No Comment — August 16, 2007, 12:09 am

This Week in Justice: a Round-Up

Gonzales travels to Baghdad and suddenly a series of suicide bombings produce up to 500 casualties on a single day. The Army announces that the suicide rate among U.S. soldiers hits the highest rate in 26 years. Terrible news, of course, but all far from the responsibility of Alberto Gonzales. However, the storm over the Justice Department is far from dispersing. It seems to be settling in. And Congressman David Obey was no doubt speaking for millions of Americans, as well as a majority in Congress, when he expressed his gushing warmth for Gonzales this way:

He’s one sneaky, lying S.O.B., to put it bluntly. He’s the most authoritarian attorney general in the history of the republic. He’s the most dangerous. I never thought I’d long for the days of John Ashcroft.

Which helps explain why Gonzales felt both safer and more loved in Baghdad, car bombs included. Momentum for Gonzales’s impeachment continues to build throughout the country.

How Many U.S. Attorneys Were Fired?
It’s a very simple question. It’s been posed repeatedly for a period of eight months. And repeatedly the responses come: cute, slippery, practiced evasions. Exactly the sort of thing that a sober, experienced prosecutor wouldn’t hesitate to call by its proper name, obstruction of justice. At this point the game has been going on for so long that suspicions are building across Washington. The number is most likely much higher than thought.

ABC News correspondent Justin Rood lays the groundwork and asks the looming questions:

Could the U.S. Attorneys firing scandal be bigger than Americans know? For months, the Bush administration has declined to directly answer a key question posed by Congress: were more top federal prosecutors targeted for dismissal beyond the nine that have been publicly identified?

In a new letter to senators who have been pushing for the answer, a Justice Department official said only that it was contained in information shared earlier by Justice staff in interviews with Senate aides. “Wholly unsatisfactory,” declared Sen. Dianne Feinstein, D-Calif., a recipient of the letter, blasting the arguably cryptic response.

Gonzales Death Watch
No, we’re not expecting Alberto Gonzales to depart the earthly realm. The watch has to do with special powers over death penalty cases that Gonzales stealthily seized for himself in some underhanded drafting of the Patriot Act extension. As I noted earlier (“The Gonzales Death Cult”), Gonzales has, since the days he served Governor George W. Bush, worked hard to use executions for political gain. His review and handling of death-penalty cases shocked even Republicans and have been the subject of reputation-scorching commentary in professional publications. What Gonzales plotted only became apparent earlier this week. As the Los Angeles Times reports:

The Justice Department is putting the final touches on regulations that could give Atty. Gen. Alberto R. Gonzales important new sway over death penalty cases in California and other states, including the power to shorten the time that death row inmates have to appeal convictions to federal courts. The rules implement a little-noticed provision in last year’s reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use “fast track” procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court. The move to shorten the appeals process and effectively speed up executions comes at a time of growing national concern about the fairness of the death penalty, underscored by the use of DNA testing to establish the innocence of more than a dozen death row inmates in recent years.

But Senators Leahy and Specter, the senior Democrat and Republican on the Judiciary Committee, have put in a hold. The AP reports:

In a letter sent to Attorney General Alberto Gonzales obtained by AP Tuesday, the senators warned that any changes to “this complex and heavily litigated area of the law” in which defendants sentenced to death have high stakes must made with care. The new guidelines will limit the amount of time defendants have to file a federal appeal to six months after their conviction, and also impose strict limitations on how long federal judges can take to decide the appeals.

In the meantime, former U.S. Attorney in Phoenix, Paul Charlton, fired by Gonzales evidently because of a probe he was conducting of a Republican lawmaker, commented on the Gonzales power grab this way:

“In my own personal experience with the AG, and having watched his testimony regarding my dealings with him, I know that the AG reflects little on the issue of the death penalty,” Charlton said in an interview on Tuesday. “What gives me to pause is not the need for the law, but that the individual who will be deciding if the states merit such a change will be the attorney general.”

Beyond Kafka
In Franz Kafka’s novel The Trial, Josef K. awakens one morning to discover that he has been charged with a crime. He never really ascertains what the crime is—apparently it’s secret, or what the court is before which he is to be brought, which apparently is also secret. And he’s not sure if he really has a lawyer, either, though people appear from time to time claiming to be that. At the core of the novel is the parable “Before the Law,” in which we learn that the law, itself, is a secret, so he may never know what it is. Now this could be the fantasy world of Franz Kafka. Or it could be the legal world which George W. Bush and Alberto Gonzales are very busy crafting in America this very day.

Consider this report of a trial proceeding in Kafkaesque absurdity, which is to say, in accordance with Bush Administration secrecy notions, in San Francisco. Coverage courtesy of Wired magazine:

2:20pm PDT

Judge Harry Pregerson suggests the government is asking the courts to “rubber stamp” the government’s claim that state secrets are at risk “Who decides whether something is a state secret or not? … We have to take the word of the members of the executive branch that something is a state secret?”

[U.S. Attorney] Garre counters that the courts should give “utmost deference” to the Bush administration.

Judge Pregerson: “What does utmost deference mean? Bow to it?”

2:30pm PDT

All three judges are giving Garre skeptical questions about the power of the state secrets privilege. They’re also getting stonewalled a bit.

“Was a warrant obtained in this case?” Judge Pregerson asks.

“That gets into matters that were protected by state secrets,” Garre replies.

2:45pm PDT

Judge McKeown asks whether the government stands by President Bush’s statements that purely-domestic communications, where both parties are in the United States, are not being monitored without warrants.

“Does the government stand behind that statement,” McKeown asks.

Garre: “Yes, your honor.”

But Garre says the government would not be willing to sign a sworn affidavit to that effect for the court record.

Pregerson, by his record, is the most liberal judge on the panel, and he clearly thinks the government is just looking for a blank check for their secret program. But the other two judges aren’t thrilled either. They seem perplexed that the government attorney can’t swear under oath that the Bush Administration isn’t warrantlessly spying on domestic phone calls.

Note the core: whether the Government is breaking the law is a “state secret.” This will, I believe, be used by historians as a hallmark for the entire Gonzales Justice Department: the use of the state secrets doctrine to cloak criminal conduct. The question now is whether we still have judges with a spinal column.

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