For so long now we have been eagerly awaiting the results on the DOJ IG/OPR investigation into the curious and unprecedented firing of nine US Attorneys by the Bush Administration. Heh, but will it ever really arrive? Will Karl Rove and Harriet Miers ever have to testify? Eh, I don’t know, you have to wonder after a while. One thing is clear though, just about all of the original explanations given by the Bush Administration have been discounted, if not disproved.

Much discussed are the cases of David Iglesias, Bud Cummins, Carol Lam and John McKay. But right now, I am more interested in three of the lesser discussed of the sacked USAs. Margaret Chiara, Tom Heffelfinger and Paul Charlton.

There have been many discussions, both here and across the blogosphere dissecting why these particular US Attorneys were fired. There have been many theories, and the bottom line is that there is probably no one grand unifying theory other than that the Bush Administration was manipulating the DOJ and the USA offices for various political hit jobs; i.e. multiple motivations. One of the ones we have gone into here is the interplay with Native American issues. And Chiara, Heffelfinger and Charlton were all, due to the nature of their physical jurisdictions, highly involved in Native American issues. Marcy has done recent posts calling into question the legitimacy of the stated basis for firing Chiara.

Over a year and a half has passed since Margaret Chiara was fired with a bunch of other US Attorneys–and we still have no good explanation why she was targeted. The apparent reason, though, is a rumor that she was having a gay relationship with an AUSA in her office, traveled with her on the government dime, and gave her preferential bonuses.

But today’s Monica Goodling report includes a denial from Chiara and the AUSA–Leslie Hagen–that they were in a relationship.

So, if the stated rationale for Chiara’s firing is in doubt, maybe we ought to give renewed consideration to the Native American aspects and implications. Marcy was on this early and hard with Native Americans And The USA Purge, Part I and Part II. Don’t hesitate to take a look back at those posts, they are pretty interesting.

The reason I come back to this area is that today’s Washington Post has a nice little article that similarly undercuts the stated rationale for the firing of Paul Charlton.

Justice Department officials have reversed course and approved a plea deal in a controversial death penalty case that may have prompted the firing of a U.S. attorney in Arizona nearly two years ago, according to court records and interviews.
…
Charlton had argued that the case was short on forensic evidence and was not suitable for what he called "the ultimate penalty." But officials in Washington overruled him in fall 2006, and he later became one of nine top prosecutors who were fired en masse that year. In congressional testimony last year, then-Attorney General Alberto R. Gonzales said Charlton’s reluctance to support the administration’s position on capital punishment in the case amounted to "poor judgment" and attracted criticism in the department’s political ranks.

It never made sense that Charlton was fired over one death penalty case up on the remote reservation. Charlton had never himself made any public issue of the case. And now the very acts of the Department of Justice give the lie to that as a basis for the firing of Paul Charlton. This plea deal would have been cut and the case over two years ago if Paul Charlton had not have been jerked around and then fired. The exact same factors mitigating against demand for the death penalty existed then as exist now. This plea deal in US v. Jose Rios Rico, was clearly the decision by the DOJ Main, who, when it was desired to fire Paul Charlton, had said something quite different:

In congressional testimony last year, then-Attorney General Alberto R. Gonzales said Charlton’s reluctance to support the administration’s position on capital punishment in the case amounted to "poor judgment" and attracted criticism in the department’s political ranks.

So he was fired according to Alberto Gonzales. Or, as has always been suspected, and as we have confirmed today by the WaPo’s reporting of the plea deal, not. So, why was Paul Charlton, not to mention the others, fired? It certainly was not the reasons testified to by Gonzales, Mercer, Sampson et. al testified to; will there be any repercussions for their false testimony? Where exactly is the IG/OPR Report anyway?

During my college years, I spent several summers working at a classic automobile restoration shop in Santa Monica. One of the most spectacular pieces of automotive machinery that I have ever seen in my life was in the shop over two of the summers, and I had the privilege of working on it. A 1913 Rolls Royce Silver Ghost. One of the finest cars ever made, synonymous with quality and character, and solid to a fault.

Today, I am moved to hold another Royce in that reverence. Judge Royce Lamberth of the United States DC District Court. From Guantanamo to Cobel to a host of other important cases, Judge Lamberth has had the guts and determined conviction to to make tough, fair and necessary rulings that question authority and stand up to big government and behind the common citizen. He is a Rolls Royce Silver Ghost, and we need a lot more like him.

Here is today’s example of how it is done by Lamberth. From the Washington Post:

Lawyers representing many of the 265 detainees at Guantanamo Bay say they are heading for a unexpected logjam that could delay federal court hearings: a shortage of interpreters.

After the Supreme Court ruled that terrorism suspects held at the military prison in Cuba have a right to seek their release in federal court, lawyers are gearing up for what they expect to be an avalanche of legal briefs and new evidence filed by the Justice Department. Lawyers say they are trying to rush to meet with their clients in advance of cases that judges may want to hear quickly.

"The shortage of interpreters will pose a problem, because it’s already difficult enough to get to Guantanamo and to see one’s client," said Martha Rayner, a lawyer who represents two detainees and is also a clinical associate professor of law at Fordham University Law School in New York. "But without an interpreter, the meeting can’t take place."

The issue concerns lawyers so much that they clashed with the Justice Department recently when the security clearances for several Arabic interpreters were rescinded for unexplained reasons. Worried the pool would grow even smaller, the lawyers said they enlisted the help of U.S. District Judge Royce C. Lamberth, who prodded Justice officials into fixing the clearance problems.

When a lay journalist reports that Judge Lamberth "prodded Justice officials", you can be pretty sure that he excoriated them. Good. That’s why he is the Rolls Royce in this tale. Follow the link and read the entire story, it really is a superb demonstration of the heroic and special work of a few fighting for trurh and justice on behalf of the detainees, and the malevolent bad faith occasioned by the Bush/Cheney InJustice Department. The oppressive hatred and disdain by the Administration toward the rule of law and simple humanity is staggering. Theirs is the way of classic imperial fascism; taking, plundering and oppressing everything in sight.

