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Caged Citizen Will Test President Obama

If our new president intends to try to make America resemble what it was meant to be, he will have to deal with the noxious residue of the Bush-Cheney war against terrorism. Barack Obama will be confronted, as Harold Reynolds predicted in the October 29 New York Law Journal, with bringing justice to “thousands of . . . men and women cut off from access to their families, tortured, humiliated . . . and kept off stage to this day by Bush’s resistant administration.”

Among these purported menaces to national security are survivors, if they can be found, of CIA secret prisons (“black sites”); victims of CIA kidnapping renditions; and American citizens locked up indefinitely as “unlawful enemy combatants.”

We have one such pariah right here in New York at the Metropolitan Correction Center. He is 28-year-old Sayed Fahad Hashmi, whom I first told you about in this column last week. Confined in extreme isolation as if he were in a supermax prison, Hashmi was put away about a year ago by Bush’s Attorney General Michael Mukasey under what are euphemistically called Special Administrative Measures (SAMs).

Of the 201,000 prisoners presently in the custody of the Federal Bureau of Prisons, fewer than 50 are so dangerous to the state that they are held under SAMs, which can be imposed in one-year increments. Mukasey was supposed to inform Hashmi’s lawyer, Sean Maher, on October 29 whether those fierce conditions that were described here last week would be renewed for another year. But as of this writing, no word has come from the Justice Department, and the keys to Hashmi’s cell will soon be in the hands of Barack Obama’s attorney general. When Jeanne Theoharis—a professor of political science at Brooklyn College who has been leading the campaign to get Hashmi out of the cage where he’s been jammed for his daily one hour of “recreation”—asked a Bureau of Prisons staff member how Hashmi has been SAM’d without even being charged with violence, she was told curtly: “He’s being charged with terrorism, right?”

Enough said.

President-elect Obama, a former lecturer in constitutional law at the University of Chicago, should educate the Bureau of Prisons about elementary due process and should distribute copies of the Bill of Rights to its staff.

Mukasey was formerly a widely praised federal judge in New York before being employed by Bush, and he will now leave office as a chief law-enforcement officer that put the Bill of Rights under SAMs. When he authorized stashing Hashmi in New York’s supermax, he explained, “There is substantial risk that Hashmi’s communications or contact with persons could result in death or serious bodily injury to persons.”

Wow! What did they have on this guy that he was extradited to the U.S. from London, where he had earned a master’s degree in international relations at London Metropolitan University after graduating from Brooklyn College?

Hashmi has no criminal record anywhere and no history of committing acts of violence. But—and here’s why he’s under 23-hour lockdown in New York—he had a friend, Junaid Babar, stay over at his London apartment for two weeks. In the apartment, Babar stored luggage containing raincoats, ponchos, and waterproof socks. Babar—not Hashmi—later delivered them to the third-ranking member of Al Qaeda in South Waziristan, Pakistan. When, later in New York, a Grand Jury charged Hashmi with “conspiracy to provide material support or resources to a foreign terrorist organization,” the socks, ponchos, and raincoats were transformed into “military gear.” Also, an accusation exists that Hashmi let his houseguest use his cell phone “to call other conspirators.” I have seen nothing to indicate Hashmi had any idea whom Babar was calling.

Particularly interesting about Babar is that he himself has pleaded guilty to five counts of material support of Al Qaeda and—gee whiz!—has agreed to serve as a government witness in terrorism trials in Britain, Canada, and at Hashmi’s trial here next year. The Justice Department says Babar is the “centerpiece” of its case against Hashmi.

In return, under a plea bargain, Babar will get a reduced sentence. You get the picture.

But if Hashmi is convicted next year, he may be sentenced to 70 years of meditation on his nonexistent crimes under the care of the Bureau of Prisons. When he gets to trial, unless President Obama takes an interest in his case, Hashmi’s lawyers note: “The government may act to withhold evidence from his attorneys, yet share that evidence with the judge. There is some evidence that the government may also choose to share evidence with the defense lawyers, but not permit Hashmi to see it.” After all, he may get it to Osama bin Laden.

Right now, during preliminary court proceedings, U.S. District Judge Loretta Preska has closed some of the proceedings to the public and reporters, having ruled that some of the evidence is classified. Those must have been some explosive socks that Babar stored in Hashmi’s London apartment! Maybe they were inspired by a classic James Bond movie!

On November 19, Maher, Hashmi’s attorney, will appear before Judge Preska for a status hearing, and if his client is still being twisted out of shape by the SAMs, Maher will file a written application to reverse or modify them.

Theoharis, in whose political science class Hashmi had been an active participant, provided further and deeper context to this case when she told the Chronicle of Higher Education this past August 8: “[What is happening to Fahad Hashmi] is particularly significant in a moment when we are seeing the criminalization of Muslim students. I think Fahad is a devout and practicing Muslim who is very political. If he can be treated like this, it sends a message to other young people, particularly other Muslim young people, that, you know, are not protected. . . . [This case] is crucial in terms of students thinking they can be who they want to be and espouse the politics they want to espouse. That’s why we organized around this case. I fear very much that this is about [the government] sending a message.”

This is a characteristic message of fearsome retribution aimed at dissenters that the government has been sending—and putting into action—for the past eight years. We need more than soaring language of hope from President Obama. What, specifically—and immediately—is he going to do to resurrect the Constitution? And, in the process, will he get Sayed Fahad Hashmi back on the streets so Hashmi can protest if he doesn’t provide a renewed rule of law we can believe in?

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The ‘W.’ Stands for ‘War Criminal’

In a June 6 letter to Attorney General Michael Mukasey—largely ignored by a press immersed in the future of Hillary Clinton—56 Democrats in the House of Representatives asked for “an immediate investigation with the appointment of a special counsel to determine whether actions taken by the President, his Cabinet, and other Administration officials are in violation of the War Crimes Act (18 U.S.C. 2441) . . . and other U.S. and international laws.”

This isn’t front-page news?

The letter began with a brief account of the notorious facts about Abu Ghraib (“sexual exploitation and torture”) and Guantánamo (“an independent investigation by the International Committee of the Red Cross documented several . . . acts of torture . . . including soaking a prisoner’s head in alcohol and lighting it on fire”). Nor was “coercive interrogation” in Afghanistan omitted: “In October 2005, The New York Times reported that three detainees were killed during interrogations in Afghanistan and Iraq by CIA agents or CIA contractors.”

This is not a call for articles of impeachment. Bush will soon be gone, and the new president and Congress have far too much to do to get mired in that quicksand. These are grave criminal charges, and since international crimes are involved as well as the U.S. War Crimes Act and the Anti-Torture Act, other nations whose laws include “universal jurisdiction” could prosecute.

But why would House Judiciary Committee chairman John Conyers Jr. and Intelligence Committee members Jerrold Nadler (my congressional representative) and Jan Schakowsky—among other signers—make such dramatic and historic charges of “war crimes” now, after most congressional Democrats have not shown the same interest? House Speaker Nancy Pelosi, for example, is not on the list of signers; she and Senate Democratic majority leader Harry Reid have never, in their opposition to the administration, come anywhere near these shocking accusations.

As of this writing, I’ve seen no alarm evident among Republicans, but if the story has legs, the response will begin with a derisive claim that this is a cheap, transparent, and bush-league trick to propel the election of Barack Obama.

But in the letter, these latter-day Thomas Paines (assuming you agree with them) assert that what impelled them to act immediately was that, “within the last month, additional information has surfaced that suggests the fact that not only did top Administration officials meet in the White House and approve of the use of enhanced techniques, including waterboarding against detainees, but that President Bush was aware of and approved of the meetings taking place. . . . This information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law.” (Emphasis added.)

If Bush, Cheney, Gonzales, et al. are ever in the dock after such an investigation, I am sure that the prosecutors will show, among other thoroughly documented sources, the very specific names of the perpetrators and the dates of this series of crimes, as published in Torture Team: Rumsfeld’s Memo and the Betrayal of American Values by Phillippe Sands (Palgrave MacMillan) and the irrefutable evidence found in University of Houston professor Jordan J. Paust’s Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror (Cambridge University Press).


The latter is a book I wish every voter in November will have read, along with the same publisher’s 1,249-page The Torture Papers: The Road to Abu Ghraib, edited by Karen J. Greenberg and Joshua L. Dratel. Such books will help build the careers of future historians around the world.

I am further encouraged because chairman John Conyers, the June 8 Washington Post reported, “is looking into the role played by administration lawyers” in all of these crimes.

Conyers, calling treatment of detainees “a truly shameful episode,” emphasizes that Bush’s “enhanced” interrogation techniques were “used under cover of Justice Department legal opinions,” and so “the need for outside counsel is obvious.”

And since the letter from the 56 House Democrats is going to Attorney General Michael Mukasey—who claims that he cannot prosecute any perpetrator of these alleged war crimes because, by golly, they were authorized by Justice Department legal opinions—these House patriots are saying that Mukasey must appoint a special counsel rather than handle the investigation himself.

To give you a snapshot of Michael Mukasey’s dedication to the rule of law and its essential requirement of fairness and impartiality in all trials, Bush’s attorney general recently told an annual conference of Washington federal judges that trials of suspected terrorists by military commissions at Guantánamo will be “in the best traditions of the American legal system” (New York Sun, June 5). On June 12, the Supreme Court, declaring the commissions unconstitutional, exposed Mukasey’s constitutional ignorance.

