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Andrew Tilghman | May 30, 2008, 9:45AM

Nevada Gov. Jim Gibbons' still has two years left in office.

But Gibbons' divorce is getting nastier by the day, and many GOP operatives are getting more concerned about saving their party than his marriage.

The Las Vegas Sun reports on the latest in the court battle:

Wednesday's filing by Dawn Gibbons' attorney Cal Dunlap, a former district attorney who is said to love a public fight, is ostensibly an argument to open the now-sealed divorce filing. In fact, however, it's clearly part of an aggressive media strategy to paint the governor as a cold, philandering liar.

"Despite his disingenuous, shallow, and transparent protestations that his relationship with another man's wife is a mere friendship, his infatuation and involvement with the other woman is the real, concealed and undisclosed reason for his voluntary departure from the marriage," the court filing states.

Gibbons has been refusing to comment about the divorce proceedings. A judge has sealed the case, but Dawn Gibbon's attorney released her filings because of the "importance of the First Amendment and the public's right to have open access to the courts and court proceedings."

The court documents did not identify the woman Gibbons is accused of having an affair with. But local reporters in Nevada did. The Las Vegas Review Journal reports:

The woman is Kathy Karrasch, said several sources who requested anonymity, the wife of Reno podiatrist C. Craig Karrasch.

Recent phone records obtained by the Review-Journal show a single call placed from the governor's cell phone to Kathy Karrasch's cell phone on Jan. 10.

A family member who answered the cell phone Wednesday said Kathy Karrasch and her husband have separated for reasons unrelated to the governor.

The Reno Gazette-Journal offers more details about the relationship.

Karrasch lives a few blocks away from the Gibbonses' Reno home. ... Jim Gibbons was seen having dinner with Karrasch and three other people May 10 at the Atlantis Sky Terrace Oyster and Sushi Bar. He also attended the Galena High School play on May 1 to see Karrasch's daughter perform.

Although he attended the play alone, he spent the second half standing with Karrasch in the back of the room while she filmed her daughter, according to video footage provided to the Reno Gazette-Journal.

Gibbons' spokesman Ben Kieckhefer said the governor attended the play at the invitation of an unnamed neighbor.

In previous interviews, Gibbons has maintained he and Karrasch are "friends."

We've been reporting Gibbons' run of embarrassing political moves in recent months. The investigation of his ties to a defense contractor still lingers. But the locals in Nevada say the final straw was when Gibbons tried to get his wife evicted from the governors' mansion.

The Sun reports:

Republicans say serious discussions are taking place around the state among political and business leaders about how to extricate the party from the increasingly messy divorce proceeding between Dawn and Jim Gibbons. They say Jim Gibbons has handled the matter poorly by attempting to evict the first lady from the mansion and not settling the matter quickly and quietly.

And the implications could reach far beyond Nevada, one Republican tells the New York Times

"This absolutely could depress Republicans who are already depressed," said Chuck Muth, a Republican political consultant and blogger. "This could hurt McCain's ability to hold on to Nevada. It could also affect the chances of (Rep.) Jon Porter (R-Nev.) to get re-elected."

[Late Update: The previous version of this post referring to Gibbons as a practicing Mormon has been corrected. Gibbons was raised in the Church of Jesus Christ of Latter-day Saints, but has described himself as a non-observant Mormon.]

John McCain

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Andrew Tilghman | May 29, 2008, 10:17AM

John McCain's go-to economics adviser isn't holding up very well under close scrutiny.

Phil Gramm, the former Texas senator and economist, is taking a lot of heat after reports that up until April 18 he was a registered lobbyist for UBS, the Swiss bank that is the world's largest manager of private wealth.

A former economics professor at Texas A&M, Gramm has long advocated for tax cuts, supply-side economics and less government regulation. But as David Corn over at Mother Jones reports in "Foreclosure Phil?" Gramm also played an integral role in the financial scandal commonly known as the "subprime meltdown."

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Andrew Tilghman | May 28, 2008, 11:37AM

Criticisms leveled in former White House spokesman Scott McClellan's new memoir are sure to get a lot of attention over the next few days.

What separates McClellan's account from other tell-all books from former Bush Administration officials is the personal tone. McClellan followed Bush from Texas and left the White House on good terms. But he's obviously not pleased with some decisions that were made -- and the way he was treated at times.

To some degree, McClellan's book tells us a lot of things we already know.

From today's Washington Post:

Bush is depicted as an out-of-touch leader, operating in a political bubble, who has stubbornly refused to admit mistakes.

But he also takes a swipe at the Bush public persona that exudes confidence.

"A more self-confident executive would be willing to acknowledge failure, to trust people's ability to forgive those who seek redemption for mistakes and show a readiness to change," he writes.

Among the most interesting stories McClellan recounts is his role in the CIA leak investigation that led to Scotter Libby's conviction for obstruction of justice last year. Here is where McClellan seems to get personal.

"I could feel something fall out of me into the abyss as each reporter took a turn whacking me," he writes of the withering criticism he received as the story played out. "It was my reputation crumbling away, bit by bit."

Intriguingly, he recounts his suspicions about a previously undisclosed West Wing meeting between Rove and Libby:

"There is only one moment during the leak episode that I am reluctant to discuss," he writes. "It was in 2005, during a time when attention was focusing on Rove and Libby, and it sticks vividly in my mind. ... Following [a meeting in Chief of Staff Andy Card's office], ... Scooter Libby was walking to the entryway as he prepared to depart when Karl turned to get his attention. 'You have time to visit?' Karl asked. 'Yeah,' replied Libby.

