukasey professed ignorance about what waterboarding entails, but said, "I would be uncomfortable with any evidence used in trial that is coerced."

Now that two Veco executives have pleaded guilty to buying politicians, two former legislators have been convicted on bribery charges, two more lawmakers are awaiting trial and two thirds of the federal delegation is under FBI investigation, Alaska has decided maybe it should start looking into some of this corruption stuff.

But, too late.

Gov. Sarah Palin released a letter today from the Justice Department telling the state to drop its investigation into whether Veco paid for political polling, fearing the inquiry may interfere with the wide-ranging and ongoing federal probe. The letter is available here.

In her letter, Brenda Morris, deputy principal of the Public Integrity Section at the Justice Department, tried to let down Alaska's Attorney General Talis Colber easy:

We understand and appreciate that all levels of law enforcement - local, state and federal - have an interest in ensuring that government and its officials operate free of illegal influences. However, because of the long-standing federal investigation into these matters, we believe that concurrent state investigative activity will have the effect of compromising certain aspects of the ongoing federal public corruption investigation.

There's always next time, Alaska.

A federal judge in Detroit wants to know if politics motivated the prosecution of lawyer and former Democratic gubernatorial candidate Geoffrey Fieger, who is accused of illegally donating $127,000 to John Edwards' campaign in 2004, the Detroit Free Press reports.

U.S. District Judge Paul Borman also wanted to know why it took 75 to 80 federal agents to raid Fieger's law office and confront 32 employees on the doorsteps after dark in November 2005.

"I'm just trying to figure out how it went down," Borman told Assistant U.S. Attorney Lynn Helland. He said he couldn't recall that many agents involved in any other raid during his 13 years on the federal bench.

Borman is considering a request from Fieger's lawyers to allow them to investigate whether the White House or former Justice Department officials instigated the prosecution. That investigation could include deposing former Attorney General Alberto Gonzales and Karl Rove.

That sound you hear from the Hart Senate Office Building is David Addington's head exploding.

Michael Mukasey, responding to questioning from Sen. Chuck Schumer (D-NY), endorsed the memoir -- and, implicitly, the legal perspective and bureaucratic predicament -- of Jack Goldsmith, the former Office of Legal Counsel chief, who fought Addington and Alberto Gonzales on interrogations, detentions and surveillance policy. "I thought it was superb. I couldn't put it down. In a way, I was sorry when it was finished," Mukasey said.

Among the largest legal disagreements between Goldsmith and Addington centered around presidential authority. Addington argued that power is a zero-sum game, where congressional power necessarily encroaches on executive authority; Goldsmith found it an enhancement, generating consensus for presidential decisions. Mukasey placed himself squarely in Goldsmith's camp. "I would certainly suggest going to Congress whenever we can. It always strengthens the hand of the president," Mukasey said. "Unilateralism, across the board, is a bad idea."

The House voted earlier today to clear the way for a final floor vote on the Restore Act -- the Democratic proposal on domestic-to-foreign surveillance -- by a margin of 223 to 196. The vote was mostly along party lines. Expect the final vote by late afternoon.

Its chances of ultimate approval are slim. President Bush today reiterated his opposition to anything more restrictive than this summer's Protect America Act. AP:

Critics say the authorization would tie up intelligence agents in legal red tape, impeding them from conducting urgent surveillance of terrorist suspects. "Congress needs to move forward, not backward," President Bush said at a news conference as the debate began.

Similarly, the ACLU today reaffirmed its opposition to the bill, even as Restore has won over some civil libertarians:

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A House Judiciary panel plans to hold a hearing next Tuesday looking at allegations of politically-motivated prosecutions, including the case of former Gov. Don Siegelman (D-AL) and likely the suspicious cases against a Wisconsin bureaucrat that an appeals court called "beyond thin," and against a Democratic coroner in Pennsylvania.

