Buck Naked Politics

Slate: Legal Fictions Foisted on the Public by the Bush Administration's Crack Team of Legal Scholars (a 2007 round-up)

By Teh Nutroots |  We've already read and enjoyed Juan Cole's top 10 myths for 2007.  Now in Slate, Dahlia Lithwick (Legal Fictions) gives us the Bush Administration's top 10 dumbest legal arguments.  It's a must-read for anyone who has lost count of the Bush Administration's many attempts to extend its reach into the everyday personal affairs of average American citizens....for our own good, of course. 

The Bush administration continues to limit our basic freedoms, conceal its own worst behavior, and insist that it does all this in order to make us more free. In that spirit, it seemed an opportune moment to commemorate the administration's worst legal justifications and arguments of the year.  (Slate)

Gonzales Uses College Speech Money for Legal Defense Fund, Students Object

by  D. Cupples |  Apparently, former Attorney General Alberto Gonzales has withstood major heckling when speaking at college campuses -- but still collects thousands of dollars for his appearances.  The big question: is he being paid with private money or money belonging to various states' taxpayers? The Washington Post's Mary Ann Akers reports:

Justice Dept. Avoids Hearing on Contractor Rape Case

by D. Cupples |  Yesterday, a House Judiciary subcommittee held a hearing about U.S. law enforcement in Iraq.  The hearing was prompted by reports that Jamie Leigh Jones, a former employee of contractor Halliburton/KBR had been vaginally and anally raped by multiple co-workers, held captive, and warned that she would lose her job if she left Iraq for medical treatment.

Republican Congressman Ted Poe (TX), whom Jones' father contacted while Jones was held captive, stated last week that the Justice Department and State Department have refused to brief him on the rape investigation.  The House subcommittee had invited a Justice Department representative to attend the hearing, but Justice refused to send one.  ABC News reports:

More Evidence of DoJ's Politically Motivated Decisions

by  D. Cupples |  It can't be stressed too much: the Justice Department is not supposed to set that prosecutorial dogs loose on us citizens -- or even muzzle the dogs -- based on political agendas. 

And yet, since Congress began investigating Justice Department politicization (after the unprecedented firing of 9 U.S. Attorneys), evidence has continually trickled out that political agendas played a part in our Justice Department's decision making. McClatchy's Washington Bureau reports:

Judge Stands up to Administration re: Torture Tapes

by D. Cupples  |  Our legislative and judicial branches of government are constitutional equals of the executive branch. President Bush seemed to forget that fact of history and law when prompting  underlings to tell Congress and a court to butt out while the Justice Department and CIA  investigate the CIA's possibly illegal destruction of torture tapes in 2005.  Can you see the potential conflict of interest here?

Apparently, Federal District Judge Henry H. Kennedy doesn't feel compelled to bow as the Bush Administration wields its self-granted power to order equals around. Yesterday, Judge Kennedy ordered a court hearing to examine whether the CIA violated a judicial order by destroying videotapes.  The Washington Post reports:

Mukasey's Bizarre Reason for Hiding Info from Congress

by D. Cupples |  Just last Saturday, the Justice Department announced that it will join the CIA inspector general's investigation of the CIA's 2005 destruction of torture tapes (possibly obstruction of justice).  This gave the public the impression that Attorney General Michael Mukasey might avoid his predecessor's apparent error of putting the Bush Administration's political agendas above the pursuit of justice.

Today, Mukasey severely weakened that newly created impression by telling bipartisan leaders of the   House and Senate Judiciary Committees that he would not, in fact, share information about the investigation.  His reason is bizarre.

Stories Coming About Selective Prosecution of Siegelman?

by  D. Cupples  | Congress's investigation into Justice Department politicization earlier this year is not just about the firing of U.S. Attorneys.  It's about the terrifying possibility that the Justice Department may have launched prosecutions to bring down political enemies.

One example is the prosecution of former Alabama Governor Don Siegelman.  He's now serving a seven-year prison term, based on a case that 44 former Attorney Generals -- Republicans and Democrats -- found highly questionable.   Law professor Scott Horton has been keeping up with the story and gave the following update today at Harper's:

Senate Republicans Join Dems in White House Contempt Vote: Bush Offers Closed-Door, Un-sworn Testimony

by D. Cupples  |  Two Republicans on the Senate Judiciary Committee -- Arlen Specter (photo from Senate Web site) and Charles Grassley -- joined 10 Democrats yesterday in approving a contempt of Congress citation against White House Chief of Staff Josh Bolten and ex-presidential Adviser Karl Rove. The only "No" votes came from seven Republicans.

Bolten and Rove refused to comply with subpoenas for information about politicization of the Justice Department, which is supposed to be apolitical. Evidence suggests that political agendas had played a part in the U.S. Attorney firings and in decisions about whether to prosecute certain cases. Since Congress's investigations began, Alberto Gonzales and roughly a dozen Justice Department officials have resigned.

