History > 2007 > USA > Federal Justice (III)

Mukasey Calls Harsh Interrogation

‘Repugnant’

October 31, 2007
The New York Times
By SCOTT SHANE

WASHINGTON, Oct. 30 — In an effort to quell growing doubts in the Senate about his nomination as attorney general, Michael B. Mukasey declared Tuesday that waterboarding and other harsh interrogation techniques “seem over the line or, on a personal basis, repugnant to me” and promised to review the legality of such methods if confirmed.

But Mr. Mukasey told Senate Democrats he could not say whether waterboarding, which simulates drowning, was illegal torture because he had not been briefed on the details of the classified technique and did not want to suggest that Central Intelligence Agency officers who had used such techniques might be in “personal legal jeopardy.”

It was unclear whether the answers would be enough to win endorsement from the Senate Judiciary Committee, where the torture issue has threatened to block the confirmation of Mr. Mukasey, who served for 18 years as a federal judge in New York.

Mr. Mukasey gave his answer in a four-page letter delivered Tuesday afternoon to Senator Patrick J. Leahy, chairman of the committee, and the other nine Democrats on it.

Mr. Mukasey noted that Congress has not explicitly banned waterboarding by the C.I.A., though it was outlawed for use by the military in the Detainee Treatment Act of 2005. That left room for interpretation as to whether waterboarding or any other technique is prohibited as “cruel, inhuman or degrading” treatment, he wrote.

“Legal questions must be answered based solely on the actual facts, circumstances and legal standards presented,” he wrote.

In the absence of knowing exactly how specific classified interrogation techniques have been used, Mr. Mukasey continued, he did not want to offer legal opinions on “hypotheticals.”

All 10 Democrats on the committee wrote to Mr. Mukasey last week asking that he clarify his position on waterboarding. “Your unwillingness to state that waterboarding is illegal may place Americans at risk of being subject to this abusive technique,” they wrote.

The initial response from committee Democrats on Tuesday night suggested that Mr. Mukasey had not assuaged their concerns.

“I remain very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal and below the standards and values of the United States,” Mr. Leahy, of Vermont, said in a statement.

He said he would consider Mr. Mukasey’s written answers to other questions and consult other committee members before scheduling a vote on the nomination.

Another Democrat, Senator Richard J. Durbin of Illinois, said Mr. Mukasey had “spent four pages responding and still didn’t provide an answer” to the question, “Is waterboarding illegal?”

“Judge Mukasey makes the point that in the law, precision matters,” Mr. Durbin said. “So do honesty and openness. And on those counts, he falls far short.”

A Republican on the committee, Senator Lindsey Graham of South Carolina, praised Mr. Mukasey’s response, saying: “I think Judge Mukasey did himself some good with this letter. He helped his cause with me.”

But Mr. Graham, a former military lawyer who has said he believes that waterboarding is unquestionably torture, said he had “a couple of areas that I want to flesh out” before committing to vote in favor of confirmation.

The committee is scheduled to meet Thursday, but a vote at that time looked unlikely Tuesday night. An aide to Mr. Leahy said the committee was still waiting for what were expected to be Mr. Mukasey’s voluminous written replies on a variety of subjects, including things like civil rights and antitrust law.

Mr. Mukasey, named by President Bush on Sept. 17 as his choice to succeed the much-criticized Alberto R. Gonzales as attorney general, was initially expected to face an easy confirmation. His name had been suggested by a Democrat, Senator Charles E. Schumer of New York.

But his equivocation at his Senate confirmation hearing on the question of whether waterboarding is torture, and his assertion that the president’s constitutional powers can sometimes trump a particular law, drew sharp criticism from Democrats and human rights groups.

Waterboarding involves strapping a prisoner to a board, covering his face with cloth and pouring water over the cloth to produce a feeling of suffocation. Variations of the technique, designed to give a prisoner a feeling of imminent drowning, have been used for centuries.

The C.I.A. used waterboarding against some high-level operatives of Al Qaeda at secret overseas sites, and it emerged as a symbol of the Bush administration’s embrace of harsh physical pressure in interrogation.

Gen. Michael V. Hayden, the C.I.A. director, has said in recent speeches that of about 100 Qaeda suspects held since 2002 at the agency’s secret jails, harsh interrogation techniques were used on fewer than one-third. A knowledgeable official said on Tuesday that waterboarding was used on three prisoners, the last time in 2003.

In still-secret legal opinions in 2005, the Justice Department ruled that even the toughest C.I.A. techniques, including waterboarding, were legal.

Pressed about waterboarding by Senator Sheldon Whitehouse, Democrat of Rhode Island, on the second day of his confirmation hearing, Mr. Mukasey replied, “I don’t know what is involved in the technique.”

That reply did not satisfy some senators, who noted that the technique had been widely described in the press. Four Democratic senators who are running for president, Hillary Rodham Clinton, Barack Obama, Joseph R. Biden Jr. and Christopher J. Dodd, said this week that they would not support Mr. Mukasey based on his initial testimony on waterboarding.

Waterboarding has also been a flash point among Republican presidential candidates. Last week, after Rudolph W. Giuliani, the former New York mayor, said he was not sure about waterboarding because he thought “the liberal media” might not have described it properly, Senator John McCain of Arizona, who was tortured as a prisoner in North Vietnam, shot back, saying it was a torture method used since the Spanish Inquisition.

Mukasey Calls Harsh Interrogation ‘Repugnant’, NYT, 31.10.2007, http://www.nytimes.com/2007/10/31/washington/31mukasey.html

Editorial

Tilting the Scales of Justice

October 24, 2007
The New York Times
 

Every time we take a look at the United States attorney scandal, more evidence emerges that Alberto Gonzales politicized the Justice Department to the point where it sometimes seems like a branch of the Republican National Committee.

Yesterday, for example, Richard Thornburgh, a former Republican attorney general, told a Congressional hearing that his client, Dr. Cyril Wecht, a Democratic officeholder in Pennsylvania, was indicted on federal charges that should not be federal charges by a United States attorney who targeted Democrats.

At the same hearing, more evidence emerged that the prosecutions of Don Siegelman, the former Alabama governor, and Paul Minor, a prominent Mississippi Democrat, may have been political hits. And a University of Missouri professor testified that his statistical analysis showed that the Justice Department engaged in “political profiling.”

Dr. Wecht’s case has gotten little attention, but that may change. Mr. Thornburgh said prosecutors are using “unprecedented” legal theories to turn mostly “nickel and dime transgressions” into major federal felonies. He charged that while United States Attorney Mary Beth Buchanan went after Dr. Wecht and other Democrats, she ignored the offenses of Republican officials, including a congressman whose staff accused him of using government employees in his election campaign.

Mr. Siegelman’s lawyer, Doug Jones, said the investigation of the former governor was very limited until it turned around “180 degrees” in late 2004, after Washington officials told local prosecutors “to go back and look at the case, review the case top to bottom.” That is consistent with the account of Dana Jill Simpson, a Republican lawyer who says she was on a phone call in which Republican operatives said Karl Rove was involved in the prosecution.

In his introductory remarks, Representative Robert Scott, Democrat of Virginia, said that Mr. Minor’s prosecution appeared to have been political. He said that a Republican contributor who is the brother-in-law of a Republican senator was “not even investigated, let alone indicted” for activities similar to Mr. Minor’s.

Committee members said they have learned of other prosecutions that may have been political and listed several defendants by name. Donald Shields, the University of Missouri professor, testified that the Justice Department prosecuted 5.6 local Democratic officials for every Republican. The odds of that occurring by chance, he found, is less than 1 in 10,000.

Republicans on the committee refused to take the allegations seriously — even though this sort of politicization should offend anyone who cares about the justice system. They called the claims “ridiculous,” and asked the witnesses if they had specific evidence that United States attorneys talked to the president or to other top officials about a plan to target Democrats.

That sounds good, but the best evidence about what occurred lies with the current and former members of the Bush administration — and Mr. Rove and Harriet Miers have pleaded executive privilege and defied Congressional subpoenas. They should testify about what they know, and the Justice Department should hand over documents the committee requested months ago.

The American people have a right to know what happened in the last six years at the Justice Department. Any wrongful prosecutions should be rectified.

    Tilting the Scales of Justice, NYT, 24.10.2007, http://www.nytimes.com/2007/10/24/opinion/24wed1.html

News Analysis

Mistrial Is Latest Terror Prosecution Misstep for U.S.

October 24, 2007
The New York Times
By ADAM LIPTAK and LESLIE EATON

There was a time when federal prosecutors would consistently win terrorism prosecutions.

From 1993 to 2001, prosecutors in Manhattan convicted some three dozen terrorists through guilty pleas and in six major trials.

Since the Sept. 11 attacks, the government’s track record has been decidedly spottier, and its failure to obtain a single conviction on Monday in its terrorism-financing prosecution of what was once the nation’s largest Islamic charity was another in a series of missteps and setbacks.

The comparisons are in some ways unfair, as the earlier prosecutions were for completed acts of violence — like the first World Trade Center attack or the 1998 bombings of American embassies in Africa — or for conspiracies that were relatively close to fruition.

The recent ones have often relied on the less colorful charge that the defendants had given “material support” to a terrorist organization. That shift is itself reflective of a conscious change in Washington’s law enforcement strategy, to prevention from punishment.

But some scholars and former prosecutors say the government should have known better than to bring some of its recent failed cases and that a lack of selectivity and judgment, along with a reliance on stale evidence and links to groups not at the core of the current threat, may be harming the effort to combat terrorism.

The pre-9/11 cases brought in Manhattan, said Peter S. Margulies, a law professor at Roger Williams University in Rhode Island, “reflected U.S. attorneys and federal prosecutors at their best, using their discretion, bringing cases when they had strong cases and declining to bring them when they were weak.”

How successful the more recent prosecutions have been depends on what is being counted. In cases trying to prove material support for terrorism, the government’s success rate is “pretty reasonable,” said Robert M. Chesney, a law professor at Wake Forest University.

From the Sept. 11 attacks to last July, the government started 108 material-support prosecutions and completed 62, according to an article by Professor Chesney that is to appear in The Lewis & Clark Law Review. Juries convicted 9 defendants, 30 defendants pleaded guilty, and 11 pleaded guilty to other charges. There were eight acquittals and four dismissals.

“They do lose sometimes,” Professor Chesney said. “But they win more often than they lose. It’s not one loss after another.”

Material-support cases are just a small fraction of what the Justice Department counts as terrorism prosecutions, and in the larger picture the government is not doing nearly as well. According to the Center on Law and Security at the New York University School of Law, the government has a 29 percent conviction rate in terrorism prosecutions overall, compared with 92 percent for felonies generally.

In the trial that ended on Monday with a mix of acquittals and deadlocks, the Holy Land Foundation and several of its officials were charged with giving money to Hamas, the militant Palestinian organization designated a terrorist group by the United States in 1995. The Federal Bureau of Investigation started looking into Holy Land in 1993.

Legal experts said it could be hard to prosecute cases in which some of the evidence was quite old. Indeed, much of the evidence had been available to prosecutors in the Clinton Justice Department, and the material support law was enacted in 1996. But those prosecutors did not pursue the matter.

“There are some of these cases that we did not push — certainly aggressively, sometimes not at all — because we were in a different mindset before 9/11,” said Andrew C. McCarthy, who led the 1995 prosecution of Sheik Omar Abdel Rahman, the blind cleric convicted of conspiring to wage war against the United States.

William Neal, a juror in the Holy Land case, complained that the government’s evidence “was pieced together over the course of a decade — a phone call this year, a message another year.”

Instead of trying to prove that the defendants knew they were supporting terrorists, Mr. Neal said, prosecutors “danced around the wire transfers by showing us videos of little kids in bomb belts and people singing about Hamas, things that didn’t directly relate to the case.”

Mr. McCarthy said he did not envy the Holy Land prosecutors. “It’s very hard,” he said, “even if your evidence is not ambiguous, to sell to a jury that they need to do something that you failed to do something about for years.”

The case was, moreover, about support for Hamas, which jurors are not likely to think poses the sort of direct threat to American security that groups like Al Qaeda do, Mr. McCarthy said.

Civil liberties groups said the Holy Land case was one in a line of misguided prosecutions. They pointed to the collapse of a case against men once accused of being part of a terrorism sleeper cell in Detroit, to the combination of acquittals and deadlocks in the trials of a Saudi student in Idaho and a Palestinian professor in Florida and to the convictions of two men on relatively minor charges in February after a three-month terrorism trial.

“You would think that juries would be eager to convict given the way these guys were painted,” said Jules Lobel, a law professor at the University of Pittsburgh and an author, with David Cole, of “Less Safe, Less Free: Why America Is Losing the War on Terror.”

Juries “are demanding strict proof” these days, said Thomas M. Melsheimer, a former federal prosecutor.

The Holy Land case, which prosecutors have promised to retry, is a particularly curious one, as the government had long ago put the group out of business, said Matthew D. Orwig, a lawyer in Dallas who was until recently United States attorney for the Eastern District of Texas.

“I think the government won when it froze the assets and shut down the organization,” Mr. Orwig said. “Then it piled a loss on top of a win because it lost the prosecution, in an arguably superfluous action.”

Leslie Eaton reported from Dallas.

    Mistrial Is Latest Terror Prosecution Misstep for U.S., NYT, 24.10.2007, http://www.nytimes.com/2007/10/24/washington/24justice.html?hp

Fugitive Arraigned After Return to US

October 20, 2007
Filed at 2:22 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

SPOKANE, Wash. (AP) -- A man accused of raping his daughter and posting videos of the abuse online was arraigned Friday after returning to the United States from Hong Kong.

Kenneth John Freeman, 45, appeared in federal court in Spokane a day after his extradition. He was indicted in January on one count of producing child pornography and one count of transporting child pornography; each count carries a 20-year maximum prison sentence.

A half dozen U.S. marshals were in the courtroom with Freeman, his wrists shackled to a waist chain, during a 10-minute arraignment. U.S. Magistrate Judge Cynthia Imbrogno entered a not guilty plea for Freeman and ordered him held without bond; a trial date has not been set.

Freeman made no statement and quietly answered ''I do, your honor'' and ''Yes, your honor'' to Imbrogno's questions on whether he understood his rights.

Jaime Hawk, a federal public defender who assisted Freeman in the arraignment, declined to comment. Freeman has told jailers he wants no contact with reporters.

Freeman, a computer adviser, bodybuilder and former reserve sheriff's deputy in Washington's Benton County, also is wanted on federal child pornography charges in Oregon. He is also accused of child rape and bail-jumping in Benton County, state charges related to the suspected attack on his daughter.

Federal prosecutor Tom Rice said the Oregon charges stem from three separate incidents where Freeman allegedly took his daughter to that state, where the sexual abuse was again videotaped and distributed over the Internet.

In March 2006, Freeman fled the country for Hong Kong, living for a year in the interior of China before his arrest in May as he re-entered Hong Kong. He agreed to be extradited. Agents from U.S. Immigration and Customs Enforcement and the U.S. Marshals Service flew to Hong Kong on Monday and returned with Freeman on Thursday afternoon, U.S. Marshal Mike Kline said.

In a statement released to news media last week, Freeman did not directly address allegations by his now 17-year-old daughter that he videotaped her abuse four years ago and distributed the sexual assault via Internet pornographers. He did say he ''never physically hurt or threatened'' his daughter.

Freeman had been living in Seattle when he fled the United States last year, months after his daughter told her mother he had assaulted her. He was on the most-wanted lists of the Marshals Service and ICE.

His daughter also discussed the case on the TV show ''America's Most Wanted.'' The posted videos of the abuse have been widely downloaded, officials said.

Benton County deputy prosecutor Adrienne Farabee, the Benton County prosecutor, said the girl's family is pleased Freeman has been returned to face charges. Family members attended Friday's hearing, but declined to talk to reporters afterward.

    Fugitive Arraigned After Return to US, NYT, 20.10.2007, http://www.nytimes.com/aponline/us/AP-Most-Wanted-Arrest.html

News Analysis

Plainly, a Justice Department Pick of Like Mind

October 20, 2007
By ADAM LIPTAK
The New York Times

The senators questioning Michael B. Mukasey, President Bush’s nominee for attorney general, seemed so pleased at first to be receiving direct and unadorned answers that they appeared to be barely taking in what he was saying.