Siegelman's lawyers have long contended that the case stemmed from a political vendetta against the Democratic governor in a Republican-dominated state. Documents recently obtained by Time give traction to this claim, showing that investigators ignored allegations from a state lobbyist of wrongdoing by Sen. Jeff Sessions (R-AL) and former state Attorney General William Pryor, but still initiated an investigation into Siegelman.

The Republican lawyer, Dana Jill Simpson, who first triggered the national coverage of the Siegelman case with her affidavit implicating Karl Rove in the prosecution, spoke with judiciary committee investigators earlier this month. According to the transcript, Simpson described a second instance that fingers Rove in the Siegelman prosecution. There is no word yet if she will testify at next week's hearing.

Among Michael Mukasey's most controversial decisions as a judge was to sign a material-witness warrant for suspected (and now convicted) al-Qaeda affiliate and U.S. citizen Jose Padilla, which allowed his detention after his mid-2002 arrival at Chicago's O'Hare Airport. A month later, the Defense Department declared Padilla an enemy combatant -- a decision that the Justice Department revoked three years later to bring Padilla to criminal trial. Mukasey wrote in an August op-ed that Padilla's trial showed that "current institutions and statutes are not well suited" to trying terrorists since Padilla's counsel-free "confession" of being involved in a dirty-bomb plot was inadmissible.

Sen. Dianne Feinstein (D-CA) asked, in light of Mukasey's involvement with the Padilla case, whether Mukasey thought the law -- and particularly the September 2001 authorization of military force for Afghanistan -- permitted seizing U.S. citizens on U.S. soil indefinitely without charge. Mukasey cited the 2004 Hamdi case as upholding the president's ability to detain U.S. citizens on the battlefield, but said he "can't say now" whether the "battlefield" applies to the United States. It remains unclear whether Mukasey thinks U.S. citizens captured at home in terrorism-related investigations can be indefinitely detained.

It's definitely one of Michael Mukasey's bottom line messages today: He's no Alberto when it comes to politicization.

When Sen. Herb Kohl (D-WI) asked him how he would ensure that politics plays no role at the Justice Department, he replied that any attempt by a "political person" to interfere with a case would be "cut and curtailed" and that whoever that person was would be promptly referred to the "very few people at the Justice Department" permitted to take calls from elected officials.

As to whether he might, say, try to fire a group of competent U.S. attorneys because they weren't "loyal Bushies" and try to replace them with loyalists, or make sure that career employees were also team players, Mukasey said that hiring in the department would be based solely on qualifications, "not whether they had an R or D next to their name."

And what would he do if such a firing of U.S. attorneys were going on? He'd "get in the middle of it very fast and stop it."

Mukasey wouldn't commit to recommending to President Bush that the Guantanamo Bay detention facility be closed. Shuttering Gitmo, reportedly, was one of Defense Secretary Robert Gates' first major recommendations to the president earlier this year.

Responding to Sen. Herb Kohl (D-WI), Mukasey said he's "not prepared to say, close it... there's no easy solution." His concern is figuring out what happens to the approximately 330 detainees still within the island prison. But he did say that "I'm prepared to say we need to get the best advice and the best ideas we can, with the goal of closing it down." He considered himself in broad alignment with the administration, since Bush said last year that he'd "like to close Guantanamo" but also added a number of caveats.

Does Michael Mukasey think that a U.S. attorney cannot enforce a citation of contempt from Congress against a White House official who's hiding behind executive privilege?

It's a key question for Harriet Miers, Karl Rove and current White House chief of staff Josh Bolten, who have all refused to testify to Congress or turn over documents relating to the U.S. attorney firings. Votes of contempt are probably on the horizon for at least those three. Such citations would be referred to the U.S. attorney for Washington, D.C., who would then either kick start a criminal case or refuse to enforce them.

Here's what Mukasey had to say:

Unlike the Justice Department under Alberto Gonzales, Mukasey told Sen. Patrick Leahy (D-VT) that it's not a foregone conclusion. But he didn't seem to give Democrats much cause for optimism. The key issue, he said, is whether the U.S. attorney can find that the reliance on executive privilege was "unreasonable." He added: "I hope and pray for a lot of things, and one of them is that I won't have to make that decision."