By the way, isn’t it amazing, in what they call the defining clash of civilizations in all of history, that seven years after 9/11 the Bush Administration still doesn’t have any freaking interpreters? And they are actively jerking around the security clearances of the ones that do exist. Of course they are. That is just what they do.

And, for the next item of evidence. Guess what, The Great Big Book of Everything comprehensive database the US Government is compiling has been being expanded in new and fun ways. Again, from the WaPo:

The federal government has been using its system of border checkpoints to greatly expand a database on travelers entering the country by collecting information on all U.S. citizens crossing by land, compiling data that will be stored for 15 years and may be used in criminal and intelligence investigations.

Officials say the Border Crossing Information system, disclosed last month by the Department of Homeland Security in a Federal Register notice, is part of a broader effort to guard against terrorist threats. It also reflects the growing number of government systems containing personal information on Americans that can be shared for a broad range of law enforcement and intelligence purposes, some of which are exempt from some Privacy Act protections.
…
The data could be used beyond determining whether a person may enter the United States. For instance, information may be shared with foreign agencies when relevant to their hiring or contracting decisions.
…
Under the system, officials record name, birth date, gender, date and time of crossing, and a photo, where available, for U.S. travelers returning to the country by land, sea or air. The same information is gathered about foreign travelers, but it is held for 75 years.
…
The border information system will link to a new database, the Non-Federal Entity Data System, which is being set up to hold personal information about all drivers in a state’s database. States that do not agree to allow customs to have such large amounts of information may allow the agency to query their databases in real time for information on a traveler.
…
The notice states that the government may share border records with federal, state, local, tribal or foreign government agencies in cases where customs believes the information would assist enforcement of civil or criminal laws or regulations, or if the information is relevant to a hiring decision.

They may be shared with a court or attorney in civil litigation, which could include divorce cases; with federal contractors or consultants "to accomplish an agency function related to this system of records"; with federal and foreign intelligence or counterterrorism agencies if there is a threat to national or international security or to assist in anti-terrorism efforts; or with the news media and the public "when there exists a legitimate public interest in the disclosure of the information."

I don’t know if you all remember or not, but it seems like just yesterday that we were discussing what the American police state is shaping up to look like in the "FISA Redux: The Slippery Slope Becomes A Mine Shaft" thread. And now this. Beautiful. Hey, do that have that domestic spy satellite system up and going yet? Cause they only have five more months to do maximum damage you know.

In parting, I would like to apologize to the Chrysler Imperial. The title to this post was a take off on classic cars. A reverential association for the Rolls Silver Ghost, and an unfair one for the Chrysler Imperial, which was often advertised as "The Incomparable Imperial". The Imperial was a very fine series of automobiles, and does not deserve to be associated with the Bush Administration.

UPDATE: In comments, Mary makes an excellent point as to my neglect in not also mentioning Judge Royce Lamberth’s heroic white hat duty in his term as head of the FISA Court. It has, from the outset, been my contention that Lamberth, and his successor at FISC, Colleen Kollar Kotelly, were very likely the real impetus behind the sudden DOJ/OLC much ballyhooed Ashcroft Hospital Heros fable. These clucks were not principled heroes determined to do the right thing in that situation, they were far more likely motivated by self serving panic, and fear of losing their right to practice their livelihood, resulting from the FISC taking them to the woodshed over the illegal warrantless wiretapping program ordered by the White House that they were facilitating. Mary, who was also an initial investor in this theory, sums it up quite nicely:

I’m glad to see the post give some greatly due recognition to Judge Lamberth. In addition to what you’ve mentioned, he also made a strong effort via his position with FISCt to try to make DOJ reconsider Teh Program (having the Chief FISCt judge tell DOJ up front that he’s barring the program from tainting his court bc he believes it is unconstitutional makes that ‘good faith’ argument Obama and the Democratic Congress were selling a laugher) and his position, combined with Kollar-Kotelly’s later, probably did more to prevent rampant abuse than anything else.

While he was on it, the FISCt also tried to rule in favor of keeping some kind of limits on the Executive doing the things you are writing about in your FISA posts too (In re Sealed Case). Unfortunately, there the failings of the FISCt system, with the FISA appellate court being able to “overrule” with no advocate being able to really argue the case against the phalanx of DOJ lawyers, and with a resulting, almost incomprehensible ruling whose dicta has been used support the kind of things we are seeing now and whose ruling could not be appealed (bc the party in interest defendant was never before the court to start with) – – it’s a mess that needs work.

But instead Congress has diligently gone to work to make more of a mess. And when Congress was offering up the DOJ playbook on how horribly difficult and time consuming it was to try to get a FISCt warrant, Lamberth went out on a limb and, even though Congress did not call him to testify, he made sure it went into the public venue, via some speeches, that he granted FISCt warrants from his car, by phone, as circumstances required, and had been roused in the wee hours of the morning to grant one as well.

He even went further and said that as Chief Justice, briefed on “teh program” he had seen both George Bush’s way and FISA’s way, and FISA was better. And the Democrats in Congress still studiously avoided having him appear to testify, even in closed session. Lamberth has been the kind of Judge you are forced to respect, even when you don’t always agree. He’s a judge who believes in the Constitution and believes that lawyers have to be bound by their code of ethics AND by the law, and he’s not too afraid of the neocon machine to put consequences on the table for lawyers who treat his courtroom like a shell game kiosk at a low rent county fair.

Indeed.

As several of you have noted, there has been a rather significant event at the Gitmo Show Trials. Lt. Colonel Diane M. Zierhoffer, a US Army psychologist who ordered the illegal torture of a juvenile, Mohammad Jawad, invoked her right not to incriminate herself and refused to testify in the case of Mohammad Jawad. She took the Fifth.

Her testimony was sought by defense attorney Maj. David Frakt in a hearing on his motion to dismiss charges based upon government misconduct in using prolonged isolation, sleep deprivation, and other torture techniques against his client in an attempt to make him more pliable in interrogations. Following a month-long isolation, apparently recommended by the military psychologist, Mr. Jawad – who entered Guantánamo as a teenager — attempted suicide.