Leahy Challenges Bush's Executive-Privilege Claim re: Fired U.S. Attorney Probe

By D. Cupples |  Claiming executive privilege, the White House ordered current and former employees in July to not comply with subpoenas related to Congress's investigation into the firing of nine U.S. Attorneys. 

Today, Senate Judiciary Committee chairman Patrick Leahy (D-VT) ruled that the White House's executive-privilege claim is legally invalid, partly because President Bush doesn't seem to have been involved in the U.S. Attorney firings. In an inadeqautely titled article, the Associated Press reported yesterday that Leahy ordered four current/former White House staffers -- including Karl Rove -- to comply with those months-old subpoenas.

Fired U.S. Attorney Builds Case Against Former Attorney General

Posted by D. Cupples  |  Former U.S. Attorney John McKay, a Republican appointed by President George W. Bush, has been busy since his apparently politically motivated firing, reviewing evidence about improper and potentially criminal acts committed by Justice Departmnet staff and former attorney General Alberto Gonzales.  Truthout reported:

Wiretapping Probe: Has the President Changed his Mind?

Posted by D. Cupples |  In 2006, as the Justice Department investigated the Bush Administration's warrantless wiretapping program (which may have become active before 9//11), President Bush shut down the probe by refusing to grant security clearance to investigators. It seemed backward that a probe's target could so easily obstruct a probe.

Today's Washington Post reported that Justice Department lawyers "recently received the necessary security clearances" and can continue the probe.

A Tortuous Matter

Posted by Nicholas | The new Attorney General, Michael Mukasey, says that he is against torture but that he doesn’t know if waterboarding is torture or not. Well, gosh, yes, that is a tricky question.  Let’s see if we can help him here.  Now then, in the old days, if a regime wanted information, or to force a confession, they had a variety of inventive means at their disposal:

Bush Administration Blocked Critic Who Experienced Waterboarding

Posted by D. Cupples  |  Yesterday, ABC News reported:

"A senior Justice Department official, charged with reworking the administration's legal   position on torture in 2004 became so concerned about the controversial interrogation technique of waterboarding that he decided to experience it firsthand, sources told ABC  News.

.

"Daniel Levin, then acting assistant attorney general, went to a military base near Washington and underwent the procedure to inform his analysis of different interrogation techniques....

"Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use."

In 2004, Levin wrote a memo setting forth legal starndards for federal statutes that outlaw torture. The White House and Alberto Gonzales forced Levin to include a footnote stating that the memo did not declare the administration's previous opinions illegal. When Gonzales became Attorney General, Levin was reportedly forced out of his job.

Republican ex-AG Thinks Justice Dept. Selectively Prosecuted, Republicans Don't Want Investigation

Posted by D. Cupples |  Three witnesses testified yesterday at a joint hearing of the House Judiciary Committee on "Allegations of Selective Prosecution: The Erosion of Public Confidence in Our Federal Justice System."

Richard Thornburgh, a Republican and former Attorney General under Presidents Ronald Reagan and George H.W. Bush, thinks the Justice Department has prosecuted cases based on political agendas --  especially against his client Dr. Cyril Wecht, a prominent Democrat who faced 84 federal felony counts based on things like his having used an office fax machine to send his résumé. (See hearing video)

Another witness, communications professor Donald Shields, did a statistical analysis and found that in 820 Justice Department investigations of public officials, Democrats were investigated 5.6 times more often than Republicans. (Hearing video)

G. Douglas Jones, attorney for former Alabama Governor Don Siegelman, said that prosecutors seemed unsure of the case in 2004; after Washington officials stepped in, a new case against Siegelman went forward. (See hearing video) 

These witnesses' testimony isn't conclusive, but it does signify that Congress should  keep investigating until it finds answers. Certain House Republicans think Congress should simply stop investigating....

Politics Played Part in Pentagon Prosecutions (like Justice Dept.)?

Posted by D. Cupples |  Months ago, Congress began investigating politicization at President Bush's Justice Department (see scandal overview).  Now, a former Pentagon prosecutor says that politics played a part in prosecution of Guantanamo detainees.  Is the Bush Administration all politics all the time?  The Washington Post reports:  

"Politically motivated officials at the Pentagon have pushed for convictions of  high-profile  detainees ahead of the 2008 elections, the former lead prosecutor for terrorism trials at Guantanamo Bay said last night, adding that the pressure played a part in his decision to resign earlier this month.

"Senior defense officials discussed in a September 2006 meeting the 'strategic political value' of putting some prominent detainees on trial, said Air Force Col. Morris Davis. He said that he felt pressure to pursue cases that were deemed 'sexy' over those that prosecutors believed were the most solid or were ready to go...."

 

AG Nominee Mukasey Calls Torture "Antithetical to What America Stands for"

Posted by Damozel | Even though I've been pretty under the weather today, and disinclined to blog, this is too important not to address. 