That was, um, unexpected. Not only did Michael Mukasey repudiate the so-called 2002 "torture memo" signed by Office of Legal Counsel chief Jay Bybee -- which appears to have survived in spirit, if not in letter -- but he compared U.S. torture to the Holocaust.

Most significantly, Mukasey said that he is unaware of any inherent commander-in-chief authority to override legal restrictions on torture -- a huge repudiation of Dick Cheney, David Addington and John Yoo's perspective on broad constitutional powers possessed by the president in wartime -- or to immunize practitioners of torture from prosecution. That answer is sure to create anxiety inside the CIA, where many interrogators fear that they will be brought up on charges for carrying out interrogation methods earlier approved by the administration.

The Bybee memo is "worse than a sin, it's a mistake," Mukasey said. He referenced the photographs taken by U.S. troops who liberated the Nazi concentration camps in 1945 to document the "barbarism" the U.S. opposed. "They didn't do that so we could duplicate what we oppose." Beyond legal restrictions barring torture clearly, torture is "antithetical to what this country stands for."

He wouldn't comment on the recent Steve Bradbury memo reported on by The New York Times authorizing some torture methods in 2005, since he hasn't read it. But he told the panel that he would review all legal memoranda on interrogations and other national security programs to ensure their soundness.

Update: Here's the video:

...And we're live! Michael Mukasey is up before the Senate Judiciary Committee today, and the hearing has just kicked off (it's currently airing on C-SPAN3). We'll be updating with the notable exchanges.

Already it's apparent we're no longer in the Alberto Gonzales-era, as Chairman Patrick Leahy (D-VT) was grinning all through his opening statement.

With a vote expected today in the House on the Restore Act -- the Democratic surveillance bill that scales back August's Protect America Act (PAA) -- a split has emerged among civil libertarian groups that unanimously strongly opposed that bill. The ACLU continues to oppose the Democratic bill, but two other prominent civil libertarian organizations, the Center for Democracy and Technology and the Center for National Security Studies are urging passage.

Both organizations consider Restore to be an imperfect bill. In particular, neither is fond of the so-called "basket" orders for surveillance authorized by Restore that allow the NSA to collect communications without individualized suspicion. But Kate Martin of CNSS sees the issue much as the Justice Department's Ken Wainstein does: the FISA Court has a front-end oversight role over foreign calls that might be to U.S. persons. It's just Wainstein finds that unacceptable, and Martin doesn't.

"Our view is that as written, the Restore Act would allow the Court to authorize surveillance without a warrant when we think the Fourth Amendment requires a warrant. Yes, that's problematic," Martin says. "But the circumstances under which the court is authorized to do so are much narrower than the circumstances under the Protect America Act, and it's going to be revisited by Congress in a way that's crucial, with oversight and a sunset provision."

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White House documents about the warrantless surveillance program, long sought by the Senate Judiciary Committee, are now in the hands of the Senate intelligence committee.

Why? The intelligence panel, which never issued the subpoenas that judiciary did, had a different piece of leverage: the possibility of passing retroactive legal immunity for telecommunications companies that cooperated with warrantless surveillance demands, a Bush administration priority.

Tomorrow the Senate intelligence committee is expected to mark up its version of a surveillance bill abridging some of the expanded eavesdropping authorities given to the administration in August. Its House companion, the Restore Act, doesn't include any retroactive legal immunity for the telecos, largely because the Democrats wouldn't bless immunity without knowing what exactly the companies did. (The administration ignored an offer by Steny Hoyer (D-MD), the Democratic majority leader in the House, to condition retroactive immunity on the release of the surveillance documents.) Arlen Specter, the Judiciary Committee's top Republican, who voted to subpoena the documents, joined in that chorus yesterday, calling retroactive immunity a "pig in a poke" absent administration disclosure: "I think it’s unreasonable to ask us to give them immunity for things we don’t know what they did."

