David Kurtz

David Kurtz is Managing Editor and Washington Bureau Chief of Talking Points Memo where he oversees the news operations of TPM and its sister sites.

Articles by David

A question, probably for our congressional staff readers:

In his recent New Yorker piece on the Bush Administration's "redirection" in the Middle East, Sy Hersh recalled the Iran-contra scandal as he reported on clandestine activities being conducted by the Department of Defense deliberately outside of the purview of the congressional intelligence committees:

Iran-Contra was the subject of an informal “lessons learned” discussion two years ago among veterans of the scandal. [Elliott] Abrams led the discussion. One conclusion was that even though the program was eventually exposed, it had been possible to execute it without telling Congress. As to what the experience taught them, in terms of future covert operations, the participants found: “One, you can’t trust our friends. Two, the C.I.A. has got to be totally out of it. Three, you can’t trust the uniformed military, and four, it’s got to be run out of the Vice-President’s office”—a reference to Cheney’s role, the former senior intelligence official said.

. . .

“This goes back to Iran-Contra,” a former National Security Council aide told me. “And much of what they’re doing is to keep the agency out of it.” He said that Congress was not being briefed on the full extent of the U.S.-Saudi operations. And, he said, “The C.I.A. is asking, ‘What’s going on?’ They’re concerned, because they think it’s amateur hour.”

The issue of oversight is beginning to get more attention from Congress. Last November, the Congressional Research Service issued a report for Congress on what it depicted as the Administration’s blurring of the line between C.I.A. activities and strictly military ones, which do not have the same reporting requirements.

So here's my question: if an administration can avoid the congressional oversight mechanism put in place after the CIA abuses of the 1970s by shifting the covert activity to the Pentagon, cutting out the CIA, and running the operations out of the Office of the Vice President, is serious legislation pending to close this loophole?

I don't mean to concede the argument that in fact the intelligence oversight mechanism cannot legally be circumvented so easily. But set that aside. If there's a purported loophole that top level Bush Administration officials believe is big enough to run a black-bag squad through, is Congress taking steps to close that loophole?

Late Update: Steven Aftergood, of the Federation of American Scientists' Project on Government Secrecy, responds:

In response to David Kurtz's question, Congress appears to be at an early stage of grappling with apparent loopholes in its oversight of quasi-covert actions conducted outside of established CIA channels.

Among the questions posed by the November 2006 Congressional Research Service report cited by Hersh are such elementary ones as these (at page 11): "How should Congress define its oversight role? Which committees should be involved?" Thirty years after the establishment of the intelligence oversight committees, one might have expected such questions to be answered long ago. But no.

That CRS report is available from the Federation of American Scientists here.

When Republicans eat their own, from Legal Times:

It was an uncomfortable -- and perhaps unprecedented -- airing of private personnel matters. Granted, U.S. Attorneys are "at-will" employees who serve at the pleasure of the president and can be fired without cause, yet even some of the administration's staunchest supporters were embarrassed at the breach of decorum.

"They have the right to fire them; they do not have the right to smear them," says Joseph DiGenova, a conservative commentator who was U.S. Attorney for the District of Columbia during the Reagan administration. "Everybody involved in it at the Justice Department and White House should be taken to the woodshed. This is really a pathetic way of running government."

Other former U.S. Attorneys, all Republicans, said they were "stunned" or "flummoxed" or found the way the firings were handled "insulting."

"It is unfortunate that the department felt the need to attack the performance of these people," says Thomas Heffelfinger, who served as U.S. Attorney in Minnesota from 2001 until last year. "It wasn't necessary and it wasn't warranted."

Of course, the U.S. Attorney's job is inherently political; in the past, however, departures were handled with considerably more tact.

"It was handled discreetly, it was handled professionally, and people were given every opportunity to have a soft landing," says Mark Corallo, who was Justice Department spokesman under then-Attorney General John Ashcroft. "These are people who worked hard in the pursuit of justice. To go out and trash their reputations -- it's galling."

By the end of last week, some of the most conservative Republican senators were publicly assailing the department's handling of the matter. Pennsylvania's Arlen Specter, a moderate, even suggested that Attorney General Alberto Gonzales might have to step down. And in an about-face, Gonzales said on March 8 that he would support a change in the law that would limit the attorney general's ability to appoint interim U.S. Attorneys.

"Regardless of the substance of the dismissals, it was so poorly handled that one has to question the leadership at the department," Corallo says. "Was anybody awake? Was anyone paying attention?"

Legal Times asked Republican superlawyer and former Solicitor General Ted Olson if this past week's hearings were like a circular firing squad: "That's a good way to put it," Olson said.