But in his two days of testimony this week, it became clear that Mr. Mukasey believes presidential power to be robust, expansive and sometimes beyond the power of Congress to control.

That is perfectly aligned with the Bush administration’s views, and if Mr. Mukasey was initially a refreshing presence to the Senate Judiciary Committee, it was only because he justified in plain terms what other administration lawyers have said in secret memorandums often cloaked in obfuscation.

Mr. Mukasey did denounce torture in the abstract, but he would not say what it is. He said he would work toward the goal of closing the prison at Guantánamo Bay, Cuba, but only because it has harmed the reputation of the United States.

He disavowed a 2002 Justice Department memorandum authorizing harsh interrogation techniques — but the department itself had disowned the opinion in 2004.

“He did a masterful and appropriate job of repudiating the excesses of what the administration had done,” said Jack Goldsmith, a law professor at Harvard who withdrew the 2002 memorandum when he served in the Justice Department. “But, at the same time, he appropriately defended executive power.”

That defense was substantial and sustained. Asked, for instance, if the president was free to violate a law enacted by Congress, Mr. Mukasey said, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”

Despite the tense questioning of Mr. Mukasey on Thursday, there was no indication yesterday that any senators intended to oppose the nomination.

Senator Patrick J. Leahy, Democrat of Vermont, who is chairman of the committee, has said he intends to submit written questions about several of the issues that were raised during the hearings, especially over Mr. Mukasey’s views on expansive executive branch power. The senator said there would be no vote until Mr. Mukasey had replied to the questions. The White House said yesterday that Mr. Mukasey could not be expected to be specific in discussing classified programs on which he had not yet been briefed.

In his testimony, Mr. Mukasey’s legal analysis was telling and occasionally idiosyncratic.

He indicated, for instance, that he favored a narrow reading of the Supreme Court’s sweeping 2006 decision, Hamdan v. Rumsfeld, striking down the administration’s initial plan for military commissions to try prisoners at Guantánamo.

According to the Defense Department, the court decision means that Al Qaeda prisoners under interrogation must be given the protection of the Geneva Convention’s Common Article 3, which prohibits humiliating and degrading treatment of prisoners. But Mr. Mukasey said he did not think Hamdan went that far.

Gabor Rona, international legal director of Human Rights First, said the comment was troubling and suggestive.

“I simply don’t know where in the decision he could be reading in order to get the impression that Common Article 3 doesn’t apply to interrogation methodologies,” Mr. Rona said. “He seems to be leaving room for the argument made in the torture memos that the executive does have room to violate the Geneva Conventions.”

Mr. Mukasey also said that Congress might be powerless to bar the president from conducting some surveillance without warrants.

“The statute, regardless of its clarity, can’t change the Constitution,” Mr. Mukasey said. “That’s been true since the Prize cases.”

But the Prize cases concerned whether President Lincoln had the power to impose a blockade of Confederate ports without Congressional authorization — not in the face of a Congressional ban. (Indeed, Congress later retroactively authorized Lincoln’s actions.)

The distinction between Congressional silence, as in the Prize cases, and Congressional limitation, as in the 1978 law that required warrants for some intelligence surveillance, is an important one.

It is reflected in another decision Mr. Mukasey cited, Youngstown Sheet & Tube v. Sawyer, a 1952 case in which the Supreme Court rejected President Harry S. Truman’s assertion that he had the constitutional authority to seize steel mills during the Korean War. The decision included a widely admired concurrence from Justice Robert H. Jackson setting out a framework for considering clashes between presidential power and Congressional authority. “I recognize the force of Justice Jackson’s three-step approach,” Mr. Mukasey said.

The president has the most power when he acts with Congressional authorization, Justice Jackson said, and an intermediate amount when Congress is silent. The president’s power is at its “lowest ebb,” Justice Jackson wrote, when Congress has forbidden a particular action.

In the Hamdan case, the Supreme Court made the same point, and perhaps more forcefully. “Whether or not the president has independent power, absent Congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers,” Justice John Paul Stevens wrote for the majority, citing Youngstown.

But, like many attorneys general of both parties, Mr. Mukasey indicated that he understood Youngstown to leave room for presidential power even in the face of Congressional action. “I would certainly suggest that we go to Congress whenever we can,” he added.

The administration has in recent years met with substantial success in Congress, obtaining legislation on surveillance, military commissions and the treatment of detainees that authorized almost all of what it wanted.

“It’s been obvious from events of the last several years that everybody is better off — the president is better off, the Congress is better off, the country is better off — when everybody’s rolling in the same direction,” Mr. Mukasey said on Wednesday.

By Thursday morning, though, there were signs that not everyone was rolling together.

“So you are telling the committee, Judge, that anytime the president is acting to safeguard the national security against a terrorist threat, he does not have to comply with statute?” asked Senator Russ Feingold, Democrat of Wisconsin, referring to the 1978 law.

Mr. Mukasey did not answer directly, though he noted the change in tone of the questioning.

“You’ve suggested that I’ve gone overnight from being an agnostic to being a heretic,” Mr. Mukasey said.


Philip Shenon contributed reporting from Washington.

    Plainly, a Justice Department Pick of Like Mind, NYT, 20.10.2007, http://www.nytimes.com/2007/10/20/washington/20mukasey.html?hp

Mukasey Disavows Torture Memo

October 17, 2007
Filed at 11:33 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- Attorney General-designate Michael Mukasey said Wednesday the president doesn't have the authority to use torture techniques against terrorism suspects, a stance not taken by predecessor Alberto Gonzales and considered key to the nominee's confirmation.

Mukasey repudiated a 2002 memo by then-Assistant Attorney General Jay Bybee that said the president has the power to issue orders that violate the Geneva Conventions as well as international and U.S. laws prohibiting torture. The memo was later disavowed and overridden by an executive order governing interrogation and treatment of terrorism suspects, which allowed harsh questioning but included a vaguely worded ban on cruel and inhuman treatment.

''The Bybee memo, to paraphrase a French diplomat, was worse than a sin, it was a mistake. It was unnecessary,'' Mukasey, 66, told the Senate Judiciary Committee under questioning by Chairman Patrick Leahy, D-Vt.

Leahy said that he and other senators did not vote for Gonzales in large part because he refused to disavow the Bybee memo.

Mukasey's confirmation was all but assured even before he made the statement at the top of proceedings on whether to confirm him as the nation's 81st attorney general. Democrats from Majority Leader Harry Reid and Leahy on down long have predicted easy and quick Senate approval.

Within minutes of convening the hearings, Leahy elicited specific assurances from the nominee that had been sought by liberal interest groups and senators who had endured months of Gonzales' faulty memory during congressional hearings and highly parsed statements.

Under questioning by Leahy, Mukasey promised to bar all but the top Justice employees from taking calls or making calls ''to political figures to talk about cases,'' a problem under Gonzales.

''Partisan politics plays no part in either the bringing of charges or the timing of charges,'' Mukasey said.

Mukasey, a legal adviser to Republican presidential candidate Rudy Giuliani, pledged to recuse himself from matters involving his longtime friend and legal colleague.

And under questioning from the panel's senior Republican, Sen. Arlen Specter of Pennsylvania, Mukasey said he'd have no problem resigning if the president ignores his legal or ethical reservations about administration policy.

''I would try to talk him out of it or leave,'' Mukasey replied, his American flag lapel pin mirroring Specter's.

Measuring Mukasey's independence from the White House has long been an ephemeral, but key, factor in securing support from lawmakers of both parties. Gonzales was accused of being a Bush ally unwilling or unable to stop underlings from broaching ethical and legal boundaries.

The legal controversies that plagued the department under Gonzales spanned the public policy spectrum. From the administration's torture techniques to the president's controversial eavesdropping program and whether nine federal prosecutors were purged for political reasons, the scandals and congressional investigations left the Justice Department leaderless and demoralized.

Setting the more than 100,000-member law enforcement agency back on its feet would be the first order of business. Since the start of the year and Congress' probe of the prosecutor firings, at least 15 senior Justice Department officials have resigned -- including Gonzales, his second- and third-in-command and five assistant attorneys general.

''This is a job interview for a big job, a big job that has become even bigger,'' Leahy said as he opened the proceedings. ''The next attorney general has to begin to regain the public trust.''

Sen. Charles Schumer, a Democrat from Mukasey's home state of New York, said he already had heard the answer he wanted in a private meeting with Mukasey a day earlier. Schumer said he asked the nominee, ''Will you have the courage to look squarely into the eyes of the president of the United States and tell him 'no,' if that is your best legal and ethical judgment?''

Mukasey, Schumer said, replied: ''Absolutely. That is what I am there for.''

The White House has seldom, if ever, placated prickly Democrats into the kind of support they are exhibiting for Mukasey. But in the troubled twilight of Bush's second term, Mukasey's nomination is a political peace offering.

The president chose him after Schumer suggested that Mukasey would be a suitable replacement for Gonzales -- quieting, for the moment, the storm over whether the White House improperly orchestrated the prosecutor firings.

Mukasey once worked as a reporter but gave it up to pursue a career in law. He was nominated to the federal bench in 1987 by President Reagan and eventually became the chief judge of the high-profile U.S. District Court for the Southern District of New York. He played a key role in the courts' response to the Sept. 11 terror attacks, signing material witness warrants to round up Muslim suspects.

    Mukasey Disavows Torture Memo, NYT, 17.10.2007, http://www.nytimes.com/aponline/us/AP-Senate-Attorney-General.html

Mukasey Favors Independent Justice Dept.

October 17, 2007
Filed at 10:18 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- Lobbying for the job of the nation's top law enforcement officer, Attorney General-designate Michael Mukasey pledges to strike a delicate balance between keeping the nation safe and protecting the civil liberties of Americans.

''Protecting civil liberties, and people's confidence that those liberties are protected, is a part of protecting national security, just as is the gathering of intelligence to defend us from those who believe it is their duty to make war on us,'' Mukasey said in remarks prepared for delivery at his confirmation hearing Wednesday. ''We have to succeed at both.''

His statement, obtained by The Associated Press, was reassuring to Democrats seeking an attorney general comfortable with saying ''no,'' if need be, to the president who nominated him. But Mukasey was facing tough questions, too, about whether he could set the leaderless Justice Department back on its feet after a season of scandal under former Attorney General Alberto Gonzales.

''This is a job interview for a big job, a big job that has become even bigger,'' Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said as he opened the proceedings. ''The next attorney general has to begin to regain the public trust.''

''The most important qualities we need in an Attorney General right now are independence and integrity, and Judge Mukasey seems to possess these vital attributes,'' said Sen. Charles Schumer, D-N.Y., in his prepared statement.

Both Democrats, along with Majority Leader Harry Reid, have predicted Mukasey will win quick confirmation after the panel's hearings this week.

Nonetheless, Mukasey was facing questions aimed at eliciting firm pledges of independence from the Bush White House, particularly on techniques for interrogating terrorism suspects and the president's controversial eavesdropping program. In private meetings, Mukasey has told senators that he would refuse if the White House asked him to do something he thought was illegal. And he pledged to conduct an independent investigation of those and other policies.

Lawmakers of both parties say they don't have to agree with Mukasey, 66, on every issue. But pressured by their political bases, they'll seek assurances from the nominee that he can be independent of the White House.

''The Justice Department's mission includes advising the other departments and agencies of government, including the president, on what choices they are free to make and what limits they face,'' Mukasey said. ''Here too, the governing standard is what the law and Constitution permit and require.''

He quoted former Attorney General Robert Jackson, who said that the issue between authority and liberty was not a choice between a right and a wrong. ''That never presents a dilemma,'' he said. ''The dilemma is because the conflict is between two rights -- each in its own way important.''

In the troubled twilight of Bush's second term, Mukasey's nomination is a political peace offering.

The president nominated him after Schumer suggested that Mukasey would be a suitable replacement for Gonzales -- quieting, for the moment, the storm over whether the White House improperly influenced the firings of nine federal prosecutors and other matters.

''There are still some in the administration that want the Department of Justice to be the political arm of the White House,'' Leahy, D-Vt., said after meeting with Mukasey on Tuesday. ''I want that to change, and I think he can change it.''

Mukasey once worked as a reporter but gave it up to pursue a career in law. He was nominated to the federal bench in 1987 by President Reagan and eventually became the chief judge of the high-profile U.S. District Court for the Southern District of New York. He played a key role in the courts' response to the Sept. 11 terror attacks, signing material witness warrants to round up Muslim suspects.

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On the Net:

Senate Judiciary Committee: http://judiciary.senate.gov

White House: http://www.whitehouse.gov/news/releases/2007/09/20 070917-4.html

    Mukasey Favors Independent Justice Dept., NYT, 17.10.2007, http://www.nytimes.com/aponline/us/AP-Senate-Attorney-General.html

Judge Suspends Key Bush Effort in Immigration

October 11, 2007
The New York Times
By JULIA PRESTON

A federal judge in San Francisco ordered an indefinite delay yesterday of a central measure of the Bush administration’s new strategy to curb illegal immigration.

The judge, Charles R. Breyer of the Northern District of California, said the government had failed to follow proper procedures for issuing a new rule that would have forced employers to fire workers if their Social Security numbers could not be verified within three months.

Judge Breyer chastised the Department of Homeland Security for making a policy change with “massive ramifications” for employers, without giving any legal explanation or conducting a required survey of the costs and impact for small businesses.

Under the rule issued by the department, which had been scheduled to take effect last month, employers would have to fire workers within 90 days after receiving a notice from the Social Security Administration that an employee’s identity information did not match the agency’s records. Illegal immigrants often present false Social Security information when applying for jobs.

The rule, announced with fanfare in August by Homeland Security Secretary Michael Chertoff, was the linchpin of the administration’s effort to crack down on illegal immigration by denying jobs to the immigrants. It is part of a campaign of stepped-up enforcement since broader immigration legislation favored by President Bush was rejected by Congress in June.

If allowed to take effect, the judge found, the rule could lead to the firing of many thousands of legally authorized workers, resulting in “irreparable harm to innocent workers and employers.”

The decision brought a sense of relief to the unusual coalition behind the lawsuit, including the A.F.L.-C.I.O. and the United States Chamber of Commerce, often adversaries. They had feared that the measure would bring mass layoffs in low-wage industries, sweeping up both illegal and legal workers and disrupting the labor force.

Judge Breyer’s decision was an awkward disappointment for Mr. Chertoff, a former federal judge, who was relying on the rule as an enforcement tool since Congress left him with few other options.

“We will continue to aggressively enforce our immigration laws while reviewing all legal options available to us in response to this ruling,” Mr. Chertoff said yesterday in a statement.

Mr. Chertoff said the administration was doing “as much administratively as we can, within the boundaries of existing law” to crack down on illegal immigration, but he called on Congress to revisit legislation to give legal status to illegal immigrants and to impose even tougher enforcement measures.

Some conservative lawmakers who argue for vigorous enforcement of the immigration laws as a priority said they were outraged by the judge’s ruling.

“What part of ‘illegal’ does Judge Breyer not understand?” asked Representative Brian P. Bilbray, Republican of California and chairman of the House Immigration Reform Caucus. “Using a Social Security number that does not belong to you is a felony. Judge Breyer is compromising the rule of law principles that he took an oath to uphold.”

The rule establishes steps an employer must follow after receiving a notice from the Social Security Administration, known as a no-match letter, reporting that an employee’s identity information does not match the agency’s records.

If the employee could not clarify the mismatch by providing valid information within 90 days, employers would be required to fire the worker or risk prosecution for knowingly hiring illegal immigrants.

The rule was set to take effect Sept. 14, but was held up temporarily on Aug. 31 by another judge in the San Francisco court, Maxine M. Chesney, who was sitting in for Judge Breyer at the time.

Yesterday, Judge Breyer ordered a halt to the rule until the court could reach a final decision in the case, which could take many months. He made it clear he was skeptical of many of the government’s arguments.

The decision also bars the Social Security Administration from sending out about 141,000 no-match letters, covering more than eight million employees, which include notices from the Homeland Security Department explaining the new rule.

