TPM News

Yesterday, we noted that the jury had hung in the case of forensic pathologist Dr. Cyril Wecht, a prominent Pennsylvania Democrat and former coroner of Allegheny County, and that the jurors seemed inclined towards acquittal. Wecht's attorneys, among them former attorney general Dick Thornburgh, have charged that U.S. Attorney Mary Beth Buchanan pursued the case out of political motivations.

Today, the jury foreman, speaking to The Pittsburgh Post-Gazette, was even more explicit: "[A]s the case went on my thoughts were this was being politically driven."

During a Senate Appropriations Committee hearing this morning, Sen. Dianne Feinstein (D-CA) questioned Attorney General Michael Mukasey about that October, 2001 Justice Department memo in which John Yoo found that the Fourth Amendment, which protects citizens against "unreasonable searches and seizures," had "no application to domestic military operations."

Has that memo been withdrawn? If not, was it still in force? Feinstein wanted to know.

She found it difficult to pry an answer loose. "I can't speak to the October, 2001 memo," Mukasey said when she asked whether it had been withdrawn. He said that Yoo's later March, 2003 memo -- which broadly authorized the use of torture by military interrogators on unlawful combatants -- had been withdrawn, but refused to discuss that October, 2001 memo.

Here's video of the exchange:



That memo remains classified, and Mukasey said that working to declassify portions of or entire secret Justice Department legal memos by Yoo and others was a "priority" of his, but he refused to supply a timeline for when he might make those determinations. He was very mindful of Congress' "legitimate oversight role," he said.

"This isn't a question of oversight," Feinstein said. "I'm just asking you, 'Is this memo in force that the Fourth Amendment does not apply?"

"The principle that the Fourth Amendment does not apply in wartime is not in force," Mukasey replied.

"That's not the principle I asked you about," Feinstein countered. The memo referred to domestic military operations, she said.

"There are no domestic military operations being carried out today," Mukasey replied.

"I'm asking you a question. That's not the answer."

"I'm unaware of any domestic military operations being carried out today," he repeated.

"You're not answering my question," she said.

Finally, Mukasey responded, "The Fourth Amendment applies across the board whether we're in wartime or peacetime. It applies across the board."

When Feinstein pronounced herself satisfied, Mukasey said, "with due respect, I don't think there's anything really new about that answer." He went on to imply that Yoo's discussion of the applicability of the Fourth Amendment had not been a crucial aspect of that memo. "The discussion of which that was a part... means the inaptness... the suggested inapplicability of the Fourth Amendment as an alternative basis for finding that searches discussed there would be reasonable."

"But Mr. Yoo's contention was that the Fourth Amendment did not apply and that the President was free to order domestic military operations," Feinstein replied.

"Without regard to the Fourth Amendment?"

"Yes."

"My understanding is that is not operative."

The Washington Post reported last week that the Justice Department "repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on 'the particular context and circumstances of the search.'"

The ACLU has petitioned the Inter-American Commission on Human Rights on behalf of Khaled el-Masri, a German citizen who alleges that he was abducted in December 2003 and then tortured by the CIA. El-Masari was denied his day in a U.S. court when the Bush administration successfully employed a state secrets defense. (AP)

A Saudi detainee at Guantanamo Bay who has denounced the U.S. government's case against him as a "sham," had himself removed from his military tribunal as a protest. Ahmed Mohammed Ahmed Haza Al-Darbi, whose brother-in-law was one of the September 11 hijackers, stated that "history will record these trials as a scandal," Al-Darbi said. "I advise you, the judge, and everyone else who is present to not continue with this play, this sham." Al-Dabri, who is yet to be classified as an enemy combatant, has also claimed that he was beaten in custody and left hanging from handcuffs while he was detained and interrogated at Bagram air base. (Los Angeles Times)

A senior official of the Centers for Disease Control and Prevention testified to Congress that climate change "is likely to have a "significant impact on health" and that the "CDC considers climate change a serious public health concern." Though this testimony relates directly to the EPA's regulatory policies on CO2 emissions, the official refused to comment directly on whether the Environmental Protection Agency should regulate CO2 under the federal Clean Air Act. (AP)

Read More →

After all that talk, finally a decision. Behold, America, your new (sort of) way forward in Iraq:

President Bush plans to announce today that he will cut Army combat tours in Iraq from 15 months to 12 months, returning rotations to where they were before last year's troop buildup in an effort to alleviate the tremendous stress on the military, administration officials said.