"I have no idea what they discussed, but it seemed suspicious for these two, whom I had never noticed spending any one-on-one time together, to go behind closed doors and visit privately. ... At least one of them, Rove, it was publicly known at the time, had at best misled me by not sharing relevant information, and credible rumors were spreading that the other, Libby, had done at least as much. ...

"The confidential meeting also occurred at a moment when I was being battered by the press for publicly vouching for the two by claiming they were not involved in leaking Plame's identity, when recently revealed information was now indicating otherwise. ... I don't know what they discussed, but what would any knowledgeable person reasonably and logically conclude was the topic? Like the whole truth of people's involvement, we will likely never know with any degree of confidence."

McClellan writes in a way suggesting he really didn't see this at the time. Really?

Immigration

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Andrew Tilghman | May 27, 2008, 10:07AM

Looks like the 'crackdown' against illegal immigrants crossing over the Mexican border has been a boon for corrupt border guards.

Federal officials say their decision to dissolve the Internal Affairs unit at Customs and Border Protection unit a few years ago was a bad idea (go figure), and now the Department of Homeland Security is reconstituting it. Reborn with a whopping five investigators last year, the unit is projected to grow to 200 by the end of this year.

The New York Times reports this morning that a growing number of border patrol guards are under investigation for taking bribes from smugglers and letting vehicles packed with drugs and people pass into the U.S. unchecked.

There's a lot of money out there for border agents on the take:

In another recent case, Margarita Crispin, a customs inspector in El Paso, Tex., began helping smugglers just a few months after she was hired in 2003, according to prosecutors. She helped the smugglers for four years before she was arrested and sentenced to 20 years in prison and ordered to forfeit up to $5 million.

The number of border patrol agents has almost doubled since 2001, swelling the force to nearly 20,000. But the smugglers are savvy.

The smugglers use any ruse available to lure border workers but seem to favor deploying attractive women as bait. They flirt and charm and beg the officers, often middle-aged men, to "just this once" let an unauthorized relative through. And then another and another.

In recent years, Texas has seen the most corruption investigations, with California a close second.

One law enforcement expert describes "policing the border as 'potentially one of the most corruptible tasks in law enforcement' because of the solitary nature of much of the work and the desperation of people seeking to cross."

Defense Department

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David Kurtz | May 26, 2008, 11:35AM

Maybe we'll eventually get to the bottom of just what the Pentagon was up to when it cultivated the TV networks' supposedly independent military analysts as part of a massive PR push to support Bush Administration policy in Iraq. Well, it's pretty obvious what it was up to. But maybe we can better learn the full scope of the domestic PR effort undertaken.

The New York Times' April expose on the massaging of public opinion through "message force multipliers" (a term only the Pentagon could come up with) has now prompted at least two investigations. The program was suspended following the initial NYT report.

The Department of Defense inspector general announced last Friday that it was undertaking a investigation of the program, and the Congress' own General Accountability Office has "already begun looking into the program and would give a legal opinion on whether it violated longstanding prohibitions against spending government money to spread propaganda to audiences in the United States."

The investigations come after the House last Thursday passed an amendment to this year's military authorization bill mandating investigations by the DOD IG and the GAO. Democrats argued that the program amounted to illegal domestic propaganda. Rep. Rosa DeLauro (D-CT) called the program part of "a military-industrial-media complex" (with apologies to Eisenhower).

Meanwhile, the TV networks have remained largely silent, as their credibility and transparency have been tarnished by the revelations about the program. As Media Matters has documented, the military analysts named in the Times piece appeared or were quoted more than 4,500 times on broadcast networks, cable news channels, and NPR. One minute they were giving ostensibly objective analysis, the next they were fawning over Rummy in private as "the leader."

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David Kurtz | May 23, 2008, 11:54AM

It all depends on what your definition of "exclusive" is.

At the heart of the debate over warrantless wiretapping is whether FISA, by its own terms, is the exclusive means for the government to undertake electronic surveillance in counterespionage and counterterrorism cases.

The plain language of the FISA statute seems clear, stating that FISA is the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."

But nothing is ever that simple with the Bush Administration.

This week Sens. Sheldon Whitehouse (D-RI) and Dianne Feinstein (D-CA) released a declassified sentence from one of John Yoo's notorious memos, written while he was serving in the Justice Department's Office of Legal Counsel. In it, Yoo managed to rationalize away the exclusivity provision of FISA in order to justify a warrantless wiretapping program outside of the FISA framework, without judicial oversight or regular reports to Congress:

"Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."

Poof! Just like that, exclusivity disappeared and the Bush Administration was free to pursue warrantless wiretaping with the official blessing of the OLC. (Former OLC attorney Jack Goldsmith has described his office's memos as "advance pardons").

The Bush Administration says it no longer relies on the Yoo memo as the legal underpinning for warrantless wiretapping, pointing instead to perhaps an even weaker rationale, the post-9/11 AUMF:

The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.

When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.

Exclusivity remains a key sticking point in passage of a new FISA law. Democrats are demanding language that erases whatever doubt there might be (although in fact there is none). The White House is balking.

