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The ACLU throws its support behind a sitting Republican senator!

But that’s not the best part. This is the best part.

In an effort to help Idaho Sen. Larry Craig, the American Civil Liberties Union is arguing that people who have sex in public bathrooms have an expectation of privacy.

Funny thing is, they apparently have a court precedent:

The ACLU wrote that a Minnesota Supreme Court ruling 38 years ago found that people who have sex in closed stalls in public restrooms “have a reasonable expectation of privacy.”

Bless them. They’re out in left field on this one — though I’ll see if I can get a look at that precedent they cite. But I love to see them following a legal principle without fear or favor, even if they’re following it out a window.

Craig, ACLU, politics, midtopia

Original post by Sean Aqui

People concerned about the politicization of prosecutions in the Bush Justice Department now have this feel-good story to look at:

The Justice Department delayed prosecuting a key Republican official for jamming the phones of New Hampshire Democrats until after the 2004 election, protecting top GOP officials from the scandal until the voting was over.

An official with detailed knowledge of the investigation into the 2002 Election-Day scheme said the inquiry sputtered for months after a prosecutor sought approval to indict James Tobin, the northeast regional coordinator for the Republican National Committee.

They′re referring to this case, which led to the near bankruptcy of the New Hampshire GOP.

There’s more:

The official said that department officials rejected prosecutor Todd Hinnen’s push to bring criminal charges against the New Hampshire Republican Party.

Weeks before the 2004 election, Hinnen’s supervisors directed him to ask a judge to halt action temporarily in a Democratic Party civil suit against the GOP so that it wouldn’t hurt the investigation, although Hinnen had expressed no concerns that it would, the official said.

Excellent.

Bad as that looks, there’s a legitimate conundrum: How to handle election-related charges on the eve of an election? I appreciate not wanting to drop last-minute indictment bombshells, which could influence an election even though the underlying facts don’t ultimately support conviction. Ignoring that reality could lead to sham indictments of opposition party members.

In this case, the underlying facts seemed pretty clear. But considering that Tobin’s conviction was overturned on appeal this year and he now awaits a retrial, perhaps some caution was called for — even though the verdict was overturned on a technicality, not because the court thinks Tobin didn’t do anything wrong.

It’d be tempting to adopt one of two objective positions: prosecute without regard to the calendar, or don’t file politically-related indictments within 30 days of an election. Either would remove the second-guessing about motive that this case engenders; but both have their flaws — either the risk of politically-motivated indictments, or the risk of justice delayed and voters kept from having relevant information.

There are no real good answers here. Only the observation that when someone on your team screws up, it’s probably better to err on the side of prosecuting too early than it is to delay and risk allegations of a cover-up.

Justice Department, Tobin, politics, midtopia

Original post by Sean Aqui

You may recall that in January, we discovered that the White House’s penchant for secrecy had reached such an extreme that they had classified the White House visitor logs, elevating West Wing visits to the level of state secrets.

At the time, I hoped that Bush would be forced to retract the move. Today, I get my wish.

White House visitor logs are public documents, a federal judge ruled Monday, rejecting a legal strategy that the Bush administration had hoped would get around public records laws and let them keep their guests a secret.

The administration, true to form, is expected to appeal the ruling. In addition, they went venue shopping:

The Bush administration had sought to have the case moved to another judge by consolidating it with a similar lawsuit before U.S. District Judge Rosemary Collyer, an appointee of President Bush.

Lamberth, who served in the Justice Department before President Reagan put him on the federal bench, has roiled Democratic and Republican administrations alike with rulings rejecting government secrecy claims.

I’m happy to report, however, that that move failed:

On Monday, Collyer and Lamberth agreed to consolidate the two Abramoff-related cases before Lamberth, even though Collyer, in accordance with long-standing courthouse practice, would have dealt with both because the case she was hearing was the older of the two.

I suspect Collyer didn’t want the hassle of ruling on a case involving the man who appointed her.

In any case, the principle of open records has been preserved for now. We’ll see if the administration decides to push it further up the ladder. They may decide to give it a try just to string the case out until Bush’s presidency ends, after which interest in Bush’s visitor list will shrink significantly. That’s obnoxious, but it’s their right. My main concern is that the openness be preserved in the end, so that future inhabitants can’t pull the same shenanigans.

White House, secrecy, politics, midtopia

Original post by Sean Aqui

New Jersey Gov. Jon Corzine signed a law, passed last week by the legislature, abolishing the death penalty in that state.

I have no problem with the death penalty in principle, as long as its use is restricted to very clear, very extreme circumstances. Timothy McVeigh, for instance, was a perfect candidate for it. As are serial killers and the like.

