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Dismantling the Justice Dept.

drip drip drip, What is left of American Justice is going down the drain
Yet Another Bush Lie 09.Feb.2006 00:51

By Robert Parry / February 8, 2006 (reposted)

George W. Bush has assured Americans that they can relax about his warrantless wiretapping because the program is reviewed by lots of lawyers and intelligence professionals. What he doesn't say is that officials who object too much find themselves isolated, ridiculed and pushed out of their jobs.

For instance, when Deputy Attorney General James Comey refused to recertify the spying program in March 2004 - while Attorney General John Ashcroft was in the hospital - Bush gave Comey a derisive nickname, as "Cuomey" or "Cuomo" after New York's former liberal Democratic Gov. Mario Cuomo, Newsweek has reported.

Similarly, a high-ranking intelligence official who questioned the wiretapping program told the Washington Post that his objections soon made him an unwanted outsider. He encountered awkward silences when he attended meetings where the eavesdropping rules were discussed.

"I became aware at some point of things I was not being told about," the intelligence official said. [Washington Post, Feb. 5, 2006]

Another outcast from the Bush administration's clique of insiders was Assistant Attorney General Jack Goldsmith, who reportedly led an internal rebellion of Justice Department lawyers who protested Bush's assertion of nearly unlimited presidential powers for the duration of the War on Terror.

"Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law," Newsweek wrote. "They did so at their peril; ostracized, some were denied promotions, while others left for more comfortable climes in private law firms and academia."

White House Nerves

Goldsmith - a Republican conservative but not a believer in the absolutist Presidency - started getting on the White House's nerves in fall 2003 after taking over the Justice Department's Office of Legal Counsel (OLC).

First, Goldsmith argued that Iraqi prisoners were protected by the Geneva Conventions and couldn't be subjected to coercion. Then, Goldsmith challenged a legal memo that had supported Bush's right to authorize torture.

Vice President Dick Cheney's chief counsel David Addington addressed Goldsmith with dripping sarcasm, accusing him of undermining the powers of the President, Newsweek reported in its Feb. 6, 2006, edition.

"Now that you've withdrawn legal opinions that the President of the United States has been relying on," Addington reportedly told Goldsmith, "I need you to go through all of OLC's opinions (relating to the War on Terror) and let me know which ones you still stand by."

Goldsmith's opposition to Bush's program for warrantless wiretapping of Americans brought the tensions to a head. He drew support from Comey, who refused to sign a recertification of the wiretap program in March 2004 when he was filling in for ailing Attorney General Ashcroft.

White House chief of staff Andrew Card and Bush's counsel Alberto Gonzales rushed to visit Ashcroft, who was hospitalized for gallbladder surgery. Faced with Comey's objections - and the resistance from Goldsmith - Ashcroft also balked at continuing the wiretap program, which was temporarily suspended while a compromise was reached on more safeguards. [NYT, Jan. 1, 2006]

The battle over the warrantless wiretaps reportedly earned Comey the derisive nickname from Bush as "Cuomey" or just "Cuomo," a strong insult from Republicans who deem the former New York governor to be both excessively liberal and famously indecisive.

Comey - previously a well-respected Republican lawyer who was credited with prosecuting key terrorism cases including the Khobar Towers bombing which killed 19 U.S. servicemen in 1996 - had been deputy attorney general since December 2003.

Plame Case

But by 2004, Comey already was wearing out his welcome with the White House. He also was responsible for picking Patrick Fitzgerald to be special prosecutor to investigate who leaked the identity of a covert CIA officer after her husband, former Ambassador Joseph Wilson, criticized Bush's misuse of intelligence on Iraq.

In 2003, when Ashcroft was still handling the investigation, Bush had expressed confidence that the leakers would never be identified. But Ashcroft stepped aside because of conflicts of interest and his deputy, Comey, selected U.S. Attorney Fitzgerald.