Must Read

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David Kurtz | May 21, 2008, 11:53AM

The focus of the news coverage of the report released yesterday by Justice Department Inspector General Glenn Fine has been on what involvement the FBI had, if any, in the "enhanced interrogations" undertaken by the Bush Administration -- and to a lesser extent how the FBI's concerns were ignored at the highest levels of government.

Here's the Wall Street Journal's lede:

A Justice Department inquiry lauded Federal Bureau of Investigation agents for refraining from harsh interrogations of terror suspects but found fault with how senior officials handled agents' concerns about alleged abuses.

But as you dig down into the 370-page report (.pdf), it's most revealing for what it shows the U.S. government was actually doing to detainees. Because of the limited jurisdiction of the DOJ inspector general, the report was focused on the FBI. But in establishing the environment in which the FBI was operating, the report paints a picture of ghastly treatment of detainees by the United States on a consistent long-term basis.

In the course of his investigation, the IG interviewed 450 FBI agents who were detailed to Gitmo at one time or another. Nearly half reported witnessing or hearing about "rough or aggressive treatment of detainees, primarily by military investigators."

The report contains a chart of the conduct FBI agents reported at Gitmo and the manner in which the agents learned of the conduct. You can click on the image for a larger view:

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Global Warming

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David Kurtz | May 20, 2008, 10:50AM

EPA Administrator Stephen Johnson, perhaps the Administration's most accomplished stonewaller, goes before the House government oversight committee today to testify -- again -- about his refusal to grant a waiver for California to regulate vehicle greenhouse gas emissions despite unanimous staff support for such a waiver.

So far, Johnson has been a most reluctant witness, going so far as to schedule overseas trips to avoid attending congressional hearings. But Rep. Henry Waxman's committee staff has continued digging, reviewing thousands of documents and interviewing witnesses outside the public eye. Yesterday, in advance of Johnson's appearance, Waxman released a 20-page memo and supporting documents on what his committee has found so far.

The headliner of the memo is that a top EPA official conceded in sworn testimony that he believed that Johnson changed his mind about supporting the waiver after he talked to the White House:

In one deposition, EPA Associate Deputy Administrator Jason Burnett told congressional investigators that Johnson in August and September was "very interested in a full grant of the waiver," then said he thought a partial grant of the waiver "was the best course of action."

California has the right to enact tougher air pollution laws under the Clean Air Act but must secure a waiver from the EPA.

Johnson denied California's request in December. When asked whether the administrator communicated with the White House in between his preference to do a partial grant and the ultimate decision, Burnett said, "I believe the answer is yes."

With a flourish, the EPA dismissed the news that Johnson has initially supported the waiver. "I equate this to deciding whether to wear a red tie or a blue tie in the morning," an EPA spokesperson told Reuters. "It doesn't make much difference until I put the tie on. To go through and suggest that maybe (Johnson) had a different opinion during the process -- none of that matters."

As the Post's Juliet Eilperin notes, the details of the White House involvement remain murky:

It remains unclear how exactly senior Bush officials intervened in the decision. Burnett said he was instructed not to answer questions about the White House's involvement, and the White House maintains that Johnson was not influenced by his talks with White House officials.

"As Administrator Johnson said in his statement, he made an independent decision and his decision was based on the facts and the law," said Kristen Hellmer, spokeswoman for the White House Council on Environmental Quality.

Given Johnson's previous refusals to divulge what he and the White House discussed, don't expect Waxman to make much progress with Johnson in today's hearing. The real fireworks may be between committee Democrats and Republicans. Ranking Member Tom Davis (R-VA) called yesterday's majority memo "a knee-jerk conclusion of nefarious intent by the White House derived from a manifestly incomplete investigation."

Must Read

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David Kurtz | May 19, 2008, 10:43AM

Here's a new one to add to the federal government's blizzard of acronyms: CUI.

It stands for "Controlled Unclassified Information" and it's the latest designation the Bush Administration has chosen for a sprawling class of materials and documents that falls short of meeting the standards to be stamped as classified, but which for one reason or another is considered sensitive.

The new CUI designation was announced two Fridays ago, while the President was in Texas for Jenna's wedding, in a memorandum from the White House. Be advised: the memo doesn't make for light reading. [Late Update: It was first reported by Kos contributing editor Michael Clark.]

As Walter Pincus reports in the Washington Post, CUI replaces SBU: Sensitive But Unclassified. The SBU framework was a mess:

"Among the 20 departments and agencies . . . surveyed, there are at least 107 unique markings and more than 131 different labeling or handling processes and procedures for SBU information," Ted McNamara of the office of the director of national intelligence told the House Homeland Security Committee in April 2007.

The Archives was asked to create a single set of policies and procedures on the way materials should be marked, stored safely and disseminated. There are to be three categories of dissemination -- standard, specified and enhanced specified. The latter two require measures to reduce possible disclosure.

If the ostensible reason for the new designation is intended to regularize and standardize the system for handling that vast trove of unclassified data, there are nonetheless other reasons why the most secretive administration in history might be interested in this sweeping new designation.

For one, it may help shield information otherwise subject to FOIA from disclosure, at least indirectly. It will be a factor in determining disclosure:

The Archives will establish "enforcement mechanisms and penalties for improper handling of CUI." The "controlled" classification "may inform," but will not determine, whether information can be made public in response to a Freedom of Information Act request.

Secondly, as Steven Aftergood, a senior research analyst at the Federation of American Scientists, notes:

[Th]e definition of what information may qualify as CUI, which includes anything that "under law or policy" requires protection from unauthorized disclosure, is vague and expansive.

