Terror Trials, Ray Kelly and the FBI Director Job

A couple of weeks ago quite a stir was created when the rumor was let leak that President Obama was considering three different high level Bush/Cheney Administration officials to replace FBI Director Robert Mueller, whose ten year term will expire will expire on September 4, 2011. The two names most prominently featured were former Bush Deputy AG James Comey and former Bush National Security AAG Ken Wainstein but also mentioned was former Bush Homeland Security Advisor Fran Townsend. The story creating the hubbub, almost as an afterthought, also mentioned that Sen. Chuck Schumer had been lobbying for current NYPD Commissioner Ray Kelly for the job.

Today, however, comes a news report from local New York investigative reporter Murray Weiss that the FBI Director chair is Ray Kelly’s “for the taking”:

And when sources with solid connections in the White House tell you Kelly has been told by Attorney General Eric Holder that the FBI director’s job is his for the taking, it is impossible to ignore them. All the signals, including the aside from Kelly, are in sync.

Here is the news, according to my sources.

Kelly, who served in two federal posts during the Clinton administration, is this close to heading out of Manhattan and back to Washington to cap his long career of public service by running the FBI.

There are several things interesting about the report. One is Kelly’s age – he is 69 years old. The article addresses that issue:

The FBI Director’s term is 10 years. My sources say the White House has told the 69-year-old Kelly to view the position as a five year commitment, which would coincide nicely with the end of a second Obama term.

If so, and Kelly is indeed nominated, this is a contemptible plan. The intent behind having a ten year service period for the FBI top spot is to give it some space from hard partisan politics. In this case, seeing as how rare it is that a party who has had the presidency for two terms gets it for a third, setting up the FBI job to be open in the face of what would historically be and expected GOP president in 2016 seems short-sighted and extremely ill considered. I guess that presupposes Obama is reelected, but you have to assume the White House believes that will be the case and is acting under said assumption.

What is more interesting, however, is what a Ray Kelly nomination would say about the Obama 9/11 Terror Trials fiasco that culminated three days ago in the Administration announcing, through the water carrying mule known as Attorney General Eric Holder, that the 9/11 suspects/detainees, including Khalid Sheikh Mohammed, would receive second tier justice in the untested and almost certainly unconstitutional Guantanamo military commission system. This was a decision noted Constitutional authority Dahlia Lithwick termed “Cowardly, Stupid, and Tragically Wrong” and further noted:

Say what you want about how Congress forced Obama’s hand today by making it all but impossible to try the 9/11 conspirators in regular Article III courts.* The only lesson learned is that Obama’s hand can be forced. That there is no principle he can’t be bullied into abandoning. In the future, when seeking to pass laws that treat different people differently for purely political reasons, Congress need only fear-monger and fabricate to get the president to cave. Nobody claims that this was a legal decision. It was a political triumph or loss, depending on your viewpoint. The rule of law is an afterthought, either way.

What Dahlia noted is quite correct (and her article is spot on; if you have not seen it, read the whole thing), but the potential specter of a Ray Kelly nomination to FBI director makes you wonder whether Obama’s hand was forced so much as he used the caterwauling of Congress as an excuse for something he just felt politically expedient. And that is where we get back to Ray Kelly, because it was Kelly, just as much as Congress, that blew up the ability of New York to hold civilian trials for KSM and the other 9/11 suspects, not to mention future terrorism cases. As Marcy Wheeler noted, the indictment had been returned, and was really quite solid in how it was constructed.

Yes, the right wing howlers were grumbling in Congress, but it was Ray Kelly’s fearmongering over security which fueled the Community One Association of lower Manhattan into a negative frenzy over the specter of the trials actually being held where the crimes were committed. The breaking of the will of New York to hold the trials that broke the back of effort as a whole.

Notably, however, these were not principled fears Kelly whipped up, it was a just another political theater play over a struggle for money and power. As Jane Mayer noted at the time:

For months, companies with downtown real-estate interests had been lobbying to stop the trial. Raymond Kelly, the commissioner of the New York Police Department, had fortified their arguments by providing upwardly spiralling estimates of the costs, which the federal government had promised to cover. In a matter of weeks, in what an Obama Administration official called a “classic City Hall jam job,” the police department’s projection of the trial costs went from a few hundred million dollars to a billion dollars.

