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Just as I suspected

Just as I suspected -- and, to be honest, just as anyone with half a brain must have suspected -- the Texas Department of Public Safety's claim that federal regulations mandated its records destruction turns out to be laughably bogus.

As predicted, the law they're trying to hang this on is a rider that goes along with a certain kind of federal aid to state law enforcement. The regulation is intended to prevent law enforcement from compiling intelligence dossiers on people unless there is a "reasonable suspicion" that they are involved in criminal conduct.

The intent of such a regulation isn't hard to understand and seems quite well-reasoned. The federal government doesn't want to be subsidizing any state-level penny-ante J. Edgar Hoovers. But this, on it's face, seems altogether inapplicable to the current situation. And it's not just me saying so.

According to a late report in the Star-Telegram, a Stanford law professor agrees ...

Still, several legal scholars found trouble with the feds-made-us-do-it argument. William Gould, a law professor at Stanford University, said the code only applies to individuals engaging in criminal activity.

It says an agency shall "collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity ..."

In this case, the absconded Democrats did not break any laws, and they were not considered criminals, said Gould, who has expertise in both federal and state law.

"In order for the state laws to be overridden, there has to be relevance," Gould said. "I don't see that conflict here."

The very destruction of the records, says another law prof quoted in the Star-Telegram, may have been a violation of federal regulations that require the preservation of records. And the Austin American-Statesman adds that the same federal guidelines also require state law enforcement agencies to "make assurances that there will be no harassment or interference with any lawful political activities as part of the intelligence operation" -- a requirement which at least arguably might apply here.

More to the point is Texas state law, a point Gould makes oblique reference to in the passage quoted above.

The DPS seemed to be relying on a demonstrably inapplicable federal regulation to override a demonstrably applicable state law. Texas state law, according to an expert quoted in the Star-Telegram, mandates the retention at least of all correspondence related to an investigation for at least three years. And the DPS's destruction order specifically requires the destruction of "correspondence."

And there's one more thing. The very federal regulation the DPS says forced it to destroy the records of investigations of non-criminal conduct also explicitly forbids the investigation of non-criminal conduct.

Now, clearly, the ridiculousness is flying pretty fast and furious here. So let's take a moment to review. The DPS appears to have violated Texas state law by destroying the records. To justify this, they point to a federal regulation which a legal expert says is plainly inapplicable. And the very regulation they're trying to hang their hat on seems to bar the original conduct itself.

So how does the DPS argue it's way out of this? Well, you can't say they aren't creative. According to DPS spokesman Tom Vinger, it was a criminal investigation. So they were entitled to conduct it. But only for a while! When they discovered that the legislators were out of state and couldn't be arrested, then it stopped being a criminal investigation. As Vinger told the Austin American-Statesman, "That's when this (federal code) kicked in, because clearly we had records now that were of a noncriminal variety."

This stuff pretty much defies editorial humor since it's difficult to find an analogy more ridiculous and bamboozliferous than the actual argument they're making. Texas Governor Rick Perry disagrees. His spokesperson says he accepts the DPS's explanation.

However that may be, it's hard to see how the DPS -- and probably some politicians giving them orders -- haven't stepped in it pretty deep. Whether some of that stickiness reaches back to the puppeteers in DC is another matter.

So it turns out

So it turns out that the Texas Department of Public Safety -- the agency that tried to track down the runaway Dems on the order of Speaker Tom Craddick and even pulled in the Department of Homeland Security -- destroyed the records of the search because of their extreme civil liberties scrupulosity.

So says the DPS at least.

As the Fort Worth Star-Telegram reported yesterday, the day before the runaway Dems returned to Austin, a commander with the DPS sent out an email instructing troopers to destroy all documents and photographs connected with the search.

The explanation provided by the DPS is that this was required by federal civil liberties guidelines.

Or, as this new AP story puts it ...

The Texas public safety department said that it destroyed the records because federal regulations prohibit it from keeping intelligence information that is not part of a criminal case.
Now, I believe part of the issue here is that these were civil, not criminal, arrest warrants. The state constitution gives the Texas House Speaker the authority to have missing legislators arrested and forcibly brought to the chamber. But being absent isn't a crime, thus no criminal arrest warrants.

But let's set that aside for a moment. Does this regulation even exist? In each of the stories I've read this evening, the writer passes on that claim without any comment giving the reader a clue as to whether it has any validity.

Is there really a federal regulation stipulating that nothing that police agencies compile -- pictures, notes, phone logs, anything -- can be kept unless it pertains to a specific criminal investigation? I find it really hard to believe that such a sweeping regulation exists. Now, mind you, my question is not purely rhetorical. I have certainly asked such questions before, with great incredulity, only to find out that yes, believe it or not, the answer is 'yes.' It just doesn't sound true to me, though -- and I think the failure to mention any specific regulation and the, shall we say, diminishing credibility of the source makes me think so even more.

I can imagine that there may be rules against police departments setting up their own private intelligence agencies, and keeping dossiers on people who haven't committed crimes. But that seems like a far cry from what we're talking about here. This is just keeping some record of what took place. Is there usually such haste and punctiliousness about complying with this 'regulation'?

For the moment I'd say that what we have here is, at a minimum, an uncharacteristically rapid and total effort to safeguard the runaway Dems' civil liberties. But the first thing I'm curious to know is whether such a regulation -- applied in anything like the way we see here -- even exists. Or, is it something they just made up on the spot to explain what looks very much like an attempt to cover their tracks.