With an immunity-free markup looming in the Senate intelligence committee tomorrow, the administration appears to have relented. According to Tim Starks at Congressional Quarterly (not available online):

Senate Intelligence Chairman John D. Rockefeller IV, D-W.Va., said his staff Tuesday reviewed legal opinions and other documents the panel had sought related to the NSA program. He said his staff was allowed to take notes, but he hadn't been briefed on their contents yet and intended to view them for himself.

Although Rockefeller's panel had been tentatively scheduled to mark up its own FISA legislation Thursday, "There wasn't going to be a markup unless we got that stuff," he said.

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The Justice Department under Bush has had new priorities. Between 2000 and 2006, the number of defendants in environmental cases is down twelve percent, organized crime prosecutions are down thirty-eight percent, bankruptcy and fraud prosecutions are down forty-six percent, and white-collar crime prosecutions have slumped ten percent. Instead, Justice says it is focused on immigration and terrorism-related investigations. But last year, the department brought only 46 international terror cases, down from 355 in 2002. (Washington Post, New York Times)

The boat that no one loves sits in Seattle. But the Seattle Times, in an ongoing investigation of defense earmarks, is paying it attention. The boat was built by the Navy (who had no intention o f using it), funded by $4.5 million in earmarks (that the government never requested) and then donated to the University of Washington (which has no use for it). It seems the only people who benefited from it are the shipbuilders (who've received over $17 million in earmarks over their career). (Seattle Times)

Attywood recalls all the reasons why the Democrats should have been wary to put Rep. Jack Murtha (D-PA) in a high profile position. Beyond his talent for writing press releases for high-dollar donors, Murtha is closely tied to CTC, the firm that hired Charles Riechers (without giving him any work) before Reichers' recent tragedy. (Attywood)

Spying is expensive. The cable company Comcast reportedly charges the government $1,000 nearly every time the government wants to monitor or review the activities of a customer, plus an additional $750 a month in maintenance fees. We here at TPM cringe at the the thought of what would happen if the government had to deal with Time Warner. (ABC's The Blotter)

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It took a catastrophe that some say may ultimately prove "worse than Abu Ghraib," but finally the administration is thinking long and hard about oversight of security contractors in war zones. Bob Gates has a simple plan: put them under Defense Department control.

The New York Times reports this morning that the defense secretary, who shortly after the Nisour Square shootings pronounced himself dissatisfied with the apparent impunity exercised by private-security firms, wants a single, unified authority overseeing all security companies in Iraq and Afghanistan. It's not clear if the military would exercise command authority over security contractors -- something some ex-contractors support -- under Gates' nascent plan. But the State Department isn't so hot on relinquishing control over the contractors, like Blackwater, that guard its diplomats:

That idea is facing resistance from the State Department, which relies heavily for protection in Iraq on some 2,500 private guards, including more than 800 Blackwater contractors, to provide security for American diplomats in Baghdad. The State Department has said it should retain control over those guards, despite Blackwater’s role in a September shooting in Baghdad that exposed problems in the current oversight arrangements.

In practical terms, placing the private security guards who now work for the military, the State Department and other government agencies under a single authority would mean that those armed civilians would no longer have different bosses and different rules. Pentagon advisers say it would also allow better coordination between the security contractors and American military commanders, who have long complained that the contractors often operate independently.

Gates is still making up his mind over how changes in contractor oversight should work. One as-yet-unresolved issue is whether additional legal clarification is needed to ensure that contractors don't operate in legal black holes:

Some military commanders in Iraq favor using the Uniform Code of Military Justice, a system they know well and trust. Other Defense Department officials support the model being considered by Congress, which would make clear that the Military Extraterritorial Jurisdiction Act would extend federal law to civilians supporting military operations.

The Times reports that Gates and Rice haven't spoken about the issue yet, as Rice is traveling in the Middle East. But apparently Gates is prepared to make a strong push for total DOD control over contractors: the paper says he's willing to go to President Bush directly for a decision.