The saving grace may be that many of the hard decisions about how CUI will work have not been made, and likely won't be made until after President Bush leaves office. So federal officials may dodge one of the memo's more comical requirements: "oral communications should be prefaced with a statement describing the controls when necessary to ensure that recipients are aware of the information's status."

It's a requirement that leads the Post's Pincus to imagine the absurd scenario where one government official talking to another about terrorists will have to preface the conversation with: "What I am about to tell you is controlled unclassified information enhanced with specified dissemination."

Global Warming

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Paul Kiel | May 16, 2008, 10:16AM

For those who've been watching the Environmental Protection Agency under the Bush administration, you're familiar with the following pattern: the EPA, over the objection of its own scientists, issues a new rule that weakens environmental controls, but when pressed for an explanation, EPA officials explain that the new rule has nothing to do with easing the restrictions on polluters. No -- the change is merely a clarification, or a technical fix to some nonsense bureaucratic rule, or the inescapable conclusion drawn from a sober appraisal of the law.

And here we go again. Here's the rule change (note the dissent from EPA scientists):

The Bush administration is on the verge of implementing new air quality rules that will make it easier to build power plants near national parks and wilderness areas, according to rank-and-file agency scientists and park managers who oppose the plan.

The new regulations, which are likely to be finalized this summer, rewrite a provision of the Clean Air Act that applies to "Class 1 areas," federal lands that currently have the highest level of protection under the law. Opponents predict the changes will worsen visibility at many of the nation's most prized tourist destinations, including Virginia's Shenandoah, Colorado's Mesa Verde and North Dakota's Theodore Roosevelt national parks.

And here is the explanation -- from a former EPA official who has departed to head the the environmental strategies group at the law firm Bracewell & Giuliani (yes, that Giuliani) no less:

Jeffrey R. Holmstead... helped initiate the rule change while heading the EPA's air and radiation office. He said agency officials became concerned that the EPA's scientific staff was taking "the most conservative approach" in predicting how much pollution new power plants would produce.

"The question from a policy perspective was: Do you need to have models based on the absolute worst-case conditions that were unlikely to ever occur in the real world?" Holmstead said in an interview Thursday. "This has to do with what [modeling] assumptions you're required to do. This is really a legal issue and a policy issue."

The new rule changes how pollution levels in parks are measured -- instead of frequent measures, the new rule "would average the levels over a year so that spikes in pollution levels would not violate the law." Just a common sense fix, you might say. But as one environmental advocate explains, "It's like if you're pulled over by a cop for going 75 miles per hour in a 55 miles-per-hour zone, and you say, 'If you look at how I've driven all year, I've averaged 55 miles per hour.'"

It looks like the EPA is really competing to not only be the most politicized of the agencies in the Bush Administration, but also to create the most lasting damage.

Must Read

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Paul Kiel | May 15, 2008, 10:09AM

OK, that's it! Let no one say that the administration has not handled the situation with its typical forbearance and caution. Other, rasher leaders would have shunned Ahmad Chalabi after it became apparent that his network of informants were liars and that he could not be trusted. But the U.S. has not been overly swift to act. Sure, there were suspicions that he had passed classified information to Iran, but this is not a group that rushes to judgment.

Now, however, the straw has finally broken the camel's back:

Sources in Baghdad tell NBC News that as of this week American military and civilian officials have cut off all contact with controversial Iraqi politician Ahmad Chalabi, the former favorite of Washington's once powerful neoconservatives.

The reason, the sources say, is "unauthorized" contacts with Iran's government, an allegation Chalabi denies. Iran has been accused of arming and training rebel Shiite forces in Iraq....

Since September 2007... American military officials and civilian officials working out of the U.S. Embassy had contacts with Chalabi. At that time he was installed as the head of a "services" committee for Baghdad that was to coordinate the restoration of services to the city's residents.

Gen. David Petraeus, commander of the Multi-National Forces-Iraq, even escorted Chalabi on a trip, on U.S. helicopters, to address reconstruction issues. And American officials attended meetings with him and supported his efforts.

Call it tough love.

Note: By the Charlie Black code of lobbying, it is now not OK to lobby for Ahmed Chalabi.

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Paul Kiel | May 14, 2008, 10:09AM

You'd think that an Iraqi anti-corruption crusader who testified before Congress about his travails would find no great difficulty in obtaining asylum in the United States. You'd think the U.S. would be grateful for the news that $18 billion worth of corruption had virtually "stopped" reconstruction in Iraq. But not so much.

Former State Department officials told Congress earlier this week that, though Radhi Hamza al-Radhi, the former head of the Iraqi Commission on Public Integrity, was able to get access into the U.S., he is not allowed to work and is living hand to mouth. Why has he fallen through the cracks?

It's always a toss-up between negligence/incompetence and malfeasance with this administration. On the negligence side of things, you have the disastrously impenetrable immigration system, which has allowed so few Iraqis to come to the U.S. As The New York Times reports today, U.S. soldiers have actually set up organizations to help their interpreters gain asylum, since the Iraqis, even though they face certain threat of death for collaborating with American forces, cannot navigate the system on their own. As one Army captain tells it, interpreters are required to produce a letter from a general, which he said was "like a junior associate at a Fortune 500 company asking the chief executive for a letter of recommendation."