Other groups bringing the lawsuit include the American Civil Liberties Union, the San Francisco Labor Council and several national and local small-business associations.

Judge Breyer found that the Social Security database that the rule would draw upon was laden with errors not related to a worker’s immigration status, which could result in no-match letters being sent to legally authorized workers. “There is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days,” even if they are legal, he wrote.

Lucas Guttentag, a lawyer for the American Civil Liberties Union, said the government had demonstrated “a callous disregard for legal workers and citizens by adopting a rule that punished innocent workers and employers under the guise of immigration enforcement.” A.F.L.-C.I.O officials had estimated that some 600,000 of their members could receive the letters and be vulnerable to unjust dismissal.

In a December 2006 report cited in the court documents, the inspector general of the Social Security Administration estimated that 17.8 million of the agency’s 435 million individual records contained discrepancies that could result in a no-match letter being sent to a legally authorized worker. Of those records with errors, 12.7 million belonged to native-born Americans, the report found.

In a Sept. 18 letter to Mr. Chertoff, the Office of Advocacy of the Small Business Administration supported a claim in the suit that federal officials had failed to carry out a required analysis of the impact on small businesses before announcing the new rule. The office is independent from the Small Business Administration, which supported the rule.

Judge Breyer is the brother of Justice Stephen G. Breyer of the Supreme Court and was nominated by President Bill Clinton in 1997.

    Judge Suspends Key Bush Effort in Immigration, NYT, 11.10.2007, http://www.nytimes.com/2007/10/11/washington/11nomatch.html?hp

Judge Halts Transfer of Guantánamo Detainee

October 10, 2007
The New York Times
By WILLIAM GLABERSON

In what appears to be the first ruling of its kind, a federal judge has barred the Bush administration from sending a Guantánamo detainee to his home country, where he claims he would face torture, according to an order unsealed yesterday in Washington.

The judge, Gladys Kessler of United States District Court for the District of Columbia, issued an injunction prohibiting the planned transfer of the detainee to Tunisia, which has been criticized by American and international officials for human rights abuses.

Saying that the detainee, Mohammed Rahman, claimed that such a transfer would amount to a death sentence, Judge Kessler said “it would be a profound miscarriage of justice” if she allowed the government to send him to Tunisia.

“At that point, the damage would have been done,” she wrote, adding that Mr. Rahman faced a 20-year sentence after a conviction at a terrorism trial the Tunisian government held while he was at Guantánamo.

Advocates for detainees and human rights groups said the ruling was an important development in the legal battle over Guantánamo. They said it could reshape what have been frequent legal conflicts over administration plans to send detainees to countries where they say they face torture or mistreatment.

“It is the only time a court has said the government does not have the unfettered right to do what they will with these people,” said one of Mr. Rahman’s lawyers, Joshua W. Denbeaux.

The ruling was the latest illustration of the hurdles the government faces in its effort to reduce the number of detainees at Guantánamo. State Department officials have said their efforts to repatriate many of the remaining 330 Guantánamo detainees have been hampered by resistance from some countries and by the government’s own concerns about human rights issues.

In other cases, lawyers for detainees have tried to block transfers based on human rights concerns but have failed. Detainees’ lawyers said yesterday that they knew of no other case in which a judge had barred a transfer. Some lawyers said yesterday that they expected an appeal and that it was far from clear how appeals judges would view the ruling. Erik Ablin, a Justice Department spokesman, said the department had argued that the judge lacked the power to issue the injunction. The government, he said, is “reviewing the district court order and considering its options.”

Cynthia Smith, a Defense Department spokeswoman, said officials worked to ensure that mistreatment of transferred detainees did not occur and investigated accusations of mistreatment. “Detainees are not repatriated to countries where it is more likely than not that they will be tortured,” Ms. Smith said.

Judge Kessler, who was appointed by President Bill Clinton, said she was acting because of the Supreme Court’s decision in June to review whether the Guantánamo detainees can bring habeas corpus suits, which are broad challenges to a detainee’s confinement. She said that the Supreme Court’s decision to hear the case “cast a deep shadow of uncertainty” over previous rulings restricting detainees’ rights.

If the Supreme Court were eventually to decide that the detainees had such rights, Judge Kessler said, it would be too late for Mr. Rahman if he had been returned to Tunisia. She said the injunction was “necessary to ensure his survival until the Supreme Court rules.” Mr. Rahman’s lawyers said he suffered from serious heart, kidney and other health problems.

Officials at the Tunisian Embassy were not available for comment, an employee in the ambassador’s office said.

Jennifer Daskal, the senior counterterrorism counsel at Human Rights Watch, said the ruling was notable in part because the administration sent two other detainees to Tunisia in June. One claimed abuse by Tunisian interrogators, including threats against his wife.

“The court,” Ms. Daskal said, “has rejected the administration position that it can unilaterally decide when, where and how it transfers detainees out of Guantánamo without any independent assessment.”

Last week, Judge Kessler issued another unusual order on detainee issues. In that case, she directed the government not to transfer a detainee held in American custody in Afghanistan without giving 30 days’ notice to his lawyer.

Yesterday, Mr. Denbeaux, Mr. Rahman’s lawyer, said Judge Kessler’s order would give his client the chance to fight what he said were vague assertions by the military that Mr. Rahman “associated with several terrorists.”

    Judge Halts Transfer of Guantánamo Detainee, NYT, 10.10.2007, http://www.nytimes.com/2007/10/10/washington/10gitmo.html

Record Companies Win Music Sharing Trial

October 5, 2007
Filed at 2:31 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

DULUTH, Minn. (AP) -- The recording industry hopes $222,000 will be enough to dissuade music lovers from downloading songs from the Internet without paying for them. That's the amount a federal jury ordered a Minnesota woman to pay for sharing copyrighted music online.

''This does send a message, I hope, that downloading and distributing our recordings is not OK,'' Richard Gabriel, the lead attorney for the music companies that sued the woman, said Thursday after the three-day civil trial in this city on the shore of Lake Superior.

In closing arguments he had told the jury, ''I only ask that you consider that the need for deterrence here is great.''

Jammie Thomas, 30, a single mother from Brainerd, was ordered to pay the six record companies that sued her $9,250 for each of 24 songs they focused on in the case. They had alleged she shared 1,702 songs in all.

It was the first time one of the industry's lawsuits against individual downloaders had gone to trial. Many other defendants have settled by paying the companies a few thousand dollars, but Thomas decided she would take them on and maintained she had done nothing wrong.

''She was in tears. She's devastated,'' Thomas' attorney, Brian Toder, told The Associated Press. ''This is a girl that lives from paycheck to paycheck, and now all of a sudden she could get a quarter of her paycheck garnished for the rest of her life.''

Toder said the plaintiff's attorney fees are automatically awarded in such judgments under copyright law, meaning Thomas could actually owe as much as a half-million dollars. However, he said he suspects the record companies ''will probably be people we can deal with.''

Gabriel said no decision had yet been made about what the record companies would do, if anything, to pursue collecting the money from Thomas.

The record companies accused Thomas of downloading the songs without permission and offering them online through a Kazaa file-sharing account. Thomas denied wrongdoing and testified that she didn't have a Kazaa account.

Since 2003, record companies have filed some 26,000 lawsuits over file-sharing, which has hurt sales because it allows people to get music for free instead of paying for recordings in stores.

During the trial, the record companies presented evidence they said showed the copyrighted songs were offered by a Kazaa user under the name ''tereastarr.'' Their witnesses, including officials from an Internet provider and a security firm, testified that the Internet address used by ''tereastarr'' belonged to Thomas.

Toder said in his closing argument that the companies never proved ''Jammie Thomas, a human being, got on her keyboard and sent out these things.''

''We don't know what happened,'' Toder told jurors. ''All we know is that Jammie Thomas didn't do this.''

Copyright law sets a damage range of $750 to $30,000 per infringement, or up to $150,000 if the violation was ''willful.'' Jurors ruled that Thomas' infringement was willful but awarded damages in a middle range; Gabriel said they did not explain the amount to attorneys afterward. Jurors left the courthouse without commenting.

Before the verdict, an official with an industry trade group said he was surprised it had taken so long for one of the industry's lawsuits against individual downloaders to come to trial.

Illegal downloads have ''become business as usual. Nobody really thinks about it,'' said Cary Sherman, president of the Recording Industry Association of America, which coordinates the lawsuits. ''This case has put it back in the news. Win or lose, people will understand that we are out there trying to protect our rights.''

Thomas' testimony was complicated by the fact that she had replaced her computer's hard drive after the sharing was alleged to have taken place -- and later than she said in a deposition before trial.

The hard drive in question was not presented at trial by either party.

The record companies said Thomas was sent an instant message in February 2005 warning her that she was violating copyright law. Her hard drive was replaced the following month, not in 2004 as she said in the deposition.

''I don't think the jury believed my client regarding the events concerning the replacement of the hard drive,'' Toder said.

The record companies involved in the lawsuit are Sony BMG, Arista Records LLC, Interscope Records, UMG Recordings Inc., Capitol Records Inc. and Warner Bros. Records Inc.

------

On the Net:

RIAA: http://www.riaa.com

Lawsuit-tracking blog: http://recordingindustryvspeople.blogspot.com

    Record Companies Win Music Sharing Trial, NYT, 5.10.2007, http://www.nytimes.com/aponline/technology/AP-Downloading-Music.html

Trial Starts for Men in Plot to Destroy Sears Tower

October 3, 2007
The New York Times
By ABBY GOODNOUGH

MIAMI, Oct. 2 — Seven indigent Miamians accused of plotting to destroy the Sears Tower in Chicago in the name of Islamic jihad went on trial here on Tuesday. Their lawyers said the defendants were not agents of Al Qaeda but pitiable bumblers framed by the government.

When the men, often called the Liberty City Seven after the blighted neighborhood they live in, were arrested last year, Alberto R. Gonzales, then the attorney general, said, “Homegrown terrorists may prove to be as dangerous as groups like Al Qaeda.”

The plot they are charged with hatching never got off the ground. But in opening statements, federal prosecutors described the men as ruthlessly determined.

“These defendants came together with the sole purpose of waging a holy war in the United States,” said Richard Gregorie, an assistant United States attorney.

The group aspired not only to blow up the Sears Tower, Mr. Gregorie said, but also to destroy federal buildings and even poison salt shakers in restaurants.

The men were charged after a long investigation in which a paid F.B.I. informer posed as a Qaeda operative sent to help them plan and carry out acts of terrorism. The bureau videotaped each of them pledging allegiance to Al Qaeda, and Mr. Gregorie made frequent reference to those oaths on Tuesday.

The evidence includes photos that the men took of federal buildings here.

Each faces up to 70 years in prison if convicted of the charges, which include conspiracy to provide material support to Al Qaeda and conspiracy to wage war against the United States.

Defense lawyers said their clients did have a mission, a benign one, to minister to their community, teaching religion and martial arts from a dank building. Their only crime, the lawyers said, was trying to extort money from the informer, who presented himself as a Qaeda agent with deep pockets.

“All he wanted to do was get his money and run,” Ana M. Jhones, the lawyer for Narseal Batiste, who is accused of being the ringleader, said of her client. “Who better to con than somebody who was supposedly Al Qaeda?”

The other defendants are Patrick Abraham, Burson and Rothschild Augustine, Naudimar Herrera, Lyglenson Lemorin and Stanley G. Phanor.

Mr. Gregorie said the investigation began in September 2005 when a man of Yemeni descent called an F.B.I. agent to report suspicious activity among a group of men in Liberty City. Weeks later, he said, the Yemeni called back to say the men had sent him to Yemen to “get them contacts with Al Qaeda.”

The bureau started investigating, using the Yemeni as the informer. He reported that the seven were “training for hand-to-hand combat” at the Liberty City building with swords, knives and nunchucks.

The informer, referred to as Abbas, was given recording equipment. Over several months, Mr. Gregorie said, he recorded the men discussing violent plans.

Eventually, Mr. Gregorie said, a second paid informer appeared here and presented himself to the group as Mohammed, a Qaeda agent summoned by Abbas to help them. Mr. Batiste asked for boots, uniforms, machine guns, rockets and S.U.V.’s, Mr. Gregorie said.

He added that Mr. Batiste selected the Sears Tower as a target because he knew it from growing up in Chicago. The prosecutor added that Mr. Batiste had worked in construction and told Mohammed, “If I can put a building up, I can take it down.”

At other times, Mr. Gregorie said, Mr. Batiste was recorded saying that he cheered after the Sept. 11 attacks and that he would shoot anyone who survived the Sears Tower attack. The indictment says he spoke of waging “a full ground war” to “kill all the devils we can.”

His lawyer, Ms. Jhones, told the jury that he had indeed said “offensive things” on tape, but only as part of his plot to extort Mohammed, whom she said was paid $80,000 by the F.B.I. She called Mr. Batiste “a wannabe religious leader” who had “very little intellect to fulfill his dreams.”

Mr. Batiste subscribed to the beliefs of the Moorish Science Temple, a group that blends Christianity, Judaism and Islam with an emphasis on self-discipline through martial arts. He walked the streets of Liberty City wearing a turban and flowing robes and clutching a staff, in hopes of commanding respect, Ms. Jhones said.

She said Mohammed had exerted “unrelenting pressure” on the seven “to get the script going in the direction the government wanted.”

Ms. Jhones and other defense lawyers said their clients eventually recoiled from the informers, chilled by ominous statements that they had made.

Several lawyers described their clients as followers of Mr. Batiste, desperate urban residents who smoked a lot of marijuana but hoped to better themselves through the teachings of the Moorish Science Temple.

“Basically, what you see in front of you,” said Richard Houlihan, the lawyer for Mr. Herrera, “is a group of men who were looking for their own way in life.”

    Trial Starts for Men in Plot to Destroy Sears Tower, NYT, 3.10.2007, http://www.nytimes.com/2007/10/03/us/nationalspecial3/03liberty.html

Judge Rules Provisions in Patriot Act to Be Illegal

September 27, 2007
The New York Times
By SUSAN JO KELLER

WASHINGTON, Sept. 26 — A federal judge in Oregon ruled Wednesday that crucial parts of the USA Patriot Act were not constitutional because they allowed federal surveillance and searches of Americans without demonstrating probable cause.

The ruling by Judge Anne L. Aiken of Federal District Court in Portland was in the case of Brandon Mayfield, a lawyer in Portland who was arrested and jailed after the Federal Bureau of Investigation mistakenly linked him to the Madrid train bombings in March 2004.

“For over 200 years, this nation has adhered to the rule of law — with unparalleled success,” Judge Aiken’s opinion said in finding violations of the Fourth Amendment prohibitions against unreasonable search and seizure. “A shift to a nation based on extraconstitutional authority is prohibited, as well as ill advised.”

The ruling is a new chapter in a legal battle that began after the Spanish police found a plastic bag with detonator caps in a van near the bombings, which killed 191 people and left 2,000 injured in the deadliest terrorist attack in Europe since World War II.

Initially, the F.B.I. found no match for the fingerprints. But after reviewing a digitally enhanced set of the prints, the agency identified 20 possible matches, including Mr. Mayfield.

Though Spanish officials had doubts about the match, federal agents began surveillance on him and his family, using expanded powers under the Patriot Act. Mr. Mayfield was jailed for two weeks before a federal judge threw out the case.

Mr. Mayfield, 38, who was born in Oregon and brought up in a small town in Kansas, converted to Islam in 1989. He was a lawyer in a child custody case for Jeffrey Leon Battle, who had been convicted of conspiring to aid the Taliban and Al Qaeda.

Mr. Mayfield said his religion and legal work had led investigators to be overzealous in connecting him to the Madrid plot.

Mr. Mayfield sued the government, which apologized and agreed to a $2 million settlement last November. The settlement included an unusual condition that freed the government from future liability with one exception. Mr. Mayfield was allowed to continue a suit seeking to overturn parts of the Patriot Act.

It was that suit on which Judge Aiken ruled Wednesday. Her opinion said the court recognized that “a difficult balance must be struck in a manner that preserves the peace and security of our nation while at the same time preserving the constitutional rights and civil liberties of all Americans.”