My problems with it are entirely practical. First, it is applied to far too wide a spectrum of crimes. Second, it’s irreversible. Throw a guy in prison for life, and if he turns out to be innocent, you can release him. Execute a guy, and if he turns out to be innocent, all you can do is apologize to the family.

Neither of those problems would be fatal if it weren′t for the third problem: the fact that innocent people are sentenced to die far too often. Our judicial system is fallible; it seems silly to rely on a fallible system to determine whether someone lives or dies.

Corzine invoked a moral opposition to the death penalty:

“This is a day of progress for us and for the millions of people across our nation and around the globe who reject the death penalty as a moral or practical response to the grievous, even heinous, crime of murder,” Corzine said.

But New Jersey’s decision was mostly decided on practical grounds. From the legislative report accompanying the bill:

New Jersey has spent at least a quarter billion dollars ($253.3 million) on its death penalty system since the state reinstated capital punishment in 1982. Since that time there have been 197 capital trials and 60 death penalty convictions in the state of which 50 were reversed. There have been no executions, and currently 10 men are housed on New Jersey’s death row.

In 25 years the state has spent $250 million, and all it has to show for it is 10 men on Death Row. But it hasn’t managed to actually execute anyone since 1963.

Death-penalty proponents will say that the problem is the lengthy appeals process, which makes cases both expensive and ensures that it can take decades to execute someone. They have a point — but then the argument goes back to problem #3: the fallibility of the justice system. Unless you′re willing to execute a few innocent people along with the guilty, death cases will always be expensive and drawn out. Complaining that it is so is tantamount to complaining about making sure someone is really, truly guilty before offing them.

So, good for New Jersey. I predict that this move will have exactly zero effect on the state’s crime rate. And while some evil people will live instead of die, they will do so in the confines of a brutal prison system from which they will never leave. That hardly strikes me as coddling.

Corzine, death penalty, New Jersey, politics, midtopia

Original post by Sean Aqui

President Bush declares “we don′t torture.” But that’s only true if you accept his definition of the term — which apparently doesn’t include several techniques that most other people consider torture. Dan Froomkin writes:

The bill would require U.S. intelligence agencies to follow interrogation rules adopted by the armed forces last year….

Those rules explicitly prohibit “forcing detainees to be naked, perform sexual acts, or pose in a sexual manner; placing hoods or sacks over detainees’ heads or duct tape over their eyes; beating, shocking, or burning detainees; threatening them with military dogs; exposing them to extreme heat or cold; conducting mock executions; depriving them of food, water, or medical care; and waterboarding.”

Okay, I’ll side with Bush on the forcing to be naked and sexual posing. That’s humiliating, and shouldn’t be allowed, but it’s not torture.

But the rest?

Bush relies on the sophistry of “not telling our enemies what methods we use” as his excuse for opposing such clear bills. But that makes little sense. Yes, you don’t publish a manual of interrogation methods. But if you can’t label a given technique torture, then you can’t meaningfully apply a law that outlaws torture — and thus any claims that “we don’t torture” are meaningless and unenforceable.

Froomkin also covers the contempt of Congress citations issued to Karl Rove and Josh Bolten for refusing to turn over documents related to the U.S. attorney firings. Interestingly, Republican senators Arlen Specter and Charles Grassley voted in favor of the citations — deflating to some extent accusation that the charges are purely politically motivated.

For its part, the White House repeated its meaningless offer to let Rove and Bolten be interviewed without oaths or transcripts. And it vowed that the Justice Department would not enforce the contempt citations, preventing the issue — which, questions of right or wrong aside, boils down to a separation-of-powers spat — from being heard in the courts.

As Froomkin writes:

The White House position, of course, exposes an amazing conundrum: That the same Justice Department whose politicization is being investigated is also in a position to hand out get-out-of-testifying-free cards.

This may be within the executive’s power, but it’s not right. Both sides should agree to have the matter reviewed by the judiciary, which can rule on whether Congress has the power of oversight in this matter. If so, the documents must be turned over; if not, they don’t.

But the scorched earth stonewalling by the White House serves no legitimate purpose.

torture, Bolten, Rove, politics, midtopia

Original post by Sean Aqui

We knew this would happen, but for the record:

The D.C. judge who sued his dry cleaners for $54 million over a pair of pants may want to begin looking for a new job.

A city commission has voted to formally notify Administrative Law Judge Roy Pearson that he may not be reappointed to the bench, according to a government source.

Pearson has 15 days to file a rebuttal, and can argue his case in person come September. His timing couldn’t have been worse: his introductory two-year term expires this year, and he has been lobbying for appointment to a full 10-year term.

Oh, well. I’ll save my sympathy for those who deserve it, like the dry cleaners he tormented for two years.

Pearson, politics, midtopia

Original post by Sean Aqui

Dahlia’s mad.

