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Ok, so that headline wasn't really on point. But now that you're reading...

In his questioning of Eric Holder this morning, Sen. Chuck Schumer really doubled down on the theme of politicization at DOJ under Alberto Gonzales -- a theme that, as we noted, has served as the constant backdrop to the hearings so far.

Schumer declared that "the likes of Alberto Gonzales and Bradley Schlozman sullied and demoralized a great legal institution, probably the finest civil service institution in the country, that they really dragged through the mud.

As for GOP efforts to suggest Holder could act similarly, Schumer called the comparisons "ludicrous," then initiated the following clever and enlightening exchange to demonstrate Holder's comparative independence:

Schumer: As I look at your background and your record, it's clear that you are less connected and less beholden to the new president than most attorneys general in the last fifty years. Let's review for the moment. I have a few quick questions for you.

Have you ever been President-Elect Obama's personal lawyer, like William French Smith had been for years for Ronald Reagan?

Holder: No, I have not.

Schumer: Have you ever been a staffer for Barack Obama, like Ed Meese had been for Reagan?

Holder: No, I have not, senator.

Schumer: Have you ever served as official counsel to Barack Obama, like Alberto Gonzales had for George Bush?

Holder: No, I have not, senator.

Schumer: And has Barack Obama ever dispatched you to the hospital room of a sick government official, to get him to authorize an illegal wiretap program?

Holder: No, he has not.

Schumer: Yeah I didn't think so. Alright, and I take it you're not a close relation to the new president, like Bobby Kennedy was to Jack Kennedy?

Holder: No, we're not related by blood though people to say we look alike.

Schumer: I don't think so. Although you're both very handsome.

Holder: I'd heard he's handsome and was going to try to draft on that.

Schumer: OK, let me ask you this, have you ever been a professional politician like John Ashcroft or Dick Thornburgh?

Holder: No, I've never run for office.


Here's the video of the exchange:

In its waning days, the Bush administration has suffered a few adverse rulings from the courts on the broad issue of executive power.

But it looks like it's about to get a major one in its favor on the issue of warrantless wiretapping. The New York Times reports:

A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans' private communications may be involved.


In other words, at least according to this court, the administration didn't need to get a warrant after all for its controversial domestic spying program. As the Times puts it, the decision "may offer legal credence to the Bush administration's repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping."

The Times explains that the court did not directly rule on the legality of the NSA's controversial secret wiretapping program, conducted between 2001 and 2007, which the same paper first revealed in 2005. Rather, in 2007, Congress passed the Protect America Act, which gave the executive branch the power to listen in on international communications. The constitutionality of that law was challenged by a telecom company. The FISA court, in a secret decision last year, upheld the law, and now an appeals court has agreed.

All the same, this is the first time that an appeals court has ruled on the constitutionality of the president's power to eavesdrop, and the decision could be a boost for other telecom companies who are being sued for cooperating with the program.

Late Update: The ruling itself has now been released, and several commentators, including Salon's Glenn Greenwald, make the case that the Times erred in its characterization, and that the ruling bears on a narrower question. Writes Greenwald:
[I]t merely concluded that the warrantless eavedsdropping powers authorized by Congress under the (now-expired) Protect America Act do not violate the Fourth Amendment because, the court found, there is an exception to the Fourth Amendment's warrant requirement for foreign intelligence gathering. It's a bad ruling (and should be reviewed by the Supreme Court), but it has nothing to do with the President's authority to override statutes generally or violate FISA specifically...


So this ruling may not be as far-reaching as the Times appeared to suggest.

So you'll remember that on Tuesday, a DOJ report found that John Tanner, the former chief of the department's voting rights section, had told a colleague over email in 2004 that he liked his coffee "Mary Frances Berry style -- black and bitter." Berry, an African-American, was at the time the chair of the US Commission on Civil Rights.

Now Tanner is trying to make amends. Moments ago he forwarded to TPMmuckraker a letter of apology he sent to Berry dated January 13.

Tanner -- who has a history of questionable racial remarks and appears still to be working on voting issues on DOJ's payroll -- explains that he only used the phrase because he had recently heard an African-American customer at a coffee shop order coffee "black and sweet -- like me."

Still, he says, it was "a very poor choice of words," "flippant" and "ill-considered."

Then -- in kind of a stretch -- he further explains: "The term bitter, of course, meant no sugar in the coffee, and was not meant as a reflection on you or your attitude towards a challenging situation."

And Tanner adds: "I am well aware of your many significant contributions to our country's racial equality and justice."

See the full letter here.

Not that it's likely, but Brad Schlozman may want to hope that Eric Holder's confirmation somehow gets derailed.

That's because Holder just told the Senate Judiciary committee that he wants to reconsider the Bush Justice Department's curious decision not to bring criminal charges against Schlozman, a former top department official who was found by a DOJ investigation to have politicized hiring decisions, then lied about it to Congress in an effort to cover it up.

Asked about the issue moments ago by Sen. Dianne Feinstein -- one of the lawmakers to whom Schlozman was found to have given an untruthful answer during testimony -- Holder declared: "I want to know why the determination was made not to pursue charges."