Kelly friend and compatriot Michael Bloomberg had been in favor of the trials And Kelly and his friend Bloomberg were resolutely in favor of the trials, until they learned there would be not be a financial funding windfall sufficient for their desire from the Feds. Kelly then whipped the public frenzy, Bloomberg and Chuck Schumer fell in line, and it was game over as to public will in New York.

Ray Kelly, attempting to build his and his department’s budget and power, ran a shakedown play on the Obama Administration. Or so it seemed at the time. But what if Ray Kelly had his eye on succeeding Mueller at FBI longer than Weiss relates in today’s article (which discusses Kelly auguring for the job as early as last summer). What if the real shakedown Ray Kelly was running on the White House, Eric Holder and the Administration early in the terror trials issue was for the FBI job, it started much earlier than last summer, and the blowing up of the ability to conduct civilian trials in New York was simply his end of the bargain?

This is conjecture at this point, but it certainly fits the facts, and would also explain why Obama would be considering a man far older than logic and recent precedent would consider appropriate for the job. What a panel of potential nominees the White House has ginned up – three Bush/Cheney hands and Ray Kelly, the shakedown specialist. Either way, if it does ever turn out Ray Kelly is Obama’s nominee for FBI Director, it would be another profound comment on the Administration’s “cowardly, stupid, and tragically wrong” handling of the civilian trials in Article III courts issue.

  1. scribe says:

    Not to mention that Kelly is a first-rate thug-with-a-badge.

    If you thought the FBI’s tactics were extreme under Mueller, you ain’t seen nothin’ yet.

  2. earlofhuntingdon says:

    It is hard to imagine that someone running the complicated and sometimes corrupt NY City law enforcement agencies would be the most obvious candidate to run the sclerotic, Constitution-intimidating, improvement-challenged FBI, an agency with thousands of agents and investigations a worldwide presence, and a bloated, poorly spent budget.

    It’s harder to imagine there weren’t more talented candidates than Kelly, let alone anyone from the remarkably tainted CheneyBush regime’s DoJ or national security apparatus. Fran Townsend’s name was a joke, Comey’s only slightly less so. It’s like Obama considering Karl Rove as his campaign manager.

    Kelly’s age also works against him. The demands of that job are exceptional. And the consequences of doing it well or poorly are so great that someone doing it should stick around long enough to live with them. Not just stay alive, but “live” in the sense of remaining professionally active, with an economic and personal stake in having done a good job, not just in having gotten out of it in the nick of time.

    It’s hardest to believe that Mr. Obama is demonstrating an ability to be as corrupt and narrow in his appointments as Dick Cheney. But then, he really is just another Chicago pol.

  3. earlofhuntingdon says:

    Murray Weiss also has this tidbit about Holder stepping down after 2012:

    The attorney general has told confidantes that he will not be around to work the second Obama term, my sources say. That announcement will likely be coming soon now that the contentious decision has been made to try Khalid Sheikh Mohammed and other 9/11 plotters in a military court rather than here in Manhattan.

    It that rationale is correct, Mr. Holder’s resignation would come a year and a half too late. Holder, Clinton, I wonder who else intends to scurry off the Obama ship after 2012.

    • Cynthia Kouril says:

      WHen Holder announced that the KSM trial was not going to be held in an Article 3 court, everybody was jumping up and down about why he wasn’t resigning in protest. Evidently he is. He’s just doing it in a way that allows for an orderly transition instead of flouncing out the door in high dungeon

      • earlofhuntingdon says:

        Resigning as a matter of principle I would not consider “flouncing out the door”. Slipping out in between election cycles is a way to do it without disclosing one’s principles, or that one hasn’t any.

        • stevo67 says:

          exactly, just like Colin Powell’s resignation from State in 2008. an exercise in moral cowardice.