The psychologist’s testimony would have marked the first time that a member of the secretive Behavioral Science Consultation Team (known as BSCT or “biscuits”) had been called to testify in a detainee hearing. The BSCT program has been highly controversial among psychologists and other health professionals. The psychologist invoked her rights under Article 31 of the Uniform Code of Military Justice, the military equivalent of the 5th amendment right against self-incrimination/right to remain silent.

“The fact that the BSCT Psychologist now apparently recognizes that her conduct was criminal in nature is very significant,” said Maj. Frakt. “We have alleged, based on classified government records that the BSCT psychologist’s recommendation led directly to the illegal abuse and inhumane treatment of Mohammad Jawad. This invocation of the right to remain silent seems to confirm that.”

“The evidence in this case confirms our worst fears, that military psychologists are working to break down detainee’s psyches,” said Dr. Stephen Soldz, an expert psychologist who had been called by Maj. Frakt to testify that the BSCT psychologist had violated the professional credo of “Do no harm.”

Zierhoffer’s, and her fellow colleagues in the BSCT biscuit brigade, apparently have an operational definition of "Do no harm" with which I am not familiar. It would appear that "Do no harm" is fully operational as to her own self interest, but not to the humane interests of the powerless vulnerable souls she, and they, are ethically and morally obligated to protect.

The relevant professional association, the American Psychological Association (APA), has been having a fairly interesting internal discussion on how stridently the group will disapprove and sanction the gross ethical failings of the biscuit brigade members. There is also a lot of excellent information and background at the blog Invictus (See: here and here for instance). Invictus is run by a chap known as Valtin, a practicing psychologist in Northern California who is very passionate and dedicated on these issues. It is about time that a professional group is serious about policing the lapses of their own; kudos to the APA members standing up on this issue.

For me though, the more germane interest is in what effect Zierhoffer’s, and others that will undoubtedly be following in her footsteps, invocation of the right against self incrimination will have on the Gitmo Show Trial Process, both as to Jawad and subsequent proceedings. i cannot discern that there is any reporting, as of yet, as to how the parties and court are going to deal with the substantial issue of a material fact witness, Zierhoffer, refusing to testify. It should create a profound commotion.

The traditional tried and true response from a competent criminal defense lawyer would be to immediately formally demand on the record that the prosecution provide the necessary level of immunity to negate the witness’s self incrimination potential (very much the same concept as has been seen in the Congressional hearings with Monica Goodling; remove their criminal exposure, and they no longer have grounds to refuse testimony). The standard prosecution response to this is "No". The next step is to then move the court to immunize the requisite witness and/or compel the prosecution to do so. The standard response from the court to this motion Is abject denial on the grounds that the court does not have that authority absent a request by the prosecution and, further, lacks the authority and discretion to order the prosecution to make such a request.

Having laid the prerequisite foundation described immediately above, the defense then moves the court to dismiss the charges against the defendant on the grounds that he has been denied his Sixth Amendment Confrontation Clause right to confront and cross examine witnesses and right to compulsory process for obtaining witnesses in his favor. There is a fairly high burden for the defendant to prove that the denied testimony is sufficiently material and central to his defense that he cannot adequately defend himself without it. This is a very simplified explanation and description, but hopefully is sufficient to give an indication of what to expect. The other caveat I would make is that my vignette is taken from a traditional Federal or state criminal case and the "relaxed" rules of procedure and evidence in the Gitmo Show Trials may portend additional problems to the interjection of this type of dismissal motion tactic.

It will be fascinating to see what the full impact of Zierhoffer’s refusal to testify is, both as to Jawad and later cases.

One other tangential goody I am going to throw in here just for grins. This again comes from Valtin at Invictus.

The depth and depravity with which the Bush/Cheney neocon warhawk aggressor machine has co-opted and corrupted the institutions, associations and professions that compose the fabric of this nation is simply astounding. The DOJ, the judiciary, the regulatory and administrative agencies and framework, private enterprise. They literally consume and soil every thing they touch. Here at Emptywheel, we have focused mainly on the institutions and, lately, the professions as to lawyers and now doctors and psychologists/psychiatrists. How bad is it, and how far have they gone? Well, now they have swallowed up Indiana Jones too. Yep, the Bushco Borg collective has assimilated the anthropologists. From a report by Hugh Gusterson at the Bulletin of the Atomic Scientists:

The Pentagon plans 26 Human Terrain Teams–one for each combat brigade in Iraq and Afghanistan. The five-person teams include three military personnel. Each team also includes an anthropologist–or another social scientist–who will wear a military uniform and receive weapons training. Described as doing "armed social work" by David Kilcullen, an Australian expert in counterinsurgency who advises Gen. David Petraeus in Iraq, the teams elicit information from villagers for Pentagon databases and provide cultural orientation to U.S. military leaders….

Last year, the Executive Board of the American Anthropological Association (AAA) issued a statement condemning the use of anthropologists in Human Terrain Teams….

One cannot grasp AAA’s concerns without understanding that anthropologists have a unique research method that brings with it special ethical responsibilities: We engage in what one anthropologist has called "deep hanging out" with people, passing the time with them, often day after day for months, painstakingly earning their trust and getting them to tell us about their worlds. What distinguishes anthropology from espionage (apart from anthropologists’ impenetrable jargon) is that we seek the consent of our subjects, and we follow an injunction to do no harm to those we study. According to the anthropological code of ethics, our obligations to those we study trump all others–to colleagues, funders, and nation.

Marvelous. This ought to present a whole new level and meaning to the concept of rewriting history, even for accomplished rewriters like the Bush/Cheney pack of rats. As Valtin observes:

Meanwhile, U.S. Army personnel are showing up at meetings of anthropologists and taking down names and institutional affiliations of anthropologists who had signed a public pledge not to participate in "counter-insurgency operations in Iraq or in related theaters in the ‘war on terror,’" believing that "anthropologists should refrain from directly assisting the US military in combat, be it through torture, interrogation, or tactical advice."

The U.S. ruling class’s mobilization of all layers of civil society for the fear-driven defense of the nation against "terror," is leading to the militarization of the society as a whole. We are already far down this path… too far, such that many sober observers would already call the United States "fascistic."

