Where did this story go?

Why didn’t this story get more traction? What the hell? In last Wednesday’s Washington Post, Dan Eggen had a blow-the-lid-off story on Alberto Gonzales lying to a Federal Judge about the legality of a US Attorney living outside the district served – in this case living in Washington D.C. and representing Montana – and then, later that very day, slipping a provision into…wait for it…you know it’s coming…drumroll please…The PATRIOT Act!!!

Eggen writes: ".... [T]he episode, which received little notice at the time, provides another example in which Gonzales's statements appear to conflict with simultaneous actions by his aides in connection with U.S. attorney policies.... The measure also provides the second example in which the Justice Department sought to use the renewal of the Patriot Act antiterrorism law to assert tighter control over U.S. attorneys. Another provision sought by the Justice Department allowed Gonzales to appoint U.S. attorneys indefinitely without Senate input. Since repealed, it was central to the uproar over the prosecutor dismissals."

The Attorney General of the United States lied to a Federal Judge. That is reprehensible. It’s despicable. It’s akin to treason to so undermine a coequal branch of government.

It is another deliberate abuse of the "Patriot Act." This slipping in of clauses looks as if it was becomign routine. Both clauses served to consolidate unprecedented, unchecked power in the hands of the Justice Department that Karl Rove might use it as a tool of the RNC.

We have long since passed the point where Mr. Gonzales has any hope of redeeming himself, and Justice can simply not be considered just so long as he retains his post.

Seriously – if he does not resign, and the President does not ask for his resignation, Congress needs to impeach him.

And the very next day, after he is dealt with and ousted from office, they need to start the process to repeal that apostasy known as the "Patriot Act" that hasn't made us safer, but has instead been a political tool used to abrogate the rule of law and allow a Republican partisan political operative, in the form of one Karl Rove to take control of the Department of Freakin' Justice.

Why the hell aren't we in the streets with pitchforks and torches over this?

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Just Us instead of Justice is Injustice

Both my paralegal and my associate tell me I have been grumpy today. I know they are right. Since lunch my encounters with them and with a couple of clients have been tense.

I have been wondering why I have been so grumpy. Nothing any of them have done. Then it struck me, just after lunch I read two very important articles on the net. The first is a Boston Globe article about a speech Ted Kennedy made yesterday in which he

accused President Bush of using the Department of Justice to further his administration's "right-wing ideology," saying that veteran prosecutors were replaced by political operatives in key states to ensure that "reliable partisans" are in place in time for the 2008 presidential election.

The second is an LA Times OP-Ed by Joseph Rich in which he points out that

At least two of the recently fired U.S. attorneys, John McKay in Seattle and David C. Iglesias in New Mexico, were targeted largely because they refused to prosecute voting fraud cases that implicated Democrats or voters likely to vote for Democrats.

So far none of this is news to me or readers of this blog. What Rich really drives home is what makes me so grumpy.

This pattern also extended to hiring. In March 2006, Bradley Schlozman was appointed interim U.S. attorney in Kansas City, Mo. Two weeks earlier, the administration was granted the authority to make such indefinite appointments without Senate confirmation. That was too bad: A Senate hearing might have uncovered Schlozman's central role in politicizing the civil rights division during his three-year tenure.

Schlozman, for instance, was part of the team of political appointees that approved then-House Majority Leader Tom DeLay's plan to redraw congressional districts in Texas, which in 2004 increased the number of Republicans elected to the House. Similarly, Schlozman was acting assistant attorney general in charge of the division when the Justice Department OKd a Georgia law requiring voters to show photo IDs at the polls. These decisions went against the recommendations of career staff, who asserted that such rulings discriminated against minority voters. The warnings were prescient: Both proposals were struck down by federal courts.

Schlozman continued to influence elections as an interim U.S. attorney. Missouri had one of the closest Senate races in the country last November, and a week before the election, Schlozman brought four voter fraud indictments against members of an organization representing poor and minority people. This blatantly contradicted the department's long-standing policy to wait until after an election to bring such indictments because a federal criminal investigation might affect the outcome of the vote. The timing of the Missouri indictments could not have made the administration's aims more transparent.