The administration lawyers, whom Conyers is also going after, designed those Guantánamo military commissions after advising Bush that the prisoners were not entitled to the protections of habeas corpus and the Geneva Conventions—and didn’t have to be tried in our federal courts.

In Beyond the Law, Paust says of these lawyers (most of them graduates of our premier law schools): “Not since the Nazi era have so many lawyers been so clearly involved in international crimes concerning the treatment and interrogation of persons detained during war. . . . Such a direct role in a process of denial of protections under the laws of war [and our Constitution] is far more serious than the loss of honor and integrity to [presidential] power. It can form the basis for a lawyer’s civil and criminal responsibility. . . .

“[These were lawyers] . . . directly advising how to deny protections in the future (denials of such protections are violations of the laws of war and war crimes).” And dig this: The administration lawyers advised the president how to take “actions that allegedly would avoid the restraints of various criminal statutes and their reach to the President and others with respect to future conduct,” and especially with respect to the planned “coercive” interrogation tactics authorized by George W. Bush. (Emphasis added).

Some of these lawyers have gone on to prominent government positions—like Dick Cheney’s chief of staff, David Addington.

Next week: the legal and historic precedents for “command responsibility.”

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Michael Mukasey and the Ghost of Alberto Gonzales

Attorney General Michael Mukasey, the former much-lauded chief judge of the U.S. District Court for the Southern District of New York, is increasingly morphing into a replica, in key respects, of his embarrassing predecessor, Alberto Gonzales—a loyal enabler of George W. Bush’s disdain for the Constitution’s separation of powers, as well as the Bill of Rights.

Gonzales once testified before Congress that in the Constitution, there is no guaranteed individual right of habeas corpus. If that were even remotely true, huge numbers of law-school textbooks would have to be revised.

Now, during a March 14 speech at the London School of Economics, his successor Mukasey stated that the long-delayed trials of Guantánamo prisoners—six of them to start this year—will have “all the protections [for the defendants] we regard as fundamental.” But he neglected to mention one glaring, discordant fact: that Colonel Morris D. Davis, the former chief prosecutor for the Office of Military Commissions, which will be conducting these trials, resigned in protest over their lack of credibility last October.

“I resigned on that day,” he wrote in a Los Angeles Times op-ed piece in December 2007, “because I felt the system had become deeply politicized and . . . I could no longer do my job effectively or responsibly.” And in February of this year, Brigadier General Thomas Hartmann, the legal adviser for these military commissions, refused to rule out the use of “evidence” that had been obtained by waterboarding—which nearly everyone but Mukasey defines as torture.

Despite these developments, our attorney general insisted in his London speech that once the trials start, “the world will see not only the crimes of Al Qaeda put on display, but also a justice system fully consistent with our shared Anglo-American legal tradition as well as the standards of international law.”

The world, including our delighted enemies, will also see Colonel Davis—who was, it bears repeating, the former chief prosecutor at Guantánamo—appearing as a witness for one of the defendants, Salim Ahmed Hamdan, purportedly a former driver for Osama bin Laden. Colonel Davis will testify that the charges against Hamdan must be dismissed because of highly improper interference by the Pentagon in the very same legal process so celebrated by Michael Mukasey.

In a startlingly candid—and indeed courageous—statement to The Nation (March 10), Colonel Davis related that while he was still chief prosecutor, he told Defense Department general counsel William Haynes that the forthcoming trials could conceivably produce some acquittals. Haynes’s response, according to Davis: “Wait a minute, we can’t have acquittals. If we’ve been holding these guys so long [without charges], how can we explain letting them get off? . . . We’ve got to have convictions!”

What especially brought back for me Alberto Gonzales and his disingenuous tenure at the Justice Department was reading Mukasey’s assurances to his London audience that the fairness of the Guantánamo trials would “exceed those used at Nuremberg.”

The leader of the United States prosecution team at Nuremberg was Supreme Court Justice Robert Jackson, for whom due process had the force of religion. What he and the rest of that international court provided those Nazi monsters, and the world at large, was a historic model of how a thoroughly fair trial must be conducted, even for the most notorious defendants.

The specifics of the due process guaranteed to Hitler’s mass murderers are detailed at length in Letters From Nuremberg: My Father’s Narrative of a Quest for Justice (Crown). In it, Connecticut Senator Christopher Dodd reprints the letters that his father, Thomas Dodd, the no. 2 American prosecutor at Nuremberg, sent to his wife, including the following passage: “Those of us who were privileged to serve at the Nuremberg trial are proud of the entire proceeding. . . . Every right of the defendants was scrupulously observed. They were given every possible opportunity to make every explanation and every possible defense.

“Witnesses were obtained for them merely at their request. Documents were made available, library facilities were at their disposal, and throughout every hour of the trial they were afforded every opportunity to answer every charge.”

Among the defendants experiencing a form of justice hitherto alien to their own bestial natures were Hermann Göring, Albert Speer, Joachim von Ribbentrop, and Rudolf Hess.

Unlike the Guantánamo detainees, these defendants had civilian lawyers who were not commanded to hand over the notes of private conversations with their clients to their captors. And those lawyers could cross-examine every witness against their clients, none of whom were giving evidence obtained through “coercion” (a/k/a torture). Nor was there hearsay testimony or secret witnesses, as is the case at Guantánamo.

There were no video cameras at the time of Nuremberg, but had there been, both Jackson and Dodd would have angrily rejected what has been revealed of the practices at Guantánamo since 2002—as recently disclosed and documented by New Jersey’s Seton Hall Law Center for Politics and Research in the report “Captured on Tape: Interrogation and Videotaping of Detainees in Guantánamo.”

During the past six years, there have been over 24,000 interrogations of the Guantánamo prisoners, and every one of them was videotaped. Given that the CIA has already acknowledged destroying two of its interrogation tapes, it’s important to learn how many of these videotapes have since been destroyed to eliminate evidence of the “coercive” interrogations that were used to extract “evidence” for the preliminary hearings and eventual trials. The Seton Hall report does cite, among others, “one government report [of] detainee treatment so violent as to shake the camera in the interrogation room [and] cause severe internal injury” to the prisoner. Perhaps Attorney General Mukasey should look into this question himself.

In his London speech, Mukasey also did not refer to the February letter to American and Canadian leaders from bar associations around the world, which demanded the outright closing of Guantánamo before more damage is done to the rule of law.

Among the signatories to the letter, as reported on February 26 by Agence France Press, were bar associations from Australia, Britain, France, Finland, South Africa, Ireland, Scotland, Luxembourg, Turkey, Romania, and—Mr. Mukasey—Iraq!

If elected, will President McCain retain Michael Mukasey as this nation’s chief law-enforcement officer?

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What the CIA Had to Destroy

So what was on those videotapes destroyed by the CIA? Let’s put a face to it. Abu Zubaydah was captured in Pakistan in 2002 and, after being shot in the groin while trying to escape, was sent to recover in a CIA secret prison. He would be the first of the CIA’s many “ghost prisoners”—and also the first to test the value of what the president has often described as an “alternative set of [interrogation] procedures . . . that are safe and necessary.”

As described by Ron Suskind in The One Percent Doctrine: Deep Inside America’s Pursuit of Its Enemies Since 9/11
, Zubaydah—held in an ice-cold cell—was denied medication for his wounds, threatened with death, prevented from sleeping, incessantly blasted with pounding rock music (by the Red Hot Chili Peppers, among others), and, at last, waterboarded. After 30 seconds of feeling that he was on the verge of drowning, he was more than eager to answer any questions.

In a September 6, 2006, speech, George W. Bush triumphantly called Zubaydah “one of the top operatives plotting and planning death and destruction on the United States.” After the application of those “alternative” interrogation procedures, which the president described as “designed to . . . comply with our laws, our Constitution, and our treaty obligations, [and which] the Department of Justice reviewed extensively and determined to be lawful,” the detainee “disclosed Khalid Sheikh Mohammed [to be] the mastermind behind the 9/11 attacks” and “also provided information that helped stop a terrorist attack being planned for inside the United States.”

But, Suskind added, two weeks before Bush’s words of praise for these “coercive” interrogations, Dan Coleman—the FBI’s leading expert on Al Qaeda—asserted that Zubaydah was “insane, certifiable, split personality,” and that he wasn’t the top operative he was made out to be. The CIA was informed of Coleman’s assessment, and it was, “of course, briefed to the President and Vice President.” Undaunted, Bush made his congratulatory speech and then surreptitiously said to CIA director George Tenet: “I said he was important. You’re not going to let me lose face on this, are you?”

After his involuntary contribution to the advanced arts of interrogation, Zubaydah became a resident of our penal colony at Guantánamo Bay, which the president has made an entirely law-free zone, much like the CIA’s secret prisons. But after two Supreme Court decisions contradicted the commander in chief in his assertion of unfettered war powers, the Bush administration reluctantly set up a transparently prosecutorial kangaroo court there.

In April of last year, appearing before a status-review tribunal to determine whether he had been accurately designated as an enemy combatant, Zubaydah testified, as reported in the New York Times, that as a Palestinian, and because of American support for Israel, “I have been an enemy of yours since I was a child.”

However, he insisted that as a longtime adherent of “defensive jihad”—and despite what he’d said after being waterboarded—”I disagreed with the Al Qaeda philosophy of targeting innocent civilians like those at the World Trade Center. . . . I never conducted nor financially supported, nor helped in any operation against America.”