Tim Bergreen head of

Tim Bergreen, head of the new group Democrats for National Security, and Donna Brazile have an Op-Ed today in the Wall Street Journal on the Dems' defense gap. What catches my eye, and heartens me, is Brazile's name on that byline. I saw her speak at last Saturday's Social Democrats, USA conference on a very similar theme. Explaining the political and intellectual lineage of this group (the SDUSA) would take too many hundreds of words. (These are, simply as I can put it, the neo-cons who never quite became neo-cons.) In any case, I have an article coming out on the conference in a couple days. And I'll post a link when it hits the newsstands. But suffice it to say for now that the essence of the endeavor was an attempt to build a democratic left that is progressive at home and muscular, internationalist and Wilsonian abroad. It was an exciting event.

More on all this soon.

Did Majority Leader Tom

"Did Majority Leader Tom DeLay (R-Texas) try to get the Feds to hunt down the runaway Texas Democrats or not? It’s coming down to one man’s word against another’s. On one side you’ve got Tom DeLay, and on the other you’ve got … well, Tom DeLay."

That's the lede of my new column in The Hill which goes over some of Tom DeLay's, let's say, not altogether consistent statements about just how involved he may or may not have been in trying to get the Feds to arrest those Texas state legislators and haul them back to Austin to make a quorum call.

Yesterday Democrats in Washington were giving Tom Ridge a hard time for not agreeing to turn over the transcripts of the calls that the Texas Department of Public Safety made to the Department of Homeland Security to get them involved in the manhunt.

Now this morning, the Forth Worth Star-Telegram -- the paper that broke the original story of Homeland Security's involvement last week -- reports that "one day before Democrats ended their boycott of the Texas House last week, the Texas Department of Public Safety ordered the destruction of all records and photos gathered in the search for them."

Plenty of troops to

Plenty of troops to win the war, not nearly enough to win the peace. That storyline has been gaining ground for some time now. Much more on this soon. But for now, see this new article in the Washington Monthly to get the full run-down.

Oh Fred Fred Fred

Oh, Fred, Fred, Fred ... It starts with getting those calls returned from Dan Quayle's office and it leads to this.

Fred Barnes has a new piece out in the most recent Weekly Standard on the dust-up down in Texas. (I can't link because it's subscribers only.) He tells readers that Democrats have no legitimate complaint since: "There's a word for what Republicans want to do--gerrymandering. But of course that is quite normal. When Democrats controlled Texas, they regularly gerrymandered ..." The rest of Barnes' article is devoted to pushing the argument that Democrats -- shrieking in a wilderness of public disapprobation -- are devoted to "extreme measures that break sharply with the routine course of politics and governing ... order of the day."

Now there is one detail in this saga that Barnes somehow forgot to mention: mid-decade redistricting -- absent a voting rights lawsuit -- has been virtually unprecedented for the last century and entirely unprecedented since the mid-1950s, in Texas and every other state in the union. You might even call the bar on such gerrymanderly double-dipping part of the "routine course of politics and governing."

Fred, let's not give tendentiousness a bad name, okay?

Advisory sent out to

Advisory sent out to GOP Party-Line-Agitprop-Central: California Republicans pulled the quorum walkout stunt back in 1994. This from today's Orange County Register ...

The Republicans sensed doom, and to block the Assembly from having a quorum to do business, they scurried across L Street to the Hyatt, and hunkered down. Reporters stalked the hotel corridors, looking for lawmakers.

"Is there a session? Gee, I hadn't heard. First chance I get, I'll check on it," then-Assemblyman Ross Johnson, R-Irvine, told The California Journal.

Brown also sent the Assembly's sergeants at arms to hunt down the Republicans, but they never found them.

After less then a day, the Republicans left town, leaving only Democrats when the Assembly convened on Dec. 8, 1994. The speakership was left unresolved until January.

Back to the drawing board.

It now seems clear

It now seems clear, from all that we know, that the Department of Homeland Security was probably guilty of nothing more than being duped into getting involved in Texas House Speaker Tom Craddick's effort to track down and arrest the Democrats in the Texas House. Homeland Security's refusal to release the transcript of the call from the Texas state trooper which got Homeland into the act doesn't inspire a great deal of confidence. Nor does the fact that they're holding back the transcript so that the matter can be investigated by, to quote the Times, the "agency's acting inspector general, Clark Kent Ervin, a Houston Republican who is well known among some of the same state lawmakers in Texas who wanted the plane tracked down." (Tom DeLay's district is in the Houston suburbs.)

But let's drive down to the real issue here.

What the Speaker of the Texas state House of Representatives does is a matter for Texans to deal with. But what the House Majority Leader of the federal Congress does is a matter of national concern. And it seems quite clear that Tom DeLay had some role -- probably the leading role, but certainly some role -- in pushing for federal law enforcement officials to get involved in the manhunt. (In a run-down of the incident on CNN, Bill Schneider said "that Texas authorities had followed up on DeLay's suggestion and asked the feds to help round up lawmakers on the lam.") For a slew of different reasons, that should be investigated -- not least of which is that the fact that this stunt raises real questions about the man's balance, sense of propriety and, frankly, respect for constitutional government.

Who did he talk to at the Justice Department? DeLay's spokesman said DeLay spoke to someone at Justice. Who? What did he ask them? And what did they say? What role did he have in getting the leadership of the Texas state House to bring in the Feds in the first place?

Many of those who

Many of those who are defending -- professionally or otherwise -- the DeLay power-grab are arguing that courts simply should not be involved in drawing congressional maps, period. This raises a practical question since legislatures often get deadlocked and can't come up with a map -- and the election cycle won't wait. But, more to the point, it's beside the point. We could make any number of innovations in our political system: strike courts from redistricting, outlaw gerrymandering, gerrymander every two years, whatever. The point is that we have an established system and DeLay & Co are changing it in the interest of immediate partisan, even personal advantage. And in any case, the courts-out-of-elections mantle hangs rather heavy on a crew whose president owes his office to a judicial ruling.

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