Here's his answer in full:

I understand that prosecutors in the US attorney's office in DC -- again, just based on the press reports, actually reviewed the report and then made a prosecutive determination.

If I am fortunate enough to be confirmed as Attorney General, I will indicate to you that I will review that determination. I don't know all the facts of the case, but given the findings in the Inspector General's report that are consistent with what you have said, I want to know why the determination was made not to pursue charges, criminal charges.


Asked by Feinstein about the report's findings more broadly, Holder responded:
I have not had a chance to read the report, Senator, and yet I have read the news accounts of it. What's contained in the report is very disturbing. The notion that the Justice Department would ever take into account a person's political affiliation or political beliefs in making hiring decisions is antithetical to everything the department stands for and everything I'm familiar with.

I served very proudly in the Justice Department, under Republican Attorneys General, Democratic Attorneys General, and it was never a thought given to what your party affiliation was, what your political beliefs were in hiring, in promotion decisions. What we have seen in that report I think is aberrant, but is also I think one of the major tasks the next Attorney General is going to have to do. You have to reverse that.


So we may not have seen the last word on this.

Late Update: Here's video of the exchange between Feinstein and Holder about Schlozman:

"I want to assure you and the American people that I will be an independent Attorney General. I will be the people's lawyer," Eric Holder told the Senate judiciary committee moments ago, in response to a question form Sen. Herb Kohl.

Holder's answer suggests the extent to which the shadow of Alberto Gonzales hangs over the curent nominee's confirmation, which began this morning. Much of Senate Judiciary chair Pat Leahy's opening statement was an argument that Holder is the man to fix the problems of politicization at DOJ under Gonzales that we've chronicled at TPMmuckraker over the last two years.

Said Leahy, after noting the department's report, released Tuesday, into politicized hiring under Gonzales:

Americans must be able to trust their Justice Department. That trust must not be squandered or taken for granted. We need leaders who are prepared to take the laboring oars of a Justice Department whose dedicated law enforcement professionals have been misused and demoralized. Eric Holder is such a leader.


Just as revealingly, Republicans have centered their opposition to Holder on the claim, without much evidence, that, in fact, he's likely to be a second Gonzo. Earlier this month in a speech on the Senate floor, ranking GOPer Arlen Specter laid out the argument:
Mr. Gonzales left office accused of politicizing the Justice Department, failing to restrain Executive overreaching, and being less than forthcoming with Congress ... I am convinced that many of Attorney General Gonzales' missteps were caused by his eagerness to please the White House. Similarly, when Mr. Holder was serving as DAG to President Clinton, some of his actions raised concerns about his ability to maintain his independence from the president.


As their main exhibits in this case, Specter and other GOPers have cited Holder's 2001 pardon, as a top DOJ official in the Clinton administration, of the fugitive financier Marc Rich, which it appeared was supported by the president. GOPers have also condemned Holder's support for clemency for members of the FALN, a Puerto Rican nationalist group, at a time when Hillary Clinton was seeking a Senate seat in New York, which has a large Puerto Rican population.

Already this morning, Specter has grilled Holder on these issues, declaring, in reference to Rich: "The indicators are that you were very heavily involved and yet you testified that you were only casually involved. So there's a question of candor there."

Holder responded:
I made mistakes ... in the Rich matter. I've accepted the responsibility of making those mistakes...I should have made sure that all the prosecutors in that case were informed of what was going on. I made assumptions that turned out not to be true ... I've learned from that experience. I think that, as perverse as this might sound, I will be a better Attorney General should I be confirmed, having had the Marc Rich experience.


It's great that Holder has learned from his mistakes. But, Specter's grandstanding notwithstanding, the entire attack is pretty bogus to begin with.

There's just not much of a comparison between the level of politicization that DOJ saw under Gonzales -- when US Attorneys were removed for not bringing cases that reflected the White House's political priorities, and officials actively sought to avoid hiring liberals -- and Holder's sins during the last administration. And that excludes the numerous examples, cited by Leahy and other Holder supporters in recent weeks, of Holder acting in ways counter to the president's interest while at DOJ.

But leaving aside the minor political theater over Holder, the prominence of Gonzales' record in these hearings, as a negative marker against which to measure Holder, is perhaps the strongest testament to the unprecedented damage that the former Attorney General, and the president, did to the department.