I would stop short of making that judgment, but we may be closer to it than anyone would like to think.

Our nation is in a world of hurt, and full public accountability for the malefactors that put us there is a large and necessary part of the cure. We need it now Ms. Pelosi; the sole substantive requirement of your sworn oath to office is to "support and defend the Constitution of the United States". Either quit being derelict in duty, and start honoring your oath and duty, or get out of the way for somebody that will.

First off, a mea culpa. I was one of the first and strongest saying that Judge Bates would opt to just punt the contempt controversy back into Congress’s lap. I didn’t necessarily believe that he would hand a victory to the Bushies, but I did think he would, for the most part, take a pass by claiming it was not really a question for the courts and that Congress had alternative remedies available, that had not yet been exhausted, thus the issue not appropriate for consideration at this time (In fact, Bates noted on page 70 of the opinion that he would have been on solid ground doing just that).

I was wrong.

The Bush/Cheney unitary executive cult got their rear ends handed to them. Again. How shocking. Or, you know, not. They are basically batting an 0-fer since Cheney took Scalia on the robber baron aristocrat jet set hunting trip and managed to get a decision allowing him to keep the nation’s energy program secret from the nation.

But now, predictably, the dark hats of Miers, Bolten and Bushco want to delay the effect of Judge Bates’ ruling until the next of never on the appeal. However, as MadDog (good to have the dog back I might add) points out, the white hats of Conyers’ House Judiciary Committee have a response to that.

Plaintiff Committee on the Judiciary of the U.S. House of Representatives (“Committee”) opposes Defendants’ motion for a stay pending appeal on the following grounds:

(1) Ms. Miers’s claim of absolute immunity has no likelihood of success on appeal because it is baseless and contrary to Supreme Court precedent, and was thoroughly and irrefutably rejected by the Court;

(2) the Court’s non-final order of July 31, 2008 (“Order”) is not appealable, and thus a stay needlessly would cause further harmful delay;

(3) Defendants suffer no harm, let alone irreparable harm, from (a) appearing at a congressional hearing or (b) producing non-privileged documents and descriptions of the documents they seek to withhold on the basis of executive privilege;

(4) the Committee will suffer considerable harm as a result of the Executive Branch’s delaying tactics, which virtually assure that the Committee’s investigation into the forced resignations in mid-Administration of nine United States Attorneys in 2006 (“Investigation”) will not be completed until after the 110th Congress has concluded and the current Administration has left office in January 2009; and

(5) a stay would undermine the public interest by hindering the Congress from developing, if necessary, any relevant legislative remedies designed to improve the effective and fair functioning of the Nation’s criminal justice system.

This is a nicely done, pointed response to the transparently disingenuous delay tactics of the Bush Administration. In going through the decision and the latest arguments on the shape of the appellate process by the parties, I realize there is another facet to this equation that has been bugging me. Despite how good Bates’ decision is, why did it not address the refusal by the DOJ to prosecute a duly constituted, and valid on it’s face, contempt citation referred by the United States Congress?

Bates’ decision has drawn nearly uniform praise from across the board (with the exception, of course, of the parties negatively affected by it and their sycophants) including on this blog. Martin Lederman is indicative:

It is an extraordinarily thorough, scholarly and thoughtful opinion — surely one of the best opinions ever written on questions relating to executive/congressional disputes. It is also, IMHO, correct on the merits, of virtually all of the many legal questions it discusses. It is important not only for its holding on the immunity question, but also for its holding and analysis on congressional standing, and for its unequivocal rejection (pp. 39-41) of one of the Administration’s principal arguments with respect to all of these privilege disputes in the U.S. Attorney matter…

I find it shocking to be writing these words, but I pretty much agree. However, there is one glaring issue that is not addressed in the decision that is critical to this greater discussion of power and privilege, and I predict that will prove unfortunate in the future. To wit, is it appropriate for the US Attorney, in this case Jeffrey Taylor of the DC District, upon specific command of the Attorney General, in this case the ever obstructing Mike Mukasey, to refuse to prosecute a duly constituted and valid on it’s face contempt citation referred by the United States Congress?

A whole lot of people, both expert and non, have already been asking "what happens next"? What happens when Miers, Bolten, Rove et al. either blow off their repeat summons, or give unprincipled refusals to answer proper examination by the Committee? Without a prior resolution of the propriety of the Mukasey/Taylor refusal to prosecute the properly referred contempt citation, they may well refuse again, thus creating further intractable delay. Future Administrations may try the same refusal. Bates was certainly aware of the Taylor/Mukasey refusal, it is cited numerous times in the decision (see, for instance, page 16 of the decision):

On February 28, 2008, Speaker of the House Nancy Pelosi certified the Contempt Report to Jeffrey A. Taylor, U.S. Attorney for the District of Columbia. Id. ¶ 60. Pursuant to the terms of 2 U.S.C. §§ 192 and 194, Mr. Taylor was directed to present the contempt charges against Ms. Miers and Mr. Bolten to a grand jury. See 2 U.S.C. § 194. On that same day, Speaker Pelosi wrote to Attorney General Michael B. Mukasey. Pl.’s Stmt. of Facts ¶ 62. The Attorney General had previously indicated that he would not permit Mr. Taylor to bring the contempt citations before a grand jury, and Speaker Pelosi “urged him to reconsider his position.” Id. The next day, however, the Attorney General responded that because Ms. Miers and Mr. Bolten were acting pursuant to the direct orders of the President, “the Department has determined that non-compliance . . . with the Judiciary Committee subpoenas did not constitute a crime, and therefore the Department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers.”

However, Bates gave no indication of the court’s opinion on this issue, much less rendering a determination. This was a question that should have been addressed in the Bates decision; why wasn’t it?

Is this the big chink in the armor of the surprisingly cogent Bates decision we all expected? Not as much as you think. Bates certainly could have addressed the issue, even if any conclusion was discretionary dicta, and I believe he should have. The real shortcoming here, however, resides with the HJC complaint in this matter; the Committee didn’t plead the issue. Sure would have been nice if they had; maybe the Judiciary Committee would see fit to explain why they did not.

