Mercy for Libby?

The Washington Post's Richard Cohen lays out the principled case for going easy on Lewis Libby, while avoiding most (though not all) of the partisan fact-bending emanating from that camp.

He starts out in unpromising fashion, railing about Patrick Fitzgerald making "a mountain out of a molehill" at "the urging of the liberal press." He also tiptoes up to the line of claiming positively that there was no underlying crime.

But he does not cross it. And he quickly admits that lying to a grand jury is not a trivial thing. He then proceeds to skewer the various enablers and cheerleaders in the case, which arguably did more damage to the media than the administration.

His concluding lines:

The rest of us ought to consider what Fitzgerald has wrought and whether we are better off for his efforts. I have come to hate the war and I cannot approve of lying under oath -- not by Scooter, not by Bill Clinton, not by anybody. But the underlying crime is absent, the sentence is excessive and the investigation should not have been conducted in the first place. This is a mess. Should Libby be pardoned? Maybe. Should his sentence be commuted? Definitely.

I disagree that the investigation shouldn't have been conducted. And arguably, Libby's lies are why this didn't turn out to be a bigger deal than it was. But I'm sympathetic to the argument that 30 months is an excessive sentence for an otherwise straight arrow convicted of an essentially political crime. Still, the man did lie, and some punishment is deserved. Pardon? No. Commute immediately? No. Let him serve half the sentence, commuting it as Bush is leaving office. That would seem to serve the needs of both justice and mercy.

Update: Cohen participated in an online discussion of his column in which he manages to muddy his point a bit. A particularly on-point exchange:

QUESTION: ... If somebody consciously and intentionally lies to a Federal prosecutor and a grand jury, isn't it appropriate for them to go to jail? Even if the prosecutor has no business having asked the question in the first place? Tell the truth or take the Fifth -- either is fine -- but intentional lying simply isn't acceptable in any witness, let alone a high-ranking government official.

Do you disagree with this basic observation? If so, please explain. If not, how can you still argue that Scooter shouldn't go to jail? I suppose you can simply disagree with the premise that Libby consciously and intentionally lied, but the jury made that determination, and that's what juries are for...

COHEN: I don't quarrel with the jury. In fact, let me just say that my own reading of the trial was that he was guilty. I don't believe that he forgot. But I do believe that while it is impermissible for anyone to lie to a grand jury -- I'm not quarreling with that -- I'm just saying that when you get called before a grand jury and you are a target, there ought to be a crime involved.... If he lied to a grand jury it wasn't because he made money illegally or took bribes or some other crime, it was because he was covering up for embarrassment or because he mistakenly thought he had committed a crime. So fine, convict him. But 30 months is excessive.

So he admits Libby lied to cover up something, but he thinks the sentence should be commuted anyway. That's really odd logic.

Libby, politics, midtopia

Agencies ignore laws Bush challenged

From the Boston Globe:

Federal officials have disobeyed at least six new laws that President Bush challenged in his signing statements, a government study disclosed yesterday. The report provides the first evidence that the government may have acted on claims by Bush that he can set aside laws under his executive powers.

In a report to Congress, the non partisan Government Accountability Office studied a small sample of the bill provisions that Bush has signed into law but also challenged with signing statements. The GAO found that agencies disobeyed six such laws, while enforcing 10 others as written even though Bush had challenged them.

The good news, I guess, is that they're only disobeying a third of the laws in the sample. The bad news is that Bush has issued more than 1,100 signing statements. If the ratio held up, that would be about 400 ignored laws. And the sample didn't include any of the really controversial measures that Bush has objected to.

On the other hand, there is this caveat:

The GAO report's authors made clear that it was beyond the scope of their study to determine whether the federal agencies' failure to enforce laws as written is due to Bush's signing statements, or a mere coincidence. They did not interview individual officials to learn whether the signing statements played a role in their actions.

That said, they cite one example (which certainly sounds like Congressional micromanaging, having to do with the placement of Border Patrol sites in the Tucson area) in which the signing statement said the law was merely "advisory" and the agency in question told the GAO they considered the law "advisory." That clearly suggests that the agency was relying on the signing statement.

And there's this:

Of the other five laws that the study found were disobeyed, two provisions required agencies to get permission from a congressional committee before taking certain actions. In both cases, the agencies notified the committee but acted without their permission -- just as Bush's signing statements instructed them.

Again, that seems like a fairly clear causal link.

And finally, there's just out-and-out ignoring things:

The other three provisions involved the executive branch giving information to congressional oversight committees, including plans for emergency housing following a disaster; budget documents related to certain military operations in Iraq and Afghanistan; and a proposal to fix a problem related to funding for military medical services. In all three cases, the administration did not obey the laws as written.

Given the relatively minor nature of the provisions in question, it's best to temper the outrage a bit. In an organization as huge and sprawling as the federal government, a certain amount of stuff will simply fall through the cracks. It wouldn't particularly surprise me if a third of such obscure items simply got lost in the shuffle.

Still, the concordance between the agencies' actions and the language of Bush's signing statements suggests that there is indeed a link. And if so, it needs to be examined. There can be reasonable disagreements over whether a given law exceeds Congressional authority. But the proper response to that is to challenge the law's constitutionality, not simply ignore the laws you don't like.

signing statements, Bush, politics, midtopia

The RNC e-mail memory hole

The Congressional Committee investigating the White House's use of RNC e-mail addresses has issued an interim report that mostly confirms what was already known -- but does so with some pretty harsh detail. The highlights:

1. The White House originally said only a "handful of officials" had RNC accounts. The actual number was 88.

2. The accounts were used heavily, including for official government business -- in violation of the administration's own directives for complying with the Presidential Records Act.

3. A huge share of the e-mails have been destroyed. There are no surviving records for 51 of the 88 users, and for many of the rest there are no preserved messages from before Fall 2006.

4. Then-White House Counsel Alberto Gonzales knew about the use of the RNC accounts but took no steps to ensure the e-mails were preserved in accordance with the Presidential Records Act.