In examining the history of the Federal Intelligence Surveillance Act, the opinion discussed a change by Congress in October 2001, under the Patriot Act, that allows surveillance and searches if the government declares that “a significant purpose” of that activity is gathering foreign intelligence. In the past, such searches and surveillance had been allowed if “the purpose” was to obtain foreign intelligence.

Congress’s intent, the opinion said, was “to break down barriers between criminal law enforcement and intelligence gathering.” Judge Aiken said a practical effect of “a seemingly minor change in wording” was to allow the government to avoid the constitutional probable cause requirement.

“In place of the Fourth Amendment,” the judge wrote, “the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate.”

She said the government was “asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning.”

A spokesman for the Justice Department, Peter Carr, said it was reviewing the decision and declined to comment further.

A lawyer for Mr. Mayfield, Elden Rosenthal, issued a statement on his behalf saying that Judge Aiken “has upheld both the tradition of judicial independence and our nation’s most cherished principle of the right to be secure in one’s own home.”

    Judge Rules Provisions in Patriot Act to Be Illegal, NYT, 27.9.2007, http://www.nytimes.com/2007/09/27/washington/27patriot.html?hp

Nuance and Resolve in Rulings by Attorney General Nominee

September 23, 2007
The New York Times
By ADAM LIPTAK

In his 18 years on the federal bench, Judge Michael B. Mukasey issued more than 1,500 decisions concerning matters as cataclysmic as the Holocaust and as mundane as milk, beer and cigarettes.

In his opinions, Judge Mukasey comes across as fiercely intelligent, prickly, impatient, practical and suspicious of abstractions.

He was quick to chastise and impose sanctions on lawyers who tested his patience or, much worse, lied to him. He did not hesitate to rule against the powerful, including President Bush’s uncle, or people with sympathetic cases but no claim to legal relief. His decisions often crackled with an acerbic and sometimes aphoristic wit.

He was tough at sentencing but not uniformly so. He showed leniency to people convicted of immigration offenses but little mercy to white collar criminals.

Judge Mukasey’s opinions reveal a temperament and legal philosophy more complex than the one suggested by the handful of terrorism cases that prompted his nomination last week for attorney general.

In those cases, Judge Mukasey was largely unyielding. And he showed little sympathy to people held as material witnesses after the Sept. 11 attacks.

But overall, Judge Mukasey’s median sentence was 24 months, compared with the 18-month median sentence imposed by the more than 70 other judges who sat with him on the Federal District Court in Manhattan from 1988 to 2006, according to statistics compiled by the Transactional Records Access Clearinghouse at Syracuse University.

In drug and weapons cases, Judge Mukasey’s sentences were more similar to those of other judges. But his median sentence in immigration cases was just 75 percent of the overall rate, while his white collar sentences were double that of the other judges.

A separate analysis by JudicialReports.com, published by the Institute for Judicial Studies, looked at how often the federal appeals court in New York reversed Judge Mukasey in the last seven years.

In criminal cases, he was reversed 20 percent of the time, compared with an overall reversal rate from his court of roughly 15 percent in 2006. But in civil cases, his 24 percent reversal rate compared favorably with the overall rate of roughly 30 percent.

Last year, when the Justice Department sought his permission to force a mentally troubled defendant to take psychotropic drugs to render her competent to stand trial, Judge Mukasey expressed a visceral disgust for the idea, even though the Supreme Court had endorsed it.

“It is not inappropriate to recall in plain terms,” he wrote, “what the government seeks to do here, which necessarily involves physically restraining defendant so that she can be injected with mind-altering drugs.”

“There was a time when what might be viewed as an even lesser invasion of a defendant’s person — pumping his stomach to retrieve evidence — was said to ‘shock the conscience’ and invite comparison with ‘the rack and the screw,’ ” he added, quoting from a 1952 Supreme Court decision.

His writing was consistently cogent, lucid and self-assured, owing something to George Orwell, a hero of his. Indeed, Judge Mukasey kept a framed photograph of Orwell in his chambers.

“He is a particular idol of mine for his clear writing and complete disdain for cant,” Judge Mukasey told a reporter for The Financial Times in 1989, not long after becoming a judge. “I try to recognize when some spongy abstraction is trying to cover up an excuse for thought or analysis.”

His decisions almost always start with an exceptionally detailed account of the facts, often coupled with a keen awareness of how hard it is to know anything for sure.

His writing benefited from a stint at United Press International, the news agency. “It was good practice in writing fast and making things comprehensible,” he told The Financial Times.

In a 1989 copyright case brought by Kennett Love, a former New York Times reporter who claimed that too much of an unpublished manuscript of his had been used in the defendant’s book, Judge Mukasey revealed a deep knowledge of history and journalism.

“It was once accepted,” Judge Mukasey wrote, “for journalists not to print information they believed disserved the national interest.” He went on to cite coverage of President Franklin D. Roosevelt’s disability, of the overthrow of the Iranian government in 1953, of the 1961 Bay of Pigs invasion and of the Cuban missile crisis in 1962.

Judge Mukasey then quoted ruefully from an article by Max Frankel, a former executive editor of The Times, discussing how things changed after President John F. Kennedy’s assassination and as the Vietnam War progressed: “The essential ingredient was trust, and that was lost somewhere between Dallas and Tonkin.”

Judge Mukasey has attracted occasional criticism for what was said to be a hardhearted and overly formal application of the law.

In 2004, for instance, he dismissed a class-action suit against an Italian insurance company brought by the estates and survivors of people who died or lost property in the Holocaust.

He said he was deferring to “a federal executive branch policy favoring voluntary resolution of Holocaust-era insurance claims” through a private commission.

Thane Rosenbaum, who teaches law at Fordham University and is the author of “The Myth of Moral Justice,” was critical of that decision and said it was suggestive of how Judge Mukasey might approach the job of attorney general.

“The fact that Mukasey ruled in favor of executive pre-emption in a case that was crying out for legal and moral relief,” Mr. Rosenbaum said, “might reveal his sentiments when it comes to the ultimate power of the presidency, for instance, in fighting terrorism.”

In 1993, Judge Mukasey ruled against Prescott S. Bush Jr., a brother of the first President Bush. Mr. Bush had responded to a breach of contract claim from a Japanese company by saying he had been defrauded because the company, he asserted, was a front for a crime family.

Even if the company was “a Japanese mob organization,” Judge Mukasey wrote, Mr. Bush and his own company “could and did contract with it.”

The officers of the Japanese company, he added, “were not applying for membership in a country club.”

In 1998, he ruled against several songwriters who claimed authorship of “The Lion Sleeps Tonight,” saying they had filed their suit too late.

He allowed a contract case against the poet Maya Angelou to go forward in 2005 despite her protestations that she had become disgusted with her partner in the greeting-cards venture and felt it “morally wrong” to proceed.

“None of these reservations,” Judge Mukasey wrote, “had anything to do with the terms of the contract Angelou signed.”

Similarly, he dismissed a lawsuit by Anastasia Myskina, a tennis star, over the publication of nude photographs of her, finding that she had signed a valid release and that the photographs were newsworthy.

In a 1997 securities fraud case, he reversed his own earlier decision and allowed the case over a cigarette company’s asserted lies about nicotine to go forward.

Judge Mukasey did not tolerate sharp conduct in litigation before him. “There is a school of thought that teaches that the best defense is a good offense,” he wrote in imposing fines on a lawyer and his client for submitting an affidavit that he said contradicted the facts.

“That school of thought may prevail on a battlefield or the athletic field; it should not prevail in the courthouse.”

In 1995, he denied a request for a trial adjournment. “It is hard to credit a claim that counsel do not have the time to prepare for trial when they have used their energies to produce on the eve of trial 65 tendentious pages of argument” seeking the adjournment, Judge Mukasey wrote.

When a former publicist for Marla Maples, Donald Trump’s second wife, filed a series of frivolous lawsuits, Judge Mukasey barred the courthouse door, forbidding him to file “any civil lawsuit in a court of the United States, regardless of the subject matter, without first obtaining leave of such court.”

For good measure, he ordered the publicist, Charles Jones, “to staple a copy of this opinion to any future complaint.”

Judge Mukasey’s court, the United States District Court for the Southern District of New York, handles more than its share of major commercial disputes, securities fraud cases and complex criminal prosecutions. But some of Judge Mukasey’s cases concerned quotidian matters.

In 1992 he refused to halt a television commercial that mocked Coors Light.

“The parties have vigorously disputed whether the taste of beer, unlike the taste of milk, is adversely affected by pasteurization,” Judge Mukasey wrote, responding with some newly coined legal Latin.

“De gustibus cerevesiae non scit lex,” he wrote, meaning, presumably, that the law takes no account of taste in weak beer.

    Nuance and Resolve in Rulings by Attorney General Nominee, NYT, 23.9.2007, http://www.nytimes.com/2007/09/23/us/23mukasey.html?hp

Editorial

Considering Mr. Mukase

September 18, 2007
The New York Times

Michael Mukasey, President Bush’s nominee to be attorney general, is being promoted as a “consensus choice,” which is meant to signal the Senate that it should be grateful and confirm him without delay. Mr. Mukasey is clearly better than some of the “loyal Bushies” whose names had been floated, but that should not decide the matter. The Senate needs to question him closely about troubling aspects of his record, and make sure he is willing to take the tough steps necessary to repair a very damaged Justice Department.

Mr. Mukasey has attributes that could make him a good attorney general. He has been a lawyer and federal district court judge in New York, where he enjoys a good reputation. Although he is not divorced from politics (he is on an advisory committee to Rudolph Giuliani’s campaign), it is unlikely that he would run the Justice Department as an adjunct of the White House, or a booster of the Republican Party, as Alberto Gonzales did.

Aspects of his record, however, are troubling. As a judge, he was too deferential to the government. In the case of Jose Padilla, who was accused of participating in a dirty bomb plot, he ruled that the president may detain American citizens indefinitely as “enemy combatants.” His dangerously narrow reading of the Constitution was rightly reversed by a federal appeals court.

In a 2004 Wall Street Journal op-ed article, Mr. Mukasey denounced the “hysteria” of Patriot Act critics, and lashed out at the American Library Association for trying to protect patrons’ privacy. He also made the dubious claim that based on the structure of the Constitution, the government should “receive from its citizens the benefit of the doubt.” And writing in The Journal this year, he promoted the truly awful idea of a separate national security court that would try suspected terrorists.

The Senate should question Mr. Mukasey about all of this, and about the government’s domestic spying program, which has operated illegally, and about which Mr. Gonzales has been unable to tell the truth.

Mr. Mukasey also needs to be asked, in detail, how he intends to fix the Justice Department. There is strong evidence that federal prosecutors brought cases to help Republicans win elections. Mr. Mukasey needs to promise that he will get to the bottom of these matters, and that he will make available the critical documents and witnesses that the administration has withheld.

Mr. Mukasey also needs to explain how he plans to remove the partisan political operatives put in nonpartisan positions under Mr. Gonzales and, more broadly, how he plans to restore the department’s integrity.

Mr. Bush also announced yesterday that he was replacing Acting Attorney General Paul Clement, who was to serve until the Senate confirmed Mr. Gonzales’s successor, with Peter Keisler, a hard-line movement conservative. Mr. Bush’s sleight of hand in installing Mr. Keisler is an unfortunate indication that he intends to keep the department politicized for as long as he can.

Senator Patrick Leahy, chairman of the Judiciary Committee, said yesterday that the Senate would be reluctant to confirm Mr. Mukasey until the White House handed over key documents on issues like domestic surveillance. It should be. Senators also need to ask for more information directly from Mr. Mukasey. He may be worthy of confirmation, but the nation can only know for sure after careful, probing hearings.

    Considering Mr. Mukase, NYT, 18.9.2007, http://www.nytimes.com/2007/09/18/opinion/18tue1.html

Bush Names Choice for Successor to Gonzales

September 17, 2007
The New York Times
By SHERYL GAY STOLBERG and PHILIP SHENON

WASHINGTON, Sept. 17 — President Bush said this morning that he will nominate Michael B. Mukasey, a former federal judge from New York who has presided over some high-profile terrorism trials, as his next attorney general.

“Judge Mukasey is clear-eyed about the threat our nation faces,” Mr. Bush said in the Rose Garden of the White House, with Mr. Mukasey by his side. He called the retired judge “a sound manager and a strong leader.”

The president urged the Senate to confirm him promptly, and White House officials said the administration was hoping the Senate would do so before the lawmakers leave for their next recess on Oct. 8.

Mr. Mukasey will begin making courtesy calls on Senators on Tuesday.

If he is confirmed, Mr. Mukasey (pronounced mew-KAY-see) would become the third attorney general to serve under Mr. Bush. As the top law enforcement officer in the United States, he would preside over a Justice Department that has been buffeted by Congressional inquiries into the firing of federal prosecutors and the resignation of the previous attorney general, Alberto R. Gonzales.

Unlike Mr. Gonzales, Mr. Mukasey is not a close confidant of the president. Nor is he a Washington insider. But people in both political parties say he possesses the two qualities that Mr. Bush has been looking for in a nominee: a law-and-order sensibility that dovetails with the president’s agenda for the fight against terror, and the potential to avoid a bruising confirmation battle with the Democrats who now run the Senate. With 16 months left in office, Mr. Bush can ill afford a drawn-out confirmation fight.

Dana Perino, the White House press secretary, said this morning that the president was not “afraid of any fight.” But she said of Mr. Mukasey, I think he can be confirmed quickly. I think that’s important.”

One Senate Democrat, Senator Charles E. Schumer of New York, who led the fight to oust Mr. Gonzales, issued a statement on Sunday evening praising Mr. Mukasey — a suggestion that Democrats, who are already challenging Mr. Bush over the war in Iraq, have little appetite for another big fight.

“While he is certainly conservative,” Mr. Schumer said, “Judge Mukasey seems to be the kind of nominee who would put rule of law first and show independence from the White House, our most important criteria. For sure we’d want to ascertain his approach on such important and sensitive issues as wiretapping and the appointment of U.S. attorneys, but he’s a lot better than some of the other names mentioned and he has the potential to become a consensus nominee.”

In accepting the president’s offer, Mr. Mukasey spoke this morning of the challenges the Justice Department faces, adding that he hoped he would be able to give the department’s prosecutors “the support and leadership they deserve.”

Even as he said those words, Mr. Gonzales loomed large. Through the months that Mr. Gonzales faced withering criticism from Senate Democrats, Mr. Bush staunchly defended him, and did so again today, calling him Mr. Gonzales “a dear friend and a trusted advisor.” Mr. Mukasey said Mr. Gonzales telephoned him this morning to offer congratulations.

Mr. Mukasey himself has attracted criticism, notably from civil liberties advocates, who say he has been too supportive of law enforcement while on the bench. But he has sometimes such critics, as he did with his handling of the case of Jose Padilla, an American citizen suspected of membership in Al Qaeda. Although Mr. Mukasey backed the White House by ruling that Mr. Padilla could be held as an enemy combatant — a decision overturned on appeal — he also defied the administration by saying Mr. Padilla was entitled to legal counsel.

Some critics cite the decision as a sign of Mr. Mukasey’s independence, and such issues will undoubtedly be front and center during confirmation hearings.

Beyond Mr. Schumer, who in 2003 suggested Mr. Mukasey as a possible Supreme Court nominee, the former judge is not well known on Capitol Hill, and it is impossible to predict how the hearings would go.

When another Democrat, Senator Joseph R. Biden Jr. of Delaware, was asked on Sunday about him, he said Mr. Mukasey would have to prove he was “not just the president’s lawyer, but the country’s lawyer” as well.

“He has to pass that test for me, go through that filter,” Mr. Biden said on Fox News Sunday.

White House officials refused to discuss the selection on Sunday. But Mr. Mukasey spent the afternoon at the White House, and by evening the news that he would be the nominee spilled out. Some White House allies spoke about the selection as if Mr. Bush had already announced it.

“I think the president, by reaching outside the inner circle, by reaching outside the usual suspects, is bringing someone who is really going to restore a lot of integrity to the department,” said Jay Lefkowitz, a former domestic policy adviser to Mr. Bush who now practices law in New York.