The move is in response to intense pressure from service commanders who have expressed anxiety about the toll of long deployments on their soldiers and, more broadly, about the U.S. military's ability to confront unanticipated threats. Bush will announce the decision during a national speech, in which aides said he will also embrace Army Gen. David H. Petraeus's plan to indefinitely suspend a drawdown of forces.

The twin decisions may set the course for U.S. policy in Iraq through the fall and perhaps for the rest of Bush's presidency....

The bottom line seems to be that after pulling out the extra forces Bush sent last year, the United States will keep about 140,000 troops in Iraq at least through the November presidential election....

But Bush's decision will affect only those troops sent to Iraq as of Aug. 1 or later, meaning that those already there still have to complete 15-month tours. Bobby Muller, president of Veterans for America, an advocacy group, said that nearly half of the Army's active-duty frontline units are currently deployed for 15 months, and that Bush's decision leaves them out.


And how will you know whether things are going well, well enough to expect any troop withdrawals before the end of the year? As Gen. David Petraeus made abundantly clear this week, it's not clear. It's a lack of clarity shared at the highest levels of the administration:

A senior administration official, speaking on condition of anonymity, said the administration had abandoned the benchmarks [Congress set for Iraq] as a strict standard of progress because establishing a secure Iraq would also depend on factors other than political and military progress.

Over two days of testimony, General Petraeus repeatedly was asked to explain the conditions that would allow further withdrawals, but he answered that they were not based on some easily defined measurements.

Asked for elaboration, the senior administration official said, "It's a very hard concept to explain publicly because it doesn't feature a sort of setting of the dial. It features what we call a running assessment."


Bush is set to speak at 11:30 this morning.

Of all the innumerable times that lawmakers asked Gen. David Petraeus over the last two days for some indication of what success in Iraq is, this answer seemed as clear as any of them. At least in this answer, there was no reference to success being "conditions-based" or any mention of "battlefield geometry." Rep. Robert Wexler (D-FL) asked "Please tell us, general, what is winning?"



"Ambassador Crocker and I, for what it's worth, have typically seen ourselves as minimalists. We're not after the Holy Grail in Iraq, we're not after Jeffersonian democracy," Petraeus responded. "We're after conditions that would allow our soldiers to disengage."

For those who've been watching the Iraq debate, this sort of "minimalism" is nothing new. After all, administration officials have been saying since the start that a "Jeffersonian democracy" isn't likely to take root in Iraq (even Paul Bremer said "We're not going to have a Jeffersonian democracy here" in 2003). But with Iraq, there never can be enough minimalism.

Transcript of the full exchange is below.

Read More →

The House Judiciary Committee has concentrated on three cases as instances of political prosecutions pursued by President Bush's Justice Department.

Yesterday, one of those three, the trial of Dr. Cyril Wecht, a celebrity forensic pathologist, prominent Pennsylvania Democrat, and former coroner of Allegheny County, ended in a hung jury. After fifty hours of deliberations, the jury was hung and obviously going to stay hung. Prosecutors from the U.S. Attorney's Office in Pittsburgh leaped at the chance for a re-trial, which has been scheduled for May.

If the views of a juror is any indication, conviction will be difficult. Rev. Stanley Albright, a juror who was excused last week when he became ill, told the AP, "I couldn't find the crime."

Albright was the only Wecht juror to be interviewed on the record by the media, because Judge Arthur Schwab asked all jurors not to talk to the media or attorneys from either side after he declared the mistrial. Schwab had the jury on the case seated anonymously and then ensured that the jury left the courtroom before the media or the attorneys could speak to them. It was a series of moves that Wecht's lawyers, who've repeatedly tried to get Schwab removed from the case, say is unprecedented: "Who's ever heard of anything like this?" A handful of jurors spoke anonymously to The Pittsburgh-Tribune Review, one saying that "a majority of the jury thought he was innocent."