He explained that he’d made false statements while being tortured by the CIA. Asked by the president of the tribunal, an Air Force colonel, “Can you describe a little bit more about what those treatments were?”, Zubaydah obliged.

Not surprisingly, his answers are not part of the transcript. I expect that Attorney General Michael Mukasey would consider those waterboarding details to be “state secrets” involving highly classified “sources and methods.”

Paul Gimigliano, a professional Pinocchio (i.e., spokesman) for the CIA, said that however Zubaydah described his treatment, “The United States does not conduct or condone torture. The agency’s terrorist interrogation program has been implemented lawfully, with great care and close review.”

If you have any doubts, just ask Attorney General Mukasey, whose department is conducting a close review (but close for whose sake?) of the destroyed CIA interrogation tapes starring Abu Zubaydah. But the Justice Department says that it cannot tell us how long this inquiry—which is being conducted in conjunction with the CIA—will take.

That’s not surprising in view of the intricate tapestry of cover-ups woven by both agencies and by the White House. With so little time remaining before the next administration takes over, a special independent prosecutor must be appointed before more criminal evidence disappears.

According to a December 30 investigation by The New York Times, as “interrogations of Abu Zubaydah had gotten rougher” in the CIA secret prison, “each new tactic [had to be] approved by cable from headquarters.”

CIA headquarters? Justice Department headquarters? White House lawyers? Names, please!

There’s another crucial dimension to uncovering the effects of what Zubaydah— terrified that he was about to drown— allegedly revealed during those “rougher” interrogations: There are several cases of purported terrorists before our courts who are being prosecuted on the basis of Zubaydah’s desperate testimony in that CIA black site.

For example, American citizen José Padilla was arrested at O’Hare Airport in 2002, after allegedly conspiring with Zubaydah and Al Qaeda to set off a “dirty bomb” in the United States. Padilla—himself relentlessly tortured while being held for years as an “unlawful enemy combatant”—first appeared in court on those charges before none other than Michael Mukasey, at the time a federal judge in New York. Mukasey ordered him imprisoned on a material-witness warrant, based in part on the information that had been proffered by Zubaydah under waterboarding. Then, suddenly, Padilla was taken out of the federal-court system by order of George W. Bush and vanished for years without even a hearing or charges or access to a lawyer.

Marjorie Cohn, a professor at Thomas Jefferson School of Law, says: “It is not clear whether Mukasey knew Zubaydah’s statements were obtained by torture. But since he issued the warrant, Mukasey has a real or apparent conflict of interest” as one of the heads of the current investigation into the CIA- destroyed torture videos. Mukasey has appointed a career federal prosecutor to head the investigation and report back to him.

Cohn adds: “[Mukasey] has said it is premature to appoint an outside special counsel. But like the Nixon administration, the Department of Justice cannot be trusted to investigate itself. Congress should be pressured to pass a new independent-counsel stature.”

There are bipartisan constitutional lawyers beginning to apply that pressure, but there will be passionate resistance from Congressional Republicans. Do you think that Democratic Congressional leaders Harry Reid and Nancy Pelosi will give a damn?

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Durham Bull

Spare us the comparisons between John Durham — the newly named special prosecutor of Interrogate, the CIA tapes scandal — and Plamegate prosecutor Patrick Fitzgerald.

The Washington Post succumbs to this typical piece of journalist b.s., noting this morning:

Several courtroom adversaries compared Durham, a Roman Catholic reared in the Northeast, to Patrick J. Fitzgerald, the staid U.S. attorney in Chicago who served as special prosecutor in the investigation of the leaked identity of a CIA officer. “He’s Fitzgerald with a sense of humor,” said Hugh O’Keefe, a Connecticut criminal defense lawyer who has known Durham for 20 years.

That’s the easiest trick in political journalism: Get a quote from someone who shares the small, local stage with Durham — and who doesn’t know whether Durham can handle the big stage — and run with it, instead of doing some serious checking to see whether Durham has any frame of reference in dealing with national and international crimes, criminals, and cases.

The Post does at least add that caveat:

But Durham has had little experience with national security issues and with cases involving executive authority that appear to be less than black-and-white. His probe may require calling lawyers and aides to Bush, Vice President Cheney, Secretary of State Condoleezza Rice and the CIA before a grand jury to testify about their knowledge of the tapes’ destruction.

Durham made his bones by prosecuting GOP Connecticut governor John Rowland for sleazy business dealings. Rowland wound up exiting Hartford and entering prison for a short bid.

Fitzgerald, on the other hand, had vast experience in national and international cases before he tried to hound Scooter Libby. He prosecuted the plotters of the 1993 World Trade Center bombing.

The new attorney general, Mike Mukasey, knows the difference. He presided over that WTC case. But as Bill Kunstler pointed out at the time (read my earlier item here), Mukasey should have recused himself (because he’s a fundamentalist Jew) from presiding over the case, which, after all, was against fundamentalist Muslims.

Unfortunately, Durham comes with the recommendation of Kevin O’Connor. Who he? Again from the Post:

Two former prosecutors and a Justice Department official said that Durham, 57, was recommended for his assignment by his former boss, Kevin J. O’Connor, who was the U.S. attorney in Connecticut until he became an assistant to Attorney General Alberto R. Gonzales shortly before Gonzales resigned last year. O’Connor is awaiting confirmation as an associate attorney general.

Durham is supposedly a guy who’s tough on violent criminals. That really sets him apart from other prosecutors. Dealing with White House schmucks is another matter altogether. And this is a monumental chore that requires some nuanced pressuring of true heavyweight schnooks. As this morning’s New York Times story says:

The announcement is the first indication that investigators have concluded on a preliminary basis that C.I.A. officers, possibly along with other government officials, may have committed criminal acts in their handling of the tapes, which recorded the interrogations in 2002 of two operatives with Al Qaeda and were destroyed in 2005.

C.I.A. officials have for years feared becoming entangled in a criminal investigation involving alleged improprieties in secret counterterrorism programs. Now, the investigation and a probable grand jury inquiry will scrutinize the actions of some of the highest-ranking current and former officials at the agency.

The tapes were never provided to the courts or to the Sept. 11 commission, which had requested all C.I.A. documents related to Qaeda prisoners. The question of whether to destroy the tapes was for nearly three years the subject of deliberations among lawyers at the highest levels of the Bush administration.

Don’t expect much, and don’t expect it soon.

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Trail of Torture Tapes

You don’t have to be a law student to know that in 2005, when the CIA destroyed hundreds of hours of videotapes of “coercive interrogations” in its secret prisons—including waterboarding and other tortures—the obliteration of hard evidence was criminal obstruction of justice.

We had thought photos of prisoner abuse in Iraq’s Abu Ghraib prison were obscene (and they did prove to be valuable recruiting tools for Al Qaeda and its affiliates), but we can only imagine the effect on world opinion that the filmed waterboarding of a terrified prisoner by his CIA interrogators would have.

After Mark Mazzetti’s breakthrough New York Times story of the vanished videotapes, official investigations were begun, starting with a combined inquiry by the Justice Department and the CIA, the latter headed by its inspector general. Simultaneous probes were to start by the House and Senate intelligence committees.

Our new attorney general, Michael Mukasey, initially refused to provide Congress with information on any involvement the Justice Department might have had in the destruction of those videotapes—because, Mukasey said, he wanted to avoid “any perception that our law enforcement decisions are subject to political influence.” But wasn’t his appointment “political” in the first place?

It remains unclear how much Mukasey will cooperate in turning documents over to congressional committees that might shed hard light on who authorized the scrubbing of the tapes and whether, good gracious, any laws were broken.

In the meantime, Mukasey says he is still studying classified information to decide whether waterboarding is torture. As a dedicated public official, he might try it himself.

When Mukasey was nominated by the president—and then proudly rushed through confirmation by New York senator Chuck Schumer—I wrote that the new attorney general was in Bush’s pocket, noting that in a Wall Street Journal article, Mukasey had opined before being nominated that “current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism.” That would include the Justice Department he now heads.

The head and ranking member of the House Intelligence Committee, Silvestre Reyes (D-Texas) and Peter Hoekstra (R-Michigan), were “stunned” that Mukasey—so widely admired by the legal community, especially in New York—at first said he would block their investigation into this even more stunning cover-up by the CIA of torture in its “black sites.”

Reyes and Hoekstra assure Americans (and the watchful world, including our smirking enemies) that they will “use all the tools available to Congress, including subpoenas” to get the Justice Department and the CIA to give the people’s house documents and witnesses.

I’d be surprised if the Senate does not—when necessary—remind the director of central intelligence, General Michael Hayden, and our attorney general that, contrary to what their commander in chief claims, the separation of powers has not been whited out of the Constitution.

The very notion that the Justice Department could be trusted to conduct an investigation of itself is also stunning in view of the undeniable fact that the department’s Office of Legal Counsel, beginning in 2002, secretly authorized torture in interrogations—and not only by the CIA. After that memo was withdrawn a year later by the appalled new head of that office (who didn’t last long in the job), torture was covertly reauthorized in 2005 by the Justice Department.

Michael Mukasey was himself confronted with a reminder of the torture record of his department on December 7. In his office that afternoon was Caroline Frederickson, Washington legislative director of the ACLU. A rarity in the capital, she speaks truth very plainly to power, and told the attorney general that he had a credibility problem in this investigation. She tells me that Mukasey, dutifully taking notes, didn’t deign to reply. He didn’t have to. After all, he’s our chief law-enforcement officer.