This past Sunday, a heap of Democrats voted to rush through changes to the 1978 Foreign Intelligence Surveillance Act, the law that governs electronic surveillance of anyone in this country. The new law expands the authority of the attorney general to approve the monitoring of phone calls and e-mails to suspected overseas terrorists from unknowing American citizens. Make no mistake about it. The vote to update FISA rewarded the AG for years of missteps and misstatements by giving him expanded authority to enforce the president’s alarming constitutional vision. Sans oversight. Sans judicial approval.

Strong stuff. But it seems highly misdirected to me. All in all I’m unpersuaded by all the sound-and-fury about the revised eavesdropping bill.

I consider myself a civil liberties fanatic, and have been harshly critical of aspects of the NSA program. I′m all for listening in on bad guys, but a warrant should be required when “U.S. persons” (U.S. citizens or resident aliens on American soil) are the target or can reasonably be expected to be overheard — in short, the existing FISA standard. This basically boils down to a simple rule: people overseas can be monitored freely, without warrants. People located on American soil can only be monitored after obtaining a warrant (with certain exceptions designed to allow warrantless monitoring of foreign spies).

(Being a practical sort of civil libertarian, I’m actually willing to go one step beyond FISA, and not care if a U.S. person is overheard during an eavesdropping effort aimed at an overseas target. If an Al Qaeda operative in Pakistan takes a call from someone in Detroit, there′s no good reason to ignore that call — though if the government wants to target the Detroit end, it needs to get a warrant.)

So why do I not share Dahlia’s outrage? Because the bill in question was a narrowly focused and badly needed update of the FISA law. The facts at issue are these: A large percentage of foreign communications pass through data switches in the United States. Technically that meant the government needed to get a warrant to listen in on those calls, even if both ends of the conversation were in foreign countries, because the tapping was taking place on American soil.

While consistent with the letter of the FISA law, this interpretation clearly violated the spirit of it, to no good purpose. Which is why hardly anybody disagrees with the fundamental point: the law needed to be updated to clarify that such purely foreign communications can be monitored without warrants.

All the huffing and puffing is over reporting requirements and the standards for review of wiretapping decisions. While legitimate issues, they hardly constitute the total Democratic capitulation — or for that matter, hypocritical about-face — that Dahlia describes. The bill is still narrowly focused to address a legitimate problem, and still contains specific prohibitions against domestic spying. It lacks “judicial approval” for a very simple reason: monitoring foreign communications has never required judicial approval.

I haven’t read the bill in full yet, so there might well be other technical flaws in it. But the broad outline is pretty solid. This is the sort of common-sense legislation one would hope for in such an instance: one that takes civil liberties seriously, but doesn’t needlessly hamper the data collection that is so useful to our security.

civil liberties, FISA, NSA, politics, midtopia

Original post by Sean Aqui

(Editor’s note: This is the post I made over at Stubborn Facts yesterday, edited slightly to remove confusing references to SF).

I’d like to examine two situations that explore the boundary between “decent and fair” and “legally actionable.”

The first will be a familiar one to most of you: the legal rights denied to gay couples by virtue of their inability to marry. The specific case comes to us from Indiana, via Holly over at the Moderate Voice.

Brett Conrad spent more than half his life as Patrick Atkins’ partner. For 25 years, the men shared bank accounts, apartments and eventually a home in Fishers.

But when Atkins, 47, fell seriously ill in 2005, Conrad faced what many gay Hoosiers consider a travesty: no law guaranteeing them the same rights as married couples to participate in care decisions for their ill partners.

Conrad, 47, spent much of the past two years trying to win guardianship of Atkins from Atkins’ parents, Thomas and Jeanne of Carmel. Jeanne Atkins is quoted in court documents as saying she believes homosexuality is a sin and that she disapproves of the men’s relationship. The parents have barred Conrad from visiting their now-disabled son in their home where he lives.

Had they been able to marry, of course, there would have been no question about Conrad’s rights to visitation, inheritance and ability to make medical decisions for his partner.

On the other hand, as the story points out, the men could have established those same rights by (for instance) granting each other power of attorney or naming each other their health-care representative.

The main difference is that the rights that accompany marriage are automatic, free and generally legally unassailable. The legal equivalents for nonmarried couples can be costly and subject to challenge in court — and the rules can differ state by state, making travel a somewhat more fraught experience, as another couple relates later in the story:

For Kim Allman and Leisa Waggoner, disapproving families aren’t the only threat to the layers of contracts in place to protect their assets, health and two children.

Waggoner, who adopted Allman’s children, is painfully aware that when the family travels to Oklahoma to visit Allman’s brother, state law there explicitly forbids her adoptive status.

“That would mean that if something happened to Kim (in Oklahoma), I could lose the kids,” Waggoner said. “I’m scared.”