But then there's the malfeasance side of things. One of the former officials testified that "a senior State Department official had ordered agency employees not to give al Radhi references or contact him" for help with his asylum.

That might have a lot to do with the trouble that Radhi gave Prime Minister Nouri al-Maliki and the administration. Like pointing out that corruption ran rampant under Maliki and that he'd jiggered the system so that corruption judges could not bring charges against any of his senior officials without his approval -- that was a decree on which Secretary of State Rice refused to pass judgment when she testified late last year. Rice also refused to comment on Radhi's many accusations.

Sen. Byron Dorgan (D-ND) declared at the hearing early this week that he is "going to ask the State Department what in the hell are they thinking." Somehow I don't think Rice will be any more forthcoming this time around.

Must Read

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Paul Kiel | May 13, 2008, 10:15AM

Just in time to run during the Spring sweeps, the Pentagon has rolled out a slate of charges against five Guantanamo Bay detainees for conspiring in the 9/11 attacks. Kudos to the Convening Authority for beating expectations with a well-timed launch.

Unfortunately, the move does come shortly after one of the senior Pentagon officials working on the commissions was disqualified from dealing with Osama Bin Laden's alleged driver Salim Hamdan's case. For some reason, the judge didn't seem to appreciate Brig. Gen. Tom Hartmann's taste for "sexy" cases that grab the public's attention (he's obviously never tried to run a PR campaign himself). It was a black eye surely, but you know the old saying: there's no such thing as bad press. They are riding that wave.

Now, the naysayers will point to the fact that the nascent commissions are sure to drag on for possibly as much as a year before the actual trials begin. There are still plenty of kinks (allegations of torture, politicization, lack of due process, etc.). And then there's the small matter of the Supreme Court, which might overturn the applecart all over again in the near future. You can understand the frustration of the administration: they had hoped to roll out the trials before the 2006 election, and here we are in the run-up to the 2008 election, and the clock is ticking.

But all is not lost. The detainees should be arraigned in June. And there should be frequent opportunities between now and November to remind the public of what's going on down there. Finally, justice is served.

Note: The Convening Authority Susan Crawford had planned to include charges against Mohammed al Qahtani, the supposed 20th hijacker, along with the other five, but Qahtani has been struck from the charging sheet. Now, Qahtani's lawyer has immediately jumped to the conclusion that Crawford's decision to dismiss the charges affirms "that everything he said at Guantánamo was extracted through torture -- or the threat of torture," and that his treatment was "so well documented and unconscionable that he is unprosecutable.'' But I gotta figure that this crew is sharper than that. Crawford can bring those chargers against Qahtani at any time. The 20th hijacker deserves his own unique launch, to be sure. Maybe in October?

Must Read

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Paul Kiel | May 12, 2008, 10:01AM

The president has said that his administration is employing every tool at their disposal to foil terrorists while protecting the civil liberties of Americans. For some reason, The Los Angeles Times opted not to take him at his word.

The secrecy necessary for counterterrorism prosecutions has combined with the rampant secrecy of the Bush administration to make it all but impossible to measure that balance. But the Times chooses a method, however imperfect, to gauge what's going on. Simply put: spying is up while counterterrorism prosecutions are down. The specifics:

A recent study showed that the number of terrorism and national security cases initiated by the Justice Department in 2007 was more than 50% below 2002 levels. The nonprofit Transactional Records Access Clearinghouse at Syracuse University, which obtained the data under the Freedom of Information Act, found that the number of cases brought declined 19% in the last year alone, dropping to 505 in 2007 from 624 in 2006.

By contrast, the Justice Department reported last month that the nation's spy court had granted 2,370 warrant requests by the department to search or eavesdrop on suspected terrorists and spies in the U.S. last year -- 9% more than in 2006. The number of such warrants approved by the Foreign Intelligence Surveillance Court has more than doubled since the 2001 terrorist attacks.

The department also reported a sharp rise in the use of national security letters by the FBI -- from 9,254 in 2005 to 12,583 in 2006, the latest data available. The letters seek customer information from banks, Internet providers and phone companies.

And as the Times notes, the Justice Department's performance in terrorism prosecutions has lately been underwhelming -- to wit, the farcical Seas of David case, where two juries have failed to reach a verdict.

As to what to make of these numbers, it depends on how much you're inclined to give the administration the benefit of the doubt.

On the civil liberty advocate of the question, the conclusion is clear:

"The number of Americans being investigated dwarfs any legitimate number of actual terrorism prosecutions, and that is extremely troubling -- for both the security and privacy of innocent Americans as well as for the squandering of resources on people who have not and never will be charged with any wrongdoing," said Lisa Graves, deputy director of the Center for National Security Studies, a Washington-based civil liberties group.

Meanwhile, the former head of the FBI national security law unit says it's just in the nature of the enterprise:

"Most of these threats ultimately turn out to be wrong, or maybe just the investigating makes them go away.... A lot more information is going to pass through government hands, and most of that is going to be about people who turn out to be innocent or irrelevant."

Must Read

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Paul Kiel | May 9, 2008, 10:09AM

Once again, Sen. John McCain's (R-AZ) invulnerability to the charms of lobbyists and his campaign supporters is put to the test.

This time it's The Washington Post going front page with the tale of McCain's role in a major Arizona land swap in 2005.