Mr. Mukasey, 66, was appointed to the federal bench by President Ronald Reagan in 1987, and retired last year to go into private practice. He spent 19 years as a federal judge in New York, including as chief judge of the United States District Court for the Southern District of New York, which includes Manhattan. Before that, he was a prosecutor in Manhattan. He and his son, Marc, are advisers to Mr. Giuliani’s presidential campaign.

But Mr. Mukasey is not viewed as a political partisan, which has troubled conservatives, many of whom were hoping the president would select Theodore B. Olson, the former solicitor general, as his nominee. Mr. Olson seemed to be moving to the top of the president’s short list last week until Senator Harry Reid, the Democratic leader, said Mr. Olson could not be confirmed.

Over the weekend, the White House appeared to be floating Mr. Mukasy’s name with conservatives. A sign that he would pass muster with them came Saturday night, when William Kristol, the editor of The Weekly Standard, a conservative magazine, endorsed Mr. Mukasey.

In 1993, Mr. Mukasey presided over the trial of Omar Abdel Rahman, the so-called Blind Sheik, whom he sentenced to life in prison for his role in a plot to blow up New York landmarks and tunnels.

He has spoken in support of provisions of the Patriot Act, and last month wrote an op-ed article in The Wall Street Journal on “the inadequacy of the current approach to terrorism prosecutions,” a view that the Bush administration has expressed.

Still, he has garnered praise in some surprising quarters. Glenn Greenwald, a frequent critic of the administration who writes about legal issues for Salon.com, assessed Mr. Mukasey’s part in the Padilla case in an article over the weekend and praised him as “very smart and independent, not part of the Bush circle.”

    Bush Names Choice for Successor to Gonzales, NYT, 17.9.2007, http://www.nytimes.com/2007/09/17/washington/17cnd-attorney.html?hp

Court: Release or Retry Death Row Inmate

September 11, 2007
By THE ASSOCIATED PRESS
Filed at 1:41 p.m. ET
The New York Times

CINCINNATI (AP) -- A death row inmate convicted of setting a fire that killed five children must be released or retried because his constitutional rights were violated when his confession was used at trial, a federal appeals court panel ruled Tuesday.

The 6th U.S. Circuit Court of Appeals judges ruled 2-1 that William Garner didn't understand his right to silence when he told police he would waive his Miranda rights against self-incrimination. He gave a taped statement to police, saying he set fire to a Cincinnati apartment with six children inside to destroy evidence of his burglary, according to court records.

Garner told police he thought the children would be awakened by the smoke and escape, according to court records. Only one child survived, and Garner, now 34, was convicted of five counts of aggravated murder in the 1992 fire, along with arson and other charges.

Judge Karen Nelson Moore, joined by Judge Boyce L. Martin, wrote that evidence showed that Garner, 19 at the time of the statement, was poorly educated, and had low intelligence and other limitations directly related to understanding and comprehending his rights. Expert testimony also showed that Garner didn't understand the word ''right'' or his right to remain silent, their opinion stated.

''Thus, admission of his statement at trial was unconstitutional,'' the opinion stated.

The judges granted Garner's request for habeas corpus, which protects inmates from unlawful imprisonment, and ordered his release in 180 days unless the state sets a new trial. The state could appeal the ruling.

A message seeking comment was left at the Ohio attorney general's office.

Judge John M. Rogers dissented, saying police repeatedly asked and obtained assurance that Garner understood their meaning.

-----

On the Net:

6th U.S. Circuit Court of Appeals: http://www.ca6.uscourts.gov

    Court: Release or Retry Death Row Inmate, NYT, 11.9.2007, http://www.nytimes.com/aponline/us/AP-Condemned-Inmate-Confession.html

5 Found Guilty in Chicago Mob Trial

September 10, 2007
By THE ASSOCIATED PRESS
Filed at 4:00 p.m. ET
The New York Times

CHICAGO (AP) -- A federal jury found five aging men guilty Monday in a racketeering conspiracy that involved decades of extortion, loan sharking and murder aimed at rubbing out anyone who dared stand in the way of the ruthless Chicago mob.

The verdicts capped an extraordinary 10-week trial that laid bare some of the inner workings of The Outfit.

The prosecution's star witness was an admitted hit man who took the stand against his own brother to spell out the allegations, crime by crime. Over 10 weeks, the jury heard about 18 killings, including the beating death and cornfield burial of Tony ''The Ant'' Spilotro, the mob's man in Las Vegas and the inspiration for Joe Pesci's character in the 1995 movie ''Casino.''

The jury deliberated for less than 20 hours before announcing their verdicts.

It was a sweeping victory for prosecutors. The jury found all five men guilty of a racketeering conspiracy that included the 18 unsolved murders, as well as other counts of bribery, illegal gambling and tax fraud.

Alleged mob boss James Marcello, 65; alleged mob capo Joseph ''Joey the Clown'' Lombardo, 78; convicted loan shark Frank Calabrese Sr., 70; and convicted jewel thief Paul Schiro, 70, could now face up to live in prison. The fifth man, retired Chicago police officer Anthony Doyle, 62, was the only one among the five not accused of carrying out at least one of the killings.

The trial focused on the series of murders, ordinarily among the deepest and most closely held secrets of the mob, whose members have sworn an oath of silence.

Testimony ranged from accounts of former friends lured to their deaths to clandestine rituals where the new initiated ''made guys'' had their fingers cut and were required to take an oath while holding burning religious pictures.

The government's star witness was Nicholas Calabrese, an admitted hit man who cooperated with the government in hopes of avoiding a death sentence. He said his brother, Frank Calabrese, ran a loan sharking business and specialized in strangling victims with a rope then cutting their throats to make certain that they were dead.

Frank Calabrese admitted in court that he associated with mobsters, but he denied being one himself.

Yet his brother described a 1983 killing in which the two blasted away on a Cicero street, killing two.

''In my mind, I knew I had to do this because if I didn't, my brother would have flattened me,'' Nicholas Calabrese testified. ''I would have been left there.''

    5 Found Guilty in Chicago Mob Trial, NYT, 10.9.2007, http://www.nytimes.com/aponline/us/AP-Mob-Trial.html

Terror Suspect Gets 24 Years

September 10, 2007
By THE ASSOCIATED PRESS
Filed at 4:02 p.m. ET
The New York Times

SACRAMENTO, Calif. (AP) -- A California man was sentenced to 24 years in federal prison Monday for attending an al-Qaida terrorist training camp in Pakistan and returning to the United States ''willing to wage violent jihad.''

Hamid Hayat, a U.S. citizen who turned 25 on Monday, was convicted in April 2006 of providing material support to terrorists and lying about it to FBI agents. He could have received up to 39 years in prison.

Prosecutors said Hayat intended to attack hospitals, banks, grocery stores and government buildings in California.

The case began after an FBI informant befriended Hayat and began secretly tape-recording their conversations. During those talks, most of which were in Hayat's home, Hayat talked about jihad, praised al-Qaida and expressed support for religious governments in Pakistan and Afghanistan.

His lawyer, Wazhma Mojaddidi, said those sentiments were nothing more than the idle chatter of a directionless young man who had only a sixth-grade education. She said the government had no proof her client had ever attended a terror camp.

Ultimately, jurors were swayed by a confession that was videotaped during a lengthy FBI interrogation. His lawyer said the confession was coerced after agents peppered him with leading questions and wore him down during an all-night session.

Hamid Hayat's father, Umer, also was caught up in the case, but a federal jury deadlocked on whether he had lied to federal agents about his son's attendance at the camp. Umer Hayat later pleaded guilty to lying to a customs agent about why he was bringing $28,000 in cash to Pakistan several years earlier.

Federal Judge Garland Burrell Jr. said Hayat had ''returned to the United States ready and willing to wage violent jihad when directed to do so.''

The case against the Hayats grew from a wider federal probe into the 2,500-member Pakistani community in Lodi, a farming and wine-growing region about 35 miles south of the state capital.

That investigation began shortly after the September 2001 terror attacks and focused on whether Lodi business owners were sending money to terror groups abroad.

    Terror Suspect Gets 24 Years, NYT, 10.9.2007, http://www.nytimes.com/aponline/us/AP-Terror-Probe.html

Judge Voids F.B.I. Tool Granted by Patriot Act

September 7, 2007
The New York Times
By ADAM LIPTAK

A federal judge yesterday struck down the parts of the recently revised USA Patriot Act that authorized the Federal Bureau of Investigation to use informal secret demands called national security letters to compel companies to provide customer records.

The law allowed the F.B.I. not only to force communications companies, including telephone and Internet providers, to turn over the records without court authorization, but also to forbid the companies to tell the customers or anyone else what they had done. Under the law, enacted last year, the ability of the courts to review challenges to the ban on disclosures was quite limited.

The judge, Victor Marrero of the Federal District Court in Manhattan, ruled that the measure violated the First Amendment and the separation of powers guarantee.

Judge Marrero said he feared that the law could be the first step in a series of intrusions into the judiciary’s role that would be “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.”

According to a report from the Justice Department’s inspector general in March, the F.B.I. issued about 143,000 requests through national security letters from 2003 to 2005. The report found that the bureau had often used the letters improperly and sometimes illegally.

Yesterday’s decision was a sequel to rulings by Judge Marrero in 2004 and a federal judge in Connecticut in 2005, both of which enjoined an earlier version of the law. Congress responded last year by amending the law in reauthorizing it.

The earlier version of the measure barred all recipients of the letters from disclosing them. The amended law changed the ban slightly, now requiring the F.B.I. to certify in each case that disclosure might harm national security, criminal investigations, diplomacy or people’s safety.

The law authorized courts to review those assertions, but under extremely deferential standards. In some cases, judges were required to treat F.B.I. statements “as conclusive unless the court finds that the certification was made in bad faith.”

In yesterday’s decision, Judge Marrero said that the revisions to the law did not go far enough in addressing the flaws identified in the earlier decisions and that in fact they created additional constitutional problems.

Recipients of the letters, he wrote, remain “effectively barred from engaging in any discussion regarding their experiences and opinions related to the government’s use” of the letters. Indeed, the very identity of the Internet service provider that brought this case remains secret.

The judge said the F.B.I. might be entitled to prohibit disclosures for a limited time but afterward “must bear the burden of going to court to suppress the speech.” Putting that burden on recipients of the letters, he said, violates the First Amendment.

The decision found that the secrecy requirement was so intertwined with the rest of the provision concerning national security letters that the entire provision was unconstitutional.

Judge Marrero used his strongest language and evocative historical analogies in criticizing the aspect of the new law that imposed restrictions on the courts’ ability to review the F.B.I.’s determinations.

“When the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of privacy,” Judge Marrero wrote, pointing to discredited Supreme Court decisions endorsing the internment of Japanese-Americans during World War II and racially segregated railroad cars in the 19th century.

“The only thing left of the judiciary’s function for those Americans in that experience,” he wrote, “was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights.”

Lawyers for the American Civil Liberties Union, which represented the Internet company, said Judge Marrero had confirmed a bedrock principle.

“A statute that allows the F.B.I. to silence people without meaningful judicial oversight is unconstitutional,” said Jameel Jaffer, an A.C.L.U. lawyer.

Judge Marrero delayed enforcing his decision pending an appeal by the government. Rebekah Carmichael, a spokeswoman for the United States attorney’s office in Manhattan, said the government had not decided whether to file one.

    Judge Voids F.B.I. Tool Granted by Patriot Act, NYT, 7.9.2007, http://www.nytimes.com/2007/09/07/washington/07patriot.html

Judge Strikes Down Part of Patriot Act

September 6, 2007
By THE ASSOCIATED PRESS
Filed at 10:54 a.m. ET
The New York Times

NEW YORK (AP) -- A federal judge struck down parts of the revised USA Patriot Act on Thursday, saying investigators must have a court's approval before they can order Internet providers to turn over records without telling customers.

U.S. District Judge Victor Marrero said the government orders must be subject to meaningful judicial review and that the recently rewritten Patriot Act ''offends the fundamental constitutional principles of checks and balances and separation of powers.''

The American Civil Liberties Union had challenged the law, complaining that it allowed the FBI to demand records without the kind of court order required for other government searches.

The ACLU said it was improper to issue so-called national security letters, or NSLs -- investigative tools used by the FBI to compel businesses to turn over customer information -- without a judge's order or grand jury subpoena.

    Judge Strikes Down Part of Patriot Act, NYT, 6.9.2007, http://www.nytimes.com/aponline/us/AP-Patriot-Act-Lawsuit.html

Sharp Questions Await Gonzales Successor

August 28, 2007
By THE ASSOCIATED PRESS
Filed at 3:26 a.m. ET
The New York Times

WASHINGTON (AP) -- Attorney General Alberto Gonzales' replacement -- whoever that may be -- faces a potentially nasty Senate confirmation and a beleaguered Justice Department badly in need of leadership.

Gonzales' resignation, announced Monday, cheered his critics who for months had demanded the attorney general quit over questions about his credibility.

Filling his job could lead to a new standoff between White House Republicans and the Democratic-led Congress, experts said, even as names of possible successors began to surface.

''Selecting a successor to Gonzales will be a challenge because the Senate is unlikely to confirm anyone as aggressive as Gonzales in the defense of executive power and the practice of secrecy,'' said Peter Shane, professor at The Ohio State University Moritz College of Law.

But the White House is unlikely to let Congress dictate who gets the job.

Someone like former Sen. Jack Danforth, R-Mo., for example, ''might be too liberal for the base,'' said Hunter College political scientist Kenneth Sherrill, referring to Republican conservatives who make up President Bush's core supporters.

A more intriguing pick, Sherrill said, would be Sen. Joe Lieberman, the hawkish Connecticut Democrat whose nomination would allow his state's Republican governor to appoint his replacement -- wresting control of the Senate from Democrats to a tie between the two parties.

For now, Solicitor General Paul Clement will head the Justice Department until a replacement is found. Among the possible successors whose names were floated Monday:

--Homeland Security Secretary Michael Chertoff, a former assistant attorney general and federal judge who commands the legal expertise that Gonzales lacked. However, Chertoff faced intense criticism and calls for his own resignation after Homeland Security's sluggish response to Hurricane Katrina in 2005.

--Sen. Orrin Hatch, R-Utah, the top Republican on the Senate Judiciary Committee for a decade before relinquishing that standing in 2005. In April, Hatch said ''it would be really tough for me to get confirmed'' but that ''I would serve this country in any way I could.''

--Asa Hutchinson of Arkansas, a conservative former U.S. attorney, congressman, Drug Enforcement Administration chief and border security director at the Homeland Security Department. Hutchinson, whom an aide said was on his way to Washington on Monday afternoon, could run afoul of Democrats for his role in the impeachment of former President Clinton.

--Acting Deputy Attorney General Craig Morford, a 20-year federal prosecutor. Morford sent former Rep. Jim Traficant, D-Ohio, to jail and recommended that a federal judge toss out verdicts against two defendants in the nation's first major post-9/11 terrorism case after finding the Justice Department failed to turn over documents to defense lawyers.

--Former Solicitor General Ted Olson, a courtly conservative whose wife, Barbara, was killed in the Sept. 11 flight that crashed into the Pentagon. Olson is now a partner at law firm Gibson, Dunn & Crutcher in Washington.

--Former Deputy Attorney General George Terwilliger, who served during the administration of President George H.W. Bush and is now a partner at White & Case in Washington.

-- Former Deputy Attorney General Larry Thompson, who held the post during the current President Bush's first two years in office and is now general counsel at Pepsi Co.

-- Former Deputy Attorney General James Comey, general counsel at Lockheed Martin Co. He is considered a longshot at best after defying the White House's orders to continue a domestic spying program when he was the Justice Department's No. 2 in 2004.

--4th U.S. Circuit Court of Appeals Judge William Wilkins, a South Carolina jurist who has defended the Bush administration's treatment of enemy combatants and reinstated a libel lawsuit against The New York Times over opinion columns linking a former Army scientist to the 2001 anthrax killings.