Such cases are sympathetic, and a big reason why I think gay marriage — or at least its legal equivalent, bestowed in a similarly automatic, free and unassailable manner — should be legalized as a matter of simple human fairness.

But — and this is the key point as far as this post goes — in large measure that legalization has not yet happened. So however much I might sympathize with such couples, they do not yet have a legal case. If they sue in such situations they will likely lose, because the law has not established a foundation on which they can act. Their cases may prompt the creation of such a foundation, but that foundation doesn’t yet exist.

Keep that in mind as I describe the second situation, outlined in a New York Times Magazine piece from a couple of weeks ago: the rising tide of workplace litigation over workers who want to take more time to care for their families without losing their jobs. It’s well worth going behind the NYT firewall to read.

Some cases are relatively simple, like that of Kevin Knussman, a Maryland state trooper who sought leave during his wife’s difficult pregnancy and again after the baby was born — in both cases, leave that was explicitly allowed under the law. He was denied, he sued, and he won, because the legal foundation had been established.

But then there’s the case of Lucia Kanter, who sought a reduced work schedule or a leave of absence in order to help care for her autistic son. She was turned down, and then she was fired — in part, it seems, because of concerns that she couldn’t handle the workload because of her son’s problems.

She’s a sympathetic figure: a mother trying to take care of her child. And it’s easy to view her firing as the act of a callous and uncaring employer.

But there’s a difference between “fair” and “legally actionable.” Being a jerk is not a crime, and the employer has some legitimate concerns of its own. We all might agree, for instance, that the decent thing would have been for the employer to cut Kanter some slack and accommodate her needs. But should the employer be forced to do so through the law? Accommodation, after all, is not without cost to the employer. How much responsibility does a business bear for the personal travails of its employees?

To quote from one critic of the trend, Zachary Fasman (a partner in a New York law firm):

“I’m not against work-life balance — who is? But the organization of the work force has always been left, to a large extent, to the discretion of the employer. So long as it doesn’t discriminate, where a business draws the line on these things depends on the nature of the business. You can’t rewrite the rules of the American workplace unless Congress does it.”

Fasman notes that an overemphasis on the right to accomodation could rob businesses of such basic practices as the right to require overtime or set work schedules, which could make it difficult or even impossible to properly operate the business.

He’s a bit hyperbolic, of course, but his main point is correct. There are a lot of things that would be nice to do; but we should be careful about what people and businesses are legally required to do.

The last line of his quote, by the way, gets at the root of the problem. The increasing lawsuits are a symptom, indicating that workplace law and practice are out of step with the realities of modern living — realities that have changed what people consider discrimination.

The market provides part of the solution, as enlightened employers change their practices in order to lure and keep employees. But not all employers are enlightened.

The legal system provides another partial remedy, applying updated interpretations to existing law. But such “fixes” tend to be patchwork and often increase murkiness rather than clarity.

The real fix is for Congress to establish clear, updated rules that spell out what sort of accommodation is required and what is not. That’s a political process in which both employers and workers can have their say, not a legal process in which a sympathetic plaintiff can produce a result with unintendedly broad consequences.

law, workplace, politics, midtopia

Original post by Sean Aqui

A couple of interesting court rulings on the extent of government power.

CONGRESS OFF-LIMITS TO FBI
A federal appeals court has ruled that the FBI’s raid on the legislative office of Rep. William Jefferson violated the Constitution, by allowing the executive branch to interfere with legislative business — apparently because legislative documents were among those confiscated. It ordered the FBI to return those documents — but not other, nonlegislative records.

That leaves unclear whether the FBI can use the remaining records in its case against Jefferson, or whether the appeals court has carved out a zone of criminal immunity inside the Capitol. Apparently that decision will be left up to the trial judge — subject to appeal, of course.

At the time I thought that the FBI raid was legal, despite bipartisan Congressional objections, because the raid was narrowly focused and based around a properly grounded search warrant. And it seemed silly to establish a legal situation where a Congressman could safeguard incriminating documents simply by keeping them in his legislative office.

But that, apparently, is exactly what the court has established. While I recognize that Congress needs to be protected from executive-branch coercion, surely the Founders didn’t envision an application that was so transparently stupid on a practical level. Nobody is above the law, not even Congressmen hiding out on Capitol Hill. This ruling gives Congress legal protections that not even the President has.

Update: The ever-dependable crew over at Stubborn Facts is assembling a legally informed view of the ruling. Here’s the full text (pdf) of the ruling itself.

COURT RULING PROMPTS FISA REVISIONS
The Washington Post is reporting that earlier this year a FISA court judge ruled that the NSA cannot snoop on communications routing stations in the United States, even when both the sender and recipient are overseas.