      • earlofhuntingdon says:

        I accept the need for an orderly transition as an aid to one’s agency; it wouldn’t seem necessary to do that for a politician whose priorities are causing you to resign. Waiting almost two years to resign isn’t required to assist one’s agency. It is hiding the political reasons why one can’t work any longer for that politician. It is a common way to avoid burning one’s bridges, but it does the public no favors.

        • Cynthia Kouril says:

          DOesn’t announcing the resignation do all the public shaming that storming off would do, w/o making Holder look like it’s a fit of pique?

          • MadDog says:

            Personally, I don’t know whether Holder’s “reported” future resignation is one of a matter of conscience or not.

            If it were to be, then I would prefer that he go out screaming and yelling to the press, but even flouncing would do. *g*

            • Cynthia Kouril says:

              I have no clue if it’s a “matter of conscience” I’m not speculating about what’s inthe man’s head.

              However, when the POTUS rules against you after you have gone so far out on a limb, it’s clear you can never win another battle and you have to leave b/c that kind of betrayal from your boss renders you ineffective.

              If your boss won’t back you up, WHEN YOU ARE RIGHT, you can’t do your job any more.

              • MadDog says:

                I concur. I guess my preference is still something more timely, and more public. Leaving without slamming doors seems so surrender monkeyish.

                Need I say that I like fireworks? *g*

                Seriously though, something like what EOH suggests in his comment # 28 above would do the trick as well.

          • PeasantParty says:


            A bit OT, but do you know about Corporate Tax laws and how they can take exemptions on employee costs? I’m looking for items regarding the FUTA and SUTA payments they make.

            • Cynthia Kouril says:

              I don’t do tax. I do do corporate. It’s an ethical violation to give legal advice to an individual in a public forum–for some reason NY is having alot of CLE prgrams lately about lawyers committing ethical violations when they blog–I feel a little paranoid.

              • PeasantParty says:

                YIKES! Okay, I understand. When they start putting that crap in Continuing L ed classes they are serious.

                I’ll try to find someone in person for the tax questions. If you feel like you can share a link that will suit just fine and much appreciated. It would definitely not be advice or a consult, just a friendly nudge towards knowledge. ;-)

              • earlofhuntingdon says:

                Know your client and all that, plus don’t compete with me for free.

                It reminds me of a caricature of famous Asian city, a corruption-free oasis of air conditioning, good food, great business centers and pretty stewardesses; a veritable businessman’s Disneyland. Rumor had it that corruption only took place at the highest level; I’m sure that was untrue.

          • earlofhuntingdon says:


            Nor need Mr. Holder have “stormed off” like a character in a “B” movie. He could have coldly, calmly and logically made public why the usurpation of his authority and the dominance of political over legal issues in making charging decisions made it impossible for him to continue as the chief law officer of the United States Government. He could then have continued in office at the president’s pleasure and until his successor was nominated and appointed, which would have ensured a responsible transition.

            “Resigning” without saying why, with a lapse of nearly two years between resignation and the purported reasons for it, isn’t resigning. It is enabling the very behavior that purportedly caused the resignation. That’s a contradiction in terms. It elevates party loyalty over professional competence and public responsibility, objecting to which is presumably the reason for resignation.

            Democrats used to decry the behavior of Bushies who did that, just as they used to decry their legal excesses. Admittedly, Beltway powerbrokers no longer think or behave that way. It’s rude, it’s inconvenient, it leads to dinner and drinks alone and oftentimes the loss of immediate business. But it used to be expected, and still is in some other countries, just as it used to be common for CEO’s to resign without being awarded tens of millions in hush money.

            • Cynthia Kouril says:

              I admit, I like your version better than Holder’s.

              I agree he could have done it better.

              I don’t suggest that Holder is acting out of principle in the “I cannot in good conscience work for this Admin any more”, I suspect that it’s more “I can’t be effective in my job anymore, b/c the boss won’t back me up, so I should turn this job over to somebody who may be able to be more effective than me”.

              Obama won’t be able to get a ne AG confirmed during the campaign, so Holder is effectively stuck, serving at the pleasure of the president until after the election.

              His departure date would likely be the same even under your scenario.

              I’m not ascribing an attack of conscience to Holder, just an attack of pragmatism.