John McCain is an angry, mercurial, petulant and self serving man who believes that John McCain is entitled to say, do and take whatever John McCain wants and John McCain needs. In this regard, he has no honor, and no shame. From pilfering Iraq policy from Obama, to foreign policy from Wiki, to video from Wayne and Garth, Sticky Fingers McCain just takes what he wants because he feels he is entitled to it. The world is his due, because St. McCain was, you know, a POW. Everything else is his gravy.

The latest thing Sticky Fingers McCain has ripped off is Jackson Browne’s song "Running on Empty". Jackson isn’t real happy about it and is suing McCain in U.S. District Court in Los Angeles over the misappropriation.

Browne, a lifelong Democrat, is seeking unspecified damages as well as a permanent injunction prohibiting the use
of “Running on Empty” in any form by the McCain campaign.

“Not only have Senator McCain and his agents plainly infringed Mr. Browne’s copyright in ’Running on Empty,’ but
the federal courts have long held that the unauthorized use of a famous singer’s voice in a commercial constitutes
a false endorsement and a violation of the singer’s right of publicity,” Lawrence Iser, Browne lawyer, said.

It hasn’t even been a week since McCain was slapped for stealing the "We’re not worthy" bit from Mike Myers and Dana Carvey, and he is already back at it again. The cookie recipe theft was kind of comical at first, but the unapologetic theft and misappropriation just keeps coming and coming. After a while, it really does show a pattern and practice of arrogant and dishonest behavior.

Lets hope that Jackson Browne lays the wood to McCain hard and puts him in his place. Of course, that will make the volatile McCain furious, and when McCain gets furious, veins start bulging in his neck and he turns red with anger. He becomes a fiery red ball of fury that lashes out, assaulting and attacking whatever is in his path, from fellow US Senators, to NASA Administrators to his own wife. Jackson Browne is no shrinking violet though; he is ready for McCain’s angry rednecked fury. McCain has a condescending and boorish habit of calling people "My friend". Let me clue you in, Jackson isn’t the rednecked McCain’s friend.

Last week, the FBI selectively leaked the news that Bruce Ivins had taken personal leave on September 17, 2001; they seemed to be arguing that Ivins had taken leave to drive to Princeton, all in time to return for an appointment that evening.

A partial log of Ivins’s work hours shows that he worked late in the lab on the evening of Sunday, Sept. 16, signing out at 9:52 p.m. after two hours and 15 minutes. The next morning, the sources said, he showed up as usual but stayed only briefly before taking leave hours. Authorities assume that he drove to Princeton immediately after that, dropping the letters in a mailbox on a well-traveled street across from the university campus.

But then some DFH bloggers pointed out that that theory was impossible.

It would not be possible for Ivins to have mailed the anthrax. According to my calculations above, the window during which Ivins could have put the letter in the mailbox on September 17 was from 10:25 to 1:35. But here’s what the FBI itself says about the window in which the letter was mailed:

The investigation examined Dr. Ivins’s laboratory activity immediately before and after the window of opportunity for the mailing of the Post and Brokaw letters to New York which began at 5:00 p.m. Monday, September 17,2001 and ended at noon on Tuesday, September 18, 2001. [my emphasis]

In other words, had he mailed the anthrax when they’re arguing he did, the letter would have been picked up at the 5:00 PM pick-up (if not an earlier one–often boxes have a mid-day pick-up as well), and post-marked on September 17, not on September 18.

So, after their operative theory couldn’t even withstand the scrutiny of the DFHs in the world, they revised their theory.

Meanwhile, government sources offered more detail about Ivins’s movements on a critical day in the case: when letters were dropped into the postal box on Princeton’s Nassau Street, across the street from the university campus.

Investigators now believe that Ivins waited until evening to make the drive to Princeton on Sept. 17, 2001. He showed up at work that day and stayed briefly, then took several hours of administrative leave from the lab, according to partial work logs. Based on information from receipts and interviews, authorities say Ivins filled up his car’s gas tank, attended a meeting outside of the office in the late afternoon, and returned to the lab for a few minutes that evening before moving off the radar screen and presumably driving overnight to Princeton. The letters were postmarked Sept. 18.

Notice this time they’re not going to tell us what time Ivins went back to the lab, perhaps because they want their theory to hold up through the weekend. If it was late at night, it would introduce the same problems of timing, as presumably Ivins was back at the office at 7:30 AM the next morning, as per usual. And there’s one more critical detail: Ivins did not enter Suite B3 when he returned to the office that night. As the original search warrant attachment laid out,

The investigation examined Dr. Ivins’s laboratory activity immediately before and after the window of opportunity for the mailing of the Post and Brokaw letters to New York which began at 5:00 p.m. Monday, September 17,200 1 and ended at noon on Tuesday, September 18, 2001. Beginning on Friday, September 14, Dr. Ivins worked the following three consecutive evening shifts prior to the mailings with time spent in Suite B3:

Friday, September 14, 8:54 p.m. to 12:22 a.m., 2 hours 15 minutes

Saturday, September 15, 8:05 p.m. to 11:59 p.m., 2 hours 15 minutes

Sunday, September 16, 6:38 p.m. to 9:52 p.m., 2 hours 15 minutes

After September 16, Dr. Ivins did not enter Suite B3 in the evening again until September 25. [my emphasis]

As I understand it, the attachment considers anything after 4:45 to be evening work, and we know that Ivins was in an appointment at that point, so his brief return to the office must have been an evening visit. This does not, by itself, doom their new theory. After all, Ivins was caught that December cleaning his office space, not B3, so it’s possible he just stored the anthrax outside of B3 after he cultured it, if in fact he did culture it. But that would raise the question of why the anthrax didn’t show up in sampling of his office, and how and where it was stored during the day of September 17 when Ivins was not in his office.

The WaPo also notes that the hair samples in the mailbox don’t match Ivins’ hair.

Federal investigators probing the deadly 2001 anthrax attacks recovered samples of human hair from a mailbox in Princeton, N.J., but the strands did not match the lead suspect in the case, according to sources briefed on the probe.