Dick Thornburgh, who served as attorney general under Pres. George H. W. Bush, testified to the House Judiciary Committee in October that the case brought by U.S. Attorney Mary Buchanan was a raft of "nickel and dime transgressions" trumped up into an indictment.

The government's case relied on charges that Wecht had used resources from his coroner office for his private practice. Most of the counts of wire fraud against Wecht related to his use of county fax machines ($3.96 worth, his lawyers say) for his personal business. He was also charged with improperly billing the county for gasoline and mileage costs -- for a total of $1,778.55, his lawyers say.

Rather than leading to a sprawling two-year federal prosecution, Thornburgh said, Wecht's transgressions should have been referred to the state ethics commission. So why was the case brought? Wecht is a high-profile Democrat, "an ideal target for a Republican U .S. Attorney trying to curry favor with a Department which demonstrated that if you play by its rules, you will advance," Thornburgh said, also noting that Buchanan had prosecuted "not one" Republican, while prosecuting Democrats in a "highly visible manner."

Yesterday, Thornburgh said that he'd appeal personally to Attorney General Michael Mukasey to bring an end to the case: "He knows what our grievances are. I think we can make a persuasive case that this prosecution should be dismissed forthwith." Thornburgh earlier had worked with then-Deputy Attorney General Paul McNulty to ensure that Wecht was allowed to turn himself in: Buchanan, he's said, wanted to subject Wecht to a "perp walk."

The House Judiciary Committee has been consistently rebuffed by the Justice Department in its requests for documents from the case -- along with documents from the Georgia Thompson case in Wisconsin, which was dramatically overturned on appeal, and former Alabama Gov. Don Siegelman's case, which awaits appeal, Siegelman just having been released from prison.

Update/Correction: This post originally stated that the judge on the case had ordered jurors not to speak to the media or Wecht's attorneys. In fact, the judge asked, but did not order, the jurors not to speak to all attorneys on the case.

As we've often observed before, EPA chief Stephen Johnson has a remarkable capacity for withholding information. And now he's make a strong bid to making the EPA the most subpoenaed Bush administration agency.

Today, House oversight committee Chair Henry Waxman (D-CA) issued his third subpoena to the EPA this year. Waxman's committee has been investigating Johnson's decision, made against the unanimous recommendation of his legal and technical staff, to block California's attempt to institute tough greenhouse gas limits for cars and trucks.

Waxman says that his staff "has found evidence that EPA officials met with the White House" about the rule, but that "EPA has refused to disclose the substance and extent of its communications with the White House." Waxman's subpoena seeks about 100 EPA documents involving the White House.

Johnson has thus far stonewalled Congressional attempts to get more information about those White House meetings, telling Sen. Sheldon Whitehouse (D-RI) that he couldn't disclose anything about them because "I value the ability to have candid discussions that are part of good government."

From The Hill:

FBI wiretaps picked up the voices of several members of Congress in their conversations with Rep. Rick Renzi (R-Ariz.).

The House General Counsel’s office recently notified those members after the Department of Justice (DOJ) told the House lawyers that the lawmakers’ voices had been intercepted during the FBI’s investigation of Renzi’s land deal, according to three GOP sources.

It is unclear which members were taped and whether Renzi’s home, office, and/or cell phones were tapped. And there is no indication of alleged wrongdoing by any member other than Renzi; the Renzi indictment does not mention or allude to other legislators and the use of wiretaps is not mentioned in it.


Nevertheless, as the prosecution of Rep. William Jefferson (D-LA) has made apparent, any criminal matter involving lawmakers is thorny. So any use of the wiretaps at the trial is likely to be the subject of a protracted legal battle involving Constitutional issues.

It's partly because of such issues, no doubt, that Renzi's trial has been pushed back from its original scheduled start this month until October.