The committee next plans to retrieve e-mail records from federal agencies to see if they contain any of the missing e-mails; grill Gonzales about what he knew and what he did about it; and pursue a parallel investigation into the use of Bush-Cheney 2004 campaign e-mail accounts by White House officials.

Whether through incompetence or design, the White House appears to have massively violated the records act, destroying a treasure trove of internal communications that should have been preserved and made available to historians. Whether it's something more sinister than that remains to be seen, and may never be known one way or the other. But the committee's plan of action seems reasonable: recover the records if possible and see if other records have been lost through the similar arrangement with the Bush campaign. And grill Alberto Gonzales about yet another massive failure on his watch.

The only caveat is the same one I made a couple of months ago: This should not be allowed to devolve into a fishing expedition. Determining the extent, scope and reasons behind the problem (as well as repairing the damage as much as possible) is reasonable; going on a random tromp through Republican strategic communications is not.

RNC, Gonzales, politics, midtopia

Ruling due this week in $65 million pants case

The poster child of frivolous lawsuits went to trial last week, before a standing-room only crowd.

Meanwhile, besides ridicule, plaintiff Roy Pearson (pictured) may have to endure something a bit more concrete: the loss of his $100,000-a-year job as an administrative law judge.

The boss of Roy L. Pearson Jr., the administrative law judge whose $54 million pants lawsuit has turned the D.C. legal system into a punch line on late-night talk shows, has recommended that the city deny Pearson another term on the bench, D.C. government sources said Thursday.

In a letter to the three-person commission that will decide whether Pearson gets reappointed, District of Columbia Chief Administrative Judge Tyrone T. Butler said Pearson does not deserve a 10-year term to the post, which pays more than $100,000 a year.

It also turns out this isn't the first time Pearson has abused the court system.

In 2005, in his divorce suit, Virginia courts ordered him to pay his ex-wife, also a lawyer, $12,000 for “creating unnecessary litigation” and threatening her and her attorney with disbarment.

Perhaps the judge's ruling will include mandatory mental-health counseling for Pearson.

Pearson, politics, midtopia

The death of "enemy combatant" status?

This happened on Monday while I was on vacation, but it was important enough I want to mention it: a three-judge panel ruling that a legal resident of the United States is entitled to habeas corpus protections and cannot simply be detained without charge on the president's say-so.

A federal appeals court ruled yesterday that President Bush cannot indefinitely imprison a U.S. resident on suspicion alone, ordering the government either to charge Qatari national Ali Saleh Kahlah al-Marri with his alleged terrorist crimes in a civilian court or release him.

The opinion is a blow to the Bush administration's assertion that the president has exceptionally broad powers to combat terrorism, including the authority to detain without charges foreign citizens living legally in the United States....

"The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the panel found.

You'd think that would be obvious, wouldn't you? Especially when you consider the circumstances of al-Marri's case: he was indicted, and then the day before his trial was to start -- and when it was clear that defense lawyers would challenge the admission of evidence obtained under torture -- the government dropped the charges, designated him an "enemy combatant", and moved him to a Navy brig. It was a transparent effort to avoid having to subject the basis of his detention to legal scrutiny.

I'm not defending al-Maari, by the way, or arguing that he is innocent; only that he deserves due process just like any other suspect.

The dissenting judge, a Bush appointee, makes the same mistake as all people who advocate indefinite detention for suspected terrorists:

"Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al Qaeda to perpetrate terrorist acts against the United States," Hudson wrote. "There is little doubt," the judge maintained, that al-Marri was in the country to aid in hostile attacks on the United States.

If there is "little doubt", then put him on trial, convict him and throw away the key. But simply jailing him without a trial is a legal and constitutional travesty.

The opinion is being appealed to the full court, one of the most conservative in the country. Meanwhile, al-Marri remains uncharged and in prison. But the story makes clear the inglorious and failed history of the "enemy combatant" designation. Of the three people it has been used on, one was released rather than given a court trial, one was charged with crimes completely unrelated to the claims that prompted the designation, and the third is al-Marri.

The full text of the ruling is here (pdf). I'll end with some choice quotes and comments.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely....

Exactly. Further, the government has repeatedly acted in bad faith in the case:

Furthermore, the Government’s treatment of al-Marri suggests that, despite its litigation posture, it does not actually believe that the Combatant Status Review Tribunal (CSRT) process ... applies to al-Marri. In the four years since the President ordered al-Marri detained as an enemy combatant, the Government has completed CSRTs for each of the more than five hundred detainees held at Guantanamo Bay. Yet it was not until November 13, 2006, the very day the Government filed its motion to dismiss the case at hand, that the Government even suggested that al-Marri might be given a CSRT. At that time the Government proffered a memorandum from Deputy Secretary of Defense Gordon England directing that al-Marri be provided a CSRT “upon dismissal” of this case. This memorandum is too little too late....

The Government’s argument that the phrase “awaiting [a CSRT] determination” covers persons confined within the United States yields a strange result. It would mean that Congress assured that Guantanamo Bay detainees were provided with an administrative factfinding process (the CSRT) followed by judicial review in the D.C. Circuit when eliminating habeas jurisdiction over their cases -- but that Congress provided neither any substitute administrative procedure nor any form of judicial review when eliminating the habeas rights of those captured and detained within the United States. The Government offers nothing to indicate that Congress embarked on this strange course, and the legislative history of the MCA renders that theory untenable.

Perhaps because the Government knows that Congress did not intend the CSRT process to apply to persons like al-Marri, the England memorandum neither convenes nor even schedules a CSRT for al-Marri. Indeed, in its motion to dismiss, the Government acknowledges that the England memorandum only indicates “how the government plans to handle al-Marri in the event the courts agree that the MCA divested the courts of jurisdiction.” Thus, the England memorandum makes al-Marri’s CSRT at best conditional -- triggered only “in the event” that we dismiss this litigation. In other words, the memorandum says only that al-Marri might receive a CSRT if this court dismisses his petition because he is awaiting a CSRT, but al-Marri will be awaiting a CSRT only if we dismiss his petition.