The basic thrust is this: a rancher owning 250 acres that intermingled with federally owned forest started pushing for a land swap that provide him with federal land in exchange for his own -- land that he could develop. Such land swaps are fairly common, though obviously easily abused. He was able to get the support of ex-Rep. J.D. Hayworth (R-AZ), but without McCain's backing the bill died in 2002.

After that, he decided to get smart and retained a number of lobbyists with connections to McCain. That, after all, is the way Washington works:

[The rancher Fred Ruskin], who is a pediatrician by training, said he realized he needed to hire lobbyists "to open communications with McCain's office."

He turned to some of McCain's closest former advisers. In 2002, he sought out Mark Buse, McCain's former staff director at the Senate commerce committee, which the senator chaired.

"I had gone to him to see if he had any advice as to how to deal with McCain," Ruskin said. "We had a couple of meetings and I paid him a little bit." Buse's federal lobbying records do not list the ranch as a client.

That year, lobbying records show, Ruskin also paid $60,000 to Michael Jimenez, another former McCain aide. Wes Gullett, who had worked in McCain's Senate office, managed his 1992 reelection bid, and served as deputy campaign manager for his 2000 presidential run, also lobbied on the bill, documents show. The watchdog group Public Citizen lists Gullett and his wife, Deborah, as bundlers who have raised more than $100,000 for McCain's White House bid. Ruskin also hired Gullett's partner, Kurt R. Davis, another McCain bundler and member of the senator's Arizona leadership team, to work with local officials and "to help with McCain if we needed help." Buse, Jimenez and Gullett did not return calls seeking comment.

With that sort of help, McCain became much more engaged. But McCain spokesman Brian Rogers "said that McCain does not recall being lobbied by his former staff members on the land swap and that 'no lobbyist influenced Senator McCain on this issue.'"

Nevertheless, somehow, some way Ruskin eventually ended up with his swap. And the company that's been hired to develop his new property is run by Steven A. Betts, "a longtime McCain supporter" who's raised $100,000 for McCain this election. (McCain's camp says that Betts' involvement was never discussed prior to the bill's passage.)

Now, is this is a major scandal? No. But like The New York Times' story last month, it shows McCain delivering for a campaign contributor in a way that belies his claim that he underwent a Road to Damascus conversion after the Keating Five scandal.

Surveillance

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Paul Kiel | May 8, 2008, 9:59AM

Three for three?

National Security Letters have been the FBI's favorite toy for the past several years, and who can blame them? With none of the hassle of a warrant and a gag order that ensures stealth, the NSL is a counterterrorism investigators best friend. The FBI issues tens of thousands of NSL requests each year (nearly 50,000 in 2006). After a major review by the Justice Department's inspector general last year found a host of abuses, FBI Director Robert Mueller promised that the FBI would clean up its act. But that doesn't necessarily mean that the number of NSLs issued has gone down -- just that agents are on alert that they can't be so sloppy.

Yesterday, the Electronic Frontier Foundation and ACLU announced that they'd succeeded in getting the FBI to back down from an NSL request issued in late 2007. The request had gone to the Internet Archive and had requested personal information about one of the Archive's users, including the individual's name, address, and any electronic communication transactional records. It just so happens that the Archive's Digital Librarian Brewster Kahle is on EFF's board of directors, and he decided to fight the request. Except it wasn't easy due to the gag order that accompanied the letter: "Because they initially were not allowed to discuss the NSL over the phone, Kahle and his attorneys had to drive to one another's offices whenever they wanted to talk about the case."

But Kahle's lawyers at the EFF and ACLU were ultimately successful -- and the ACLU says this means that they've won every time they've gone to court to fight a NSL:

Every time an NSL has been challenged in court, the FBI has backed off, said Melissa Goodman, an ACLU staff attorney. "That calls into question how much the FBI needed the information in the first place, and finally, whether the FBI needs this kind of sweeping and unchecked surveillance power."

The two other instances of NSL withdrawals involved a library and an Internet consulting business. In February 2004, the FBI served an NSL on the Internet firm. In November 2006, the FBI withdrew the letter, after a lawsuit by the ACLU, but maintained the gag order, which is why the firm has not been publicly identified. The lawsuit, which challenges the constitutionality of the law authorizing NSLs, is still pending.

In July 2005, the FBI served an NSL on Library Connection, a library consortium in Connecticut. That year, the ACLU sued on grounds similar to the other case. In April 2006, the FBI withdrew the gag order. Three months later, it withdrew the NSL as well.

Meanwhile the FBI says that the information requested was "relevant to an ongoing, authorized national security investigation." I guess they'll just have to get the information some other way.

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Paul Kiel | May 7, 2008, 9:57AM

Nobody does compromise quite like the Bush administration.

If you're a regular reader of TPM, you're familiar with Hans von Spakovsky and in particular, Spakovsky's remarkable track record at the Justice Department's Civil Rights Division. It is because of that record -- one of ignoring, marginalizing, and intimidating career lawyers in order to institute restrictive voting laws all over the country, a pattern amounting to "institutional sabotage" as one former career attorney there put it -- that Senate Democrats (Barack Obama and Russ Feingold in particular) opposed his nomination to the Federal Election Commission.

Spakovsky was one of four nominees -- two Dems and two GOPers -- to the commission. The other three were uncontroversial. Senate Republicans insisted that all nominees be voted on together, and the Democrats objected: Spakovsky would have to get his own vote. The Republicans refused, and there things have stood for more than four months. Without the necessary number of commissioners, the FEC has essentially shut down.