Attorneys for Ali Saleh Kahlah al-Marri, a detainee being held as "enemy combatant," argued to an appellate court yesterday that a memo that the Justice Department declassified and released only last week proves that their client's detention is illegal. According to the attorneys, the memo "makes plain as day that al-Marri was declared an enemy combatant based on discredited legal opinions and for the illegal purpose of abusive interrogations." (Washington Post)

The Washington Post has published a guide to the 11 multicolored charts that General Petraeus presented to Congress yesterday because "a close look at the facts indicates that the data often lacked context or were misleading." In the case of Petraeus' first chart, the paper notes that "the figures for 2009 appear to be based on guesswork, and Petraeus's office declined to provide supporting information." (Washington Post)

Jury deliberations have resumed in the trial of the six men accused of conspiring with al Qaeda to destroy the Sears Tower in Chicago. The Bush administration has claimed that this case is an important accomplishment in the war on terror but the first trial ended in a deadlocked jury and Neal Sonnett, past president of the National Association of Criminal Defense Lawyers, believes the case is "more hype than evidence." (ABC's "The Blotter")

Read More →

In the annals of public service, it was not a high point. Last Halloween, at a fundraising event for charitable organizations held at the Immigration and Customs Enforcement Headquarters Building, they held a costume contest. And the winner was a white lawyer dressed in dreadlocks and prison stripes.

When it came time to present himself to the judges, amng them Julie Myers, the chief of ICE, he said "I’m a Jamaican detainee from Krome — obviously, I’ve escaped.” Krome is an ICE Detention facility in Miami that is mostly filled with Jamaican, Haitian and Latin American detainees. The judges, Myers among them, laughed, according to a report (pdf) issued yesterday by the House Committee on Homeland Security. Later, Myers posed with the winner:



At some point later that day, Myers apparently realized that others might not appreciate the fun of the costume and ordered that the pictures be destroyed. In a letter to Congress in November of 2007 (after news of the costume broke), Myers explained that she "was not aware at the time of the contest that the employee disguised his skin color," but that she believed "that it was inappropriate for me to recognize any individual wearing an escaped prisoner costume.”

So on that same day, she ordered the pictures deleted, according to yesterday's report, as part of ""a coordinated effort to conceal the circumstances surrounding the party." Myers' nomination was still pending before the Senate at that time. The committee report is titled "The ICE Halloween Party: Trick, Treat, or Cover-up?" The committee appears to come down on the cover-up side of the question.

As for Myers, her spokesperson tells The New York Times that trying to curb the damage wasn't the same thing as a cover-up:

Kelly A. Nantel, an agency spokeswoman, confirmed Tuesday that Ms. Myers had ordered that the photographs be deleted, but said she had done so because she belatedly realized that the costume was inappropriate and that it would be offensive if the photos were included in any agency publications.

But Ms. Nantel said that Ms. Myers never tried to cover up that the event had occurred. In fact, Ms. Myers sent a message to all agency employees two days after the party acknowledging that “a few of the costumes were inappropriate.”

“To suggest she somehow coordinated a cover-up is absolutely false,” Ms. Nantel said.


Rather unfortunately for Myers, the pictures were not completely deleted and were restored. They were released to CNN in February as a result of a FOIA request.

In any case, the committee has used the occurrence to point out the lack of diversity at ICE and DHS more broadly, noting that ICE has zero African-American senior executives and 28 whites. It's a point that lawmakers were able to demonstrate when Secretary of Homeland Security Michael Chertoff last visited the committee:

Anger among some African American lawmakers about diversity in the Homeland Security Department led to a testy exchange with Chertoff during a March hearing. Lawmakers asked Chertoff's staff to stand. About 10 people stood.

Rep. Melvin Watt (D-N.C.) pointed out that all the staff members were white men. "Please reassure me that your staff is more diverse than that," he asked Chertoff, who seemed taken aback.

"That is definitely the case," Chertoff said, as other lawmakers looked visibly skeptical.


Hearings on diversity in the department are planned for next month.

TPMLivewire