BREAKING: Senate Judiciary Committee subpoenas White House, Cheney, DOJ & NSA on wiretapping

[updated 3:40 p.m. CDT]

AP is reporting that the Senate Judiciary Committee has just subpoenaed the White House, Vice President Dick Cheney, the Justice Department and the National Security Council on the warrantless eavesdropping program.

The committee wants documents that might shed light on internal squabbles within the administration over the legality of the program, said a congressional official speaking on condition of anonymity because the subpoenas had not been made public.

Former Deputy Attorney General James Comey's testimony about the hospital-room pressure put on then AG John Ashcroft may well have been the straw that broke the proverbial camel's back, AP says.

[1:30 p.m. update]

John at AMERICAblog makes the interesting point that this subpoena will probably force Cheney to claim executive privilege. This will force him to drop his silly argument that the vice president is the 4th branch of government. Of course, Cheney is already shifting his stand on that goofiness.

[3:40 p.m. update]

TPM has more details on the committee's action.

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Loyal Bushies As Immigration Judges -- What A Concept

We have heard a lot lately about immigration judges. According to the Legal Times America's 226 immigration judges handle about 300,000 immigration cases each year. They rarely issue written opinions while deciding cases ranging from the status of asylum seekers to the rights of immigrants marrying U.S. citizens. My niece and her husband who have been living abroad for the last several years will without doubt encounter one of our immigration judges when they return to the US with the little Chinese girl they recently adopted.

Starting at about $115,000 per year, plus full benefits, the pay is reasonably good. Immigration judges are considered civil service employees. When the Bush administration leaves Bush appointees won't have to find work. As mentioned immigration judges don't have to write much, so for most lawyers the work is relatively easy. All in all, the job of immigration judge is highly coveted.

According to the Legal Times

Historically, those hired for the positions were vetted by the Executive Office of Immigration Review and its recommendations were forwarded to the Office of the Deputy Attorney General — where they were almost uniformly approved. Sometimes this process took place without public advertisements for the posts and without competing candidates.

In recent years somebody realized that the job of "immigration judge" was a wonderful patronage opportunity. The Attorney General has the power to override the EOIR process and directly appoint whoever he wants. Again from the Legal Times.

The shift in the method of hiring immigration judges began late in Ashcroft’s tenure. At some point members of his staff realized that EOIR had long been appointing at least some immigration judges without open competition. Hearing of this, Susan Richmond Johnson, one of Ashcroft’s closest advisers, remembers thinking, “Why are we not using it? It’s an authority of the attorney general.”

This change led directly to the raw politicization of the appointment process revealed last week by Monica Goodling. If you are well connected within the Republican party, have a law license and are a loyal Bushie, you can be an immigration judge.

One of the judges appointed by the attorney general is Garry Malphrus. According to TPMMuckraker his story is pretty typical.

A former Republican aide on the Senate Judiciary Committee, Malphrus also worked on the White House's Domestic Policy Council before becoming a judge. But he really showed his stripes in 2000, when Malphrus joined other Republicans in making a ruckus (chanting, pounding on windows and doors) outside the Miami-Dade Elections Department -- the so-called "Brooks Brothers Riot" -- during the Bush-Gore recount.

Malphrus, of course, had no immigration experience when he got the job, McLure reports. He had that in common with a number of his peers, who had similar backgrounds:

Among the 19 immigration judges hired since 2004: Francis Cramer, the former campaign treasurer for New Hampshire Sen. Judd Gregg; James Nugent, the former vice chairman of the Louisiana Republican Party; and Chris Brisack, a former Republican Party county chairman from Texas who had served on the state library commission under then-Gov. George W. Bush.

It is pretty clear that treating the job of immigration judge as a patronage plumb didn't start with Goodling. Malphrus was hired before Goodling ever became involved in the process. According to Goodling's written testimony.

Around the time I became White House Liaison in April 2005, Mr. Sampson told me that the Office of Legal Counsel (OLC) had provided guidance some years earlier indicating that Immigration Judge appointments were not subject to the civil service rules applicable to other career positions.

The DoJ maintains that "recent appointees have been well-qualified and that the department draws on candidates from 'diverse legal backgrounds' and 'considers applicants based on the totality of their professional records.'"

We can almost hear the Republican defense. Politicians love patronage jobs. After all patronage is how they keep their friends and supporters happy. Patronage is a key to maintaining political power. Bush gets to appoint some of his political staff to good paying jobs between campaigns. So what? If Democrats win, they can appoint their own campaign workers. Go win the next election.

Why is it important that we appoint seasoned and highly qualified people to be immigration judges?

An answer to that question might be found this morning's New York Times. Julia Preston reports on a study of 140,000 asylum cases--cases decided by our immigration judges and concludes that "asylum seekers in the United States face broad disparities in the nation’s 54 immigration courts, with the outcome of cases influenced by things like the location of the court and the sex and professional background of judges."

The variation from court to court is startling. An asylum seeker in Atlanta has a 12% chance of winning his case. An asylum seeker in San Francisco wins 54% of the time.

Even more shocking is the variation from judge to judge. In Miami one judge awards asylum to Colombians 5% of the time. Another judge just down the hall awards Colombians asylum 88% of the time. Read the entire article. It is shocking.

From the lowest municipal court deciding speeding tickets to the United States Supreme Court, every organized court strives for consistency. The rule of law insists upon the fair and uniform application of the law to the facts regardless of who is deciding those facts or applying the law. At the same time organized courts recognize that every judge is different. Every judge brings his or her experiences to the job. For that reason appellate courts review decisions, providing consistent supervision to subordinate courts. For that reason judges spend lots of time going to seminars. They talk among themselves. They look over each other's shoulders. New judges are most often drawn from the ranks of experienced lawyers practicing in the field, often in the same court. Consistency of decision is key to the perception that a litigant is getting a fair shake. It is a key component of the Rule of Law.