I actually don’t think that’s a big deal–there’s no reason to believe that the culprit necessarily left hair samples on the envelopes and that no one else did, particularly since it took ten months to actually find and sample the mailbox in question.

I’m most amused by the way they find evidence, claim it’s significant, then discard it entirely once their theory falls apart. Just last week, the fact that Ivins had taken leave for the entire day before the anthrax was mailed was another smoking gun, proof that he had done the deed. But now that we DFHs have proved he couldn’t have been mailing the anthrax at that time, then that piece of evidence is discarded entirely. It seems they don’t want to entertain the possibility he was doing something else–perhaps meeting with someone, but not driving to Princeton. Similarly, lie detector tests were critical, until they discovered their main culprit passed his.

In other words, they’re still making it up as they go along, and they still don’t have a solid case that Ivins was the sole culprit.

In May of last year, I questioned whether, after Monica Goodling won immunity, we’d get anything from giving her immunity.

And as today’s article explains, in that role she has done a number of things that clearly violate federal employment practices. She has denied promotions to people who appear to be Democrats, has asked partisan questions in interviews for career positions, and she asked one nice Republican if he had ever cheated on his wife.

We’re about to excuse Monica all of these actions–actions which span six years of efforts to politicize DOJ–and in so doing, ensure that the IG investigation into these activities may expose further illegalities, but no actionable way to hold Goodling accountable for them. And what are going to get in exchange? What higher up is she going to deliver us, with her immunized testimony?

And in August of last year, I pointed out that all of the people who had politicized our government had resigned from the Administration–and therefore given the Administration immunity for having turned our government into an instrument of the Republican party.

by The Washington Post, enlisting political appointees at every level of government in a permanent campaign that was an integral part of his strategy to establish Republican electoral dominance.

[snip]

Investigators, however, said the scale of Rove’s effort is far broader than previously revealed; they say that Rove’s team gave more than 100 such briefings during the seven years of the Bush administration. The political sessions touched nearly all of the Cabinet departments and a handful of smaller agencies that often had major roles in providing grants, such as the White House office of drug policy and the State Department’s Agency for International Development.

Well, so what? What are you going to do about it?

See, for the most part, we’re talking about civil Hatch Act violations. And the punishment for civil Hatch Act violations? To be fired from your job. Shall we review the names of those most involved in leading this process?

• Karl Rove
• Sara Taylor
• Scott Jennings
• Barry Jackson
• Ken Mehlman
• Susan Ralston

Rove, Taylor, Mehlman, and Ralston are gone, and Jackson is rumored to be leaving. Add in Monica Goodling, who only admitted to her massive Hatch Act violations after she resigned. So how are you going to hold the White House responsible for its massive Hatch Act violations, if the people involved have already mooted the only punishment available?

Today, Michael Mukasey announced no one would be charged for having politicized DOJ’s hiring process, not even Monica Goodling.

Former Justice Department officials will not face prosecution for letting improper political considerations drive hirings of prosecutors, immigration judges and other career government lawyers, Attorney General Michael Mukasey said Tuesday.

Mukasey used his sharpest words yet to criticize the senior leaders who took part in or failed to stop illegal hiring practices during the tenure of his predecessor, Alberto Gonzales.

But, he told delegates to the American Bar Association annual meeting, "not every wrong, or even every violation of the law, is a crime. In this instance, the two joint reports found only violations of the civil service laws."

Understand: Mukasey has turned into a terrible shill for the Administration. But it has been clear for over a year that the Administration would escape criminal charges for having committed massive violations of the Hatch Act. But that has more to do with the Hatch Act than with Michael Mukasey. Even a Democratic AG would have a hard time charging this stuff, given the stated penalties for civil Hatch Act violations.

The Hatch Act gives citizens no real recourse for the politicization of our government. And the loyal Bushies know this. After all, by all appearances, they’re still committing Hatch Act violations.

"Have you no sense of decency, … at long last? Have you left no sense of decency?" These prophetic words were spoken on June 9, 1954 by Joseph Welch, attorney for the United States Army, at the nadir of the shameful McCarthy hearings. It was a time of scurrilous persecution of all numbers and types of fellow humans, based mostly on sheer rumor, innuendo and manufactured evidence. The acts of a United States Government drenched in it’s own fears, drunk of it’s own hubris and looking for political scapegoats.

The result was an everlasting shame carried by a generation of Americans. To this day, the methods and tactics of the red baiting McCarthy investigators, and the hell they wrought on the ostracized and disavantaged targets, not to mention the devastation to their families, is taught to our children as a seminal lesson of the dark, malignant growth that can consume the American ethos when fear, ambition, unitary power and political malevolence intersect unchecked and unbalanced in the halls of power in Washington DC. It is a tragic intersection that seeks a target of convenience and finds it.

And so we advance fifty years to find our dark history repeating itself in the Amerithrax case. Once again we find a unified and unchecked power in the government fueled by, and fueling, fear and trolling for a target of convenience to scapegoat. This is now incontrovertible.

Sunday’s New York Times has an extended article, by William Broad and Scott Shane, on the hell that our Government hath wrought upon it’s citizenry in the Amerithrax investigation. It is chilling.

But along the way, scores of [individuals] — terrorists, foreigners, academic researchers, biowarfare specialists and an elite group of Army scientists working behind high fences and barbed wire — drew the interest of the investigators. For some of them the cost was high: lost jobs, canceled visas, broken marriages, frayed friendships.
…
The bureau began looking at biodefense insiders like Mr. Mikesell, an anthrax specialist who had worked in the 1980s and 1990s with Dr. Ivins at the Army Medical Research Institute of Infectious Diseases at Fort Detrick, in Frederick. He had then joined Battelle, a military contractor in Columbus, Ohio, that became deeply involved in secret federal research on biological weapons.

In 2002, Mr. Mikesell came under F.B.I. scrutiny, officials familiar with the case said. He began drinking heavily — a fifth of hard liquor a day toward the end, a family member said.

“It was a shock that all of a sudden he’s a raging alcoholic,” recalled the relative, who spoke on the condition of anonymity because of family sensitivities.