That is what has made me so grumpy. I can't be sure Democrats who might be charged in the Western District of Missouri are receiving justice or a Just Us from the local US Attorney. His background puts a whole new cast on the recent charge filed against well known Democrat Katherine Shields during her run for mayor of Kansas City. I will never be able to have much confidence in the winner, Blue Girl's candidate, closet Republican Mark Funkhouser. Sometimes reading an op-ed makes you grumpy.

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The Fourth Amendment and the Patriot Act

Liberals, Conservatives and just plain old Americans should be proud of the Fourth Amendment. You remember the Fourth Amendment, don't you. It goes something like this.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

A few years ago in the shadow of 9/11, quaking with fear, we enacted the US Patriot Act. Among other things that act allows the FBI to issue what are called "national security letters." A "national security letter" is like a warrant without the need for a judge. According to a letter to the editor of the Washington Post in the period between 2003 and 2005 the FBI issued more than 140,000 specific demands under the Patriot Act to obtain potentially sensitive information about U.S. citizens and residents. One hundred forty thousand, are there that many suspected terrorists? Well, no there aren't but the FBI can issue a National Security Letter when it is "relevant" to an investigation to protect against international terrorism or clandestine intelligence activities, provided the investigation is not based solely on the First Amendment-protected activities of U.S. citizens, permanent residents, or domestic corporations or associations.

As a practical matter the current standard means that if you have a nephew in law who is suspected of knowing somebody who went to school with a party of interest in a "terrorism" case the FBI can snoop around in your Internet records without adult supervision. I know, the lawyers reading this are going to point out that "relevant" is a stronger standard than I suggest, and an NSL can only be issued when exigent circumstances are present, but according to a recent Report of the DoJ's Inspector General outlining NSL abuses it seems without fear of being turned down by a Judge, some FBI Agents have been a little loose in their interpretation of the law. Michael Dorf reports in a FindLaw Article that

Among the problems identified by the report are: sloppy and inconsistent record keeping by the FBI, which resulted in substantial under-reporting of errors within the FBI; NSLs that were signed by personnel without proper authorization to do so; confusion among recipients of NSLs that resulted in disclosure of private information to which the FBI was not entitled; and most disturbingly, a pattern of short-circuiting the already-streamlined NSL process by improperly labeling requests as exigent in the absence of any exigency.

This is an issue of importance. We have to give law enforcement the tools needed to keep us safe, but to secure our freedoms we have to make sure the use of those tools is overseen by adults. The adults contemplated by the Constitution are judges. The founding fathers were pretty smart. Maybe they were right.

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Capital Hijinks

By now we are all familiar with the story of how Senator Spector's "chief legal counsel,"Michael O'Neill, unknown to the "clueless" Senator, inserted finely crafted language into the USA Patriot Act stripping the Senate of its power to confirm replacement US Attorneys. The AG appoints an interim for an indeterminate term, no replacement necessary. We have all heard how Kyle Sampson said the administration should use that new law to avoid the need to seek the approval of those pesky home state Senators when they replaced the fired US Attorneys. Well this morning we learn that the idea for the law change came from David Collins a Los Angeles lawyer who emailed William Moschella, principal associate deputy attorney general the idea back in 2004. Apparently Collins doesn't like the idea of US Courts appointing interim US Attorneys if the replacement US Attorney isn't promptly confirmed by the Senate. Well according to Margaret Talev and Marisa Taylor of McClatchy Newspapers

Moschella, principal associate deputy attorney general, said that he pursued the changes on his own, without the knowledge or coordination of his superiors at the Justice Department or anyone at the White House.

Let me see if I understand this a former Deputy US Attorney comes up with an idea. He emails a mid level deputy friend of his at Justice who apparently puts a bug in the ear of a Senate staffer who inserts important language into the USA Patriot Act stripping the Senate of a long held and highly prized power to confirm US Attorneys. At no time did any elected Representative or Senator, or senior Administration official know about the change. Sounds like a Jedi mind tricks to me.

Fire the State Department and the CIA. Hire the team of Moschella, Collins and O'Neill to run the whole thing. Damn they are good.

