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seafan Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-18-07 11:38 AM
Original message
While the Senate dickers on Mukasey, a dangerous Acting AG assumes the helm at DOJ.
Edited on Tue Sep-18-07 12:35 PM by 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.

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lonestarnot Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-18-07 11:40 AM
Response to Original message
1. And is the plan to do away with the power of the subpoena?
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seafan Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-18-07 02:33 PM
Response to Original message
2. Another kick to spread the info. n/t
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AuntPatsy Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-18-07 02:40 PM
Response to Original message
3. My husband said to me recently to quit worrying about what this administration
is up to and concentrate on things here at home that matter more.

It is people like him, sadly far too many who continues to allow injustices like this to go unnoticed, this as many other questionable actions will soon be forgotten until the reason such actions are done hits home. Until it does to each American and I have no doubt one by one will be hit by things this administration has done, it will be too late.
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Missy Vixen Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-18-07 03:11 PM
Response to Reply #3
5. AuntPatsy, I've heard the same thing
I'm also suffering from outrage overload, because it seems that no matter how often we write, call, fax, march or anything else, the Democratic hierarchy will continue to "keep their powder dry".

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AuntPatsy Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-18-07 03:16 PM
Response to Reply #5
6. I sadly agree, I honestly haven't seen that much gain and to be honest
that terrifies me for our childrens future.
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seafan Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-18-07 03:16 PM
Response to Reply #3
7. We all need to be relentless with people like this. Family members are the hardest to deal with.
Never give up.
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AuntPatsy Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-18-07 03:08 PM
Response to Original message
4. This thread dropped to far for my liking kicking for the evening crowd
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Klukie Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Sep-18-07 03:47 PM
Response to Original message
8. K&R
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seafan Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-19-07 07:58 AM
Response to Original message
9. A morning kick. n/t
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ThomWV Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-19-07 08:04 AM
Response to Original message
10. If Democrats are sane they will have him up on the hill every day of his "Acting" career
Keep him tied up in hearings so he can't do any further damage at Justice.
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hang a left Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-19-07 08:26 AM
Response to Original message
11. Yeah. I have figured out it is a bullshit nomination.
Bushco placed their former AT&T general counsel as acting AG. It is insulting. It reminds me of those carnival guys who have three cups and one marble. You remember the trick. You watch the guys hands real close but he gets ya everytime. That stuffed pony stays on that damn hook.

So monkeybutt nominates a retired federal judge, but in the same breath, tells you that he has "decided" that someone who has already tendered their resignation in disgrace to, spend more time with AT&T, oops, I meant with the family. He might as well have made a recess appointment. Because in essence, that is just what it is.

According to Leahy, he's not allowing anyone a confirmation hearing until he gets all the shit he's been asking for since February.

Think about it. You think the WH is going to give up now. I. Don't. Think. So. They ain't turning over shit. So really, his nomination is just cover for moving the WH hack to the front position.

Now Bushco's next move, is to secure immunity for the telecoms.


Oh yeah, the Dems are going to fight and fight hard, but in the end they will capitulate, as they always do.

...On Habeas Corpus, FISA, Iraq, DOJ(Which encompasses US Attorneys, Torture, and troop withdrawal.


"Well, they have no spines." They MUST compromise or they will "alienate the moderates". Or "the base has unrealistic expectations regarding ending the war". Along with other assorted bullshit stories.
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seafan Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-19-07 11:37 AM
Response to Original message
12. But is Schumer watching what Keisler is doing at DOJ??
Edited on Wed Sep-19-07 11:40 AM by seafan
There is no doubt that Keisler is over there greasing the legal language to protect AT&T and other telecoms from any liability for illegal wiretapping! IMHO, while Chuck Schumer is wasting time cutting deals to obtain subpoenaed documents as a way to tie up the nomination of Mukasey, Keisler is now in charge at DOJ, hollowing out what is left of our protections from illegal wiretapping. I don't have a good feeling about what Schumer is doing, because I fear he is not seeing the danger of the Keisler move.