By late October 2002, Mr. Mikesell, 54, was dead, his short obituary in The Columbus Dispatch making no mention of his work with anthrax or the investigation.
…
Another casualty was Kenneth M. Berry, an emergency room physician with a strong interest in bioterrorism threats. In August 2004, agents raided his colonial-style home and his former apartment in Wellsville, a village in western New York, as well as his parents’ beach house on the Jersey Shore.

In scenes replayed for days on local television stations, the authorities cordoned off streets as agents in protective suits emerged from the dwellings with computers and bags of papers, mail and books.

“He was devastated,” Dr. Berry’s lawyer at the time, Clifford E. Lazzaro, said in an interview. “They destroyed his marriage and destroyed him professionally for a time.”

The government has unequivocally admitted that it wrongfully targeted an individual, Steven Hatfill, for a period of six years with little to no basis in fact or evidence to do so. The result of that "most complex criminal case in bureau [FBI] history", and dedicated certainty by the Bush Department of Justice for six years, has been a lawsuit brought by Hatfill, a settlement with Hatfill, humiliation of the DOJ and, finally, a complete exoneration of Hatfill.

It is pretty clear that Hatfill would, in spite of all the evidence, still be the target of this persecution had he not fought back doggedly with every ounce of his being. The government relentlessly tried to get his civil case dismissed and to hide the ball. As with another infamous case of Bush Administration subterfuge, if not for the honesty and spine for justice on the part of Judge Reggie Walton, Hatfill would still be impaled on the tip of the government’s spear. But Hatfill was an unwilling dupe, and once he was lost as the solution the government claimed, and Congress and victims were rightfully wondering what exactly the government had accomplished, another sacrificial lamb was needed; this time a more unstable one and more susceptible to allegation. And this is true whether Ivins is guilty or not; either way, he is the new object on the government’s spear.

To the everlasting shame of the United States Government, Bruce Ivins is dead; maybe from his own devices, and maybe not. Either way, however, Ivins is dead as a result of a sick game being run on him by the government in the conduct of the Amerithrax investigation, and his death is the direct result of their malevolence. The government says it has been focused on Ivins since 2006. Notably, during almost the entire time period since then, the government publicly maintained it’s now admittedly baseless position that Hatfill was responsible. When the gig was finally up on Hatfill, here is what the government did to Ivins, and as in the red-baiting persecutions of half a century ago, his family:

In the current case, Ivins complained privately that FBI agents had offered his son, Andy, $2.5 million, plus “the sports car of his choice” late last year if he would turn over evidence implicating his father in the anthrax attacks, according to a former U.S. scientist who described himself as a friend of Ivins.

Ivins also said the FBI confronted Ivins’ daughter, Amanda, with photographs of victims of the anthrax attacks and told her, “This is what your father did,” according to the scientist, who spoke only on condition of anonymity because their conversation was confidential.

The scientist said Ivins was angered by the FBI’s alleged actions, which he said included following [and allegedly confronting] Ivins’ family on shopping trips.

Guilty or innocent, the government drove Ivins, a man they knew and considered mentally unstable, to suicide.

Dr. Byrne, who did not know of Dr. Ivins’s history of deep psychological problems that was disclosed by federal officials last week, said he could see signs of the growing stress Dr. Ivins was under as the investigation seemed to focus on him. One day, in March 2008, he showed up for a Sunday church service with a black eye.

“The F.B.I. been roughing you up?” Dr. Byrne recalled joking.

Last month, Dr. Ivins told an Army colleague that his experience of F.B.I. pressure was similar to what Mr. Mikesell went through.

“Perry drank himself to death,” the colleague recalled Dr. Ivins as saying some two weeks before he killed himself.

That is at best; assuming Mr. Ivins really did commit suicide. Since the government conveniently refused to perform a full autopsy, we will never know the myriad of clues and evidence on whether it really was a suicide. Having hounded and stalked Mr. Ivins to death, by whatever the means, the government seized the immediate, and I mean immediate, opportunity to dump the entire culpability for it’s entire pathetic Amerithrax investigation on him. How convenient.

We have spent the last week taking the government’s "rock solid" case apart at the seams. The dissection has been remarkably effective. That does not necessarily mean that Bruce Ivins did not commit, or participate in the commission, of the Amerithrax crimes, but it sure does mean that the government’s case is so full of holes that Swiss cheese looks like the Rock of Gibraltar in comparison. With each passing day, the case falls further apart. (See: here, here, here, here, here, here, here, here, here, here, and here.) It is already getting perilously close to the level of strength (read: weakness) of the case against Steven Hatfill, for which, again, millions of dollars and a complete exoneration were just handed out. The malicious actions of the United States government, as administered by Bush and Cheney, has turned this investigation, as they have so much else, into a craven and deadly game. A game in which some very well known actors, a lot higher up in the government than Bruce Ivins, have a far greater motive.

The Ivins family, and the public as a whole, deserve answers to the questions of how and why Bruce Ivins is dead and the investigation a septic dishonest mess. The Ivins family should follow the lead of Mr. Hatfill, for both themselves and the country, and demand the answers in a court of law. Thanks to the hideous actions of Nancy Grace, there is precedence for this very action for wrongful death, even from alleged suicide, of a suspect in a crime.

There are people with far better motive, and a lot better opportunity, for the commission of the Amerithrax crime. Instead of a competent and honest investigation, we have been spoon fed a disingenuous game by the Administration that has torn the lives and families of numerous innocent people apart. Some are dead as a direct result. Now we are told the game is over, in the face of all credulity. I wonder why that is. Has the United States government no sense of decency? Let’s hope the Ivins family, Congress, and a competent special prosecutor will help us all find out at long last.

According to the WaPo, Bruce Ivins took personal leave time on September 17, 2001, which, the FBI argues, is when he would have driven to Princeton to mail the anthrax.

Meanwhile, bits of fresh information continued to come out. A partial log of Ivins’s work hours shows that he worked late in the lab on the evening of Sunday, Sept. 16, signing out at 9:52 p.m. after two hours and 15 minutes. The next morning, the sources said, he showed up as usual but stayed only briefly before taking leave hours. Authorities assume that he drove to Princeton immediately after that, dropping the letters in a mailbox on a well-traveled street across from the university campus. Ivins would have had to have left quickly to return for an appointment in the early evening, about 4 or 5 p.m.