If there isn't a Saturday Night Live or Daily Show skit in this story, the boys and girls at those shows aren't trying.

UPDATE: I just remembered something. Here is the text of part of Spector's statement of what happened when the Patriot Act was changed.

Prior to the PATRIOT Act, U.S. attorneys were replaced by the Attorney General for 120 days and then appointments by the Court or the First Assistant succeeded to the position of U.S. Attorney. The PATRIOT Act gave broader powers to the Attorney General to appoint replacement U.S. Attorneys. I then contacted my very-able Chief Council Michael O’Neill to find out exactly what had happened. Mr. O’Neill advised me that the requested change had come from the Department of Justice, that it had been handled by Brett Tolman, who is now the US Attorney for Utah.

Isn't Brett Tolman the guy who got the US Attorney job Kyle Sampson wanted? Wasn't Sampson the AG's Chief of Staff? Not only did they screw the Senate out of a long held power they screwed Kyle Sampson out of his dream job as well. Wow, these second and third level AG and Judiciary Committee staffers are good.

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Griffin Will Not Stand for Confirmation Process

The Arkansas Democrat Gazette reports that

Tim Griffin, whose December appointment as U. S. attorney for the Eastern District of Arkansas sparked a national outcry about surreptitious changes made to a law affecting federal prosecutors, says he no longer wants the job permanently.

“I have made the decision not to let my name go forward to the Senate,” Griffin said Thursday evening.

Apparently Griffin blames “the partisanship that has been exhibited by Sen. [Mark ] Pryor [D-Ark. ] and other senators on the Senate Judiciary Committee in the recent hearing” for his decision to bow out. I am sure his participation in the "caging" scheme discussed in my previous post has nothing to do with his decision not to undergo Senate Confirmation.

Griffin said that he will remain in office as interim until a permanent replacment is found. Without the needed change in the Patriot Act there is no pressure on the administration to name a permanent replacement so that could give him a good long time to dig dirt on Hillary.

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White House Directly Implicated in Arkansas Firing

It is being reported in the New York Times that Harriet Meirs personally phoned an aide to Attorney General Alberto R. Gonzales suggesting the appointment of J. Timothy Griffin a political director for the Republican National Committee and a deputy to Karl Rove US Attorney for Arkansas.

I guess President Bush just wanted to give Mr. Griffin a chance to advance his career. Of course he could have done that by giving him a Washington job in the Justice Department. Mr. Griffin wouldn't have had to sell his Washington house and move to Little Rock.

Hillary Clinton is running for President. That Hillary spent several years in Arkansas couldn't have anything to do with the appointment?

In fairness reportedly Mr. Griffin had worked as a Federal Prosecutor and as a JAG officer at some point prior to becoming a Rovian henchman.

On the other hand the Arkansas Times has reported that not all the the folks in Arkansas are happy about the appointment.

“Quite frankly, within the legal community in Central Arkansas and even Eastern Arkansas, they felt Bud was being pushed out so Tim could be rewarded with this position he wanted,” said Michael Teague, a spokesman for U.S. Sen. Mark Pryor.

U.S. Sen. Blanche Lincoln said, “Clearly, the president and his administration are aware of the difficulty it would take to get Tim Griffin confirmed through the normal process, and therefore chose to circumvent it in order to name him as interim U.S. attorney. This decision denied the Senate the opportunity to carefully consider and evaluate Mr. Griffin’s qualifications and denied the American people the transparency the standard nomination process provides.”

The Arkansas Times reports that Mr. Griffin's political work includes "serving from 1995-96 as an associate independent counsel investigating Henry Cisneros, who was President Bill Clinton’s secretary of housing and urban development; senior investigative counsel to the Republican-controlled House Government Reform Committee’s 1997-99 inquiry into foreign contributions to the Democratic National Committee; deputy research director for the Republican National Committee from 1999-2000; legal adviser to the Bush/Cheney recount team in Florida following the 2000 election; special assistant to Assistant Attorney General Michael Chertoff from 2001-02; and research director and deputy communications director for the Republican National Committee from 2002-05, after which he joined the White House political affairs office."