This is a pretty big deal. FISA allows warrantless eavesdropping on foreign communications, but pretty much prevents it domestically. But thanks to the nature of the global telecommunications system — and the evolution of the Internet — a sizable chunk of foreign traffic is routed through servers in the United States. The FISA ruling placed a sizable chunk of that traffic off limits on a technicality.

While the ruling might have been technically correct — I don’t know — it certainly violates the spirit of the original FISA law, as well as common sense. If it’s legal to spy on the communications between two people, it shouldn’t matter if that communication happens to be routed through American soil. The criteria should be based on the people being targeted, not the technical details of how they’re communicating.

So Democrats are — and should be — scrambling to update the law so that such eavesdropping is legal again. And while in earlier years — and a Republican majority — Bush simply ignored laws he didn’t like, now he is going about things the proper way, pushing Congress to make specific revisions to the law — revisions that are much narrower than the sweeping, retroactive approval he sought from the previous Congress.

Of such small steps is respect for the rule of law made.

civil liberties, William Jefferson, eavesdropping, NSA, politics, midtopia

Original post by Sean Aqui

The White House has sent Congress a letter that apparently backs up Alberto Gonzales’ contention that when he said there was “no serious dispute” about NSA eavesdropping, he may have been technically correct — the dispute was, as I discussed yesterday, over the NSA’s data-mining program.

Also, thanks to PatHMV for pointing out the transcript (pdf) of James Comey’s testimony before Congress, in which Comey repeatedly refuses to identify the program that prompted a nighttime visit to John Ashcroft’s hospital room. That means that in order to believe Gonzales you don’t have to call Comey a liar, and vice versa, restoring the possibility that they’re both telling the truth. If that bears out then it will end this particular sideshow to the prosecutor scandal, returning attention to the main question of who fired the prosecutors, and why.

Meanwhile, a few Democratic hotheads in the House, led by Rep. Jay Inslee of Washington, want introduce a resolution calling for an impeachment investigation of Gonzales.

Even allowing for the fact that the resolution calls for an investigation, not impeachment itself, such a call is breathtakingly premature, and it has drawn scant support even among Democrats. Most importantly, there’s no indication that the resolution, once submitted, would ever reemerge from committee. So chalk it up as simply one more piece of evidence pointing to Gonzales lack of support outside the Oval Office — though Dick Cheney thinks he’s doing a good job, too.

Gonzales, politics, midtopia

Original post by Sean Aqui

The New York Times (alert, “liberal media” claimants) has a go at absolving Alberto Gonzales of lying to Congress.

The question, you may recall (primer here), involves whether Gonzales lied to Congress about the amount of internal dissent over the NSA eavesdropping program. There were three possible answers:

1. Yes.

2. No, because being a misleading weasel he was referring to the later, modified version of the program rather than the earlier, controversial one.

3. No, because he was referring to a totally separate program.

Earlier stories suggested the answer was #2, but the Times story suggests that it’s #3, and that Gonzales was referring to the NSA data-mining program, not the warrantless eavesdropping program.

There’s some self-congratulation at work here, inasmuch as the Times first broke the story of the data-mining effort. But it’s a plausible explanation.

The only problem is, if the Times is right, why did James Comey — the man whose testimony set off this whole controversy — suggest that the whole thing was about the eavesdropping program, not the data-mining effort? Both of them can’t be right, can they?

They can — if we accept the premise that both Comey and Gonzales were punctilious about details to the point of silliness.

Take this scenario out for a spin:

The “eavesdropping program”, broadly defined, includes both data-mining and wiretapping.

When it came time to reauthorize it, the data-mining provision was far more controversial than the wiretapping provision.

So the confrontation at the hospital was mostly about the data-mining provision, but it was all part of the decision whether to reauthorize the overall eavesdropping program.

Thus Comey is right when he describes the confrontation in the context of the eavesdropping program. And Gonzales is right when he splits the program into parts in order to make a distinction between the publicly admitted wiretapping effort and the still-unadmitted data-mining effort.

But neither Comey nor Gonzales bothers to clarify their testimony — despite it being abundantly clear that their comments have caused confusion — because doing so would require admitting the existence of the data-mining effort.

That’s a pretty tortuous path of speculation and assumption in order to show that neither man lied. And it doesn’t explain why they couldn’t simply explain the distinction in private briefings. So to adopt this scenario, you must further believe that the Congressmembers have been so briefed, and are posing knowingly misleading and false questions to Gonzales in public simply to embarrass him.

Even if you believe that about Democrats, why would you believe it about the Republicans on the panel? And what would keep Gonzales from making a pointed rebuttal, along the lines of “I’ve explained all that in private, as you well know, Senator”? So that, too, seems unlikely.

All in all, it seems difficult to reconcile Gonzales’ and Comey’s testimony in a way that results in outcome #3. Might the Times story be correct? Yes. But if it is, then Comey either lied or misled. Of the two, though, Gonzales is less trustworthy and had more incentive to lie. So the answer seems more likely to be #2, with #1 as a possibility.