    Sharp Questions Await Gonzales Successor, UT, 28.8.2007, http://www.nytimes.com/aponline/us/AP-Gonzales-Replacements.html

Gonzales Departure Won't End Probes

August 28, 2007
By THE ASSOCIATED PRESS
Filed at 1:40 a.m. ET
The New York Times

WASHINGTON (AP) -- Attorney General Alberto Gonzales' resignation Monday after months of draining controversy drew expressions of relief from Republicans and a vow from Democrats to pursue their investigation into fired federal prosecutors.

President Bush, Gonzales' most dogged defender, told reporters he had accepted the resignation reluctantly. ''His good name was dragged through the mud for political reasons,'' Bush said.

The president named Paul Clement, the solicitor general, as a temporary replacement. With less than 18 months remaining in office, there was no indication when Bush would name a successor -- or how quickly or easily the Senate might confirm one.

Apart from the president, there were few Republican expressions of regret following the departure of the nation's first Hispanic attorney general, a man once hailed as the embodiment of the American Dream.

''Our country needs a credible, effective attorney general who can work with Congress on critical issues,'' said Sen. John Sununu of New Hampshire, who last March was the first GOP lawmaker to call on Gonzales to step down. ''Alberto Gonzales' resignation will finally allow a new attorney general to take on this task.''

Sen. Chuck Grassley, R-Iowa, added, ''Even after all the scrutiny, it doesn't appear that Attorney General Gonzales committed any crimes, but he did make management missteps and didn't handle the spotlight well when they were exposed.''

Democrats were less charitable.

Under Gonzales and Bush, ''the Department of Justice suffered a severe crisis of leadership that allowed our justice system to be corrupted by political influence,'' said Sen. Patrick Leahy, D-Vt., who has presided over the investigation into the firings of eight prosecutors whom Democrats say were axed for political reasons.

Majority Leader Harry Reid, D-Nev., said the investigation would not end with Gonzales' leaving.

''Congress must get to the bottom of this mess and follow the facts where they lead, into the White House,'' said the Nevada Democrat.

Gonzales also has struggled in recent months to explain his involvement in a 2004 meeting at the hospital bedside of then-Attorney General John Ashcroft, who had refused to certify the legality of Bush's no-warrant wiretapping program. Ashcroft was in intensive care at the time.

More broadly, the attorney general's personal credibility has been a casualty of the multiple controversies. So much so that Sen. Arlen Specter, senior GOP member of the Judiciary Committee, told him at a hearing on the prosecutors that his testimony was ''significantly if not totally at variance with the facts.''

The speculation about a successor began immediately, and included Homeland Security Secretary Michael Chertoff; Asa Hutchinson, former head of the Drug Enforcement Administration; former solicitor general Ted Olson; and Larry Thompson, who was the second-ranking official at the Justice Department in Bush's first term.

Gonzales made a brief appearance before reporters at the Justice Department to announce his resignation. ''Even my worst days as attorney general have been better than my father's best days,'' said the son of migrants.

Gonzales told the Senate Judiciary Committee as recently as July 24 that he had decided to stay in his post despite numerous calls for his resignation.

Several officials said the attorney general called Bush at his ranch last Friday to offer his resignation. Bush did not attempt to dissuade him but accepted with reluctance, they said. The president then invited Gonzales and his wife to Sunday lunch.

Gonzales was one of the longest-serving members of a group of Texans who came to Washington with Bush more than six years ago at the dawn of a new administration.

Karl Rove, the president's chief political strategist, announced his resignation last week. Presidential counselor Dan Bartlett and Harriet Miers, the former White House counsel who was forced to withdraw her nomination for the Supreme Court, left earlier in the year.

Gonzales, too, was once considered for the high court, but conservatives never warmed to the idea and he was passed over.

His appointment as attorney general more than two years ago marked the latest in a series of increasingly high-profile positions that Bush entrusted him with.

A Harvard-educated lawyer, Gonzales signed on with Bush in the mid 1990s. He served as general counsel and secretary of state when his patron was governor of Texas, then won an appointment to the state Supreme Court.

As counsel, Gonzales helped get Bush excused from jury duty in 1996, which kept him from having to disclose a drunken driving arrest in Maine in 1976. The episode became public in the final days of the 2000 presidential campaign.

Gonzales was White House counsel during the president's first term, then replaced Ashcroft as attorney general soon after the beginning of the second.

Both jobs gave him key responsibilities in the administration's global war on terror that followed the attacks of Sept. 11, 2001.

In a legal memo in 2002, he contended that Bush had the right to waive anti-torture laws and international treaties that protected prisoners of war. The memo said some of the prisoner-of-war protections contained in the Geneva Conventions were ''quaint'' and that in any event, the treaty did not apply to enemy combatants in the war on terror.

Human rights groups later contended his memo led directly to the abuses exposed in the Abu Ghraib prison scandal in Iraq.

Of greater political concern was the Democratic majority that took office in Congress earlier this year. Leahy soon began investigating the firing of federal prosecutors.

Testifying on April 19 before the Judiciary Committee, Gonzales answered ''I don't know'' and ''I can't recall'' scores of times when asked about events surrounding the firings.

His support among Republicans in Congress, already weak, eroded markedly, then suffered further with word of the bedside meeting in the intensive care unit of George Washington University Hospital three years earlier.

Former Deputy Attorney General James Comey testified that Ashcroft had refused to reauthorize the wiretapping program. Appearing before the Judiciary Committee, he described a confrontation in which Gonzales -- White House counsel at the time -- and White House Chief of Staff Andy Card had appealed to Ashcroft to overrule his deputy. The ill Ashcroft refused, saying he had transferred power to Comey.

Comey described the events as ''an effort to take advantage of a very sick man who did not have the powers of the attorney general.''

Gonzales subsequently denied that the dispute was about the terrorist surveillance program, but his credibility was undercut when FBI Director Robert S. Mueller contradicted him.

Several Democrats called for a perjury investigation, but no further action has been taken.

------

Associated Press writers Lara Jakes Jordan, Jennifer Loven, Matt Apuzzo and Terence Hunt contributed to this story.

(This version CORRECTS AMs. SUBS graf 20 to correct to more than two years ago sted three. AP Video.)

    Gonzales Departure Won't End Probes, NYT, 28.8.2007, http://www.nytimes.com/aponline/us/AP-Gonzales-Resigns.html

Editorial

The House Lawyer Departs

August 28, 2007
The New York Times

Attorney General Alberto Gonzales has finally done something important to advance the cause of justice. He has resigned. But his departure alone cannot remove the dark cloud that hangs over the Justice Department. President Bush needs to choose a new attorney general of unquestioned integrity who would work to make the department worthy of its name again — and provide the mandate to do it. Congress needs to continue to investigate the many scandals Mr. Gonzales leaves behind.

When Mr. Gonzales was appointed, it seemed doubtful that he would be able to put aside his years as Mr. Bush’s personal lawyer, which stretched back to the Texas governor’s office, and represent the interests of the American people. He never did.

In many ways, Mr. Gonzales turned out to be the ultimate “loyal Bushie,” a term his Justice Department chief of staff used so incredibly inappropriately to describe what his department was looking for in its top prosecutors.

It was just that kind of craven politics — the desire to co-opt the power of the government to win elections — that was the driving force in Mr. Gonzales’s Justice Department. Dedicated and capable United States attorneys were fired for insisting on doing their jobs with integrity — for refusing to put people in jail, or shield them from prosecution, simply to help Republicans win elections. Lawyers were hired for nonpolitical jobs based on party enrollment and campaign contributions, and top members of Mr. Gonzales’s staff attended pre-election political briefings at the White House led by Karl Rove and his aides.

When Mr. Gonzales testified before Congress, his misstatements and memory lapses were so frequent that it was hard to believe they were not intentional. He told Congress many things about the prosecutors’ firings that were contradicted by his top aides and by documents. His testimony about the Bush administration’s warrantless domestic surveillance program also ran counter to many credible sources, including the account of Robert Mueller, director of the F.B.I.

There was a more basic problem with Mr. Gonzales’s tenure: he did not stand up for the Constitution and the rule of law, as an attorney general must. This administration has illegally spied on Americans, detained suspects indefinitely as “enemy combatants,” run roughshod over the Geneva Conventions, violated the Hatch Act prohibitions on injecting politics into government and defied Congressional subpoenas. In each case, Mr. Gonzales gave every indication of being on the side of the lawbreakers, not the law.

Mr. Gonzales signed off on the administration’s repugnant, and disastrous, torture policy when he was the White House counsel. He later helped stampede Congress into passing the Military Commissions Act of 2006, which endorsed illegal C.I.A. prisons where detainees may be tortured and established kangaroo courts in Guantánamo Bay, Cuba, to keep detained foreigners in custody essentially for life. He helped cover up and perpetuate Mr. Bush’s illegal wiretapping programs, both in the counsel’s job and as attorney general. The F.B.I. under his stewardship abused powers it was given after the 9/11 terrorist attacks in the name of enhanced national security.

Mr. Gonzales will hardly be a tough act to follow, but the standard for the next attorney general should not be set that low.

President Bush needs to appoint someone who does not come out of the world of electoral politics or the White House, and is not a “loyal Bushie.” He should consult with leaders of Congress in making the decision and choose someone with bipartisan support.

There is talk that the president might make a recess appointment, taking advantage of Congress’s vacation to name someone who would not need to be confirmed by the Senate. That would be a major mistake, and it would ensure the next attorney general a bitterly antagonistic relationship with Congress for the next 17 months.

The next attorney general will have two critical tasks. First, he or she must get to the bottom of the scandals hovering over the department. Mr. Gonzales played defense, as if it were Congress’s job to discover what laws his department may have broken, and his job to thwart it. The next attorney general should appoint a credible, independent investigator to look into the prosecutors’ firings and likely Hatch Act violations and make clear that the investigation will be permitted to follow the facts where they lead — including, as appears likely, to the White House.

Second, the next attorney general will have to fix a badly broken department. Many of the top positions are now empty, vacated by aides to Mr. Gonzales who came under Congressional scrutiny. They need to be replaced with qualified, nonpolitical professionals. The “loyal Bushies” who are still on staff need to be removed.

Congress — in particular, Senator Patrick Leahy, Democrat of Vermont; Senator Charles Schumer, Democrat of New York; and Representative John Conyers, Democrat of Michigan — deserve credit for keeping the pressure on, even when critics were saying there was nothing to the scandals. But many questions remain to be answered. High on the list: what role politics played in dubious prosecutions, like those of former Gov. Don Siegelman of Alabama, and Georgia Thompson, a Wisconsin civil servant.

Mr. Gonzales, for all of his undeniable deficiencies, merely reflected the principles of this administration. His resignation is a necessary but hardly sufficient step in restoring the nation’s commitment to the rule of law.

    The House Lawyer Departs, NYT, 28.8.2007, http://www.nytimes.com/2007/08/28/opinion/28tue1.html

Gonzales, Loyal to Bush, Held Firm on War Policies

August 28, 2007
The New York Times
By ERIC LICHTBLAU and SCOTT SHANE

WASHINGTON, Aug. 27 — Days after President Bush’s secret eavesdropping program was publicly revealed in December 2005, a battle-weary Alberto R. Gonzales stood before a room of reporters at the White House and asserted that “the president has the inherent authority under the Constitution, as commander in chief, to engage in this kind of activity.”

Time and again, as both White House counsel and attorney general, Mr. Gonzales would return to that theme: in a time of war, the president has broad powers to protect the country. It would become Mr. Gonzales’s mantra and, ultimately, by alienating lawmakers who accused the administration of overreaching, it would contribute to his undoing.

“He was not the intellectual father of those positions, but he shaped and articulated them at the White House, and he continued to take a very strong position on executive power as attorney general,” said Daniel Marcus, a professor of constitutional law at American University who was a top official at the Justice Department under President Bill Clinton.

It was Vice President Dick Cheney and his top legal adviser, David S. Addington, who, by most accounts, provided the intellectual framework for building up the power of an executive branch that they believed had been badly weakened by restrictions imposed after Vietnam and Watergate. They pushed for a radical rewriting of American policies on such critical issues as surveillance and detention of terrorism suspects after the Sept. 11 attacks, with virtually no oversight or input from Congress or the courts.

But as a longtime loyal adviser to Mr. Bush, Mr. Gonzales was often left to carry out those policies and put his stamp on them. But his dogged and sometimes robotic defense of the president’s wartime powers — in the face of Congressional pressure, adverse court rulings and public scorn — often proved ineffectual or counterproductive. Even after leaving the White House for the Justice Department in 2005, Mr. Gonzales was seen both by insiders and outsiders less as an independent legal thinker than as the president’s loyal retainer.

Mr. Bush on Monday defended Mr. Gonzales as an honorable man who was the victim of unfair political mud-slinging. But Mr. Gonzales’s performance as attorney general, especially after the dismissals of seven United States attorneys last year, came under scathing criticism. Many say he leaves a Justice Department that has been tainted by political influence, depleted by the departures of top officials and weakened by sapped morale.

“What this whole episode illustrates,” said Mr. Marcus, who was general counsel for the Sept. 11 commission, “is the problem of having a close confidant, a close friend of the president — particularly someone who worked first in the White House — going over to the Justice Department to serve as attorney general in the first place.”

Mr. Gonzales came to Washington on Mr. Bush’s coattails six and a half years ago as a loyal lawyer from Texas with an inspiring life story but no real experience in the ways of Beltway politics. He derived his power almost exclusively from his relationship with the president, who called him by the affectionate nickname Fredo. He departs as a man bloodied and finally banished by the many critics who asserted that his fidelity to the White House had compromised the independence of the Justice Department.

If Mr. Gonzales’s integrity was under attack, so was his competence. His hours-long appearances before Congressional committees this year became excruciating spectacles, as the attorney general insisted he remembered little about what had led to the dismissals of the prosecutors. Former colleagues say that what they originally took for discretion, when Mr. Gonzales would say little in major policy meetings, they later concluded was disengagement.

Daniel J. Metcalfe, who retired in January as chief of the Office of Information and Privacy in the Justice Department, said morale at the department had sunk below the level he found when he served as a law clerk at the height of the Watergate scandal three decades ago. “It’s very important that the department now undergo a post-Watergate-style repair to improve its integrity and credibility,” Mr. Metcalfe said.

In the halls of the Justice Department, memories of the “Saturday Night Massacre” — President Richard M. Nixon’s firing in 1973 of Archibald Cox, the Watergate special prosecutor — linger as a powerful reminder of the dangers of political meddling by the White House in law enforcement issues. For career lawyers at the 110,000-employee department, accusations of a creeping politicization shadowed the attorney general’s two-and-a-half year tenure on issues that went well beyond the ouster of the prosecutors.

Civil rights lawyers complained that they were subjected to political pressure, and sometimes had their recommendations overruled, in sensitive voting rights cases. Trial lawyers on the department’s multibillion-dollar lawsuit against the tobacco industry said they were made to water down their case for political reasons. The head statistician for the department’s Bureau of Justice Statistics lost his job in 2005 after he tangled with a political appointee over efforts to play down the findings of a report on racial profiling.

And political appointees assumed more direct control over the recruiting and hiring of new lawyers in what career officials saw as an effort to bring a more conservative bent to the department. Monica M. Goodling, a former top aide to Mr. Gonzales, acknowledged in May testimony to Congress that she had “crossed the line” in considering the political beliefs of applicants for nonpartisan legal jobs, and she suggested that Mr. Gonzales might have improperly sought to shape her testimony.

Mr. Gonzales has been at the president’s side for more than a decade, serving as then-Governor Bush’s counselor and secretary of state and as a State Supreme Court judge in Texas before Mr. Bush brought him along to Washington in 2001 as White House counsel.

The president has always been impressed by the life story of Mr. Gonzales, the son of Mexican immigrants who grew up in poverty in the small town of Humble, Tex., and went on to Harvard Law School. Mr. Gonzales underscored his background again as he announced his resignation on Monday: “Even my worst days as attorney general have been better than my father’s best days,” he said, referring to Pablo Gonzales, a construction worker who died in 1982.

As White House counsel until 2005, Mr. Gonzales played a central role in giving legal approval for the National Security Agency’s wiretapping program and detention practices.