This is the sort of tortured and cynical legal posturing that Alberto Gonzales became famous for.

The core assumption underlying the Government’s position, notwithstanding Hamdi, Padilla, Quirin, Milligan, and Hamdan, seems to be that persons lawfully within this country, entitled to the protections of our Constitution, lose their civilian status and become “enemy combatants” if they have allegedly engaged in criminal conduct on behalf of an organization seeking to harm the United States. Of course, a person who commits a crime should be punished, but when a civilian protected by the Due Process Clause commits a crime he is subject to charge, trial, and punishment in a civilian court, not to seizure and confinement by military authorities.

We recognize the understandable instincts of those who wish to treat domestic terrorists as “combatants” in a “global war on terror.” Allegations of criminal activity in association with a terrorist organization, however, do not permit the Government to transform a civilian into an enemy combatant subject to indefinite
military detention....

Amen.

Finally, I urge you to read the section (starting on page 63) that deals with the president's claim of "inherent authority". After laying out the precedents, the ruling efficiently demolishes the claim starting on page 69. A taste:

In sum, al-Marri is not a subject of a country with which the United States is at war, and he did not illegally enter the United States nor is he alleged to have committed any other immigration violation.... The President’s constitutional powers do not allow him to order the military to seize and detain indefinitely al-Marri without criminal process any more than they permit the President to order the military to seize and detain, without criminal process, other terrorists within the United States, like the Unabomber or the perpetrators of the Oklahoma City bombing.... we can only conclude that ... the President claims power that far exceeds that granted to him by the Constitution.

The dissent by Judge Hudson begins on page 78. It relies heavily on the Rapp Declaration (pdf) to justify al-Maari's enemy combatant status. He makes much of the fact that Rapp remains unrebutted -- even though the basis of al-Maari's appeal is that the onus of proof is on the government to justify the detention in the first place. In that context, the Rapp declaration is simply the unexamined assertions of a government intelligence official.

The case doesn't spell the end of "enemy combatant" status -- even if upheld by the full appeals court. The opinion notes (starting on page 38) that there are cases where the enemy combatant status may be used -- essentially, when a defendant is shown to have been associated with the military arm of a foreign government and been present in a war zone where U.S. forces were engaged. Indeed, the court argues (though I disagree) that the designation of Jose Padilla as an enemy combatant was justified because of this. In my view, Padilla never took up arms against the United States on a battlefield; thus he wasn't a soldier, and thus not a "combatant." He deserves a vigorous criminal prosecution, but not military detention.

What it does do, however (assuming the ruling is upheld) is spell the end of the arbitrary use of that designation based solely on the president's say-so.

On a more general level, the ruling provides a clear and legal argument structure for why terrorism is largely a criminal problem, not a military one. At base, it says that someone associated with a terrorist organization should be treated as a criminal, not a combatant -- with all the rights and limitations that entails. Indeed, it argues that such a person cannot be subjected to military justice. I've long argued the same, and I'm confident that eventually jurisprudence will reach the same conclusion.

And finally, Bush appears to be doing for presidential power what he has already done for neo-conservatism -- that is, set back by 20 years a cause he claims to champion. In the case of neo-conservatism, his execution of the Iraq invasion and occupation has discredited the entire idea to the point that "neo-con" is an insult. In the case of presidential power, his constant and aggressive pushing of the envelope has triggered a series of Congressional actions and court rulings that have put firmer limits on executive power than existed before. I'm all for clear lines, but I would be very wary about having Bush on my side in any sort of political or legal argument. The man is poison, be it through incompetence or sheer hubris.

al-Maari, civil liberties, terrorism, politics, midtopia

Bush stonewalls, then blames Democrats

I've become a big fan of Dan Froomkin.

President Bush last month complained that the congressional probes into the firings of nine U.S. attorneys were being "drug out . . . for political reasons." White House spokesman Tony Snow yesterday dismissed the issuance of congressional subpoenas to two former White House aides as an attempt to "create some media drama."

But if anyone is to blame for the dragging out of the probes and the drama, it's Bush himself. He and his aides have consistently refused to tell the American people why those federal prosecutors were fired....

If Bush wants this media drama to go away -- and if there is, in fact, an innocent explanation for the firings -- then it's in his best interest to come clean, in public, and sooner rather than later. Why wait for a congressional hearing?

The stonewalling looks like it will have another effect, too -- provoking a constitutional confrontation between the White House and Congress over Congress' ability to subpoena senior aides. This isn't a purely partisan faceoff -- Republican Arlen Specter, for instance, supports yesterday's subpoenas of Harriet Miers and Sara Taylor. If neither side backs down, the validity of those subpoenas could be decided in court.

Meanwhile, Slate is retiring its Gonzometer, conceding Alberto Gonzales' remarkable staying power despite revelations such as these:

Not much good is happening inside the Justice Department, either. Monday's Washington Post revealed that, thanks to Gonzales and Co., a shocking number of the nation's newest immigration judges are a bunch of GOP hacks. Yesterday, Bradley Schlozman, the former U.S. attorney for Kansas City who brought voter-fraud indictments against a liberal group just four days before the November 2006 election, in violation of department policy, wrote to Sen. Pat Leahy, D-Vt., to "clarify" that when he testified 10 times last week that he had been "directed" to bring such indictments by the Election Crimes Branch of the DoJ's Public Integrity Section, he really meant that in fact he had never been directed to do so at all.

The immigration judge story is yet another example of the extent to which the Bush administration has politicized the functioning of the executive branch, in defiance of both tradition and (in some cases) the law.

The Schlozman embarrassment is also just another in a long line of instances where Justice officials (led by Gonzales) said one thing under oath, only to say the opposite later on.

And that doesn't even count the internal Justice Department probe into whether Gonzales tried to influence Monica Goodling's testimony about the prosecutor firings.

The prize for Gonzales' and Bush's steadfastness: continued embarassing revelations, destruction of Bush's political relevance and a dysfunctional Justice Department. Yay team!!