It is a problem that has a relatively simple solution: if the White House were to submit another nominee, that nominee would more than likely be quickly confirmed without much trouble.

Instead, the Bush administration proposed something different yesterday.

Spakovsky remains a nominee. Instead, the administration has submitted a new nominee to replace the current chairman, David Mason. Mason is one of the only two seated commissioners, and it just so happens that he's been creating a whole lot of trouble for John McCain lately.

In February, the McCain campaign notified the FEC that it was withdrawing from the public financing system for the primary. Although McCain had once opted in, his campaign said that it had never received public funds and so could opt out. The move meant that McCain would not be bound by the $54 million spending limit for the system.

But Mason balked. McCain couldn't just opt out -- the FEC had to approve his request before he could. And Mason also indicated that a tricky bank loan might mean that McCain had locked himself in to the system. That would be disastrous for the campaign, since the Dem nominee would have a tremendous spending advantage through August. So McCain's campaign has continued to spend away, far surpassing the limit already. The Democratic Party has filed a complaint with the FEC and has also taken the matter to court.

And now Mason is getting the boot.

So where's the compromise, exactly? A White House spokeswoman tells The New York Times that Republicans are now willing to have a separate vote for Spakovsky. Whether that actually is the case, we shall see. If so, that means Democrats will have the chance to actually vote down Spakovsky once and for all.

But there is no shortage of cynicism about the White House's move. As Fred Wertheimer of Democracy 21 put it: "The only apparent reason for President Bush to drop Commissioner David Mason at this stage, an FEC candidate he had twice proposed for the Commission, is to prevent him from casting an adverse vote against Senator McCain on important enforcement questions pending at the Commission. The questions deal with Senator McCain's request to withdraw from the presidential primary public financing system and the consequences of a loan the McCain campaign took out and the collateral provided for the loan."

Torture

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Paul Kiel | May 6, 2008, 10:13AM

Forget about the frustration at the slow pace of the military commissions at Guantanamo Bay. You know it's got to really burn the administration to miss a good chance for a PR coup.

But as The Washington Post reports this morning, things are moving at such a glacial pace down in sunny Guantanamo that it seems impossible at this point that any of the September 11th suspects will begin trial before the election -- or even before the Bush administration leaves office.

You know that's got to burn because of comments made by the Pentagon officials heading up the trials. The former chief prosecutor there testified that he was told that he should really push to land plea deals or indictments before the election. And another member of the prosecution team said the Pentagon's top legal adviser in its commissions office wanted to pursue certain cases ahead of others because they would "seize the imagination of the American public" and make a splash.

But the only case that seems at all likely to go to trial before the election is that of Salim Ahmed Hamdan, the alleged driver for Osama bin Laden. And the pretrial hearings for that have been far from pretty -- with Gitmo's former chief prosecutor testifying about the politicization of the system, and Hamdan, who says he has been addled by torture and prolonged solitary confinement, himself proclaiming that he won't participate in what he sees as a rigged system.

The apparent problem is that it just takes a long time to work out the kinks of a made-up process. As a lawyer from Human Rights Watch puts it, "Every little detail ends up being contested, because it's an entirely new system of justice."

But administration officials are trying to keep their chins up, their eyes on the prize. In answering criticisms that the process will be occasionally and arbitrarily shielded from the press, Air Force Brig. Gen. Thomas Hartmann, the top legal authority in the Pentagon's Office of Military Commissions and the man who was, according to those prosecutors referenced above, so keen on landing indictments before the elections, is unapologetic. Certain things have to be blocked from the press to ensure that classified or sensitive information is not disseminated, he says. And besides, who needs publicity?

Hartmann said that within the military commissions process, "the principal obligation is not to the press," and that the cases are full, fair and open because of the rights afforded to the defendants. "That's what we do in the American system of justice," he said.

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Paul Kiel | May 5, 2008, 9:58AM

Five years after the invasion of Iraq, there seems to have been a rash of accounting lately.

Consider: in March, the Joint Forces Command released (after a pathetic attempt at squelching it) a report definitively proving that there were no operational links between Saddam Hussein's Iraq and Al Qaeda. That same month, The New York Times provided a detailed account of Paul Bremer's infamous decision to disband the Iraqi Army. And then of course there's Doug Feith's book, which purports to show how things would have gone so much better if everyone had just listened to Doug Feith -- a thesis that's necessarily met incredulity in a number of brutal interviews.

Some of this is just because enough time has passed that the players feel safe giving interviews. But then there's also the case of suppressed information that's finally seeing the light of day. In February, for example, the Times revealed that a 2005 report by the publicly-funded RAND Corporation had been buried because its conclusions were inconvenient. The report faulted just about everyone in the administration for not adequately preparing for securing postwar Iraq.

And here's what appears to be another example of a buried report. Lt. Gen. Ricardo Sanchez, the commander of U.S. Forces in Iraq from the beginning of the occupation until 2004, has written a memoir. And he has a couple scores to settle. One, to be sure, is that he thinks he was scapegoated for the abuses at Abu Ghraib. The other has to do with how he was left in command of Iraq with far too few troops.

In an excerpt from the book published in Time, Sanchez tells how Rumsfeld, two years after that disastrous year in Iraq, called Sanchez into his office to try to diffuse blame. Rumsfeld hadn't known that Sanchez, commander of the Army's V Corps, was left in charge while CENTCOM and CFLCC [coalition land forces] staffs had pulled out, he said, and he'd written a memo of that official version to prove it.