Mr. Addington and John Yoo, a conservative legal scholar in the Office of Legal Counsel of the Justice Department, who are both forceful personalities, provided much of the legal rationale for secret detention centers, interrogation tactics bordering on torture and eavesdropping without warrants inside the United States for the first time since 1978. But the blessing of Mr. Gonzales, who represented the president, was crucial to carry out the policies.

David R. Gergen, professor of public service at Harvard University and an adviser to Presidents Nixon, Gerald R. Ford, Ronald Reagan and Clinton, said Mr. Gonzales “will be remembered as riding shotgun with Dick Cheney on the expansion of presidential power.”

Mr. Gergen and other legal analysts and former government officials said Mr. Gonzales came to stand for the government-by-fiat approach adopted by the Bush White House after the Sept. 11 attacks.

“You can’t just change government through strong-willed policy,” said Stanley Brand, an ethics lawyer in Washington and a former House Democratic counsel. “People who ride into Washington on a high horse of ideology or ignorance are inevitably headed toward a blow-up.”

Mr. Gonzales’s role — and particularly his derision of some provisions of the Geneva Conventions as “quaint” in one memorandum — led to a bruising confirmation battle in 2005 after Mr. Bush had tapped him to become the country’s first Hispanic attorney general. Even then, Mr. Gonzales and his senior aides were well aware of the perception, unfair though they thought it was, that his first loyalty was to the president, not to his position as the nation’s chief law enforcement officer.

“I will no longer represent only the White House; I will represent the United States of America and its people,” he told members of the Senate Judiciary Committee at his confirmation hearing in January 2005. “I understand the differences between the two roles.”

Though few knew it at the time, John Ashcroft, Mr. Gonzales’s predecessor at the Justice Department, had shown a willingness to stand up to the White House at critical times — most famously in a March 2004 visit to his hospital room over the wiretapping program, when he refused efforts by Mr. Gonzales to certify its legality.

By naming Mr. Gonzales as Mr. Ashcroft’s successor in November 2004, the White House was apparently seeking to assert its control over the department. Mr. Gonzales brought several important aides from the White House, and in the view of many Justice Department veterans, never adequately established his independence of the president’s political circle in the new job.

After the wiretapping program was publicly disclosed in December 2005, Mr. Gonzales’s handling of the controversy exacerbated those concerns. He became the most prominent public defender of the program, but his legal explanations were often ridiculed by lawmakers who accused him of stonewalling by refusing to turn over crucial documents.

Republicans remained publicly supportive of Mr. Gonzales while they were in power on Capitol Hill. But with the Democrats’ takeover of both chambers this year, Democrats feasted on his political vulnerabilities by mounting an aggressive investigation into the United States attorneys affair, and Republicans soon joined in.

The first flash point in the episode, turning the dismissals from a low-grade nuisance to a front-page scandal, came on Feb. 7, when Deputy Attorney General Paul J. McNulty said at a Senate hearing that at least one of the ousted prosecutors had been moved out to make way for a former aide to Karl Rove.

Each week seemed to bring new evidence and batches of e-mail suggesting that the removals might have been politically motivated, and Mr. Gonzales’s honesty came under sharp attack in an April 19 Senate appearance that was widely panned by Democrats and Republicans.

Mr. Gonzales’s testimony “was very, very damaging to his own credibility” and his continued presence had hurt the Justice Department as a whole, Senator Arlen Specter, Republican of Pennsylvania, said at the time. “Charges are being made that the Department of Justice was the political arm of the White House,” Mr. Specter said.

After an April appearance before the Senate on the United States attorneys controversy, one critic counted 74 times that Mr. Gonzales had said that either he could not recall events or did not know the answer. Even conservative icons like Robert H. Bork, the former solicitor general, thought Mr. Gonzales had mishandled the dismissals. “The way he responded made a nonscandal a scandal,” Mr. Bork said Monday.

The testimony in May of James B. Comey, deputy attorney general under Mr. Ashcroft and Mr. Gonzales, about the 2004 confrontation in the hospital over the wiretapping program further undermined Mr. Gonzales, who had testified previously that there had been no disagreement over the program. Officials later said the disagreement was chiefly over the security agency’s data mining, not its closely related eavesdropping, but Mr. Gonzales’s legalistic distinction was rejected as misleading by some senators who had been briefed on the secret surveillance.

By then, Mr. Gonzales was daily fodder for political cartoons and television comedians. With Congressional leaders calling for a perjury investigation, the controversy over the visit to Mr. Ashcroft’s hospital room appears to have become the final blow to Mr. Gonzales’s already shaky status as attorney general.

Unlike Mr. Ashcroft, who had a loyal base of supporters among Christian conservatives, Mr. Gonzales had little political support beyond Mr. Bush.

“He doesn’t really have friends in the conservative caucus,” said David B. Rivkin, a conservative lawyer in Washington who considers himself a supporter of the attorney general’s work and was sorry to see him leave. “Republicans were unhappy about many things, and he was identified with the key legal policies of this administration.”

By Monday, when Mr. Gonzales approached the microphone to read a brief resignation statement, the hopes he had expressed in January 2005 when he was nominated to lead the Justice Department seemed at odds with his legacy.

“I would hope that certainly at the end of four years it would be said that Al Gonzales did the very best he could,” he said at the time. “It is my sincere hope that I would be remembered, if I am confirmed today, as someone who renewed the vitality, the importance of the work that goes on at the Department of Justice.”

David Kirkpatrick contributed reporting.

    Gonzales, Loyal to Bush, Held Firm on War Policies, NYT, 28.8.2007, http://www.nytimes.com/2007/08/28/washington/28gonzales.html?hp

A Defender of Bush’s Power, Gonzales Resigns

August 28, 2007
The New York Times
By PHILIP SHENON and DAVID JOHNSTON

WASHINGTON, Aug. 27 — Attorney General Alberto R. Gonzales announced his resignation on Monday, ending a stormy tenure at the Justice Department that was marked by repeated battles with Congress over whether he had allowed his intense personal loyalty to President Bush to overwhelm his responsibilities to the law.

Mr. Gonzales, the nation’s first Hispanic attorney general, offered no clear explanation of the reasons for his departure or its timing. The announcement caught his top aides at the Justice Department by surprise, leading to speculation among lawmakers and department officials that Mr. Gonzales may have felt pressure from within the administration to step down.

In a statement to reporters Monday on the airport tarmac in Waco, Tex., as he prepared to board Air Force One, Mr. Bush said he had “reluctantly” accepted the resignation and portrayed Mr. Gonzales as a “man of integrity, decency and principle” who had been hounded from office for political reasons.

“It’s sad that we live in a time when a talented and honorable person like Alberto Gonzales is impeded from doing important work because his good name was dragged through the mud,” he said.

For months, Mr. Gonzales, with what appeared to be Mr. Bush’s full backing, had rebuffed bipartisan calls for his ouster and suggested that he intended to remain indefinitely at the Justice Department, possibly through the end of the Bush presidency.

The most persistent calls for his resignation came from Democrats who questioned whether Mr. Gonzales had lied under oath about his involvement in the dismissals of several United States attorneys. He was also accused of misleading Congress about his role, in his earlier job as White House counsel, in promoting a government eavesdropping program.

Mr. Bush said Monday that Solicitor General Paul D. Clement, the Justice Department’s chief lawyer before the Supreme Court, would serve as acting attorney general until a permanent successor was chosen for Mr. Gonzales, who is scheduled to step down Sept. 17.

White House officials said the president expected to find a successor quickly, though associates of some prospective candidates said the White House would struggle to find someone who was well qualified and could be easily confirmed.

Among the candidates, they said, were Michael Chertoff, the secretary of homeland security and a former federal appeals court judge and top Justice Department official; Christopher Cox, the chairman of the Securities and Exchange Commission; George J. Terwilliger III, a deputy attorney general under the first President Bush; Laurence H. Silberman, a court of appeals judge in Washington; and Larry D. Thompson, a former deputy attorney general who is now senior vice president and general counsel of PepsiCo Inc. White House officials said Mr. Thompson would have special appeal as a nominee, as he would be the first black attorney general.

In the brief statement he read to reporters at the Justice Department on Monday to announce his departure, Mr. Gonzales did not explain why he was resigning or refer to the turmoil over his actions as attorney general. Instead, he focused his remarks on his gratitude to Mr. Bush, who appointed Mr. Gonzales to every government job he has held since law school, beginning in Texas, and to his colleagues at the Justice Department.

“Even my worst days as attorney general have been better than my father’s best days,” Mr. Gonzales said. “I have lived the American dream.” Mr. Gonzales’s father was a Mexican-American construction worker who raised eight children in a two-room home near Houston.

Mr. Gonzales refused to answer questions reporters shouted to him as he hurriedly left the briefing room.

Mr. Gonzales has been a controversial figure in Washington since shortly after the terrorist attacks on Sept. 11, 2001, when, as White House counsel, he supported legal policies that broadly expanded the powers of the executive branch and allowed for the imprisonment and interrogation of terrorism suspects in conditions that human rights groups said amounted to torture. He became attorney general in February 2005, succeeding John Ashcroft.

The president’s passionate defense of Mr. Gonzales in his comments Monday reflected the almost familial bonds of loyalty between the two men. They met when Mr. Bush was governor of Texas in the 1990s and Mr. Gonzales was a young Houston lawyer with an impressive, up-by-the-bootstraps life story about his rise from an impoverished home to the Air Force and Harvard Law School.

There were expressions of relief on Capitol Hill on Monday at news of his resignation, including from Republicans who said Mr. Gonzales’s presence at the Justice Department was making it impossible for Mr. Bush to pursue his law enforcement agenda in Congress.

“Our country needs a credible, effective attorney general who can work with Congress on critical issues ranging from immigration to investigating terrorism at home and abroad,” said Senator John E. Sununu, Republican of New Hampshire. “Alberto Gonzales’s resignation will finally allow a new attorney general to take on this task.”

Senator Charles E. Schumer, Democrat of New York, who has led calls on the Judiciary Committee for Mr. Gonzales’s ouster, said: “It has been a long and difficult struggle, but at last the attorney general has done the right thing and stepped down. For the previous six months, the Justice Department has been virtually nonfunctional, and desperately needs new leadership.”

On Monday, White House and Justice Department officials said it was Mr. Gonzales who took the initiative to step down after he returned to Washington last week from vacation in Texas. The officials said that during his time off, Mr. Gonzales and his wife, Rebecca, realized how weary they had grown of the constant criticism and concluded that he was unlikely to restore his credibility and faced a continued battering by lawmakers in both parties.

The officials said he offered his resignation on Friday in a brief telephone conversation with Mr. Bush, who was at his ranch in Crawford, and that the president immediately accepted the resignation. On Sunday, Mr. Gonzales and his wife flew to the ranch for a consoling lunch where the resignation was confirmed.

But other Republicans close to the White House and Mr. Gonzales offered a different account, suggesting that the attorney general was eased out and that the process leading to his departure unfolded over several months as Joshua B. Bolten, the White House chief of staff, and Fred F. Fielding, the White House counsel, concluded that Mr. Gonzales had become a liability and quietly pushed for him to step down.

Mr. Gonzales had his defenders at the White House, chiefly Karl Rove, the senior White House adviser. The officials said that when Mr. Rove announced that he was leaving, Mr. Gonzales lost a protector.

“He was being protected, in large measure by Karl,” said a Republican close to the White House. When Mr. Rove left, the Republican said, “It further exposed that the only thing that was standing with him was the president of the United States.”

White House spokespeople said Monday that Mr. Bolten had not orchestrated Mr. Gonzales’s resignation.

The likelihood that Mr. Gonzales was pressed to leave was strengthened by the shock the announcement caused at the Justice Department. Mr. Gonzales had told no one he was thinking about stepping aside and did not inform his chief of staff, Kevin O’Connor, until Sunday afternoon.

Mr. Gonzales had recently discussed with subordinates his plans for staying on through the remainder of the administration. He had planned his travel schedule through the fall.

Throughout the weekend, White House aides and Mr. Gonzales’s spokesman denied that there were any plans for Mr. Gonzales to resign. On Sunday, Mr. Gonzales said through his chief press spokesman that he had no plans to resign.

The spokesman, Brian Roehrkasse, said Sunday afternoon that he called the attorney general about the reports of his imminent resignation, “and he said it wasn’t true — so I don’t know what more I can say.”

Jim Rutenberg and Carl Hulse contributed reporting from Washington, and Steven Lee Myers from Waco, Tex.

    A Defender of Bush’s Power, Gonzales Resigns, NYT, 28.8.2007, http://www.nytimes.com/2007/08/28/washington/28resign.html

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Bush’s Statement on Gonzales

August 27, 2007
The New York Times

Following is the text of a statement delivered by President Bush on Monday, Aug. 27, on the resignation of Attorney General Alberto R. Gonzales, as provided by the White House:

THE PRESIDENT: This morning, Attorney General Alberto Gonzales announced that he will leave the Department of Justice, after two and a half years of service to the department. Al Gonzales is a man of integrity, decency and principle. And I have reluctantly accepted his resignation, with great appreciation for the service that he has provided for our country.

As Attorney General and before that, as White House counsel, Al Gonzales has played a role in shaping our policies in the war on terror, and has worked tirelessly to make this country safer. The Patriot Act, the Military Commissions Act and other important laws bear his imprint. Under his leadership, the Justice Department has made a priority of protecting children from Internet predators, and made enforcement of civil rights laws a top priority. He aggressively and successfully pursued public corruption and effectively combated gang violence.

As Attorney General he played an important role in helping to confirm two fine jurists in Chief Justice John Roberts and Justice Samuel Alito. He did an outstanding job as White House Counsel, identifying and recommending the best nominees to fill critically important federal court vacancies.

Alberto Gonzales's tenure as Attorney General and White House Counsel is only part of a long history of distinguished public service that began as a young man when, after high school, he enlisted in the United States Air Force. When I became governor of Texas in 1995, I recruited him from one of Texas's most prestigious law firms to be my general counsel. He went on to become Texas's 100th secretary of state and to serve on our state's supreme court. In the long course of our work together this trusted advisor became a close friend.

These various positions have required sacrifice from Al, his wife Becky, their sons Jared, Graham and Gabriel, and I thank them for their service to the country.

After months of unfair treatment that has created a harmful distraction at the Justice Department, Judge Gonzales decided to resign his position, and I accept his decision. It's sad that we live in a time when a talented and honorable person like Alberto Gonzales is impeded from doing important work because his good name was dragged through the mud for political reasons.

I've asked Solicitor General Paul Clement to serve as Acting Attorney General upon Alberto Gonzales's departure and until a nominee has been confirmed by the Senate. He's agreed to do so. Paul is one of the finest lawyers in America. As Solicitor General, Paul has developed a reputation for excellence and fairness, and earned the respect and confidence of the entire Justice Department.

Thank you.

    Bush’s Statement on Gonzales, NYT, 27.8.2007, http://www.nytimes.com/2007/08/27/washington/27bush-text.html

Embattled Attorney General Resigns

August 27, 2007
The New York Times
By STEVEN LEE MYERS and PHILIP SHENON

WACO, Tex., Aug. 27 — Attorney General Alberto R. Gonzales, whose tenure has been marred by controversy and accusations of perjury before Congress, announced his resignation in Washington today, declaring that he had “lived the American dream” by being able to lead the Justice Department.

Mr. Gonzales, who had rebuffed calls for his resignation for months, submitted it to President Bush by telephone on Friday, a senior administration official said. There had been rumblings over the weekend that Mr. Gonzales’s departure was imminent, although the White House sought to quell the rumors.

Mr. Gonzales appeared cheerful and composed when he announced that he was stepping down effective Sept. 17. His very worst days on the job were “better than my father’s best days,” he said, alluding to his family’s hardscrabble past.

“Thank you, and God bless America,” Mr. Gonzales said, exiting without responding to questions.

In Waco, President Bush said he had accepted the resignation reluctantly. He praised his old friend as “a man of integrity, decency and principle” and complained of the “months of unfair treatment” that preceded the resignation.

“It’s sad,” Mr. Bush said, asserting that Mr. Gonzales’s name had been “dragged through the mud for political reasons.”

