Missed Opportunity On Mukasey

I'm watching the beginnings of the Senate Judiciary Committee hearings (St. Lieberman of the Vapors is blathering on right now), and it's clear this is going to be an exercise in fluffery. This is going on in the context of a Justice Department that is almost completely lawless.

Mark Fuller, an Alabama judge appointed by George Bush as been accused of pension fraud, misuse of his office, perjury, criminal conspiracy and obstruction of the FBI's background check for the Federal Judiciary. These charges were made well before Fuller was assigned to prosecute Don Siegelman, former Democratic governor of Alabama.

The charges were submitted to the DOJ's public integrity section by a respected defense attorney who conducted a routine investigation prior to trying a major case. The charges were sufficiently credible to get judge Fuller removed from that case. However, he was allowed to preside over the Siegelman case. These charges of criminal activity were corroborated by signed documents by public officials involved in exposing the alleged pension fraud by Judge Fuller.

There are a series of questions already about the Siegelman case, and now the hand-picked judge is accused of fraud and misuse of his office. It's just inconceivable to me that Pat Leahy and the like in the Senate is talking about "the future." The past is illegal, and there are going to be very few opportunities to get to the bottom of what's been happening at the DoJ.

I'm somewhat heartened by the attempt to stop Steven Bradbury, as his tenure at the Office of Legal Counsel is specifically tainted by his advisory opinions on torture.

In September, the White House has declared that its “next priority this fall” is to obtain Senate approval for Steven Bradbury, “the man who is advising President Bush on the extent of his terrorism-fighting powers.” In 2005, Bradbury replaced Jack Goldsmith as head of the Justice Department’s Office of Legal Counsel (OLC) and has since been interim OLC chief.

Today, Sen. Dick Durbin (D-IL) expressed reservations about Bradbury. “What we know is troubling. Mr. Bradbury refuses to repudiate un-American and inhumane tactics such as waterboarding and mock executions. … There are also serious and unanswered questions about Mr. Bradbury’s role in NSA warrantless surveillance programs.” [...]

In July 2006, Bradbury testified before the Senate Judiciary Committee and proclaimed that “the president is always right.”

OLC is simply too small an office to pick this fight. It has outsized importance in the Bush Administration, acting essentially as an inside-the-White-House version of the Supreme Court, and a rubber stamp besides. But only using the Attorney General nomination as a leverage point will actually gain any attention. I just think it's a mistake to let the Administration skate on this without extracting a price.

Mukasey is saying all the right things, like "partisan politics plays no part in the bringing of charges." But it has, and those illegalities shouldn't be allowed to stand.

Democrats Surrender on Defending the Constitution

Today's NYT article on Cheney, Addington, Gonzales, Bradbury and the secret policies of torture are really incredibly shocking and yet expected all at once, as The Editors say. What you have is essentially a second torture memo to replace the John Yoo memo invalidated by Congressional and legal action.

This new memo, signed by the new head of the Office of Legal Counsel, Steven G. Bradbury, endorsed "the harshest interrogation techniques ever used by the Central Intelligence Agency." According to the Times report, this memo-- what I will call Torture Memo 2.0-- "for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures."

The twisting of law by the Justice Department under Alberto Gonzales is far worse than Gonzales' misleading testimony in front of Congress about the U.S. Attorney scandal. That scandal dominated the headlines for weeks. This one deserves far more searching press scrutiny. Despite the fact that Congress repeatedly passed legislation stating that it was illegal for U.S. personnel to engage in torture or cruel, inhuman and degrading treatment, the Justice Department repeatedly redefined the terms of these prohibitions so that the CIA could keep doing exactly what the Justice Department had authorized to do before. Gonzales treated all of these laws as if they made no difference at all, as if they were just pieces of paper.

Really, the Justice Department reacted to their law being tossed out by finding a new way around the law. Which is what makes Patrick Leahy's capitulation to the Administration with respect to confirmation hearings on Michael Mukasey all the more distressing.

Now, Mukasey had nothing to do with the Wild West show that was the DoJ under Abu G. But this Administration was clearly deeply involved. And this nomination should have extracted a price. At the very least, Leahy should have demanded the relevant documents and congressional testimony relating to the US Attorney scandal, all of which were under subpoena. With today's revelations, even more should have been demanded, all the way up to a special prosecutor to look into the disarray that was the Justice Department. But instead, all is forgiven.

In a letter to the nominee released yesterday, Leahy complained that "the White House has chosen not to clear the decks of past concerns," including Democratic demands for documents and testimony about the firing of nine U.S. attorneys.

"I had hoped that the White House would . . . work with us to fulfill longstanding requests for information so that we could all agree about what went so wrong at the Department of Justice and work together to restore it," Leahy wrote in the letter. "Instead, they have left you to answer the unanswered questions and left longstanding disputes unresolved."

The remarks indicated an end to Leahy's attempt to use the Mukasey nomination to pry loose sensitive information from the White House about the prosecutor firings, the government's warrantless surveillance program and other issues. Leahy's office has been in intensive negotiations with White House counsel Fred F. Fielding since President Bush named Mukasey as the nominee three weeks ago, but no agreement has been reached.

