While the Senate dickers on Mukasey, a dangerous Acting AG assumes the helm at DOJ.

[seafan]

With the unfolding scrutiny of Michael Mukasey as Bush's nominee for the next Attorney General, Glen Greenwald at Salon gets to the troubling heart of it:

.....

Judge Mukasey repeatedly defied the demands of the Bush administration, ruled against them, excoriated them on multiple occasions for failing to comply with his legally issued orders, and ruled that Padilla was entitled to contest the factual claims of the government and to have access to lawyers. He issued these rulings in 2002 and 2003, when virtually nobody was defying the Bush administration on anything, let alone on assertions of executive power to combat the Terrorists. And he made these rulings in the face of what was became the standard Bush claim that unless there was complete acquiescence to all claimed powers by the President, a Terrorist attack would occur and the blood would be on the hands of those who impeded the President.

.....

Mukasey thus rejected the notion that Padilla's detention could be justified based on the unchecked, unchallengeable, secret assertions of the President.

Mukasey's actions were notable because they came at a time when there were virtually no other limits being placed on the President's power. Stalwart rule of law defender Bruce Fein, in a December 2002 Op-Ed in The Washington Times, called Mukasey's decision a "narrow, prudent, and impeccable decision" and said it "sets a standard to which the wise and honest jurist should repair."

Sounds good so far, doesn't it?


Here's the crux of the problem from Greenwald:

Judge Mukasey's respect for the Constitution and the rule of law should not be overstated. As part of his ruling that Padilla was entitled to counsel and to contest the factual accusations against him, Mukasey also ruled, very dubiously, that President Bush had the authority to detain American citizens, even those detained on U.S. soil, as "enemy combatants," and that they need not be charged with any crimes. He thus rejected Padilla's claim that, as a U.S. citizen, the Constitution barred his incarceration without criminal charges being brought and a conviction obtained in a court of law.

That ruling by Mukasey was resoundingly reversed by the Second Circuit on appeal (.pdf), which held that "the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat." Mukasey's ruling that Bush has the power to detain American citizens as "enemy combatants" was also rejected by the Bush43-appointed federal judge in South Carolina (.pdf) to whom the Supreme Court transferred the Padilla case (though Mukasey's ruling was adopted by a far right Fourth Circuit panel on appeal).

It was that question -- whether the President can constitutionally detain U.S. citizens arrested on U.S. soil as "enemy combatants" -- which the Supreme Court was set to resolve when the administration finally charged Padilla with crimes, transferred him to a criminal court, and argued (successfully) that the case was therefore moot, thus leaving standing the Fourth Circuit ruling that the President possesses this power. If Mukasey is the nominee, he should certainly be questioned aggressively about whether he believes that the President does have this authority and whether he would intend as Attorney General to defend that authority if it were exercised again.

.....

But just as swiftly as Bush had named Paul Clement as Acting Attorney General, Bush abruptly and in low-key fashion, announced during Mukasey's nomination fanfare yesterday, to yank Clement and install Peter Keisler as Acting Attorney General instead.

Curious, no?

Until the Judge is confirmed, Assistant Attorney General Paul Keisler will serve as acting Attorney General. Accepting this assignment requires -- Peter -- I said -- Peter Keisler. Accepting this assignment requires Peter to delay the departure date he announced earlier this month, and I appreciate his willingness to do so. Peter is the acting Attorney General. Paul Clement, who agreed to take on this role, will remain focused on his duties as Solicitor General, so he can prepare for the Supreme Court term that begins just two weeks from today. ----George W. Bush, September 17, 2007

Who is this Keisler fellow?


Prosecutor Says Bush Appointees Interfered With Tobacco Case, March 22, 2007

The leader of the Justice Department team that prosecuted a landmark lawsuit against tobacco companies said yesterday that Bush administration political appointees repeatedly ordered her to take steps that weakened the government's racketeering case.
Sharon Y. Eubanks said Bush loyalists in Attorney General Alberto R. Gonzales's office began micromanaging the team's strategy in the final weeks of the 2005 trial, to the detriment of the government's claim that the industry had conspired to lie to U.S. smokers.