Update: I was bemused by the Republican infighting and the spectacle of GOP talking head Joe DiGenova suddenly becoming a champion of civility in politics. But be careful, some readers have warned me: this is faux GOP outrage designed to diminish the scandal. Writes TPM Reader GC:

Note that the Republican criticism of the Justice Department centers on the wrong issue. (They have no right to smear good people etc). All that may be true-but it's a minor/trivial issue compared with whether or not these new appointments were made because the agenda of the replaced US-As was not sufficiently political. i.e. The Republican crit/outrage is centered on an issue of personal dignity & not the administration malfeasance. In my view some of this Republican criticism may be designed to deflect attention from a far more significant issue.

That's true, as far as it goes. But there is both a substantive legal aspect and a political aspect to this scandal. Right now, as is usually the case when a scandal is breaking hot and heavy, each aspect feeds the other in what, for the targets of the scandal, is a vicious cycle. GOP senators began abandoning the White House on the purges on Thursday, and now big-wig Republicans are scampering away, too. With fewer defenders, the White House is in a weaker position to fend off congressional Democrats' efforts to get at the substance of what happened here. That is to say that the legal and political are inextricably linked.

Isn't it a little odd that in all the uproar over Domenici, Wilson, and Hastings leaning on U.S. attorneys, there has not been one word about it from the Justice Department?

I don't mean an investigation, though that may be warranted (criminal, internal, or otherwise). But not a peep about how DOJ will not tolerate elected officials attempting to influence its prosecutors, how DOJ has its prosecutors' backs, how DOJ would remind prosecutors to report any such contacts, and would urge anyone who has not previously reported such contacts to come forward now.

Not a peep.

Seems strange to me. Bet you feel alone on an island if you're an independent U.S. Attorney with a story to tell --if any independent U.S. Attorneys are left.

As we mentioned, the Department of Justice is today for the first time publicly trotting out explanations for why eight U.S. Attorneys were asked to resign. But a commenter over at TPMmuckraker adds a few more:

Actually, there were additional problems with the attorneys' performance that Moschella left off for lack of time. Here's the remaining items.

Carol Lam: Always greeted the judges and juries with "Howdy" instead of the customary "Good Morning Vietnam!!!"

John McKay: Found to be at fault for the deaths at Nakatomi Plaza.

Bud Cummins: Always left the toilet seat up.

Daniel Bogden: Did not use the correct form when filling out the expense reports.

David Iglesias: Does not sing as well as his brother Julio.

Paul Charlton: Called the technical supervisor to fix the printer instead of the supervising technician.

And so it goes.

We hadn't heard much from Paul K. Charlton, the canned U.S. attorney in Arizona, but he sure ripped the lid off this thing in his testimony before the House Judiciary Committee a little while ago.

After Associate Deputy Attorney William E. Moschella testified that Charlton was asked to resign because of a dispute with the FBI over whether it should begin taping the confessions of criminal suspects, Charlton testified that he found it ironic that DOJ was giving that as the reason for his dismissal and then laid out the following sequence of events:

Charlton's district included Indian country, which made Charlton the top law enforcement officer for the reservations and meant he was in charge of prosecuting a host of crimes not usually prosecuted at the federal level, like child molestation cases. In those cases, taped confessions are essential, Charlton said, and his office was losing cases and pleading them down because the FBI policy is not to tape confessions.

So Charlton started requiring the FBI to tape confessions in his district. That led to complaints to Main Justice and an order from DOJ that he change his policy. At that point, Charlton himself threatened to resign unless his policy was left in place, and he explained why. In response, DOJ suggested that Charlton begin a pilot program using the taped confessions and reporting back examples of cases which would have been lost or pleaded down without the confessions. He never heard more from DOJ about the policy or the program.

So you might say Charlton got canned for being too aggressive in his prosecution of child molesters--if you believe the taping dispute was really why he was fired.

Paul has more on the responses of the other USAs to the explanations being given by Moschella for their dismissals, which they are hearing themselves for the first time today.

The top DOJ official representing the department at this afternoon's House hearing on the U.S. attorney purge just testified that none of the fired U.S. attorneys were told about their offices' supposed deficiencies before they were terminated.

Principal Associate Deputy Attorney General William E. Moschella is testifying before the House Judiciary Committee. Part of his opening statement is up here. He is running through the "performance-related" reasons for each U.S. attorneys firing right now. More in a moment.

You can watch this afternoon's House Committee hearings on the U.S. Attorney purge via the web, and Paul is providing periodic updates at TPMmuckraker.