The president said the solicitor general, Paul D. Clement, would serve as acting attorney general until a permanent replacement was chosen.

Mr. Bush has not yet chosen a replacement but will not leave the position open long, the senior administration official said early this morning. Among those being mentioned as a possible successor were Michael Chertoff, the secretary of homeland security who is a former federal prosecutor, assistant attorney general and federal judge; Christopher Cox, the head of the Securities and Exchange Commission; and Larry D. Thompson, a former deputy attorney general who is now senior vice president and general counsel of PepsiCo Inc.

Mr. Bush repeatedly stood by Mr. Gonzales, an old friend and colleague from Texas, even as Mr. Gonzales faced increasing scrutiny for his leadership of the Justice Department over issues including his role in the dismissals of nine United States attorneys late last year and whether he testified truthfully about the National Security Agency’s surveillance programs.

Earlier this month, at a news conference, Mr. Bush dismissed accusations that Mr. Gonzales had stonewalled or misled a Congressional inquiry. “We’re watching a political exercise,” Mr. Bush said. “I mean, this is a man who has testified, he’s sent thousands of papers up there. There’s no proof of wrong.”

But Democrats cheered Mr. Gonzales’s departure. “Alberto Gonzales was never the right man for this job,” said Senator Harry Reid of Nevada, the majority leader. “He lacked independence, he lacked judgment, and he lacked the spine to say ‘no’ to Karl Rove.”

Senator Charles E. Schumer, the New York Democrat who sits on the Judiciary Committee and has been calling for Mr. Gonzales’s resignation for months, said this morning: “It has been a long and difficult struggle, but at last the attorney general has done the right thing and stepped down. For the previous six months, the Justice Department has been virtually nonfunctional, and desperately needs new leadership.”

Senator Schumer said that “Democrats will not obstruct or impede a nominee who we are confident will put the rule of law above political considerations.”

Another Democrat on the Judiciary Committee who has been highly critical of Mr. Gonzales, Senator Russell D. Feingold of Wisconsin, said the next attorney general must be a person whose first loyalty is “to the law, not the president.”

But a Republican senator who has known Mr. Gonzales for years, Kay Bailey Hutchison of Texas, paid tribute to the Harvard-educated Mr. Gonzales, the first attorney general of Hispanic heritage. “He has served in difficult times and I believe is a good, honest man who has worked hard in public service all his life,” the senator said in a statement.

Mr. Gonzales’s resignation is the latest in a series of high-level departures that has reshaped the end of Mr. Bush’s second term. Mr. Rove, the political adviser who is another of Mr. Bush’s close circle of aides from Texas, stepped down two weeks ago.

The official who disclosed the resignation in advance today said that the turmoil over Mr. Gonzales had made it difficult for him to continue as attorney general. “The unfair treatment that he’s been on the receiving end of has been a distraction for the department,” the official said.

A senior administration official said today that Mr. Gonzales, who was in Washington, had called the president in Crawford, Tex., on Friday to offer his resignation. The president rebuffed the offer, but said the two should talk face to face on Sunday.

Mr. Gonzales and his wife flew to Texas, and over lunch on Sunday the president accepted the resignation with regret, the official said.

On Saturday night Mr. Gonzales was contacted by his press spokesman to ask how the department should respond to inquiries from reporters about rumors of his resignation, and he told the spokesman to deny the reports.

White House spokesmen also insisted on Sunday that they did not believe that Mr. Gonzales was planning to resign. Aides to senior members of the Senate Judiciary Committee said over the weekend that they had received no suggestion from the administration that Mr. Gonzales intended to resign.

As late as Sunday afternoon, Mr. Gonzales himself was denying through his spokesman that he was quitting. The spokesman, Brian Roehrkasse, said Sunday that he telephoned the attorney general about the reports of his imminent resignation “and he said it wasn’t true — so I don’t know what more I can say.”

Steven Lee Myers reported from Waco, Texas, and Philip Shenon reported from Washington.

    Embattled Attorney General Resigns, NYT, 27.8.2007, http://www.nytimes.com/2007/08/27/washington/27cnd-gonzales.html

Text

Gonzales’s Statement

August 27, 2007
The New York Times

The following is the text of a statement delivered by Attorney General Alberto R. Gonzales on Monday, Aug. 27, on his resignation, as provided by the Justice Department:

Thirteen years ago, I entered public service to make a positive difference in the lives of others. During this time, I have traveled a remarkable journey from my home state of Texas to Washington, D.C., supported by the unwavering love and encouragement of my wife Rebecca and our sons Jared, Graham, and Gabriel. Yesterday, I met with President Bush and informed him of my decision to conclude my government service as Attorney General of the United States, effective as of September 17, 2007.

Let me say that it has been one of my greatest privileges to lead the Department of Justice. I have great admiration and respect for the men and women who work here. I have made a point as Attorney General to personally meet as many of them as possible and today I want to again thank them for their service to our nation. It is through their continued work that our country and our communities remain safe, that the rights and civil liberties of our citizens are protected and the hopes and dreams of all of our children are secured.

I often remind our fellow citizens that we live in the greatest country in the world and that I have lived the American dream. Even my worst days as Attorney General have been better than my father's best days. Public service is honorable and noble, and I am profoundly grateful to President Bush for his friendship and for the many opportunities he has given me to serve the American people.

Thank you and God bless America.

    Gonzales’s Statement, NYT, 27.8.2007, http://www.nytimes.com/2007/08/27/washington/27gonzales-text.html

Ex-Klansman Is Sentenced to Life for Killings in 1964

August 25, 2007
The New York Times
By JERRY MITCHELL and BRENDA GOODMAN

JACKSON, Miss., Aug. 24 — Calling the crime “unspeakable because only monsters could inflict this,” a federal judge on Friday sentenced a former member of the Ku Klux Klan to three life terms in prison for his role in the 1964 kidnapping and murder of two black teenagers in Mississippi.

The case was one of several that focused a spotlight on white supremacist violence during the civil rights era.

The victims, Henry H. Dee and Charles E. Moore, both 19, were hitchhiking in Meadville, Miss., when a group of Klansmen, including James Seale, picked them up and took them to a wooded area, where they were beaten and their weighted bodies thrown into the Mississippi River. Both young men drowned.

Their bodies were not recovered until later that year in a high-profile search for three civil rights activists whose deaths generated widespread revulsion against the racial violence in Mississippi.

“The pulse of this community still throbs with sorrow,” Judge Henry T. Wingate of Federal District Court said as he imposed the sentence, which will effectively keep Mr. Seale, who is 72 and has cancer, behind bars for the rest of his life.

Judge Wingate asked Mr. Seale, who was shackled and dressed in an orange jumpsuit, if he wished to comment, but Mr. Seale declined. His lawyer, Kathy Nestor, said her client planned to appeal his conviction on kidnapping and conspiracy charges.

The main prosecution witness, a former Klansman who was granted immunity, testified at Mr. Seale’s trial that the defendant had told him he killed Mr. Dee and Mr. Moore. Mr. Seale was not charged with murder.

At Friday’s sentencing, Mr. Moore’s brother, Thomas, of Seattle, who has pushed for justice in the case since 1998, was given the opportunity to address Mr. Seale.

“When you took away Charles Moore, you took away my best friend,” Thomas Moore said. “I cried when I thought about how hard they suffered at your hands.”

Mr. Dee’s sister, Thelma Collins, said her brother’s killing “hurt us so bad I had to get a psychologist.”

At a news conference after the sentencing, Assistant Attorney General Wan J. Kim said that some 100 cold cases from the civil rights era were awaiting investigation and possible prosecution, including 30 in Mississippi.

Judge Wingate said that he took into account Mr. Seale’s advanced age and poor health. “But then I had to take a look at the crime itself, the horror, the ghastliness of it,” he said, adding that he would agree to the defense recommendation that Mr. Seale serve his sentence at a medical facility.

Jerry Mitchell reported from Jackson, and Brenda Goodman from Atlanta.

    Ex-Klansman Is Sentenced to Life for Killings in 1964, NYT, 25.8.2007, http://www.nytimes.com/2007/08/25/us/25klan.html

Court finds Padilla guilty in terror case

August 16, 2007
09:29 PM ET
USA TODAY
By Kevin Johnson and Haya El Nasser

Jose Padilla's five-year journey through the federal government's murky war-time justice system ended Thursday in conviction on three terrorism support charges in a verdict that offered a boost to the administration's checkered record in terror-related prosecutions.

In an investigation that ultimately tested the Bush administration's political will to bring terror suspects to civilian court, a federal jury in Miami deliberated just more than a day following three months of testimony before delivering its guilty verdicts against Padilla and co-defendants Adham Amin Hassoun and Kifah Wael Jayyousi.

All three were accused as part of a North American terror cell that was offering support to Muslim extremists to conduct attacks outside the United States. They face maximum punishments of life in prison at a Dec. 5 sentencing hearing.

Padilla, 36, was only added as a defendant to the conspiracy case against Hassoun and Jayyousi in 2005, after being held for 3½ years as a so-called "enemy combatant" in the custody of the U.S. military under a special designation by President Bush.

For the government, the verdicts salvage a case that was stripped of its most flammable accusations: that Padilla was part of a chilling al-Qaeda-directed plot to detonate a radioactive bomb in an undisclosed American city.

The prosecution's case made no mention of the dirty bomb allegations nor Padilla's previously alleged contacts with high-level al-Qaeda operatives. As a result, legal analysts say the conviction may forever be overshadowed by what the government did not prove.

"The fact that the most serious charges were not brought here is the elephant in the room," says Notre Dame University law professor Jimmy Gurule. "It's a victory, but it's not a complete victory."

Gurule, a former Justice Department official, said it's possible that the government declined to proceed on the more serious charges because it would have required disclosing classified information.

"It's an open question," he said. "We just don't know."

"They (the government) had made him out to be 'Public Enemy No. 1," says Loyola University law professor Laurie Levenson. "They had to go forward. But like a lot of these terrorism cases, there seems to be more smoke than fire when it was presented."

Shortly after his arrest in 2002, with the nation still reeeling from the Sept. 11 attacks, then-Attorney General John Ashcroft first identified Padilla as a suspect in a dirty bomb plot in a televised statement while the attorney general was traveling in Moscow.

The daunting allegations against Padilla were immediately called into question when the White House challenged Ashcroft's characterization of the threat posed by the former Chicago gang member.

And he was never charged in connection with a plan to detonate radioactive material before or after he was designated as an enemy combatant.

Still, Attorney General Alberto Gonzales and other government officials lauded the conviction as a "significant victory in our efforts to fight the threat posed by terrorists and their supporters."

"This case demonstrates that we will make full use of our intelligence and law enforcement authorities to prevent individuals – and particularly our own countrymen – from supporting and joining the ranks of our terrorist enemies," said Kenneth Wainstein, Assistant Attorney General for National Security.

Former federal prosecutor Ruth Wedgwood, now a professor at the Johns Hopkins School of Advanced International Studies, says the guilty verdict inspires confidence "that the American criminal justice system can be applied effectively in a case like this."

"By the same token, success in this case should not lead anyone to believe that it's simple or even always possible to muster this quality of proof. But American juries are renowned for their common sense."

Wedgwood noted one piece of evidence that may have been particularly compelling to the jury: an application form for entry to a terrorist training camp in Afghanistan. Padilla's fingerprints were lifted from the document that was recovered by the CIA in 2001.

Defense lawyers have argued that Padilla's travels overseas had nothing to do with terrorism but were linked to his desire to become a Muslim cleric.

"The common sense of juries is something people should not discount," she says. "It's nice that even with a highly stringent demand of proof...the system can work."

Erwin Chemerinsky, a constitutional law professor at Duke University, said the government should have moved to try him sooner rather than subject an American citizen to indefinite detention as an enemy combatant.

"There's no excuse why the government didn't try him five years ago," he says. "I think it's clear the government had the evidence to bring the conviction."

    Court finds Padilla guilty in terror case, UT, August 16, 2007 09:29 PM ET, http://www.usatoday.com/news/nation/2007-08-16-padilla-verdict_N.htm?csp=34

Court Rules Against F.B.I. in Raid on Lawmaker

August 3, 2007
By THE ASSOCIATED PRESS
Filed at 11:51 a.m. ET
The New York Times

WASHINGTON (AP) -- The FBI violated the Constitution when agents raided U.S. Rep. William Jefferson's office last year and viewed legislative documents in a corruption investigation, a federal appeals court ruled Friday.

The court ordered the Justice Department to return any legislative documents it seized from the Louisiana Democrat's office on Capitol Hill. The court did not order the return of all the documents seized in the raid and did not say whether prosecutors could use any of the records against Jefferson in their bribery case.

Jefferson argued that the first-of-its-kind raid trampled congressional independence. The Constitution prohibits the executive branch from using its law enforcement powers to interfere with the lawmaking process. The Justice Department said that declaring the search unconstitutional would essentially prohibit the FBI from ever looking at a lawmaker's documents.

The U.S. Court of Appeals for the District of Columbia Circuit rejected that claim. The court held that, while the search itself was constitutional, FBI agents crossed the line when they viewed every record in the office without giving Jefferson the chance to argue that some documents involved legislative business.

''The review of the Congressman's paper files when the search was executed exposed legislative material to the Executive'' and violated the Constitution, the court wrote. ''The Congressman is entitled to the return of documents that the court determines to be privileged.''

The raid was part of a 16-month international bribery investigation of Jefferson, who allegedly accepted $100,000 from a telecommunications businessman, $90,000 of which was later recovered in a freezer in the congressman's Washington home.

Jefferson pleaded not guilty in June to charges of soliciting more than $500,000 in bribes while using his office to broker business deals in Africa. The Justice Department said it built that case without using the disputed documents from the raid.

The court did not rule whether, because portions of the search were illegal, prosecutors should be barred from using any of the records in their case against Jefferson. That will be decided by the federal judge in Virginia who is presiding over the criminal case.

''Today's opinion underscores the fact that the Department of Justice is required to follow the law, and that it is bound to abide by the Constitution,'' defense attorney Robert Trout, said, promising more legal challenges to ''overreaching by the government in this case.''

The Justice Department did not immediately return messages seeking comment on the decision. Officials have said they took extraordinary steps, including using an FBI ''filter team'' not involved in the case to review the congressional documents. Government attorneys said the Constitution was not intended to shield lawmakers from prosecution for political corruption.

The court was not convinced. It said the Constitution insists that lawmakers must be free from any intrusion into their congressional duties. Such intrusion, even by a filter team, ''may therefore chill the exchange of views with respect to legislative activity,'' the court held.

The case has cut across political party lines. Former House Speakers Newt Gingrich, a Republican, and Thomas Foley, a Democrat, filed legal documents opposing the raid, along with former House Minority Leader Bob Michel, a Republican.

Conservative groups Judicial Watch and the Washington Legal Foundation were joined by the liberal Citizens for Responsibility and Ethics in Washington in supporting the legality of the raid.

Following his indictment, Jefferson's supporters accused the Bush administration of targeting black Democrats to shift attention from the legal troubles of Republican congressmen.

''We are confident that as this case moves forward, and when all of the facts are known, we will prevail again and clear Congressman Jefferson's name,'' Trout said Friday.

Despite the looming investigation, Jefferson was re-elected to a ninth term in 2006. His win complicated things for Democratic leaders who promised to run the most ethical Congress in history.

House Speaker Nancy Pelosi, D-Calif., stripped Jefferson of his seat on the powerful Ways and Means Committee and placed him instead on the Small Business Committee. He resigned that committee assignment after being indicted.

The case was considered by Chief Judge Douglas H. Ginsburg, Judge Karen Lecraft Henderson and Judge Judith W. Rogers.

Ginsburg and Rogers served in the Justice Department and Henderson served as deputy South Carolina attorney general. None of the judges served in the legislative branch, though Rogers was counsel to a congressional commission formed to review Washington's municipal structure. Ginsburg and Henderson were appointed by Republican presidents, Rogers by a Democrat.

    Court Rules Against F.B.I. in Raid on Lawmaker, NYT, 3.8.2007, http://www.nytimes.com/aponline/us/AP-Raid-on-Congress.html