Marketplace radio's Steve Henn has a new angle to the Veco-Stevens scandal: the two men quietly paired up in 2002 to support the campaign of seven other Republican senators. Politicians often use their political action committees to purchase influence with members of their caucus, but Sen. Ted Stevens (R-AK) appears to have gone one step further. Veco CEO Bill Allen served in his proxy, echoing Stevens' leadership PAC contributions, buying the senior Republican senator clout on Veco's dime.

Here at TPMmuckraker we've painted the Alaska tale as a series of various cash-for-political favors incidents. But Henn describes a more complicated -- and telling -- relationship between Allen and Stevens. He noticed that in the summer of 2002, Veco executives poured $70,000 into seven Republican Senate challengers' campaign funds. The donations "closely mirrored cash gifts" from Steven's PAC.

Sen. Norm Coleman (R-MN) and Sen. John Sununu (R-NH) are two good examples.

Working in concert, Ted Stevens, Bill Allen and VECO executives used half a dozen political committees to raise about $25,000 for Coleman's 2002 campaign, and $50,000 for Sununu's. Both Coleman and Sununu are running for reelection this year.

Here's a breakdown of the Veco-Stevens donations to Sununu, including a $25,000 donation from Veco to Stevens' PAC, which then made its way straight into the Sununua Victory Fund.

Stevens brought Sununu and Coleman even closer into his sphere of influence by inviting them up to Alaska for his annual salmon-habitat fundraiser and influence-swapping event, the Kenai River Classic, co-hosted by Bob Penney.

As the ACLU worries that Senate Democrats in the intelligence committee will give retroactive immunity to telephone companies for collaborating with the administration's warrantless surveillance program, the two senior members of the judiciary committee say they won't entertain that without knowing what the telecoms did.

Here's Chairman Patrick Leahy (D-VT) and ranking member Arlen Specter (R-PA) speaking earlier today on CNN:

Specter:

I certainly would not give them immunity retroactively on programs that we don’t know what they are…. I think it’s unreasonable to ask us to give them immunity for things we don’t know what they did. If there was a need for it at the time, and if the telephone companies were good citizens and if they supplied information which was important, then I’d be prepared to look at it. But I’m not going to buy a pig in a poke, and commit to retroactive immunity when I don’t know what went on. They’ve kept that from us. That’s a big problem, Wolf.

Looks like David Satterfield was too late. The House of Representatives, upset with the State Department's reluctance to publicly address corruption in the Iraqi government, voted 395-21 to rebuke Foggy Bottom, despite Satterfield's admission yesterday that "corruption is a reality in Iraq."

"The Bush administration is hiding the truth while seeking hundreds of billions of dollars and placing our troops in danger. And we cannot allow this to happen," said Rep. Henry Waxman, chairman of the House Oversight and Government Reform Committee.

Waxman sponsored the nonbinding resolution, which states that the administration abused its power by classifying U.S. assessments on corruption inside Prime Minister Nouri al-Maliki's government. The House agreed to the measure, 395-21.

"Five years ago abuse of the classification system got us into this war. It's time for this abuse to end," Waxman said.

It's a nonbinding resolution, so all the State Department has to do is take note that the House thinks it's been naughty. But maybe next time State officials will think twice before they reclassify publicly available documents.

It's hard to keep track of all the different Blackwater probes. But the government of Nouri al-Maliki says that its own investigation of the September 16 Nisour Square shootings has concluded, and it found that Blackwater committed "unprovoked and random killings," CNN reports. Its stance on Blackwater, which the State Department is apparently no longer challenging, is that the private-security firm has to leave Iraq

Adviser Sami al-Askari told CNN al-Maliki has asked the U.S. State Department to "pull Blackwater out of Iraq."

Al-Askari said the United States is still waiting for the findings of the American investigation, but the Iraqi leader and most Iraqi officials are "completely satisfied" with the findings of their probe and are "insisting" that Blackwater leave the country.

It was Askari who said over the weekend that the State Department is no longer "insisting on Blackwater staying" in Iraq -- not a U.S. official. We'll see if it actually happens. The Iraqi probe's recommendations include the departure of Blackwater within six months.