Ivins normally got to work early–around 7:30 AM. Assuming his brief stay was half an hour (are they suggesting he went in and picked up the anthrax? and if so, did anyone ask why he’d do so during daytime hours?), he would have had eight hours to drive to Princeton and back. That’s certainly doable–Google says the drive takes 3 hours and 25 minutes. Who knows whether Ivins sped much in his 1993 Honda Civic (in 2001, he also had a 1996 Dodge van; he did not yet have his 2002 Saturn). But even if he went faster than Google says he should have (he would have been driving on I-95, after all, which pretty much requires speeding), he almost certainly would have hit rush hour traffic at least once in his drive, if not twice.

In other words, Ivins could have made the drive, but just barely.

All of which ought to raise the stakes on the FBI’s really dubious explanation for why Ivins purportedly mailed the anthrax in Princeton. After all, there are Kappa Kappa Gamma chapters at George Washington in DC, at Johns Hopkins in Baltimore, and Washington and Lee in Lexington, VA–all much closer to Ft. Detrick than Princeton. So what’s the explanation for driving to Princeton (twice), when Ivins could have associated the anthrax mailing with KKG which much less effort if he had mailed it from any of a number of other schools.

And then there’s this bit, which really damns the FBI case:

Federal agents did not interview owners of shops on the street where the mailbox is located to place Ivins at the scene, judging that any witness identification would have been inherently unreliable after nearly seven years. Nor did they uncover tollbooth footage or credit card or phone records that would directly link Ivins to the day’s events.

The FBI never asked anyone in Princeton whether or not they had seen Ivins. However, we know that in August 2002, they did ask 200 people in Princeton whether they had seen Steven Hatfill.

…once the government determined the anthrax letters were mailed from Princeton, New Jersey, FBI special agents showed over 200 residents of Princeton only one photograph–a photo of Dr. Hatfill–and asked whether anyone saw him in the area.

[snip]

Immediately after Dr. Hatfill’s [August 11, 2002] public statement, in an effort to obtain any evidence adverse to Dr. Hatfill with public relations value, however unreliable and inadmissible in court, federal investigators began showing a single photo of Dr. Hatfill to residents of Princeton, New Jersey in the hope that someone would place him at he scene of the anthrax mailings. The presentation of a single photo instead of an array of photos, in dereliction of FBI protocol is so unfairly suggestive–particularly during a week in which Dr. Hatfill appeared on television and in newspapers around the nation and during the same week Newsweek published a two-page spread featuring several photos of Dr. Hatfill–that no criminal investigator could rightfully believe it to have a proper law enforcement function.

So after having asked 200 people if they had seen Hatfill, they ask no one if they had seen Ivins. I understand that Ivins didn’t become a suspect until much longer after the mailing in question. But if Ivins really had an obsession with this particular KKG chapter, rather than the ones in DC or Baltimore or Lexington, VA, perhaps he might have returned to the scene of the crime.

But the FBI didn’t check, I guess because they don’t want to subject their fragile explanation for how or whether Ivins was ever in Princeton to any scrutiny.

And this is the utterly convincing evidence (not!) that the FBI has offered to explain their certainty that, rather than leaving work and handing off the anthrax to someone whose handwriting matched the envelopes, Ivins risked missing his afternoon appointment to mail the anthrax from close to a KKG chapter that was nowhere near the most convenient to his office.

Update: Hold on. It would not be possible for Ivins to have mailed the anthrax. According to my calculations above, the window during which Ivins could have put the letter in the mailbox on September 17 was from 10:25 to 1:35. But here’s what the FBI itself says about the window in which the letter was mailed:

The investigation examined Dr. Ivins’s laboratory activity immediately before and after the window of opportunity for the mailing of the Post and Brokaw letters to New York which began at 5:00 p.m. Monday, September 17,2001 and ended at noon on Tuesday, September 18, 2001. [my emphasis]

In other words, had he mailed the anthrax when they’re arguing he did, the letter would have been picked up at the 5:00 PM pick-up (if not an earlier one–often boxes have a mid-day pick-up as well), and post-marked on September 17, not on September 18. [Note, suffragette and I were thinking along the same lines.]

Update: fixed the title per skdadl.

Check out this WSJ article chronicling Bruce Ivins’ reactions to the anthrax investigation as it moved forward (h/t Hmmm). The article notes that many of his actions might be natural responses to the attack itself–or they might be efforts to cover up his own involvement in the attack.

Most interesting, though, is confirmation of a detail alluded to by Ivins’ lawyer, but never confirmed. Ivins took–and apparently passed–a lie detector test just after the attack. The FBI never asked him to take a second one, not even when they were having other scientists do so.

That winter, the FBI asked Dr. Ivins to take his first and only lie-detector test, according to a law-enforcement official. The polygraph was part of the bureau’s vetting of investigators. The FBI hasn’t released the results. Dr. Ivins retained his role in the investigation.

[snip]

By this time [spring 2002], all of the scientists in the bacteriology division were under the FBI’s investigative microscope, people working there at the time said. One after another, they submitted to a 3½-hour polygraph test. Dr. Ivins "was in the safety zone" because he had already passed his polygraph, Dr. Andrews said. Dr. Ivins was never tested again, a law-enforcement official said.

I understand lie detector tests can be really unreliable and some people can game them. But we’re talking about a guy who, even by his own admission, was an emotional basket case. No wonder the FBI didn’t mention the lie detector test when it applied for search warrants on Ivins, nor did it mention the test in its press conference the other day. Either the apparent results of his test refute their claim he was emotionally unstable, or they suggest he wasn’t the culprit.

Chuck Grassley has asked the FBI for details on any lie detector tests Ivins submitted to.

Was Dr. Ivins ever polygraphed in the course of the investigation? If so, please provide the dates and results of the exam(s). If not, please explain why not.

It’ll be interesting to see how the FBI gets around the fact that the polygraph seems to poke a pretty big hole in their case against Ivins.