Gonzales, politics, midtopia

Robert Bork, hypocrite

This is priceless.

Robert Bork ... is seeking $1,000,000 in compensatory damages, plus punitive damages, after he slipped and fell at the Yale Club of New York City. Judge Bork was scheduled to give a speech at the club, but he fell when mounting the dais, and injured his head and left leg. He alleges that the Yale Club is liable for the $1m plus punitive damages because they "wantonly, willfully, and recklessly" failed to provide staging which he could climb safely.

Judge Bork has been a leading advocate of restricting plaintiffs' ability to recover through tort law.

I'm just speechless.

The Wall Street Journal has the lawsuit documents (pdf) and its own commentary.

tort reform, Bork, politics, midtopia

Senate bill targets habeas corpus

Excellent news out of the Senate today.

A bill that would allow terrorism suspects access to federal courts to challenge their imprisonment at Guantanamo Bay, Cuba, was approved by the Senate Judiciary Committee on Thursday.

The committee, on an 11-8 vote, advanced a bill that would allow prisoners to protest their detentions through a writ of habeas corpus, considered by many to be the cornerstone of the U.S. judicial system.

Nice as this is, it's sad that in 2007 I find myself writing about a decision to restore a fundamental principle of American jurisprudence.

Ten years ago, if you had asked me whether the United States government would ever imprison people -- citizen or not -- indefinitely without charge and with no right to challenge their detention, I would have laughed out loud. That went against so many laws, Constitutional principles, simple fairness and basic American values that it would have seemed inconceivable.

Today I marvel at the naive hubris of my younger self -- and the unprincipled cowardice that led our elected representatives to so readily abandon such a basic precept of justice.

I look forward to the debate on this. Democrats will try to attach it to the defense spending bill, which if they succeed should make the measure veto proof: Bush is unlikely to veto the defense authorization simply to derail the habeas corpus provision. The biggest question is whether Senate Republicans have the desire and the unity to tie it up.

Let me point out two passages from the link, one illustrative and one simply amusing.

Administration officials and most Republicans say they do not think dangerous terror suspects should have access to U.S. federal courts or other rights guaranteed to Americans under the Constitution.

The fatal flaw in this reasoning is, of course, that the defendants in question are suspects, not proven bad guys. The whole point of habeas corpus is to make sure we separate the guilty from the wrongly held. Bush and "most Republicans" apparently feel they can skip that step. We can't. Any argument predicated on "they're terrorists!" fails, because that case has not been proven.

Second, there was this:

"The great history of our nation is built on having judicial review, on having openness, and we should not out of fear or indifference or whatever turn our back on that great history," the committee's Democratic chairman, Patrick Leahy, said.

"Or whatever"? Way to kill what started out as a pretty good flight of soaring rhetoric, Patrick. Something tells me that 50 years from now, law students won't be quoting that particular utterance.

The bill is expected to hit the Senate floor later this month.

habeas corpus, terrorism, civil liberties, politics, midtopia

Judge tosses detainee case

A military judge threw out charges against a Guantanamo detainee today, on a major technicality that could potentially delay or derail dozens of cases.

Canadian detainee Omar Khadr, who was 15 when he was captured after a deadly firefight in Afghanistan and who is now 20, will remain at the remote U.S. military base along with some 380 other men suspected of links to al-Qaida and the Taliban.

The judge, Army Col. Peter Brownback, said he had no choice but to throw out the Khadr case because he had been classified as an "enemy combatant" by a military panel years earlier — and not as an "alien unlawful enemy combatant."

This may seem like a minor technicality, but it's not. "Alien" means U.S. citizens cannot be subjected to the commissions. And "unlawful" means neither can someone who merely took up arms against the United States. Unlike "enemy combatant", which just means somebody who shoots at American soldiers.

So now the United States will have to re-examine all the existing detainee cases and certify that the defendants are unlawful enemy combatants. That could take months.

And here's an irony for you: The military says it will appeal the ruling. Trouble is, the court that is supposed to hear such appeals -- something called the "Court of Military Commissions Review" -- doesn't exist. Constituting it could also take months.

The drawbacks of trying to build a court system from scratch aside, this case has even more interesting things going for it. In fact, I meant to write about this several days ago but never found the time.

Thus far, only three detainees have been charged under the commission system: Accused bin Laden driver and bodyguard Salim Ahmed Hamdan; Australian David Hicks; and Omar Khadr.

These three are the ones we, in our infinite wisdom, decided to put on trial first. The two most notable things they have in common are being fairly small potatoes and not really fitting the popular description of "terrorist". All three, in fact, were captured on the battlefield in Afghanistan, all but Hamdan nothing more than footsoldiers for Al-Qaeda's conventional forces and Hamdan seeming to be little more than that.

But Khadr is unique in one respect: he was 15 when he was captured.

Someone please tell me why, in our infinite wisdom, we decided that the third person charged should be a child soldier? Can anyone think of anything more politically explosive than that? International law (despite a definitional gray area as to what constitutes a child) generally considers child soldiers to be victims, not criminals; it focuses its opprobation on the commanders who recruit, train and lead children, not the children themselves.

The kids themselves are handled more carefully by the international community, through programs designed to ease them out of killing and back into "normal" life. They aren't thrown in prison to rot or tried for crimes. Kids that young simply aren't considered fully responsible for their actions.

I'm not a fan of the tribunal system, but I cannot even begin to plumb the stupidity of throwing such red meat to the tribunal's critics. "Hi! We're the United States! Not only do we detain people for years without charge; when we finally do charge them, we do it in a military court with limited rights for the accused, and we put kids on trial!"

Lordy, we're dumb.

civil liberties, terrorism, Omar Khadr, Gitmo, politics, midtopia

Heffelfinger blows a gasket

You knew it was coming. Minnesota's former U.S. attorney Tom Heffelfinger -- who resigned while, unbeknownst to him, he was on a list of those that the administration was considering firing -- fired back Thursday after weeks of semisilence.