I don't know if the inconsistency among our immigration courts and judges started with the Bush administration, or if the problem has only been made worse by the AG's use of the job as a patronage plum. It is pretty clear that this is an issue that needs additional reporting.

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Integrity Counts

I spent the last several minutes thinking about what to write this morning. There are a lot of topics out there. The Simpsons 400th episode trashes Fox News. (I might save that one for later). Jimmy Carter had a lot to say about George Bush and Tony Blair, none of it good. Voter suppression mastermind Mark "Thor" Hearne, a name known here in Missouri, has been featured in Slate and not in a good way.

All those stories are pretty obvious. I mean that Fox News doesn't do news, isn't news. Anybody who cares to look realizes it is Republican infotainment intended to keep the white masses content in their self-loathing and justified in their racial bigotry. Jimmy Carter has been assailed for his comments about Blair and Bush, but darned if I can see why. He simply told the truth. Mark Hearne, Brad Schlozman, Hans von Spakovsky are simply bit players carrying out Karl Rove's version of Nixon's old Southern strategy. Stop the blacks from voting and white Republicans win.

Then I saw a story of hope. David Iglesias is building a new life. I thought about it for a minute. Do you know who the winners are in the US Attorney scandal? The winners are the fired attorneys. Their lives have all been carefully examined by the media, and they have all been certified to be professional lawyers striving to achieve the highest ethical standards. Long after the many US Attorneys who knuckled under to Karl Rove are forgotten in their suburban practices the Gonzales 8 will be held up as models of how US Attorneys should act. Long after Kyle Sampson and Monica Goodling are utterly forgotten, their careers in tatters, people like Carol Lam, Bud Cummins and John McKay will be building their futures and fully living their lives. Hell, who knows, one of those fired US Attorneys might run for senator, maybe in New Mexico.

James Comey has emerged as a hero in the Department of Justice scandal because he stood for what was right. So have all the people who stood with him. Even John Ashcroft, who doesn't even mention the episode in his book, looks better, so much better that Blue Girl had to remind us of just who we are talking about. I know who John Ashcroft is and what he has done, but darn if the image of him saying "NO" Alberto Gonzales and Andy Card hasn't forced me to give him a higher mark.

Today I choose to remember that integrity counts. People who display courage in the face of adversity are often rewarded. Good guys can finish first.

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Bush Defends Gonzales, Charges Political Theater.

In a world where the law is meaningless, power is unchecked and loyalty is everything, President Bush has declared unflinching support for his embattled attorney general. He charges the Democrats with political theater.

In related news a trailer has just been released promoting a new movie about the rapidly developing scandal.



Now that's true political theater.

Sorry bmaz, I couldn't resist.

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Exactly How Bad Was The Domestic Spying Program Anyway?

I know you are probably bored with the entire Gonzales/Ashcroft Hospital Story, but if you watched the video you probably realize that the program Ashcroft and Comey refused to certify was so bad damn near everybody at the top of the Justice Department was willing to walk if the President didn't relent.

Paul Kiel over at TPMMuckraker has just published an anonymous, but an extraordinarily well written and knowledgeable comment from one of its readers providing us a lot of background and asking a lot of pointed questions. If the New York Times can republish anonymous sources we ought to be able to republish anonymous blog comments.

When the warrantless wiretap surveillance program came up for review in March of 2004, it had been running for two and a half years. We still don't know precisely what form the program took in that period, although some details have been leaked. But we now know, courtesy of Comey, that the program was so odious, so thoroughly at odds with any conception of constitutional liberties, that not a single senior official in the Bush administration's own Department of Justice was willing to sign off on it. In fact, Comey reveals, the entire top echelon of the Justice Department was prepared to resign rather than see the program reauthorized, even if its approval wasn't required. They just didn't want to be part of an administration that was running such a program.

This wasn't an emergency program; more than two years had elapsed, ample time to correct any initial deficiencies. It wasn’t a last minute crisis; Ashcroft and Comey had both been saying, for weeks, that they would withhold approval. But at the eleventh hour, the President made one final push, dispatching his most senior aides to try to secure approval for a continuation of the program, unaltered.

I think it’s safe to assume that whatever they were fighting over, it was a matter of substance. When John Ashcroft is prepared to resign, and risk bringing down a Republican administration in the process, he’s not doing it for kicks. Similarly, when the President sends his aides to coerce a signature out of a desperately ill man, and only backs down when the senior leadership of a cabinet department threatens to depart en masse, he’s not just being stubborn.

It’s time that the Democrats in Congress blew the lid off of the NSA’s surveillance program. Whatever form it took for those years was blatantly illegal; so egregious that by 2004, not even the administration’s most partisan members could stomach it any longer. We have a right to know what went on then. We publicize the rules under which the government can obtain physical search warrants, and don’t consider revealing those rules to endanger security; there’s no reason we can’t do the same for electronic searches. The late-night drama makes for an interesting news story, but it’s really beside the point. The punchline here is that the President of the United States engaged in a prolonged and willful effort to violate the law, until senior members of his own administration forced him to stop. That’s the Congressional investigation that we ought to be having.

Never forget that it is now firmly established that the Administration has been running the DoJ as an arm of the Republican party. If we Americans don't get to the bottom of this story our very way of life could be at risk. Our mission, citizen journalists, is to legally find out and share all we can about the NSA's surveillance program or at least demand our Representatives and Senators investigate for and report to us.

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