Michael Mukasey---a nominee with strong bipartisan backing---has taken a strong and unequivocal stand on torture.  Senator Patrick Leahy (remarking with bitter irony, that the 2002 "torture memo" signed by Office of Legal Counsel Chief Jay Bybee, is "one of the greatest things in the history of this country"), questioned him specifically on his view of the Bybee memo.  Mukasey said that it was "worse than a sin, it's a mistake."(TPM)   

He compared the use of torture to the "barbarism" of the Nazis that the U.S. opposed during World War II.  "We didn't do that so that we could then duplicate it ourselves."  (TPM)   He also said:  "We don't torture, not because it's against this or that law or this or that treaty.... It is not what this country is about; it is not what this country stands for; it is antithetical to what this country stands for."  (video)

 

The Bill to Shield Reporters' Confidential Sources

Posted by Damozel | Despite opposition from the Bush Administration and specifically the Justice Department, a measure in the House of Representatives that is designed to shield reporters' confidential sources seems likely to pass this week.  (USA Today, via memeorandum)   Justice Department spokesman Peter Carr is concerned that it will "seriously" impede their ability to investigate National Security violations.  Even so the bill---co-authored by Representative Mike Pence, an Indiana Republican---has drawn strong bipartisan support. (USA Today)

The bill prohibits federal prosecutors and courts from forcing journalists to reveal sources "except in cases where the information is vital to protecting national security or to prosecuting a crime and is not available by any other means."  (USA Today)   Not having read the bill, I guess I'm wondering why the exception isn't broad enough to assuage the Justice Department's legitimate concern with protecting national security.  (USA Today)  But of course it does require Justice to jump through a hoop or two if they want names, and they don't like hoops.  Besides, they think the bill is 'unncessary.' 

Specifically, the Justice Department spokesman argues that the Justice Department 'rarely' subpoenas reporters and have done so only 19 times since 1991, which he thinks shows the bill is unnecessary to protect reporters' sources.  By that same logic, I'd assume that it isn't especially likely to be a 'serious' impediment to their investigations (?). ....But then, of course, there's this: 

Justice Department: Weapon against Political Enemies?

Posted by D. Cupples |  Imagine having an enemy who's well-enough connected that he could chat with local prosecutors about targeting you. Imagine that the prosecutor's office is politicized enough that a prosecutor (or two) might actually grant your enemy's wish. It's the stuff of fiction, right?  Maybe not.

Yesterday, the House Judiciary Committee released the 174-page transcript of Jill Simpson's testimony, which suggests that former Alabama Governor Don Siegelman was prosecuted (twice) by the U.S. Justice Department to promote the political agendas of current Alabama Governor Bob Riley -- at the urging of former presidential adviser Karl Rove.   

As I considered this possibility, my bones' temperature dropped 15 degrees.  Below is some back story....

Time: Selective Prosecution Down South

Time Magazine reported on what looks like a bone-chilling case of selective prosecution, though it's not surprising given the evidence exposed during congressional hearings about the politicization of the Justice Department:

"On May 8, 2002, Clayton Lamar (Lanny) Young Jr., a lobbyist and landfill developer... settled into his chair, personal lawyer at his side, and proceeded to tell a group of seasoned prosecutors and investigators that he had paid tens of thousands of dollars in apparently illegal campaign contributions to some of the biggest names in Alabama Republican politics....

"Young, whose detailed statements are described in documents obtained by TIME, became a key witness in a major case in Alabama that brought down a high-profile politician and landed him in federal prison with an 88-month sentence. As it happened, however, that official was the top Democrat named by Young in a series of interviews, and none of the Republicans whose campaigns he fingered were investigated in the case, let alone prosecuted....

Bush's New Attorney General: One Democrat's Perspective.

posted by Damozel | The Washington Post's Dan Froomkin calls him "the AG Bush needs." (Froomkin)  Froomkin suggests that by picking Michael Mukasey as Attorney General, Bush is "prioritizing" in order to put in place someone who will support "the radical and unprecedented expansion of executive power that has become the hallmark of his administration....Michael B. Mukasey fits the bill."  (Froomkin) Others suggest that he is just bowing to the inevitable or trying to avoid a partisan struggle (WaPo).

President Bush opted to try to avoid a confirmation fight to be attorney general, concluding that the retired federal judge shares his approach to national security issues, but without the appearance of partisanship, administration officials and others close to the White House said yesterday. (WaPo; links in original)

As for me, I remain bemused that even an appointment with significant bipartisan support (keep reading) continues to appear to some as a legitimate occasion for partisan disputes and party games.

After all:  Harry Reid---Harry Reid!---has evidently "signaled" that "Mukasey's confirmation is not likely to be a problem."(WaPo)  "Twenty minutes after Bush announced the nomination, Reid issued a statement praising Mukasey for his "strong professional credentials and a reputatation for independence." (WaPo)   That should be that then, right?

Well, not quite: