I must admit that the case of David Hicks, the Australian held at Guantanamo, has been off my radar lately, and it shouldn’t be. It’s a national embarrassment. Here’s the latest.
Hicks this week became the first person charged under the new military tribunals set up by Congress just before the mid-term elections in response to the Supreme Court’s Hamdan decision striking down the old tribunal system.
After being held for five years without a trial and being originally charged with conspiracy to commit murder and engage in acts of terrorism, attempted murder and aiding the enemy, Hick was charged with a single count of providing material support for terrorism, which, his lawyers argue, wasn’t outlawed until 2006.
Australians are outraged. Understandably so.
Now comes word that Hicks’ trial may be delayed because his American military lawyer, Maj. Michael Mori, is being threatened with prosecution under the UCMJ by the chief American prosecutor, Col. Morris Davis:
Colonel Davis has accused Major Mori of breaching Article 88 of the US military code, which relates to using contemptuous language towards the president, vice-president, and secretary of defence. Penalties for breaching the code include jail and the loss of employment and entitlements.
Major Mori denied he had done anything improper but said the accusations left him with an inherent conflict of interest.
“It can’t help but raise an issue of whether any further representation of David and his wellbeing could be tainted by a concern for my own legal wellbeing,” Major Mori told the Herald. “David Hicks needs counsel who is not tainted by these allegations.”
Major Mori, who has been to Australia seven times, will seek legal advice. The issue will also have to be raised with Hicks when his legal team next sees him.
Morris has criticized Mori’s frequent trips to Australia; and, as The Times reported yesterday, American embassy officials tried and failed to have the Pentagon bar Mori from coming to Australia.
Why would anyone doubt that Hicks will get a fair trial?
Newt Gingrich blames victims of Hurricane Katrina for their “failure of citizenship.”
TPM Reader NC of Australia, responding to the post below on David Hicks:
As an aside on this issue, Australians have generally fallen in love with Major Michael Mori. Every time we see him he is in his uniform, even at official functions. He seems to be the only American who gives a damn about what America has done to David Hicks.
When all this is over and done with, Major Mori can immigrate to Australia and become an Australian citizen. If he chooses to run for Prime Minister, people will welcome it.
At least one American comes out of this looking better.
TPM Reader JN checks in from Texas:
Can you believe it? The first time Pete Domenici attemps to exert improper influence on a U.S. Attorney and he gets busted. That’s some bad luck. And Heather Wilson too. What are the chances? Dang….
They just do sarcasm better in Texas than in most places (see, e.g., Molly Ivins, God rest her soul).
TPM Reader DJ, on Ann Coulter’s remarks:
I’ve been wondering why no one has pointed out that among the conservatives it isn’t saying the word ‘faggot’ that gets you chucked into rehab, but actually turning out to be one.
Good one. Why didn’t I think of that.
A breaking prior restraint case in Kansas City, where on Friday a state court judge ordered the Kansas City Star and the local alternative newsweekly, The Pitch (owned by Village Voice Media), to remove articles about the Kansas City Board of Public Utilities from their websites and barred them from publishing certain articles about the BPU in their print editions.
At issue was a confidential letter, upon which the articles were based, written to BPU officials by the board’s attorney about BPU power plants. (h/t to Scatablog).
As if the prior restraint were not egregious enough, the judge didn’t schedule the next hearing on the matter until next Friday.
Late update: As a couple readers have pointed out, the stories in question weren’t pulled from the newspaper websites before they were cached by the search engines, a fact that may often make such prior restraint orders moot in this day and age, in addition to all of the other constitutional problems. The Pitch story is in Google’s cache, and the KC Star story is cached in Google as well. Thanks to TPM Readers PK and MD for the links.
I’ve spent the weekend watching from sidelines as the Canned US Attorney story picks up momentum. And it’s been a couple days of interesting reading. Kevin Drum has it right when he flags this as the weekend of copping to the lesser offense to try to head off a real investigation.
That’s what the White House is doing, admitting that, yes, they mishandled the whole attorney firing and yes they signed off on it. But they really didn’t have anything to do with it and anyway it was just to clear out a few US Attorneys who weren’t addressing the administration’s law enforcement priorities.
And now we have the august Sen. Domenici (R-NM) coming clean about jawboning US Attorney Iglesias for information about the investigation of the New Mexico Democrat. He’s awfully sorry about it. But it’s wholly unrelated to Domenici’s request to the Justice Department that Iglesias be fired.
Coincidence is a bitch.
One thing you can say about the US Attorney scandal is that it just draws folks with bad luck to it like moths to a flame. First you’ve got the White House, 
not knowing Iglesias had been jacked up by state Republicans for not indicting that Democrat before the election when they went ahead and fired him for completely unrelated reasons.
And then you’ve got Domenici having this lapse of judgment calling Iglesias when he was trying to get him fired for completely unrelated reasons. With luck this bad you can imagine a lot of other really unfortunate coincidences cropping up over the coming days and weeks.
In all seriousness, the most humorous and telling part of Domenici’s and the White House’s attempts to get out in front of this doozie is watching them rummaging around for policy and management rationales for these firings.
Let’s listen to Domenici …
During the course of the last six years, that already heavy caseload in our state has been swamped by unresolved new federal cases, especially in the areas of immigration and illegal drugs. I have asked, and my staff has asked, on many occasions whether the federal prosecutors and federal judiciary within our state had enough resources. I have been repeatedly told that we needed more resources. As a result I have introduced a variety of legislative measures, including new courthouse construction monies, to help alleviate the situation.
My conversations with Mr. Iglesias over the years have been almost exclusively about this resource problem and complaints by constituents. He consistently told me that he needed more help, as have many other New Mexicans within the legal community.
My frustration with the U.S. Attorneyâs office mounted as we tried to get more resources for it, but public accounts indicated an inability within the office to move more quickly on cases. Indeed, in 2004 and 2005 my staff and I expressed my frustration with the U.S. Attorneyâs office to the Justice Department and asked the Department to see if the New Mexico U.S. Attorneyâs office needed more help, including perhaps an infusion of professionals from other districts.
This ongoing dialogue and experience led me, several months before my call with Mr. Iglesias, to conclude and recommend to the Department of Justice that New Mexico needed a new United States Attorney.
Okay, so Sen. Domenici has been feeling for years that federal caseloads have been too heavy in the state. And the prosecutors and the judiciary both needed more money. And the senator’s been trying to get them more resources. And when he talked to US Attorney Iglesias about it, Iglesias agreed that they needed new resources. But as he was making these efforts to bring in more resources “public accounts indicated an inability within the office to move more quickly on cases.” He brings this up with Main Justice and this “ongoing dialogue and experience led me, several months before my call with Mr. Iglesias, to conclude and recommend to the Department of Justice that New Mexico needed a new United States Attorney.”
Now, if I’m reading this right, Sen. Domenici is saying that Administration Story #1 — poor performance on the job — actually is the reason that Iglesias got canned. He doesn’t allege any policy differences, any deprioritization of immigration or drug arrests. Iglesias just couldn’t get the job done, even as Domenici was getting more federal dollars for justice in New Mexico.
So Domenici and the administration can’t even get their explanations straight. Or maybe Domenici is just having a hard time keeping up with the pace of the story since ‘poor performance’ on the job went down the memory hole a few weeks ago.
And of course Iglesias’ performance reviews appear to show no signs of any of this. And indeed, the best Domenici can seem to do is point to “public accounts” of the poor performance of Iglesias’s office. So like the rest of the explanations of poor performance and policy disagreement, this was an instance of poor performance no on else seemed to know about, notwithstanding the aforementioned ‘public accounts.’
In truth, the accounts provided by administration sources for the firing of various prosecutors are similarly wispy and contradictory. Read the Times article from today and the list of proferred reasons is simply all over the place. No one on the administration side even seems to have been able to come up with anything specific on Nevada US Attorney Daniel G. Bogden. About him the Times reports that “Justice Department officials said they regarded Mr. Bogden as competent but insufficiently aggressive, although they acknowledge that his removal was a tough call.”
Now, here’s one last point I’ll conclude with. Tough calls come in cases where decisions need to be made. I’ve got three great job candidates but only two jobs. Someone’s got to be cut. Tough call. Or I need to open up seven US Attorney slots. So I’ve got to find seven to fire. Has to be someone. And maybe Bogden was right on the edge. Tough call.
But no one had to do any of this. We’re supposed to believe that some senior officials at DOJ got together last December and pulled together a list of US Attorneys who weren’t in sync with administration law enforcement policy priorities. They came up with the names of six who had to go. Then they took a look at Bogden. They didn’t find any reason for complaint on policy or competence grounds. But he seemed “insufficiently aggressive” so he was out too. But it was a “tough call”.
I’m sorry. None of that adds up. Even setting aside the Iglesias smoking gun and perhaps more to come, the administration’s story, simply on its own terms, collapses under the weight of its own ridiculousness.
A busy news day here at TPM, especially for a Sunday. Let me sign off with a comment from TPM Reader BG that I think captures an important historical and political dynamic at play in any number of Bush Administration disasters, scandals, and foul ups. BG is responding specifically to this post on the conditions at Walter Reed, but the larger point resonates far beyond that single sorry case:
What’s really at issue here is the extent to which problems with the military, specifically, and the government, generally, are a result of policy. The common explanation for the catastrophic results of many of the Bush administration’s initiatives (from Iraq to New Orleans and back again) is that they are the result of “incompetence.”
Incompetence, the lack of capacity or skill, is ultimately an exculpating trope. It insinuates that the plan, or effort, was sound and could have succeeded had it been competently carried out. Moreover, the incompetent are in way less liable: their lack of ability lets them off the hook. Thus, “incompetence” insulates the actors from accountability and leaves the policy itself unscathed.
My personal opinion, which has recently been reinforced by much of what I read in Rajiv Chandrasekaran’s Imperial Life in the Emerald City, is that the Bush disasters are a result of the administration’s policies and not of some failure to effectively carry them out.
No one says, retrospectively, that Calvin Coolidge’s failure to help the victims of 1927’s Mississippi River flood was a result of incompetence. No one says that Mellon, with his inaction and insistence that the Great Depression would burn itself out through ‘liquidation,’ was incompetent. Both of these positions were wholly in keeping with the policies of the Coolidge and Hoover presidencies, policies that were not discredited until Roosevelt’s victories and the institution of the New Deal.
The problem, a problem that Waxman seems to be keenly aware of, is that as long as the government retains the same kind of policies, the nation will continue to suffer the same hardships. It is not until the beliefs that inform the ways in which the Bush administration runs the government are firmly linked to their consequences that the nation will stop voting for politicians who promulgate, and enact legislation based on, those creeds.
These policies will not (again) be discredited until they are tied to their reprehensible results. Insisting on the ‘incompetence’ of the Bush administration turns attention away from this linkage between policy and result. In fact, it insulates the policies while discrediting the men who are trying to implement them. It, thus, sets the stage for those policies to be enacted again.
Bravo.