The British Broadcasting Corporation has unearthed e-mail messages Griffin sent from the RNC in 2004 containing spreadsheet information on thousands of Florida voters. The spreadsheets were titled “caging,” which, according to the BBC, alludes to a voter suppression tactic.

Griffin's caging scheme was a particularly nasty suppression tactic aimed at black sericemembers. According to Greg Palast / Democracy Now! the RNC mailed voters letters in envelopes marked, “Do not forward”, to be returned to the sender. These letters were mailed to servicemen and women, some stationed overseas, to their US home addresses. The letters then returned to the Bush-Cheney campaign as "undeliverable." The party could then challenge the voters' registration and thereby prevent their absentee ballot being counted.

Palast reports that

One target list was comprised exclusively of voters registered at the Jacksonville, Florida, Naval Air Station. Jacksonville is third largest naval installation in the US, best known as home of the Blue Angels fighting squandron.

The BBC obtained several dozen confidential emails sent by the Republican's national Research Director and Deputy Communications chief, Tim Griffin to GOP Florida campaign chairman Brett Doster and other party leaders. Attached were spreadsheets marked, "Caging.xls." Each of these contained several hundred to a few thousand voters and their addresses.

A check of the demographics of the addresses on the "caging lists," as the GOP leaders called them indicated that most were in African-American majority zip codes.

Gee, I wonder why Griffin wouldn't want to have his name submitted to the Senate for confirmation.

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Senator Kyl Blocks Repeal of Correction To Patriot Act

For those who have been paying attention the President wants the power to appoint any of his friends to the position of US attorney without dealing with the pesky senate confirmation process. During the passage of the USA Patriot Act a Republican staffer snuck in a change to the law allowing the AG to permanently appoint US attorneys without Senate approval. Recently the AG used the new law to fire 9 US attorneys and to appoint their replacements without Senate confirmation. Some of the firings involved US attorneys who were involved in fighting Republican corruption. One of the others resulted in the appointment of one of Karl Rove's henchmen as US attorney in Arkansas. Any guesses why Rove would want one of his boys down in Little Rock during the run up to the 2008 election?

When Specter found out that giving away the Senate's confirmation power had been attributed to him, he was shocked. Apparently nobody told him about the change. It turned out that a staffer who fancied himself Senator inserted the language at the request of the Administration without telling his boss. Senator Feinstein recently sponsored a bill restoring the law to status quo ante. Well, it seems the administration has had its Senate waterboy, Senator Kyl, block the legislation. That resulted in an uproar on the Senate Floor this afternoon. Enjoy Senator Schumer's comments.

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Prosecutor Law To Change

Remember the uproar about the provision of the USA PATRIOT Improvement and Reauthorization Act that allowed the Attorney General to appoint US Attorneys without Senate confirmation. The early reports indicated that Senator Arlen Specter snuck the change in during negotiations. Well it turns out that Specter was a bit miffed when he heard he had submitted that change. Why, he would have remembered doing something that dastardly. It turns out that while Senator Specter didn't slip the language into the Patriot Act, one of his staff did insert it at the request of the Department of Justice. Apparently the Republican staffer forgot he worked for Senator Specter, or maybe he thought they both worked for the Karl Rove, who apparently was able to talk Alberto Gonzolas into appointing one of his political operatives US Attorney in Arkansas.

In any event it is being reported that the provison is on its way to being repealed. Apparently Justice and Senate Republicans aren't complaining now about the senate confirmation requirement. Instead they seem upset about a provision of the old law (now being restored in a bill sponsored by Senator Feinstein) that allows district court judges to appoint replacement US Attorneys if they are not confirmed within 120 days of nomination.

I wonder what other laws were enacted having never been reviewed by a single member of Congress. I guess we will find out as the 110th congress unfolds.


UPDATE Joe Conason has posted a very good discussion of this mess at Salon.com including information about the Specter staffer,Michael O'Neill, now a law professor at George Mason University, who evidently thought being a Clarence Thomas law clerk gave him the right to insert language in legislation without running it past his boss.

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