Update: Tully over at Stubborn Facts does, indeed, assume the worst about the members of Congress. He doesn′t address the inconsistencies with that theory, though.

NSA, Comey, Gonzales, politics, midtopia

Original post by Sean Aqui

New York Gov. Eliot Spitzer had an op-ed piece in Sunday’s New York Times, discussing — and apologizing for — his office’s misuse of state troopers in an attempt to dig dirt on Republican Senate majority leader Joseph Bruno.

He starts out by stating categorically that “what members of my administration did was wrong — no ifs, ands or buts.”

He then goes into a short summary of what happened, followed by his response: suspending one advisor and transferring another.

The piece represents an interesting strategy. In my earlier post I called this “Spitzer’s Plamegate” because of the similarities between the two cases. But there’s a key difference here.

In the Plame case, the Bush administration denied any impropriety at all, prompting investigations, a special prosecutor and a years-long scandal.

Spitzer, on the other hand, essentially admits to the charges against his administration. That more or less makes moot Bruno′s threats of investigations and hearings, because Spitzer has already pleaded guilty to what such an investigation might hope to prove: impropriety, not illegality.

Spitzer appears to hope that derailing those investigations will make the scandal blow over quickly and not linger on to impede his policy agenda — though there will be lingering problems thanks to his sour relationship with Bruno.

It’s worth a shot, but it’s probably a forlorn hope. Setting aside Bruno’s personal pique and the political hay to be made by dragging out this embarassing episode, state Senate Republicans will note that one unanswered question is “who knew what when” — in other words, was Spitzer part of the effort, or unaware as he claims?

That’s a legitimate question, though the apparent lack of any possible illegality puts a limit on how aggressively and intrusively the Senate can pursue it. If Spitzer really wants to kill this scandal, he’s going to have to give them an answer — with documentation, if possible. Otherwise he gives them a premise to continue to flog the issue for months.

Senate Republicans, for their part, need to avoid overreaching and accept a reasonable solution if one is offered. That’s not just simple fairness: Spitzer is a lot more popular than Bush, and an aggressively political investigation will backfire on them, especially now that Spitzer has donned a hairshirt over it.

Spitzer, New York, politics, midtopia

Original post by Sean Aqui

A man I like a lot — Democratic New York Gov. Eliot Spitzer — is in the middle of his own version of Plamegate, complete with accusations that he sought to discredit a political rival by misusing government resources, and Spitzer’s vow to claim a state version of executive privilege in the burgeoning confrontation with Republican state senators.

A scathing report issued on Monday by Attorney General Andrew M. Cuomo concluded that the governor’s staff had broken no laws but had misused the State Police to gather information about Joseph L. Bruno, the Senate majority leader, in an effort to plant a negative story about him.

Basically the governor’s staff had Bruno’s state police escorts document Bruno’s whereabouts when they accompanied him on “official″ trips, apparently hoping to show that he was engaging in personal travel or junkets on the taxpayer’s dime. The report specifically cleared Bruno (right) of that charge, saying each of his trips had at least some legitimate legislative business attached to it.

Cuomo, by the way, is another Democrat — the son of former New York Gov. Mario “Hamlet” Cuomo. And the report was endorsed by Spitzer’s Inspector General, Kristine Hamann.

Spitzer says he was unaware of the activity, and his response to it was a lesson in the proper way to handle such things:

The governor said he accepted the findings, saying his administration had “grossly mishandled” the situation.

“As governor, I am accountable for what goes on in the executive branch and I accept responsibility for the actions of my office,” he said at a press conference this morning, with many of his staff members looking on somber and staggered.

“I apologized to Senator Bruno and I did so personally this morning,” he added. “In addition, I apologized to the men and women of the State Police, and to acting Superintendent Preston Felton personally for allowing this esteemed institution to be drawn into this matter.”

“They should never have been put into this situation. Finally, I apologize to the people of the State of New York for having allowed this matter to have become a distraction from the vital work at hand.”

Darren Dopp, Mr. Spitzer’s communications director and one of his closest aides, was put on indefinite unpaid leave of at least 30 days. William Howard, the Assistant Secretary for Homeland Security, will be reassigned to a post outside the governor’s office.

All well and good, but two of Spitzer’s aides refused to cooperate with the Cuomo investigation, and Republicans in the state Senate — led by an incensed Bruno — are pushing an investigation to find out if Spitzer was, indeed, unaware of what his staff was up to. They’re talking about subpoenaing everyone, including Spitzer.

Spitzer, for his part, has vowed to resist any effort to compel his aides to testify.