Reporter-blogger Eric Black dug up some more news on the Office of Special Counsel investigation into US attorney for Minnesota Rachel Paulose, whose management style triggered four of her office's top attorneys to resign their top spots and take rank-and-file positions.

One accusation investigators are looking into is whether Paulose used racial slurs in describing one of her employees. Black reports that two witnesses have given statements to investigators about Paulose's possible racist talk:

The first told the investigators that she heard the remark. The second — Paulose’s personal secretary — either corroborated the remark itself or told the investigators that she has heard Paulose make similar remarks. Paulose has not publicly confirmed or denied that she made the comment.

The alleged slur or slurs involve the words “fat,” “black,” “lazy” and “ass.” The staff member involved told Black she has filed an official complaint.

Recently, House lawmakers filed their third quarter campaign disclosure reports -- and you know what that means! It's time for another round-up of how much lawmakers have dropped on lawyers to defend themselves from investigation.

Rep. Jerry Lewis (R-CA), with nearly $1 million in total fees dating back to last year, remains the undisputed House champion, but Rep. Don Young (R-AK) is charging hard.

Here's our list of legal spending habits for the past three months, as well as an estimate of how much each lawmaker has spent in campaign funds to date and to which firms:

Rep. Don Young (R-AK): $183,785
So far, Young has spent $447,000 on the law firms Akin Gump Strauss Hauer & Feld and Tobin O'Connor Ewing & Richard (the vast majority of which is spent on Akin Gump). He's under investigation for his relationship with Bill Allen, former CEO of oil-services firm.

Rep. Rick Renzi (R-AZ): $111,042
Renzi has paid around $148,000 to law firms Patton Boggs LLP and Steptoe & Johnson LLP (primarily on Patton Boggs). Renzi remains under investigation by the FBI for pushing legislation that would advantage political supporters and former business partners. His house was raided by the FBI this past April. Renzi has announced that he will not seek another term.

Rep. Alan Mollohan (D-WV): $55,000
Mollohan has spent $78,000 on the law firm Kellogg, Huber, Hansen, Todd, Evans & Figel. He has been under federal scrutiny since last May for earmarking funds for organizations connected to him.

Rep. Jerry Lewis (R-CA): $26,982
Lewis has spent over $987,000 on the law firms Gibson, Dunn & Crutcher and Williams & Jensen. He is being investigated for earmarks that he provided to campaign contributors, as well as his role in the Duke Cunningham scandal.

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If there were any doubt remaining that Michael Mukasey will fly through the confirmation process, it's been dispelled.

Today, Mukasey met privately with Senate Judiciary Committee Chairman Patrick Leahy (D-VT) as a prelude to tomorrow's confirmation hearing. It went well. From the AP:

Attorney General-designate Michael Mukasey is headed for swift approval with scant objections, the powerful Democrat who will chair his confirmation hearings said Tuesday.

"I would expect him to be confirmed," Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., told reporters after meeting with the former federal judge. "I like him."...

Leahy told reporters that during private meetings and an exchange of letters, Mukasey has provided acceptable answers to key questions, such as whether he would operate the Justice Department independent of the White House. Gonzales was accused of being "the president's lawyer" and allowing his deputies to make some hiring decisions based on political affiliation, a violation of law.

David Satterfield, reality. Reality, David Satterfield. Glad you could meet one another.

After weeks of silence and obfuscation on the extent of corruption in Iraq, Satterfield, one of Secretary of State Condoleezza Rice's top Iraq advisers, finally admitted what has been clear to unbiased observers for a long time: Iraq is really, really corrupt. Satterfield bowed to the unfortunate fact of corruption in Iraq during a conference call with reporters yesterday.

"Corruption is a reality in Iraq," the department's Iraq policy coordinator, David M. Satterfield, said. "Iraqis at every level have failed to put the nation's interests ahead" of their own and those of their religious, ethnic and tribal affiliations, he said.

State's refusal to discuss corruption in Iraq has reached absurdity in recent weeks. First, House oversight committee chairman Henry Waxman accused State's inspector-gener