By mid-2004, Fitzgerald was proving himself to be a dogged investigator as he zeroed in on Cheney's chief of staff Lewis Libby and Bush's political adviser Karl Rove as two officials suspected of exposing CIA officer Valerie Plame.

Demanding testimony from prominent journalists, such as New York Times correspondent Judith Miller, Fitzgerald was too high profile for the White House to easily remove. But the days of Comey - Fitzgerald's chief ally - were numbered.

After the "torture memo" leaked to the Washington Post in June 2004, Comey and Goldsmith threw down the gauntlet again, leading the fight to repudiate the memo and pressing for a revised version that deleted the most controversial elements, again angering the White House, according to Newsweek.

Facing withering criticism from White House hardliners, Goldsmith was the first big name to go. In summer 2004, a battered and exhausted Goldsmith quit the Justice Department to become a professor at Harvard Law School.

Comey's Departure

A year later, Comey followed Goldsmith out of the department, going into private law practice. On Aug. 15, 2005, in his farewell speech, Comey urged his colleagues to defend the integrity and honesty of the department.

"I expect that you will appreciate and protect an amazing gift you have received as an employee of the Department of Justice," Comey said. "It is a gift you may not notice until the first time you stand up and identify yourself as an employee of the Department of Justice and say something - whether in a courtroom, a conference room or a cocktail party - and find that total strangers believe what you say next.

"That gift - the gift that makes possible so much of the good we accomplish - is a reservoir of trust and credibility, a reservoir built for us, and filled for us, by those who went before - most of whom we never knew. They were people who made sacrifices and kept promises to build that reservoir of trust.

"Our obligation - as the recipients of that great gift - is to protect that reservoir, to pass it to those who follow, those who may never know us, as full as we got it. The problem with reservoirs is that it takes tremendous time and effort to fill them, but one hole in a dam can drain them.

"The protection of that reservoir requires vigilance, an unerring commitment to truth, and a recognition that the actions of one may affect the priceless gift that benefits all. I have tried my absolute best - in matters big and small - to protect that reservoir and inspire others to protect it."

Bush first tried to replace Comey with Timothy Flanigan, a former deputy White House counsel who had become general counsel of Tyco International. But Flanigan's nomination foundered over questions about his dealings with corrupt Republican lobbyist Jack Abramoff and Flanigan's role in developing White House interrogation policies.

'Torture Memo'

In 2002, as deputy to then-White House counsel Gonzales, Flanigan joined other right-wing lawyers in advocating legal strategies for protecting administration officials implicated in abuse of detainees.

An Aug. 1, 2002, memo - prepared by hardliners in the Justice Department and signed by Jay Bybee, then-chief of the Office of Legal Counsel - defined torture so narrowly that interrogators would have wide latitude in abusing prisoners to extract information.

The memo also sought to give Bush authority to order outright torture of detainees. This "torture memo" argued that U.S. government operatives should be spared prosecution for torture if they had Bush's approval.

Flanigan sat in on at least one meeting during which lawyers discussed various torture techniques, including telling detainees that they would be buried alive and subjecting them to "waterboarding" which involves tying a person to a board and using water to simulate drowning.

Flanigan and Addington reportedly tried to shepherd this policy through the government by limiting the opportunities for critical comments. As Newsweek reported, Flanigan and Addington "came up with a solution: cut virtually everyone else out."

During questioning by the Senate Judiciary Committee on his nomination to replace Comey, Flanigan declined to say whether he voiced support for the "torture memo" in its original version, although he did say he supported a revised - less sweeping - version in December 2004.

Flanigan also told the committee that he saw ambiguities in setting limits on the abuse of detainees, saying that he did "not believe that the term 'inhumane' is susceptible to succinct definition." As the fight over his nomination grew more contentious, Flanigan asked Bush to withdraw his name on Oct. 6, 2005. [Washington Post, Oct. 8, 2005]

With Flanigan's nomination in flames, the acting deputy to now-Attorney General Gonzales became Paul McNulty, who also has a strong pedigree as a hardline Republican legal operative, a Bush loyalist and a member of Gonzales's inner circle.