Much as I like Spitzer, he’s in the wrong here. Legally he’s got the same legitimate point as Bush does on executive privilege, with similar strengths and weaknesses (although New York law has generally been hostile to executive privilege claims). But as in the Plame and prosecutor inquiries a legitimate question has been raised, and it deserves to be answered.

Spitzer can point to one difference: unlike with Plame and the prosecutors, Cuomo made a concrete determination that no laws were broken. That’s not enough to get off the hook, however. As in the prosecutor case this is less an investigation of illegality than an investigation of impropriety, which falls into the legislative branch’s oversight capacity. Spitzer should order his aides to talk. If doing so violates their Fifth Amendment rights, they should invoke the Fifth and let the Senate grant them immunity in exchange for their testimony.

Republicans, for their part, are overreaching, moving to subpoenas as a first resort and casting an overly broad net. Subpoenas should be narrowly tailored and a last resort, or else they risk giving Spitzer a legitimate executive privilege defense.

I’m disappointed in Spitzer, and hope he truly was uninvolved. I also hope this doesn′t derail his policy initiatives. But regardless of the political cost, Spitzer needs to come clean. Doing the right thing aside, if he doesn′t put this to rest quickly it will turn into a drawn-out battle with the legislature, which surely will derail his initiatives just as the Gonzales scandals have harmed Bush and the Justice Department.

Cuomo, Bruno, Spitzer, New York, politics, midtopia

Original post by Sean Aqui

Congress is rushing headlong into its confrontation with the executive branch.

The House Judiciary Committee has voted to issue contempt citations for Joshua Bolton and Harriet Miers. If the full House approves the citations — and it could be weeks before that occurs, thanks to Congress’ upcoming summer break — they will be referred to a U.S. attorney for possible prosecution. That will trigger a court battle when the president cites executive privilege as reason for the attorney to ignore the citations.

Although the committee vote was along party lines, that doesn’t mean Republicans weren’t up for a fight with Bush. James Sensenbrenner, the former chairman of the committee, said Congress instead should have filed a suit challenging Bush’s executive privilege claim.

The text (pdf) of the committee memo (all 70 pages of it) outlines not only the reasons for the citations but also the Democratic case for the investigation into the prosecutor firings.

According to the WaPo summary, it’s mostly a compilation of everything that has come up in this whole flap, as well as a lot of fingerpointing at Rove and a rebuttal of Bush’s most recent assertion that federal prosecutors cannot undermine an executive privilege claim.

Here are a few key excerpts from the report:

Although the Supreme Court has held that even a sitting president is not immune from subpoena or from participation in civil litigation, the White House and Ms. Miers nevertheless assert that a former White House Counsel, who currently occupies no position in the federal government, is absolutely immune from compulsion even to appear before [Congress]. The White House relies on the presidential communications executive privilege, even though the White House has specifically stated that the President did not receive advice on or participate in the … firings. [They] have also refused even to provide a log identifying the withheld documents and providing the basic facts necessary to support the claim of privilege, even though such logs are routinely required by the courts….

Further on, the memo lists what it deems improper interference in the activities of six of the fired prosecutors. And then it lists what it considers false or misleading statements by senior Justice officials, including Alberto Gonzales, Paul McNulty, Kyle Sampson, Mike Elston and others. Finally it mentions the improper political test applied to new career prosecutors by Monica Goodling.

That evidence, coupled with the failure of anyone in the administration to take responsibility for developing the list of attorneys to be fired, is Congress’ justification for further investigation. Bush’s response: “executive privilege.” To which Congress responds:

Even if executive privilege were properly asserted, the privilege is not absolute, but rather is subject to a “balancing of interests″ based on the needs of the President and the Congress. In the present case, where there is clear evidence of wrongdoing leading to the White House, where the information is important for considering possible legislative changes, where the Committee has sought to obtain the information elsewhere and has sought to obtain a reasonable accommodation, and where there is no overriding issue of national security, it is clear the Committee’s oversight and legislative interests should prevail.

It’s a powerfully stated case, although it overreaches a bit (such as the claim of “clear evidence of wrongdoing” and a too-forceful assertion of Karl Rove’s role in the firings).

The rest of the memo goes into great detail about who knew and did what, and when, along with supporting arguments and lots and lots of footnoted citations. The key questions:

If no one at the Justice Department identified [the attorneys] for firing, who did? If the reasons given to Congress and the public to support the firings are false, what were the real reasons? If the White House role was innocent and routine, why was a concerted effort made to hide it?

Put that way, doesn’t this sound like it has Dick “obsessive secrecy” Cheney’s fingerprints all over it?

Okay, let’s no go there.

Much of the memo stresses the argument that Congress has exhausted other sources of information and now needs White House documents in order to exercise its oversight function or properly consider potential legislation. This cames into stark play on page 32, when it addresses the president’s strongest defense: attorneys are political appointees that can be fired for any reason or no reason at all.