There's absolutely no reason for such comity. The Justice Department has been found to be repeatedly breaking the law on a variety of fronts, torture being notable only because it's the most recent. There simply aren't any other leverage points that the Democrats can use to get to the truth of the matter. And it's far better to have this information now, while these criminals are still in office, than to discover it over a period of decades. But Leahy caved in rather than face this showdown. He'll ask tough questions and send strongly worded letters, and in the end Mukasey will be confirmed and that will be that.

I don't know how many different times you have to say "stand up" before these guys get the message. Here's one way to stand up, from Chris Dodd.

"The law is crystal clear - torture is illegal. It is 'abhorrent' that the Bush Administration would publicly disavow torture, while its Office of Legal Counsel is secretly interpreting settled law to reach the opposite conclusion. It is imperative we understand the extent of this deception. The Office of Legal Counsel must release how many other secret opinions they have produced during the Bush Administration that justified violations of the Constitution, federal statutes, the laws of war, and international human rights.

"Congress's Constitutional authority is the power of the purse. And should the Justice Department not comply, I intend to use that authority by drafting legislation defunding the Office of Legal Counsel."

OLC is kind of an inside baseball deal - getting at the Attorney General nominee was the way to go. But the Democrats played toreador and let the bull charge through.

UPDATE: You should all sign this pledge.

We are Americans, and in our America we do not torture, we do not imprison people without charge or legal remedy, we do not tap people’s phones and emails without a court order, and above all we do not give any President unchecked power.

I pledge to fight to protect and defend the Constitution from assault by any President.

The Grand Inquisitors

If you read one news article about the Bush Administration this year, this is the one. It illustrates how far we've backslid and relinquished our moral authority in the name of petrifying fear.

When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment, the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard.

The legacy of the Bush Administration is one of official secrecy and deep human cruelty. Because they are so psychologically damaged, they project those feelings on everyone else, feeling that only through torture can they extract the information they need to carry out a so-called war on terror. In truth, the known factor is that torture doesn't work. It yields unreliable information as the victim tells his or her captors what they want to hear. It lso violates every moral precept you can imagine and invalidates any claim we make on human rights around the world. Bush's speech at the UN on the importance of human rights was met with nothing so much as laughter.

But there's a deeper meaning to all of this. You can argue that the main reason this nation is torturing terror suspects is because the executive branch has decided it can. And every attempt to put limits on that behavior, whether from the courts or from Congress, is met with retrenchment, as the issue becomes less about the policy and more about thumbing their nose at the other branches of government. These extreme interrogation techniques remain in effect, because until now nobody knew about them. This official quote is telling.

A White House spokesman, Tony Fratto, said Wednesday that he would not comment on any legal opinion related to interrogations. Mr. Fratto added, “We have gone to great lengths, including statutory efforts and the recent executive order, to make it clear that the intelligence community and our practices fall within U.S. law” and international agreements.

Yes, of course, but since the President is rewriting US law through executive orders and secret legal memorandums, what does that phrase even mean anymore?

When I saw Charlie Savage speak, the most distressing statement he made was that it would be very difficult for future Presidents to put these genies back in their bottles. It's unlikely a lot of these issues would reach up to the Supreme Court because the judicial system in this country doesn't offer advisory opinions. Anybody available to show standing is locked away in a detention center, and even though they are just now being allowed to request lawyers,
the awful Military Commissions Act strips their habeas corpus rights and keeps them in a rigged military tribunal system, which has just been kickstarted, after fixing some of the legal language that will allow those trials to move forward. We're not going to know about who the CIA tortured, where they were held, and what international conventions they broke. Even the next President will be unable to understand the scope of these crimes. Bush had an Office of Legal Counsel that essentially told him what he wanted to hear, that anything he decided was lawful could be carried out. The only exception was Jack Goldsmith, who did try to preserve civil liberties in the detention process, but when he testified before Congress this week, he was more concerned that there were too MANY lawyers in the OLC, not too few.

This is about expanding executive power. And so you know that this is really about Vice President Fourthbranch and the radical legal theories pushed by his pit bull David Addington and other like-minded ideologues. And they ran roughshod over the rest of the government.

Associates at the Justice Department said Mr. (Abu) Gonzales seldom resisted pressure from Vice President Dick Cheney and David S. Addington, Mr. Cheney’s counsel, to endorse policies that they saw as effective in safeguarding Americans, even though the practices brought the condemnation of other governments, human rights groups and Democrats in Congress. Critics say Mr. Gonzales turned his agency into an arm of the Bush White House, undermining the department’s independence.

The interrogation opinions were signed by Steven G. Bradbury, who since 2005 has headed the elite Office of Legal Counsel at the Justice Department. He has become a frequent public defender of the National Security Agency’s domestic surveillance program and detention policies at Congressional hearings and press briefings, a role that some legal scholars say is at odds with the office’s tradition of avoiding political advocacy.

Mr. Bradbury defended the work of his office as the government’s most authoritative interpreter of the law. “In my experience, the White House has not told me how an opinion should come out,” he said in an interview. “The White House has accepted and respected our opinions, even when they didn’t like the advice being given.”

But they never disliked those opinions, at least not under Gonzales and Bradbury. The Office of Legal Counsel, once a nonpartisan referee of Presidential power, the "Supreme Court" of the executive branch, is not a rubber stamp for the Administration's policies. And there's almost nothing that can be done about that.

This is the most despicable article you'll ever read. These people have destroyed the very fabric of the American experiment, as early historians liked to call it. This experiement is gradually blowing up in the lab.