Heffelfinger, who says he had no idea anyone in Washington was thinking of firing him when he resigned his position as U.S. attorney in February 2006, has gradually become more open about his outrage over the controversy around the firing of U.S. attorneys as his name has been more publicly linked to it.

In remarks to the Bar Association in Minneapolis, he reached a new peak, saying among other things that "something is fundamentally broken within the Department of Justice."

And he read aloud from an e-mail, written by Kyle Sampson, then-chief of staff to Attorney General Alberto Gonzales, to other Justice Department officials under pressure to explain how particular U.S. attorneys had become candidates for dismissal.

Sampson suggested the attorneys on the list -- including Heffelfinger -- "had no federal prosecution experience when they took the job."

This elicited a burst of shocked laughter from the audience, many of whom knew Heffelfinger had been a Hennepin County prosecutor, a federal prosecutor, and had served a previous term as U.S. attorney for Minnesota under the first President Bush before the second President Bush appointed him in 2001.

It's not encouraging that the people in charge of firing decisions were so unaware of his record. It's like it was Amateur Hour in the Justice Department executive offices.

Heffelfinger, Goodling, Gonzales, politics, midtopia

Goodling fallout

Following up on my original post, a couple of items from Monica Goodling's testimony on Wednesday appear destined to cause Alberto Gonzales further trouble.

First, Goodling said that Gonzales talked to her about the prosecutor case.

"It made me a little uncomfortable," Monica Goodling, Gonzales' former White House liaison, said of her conversation with the attorney general just before she took a leave of absence in March. "I just did not know if it was appropriate for us to both be discussing our recollections of what had happened."

Trouble is, Gonzales told Congress that he didn't.

Gonzales told the Senate Judiciary Committee last month that he didn't know the answers to some questions about the firings because he was steering clear of aides — such as Goodling — who were likely to be questioned.

"I haven't talked to witnesses because of the fact that I haven't wanted to interfere with this investigation and department investigations," Gonzales told the panel.

Hmmm....

Perhaps we should give Gonzales the benefit of the doubt on this one and accept the Justice Department explanation: "The attorney general has never attempted to influence or shape the testimony or public statements of any witness in this matter, including Ms. Goodling," said spokesman Brian Roehrkasse. "The statements made by the attorney general during this meeting were intended only to comfort her in a very difficult period of her life."

All well and good, although that's sort of an odd way to comfort someone. And perhaps he shouldn't lie to Congress about it afterward. And then there's the troubling little fact that he has done this repeatedly: Made a claim, been contradicted by the facts, then backpedaled. Once might be forgiven; but three or four times?

Secondly, the Justice Department is broadening its inquiry into Goodling's hiring practices based on her testimony.

The expanded inquiry, conducted by the department's inspector general and its Office of Professional Responsibility, comes after testimony Wednesday by former Gonzales aide Monica M. Goodling.

She told a House committee that she had considered party affiliation in screening applicants to become immigration judges.

Judges on top of career prosecutors. Lovely. But why is this a big deal? We already knew that she admitted "crossing the line."

The difference here is that Goodling says she was authorized to do so in this case.

She cited a conversation she had with another Gonzales aide, D. Kyle Sampson, who said the department's Office of Legal Counsel had declared the practice to be lawful.

The Justice Department denies it.

Justice Department officials said no such opinion existed.

They also denied Goodling's assertion that the hiring of immigration judges had been frozen after the department's civil division raised concerns about using a political litmus test.

We now get to play the "somebody's lying" game. Goodling claims she properly briefed James McNulty before his misleading Congressional testimony; he heatedly denies it.

Now she claims she had authorization to use political criteria in hiring; Justice denies it. In that case they could both be telling the truth, but only if Sampson was either lying or grossly mistaken.

Either way, expect more embarassing headlines for Gonzales.

Goodling, Gonzales, politics, midtopia

Koran wins in court

In a case that has some relevance to the resoundingly ignorant flap over whether Keith Ellison could swear on a Koran, a North Carolina judge has ruled that nonChristians can use their own holy book when called as witnesses in the courtroom.

The decision represents a victory for the American Civil Liberties Union of North Carolina, which sued the state after two Guilford County judges rejected an offer from an Islamic center to provide county courthouses with free copies.

"The highest aim of every legal contest is the search for truth," Wake Superior Court Judge Paul Ridgeway wrote in an 18-page opinion. "To require pious and faithful practitioners of religions other than Christianity to swear oaths in a form other than the form most meaningful to them would thwart the search for the truth.

"It would elevate form over substance."

The legality should have been beyond question; the judge's opinion simply notes the futility of swearing on a book you don't believe in.

Maybe now Prager et al will cease their hyperventilating about this and concede their point was flawed. But I'm not holding my breath.

religion, politics, midtopia

Goodling testifies

Monica Goodling is testifying before the Senate about the prosecutor firings, and so far the only really interesting stuff involves herself, Kyle Sampson and former deputy AG Paul McNulty.

The Justice Department's former White House liaison ... blamed Deputy Attorney General Paul McNulty for misleading Congress about the dismissals.

McNulty's explanation, on Feb. 6, "was incomplete or inaccurate in a number of respects," Monica Goodling told a packed House Judiciary Committee inquiry into the firings.

She added: "I believe the deputy was not fully candid."

She also said the list of those to be fired was compiled by Kyle Sampson. It's not clear if that's a contradiction of Alberto Gonzales' recent statement that McNulty was the driving force behind the firings (notwithstanding his even earlier statement that McNulty wasn't really involved). It doesn't have to be: Sampson is generally acknowledged as having been the keeper of the list, even if he wasn't making all the decisions about who should be on it.

As to herself, she denied playing a major role in the firings but admitted she broke the law when she used politics as a criteria for hiring career prosecutors.

She said she never spoke to former White House counsel Harriet Miers or Karl Rove, President Bush's top political adviser, about the firings. But she admitted to have considered applicants for jobs as career prosecutors based on their political loyalties — a violation of federal law.

"I may have gone too far, and I may have taken inappropriate political considerations into account on some occasions," Goodling said. "And I regret those mistakes."

Rep. Bobby Scott, D-Va., hammered Goodling on her decisions to hire prosecutors who favored Republicans.

"Do you believe they were illegal or legal?" Scott asked.

"I don't believe I intended to commit a crime," Goodling, a lawyer, answered.

"Did you break the law? Is it against the law to take those considerations into account?" Scott said.

"I believe I crossed the line, but I didn't mean to," she responded.

More as it develops.

Meanwhile, some prosecutors have detailed the political interference Goodling introduced into the hiring of career prosecutors.

When Jeffrey A. Taylor, interim U.S. attorney for the District of Columbia, wanted to hire a new career prosecutor last fall, he had to run the idea past Monica M. Goodling, then a 33-year-old aide to Attorney General Alberto R. Gonzales.

The candidate was Seth Adam Meinero, a Howard University law school graduate who had worked on civil rights cases at the Environmental Protection Agency and had served as a special assistant prosecutor in Taylor's office.

Goodling stalled the hiring, saying that Meinero was too "liberal" for the nonpolitical position, said according to two sources familiar with the dispute.

The article also appears to dispute her contention that she wasn't heavily involved in the prosecutor brouhaha.

First, she was Justice's White House liaison. It stretches credibility to suggest that the firings would not have been coordinated with the White House through her.

Second, it notes that she played a central role in the appointment of Rove protege Tim Griffin, met with legislators who complained about David Iglesias and blocked the dismissal of a North Carolina prosecutor.

And then there was this:

Before she and Sampson resigned, Goodling wrote a series of memos summing up the longtime U.S. attorneys she helped to fire. She said that Iglesias was "in over his head," that Carol C. Lam of San Diego showed "a failure to perform" and that Arizona's Paul K. Charlton was guilty of "repeated instances of insubordination."

Yet Goodling's final list, assembled as "talking points" for Congress and the media, also noted that nearly every fired prosecutor had received stellar reviews from Justice Department evaluators.

Now perhaps that was part of her job as Justice Department counsel. But it sure doesn't sound like the actions of someone who wasn't up to her eyeballs in the process.

Update: From the LA Times, yet another example of how Goodling's fingerprints are all over the U.S. attorneys -- this time bypassing a state panel in the search for a new prosecutor in Los Angeles.

Goodling, politics, midtopia

Specter: Gonzales may resign

It may just be wishful thinking, but that's what Sen. Arlen Specter said yesterday on "Face the Nation", in response to a question about this week's planned vote of no-confidence in the attorney general.

Mr. Specter noted that no-confidence votes were rare, adding, “I think that if and when he sees that coming, that he would prefer to avoid that kind of an historical black mark.” Mr. Specter, of Pennsylvania, would not say how he would vote on a resolution.

Most Senate Democrats and five Republicans have called on the attorney general to resign, but President Bush, who considers Mr. Gonzales one of his most trusted advisers, has steadily supported him.

It seems obvious that such a vote would easily pass, assuming all that was needed was a simple majority. Most Democrats and at least five Republicans would vote yes, and there could be a sizable number of other GOPers that would support it, too.

The White House has denigrated the move as a political stunt and today Bush reiterated his support for Fredo. But the reality is that Gonzales' ability to lead his department would be seriously impaired by such a public rebuke, especially if the vote is lopsided. At that point you have to start wondering why Bush places personal loyalty to incompetent lapdogs above the good of the people and the efficient administration of justice.

Between the no-confidence vote and the upcoming testimony of Monica Goodling, it promises to be yet another bad week for the AG.

Gonzales, politics, midtopia

Another Republican calls for Gonzales to quit

Ever able to read the shifting political winds, Minnesota's own Norm Coleman has joined the list of Republicans calling for Alberto Gonzales' ouster.

The link identifies the six GOP senators who now want him to quit, as well as six others who have said he should probably quit while stopping just short of calling for his resignation.

The last straw for Norm: revelations that the Justice Department had a list of at least 26 prosecutors it was considering firing -- not the relative handful it has admitted up until now -- and that former Minnesota U.S. Attorney Tom Heffelfinger was on it.

The list isn't a huge deal by itself. It makes sense that the department would consider a larger group of candidates for replacement before settling on a small number to actually can. But Gonzales' testimony last week that the firing effort was limited to the 8 (oops, 9) identified so far was either misleading, a lie, very poorly phrased or an indication that he was totally unaware of the scope of the discussions occurring under his authority.

There's also the question of how a prosecutor ended up on the list. I look forward to analyses matching the names on the list with their prosecutorial history to see if a trend emerges.

Meanwhile, the Senate may hold a nonbinding no-confidence vote on Gonzales next week -- a move that could attract bipartisan support. The White House denounced it as a PR stunt, but it's far more than that: it will be a public display of how little support Gonzales has. It will also force many senators that have been silent up until now to declare a position. I don't think many of them will come down on Gonzales' side, and the White House knows it.

There's also this interesting exchange about the dramatic confrontation in John Ashcroft's hospital room:

Q Let me just follow up on that. Yesterday, Kelly asked the President straight up about the report of when Gonzales was counsel and sending Andy Card down to the hospital. The President refused to answer, saying it was a national security issue. No part of her question had anything to do with national security issues.

MR. FRATTO: No, there are two points there. One is the discussion of classified programs; and the second is deliberative discussions among and between advisors to the President -- and neither of which is an open window for us to look into and talk about.

Now, I think the President -- I think that's the point that the President was making. It puts us in a difficult communications position, because we understand there are questions out there and it's difficult for us from the podium. But that's not something that we can get into, and we're not going to get into.

Q He can unilaterally declassify, so --

MR. FRATTO: He could, but I think he'd prefer to put the safety and security of Americans ahead of that interest.

Q How does it jeopardize the safety and security of Americans, to say whether --

MR. FRATTO: Any time we talk about --

Q -- to say whether he ordered those guys to go to the hotel room?

MR. FRATTO: The hospital room --

Q I'm sorry, hospital room.

MR. FRATTO: -- according to the reports.

Q -- former acting Attorney General.

MR. FRATTO: Any time we talk about classified programs you're opening the door, and we need to be very careful in how we talk about it.

A nice example of invoking "national security", "executive privilege" and (most wretchedly) "the safety and security of the American people" to avoid answering a question that has nothing to do with any of those.

Gonzales, politics, midtopia

More Republicans call for Gonzales' head

Two more Republican Senators want Alberto Gonzales gone: Chuck Hagel and Pat Roberts.

"The American people deserve an attorney general, the chief law enforcement officer of our country, whose honesty and capability are beyond question," Hagel said in a statement. "Attorney General Gonzales can no longer meet this standard. He has failed this country. He has lost the moral authority to lead."

"When you have to spend more time up here on Capitol Hill instead of running the Justice Department, maybe you ought to think about [resigning]," Roberts told The Associated Press.

Democrats, meanwhile, continued the full-court press. Four Democratic senators sent Gonzales a letter asking him to square Jim Comey's description of a dramatic confrontation over the NSA wiretapping program -- complete with threats to resign -- with Gonzales' February 2006 testimony that there had "not been any serious disagreement" over it.

Rereading the testimony (Part I and Part II), one sees that Gonzales was being very careful in his language:

SCHUMER: There was dissent; is that right?

GONZALES: Of course, Senator. As I indicated, this program implicates some very difficult issues. The war on terror has generated several issues that are very, very complicated.

SCHUMER: Understood.

GONZALES: Lawyers disagree.

SCHUMER: I concede all those points. Let me ask you about some specific reports.

It's been reported by multiple news outlets that the former number two man in the Justice Department, the premier terrorism prosecutor, Jim Comey, expressed grave reservations about the NSA program and at least once refused to give it his blessing. Is that true?

GONZALES: Senator, here's the response that I feel that I can give with respect to recent speculation or stories about disagreements.

There has not been any serious disagreement -- and I think this is accurate -- there has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations which I cannot get into.

I will also say...

SCHUMER: But there was some -- I'm sorry to cut you off -- but there was some dissent within the administration. And Jim Comey did express, at some point -- that's all I asked you -- some reservations.

GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we're talking about today. They dealt with operational capabilities that we're not talking about today.

As you can see, Gonzales was very careful to only talk about the then-current iteration of the NSA program -- without mentioning that the program existed in that form only because of the vehement objections described by Comey. So did he lie? No. Did he mislead? Yes. Deliberately? Unclear. He was obviously trying to suggest that the reports about Comey's actions were somehow inaccurate, without coming right out and saying it (which would have been a lie). And it's also clear that he didn't want to openly and candidly discuss the process that led to the NSA program then in operation. But dodging questions isn't the same thing as lying. And some of the blame for the lack of clarity also lies with Schumer, who didn't try to nail Gonzales down on what he meant by "they dealt with operational capabilities that we're not talking about today."

As far as relevance to his continued tenure, however, I'm not sure this has any. Gonzales didn't actually lie, and the underlying history (was there disagreement?) isn't very important, so it's not a legal or moral issue. To the extent that Congress doesn't like having its questions dodged this could be a political issue, but Congress is already mad at him about much worse acts; this isn't going to move the needle much one way or the other in that regard.

Next up: Monica Goodling's immunized testimony a week from now, on May 23. I'm going to try to listen to most of it.

politics, midtopia

Gonzales roundup

Sheesh, I go away for a few days and everything goes bonkers.

Yesterday, Deputy Attorney General Paul McNulty -- one of the people involved in the U.S. attorney firings -- said he would resign.

He says he always intended to spend no more than two years in the post, and by the time a successor is found he will nearly have hit that milestone. But it seems pretty clear that the prosecutor brouhaha contributed to his decision.

Alberto Gonzales said a lot of nice things.

"Paul is an outstanding public servant and a fine attorney who has been valued here at the department, by me and so many others, as both a colleague and a friend," Gonzales said.

Let me be a little more precise. He said a lot of nice things yesterday. Today, Gonzales wasn't quite so complimentary.

Attorney General Alberto Gonzales said Tuesday he relied heavily on his deputy to oversee the firings of U.S. attorneys, appearing to distance himself from his departing second-in-command....

"At the end of the day, the recommendations reflected the views of the deputy attorney general. He signed off on the names," Gonzales told reporters after a speech about Justice Department steps to curb rising violent crime.

"The one person I would care about would be the views of the deputy attorney general, because the deputy attorney general is the direct supervisor of the United States attorneys," Gonzales said.

So after months of Congress asking a simple question -- who ordered the firings? -- Gonzales has finally provided an answer: McNulty.

Except that there's mounds of evidence that the actual driving forces were Kyle Sampson and Monica Goodling, and all McNulty did was sign the final list. Plus, if Gonzales was so interested in the opinion of the man who oversaw the prosecutors, why did he never consult Jim Comey?

As House Judiciary Committee Chairman John Conyers put it, "With this Justice Department, the buck always stops somewhere else, and the fall guy is always the last guy out of the door."

Now, that's hardly a failing that's limited to Justice, or Republicans, or the current administration. Lesser mortals always take bullets for top officials. But Gonzales appears prepared to sacrifice the entire top leadership of the department, if necessary -- and he is so not worth it.

Speaking of Jim Comey, he testified before the Senate Judiciary Committee today, and dropped this bombshell:

On the night of March 10, 2004, a high-ranking Justice Department official rushed to a Washington hospital to prevent two White House aides from taking advantage of the critically ill Attorney General, John Ashcroft, the official testified today.

One of those aides was Alberto R. Gonzales, who was then White House counsel and eventually succeeded Mr. Ashcroft as Attorney General.

“I was very upset,” said James B. Comey, who was deputy Attorney General at the time, in his testimony today before the Senate Judiciary Committee. “I was angry. I thought I had just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me.”

Besides being distasteful, what's the bombshell? This story has been told before.

The New York Times link above lays out the events of the night in gripping detail. But the Washington Post sums up their significance..

The White House three years ago reauthorized a controversial surveillance program, parts of which the Justice Department found to be illegal, overriding the objections of top department officials after failing to get a seriously ill attorney general John D. Ashcroft to sign off on it from his hospital bed, Ashcroft's former deputy told a Senate panel today.

So the White House wanted the Justice Department to say the eavesdropping program was legal. Justice refused. The White House went so far as to send Gonzales to pressure an ailing Ashcroft to sign off on it from his hospital bed, and when both he and Comey refused, the administration decided to reauthorize the program anyway. Only the threat of mass resignations at Justice averted that move.

Justice's approval was not required by law. But its refusal to say the program was legal offers powerful evidence that the program broke the law. Rather than accept the rule of law, the administration ignored the advice of its own lawyers and did what it wanted to do anyway.

The only high-ranking legal mind that decided the program was legal: Alberto Gonzales. The same Gonzales who pressured a sick man to sign a form. The same Gonzales who came up with the legal justification for torture. The same Gonzales who appears to have been almost absent as a manager at Justice, consumed as he was with being a full-time lapdog for Bush. The same Gonzales who lied to Congress, and when confronted with his contradictions retreated into "I don't know" mode about significant departmental events.

Resign already, Fredo.

McNulty, Comey, Gonzales, politics, midtopia

Prosecutors' boss was out of the loop

Today it's the House's turn to air embarassing revelations in the prosecutor firing scandal.

The Justice Department's former No. 2 official testified Thursday he was unaware of plans to fire underperforming U.S. attorneys and praised all but one of the eight whose dismissals are now being investigated by Congress.

Jim Comey, a Republican appointee who served as deputy attorney general from 2003 to 2005, said he had one 15-minute conversation during his tenure about prosecutors who were considered weak managers. Only one of the eight who were ultimately fired — Kevin Ryan, the former U.S. attorney in San Francisco — fit that description, Comey said.

There's a bit less here than meets the eye. In February 2005, Gonzales' team had just come on board and Comey would announce plans to leave the department two months later. Knowing that he would be leaving, it's not surprising that Gonzales and Sampson would exclude him from much of the planning -- and thus he wouldn't know much about it.

That said, completely ignoring Comey is just weird. Put yourself in Gonzales' shoes for a moment: You've just taken over the Justice Department, and one of the first things you want to do is evaluate prosecutors for possible replacement. Neither you nor your chief deputies have firsthand knowledge of the prosecutors' performance during the five years preceding your arrival. So how best to get a handle on their effectiveness?

You would, of course, examine their arrest and trial statistics, as well as seeking feedback from homestate politicians and other observers. But you'd also talk to the man who was the prosecutors' boss for the period in question, wouldn't you? Doesn't that seem like a logical move?

It does -- if your evaluation is grounded in their legal performance. But it's pretty much unnecessary if your criteria is something else -- like political reliability.

On the other hand, Comey said he never spoke with Karl Rove and had only limited contact with Harriet Miers, suggesting that -- prior to Gonzales' arrival, at least -- the White House had limited contacts within Justice.

All in all, Comey came across as a standup guy who wasn't interested in politicizing the department. He's also, by the way, the guy who as Acting Attorney General refused to certify certain aspects of the NSA eavesdropping program in 2004 because he considered them illegal. In retrospect it's too bad he didn't stick around at Justice. It sounds like he was one of the few adults in the building.

Comey, Gonzales, politics, midtopia

Leahy subpoenas Rove e-mails

Things are heating up in the "executive privilege" confrontation between Congress and the White House.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) issued a subpoena Wednesday for all e-mails from White House adviser Karl Rove that relate to the firings of eight U.S. attorneys.

The subpoena is actually aimed at the Justice Department, not Rove, so it only covers communications he would have had with Justice. It'll be interesting to see if that gets around privilege objections, since communications with other departments don't usually count as confidential advice to the president.

He gave the Justice Department until May 15 to comply.

Meanwhile, Gonzales is scheduled to go before the House Judiciary Committee on May 10 and get the same grilling he got from the Senate a couple of weeks ago. His appearance will come amid a Justice Department probe of Monica "I plead the Fifth" Goodling, this time examining whether she sought to place Republicans in career prosecutor spots -- a violation of both tradition and civil-service law.

Much as the White House may not savor the prospect of replacing Gonzales, can that experience really be worse that the endless drumbeat of bad news they're going to endure if they keep him?

Goodling, Gonzales, politics, midtopia

McDermott loses again

Rep. James McDermott lost another round in the legal battle over his leaking an illegally obtained tape of GOP leaders 10 years ago.

In a 5-4 opinion, the U.S. Circuit Court of Appeals for the District of Columbia ruled that McDermott, D-Seattle, should not have given reporters access to the taped call....

The ruling upholds a previous decision ordering McDermott to pay House Minority Leader John Boehner, R-Ohio, more than $700,000 for leaking the taped conversation. The figure includes $60,000 in damages and more than $600,000 in legal costs.

McDermott claims there are serious whistleblower and First Amendment issues at stake here, and I'm sympathetic to that -- as are 18 news organizations that filed briefs supporting him. We do not want to overly restrict the ability of people to expose government wrongdoing -- as the revelations of NSA eavesdropping, CIA prisons and FBI abuse of National Security Letters attest.

But whistleblower exceptions generally involve matters of great public interest. This leak, besides being based on an illegally obtained tape, involved little more than partisan advantage -- an effort to embarass Congressional Republicans and Newt Gingrich in particular. While they deserved to be embarassed -- talking about ethics in public while conniving in private is never pretty -- such petty score-settling isn't worthy of the same protection as a government worker exposing crimes and corruption.

In this case, it's hard to see how the public interest could trump the legalities of the matter.

So good for the court, and let's hope the Supreme Court declines to hear the case and brings this saga to an end. A $700,000 payout appears to be a fitting punishment for what in the end was a relatively minor offense -- as evidenced by the awarding of just $60,000 in actual damages. Political embarassment is only worth so much.

Hall of Shame has been updated.

politics, midtopia