Logically, and necessarily, Frederickson is leading the ACLU’s call for Mukasey to appoint an independent counsel to dig deeply into the question of accountability—all the way up the chain of command—for this administration’s trail of torture.

Even if Mukasey is ultimately unable to subvert congressional investigations of the CIA videotapes, will any of the committees subpoena the ultimate perpetrator of our war on terrorism to testify on his role?

On September 17, 2001, George W. Bush made the CIA his own private militia, by a command order, to hunt down Al Qaeda operatives and interrogate them by any means necessary.

Then, on February 7, 2002, regally disdaining both the courts and the Congress, he decided, in an executive order, that Common Article 3 of the Geneva Conventions on the treatment of prisoners— signed by this country—doesn’t apply to captured members of Al Qaeda or their fellow ruthless killers in the Taliban. (Common Article 3 forbids the “mutilation, cruel treatment and torture” as well as “humiliating and degrading treatment” of prisoners.)

The president clearly does not want the investigations into the destruction of those annoying videotapes to reach the Oval Office. As his spokeswoman, Dana Perino, proclaimed on December 12: “The entire [CIA] program has been legal.”

Among the contenders for the presidency, only Democratic senator Joe Biden has been bold enough to make the connection. “This goes straight to the Oval Office,” he said, demanding that a special counsel be appointed. Speaking irreverently of the attorney general, Biden added: “He’s the same guy who couldn’t decide whether or not waterboarding was torture, and he’s going to be doing this investigation?”

Biden—the most qualified presidential aspirant because of his knowledge of foreign policy and the Constitution (which he has taught in a Delaware college since 1991)—has no chance of moving into the Oval Office himself. But if there is an uprising of our representatives in Congress to force Mukasey to appoint an independent counsel, a continuing probe all the way into this administration’s waterboarding of the Constitution could create George W. Bush’s Watergate.

Would the next president pardon him?

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Bush’s Man Mukasey

As I noted last week, at last there’s a growing rebellion in the lower federal courts against the president’s claim that he must be the sole decider in how to combat terrorism. But hanging over this is the shadow of the Roberts-Alito Supreme Court. It will have the final say on these acts of resistance by federal district courts and a few appellate panels.

Particularly important and controversial will be the high court’s ruling on the legal black hole the president and his advisers have created at Guantánamo Bay. Soon after he replaced Donald Rumsfeld, Secretary of Defense Robert Gates said that our treatment of prisoners there has degraded our reputation—both among our allies and in the rest of the world. We used to be known, more or less, as a nation of justice based on our laws and faithfulness to international treaties.

On December 5, there will be oral arguments at the Supreme Court on the combined cases Boumedienne v. Bush and Al Odah v. United States. At issue is the restoration of the rights of these prisoners—twice affirmed by the Supreme Court and then overruled by a Republican-controlled Congress—to go into our federal courts and contest the legality of their imprisonment and the conditions of their confinement. Some aspects of those conditions have been described by the International Red Cross as “verging on torture.”

Here is a grim prelude to the facts that the nine justices will hear. See if you can guess who presented this scenario—unsuccessfully—to Congress this summer:

“Hauled before a military tribunal at the American naval base in Guantánamo Bay, the detainee, picked up in Afghanistan, asked why he was being held for associating with a member of al-Qaeda [as he had been told]. ‘Give me his name,’ the detainee demanded.

“The [military] tribunal’s president said he didn’t know it. Nor did any of the tribunal’s other members. ‘How can I respond to this?’ the detainee cried before being taken back to his cell to continue his detention, perhaps for the rest of his life.”

It was Republican senator Arlen Specter of Pennsylvania who insisted on elementary justice for this prisoner, as he was co-sponsoring a failed bill with Democrat Pat Leahy to restore habeas corpus rights to Guantánamo detainees, many of whom have been caged there for nearly six years. Desperation has caused a number of prisoner suicides and the brutal force-feeding of other detainees who have attempted suicide or gone on hunger strikes.

It is quite possible that by the time oral arguments are heard on December 5, the Senate Judiciary Committee, and then the entire Senate, will have confirmed Bush’s appointment of longtime former federal judge Michael Mukasey—who is much admired by most of the legal establishment—to succeed the hapless Alberto Gonzales as attorney general, our chief law-enforcement officer.

Should Rudy Giuliani become president, Mukasey—his close friend and, until his nomination, his adviser on constitutional matters during Giuliani’s presidential campaign—is very likely to stay on as attorney general and be vitally involved in cases involving domestic constitutional issues and international treaties we’ve signed. He believes that a president, in the interest of national security, can disobey laws that Congress has passed, as does our present commander-in-chief. And, like Rudy, he won’t say whether waterboarding is torture.

With regard to Guantánamo, Mukasey, during his confirmation hearings, had no problem with “enhanced interrogation techniques,” echoing the president’s mantra that “we do not torture” as we extract necessary information.

Moreover, Mukasey added, “I don’t think people are mistreated at Guantánamo.” And law professor Marjorie Cohn (of the Thomas Jefferson School of Law in San Diego) reports that Mukasey told Senator Dick Durbin before the hearings that detainees receive “three hots and a cot, health care better than many Americans, and taxpayer-funded Korans.”

Indeed, we are so solicitous of the welfare of our prisoners that if any of them prove so ungrateful as to attempt suicide, we bind them to a chair and force-feed them, sometimes causing them to lose control of their bowels in the process.

Mukasey told the Senate committee that, with regard to cases before the Supreme Court on whether habeas corpus rights should be restored to these terrorism suspects, “I would not advise the President to grant rights beyond those that they already have.”

Watching the hearings on C-SPAN, it was hard to separate Mukasey from Dick Cheney. Asked whether the president must obey federal statutes, he replied: “That would have to depend on whether what goes outside the statutes nonetheless lies within the authority of the president to defend the country.” (But George Washington refused the wish of some of his admirers to become king.)

In a blistering response to Mukasey’s obeisance to extra-presidential powers, Yale constitutional-law professor Jed Rubenfeld, in his New York Times op-ed “Lawbreaker in Chief” (October 23), instructed the man who, as of this writing, appears certain to be confirmed as attorney general:

“The president has no supreme, exclusive, or trumping authority to ‘defend the nation.’ In fact, the Constitution uses the words ‘provide for the common defense’ in its list of the powers of Congress, not those of the president. . . . ” (In 1787, the framers in Philadelphia took great care to limit the powers of the presidency. They had had enough of kings.)

Rubenfeld added that beginning with Marbury v. Madison in 1803, “the Supreme Court has enforced the principle that laws trump presidential authority, not the reverse.”

We will know by the end of the court’s term next year whether this Supreme Court (described by some as “Bush’s legacy” because of his appointment of conservative “strict constructionists” John Roberts and Sam Alito) will continue to enforce the essential American principle that none of us is above the law—not even the person who strides to the music of “Hail to the Chief.”

And if I’m right, and Mukasey does become our next chief law-enforcement officer, the votes to assure his confirmation—by Democrats as well as Republicans—will once again show that “We, the People,” deserve better than the leaders of both our parties, including the present Democratic congressional leadership. As Justice Louis Brandeis warned: “Courage is the secret of liberty.” Have you seen courage on these matters in the leading candidates for the presidency?

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‘No Skeletons in My Closet!’

The Democrats who questioned attorney general nominee Michael Mukasey at his recent Senate confirmation hearing outdid one another in a frustrating effort to get the former judge to assert his independence from the Bush White House. With his predecessor, Bush pal Alberto Gonzales, finally forced from office, the senators were hoping for a nominee with fewer complicating relationships.

Fat chance. The question for Mukasey is not what he’ll do at Justice for the soon-to-be- departing Republican president, but what he’ll do for the putative next one, his lifelong friend Rudy Giuliani. Mukasey and Giuliani were young federal prosecutors together in the early 1970s and then practiced at the same Manhattan law firm, Patterson Belknap, where Mukasey returned in 2006 when he retired after 18 years on the federal bench in New York. Giuliani chose Mukasey to swear him in at his inaugurals in 1994 and 1998.

The question of Mukasey’s strong ties to Giuliani got the light touch from Senator Pat Leahy, the Judiciary Committee chairman who opened the two-day proceeding by saying that he assumed Mukasey would “totally recuse” himself from “any involvement with Mr. Giuliani or any other candidate for president.” Mukasey laughed at the question, as if the answer was obvious, and quickly agreed. But that chuckle rings a little hollow when you look at who had come with him to the hearing: his wife Susan, who volunteered almost daily in the Giuliani mayoral campaigns; his stepson Marc, who was a staff assistant in one campaign and currently is a partner at the Texas-based law firm that Giuliani recently joined, Bracewell & Giuliani; and Louis Freeh, the former FBI director who recently endorsed Giuliani and worked closely with him as a federal prosecutor. Marc Mukasey is currently representing Giuliani Partners in the federal probe of Bernard Kerik, a onetime member of the consulting firm. Freeh’s appearance, sitting beside the family, was a stark indication of just how unconsciously political Mukasey’s key relationships are. (For Democrats on the committee, the sight of Freeh, who led multiple probes of both Clintons, might have been an indication of Mukasey’s partisanship. In Freeh’s recent autobiography, he concluded that “the presidency hit an all-time low” under Bill Clinton—who named him to head the FBI, only to wind up as the target of multiple Freeh probes—adding that if he were Clinton, “I might never show my face in public again.”)