She said a supervisor demanded that she and her trial team drop recommendations that tobacco executives be removed from their corporate positions as a possible penalty. He and two others instructed her to tell key witnesses to change their testimony. And they ordered Eubanks to read verbatim a closing argument they had rewritten for her, she said.

"The political people were pushing the buttons and ordering us to say what we said," Eubanks said. "And because of that, we failed to zealously represent the interests of the American public."

Eubanks, who served for 22 years as a lawyer at Justice, said three political appointees were responsible for the last-minute shifts in the government's tobacco case in June 2005: then-Associate Attorney General Robert D. McCallum, then-Assistant Attorney General Peter Keisler and Keisler's deputy at the time, Dan Meron.

News reports on the strategy changes at the time caused an uproar in Congress and sparked an inquiry by the Justice Department. Government witnesses said they had been asked to change testimony, and one expert withdrew from the case. Government lawyers also announced that they were scaling back a proposed penalty against the industry from $130 billion to $10 billion.

High-ranking Justice Department officials said there was no political meddling in the case, and the department's Office of Professional Responsibility (OPR) concurred after an investigation.
Yesterday was the first time that any of the government lawyers on the case spoke at length publicly about what they considered high-level interference by Justice officials.

Eubanks, who retired from Justice in December 2005, said she is coming forward now because she is concerned about what she called the "overwhelming politicization" of the department demonstrated by the controversy over the firing of eight U.S. attorneys. Lawyers from Justice's civil rights division have made similar claims about being overruled by supervisors in the past.

Eubanks said Congress should not limit its investigation to the dismissal of the U.S. attorneys.

"Political interference is happening at Justice across the department," she said. "When decisions are made now in the Bush attorney general's office, politics is the primary consideration. . . . The rule of law goes out the window."

.....

And for years, Peter Keisler was a key attorney for AT&T, defending the telecom giant against charges of invasion of privacy. He also helped derail the rights of citizens to subpoena AT&T's records in the illegal wiretapping cases.



For these two reasons alone, Keisler should be yanked from taking over DOJ while we wait for the Senate to decide on Mukasey.



From TheNextHurrah:

In the late 1990s, Keisler represented AT&T before SCOTUS in a case divvying up authority over how the 1996 Telecom Act would be implemented. He represented AT&T and other telecom companies fighting local ordinances limiting the acts of telecommunication companies.

In early 2001, Keisler helped AT&T win the dismissal of a lawsuit that charged AT&T had illegally shared private information (a customer's unlisted phone number) with AT&T's credit division.The Second Circuit ruled that transfer of such personal information does not incur damages, and therefore private citizens cannot sue.

In June 2006, Keisler was one of a number of government lawyers arguing that New Jersey had no legal authority to subpoena documents relating to AT&T's and other telecomm companies' participation in the warrantless wiretapping program. Also in June 2006, Keisler invoked state secrets in Hepting v. AT&T, an attempt to scuttle the citizen lawsuits on the warrantless wiretap program.

In other words, both in and out of government, Keisler has represented AT&T's interests masterfully.

Which makes it rather disconcerting that the AG has the authority to authorize telecomm companies to cooperate in government spying.

(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

(A) a court order directing such assistance signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

Basically, Bush just gave AT&T the ability to have its long-time lawyer give it legal authority to collaborate with the government to spy on citizens.

And in case you're worried that AT&T is stuck with no good legal representation, having lost Keisler, rest assured. You see, former Associate White House Counsel Brad Berenson (who also happens to be Kyle Sampson and Susan Ralston's lawyer) has taken over for Keisler and is working on the AT&T case, among other things.

So, while the Senate dickers and deals as it takes up Mukasey's nomination, one of Bush's leading political manipulators, Peter Keisler, is now the Acting Attorney General, doing God only knows what else in secrecy, while all eyes are on the Senate's Mukasey machinations.

Shades of Tim Griffin in Arkansas...


It's another bells and whistles AG nomination to grab all the attention of the Senate, while yet another Bush battering ram, Peter Keisler, has his way with the near fatally wounded Justice Department, further shielding the interests of AT&T, etc., to spy on us illegally.


The Senate needs to object strenuously to Peter Keisler's promotion as Acting AG. Why not James Comey?


This is how Bush operates. Put up a front guy for a nomination for picking over, while a more dangerous actor takes over at Justice.



The devil, as always with Bush, is in the details.