A former military prosecutor filed a declaration yesterday claiming that the system for handling evidence at Guantanamo Bay is so chaotic that it makes a fair prosecution nearly impossible. In his work on one detainee's case, Darrel Vandeveld found that evidence was often missing, false, or unreliable. The declaration was made in support of the release of a detainee held at the facility for six years. (Washington Post)

A federal judge has issued an order for the Bush administration to preserve electronic messages. U.S. District Judge Henry Kennedy has ordered that employees of the Executive Office of the President turn over any emails from March 2003 to October 2005. The issue of missing emails arose during the scandal involving the leak of Valerie Plame's identity as a CIA employee, and this time frame will cover the first two years of the investigation into that affair. The White House has previously claimed to have "lost" emails from this period that could possibly relate to the scandal. (Associated Press)

A federal judge ordered the release of a detainee from Guantanamo Bay yesterday, arguing that the evidence is too weak to warrant further detention. One of the prosecution's claims, that Mohammed El Gharani was a member of an al Qaeda cell in London in 1998 has come under suspicion, as Gharani was only 11 at the time. (Washington Post)

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Yesterday we picked out a shocking excerpt from the DOJ report on politicized hiring, in which then-Voting Rights chief John Tanner told Brad Schlozman over email in 2004 that he liked his coffee "Mary Frances Berry style -- black and bitter." Berry, an African-American, was at the time the chair of the US Commission on Civil Rights, which works, among other things, to protect Americans' right to vote.

As we noted, this wasn't the first known case of Tanner making racially insensitive remarks. He left the voting-rights section soon after sparking a furor by saying that voter ID laws discriminate against the elderly, and therefore not against African-Americans, because African-Americans die younger.

But it turns out that Tanner didn't stop working on voting issues for DOJ -- he just found a new perch from which to do it. After a short stint with the Office of Special Counsel for Immigration-Related Unfair Employment Practices, he showed up again last April working on election-related issues for the Alabama Law Institute, and still being paid by the Justice Department under a federal program, the Associated Press reported at the time. (Thanks to reader Ally for the catch.)

What exactly has Tanner been working on? Says AP:

At the institute, his work will include writing about getting Justice Department approval of city annexations and new boundaries for political districts, such as legislative districts.


In other words, DOJ's response to the outrage provoked by Tanner's racist comments was to ... send him to Alabama to help with the racially charged work of redrawing political districts. Great idea!

Is the department still paying Tanner's salary today? DOJ's press office didn't immediately get back to us on that, claiming it didn't have access to the information right away.

But it looks like the answer is yes. According to that AP story from April:
[Tanner] is participating in the federal government's program to loan personnel to other government agencies. The Justice Department is paying Tanner's salary and benefits to be in Alabama through next spring.


We reached Tanner at the Law Institute. When we said we were from TPM, he told us he'd call us back, but hasn't yet.

George Bush and Dick Cheney are continuing to insist we haven't committed torture. But that's now been contradicted by the Bush administration official whose job is to decide whether to bring Guantanamo detainees to trial.

"We tortured [Mohammed al-] Qahtani," the convening authority of military commissions, Susan Crawford, told the Washington Post's Bob Woodward. "His treatment met the legal definition of torture. And that's why I did not refer the case" (for prosecution).

Al-Qahtani is a Saudi national who allegedly planned to participate in the 9/11 attacks.

According to the Post, the techniques used included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, which left al-Qahtani in a "life-threatening condition."

Crawford told Woodward:

The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge (to call it torture).


The Post adds:
[Crawford] is the first senior Bush administration official responsible for reviewing practices at Guantanamo to publicly state that a detainee was tortured.

An Associated Press review of Secretary of State nominee Hillary Clinton's official correspondence found that she directly intervened six times on behalf of companies who donated to her husband's foundation. The issue of the Clinton Foundation has already created a headache for the senator, with Sen. Richard Lugar (R-IN) insisting that the foundation no longer accept donations from foreign governments. (Associated Press)

The trial of Guantanamo detainee Omar Khadr was essentially reset after U.S. military commission officials secretly withdrew and then re-issued charges against the defendants in the case, according to Khadr's defense lawyer. The move is known as "withdrawal and re-referral" and nullifies all prior proceedings against defendants. The top Pentagon official in charge of commissions withdrew charges on December 17; a new trial date is yet to be determined. Khadr, a Canadian, is the only Western citizen still being held at the facility. (CBC News)

A new rule enacted by the Environmental Protection Agency will make it easier for industrial operations to expand without having to apply for new pollution permits. The most recent midnight regulation issued by the Bush administration allows plants to exclude emissions from unrelated activities when calculating whether or not new pollution control measures will be needed. The rule is part of an effort by the Bush administration to make over a pollution-control initiative called the New Source Review. (Washington Post)

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Over the weekend, President-Elect Obama said we should "look forward as opposed to looking backwards" on the question of prosecuting Bush administration officials for torture, illegal wiretapping, and other possible crimes committed in the name of national security.

But yesterday, the House Judiciary committee got behind a very different approach, releasing a nearly 500-page report that recommends establishing a blue-ribbon commission -- along the lines of the 9/11 commission, but with subpoena power -- to investigate whether crimes were committed. (Last week, as we reported over at Election Central, Judiciary chair John Conyers and nine other lawmakers introduced a bill to set up such a commission.)

The report also advocates an investigation by the Justice Department, potentially involving a special prosecutor. And in addition to focusing on issues of torture, wiretapping, and the like, the report also recommends continuing to probe matters like the leaking of the name of former CIA agent Valerie Plame, and the US Attorney firings.

It'll be interesting to see how Democrats will reconcile Conyers' aggressive stance, which seems to enjoy broad support among the party's base, with Obama's more cautious approach.

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