McNulty was chief counsel to the Republican-run House Judiciary Committee when it pressed for impeachment of Democratic President Bill Clinton in 1998. McNulty also headed Bush's Justice Department transition team after Election 2000. [NYT, Oct. 21, 2005]

Plame Probe

Since Gonzales - like Ashcroft - has recused himself on the Plame leak investigation, McNulty also has inherited the job of overseeing Fitzgerald. In that position, the deputy attorney general can apply subtle pressure on the special prosecutor through the allotment of staff and other bureaucratic means.

The notion of constraining the work of a special prosecutor by gaining control of his oversight is not unprecedented.

After Iran-Contra special prosecutor Lawrence Walsh broke through a long-running White House cover-up of that scandal in 1991, Republican Supreme Court Chief Justice William Rehnquist engineered a behind-the-scenes coup against the senior judge overseeing Walsh.

In 1992, Rehnquist ousted moderate Republican Judge George MacKinnon as chief of the three-judge panel that picked and oversaw independent counsels. MacKinnon had staunchly backed Walsh, another old-time Republican jurist, as he peeled back the secrets of the complex Iran-Contra schemes, which threatened George H.W. Bush's reelection.

At that key moment, Rehnquist replaced MacKinnon with Judge David Sentelle, one of President Ronald Reagan's conservative judicial appointees and a protégé of Sen. Jesse Helms, then one of the most right-wing Republicans in the U.S. Congress.

Earlier, as a judge on the U.S. Court of Appeals in Washington, Sentelle had teamed with another Republican judge, Laurence Silberman, to overturn the felony convictions of Oliver North in 1990. Sentelle also provided one of the two votes in 1991 to throw out the convictions of North's boss, National Security Adviser John Poindexter.

Faced with these obstructions, Walsh had come to view the Reagan-Bush loyalists on the U.S. Court of Appeals as "a powerful band of Republican appointees [who] waited like the strategic reserves of an embattled army." Sentelle, who had named his daughter Reagan after the President, was one of those "strategic reserves."

A dozen years later, George W. Bush executed a similar maneuver, replacing a relatively non-partisan Republican (Comey) with two candidates who are considered more politically reliable - or some might say pliable (Flanigan and McNulty).

With Comey gone, Fitzgerald still pressed ahead with his investigation of the White House leak of Plame's identity, but he had lost the strong institutional support that Comey had provided.

On Oct. 28, 2005, Fitzgerald indicted Libby for lying to investigators and obstructing justice, but the special prosecutor backed off from his expected indictment of Rove, who had become Bush's deputy chief of staff.

(Significantly, Libby was replaced as Cheney's chief of staff by David Addington, who had helped formulate the White House policy on torture.)

On Feb. 6, 2006 - with few Americans knowing or understanding the significance of this history - Gonzales testified before the Senate Judiciary Committee, avoiding any details about the internal disputes on the legality of Bush's warrantless wiretaps.

Gonzales simply told the senators that the administration's reading of the Foreign Intelligence Surveillance Act of 1978 let Bush bypass its seemingly clear language requiring warrants from a special secret court for wiretaps of communications originating in the United States.

Even Republican senators Arlen Specter and Lindsey Graham objected to the administration's strained interpretation of the law.

But Bush, in effect, is buying time while he builds federal judicial majorities in favor of his vision of an all-powerful presidency.

Bush took a big step in that direction with the confirmation of Justice Samuel Alito, an architect of the so-called "unitary executive" theory. The U.S. Supreme Court now has at least four of nine justices who favor granting the President virtually unlimited powers as Commander in Chief.

In the meantime, Bush is relying on shrewd bureaucratic maneuvers - neutralizing and removing skeptics - in order to fend off harassing actions by Democrats and other Americans, including traditional Republican lawyers, who oppose Bush's extraordinary assertions of power.


Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'