Mukasey has so far indicated that he will recuse himself in the ongoing probe of Kerik, the ex–police commissioner and onetime Giuliani-backed nominee for homeland security secretary, who has already pleaded guilty in a state case and is facing a mountain of federal charges. But Mukasey’s recusal shouldn’t really be a problem. The Justice Department agreed months ago to extend the statute of limitations on the case against Kerik to November 17, when his expected indictment may suddenly emerge as a national story haunting the Giuliani campaign. The case is so layered in conflict that Alberto Gonzales is a likely witness. It was Gonzales who vetted Kerik for the homeland-security post in 2004 and was swamped by false claims about him emanating from the fax machines and computers at Giuliani Partners’ Times Square headquarters. The Washington Post reported in April that Kerik was “likely” to be indicted for “bald-faced lies” during the White House clearance process, including possible misstatements on forms filled out with the assistance of Giuliani’s firm.

The Daily News has more recently reported that Kerik may also be indicted on bribery charges connected to a 1999 meeting in a Tribeca bar with Giuliani’s cousin, Ray Casey, who ran the city’s trade-waste commission. Kerik was pressuring Casey on behalf of an allegedly mob-tied contractor, which was then seeking a license from the commission to develop a waste-transfer station. The company was already involved in the extensive renovations of Kerik’s apartment.

But Kerik is just one of the possible Giuliani-tied cases that Mukasey might be faced with as the new head of Justice. The list of Giuliani connections could also include the California proportional-representation ballot initiative financed by vulture-fund billionaire Paul Singer, which is designed to split up California’s 55 electoral votes—the single largest state total—which are routinely won by Democratic candidates. Singer assumed a formal title in the Giuliani campaign-finance committee and became his biggest early fundraiser, with Giuliani embracing him despite worldwide condemnations of his dunning of debt-ridden third-world countries. Giuliani has even been flying around the country on Singer’s corporate jet, yet his campaign insists that it played no role in the California initiative, which appears designed to benefit Giuliani, the only Republican who polls well in the state. If Giuliani’s campaign was involved, the scheme would violate federal campaign laws. That’s why a complaint has already been filed with the Federal Election Commission and why the campaign is currently trying to distance itself from Singer, even as a second effort to place the initiative on the state ballot—this one headed by Anne Dunsmore, a former Giuliani finance-committee staffer—is getting underway.


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Mukasey might also have to deal with a Justice investigation of Ken Caruso, a Giuliani and Mukasey friend who was allegedly involved in the bilking of a prominent Texas Republican donor of millions, according to a recent story by Politico.com. Caruso, who apparently refused to cooperate with a U.S. Senate investigation of the banking scam, is a partner with Marc Mukasey at Bracewell & Giuliani. Both were hired by Giuliani, who set up the firm’s Manhattan office in 2005. Caruso is represented by Patterson Belknap, Michael Mukasey’s current and Giuliani’s former firm.

In addition, one of Giuliani’s closest allies in New York politics, State Senate Majority Leader Joe Bruno, is under federal investigation, and the chairman of Giuliani’s South Carolina campaign, Thomas Ravenel, is awaiting sentencing on federal charges of possession with intent to distribute cocaine. The government will have to make a sentencing recommendation late this year in the Ravenel case, and the Justice Department would have to approve any Bruno indictment. Bruno announced his endorsement of Giuliani in May, and Giuliani recently made comments strongly supporting Bruno in his ongoing battle with Democratic Governor Eliot Spitzer.

The client list at Giuliani Partners is just as inviting a target as Giuliani’s friends and political associates, with his consulting role for Purdue Pharma, the maker of OxyContin, already provoking public questions. A Justice Department prosecutor told reporters this spring that Purdue hired Giuliani to block a probe that she was conducting with other investigators into Purdue’s aggressive advertising of the morphine-like painkiller. Giuliani arranged meetings with the head of the Drug Enforcement Administration, ultimately negotiating a favorable deal. Remarkably, Giuliani Partners was simultaneously retained by Justice on a million-dollar contract to advise it on how to improve the Drug Enforcement Task Force, which was investigating, among other things, OxyContin abuse. In other words, at the same time that Giuliani’s firm was a paid consultant for Purdue, it was also a consultant for the DEA on how to deal with issues that concerned Purdue. The settlement that Giuliani worked out permitted the company’s top brass to plead to misdemeanors and pay a $640 million fine to compensate for the lives ruined by the aggressively promoted drug. The DEA also decided not to limit the right to prescribe OxyContin to doctors who specialized in pain management, a proposal that Purdue had fiercely opposed.

Even the recent ruckus about Verizon and its cooperation with the National Security Agency’s domestic-surveillance program may put Mukasey in a Giuliani-connected bind. The company has admitted that it turned over 94,000 customer records to federal and state authorities—including hundreds without any court order—since January 2005, and a Justice Department inspector general’s report in 2006 found that similar potentially improper record transfers occurred for years before that. Verizon is a prime client of Bracewell & Giuliani. In addition, Paul Crotty, the respected federal judge who joined Mukasey on the Manhattan bench in late 2005, was the regional president of Verizon, which is based in New York. Crotty was Giuliani’s corporation counsel and contributed $5,500 to his federal campaign committees before he became a judge—$1,000 more than the legal limit (the excess was returned). When Crotty left, a Verizon press release stated that he was “responsible for government relations and regulatory affairs for Verizon’s largest telephone operations company,” but a company spokeswoman declined to answer questions about his possible involvement in the surveillance decisions, and Crotty did not return telephone calls from the Voice. Justice has already filed lawsuits in an attempt to protect Verizon from the subpoenas served on it by several states, and Mukasey will clearly be faced with a multiplicity of issues arising from the surveillance program.

Mukasey told the Senate that he believed the president may have acted appropriately in ordering the warrantless wiretapping.

Even Mukasey’s current clients at Patterson have connections to both Giuliani and the Justice Department that raise disturbing questions. He represents the Renco Group, the private holding company that owns 40 percent of the joint venture that manufactures Humvees and has seen its profits soar in Iraq. Renco chairman Ira Rennert and his wife have maxed out their donations to the Giuliani campaign at $4,600 apiece. The Justice Department is suing a Renco affiliate for a magnesium plant that has polluted the Great Salt Lake in Utah, and federal prosecutors have been described in news accounts as “determined” to make Rennert “personally pay for the way his companies conduct business.” Rennert recently refused to meet with a religious delegation from Peru, led by the Catholic archbishop, which was pressing the company to clean up its metals smelter in La Oroya, where 97 percent of the children have lead poisoning. A smelter near St. Louis has provoked lawsuits and similar protests.

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Mukasey also represents Linda Lay, the widow of convicted Enron CEO Ken Lay. (Since Ken Lay’s primary law firm was always Bracewell, Mukasey’s representation may have come on a Bracewell referral.) When Ken Lay died last year while his conviction was on appeal, a Texas judge dismissed the case against him, despite a Justice Department warning that the dismissal could lead to the “disgorgement of fraud proceeds” in the tens of millions. The Justice Department is now involved in efforts to obtain restitution for Enron’s victims; meanwhile, Mukasey mediated an estate dispute between Linda Lay and Goldman Sachs. Mukasey’s other clients include Winston & Strawn, the Chicago-based law firm whose managing partner, Dan Webb, is also on Giuliani’s judicial advisory committee. The firm’s partners have given at least $18,950 to the Giuliani campaign.


There’s no way to know, given the secrecy that grips Justice, how many cases directly or indirectly involving Mukasey clients or Giuliani interests might wind up before Mukasey. Would he distance himself from such matters, especially those regarding Rudy? He didn’t as a judge. While he stepped aside on several matters involving the Giuliani administration, he did uphold the mayor’s policy of seizing the cars of drunk drivers and was reversed on appeal. In any event, recusals are an imperfect way for an attorney general to separate himself from such probes, law-enforcement officials acknowledge, because the prosecutors who work for Mukasey may see his withdrawal on a case as a signal of the preferences at the top of the department.

At the confirmation hearing, Mukasey made it clear that there’s one kind of case that could impact the election that he would not recuse himself from—that favorite GOP and Giuliani bugaboo, voter fraud.

A New York Times editorial observed that Mukasey “seemed unduly focused” during the confirmation hearing “on the nonexistent problem of voter fraud and not focused enough on the real problem of eligible voters being prevented from casting ballots.” In fact, Mukasey assured Republican Pete Sessions that he would prosecute vote-fraud cases, and he corrected Democrat Ben Cardin, who tried to stress the importance of protecting and extending the franchise. One timely voter-fraud case in New Mexico next year might tilt a state usually too close to call, and could decide a closely contested presidential campaign. Voter-fraud cases factored prominently in the recent scandal over Gonzales’s dismissal of U.S. Attorneys and have long been a Giuliani preoccupation, making the issue a predictable controversy confronting Mukasey. Giuliani blamed his 1989 mayoral loss on illegal minority voters in Harlem and Washington Heights and pushed unsuccessfully for investigations. When Giuliani won his narrow 1993 mayoral victory, he was aided by a massive voter- suppression campaign targeting black and Latino voters, with Dominicans warned that immigration officials were at the polls. Democrats are likely to be asking Justice in 2008 to guard against similar suppression tactics, which have become a GOP staple in key states.