But Sanchez wasn't buying it, he writes, and told Rumsfeld, "I just can't believe you didn't know." Rumsfeld flipped out. The meeting ended, Sanchez writes, with Rumsfeld saying that he was going to order a report to find out what happened. But that didn't go so well:

[Adm. Ed Giambastiani, Vice Chairman of the Joint Chiefs] assigned the task to the Joint Warfighting Center and gave them a pretty tight timeline. So it wasn't long before I was giving the investigative team a complete rundown of everything that had happened in Iraq between May and June 2003. I later learned that Gen. Tommy Franks, however, had refused to speak with them.

A few months later, I was making a presentation at the Joint Warfighting Center and ran across several of the people involved with the study. "Say, did you guys ever complete that investigation?" I asked.

"Oh, yes sir. We sure did," came the reply. "And let me tell you, it was ugly."

"Ugly?" I asked.

"Yes, sir. Our report validated everything you told us -- that Franks issued the orders to discard the original twelve-to-eighteen-month occupation deployment, that the forces were drawing down, that we were walking away from the mission, and that everybody knew about it. And let me tell you, the Secretary did not like that one bit. After we went in to brief him, he just shut us down. 'This is not going anywhere,' he said. 'Oh, and by the way, leave all the copies right here and don't talk to anybody about it.'"

"You mean he embargoed all the copies of the report?" I asked.

"Yes, sir, he did."

From that, my belief was that Rumsfeld's intent appeared to be to minimize and control further exposure within the Pentagon and to specifically keep this information from the American public.

Update: Here's William Arkin's take on Sanchez.

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Paul Kiel | May 2, 2008, 10:05AM

Can it really be true? Will the high priest of executive privilege actually submit to a Congressional subpoena?

When House Judiciary Committee Chair John Conyers (D-MI) invited a slate of current and former administration officials to testify about the authorization of torture, I was skeptical that he would meet much cooperation. But when it came to David Addington, Dick Cheney's chief of staff and longtime consigliere, the idea seemed downright ludicrous. If Addington has spoken publicly or even given an interview in the last eight years, I'm unaware of it.

But in a letter (pdf) to the committee yesterday, the vice president's counsel Kathryn Wheelbarger signaled a willingness to cooperate. It was, for sure, a long way from the original reply, which I summarized at the time as, "You're asking the wrong person, but even if you were asking the right person, you couldn't make him show up, and even if he did show up, he wouldn't say anything."

Yesterday's letter is a change of tone. Because the committee has signaled that it will limit the range of its inquiries (this is Addington only speaking for himself, he can't speak about communications with the Vice President or President, he has the right to invoke "applicable legal privileges), Addington seems to be leaning towards showing up.

That doesn't mean that the vice president's office has changed their mind about whether he has to show up, mind you. The courts would agree that Addington is "immune from compulsion," Wheelbarger writes. But Addington might show up out of the goodness of his heart, "as a matter of comity," as the letter puts it.

The letter falls short of saying that Addington will definitely show up to Tuesday's hearing, but Wheelbarger does write that "the Chief of Staff to the Vice President is prepared to accept timely service of a Committee subpoena for testimony for a hearing on May 6, 2008." When the Politico asked Cheney's spokeswoman whether this meant that Addington would comply, she said "Since he hasn't been issued a subpoena, it would be a little premature to comment on whether he would comply." He is a coy one, that Addington.

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Paul Kiel | May 1, 2008, 9:59AM

You know those secret legal opinions by the Justice Department that tell the administration how far it can go without breaking the law? After all the hullabaloo over John Yoo's five year-old torture authorization memo, Attorney General Michael Mukasey assured Congress that the Justice Department really was working on releasing other memos. But he made no promises.

And yesterday, during a hearing on secret law held by Sen. Russ Feingold (D-WI) before the Senate Judiciary Committee, an official from the Office of Legal Counsel promised that the Department would allow members of the intelligence committees to see them -- but lawmakers won't be able to keep paper or electronic copies. The Department says that it's thinking really hard about whether the Senate Judiciary Committee can see them as well. For some reason, Feingold and his peers didn't seem satisfied.

The man who was the top classification official until January of this year appeared at the hearing and testified that the Department's decision to mark Yoo's torture memo "secret" and keep it classified for years after it was withdrawn showed "either profound ignorance of or deep contempt for" classification rules.

But as Donald Rumsfeld put it, there are known unknowns and unknown unknowns. And with this group, it's always a toss-up which is more worrying:

At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.

Senator Sheldon Whitehouse, Democrat of Rhode Island, challenged Mr. Elwood, saying the administration's legal stance would let it secretly operate programs that are at odds with public executive orders that to all appearance remain in force....

Mr. Whitehouse, who sits on the Judiciary and Intelligence Committees, has said the administration's contention that it can selectively modify executive orders "turns The Federal Register into a screen of falsehoods behind whose phony regulations lawless programs can operate in secret."

Mr. Elwood said publicly available legal opinions dating from 1987 make clear the Justice Department's view that the president has the power to change executive orders.

Mr. Whitehouse said, "There's an important piece missing from that, which is not telling anybody and running a program that's completely different from the executive order."

Only seven more months of the Bush administration to go, and plenty more to find out.