While U.S. Attorneys serve at the pleasure of the President, it is widely accepted that they should not be dismissed for improper reasons, such as to influence prosecutions or to retaliate for the exercise of prosecutorial judgment in a manner that was not beneficial to a particular political party. Based on the ongoing investigation, Congress may wish to consider some limitation on removal of U.S. Attorneys … in the middle of a presidential term.

Note the angle of attack. Yes, U.S. Attorneys are political appointees. But they’re supposed to be relatively independent, and the only reason they’re political appointees is because Congress allows it. Further, Congress sets the rules for such appointments. If the hiring or firing process is being abused, Congress needs to know so it can change the rules if necessary. Their appointee status and current law may shield the administration from criminal charges, but it does not protect the administration from oversight.

That strikes me as a pretty powerful argument.

I invite our resident Bush supporter to rebut the case, with one request: focus on materially significant matters, not minor quibbles such as those I’ve already outlined, like the as-yet-unproven assertion that the whole thing originated with Rove.

Gonzales, politics, midtopia

Original post by Sean Aqui

I didn’t get to watch even a part of Gonzales’ testimony on Capitol Hill today, but I gather I didn’t miss much. He still has no idea who decided to fire the U.S. attorneys in the agency he supposedly runs, and he still has problems making claims that turn out to be misleading.

For instance, he claimed that top Congressional leaders were fully briefed on the warrantless eavesdropping program and urged the administration to continue it. Five lawmakers who attended the briefing disputed his claim. One of them, Sen. Jay Rockefeller, said: “He once again is making something up to protect himself.” Another, former Sen. Tom Daschle, said “this appears to be another attempt to rewrite history.”

Senators, who gave Gonzales some deference during his last appearance, simply were not in a forgiving mood, with many of them telling him pointblank that he should resign.

“I do not find your testimony credible, candidly,” said Sen. Arlen Specter (R-Pa.), who became visibly angry at several points during his exchanges with Gonzales. “The committee’s going to review your testimony very carefully to see if your credibility has been breached to the point of being actionable.”

Chairman Patrick J. Leahy (D-Vt.) told Gonzales bluntly: “I don′t trust you.”

Specter also suggested that Gonzales might need to appoint a special prosecutor to get to the bottom of the prosecutor firings. The fact that a Republican would suggest such a thing is a sign of how deep the mistrust of Gonzales runs.

And in this exchange, Gonzales appears to admit he misled Congress.

“It’s hard to see anything but a pattern of intentionally misleading Congress again and again,” Sen. Russ Feingold, D-Wis., told Gonzales during the often-bitter Senate Judiciary Committee hearing. “Shouldn’t the attorney general of the United States meet a higher standard?”

“Obviously, there have been instances where I have not met that standard, and I′ve tried to correct that,” Gonzales answered.

Senators took turns raking him over the coals. Specter, again, had the most devastating things to say about Gonzales′ misleading 2006 testimony about the eavesdropping program.

Specter said that it was obvious that, as Gonzales initially confirmed last month, Comey was testifying about the Terrorist Surveillance Program — meaning that Gonzales was not only lying to the Senate in his 2006 testimony, but lying today about “other intelligence activities” to cover up the lie. His advice to Gonzales was “to review your testimony carefully″ and that the committee should see “if your credibility has been breached to the point of being actionable.”

Ouch.

If you follow the link immediately above, you’ll see that Gonzales maintains he told the truth back then, about there not being “significant” disagreement about the eavesdropping program “as confirmed” by the president. But that’s only because the disagreement preceded modifications that led to the “confirmed” version of the program.

In that May 2007 post, I concluded the testimony wasn’t particularly relevant, because he didn’t actually lie and it’s not that important whether there was disagreement or not. Further, he was already in so much hot water that it was hard for it to get any hotter. Turns out I might have been wrong: Congress doesn’t like to be misled for any reason, artfully worded or not. Many senators simply believe he lied, or at least deliberately misled, and are focusing much of their anger on that.

At the end of the day, the senators made it very plain that they have lost all confidence in Gonzales. The question now is whether that makes any difference. Answer: probably not. But it means the Justice Department will limp along for the rest of Bush’s term, with a discredited Attorney General who has lost nearly all of his senior staff to resignations and who is having difficulty finding replacements.

Most members of Gonzales’s senior staff have resigned or are on the way out. Several outside candidates turned down chances to be considered for the job of his deputy, and more than a half-dozen other top positions remain filled by temporary appointees. Some of the department’s key legislative priorities — including intelligence law revisions and anti-crime proposals — have also bogged down because of the fight with Democrats over the prosecutor firings.

And it’s only going to get worse.

Gonzales, politics, midtopia

Original post by Sean Aqui