Is it too soon, however, to make judgments about Mukasey’s ability to separate politics from probity? Maybe not. In 1993, Mukasey served as a secret adviser to Giuliani’s mayoral campaign while he was on the federal bench in Manhattan, according to sources who were involved at the time. Mukasey was one of the close Giuliani friends who gathered at a house that the mayoral candidate rented for the summer in Oyster Bay, Long Island. That’s what two people present at the house for these weekend sessions in the middle of the ’93 campaign vividly recall. Asked about Mukasey’s attendance at these sessions and any advisory role he might have played in other Giuliani campaigns, White House press aide Tony Fratto limited his response to the summer get-togethers. “Judge Mukasey has never attended any campaign-strategy meetings for Mayor Giuliani in Oyster Bay,” he said.

But the people who were at the gatherings say they were not “meetings” per se. Giuliani and then wife Donna Hanover hosted the sessions, usually on weekends, with their key friends and “kitchen cabinet.” The talk was often about the campaign, and Mukasey was there, according to these sources. The group was a mix of old friends and top campaign staff, like Richard Schwartz, who was policy director for the campaign and had only recently come to know Giuliani. Mukasey did not participate in large group discussions, but was seen with Giuliani in a three-person “cluster,” as one participant put it, or in one-on-ones with Giuliani. Mukasey’s stepson Marc Saroff (he has since changed his name to Mukasey) is listed on the 1989 campaign filings as a “staff assistant,” and Mukasey’s wife Susan also worked at the campaign headquarters in 1989 and 1993. The judge himself was seen around the headquarters in 1993, and joined Giuliani in his election-night suite in 1989, swapping stories with him about Al D’Amato, the then U.S. senator who was viewed with great hostility by Giuliani partisans.

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Mukasey’s role with Giuliani became more formal in 2007, after his retirement from the bench in 2006. He and his son were named to the Giuliani campaign’s judicial advisory committee. The family contributed at least $10,000 to the presidential campaign. In his Senate Judiciary Committee questionnaire, Mukasey was asked if he had “ever played a role in a political campaign,” and he listed only the current Giuliani presidential campaign and his activities as part of the New York Jewish Coalition for Reagan/Bush in 1984, both of which occurred when he was not a federal judge. But his involvement in the Giuliani’s 1993 race, and even his appearance at the 1989 victory party, appear inconsistent with the judicial rules of conduct, which bar a judge from “engaging in any partisan political activity” or “attending any political gatherings.” While Mukasey’s role as a casual campaign adviser, and his appearance at a campaign event like a victory party, may seem benign, they are troubling signs of political involvement that take on larger dimensions only because of the great power to influence an election that he will soon enjoy. And if he went beyond the strict interpretation of the guidelines as a judge, might he not do the same as attorney general?


Even the Democratic senator guiding Mukasey’s nomination though the Senate, Chuck Schumer, has his own Giuliani connections. As associate attorney general in 1983, Giuliani rebuffed Brooklyn U.S. Attorney Ray Dearie, who had recommended Schumer’s indictment based on allegations involving his initial election to Congress in 1980. Schumer’s wife, Iris Weinshall, held several top posts in the Giuliani administration, and was ultimately his transportation commissioner. Mayor Bloomberg has said that Giuliani asked him to retain only two of his top aides when he left City Hall, and one was Weinshall. Before Weinshall took over the transportation job, she was a deputy commissioner under Giuliani at another agency, where she oversaw the construction of the bunker at 7 World Trade Center.

Schumer pushed the White House to nominate Mukasey, just as he did with Paul Crotty. He was impressed, no doubt, by Mukasey’s intellect and judicial service. But Schumer has not only championed Giuliani associates like the well-regarded Crotty and Mukasey; he also rushed to endorse Kerik when Bush nominated him for the homeland-security position, praising Kerik’s “strong law-enforcement background” and predicting that he would do “an excellent job” at the giant agency. Schumer and the other committee Democrats did interrogate Mukasey about his views on detention, interrogation, torture, and related terror issues and found that they are
largely indistinguishable from the views of President Bush. The committee is now awaiting Mukasey’s more expansive answers to written questions, and some members are saying that their votes are in doubt, though Schumer was publicly predicting a unanimous vote for Mukasey after the first day’s hearing.

If Mukasey is in agreement with his potential boss in the White House, he also appears to be on the same page as Giuliani, who has come out in favor of “enhanced” and “aggressive” interrogation techniques. Like Mukasey, Giuliani has also refused to rule out waterboarding. Asked recently if the aggressive technique was torture, Giuliani invoked Mukasey: “I don’t believe the attorney general designate was in any way unclear about torture.” Reminded that Mukasey said he didn’t know whether waterboarding was torture, Giuliani replied: “Well, I’m not sure it is either. . . . It depends on how it’s done. It depends on the circumstances. It depends on who does it.” Similarly, Mukasey’s suggestion that the president could violate a federal statute if he deems it necessary to defend the country is in sync with Giuliani, who repeatedly ridiculed Mitt Romney for indicating that he might talk to lawyers before going to war with Iran.

Mukasey tried to distinguish himself from Gonzales by declaring that he would sharply restrict the number of Justice officials who could discuss cases with “elected officials or their representatives”—a limitation, of course, that would still leave the door wide open to the unelected Giuliani. He also refused to commit to reinstituting the “red book,” which required prosecutors to “refrain” from announcing cases that might affect an election, mandating that they “await the end” of the election cycle.

If Mukasey’s sudden rise to prominence, and his placement at Justice, is something of a boon to Candidate Rudy, another of his old cronies is likely to have the opposite effect. The badly timed implosion of Bernie Kerik may remind the public of all the unsavory characters that Giuliani, as mayor, drew like a magnet.

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A onetime white-knight prosecutor who scorned unethical insiders, Giuliani is now surrounded by them, and has as long a history of attracting sleaze as he once did for prosecuting it. The revelations last week that two Mafia godfathers voted to have him killed in 1986 recall a Giuliani who doesn’t exist anymore, a former self at his ethical apex that is a fading memory now that Giuliani’s former trusted top cop is about to be indicted for his dealings with a mob-tied contractor.

The question for Giuliani regarding Kerik
is how he spent years ignoring alarms about the man he placed in one top law-enforcement
job and then tried to install at the helm of our national defense. While some elements of what Giuliani knew about Kerik have come out in previous news accounts, what follows is an untold chronology that could haunt the presidential candidate, particularly if Kerik goes to trial before Election Day.

Giuliani was momentarily down and out when he met Kerik, a third-grade NYPD detective, at a New Jersey gathering of a small police organization in early 1990. He’d lost to David Dinkins a few months earlier and, already a kind of mayor in exile, was busily plotting a career-salvaging second run in 1993. Kerik was starstruck: “As someone who is constantly told that people want to follow me,” he later wrote in his autobiography, “I think I understood what people meant the minute I met Giuliani.” By 1991, Kerik was Giuliani’s volunteer driver and bodyguard, accompanying him everywhere during the two-year prelude to the election and even putting together an unofficial detail of other off-duty cops to protect him.

A few months into Giuliani’s first term, the mayor summoned Kerik to Gracie Mansion and, over a bottle of red wine that was a gift from Nelson Mandela, asked him to become the first deputy commissioner of the city’s vast correction department. Once Kerik, who had virtually no city correction experience, agreed, Giuliani opened the door to his private library and welcomed the members of his cabinet. “In this dark sitting room, one by one,” Kerik recalled, “the mayor’s closest staff members came forward and kissed me. They all knew. I know the mayor is as big a fan of The Godfather as I am, and I wonder if he noticed how much becoming part of his team resembled becoming part of a Mafia family. I was being made. I was now a part of the Giuliani family, getting the endorsement of the other family members, the other capos.”


Of course, that was just the beginning for Kerik, whose personal relationship with Giuliani ultimately put him at the helm of the world’s largest police department, even though he’d only been a cop for eight years, never passed a promotional exam, and was
24 credits shy of the college degree required of mere lieutenants. Giuliani likened his selection of Kerik—over Joe Dunne, a widely
respected 31-year veteran who was the department’s highest-ranking uniformed officer—a moment of personal inspiration, almost
a mystical revelation. “It all of a sudden occurred to me that this was the right person,” he proclaimed. The only person he told about his final choice was his then newly disclosed girlfriend, Judi Nathan—on a Saturday night at 11 p.m., at the cigar bar where they’d first met, just minutes before he phoned Kerik. In Giuliani’s memoir, Leadership, he ascribes the selection of Kerik in August 2000 to “factors of chemistry and feel,” saying that it helped to “have someone who feels that their loyalty is not just to the department, but also to the mayor and the citizens of New York.”

We have since learned that Ed Kuriansky, the city’s investigations commissioner, warned Giuliani, during the selection process, about Kerik’s disturbing connections to a mob-tied contractor who employed Kerik’s brother and best man. Giuliani said as much during his artfully forgetful testimony before the state grand jury that indicted Kerik on charges of accepting gifts from the contractor, who was then seeking city work. Kuriansky had known Giuliani since their days together as young prosecutors in the 1970s, and he went to his death early this year with whatever he told Giuliani, rejecting reporters and investigators even as he battled cancer. He was never questioned by the DA’s office, either in front of a grand jury or in an interview at home, according to a source close to Kuriansky, who says he was “too sick” to be put through any difficult interrogation.