This development really has me worried.

According to emptywheel today at TheNextHurrah, Bush's sleight of hand, replacing Clement with Keisler as Acting Attorney General, was done without any input from DOJ.

The article goes on to suggest that Chuck Schumer (whose pick Mukasey was, effectively) is brokering some kind of deal with the White House.

Schumer, who has been in touch with Fielding, stopped short of saying he is brokering a deal but said: "I made it clear to the judge how important it was to solve this. I'm trying to make sure everything works out." Schumer said he talked with Mukasey about habeas corpus issues, wiretapping, "the unitary theory of the executive," and problems in the civil rights division. Mukasey promised he will return with answers.

Though I think Schumer is pretty shrewd, for a Democrat, I also worry that his attempt to leverage the Gonzales replacement could backfire. I expended on my earlier thoughts on the Keisler headfake in my Guardian column.

By appointing Keisler acting attorney general, Bush has given the slot of chief law enforcement officer in the land to a longtime ally of AT&T, a telecommuncations giant whose decisions about cooperating (or not) with the government could have tremendous impact on the administration's surveillance policies.

The longer Democrats stall Mukasey's approval in the Senate, the longer they'll leave the telecommunications fox in charge of the privacy hen house. Democrats can hold out for the documents they've been demanding for years; if they do so, they may finally learn what it was about the warrantless wiretap program that so greatly disturbed former administration officials like James Comey. But in doing so they leave allies of the telecommunications industry in remarkable position to influence the administration's ongoing agenda - and perhaps to institutionalize the existing surveillance program.

Like I said, Schumer is pretty smart. I just hope he knows what he's doing. And I hope the brokered deal doesn't replace an investigation.

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bobthedrummer Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-19-07 12:13 PM
Response to Original message
13. "Another DoJ Prosecutor Alleges Improper Interference" posted 3-22-2007 by Jeralyn
at Talk confirmation about this BFEE zealot's loyalties and values, not to the law and our Constitution...
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bobthedrummer Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-19-07 12:24 PM
Response to Reply #13
14. Fwiw, a post on Paul D. Clement from an informative parent thread
"BREAKING: AGAG's interim replacement-Cedarburg's own Paul D. Clement" (posted 8-27-2007)

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seafan Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-19-07 01:21 PM
Response to Reply #13
15. It just makes me ill. Every day that passes brings us closer to total fascistic eclipse.
Thanks, bobthedrummer, for that info. Talk Left has been on the ball. Our DOJ has been utterly annihilated.

By the way, how're you holding up these days?

It seems that all hell breaking loose is almost upon us.
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bobthedrummer Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-19-07 07:10 PM
Response to Reply #15
18. Well, I know my rights and I know my BFEE-it's not funny anymore seafan.
What truth I know I share freely. Thanks for asking.

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L. Coyote Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-19-07 01:48 PM
Response to Original message
16. The nomination is a RUSE
it seems, in light of the AAG appointment. Bush has his Gonzo clone in charge of DoJ and now
it is in Bush's interest to not have the nomination proceed, hence, to continue to not provide
documents while providing false assurances.

What has happened is that Bush has placed someone in charge of the DoJ that dovetails perfectly with the plan to continue stonewalling.
Obviously, the lies are just going to go on ad nauseum.

MORE Keisler info: The NEW Acting Attorney General = Peter Keisler = Who is he? Just a Gonzales CLONE?

Is Peter D. Keisler nothing more than a Gonzales clone?
For Bush, this seems to be what "Justice" requires just now. ......
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L. Coyote Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Sep-19-07 01:58 PM
Response to Original message
17. What does Keisler know about e-mails on the law firm servers = Sidley Austin
As a former partner at Sidley Austin (like Brad Berenson, former WH counsel and attorney to Kyle Sampson and Sara Taylor), what does Keisler know about any subpoenaed e-mails on the firms servers?

This has all the smell of another co-conspirator just like the previous co-conspirator. What of the Medicare fraud settlements?

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