              • earlofhuntingdon says:

                That context sounds more like the prognosticator of foreclosure fraud I’ve come to appreciate.

                I don’t ascribe to Holder even the “My boss doesn’t respect me anymore, so I should resign and let him appoint someone who would be more effective with him”. I put it down to his being a good soldier, to getting out only when it doesn’t require an excuse or reason, because that protects the boss, the party and his future income prospects, in that order. No powerbroker wants the revolving door to get stuck when he’s outside the building. That does rather leave his entire department, from the OLC to the lowliest USA’s file clerk, in the lurch for leadership.

                It must be warm and comfy inside the palace, holding up towels in the bath, and a lot easier than fighting for a living on the outside or fighting one’s boss because that’s what the duties of one’s office requires. But even Antonius felt compelled to leave Crassus when he started talking about snails and oysters; is there no such thing as enough for Mr. Holder or his Beltway peers?

                The reasoning behind Mrs. Clinton’s announced departure must be even more complicated, as there isn’t a ready policy or operational disagreement that conveniently explains it.

      • ralphbon says:

        I generally treasure your opinion, but on this point I can only be glad that you weren’t in a position to offer similar advice to Elliott Richardson.

        • Cynthia Kouril says:

          Richardson had no choice, he had a deadline to follow an order, so he had to leave before that deadline. Apples and Oranges.

          A closer anaology–and one that sorta explains the subtlties here is when Comey was going to resign over the warrentless wiretapping.

          If the program was going to be re-upped on the deadline w/o whatever modifications they thought would make it acceptable, Comey was going to resign before the deadline. He and Muller got whatever they thought they needed to avoid the immediate crisis.

          However, at that moment even though he “won” short term, he knew he could no longer be effective in his job b/c the president would not back him up, so he made plans to leave. The deicision to leave came with the realization he had “lost the confidence of the executive” (a phrase that some of you may remember from Robert Caro’s The Power Broker bio of Robert Moses)

          Basically, Caro posits that once you have lost the confidence of the executive, you are no longer going to be effective in your job and therefore you obligation to the public is to leave–but that does not = hasty or dramtic departure, it suggests an orderly departure.

          VERY different from the Richardson situation or the Comey hospital visit situation.

          • ralphbon says:

            I appreciate your parsing of the apples and oranges. A better comparison than Richardson or Comey would probably be Cyrus Vance, who resigned as SoS on the spot when Carter ignored his counsel against attempting a rescue of the Tehran hostages. He didn’t even wait for the attempt and its failure before resigning. To my recollection, the nation did not suffer from a lack of orderly transition as a result, although in fairness, such disorder might have been hard to discern within the existing ambient disarray.

            To return to the topic of the post, I’m surprised no one has yet slammed Schumer’s qualifications and credibility in nominating a local boy to a high national security position given his prior enthusiastic backing of Bernard Kerik for Director of Homeland Security.

            • earlofhuntingdon says:

              Sen. Schumer (D-Wall Street) hasn’t a very good track record on those national security and law enforcement post recommendations, has he? It’s almost as if his constituents would be happier if government were less able to inquire into the possible impropriety of some of their business dealings.

    • Cynthia Kouril says:

      Don’t foregt Gates will be gone too. All the REALLLY BIG cabinate post (except Treasury) are already slated to be empty

      • earlofhuntingdon says:

        That is rather a giveaway that Mr. Obama isn’t the best boss to work or advocate for. He tossed many of the top staff who got him elected. He doesn’t cater to his base, even the ones he’s appointed. He doesn’t let his agency heads run their agencies or speak off message or sometimes even on their own. He doesn’t seem to reward to loyal service. He seems as absent as a manager as he is as a “fighter” for his priorities on the Hill. The Irish had a name and a feeling for that kind of landlord.

  4. PeasantParty says:


    Dear Spain,

    We are left without any other options except to look to you and your ongoing investigations of war crimes. Please consider all involved and all options at your hand.