Kuriansky’s appointment diaries, first unearthed by WNBC TV’s Jonathan Dienst, showed that in the days preceding Kerik’s appointment, the commissioner met repeatedly with Giuliani and Denny Young, Giuliani’s counsel, who moved with him to Giuliani Partners. A Voice reading of the diaries and interviews with the people identified in them leaves little doubt that Kuriansky briefed City Hall about Kerik’s troubling relationships. The logs refer to three Kuriansky meetings with Giuliani, Young, or Young’s deputy regarding Kerik’s background investigation. The diaries also refer several times to Larry Ray, the best man at Kerik’s 1998 wedding, who had been indicted in a stock case involving a Gambino crime-family figure just weeks earlier. Ray was placed on the payroll of the mob-connected contractor on Kerik’s recommendation, and the company and Kerik appear in some of the same meeting entries as Ray’s name.

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What is perhaps most surprising about the logs is that Kuriansky also participated on the screening panel of top Giuliani aides that interviewed Kerik and Dunne and made a recommendation to the mayor—a role inconsistent with the independence that most mayors, including Mike Bloomberg, expect of their investigation commissioners. One participant in these high-level internal discussions says Kuriansky never mentioned Kerik’s ties to the company or Ray, which suggests that even as Giuliani and Young were briefed, the mayor did not want the larger group of deputy mayors told about Kerik’s dark side.

Giuliani testified that, in the end, Kuriansky didn’t regard whatever he had on Kerik as disqualifying information. But on the other hand, Kuriansky also allowed Kerik to avoid filling out a detailed questionnaire required of major appointees. Giuliani’s first meeting with Kuriansky about the background probe preceded that decision.

As clear as it is that Giuliani was on notice about the questions surrounding Kerik when he made him police commissioner, he had even better reasons not to recommend him for the homeland-security post four years later. Giuliani says now: “I think I should have done a better job of investigating him, vetting him, however you want to describe that. It’s my responsibility, and I’ve learned from it. I’ll make sure that I do a much better job of checking into people in the future.” All Giuliani had to do by December 2004, however, was read the newspapers about his own partner to see that Kerik was carrying too much baggage for a cabinet-level job.

The city’s Conflict of Interests Board, consisting mostly of Giuliani appointees, had already fined Kerik $2,500 for using three police detectives to do research for his lucrative autobiography. One of Kerik’s top aides at the correction department was indicted in 2003 for running political campaigns out of his office at Rikers Island and for using department workers to renovate his home. Kerik was also accused of covering up an assault charge against his chief of staff, John Picciano, who allegedly attacked a female correction officer he was having an affair with and threatened her with a gun. A 2003 Daily News story quoted a top correction official who detailed how Kerik had personally tried to keep the incident quiet. (Picciano, who had also taken 99 exemptions on his tax returns but avoided prosecution when many other correction department employees were penalized for similar conduct, was working at Giuliani Partners when the stories about him ran.)


A federal judge ordered Kerik in 2004 to help repay $142,733 that was embezzled from a correction-department charity that Kerik chaired. Fred Patrick, the treasurer of the foundation, which received a million dollars in department revenue diverted by Kerik, pleaded guilty to looting it to cover the cost of the kinky collect-call phone conversations he was having with jail inmates. Kerik was required to jointly repay the money because he appointed Patrick to the post and was supposed to oversee the finances of the nonprofit. William Fraser, who was Kerik’s top deputy at the correction department and was elevated at Kerik’s behest, resigned in the early years of the Bloomberg administration when it was revealed that department workers had renovated the pool at his home. Kerik was also a defendant in a lawsuit accusing him of retaliating against a correction official who disciplined a female prison guard with whom Kerik was having an affair, and was scheduled to testify in a deposition around the time of his nomination.

And finally, the Daily News was on the verge of breaking the story of Kerik’s relationship with the mob-tied company, and its reporter left messages detailing the gist of the allegations with Giuliani Partners press secretary Sunny Mindel two days before Kerik was nominated as homeland-security secretary. Everything Ed Kuriansky had whispered years earlier to Giuliani and Young was about to explode.

Knowing all of that, Giuliani went ahead with his support for Kerik’s nomination. Neither he nor Kerik could resist the prominence—and presumably the business—that would come with this ascent to the highest levels of the Bush administration, where Kerik would oversee billions in contracts for just the kind of clients attracted to Giuliani Partners. It was a brazen decision rooted in the same rationale as Giuliani’s presidential campaign, namely that Kerik’s 9/11 hero image would transcend the messy sideshow of his actual life. Of course, Giuliani knew that even Kerik’s 9/11 heroism was a hoax. A study by McKinsey & Company, which was completed in 2002 at the behest of the Bloomberg administration, had taken apart Kerik’s 9/11 performance without naming him. McKinsey found a “perceived lack of a strong operational leader commanding the NYPD response” that day, the “absence of a clear command structure and direction on 9/11 and days after, leading to inadequate control of the NYPD response,” and “no central point of information regarding the incident, with leaders acting largely on personal observations.”

[

By Kerik’s own admission, his No. 1 job that day was to protect the mayor, and he literally wrapped himself around Giuliani, reverting to the bodyguard role of 1993. But Giuliani obviously believed, as he does in his own campaign, that the visuals of Kerik on 9/11 were so etched in the American mind that they would trump the facts. Even Kerik’s disastrous stint in Iraq—he was dispatched by Bush in 2003 to train the Iraqi police, only to return three scandalously ineffective months later—wasn’t seen as an obstacle to his appointment. Giuliani apparently believed that Gonzales’s vetting of Kerik could be fixed, just as Kuriansky’s had been. But while Kuriansky could waive the voluminous questionnaire usually filled out by high-level appointees, the White House couldn’t. In 2000, Kuriansky and Giuliani wanted no paper trail and left none. Gonzales couldn’t do that.

Still, Kerik was nominated, meaning he managed to get past Gonzales, and he would have become homeland-security secretary but for a deluge of news stories. The not-so-secret life of Bernie Kerik suddenly burst onto the national scene, and the stream of headlines went beyond his bumbling advocacy for the
sleazy contractor. His love shack overlooking Ground Zero—in an apartment ostensibly
designated for the use of exhausted firefighters—was so busy that one mistress found a love
letter from another there. That story, more than any other, sealed his fate. The revelations were so sudden and damaging that it remains the most peculiar paradox of a very paradoxical presidential campaign that the Republican front-runner, whose calling card is counterterrorism, wanted the security of the country turned over to a friend and partner whose career literally exploded before our eyes, and Giuliani, miraculously, has suffered almost no collateral damage.

Kerik is the prime example of how circumscribed Giuliani’s circle of trust became over time. His first police commissioner, Bill Bratton, was a top-flight professional, just like Giuliani’s first emergency-management director, Jerry Hauer. But Bratton eventually morphed into Kerik and Hauer into Richie Sheirer, a former dispatcher who helped deliver the dispatchers’ union to Giuliani in the 1993 mayoral election. Giuliani’s inner circle, by the end of his mayoralty, consisted almost entirely of what’s become known as the “Yes, Rudies,” or the “Musketeers,” people whose careers were the consequence, by and large, of their ties to him. It wasn’t so much the Bush pattern of loyalty displacing competence as the primary measure of an adviser or aide. In the end, Giuliani’s table of organization had an upside-down quality to it—the less competent someone was, the more dependably loyal they were perceived, and the surer they were to rise to the top or get invited to join Giuliani Partners. In such a circus, it’s hardly surprising that the clowns around Giuliani were also making darkly serious mischief.


The presidential front-runner has been living on the edge in his personal, political, and corporate relationships for years, even conducting a semi-public affair with Judi Nathan as he prepared to run for the Senate in 1999 and 2000—his first, but perhaps not last, head-to-head match-up with Hillary Clinton. What few understand is that these bold and tawdry ties haven’t been some incidental subplot to Rudy Giuliani’s life. They are part of the main narrative, and, as Kerik proves, they provide a revealing look on the character and judgment that he would bring to the White House.

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Mukasey Stood Up for Convicted Arsonist

Exclusive: Brooklyn businessman/arsonist endangered NY firefighters, but AG nominee Mukasey offered to tout the felonious goniff’s “remarkable character” before sentencing

In a previously unreported episode, U.S. Attorney General nominee Michael Mukasey praised the “remarkable character” of notorious Brooklyn businessman Nat Schlesinger after Schlesinger was convicted of arson in a blaze that nearly killed a New York City firefighter.

After having stood up as a federal judge for a convicted arsonist who reaped millions of dollars from his crimes, Mukasey is on tap to become the country’s top law-enforcement official. His hearing before the Senate Judiciary Committee has contained no mention of the Schlesinger case.

This isn’t part of Mukasey’s dim past; it happened last year. And Mukasey wasn’t the only prominent person to stand up for Schlesinger. Israel’s current prime minister, Ehud Olmert, used his government stationery (when he was merely a deputy prime minister) to plead on behalf of the powerful Brooklyn businessman, as my colleague Tom Robbins reported on August 1, 2006.

Mukasey was prohibited from directly volunteering a written testimonial because he was a sitting federal judge on New York’s Southern District bench. But he scooted around that technicality, and Schlesinger’s lawyers bandied about his name — and what he would say about the arsonist — in their June 30, 2006, presentencing memo, which Robbins obtained.

The arsonist’s lawyers made no bones about it, salting their memo to federal Judge Arthur Spatt of New York’s Eastern District with Mukasey’s name. They titled a section of the memo with this:

Judge Mukasey Indicated that He Would Provide Information Regarding Nat Schlesinger’s Remarkable Character if this Court Makes an Inquiry of Him

And Schlesinger’s lawyers wrote:

At the outset, we were advised that Judge Michael B. Mukasey knows the Schlesinger family and attended weddings of the Defendant’s children. Based on his history and knowledge of Mr. Schlesinger, it is our understanding that Judge Mukasey is willing to provide information to this Court that may prove extremely helpful at sentencing.