    Thank You,

    America’s Peasant Class

  5. MadDog says:

    Another OT – The National Security Archive has a new release today:

    The Chiquita Papers

    Banana Giant’s Paramilitary Payoffs Detailed in Trove of Declassified Legal, Financial Documents

    Evidence of Quid Pro Quo with Guerrilla, Paramilitary Groups Contradicts 2007 Plea Deal

    Colombian Military Officials Encouraged, Facilitated Company’s Payments to Death Squads

    More than 5,500 Pages of Chiquita Records Published Online by National Security Archive…

    …Bogotá, Colombia, April 7, 2011 – Confidential internal memos from Chiquita Brands International reveal that the banana giant benefited from its payments to Colombian paramilitary and guerrilla groups, contradicting the company’s 2007 plea agreement with U.S. prosecutors, which claimed that the company had never received “any actual security services or actual security equipment in exchange for the payments.” Chiquita had characterized the payments as “extortion.”

    These documents are among thousands that Chiquita turned over to the U.S. Justice Department as part of a sentencing deal in which the company admitted to years of illegal payments to the paramilitary United Self-Defense Forces of Colombia (AUC)–a State Department-designated foreign terrorist organization–and agreed to pay a $25 million fine. The Archive has obtained more than 5,500 pages of Chiquita’s internal documents from the Justice Department under the Freedom of Information Act and is publishing the entire set online today…

  6. stevo67 says:

    What if the real shakedown Ray Kelly was running on the White House, Eric Holder and the Administration early in the terror trials issue was for the FBI job, it started much earlier than last summer, and the blowing up of the ability to conduct civilian trials in New York was simply his end of the bargain?

    If your take on this is accurate, bmaz, and I think it is, than the only conclusion that can be drawn is that their is no principle, promise or person Obama won’t cravenly throw under the bus for his expediency. Dems will no longer have to face “the lesser of two evils” dilemma – the greater evil will be on our side of the aisle.

  7. TarheelDem says:

    The ghost of J. Edgar Hoover so haunts the FBI and the chain of his successors that it would be better to reinvent the federal investigative system altogether.

  8. beowulf says:

    He could have resigned at any time. Just like when Comey stepped in for the hospitalized Ashcroft, there’s a Deputy AG who can step in as acting Attorney General at any time.

  9. Cynthia Kouril says:

    BTW, Kelly and Graham have between them gutted Holder like fish.

    I was never his cheerlaeader, heaven knows I opposed his nomination right here at FDL, but on this one issue

    HOLDER WAS 100% in the right. KSM should have been tried in SDNY. It was the AG’s decision AND ONLY THE AG’s DECISON to make. Congress had no right to try to butt into that deicsion and Obama should not have overruled his own guy.

    Kelly filleted Holder like one of the oldtimers on Fulton Street.

    • earlofhuntingdon says:

      That would be the fish market condemned because the rats were too numerous to eradicate?

      Reminds me of two South Street Market stories about rats. One was about sides of meat hung up in a cold locker on stainless hooks. How did the rats get at them? They formed a mob under a side of meat, one rat scampered to the hook and gnawed the meat around it until it dropped to the floor. The mob had dinner. Didn’t leave enough to use a toothpick on.

      The other was about the disappearing eggs. Rats did it, but left no egg shells lying about. How did they do it? One rat lay on its back and cradled an egg; another pulled it by the tail to the nest for dinner. If Kelly is holding the egg, who’s the other rat?

      (h/t Bill Bryson)

  10. EternalVigilance says:

    This is conjecture at this point, but it certainly fits the facts

    Finally! Some examination of Obama that looks at facts and not simply the self-delusional hopes of those desperate to be seduced.

    Maybe there’s cause for optimism after all.

  11. tammanytiger says:

    Yet another example of Mr. Ex-Law Professor widening the national security exemption to the Bill of Rights. History will render the harshest of judgments against this president, his administration, and the pathetic excuse for a party that he heads.

  12. prostratedragon says:

    The FBI Director’s term is 10 years. My sources say the White House has told the 69-year-old Kelly to view the position as a five year commitment, which would coincide nicely with the end of a second Obama term.

    Gives the eye that old bright yellow glow, doesn’t it?

    Thanks, I guess, for finding it bmaz. And fwiw I quite agree with TarHeelDem @ 27 above about what the ultimate problem and fix are.