However, we are also aware of the constraints imposed in the Commentary to Canon 2B of the Code of Conduct for United States Judges, which provides that a “judge should not initiate the communication of information to a sentencing judge … but may provide to such persons information in response to a formal request.” … As a consequence, we ask the Court to make a formal request of Judge Mukasey for any information that may prove relevant to Nat Schlesinger’s sentencing.

There’s no evidence that Spatt made such a request, which would have been highly unusual, to say the least. But the memo had practically the same effect because it clued in Judge Spatt that one of his colleagues vouched for Schlesinger.

Robbins noted at the time that Schlesinger was convicted in 2005 on “charges of arson, mail fraud, and — a particularly tough count under federal law — using fire to commit a felony.”

The case was broken by fire marshal Bernard “Buddy” Santangelo, sparking a lengthy investigation of suspicious fires and a successful prosecution under U.S. Attorney Roslyn Mauskopf. Judge Spatt was swamped with glowing testimonials from Schlesinger’s fellow Jews, many of them Orthodox, as is Mukasey.

Mukasey’s own status as an Orthodox Jew has been an issue before — and in Jewish publications, as I pointed out this past September 24 in an item about his presiding over a terrorism trial at which he clashed with William Kunstler over whether Mukasey would be able to fairly judge Muslim defendants.

In the Schlesinger episode, the arsonist didn’t exactly have a clean track record. As Robbins wrote last year:

It wasn’t his first time before a federal judge. Back in 1978, Schlesinger was sentenced to 18 months in prison for conspiring to bribe a polygraph examiner to submit a fake report on behalf of a diamond smuggler.

Schlesinger faced up to 22 years in prison in the arson case, but it wasn’t only his fellow Orthodox Jews who played the religion card. Schlesinger himself played it. Robbins wrote:

Standing before Judge Spatt …, Schlesinger made an audacious claim about his circumstances. “I am here because I am a Jew,” he said. The statement, according to Newsday’s Robert Kessler, who was in the courtroom, brought a quick and strong response from assistant U.S. attorney Lawrence Ferazani, who tried the case against Schlesinger along with prosecutors Cynthia Monaco and Richard Lunger. Ferazani said he was representing Mauskopf, the daughter of Holocaust survivors. As for Schlesinger, the prosecutor said: “The reason he is here is because he is a thief, because he is an arsonist, and because he is a money launderer.”

That apparently didn’t faze Olmert. In a letter dated September 11, 2005, Olmert (at the time Israel’s vice prime minister of industry, trade, and labor) pleaded with Judge Spatt to show Schlesinger “mercy, compassion, and understanding.” (Again, see Robbins’s “Burn Job,” August 1, 2006.)

The only hot air that counted, however, was what a New York City firefighter endured because of Schlesinger’s felonious behavior. As Robbins wrote:

Schlesinger, who has long been a major figure in Williamsburg and upstate Monsey, where he owns property, was found guilty of having set a fire that took place on December 31, 1998. The New Year’s Eve blaze occurred at a huge, block-long industrial building the businessman owned at Wallabout Street and Kent Avenue in Williamsburg, where he manufactured women’s clothing for such high-end stores as Neiman Marcus, Saks Fifth Avenue, and Bloomingdale’s. The inferno almost felled a firefighter who became lost in thick smoke on the building’s third floor, where the fire had been set in a maze of boxes. The firefighter had to send a “Mayday” message before he was rescued, unharmed.

In the end, Schlesinger was sentenced 15 years in prison. Schlesinger’s lawyers have appealed. An e-mail to Mukasey at his law firm elicited no reply.

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Tally Ho!: The GOP’s Hounding of Voters

Rehnquist is dead, but his spirit lives. The Supreme Court and Rove’s man at the FEC pump life into “voter fraud” scheme.

A snapshot of current American electoral politics is one of the ugliest pictures of the year, now that the increasingly conservative Supreme Court has decided to hear a major voter-fraud/national photo ID case before next year’s elections.

The GOP-engineered presidential-vote debacle in 2000 has developed into what may become a major scandal involving the use of photo IDs, which the GOP has been trying to engineer in time for next year.

“Voter fraud” — a purported invasion of polling places by illegitimate voters — is the battle cry of Republican officials hoping to stem turnout by likely Democratic voters in battleground states.

And “voter fraud” is right: The requirement that voters present photo IDs is their scheme, and Hans von Spakovsky is their standard-bearer at the Federal Election Commission. That uncomfortable sensation felt by small-d democrats is their cherished poll being shoved up a place where the sun don’t shine.

Who said Karl Rove left the building? Coupled with the appointment of Michael Mukasey to oversee the Justice Department and its Civil Rights Division, the GOP is setting itself up well for ’08, fighting a winnable war against U.S. voters while it fights an impossible war overseas. Rove’s fingerprints are all over this, whether or not he’s still using his White House keyboard.

Iraq has left the Republicans flaccid, but their “voter fraud” canard and accompanying strategy threaten to give the GOP yet another election.

Shades of Bill Rehnquist! Before he was chief justice of the U.S., Rehnquist personally blocked black people from voting in Phoenix in 1964, using “voter fraud” as his excuse. I wrote about that in September 2005 (“Rehnquist Death Gives Bush Chance to Deepen American Crisis”), recalling Dennis Roddy‘s riveting column in the Pittsburgh Post-Gazette that itself recalled Rehnquist’s totalitarian behavior in Arizona as a GOP operative.

Rehnquist died in September 2005, but that didn’t help because John Roberts, who favors corporate citizens over human citizens, took his place. An event that may turn out to be equally vital to the GOP occurred three months later, when Bush made a recess appointment to the FEC of von Spakovsky, a former Republican county chairman in Georgia. Before his FEC appointment, von Spakovsky was the chief civil-rights violator in the Justice Department’s civil-rights division, leading the move to suppress minority and poor voters.

Von Spakovsky is up for confirmation to another FEC term. And the Roberts Supreme Court announced yesterday that it will hear the issue involving national photo IDs and voting — just in time for next year’s election. This is dangerous, because it will likely bollix up ’08 voting in key states.

There’s plenty to read on this topic. From Paul Kiel at Talking Points Memo this past June:

A group of former voting rights attorneys in the Division put it most succinctly in a letter to Sen. [Dianne] Feinstein … urging rejection of his nomination: von Spakovsky was “the point person for undermining the Civil Rights Division’s mandate to protect voting rights.” Von Spakovsky reported to [the division’s Bradley] Schlozman, and the two worked together to purge voters from the rolls, ensure that voter ID laws were approved with no fuss, and punish lawyers who did not toe the line.

Kiel refers to a 2004 piece by Jeffrey Toobin in the New Yorker whose headline says it all: “Poll Position: Is the Justice Department poised to stop voter fraud — or to keep voters from voting?”

See Lou Dubose‘s 2006 account of how von Spakovsky collaborated with Rove to scheme Tom Delay‘s crooked redistricting in Texas earlier this century. More to the current point, Dubose noted at the time:

The White House human resources shop found [von Spakovsky] on a county board overseeing elections in Atlanta and appointed him director of the Civil Rights Division at the Department of Justice.

He had additional voting rights experience that qualified him for his DOJ job. He had served on the board of the Voting Integrity Project, a regional franchise in the Republican Party’s national voter-suppression ancillary operation.

In 2000, while von Spakovsky was on the board of Voting Integrity, the group worked to cleanse Florida voting roles of African-American “felons.” Unfortunately, their felons list included the names of thousands of innocent people.

Dahlia Lithwick‘s piece two days ago in Slate is also vital for understanding the back story on von Spakovsky.

Legal beagles can parse Bob Bauer‘s analysis yesterday of the politics swirling around the vote case the Supreme Court has now agreed to hear.

For a very recent story hinting at the bad smell emanating from the Justice Department, see “The Stooge,” by David Martin of Kansas City’s The Pitch.

As for following this issue, though, nothing beats wonk lawyer Rick Hasen‘s Election Law site, though Hasen is perhaps too hopeful that the high court will protect the rights of voters.

As I’ve pointed out before, in a September 2004 piece about dubious electronic-voting machines, Hasen is always a captivating and current legal-news live wire.

Those who can’t live without the New York Times can learn some things from an April 12 story, “In 5-Year Effort, Scant Evidence of Voter Fraud,” co-bylined by Ian Urbina, whose copy I used to have the pleasure of editing.

But you must keep clicking on the excellent McClatchy home page (formerly the Knight-Ridder D.C. Bureau), and definitely read Greg Gordon‘s story last April, “Administration pursued aggressive legal effort to restrict voter turnout.” Gordon noted:

For six years, the Bush administration, aided by Justice Department political appointees, has pursued an aggressive legal effort to restrict voter turnout in key battleground states in ways that favor Republican political candidates.

The administration intensified its efforts last year as President Bush’s popularity and Republican support eroded heading into a midterm battle for control of Congress, which the Democrats won.

Facing nationwide voter registration drives by Democratic-leaning groups, the administration alleged widespread election fraud and endorsed proposals for tougher state and federal voter identification laws. Presidential political adviser Karl Rove alluded to the strategy in April 2006 when he railed about voter fraud in a speech to the Republican National Lawyers Association.

 

Next year those of you who can vote might want to vote early and vote often.