In Praise of a Prosecutor

In Praise of a Prosecutor
What makes a bad prosecutor? It’s simple: Does the prosecutor’s longing for the public limelight, his aspirations for public office, come to overwhelm his dedication to justice, to simply doing the right thing? It’s said that a famous chief prosecutor from Dallas, Henry Wade, summed up the thinking that goes into a really bad prosecutor like this: “any prosecutor could convict a guilty man, but… it takes a real pro to convict an innocent man.”

Each year Bob Bennett, a former federal prosecutor who now heads his own litigation firm in Houston, Texas, publishes an invaluable list of the “ten worst prosecutors in the United States.” In the era of Bush, the competition to make the list has grown fierce. Last year, Bennett’s list was a sort of Bush-justice rogues gallery, starting with the world’s worst prosecutor, the disgraced (but still not indicted) former Attorney General Alberto Gonzales. It’s worth a read.

The Bush Administration has been a breeding grounds for this kind of abuse, stoking and rewarding it. But it’s worth remembering that there are honorable, dedicated, professional prosecutors at work, even in the Bush team—men like David Iglesias and David McKay, and women like Carol Lam. (They were all fired, of course.) And today’s Wall Street Journal brings an account of another prosecutor worthy of the name: Dallas County District Attorney Craig Watkins. And if there’s one trait that Watkins brings to the job, it’s a dedication to justice and a determination to right the injustices of the long line of legendarily bad prosecutors who went before him–including Henry Wade.

Should Bush Be Prosecuted for His Crimes

Post-partisan harmony vs. the rule of law
A Washington Post article today on the need to restore confidence in the Justice Department quotes former high-level Clinton DOJ official Robert Litt urging the new Obama administration to avoid any investigations or prosecutions of Bush lawbreaking:

Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).

"It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," Litt said. "It would really spend a lot of the bipartisan capital Obama managed to build up."

There is a coherent way to argue against investigations and prosecutions of actions by Bush officials: one could argue that they weren't illegal. Obviously, if one believes that, then that is conclusive on the question.

But that's not what Litt is arguing here. Instead, his belief is that Bush officials should be protected from DOJ proceedings even if they committed crimes. And his reason for that is as petty and vapid as it is corrupt: namely, it is more important to have post-partisan harmony in our political class than it is to hold Presidents and other high officials accountable when they break the law.

How is this anything other than a full-scale exemption issued to political leaders to break our laws? There's nothing unique about circumstances now. New Presidents are always going to have Very Important Things to do. And investigations and prosecutions of past administration officials are always going to be politically divisive. By definition, investigations of past criminality are going to be "distractions" from the Important Work that political leaders must attend to. They're always going to be what Litt perversely refers to as "old battles." To argue that new administrations should refrain from investigating crimes that were committed by past administrations due to the need to avoid partisan division is to announce that the rule of law does not apply to our highest political leaders. It's just as simple as that.

This brazen defense of lawlessness articulated by Litt is now as close to a unanimous, bipartisan consensus across the political establishment as it gets. This is what has been advocated by everyone from David Broder to top Obama adviser Cass Sunstein. There are few things more difficult than finding someone of prominence in the establishment that disagrees with this view. Our political class has decided that high political officials -- particularly the President and those closest to him -- are literally exempt from the rule of law.

In today's New York Times, Charlie Savage identifies the self-serving motive leading new Presidents to continuously uphold this lawbreaking license for their predecessors:

Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor’s tenure. Mr. Bush used executive privilege for the first time in 2001, to block a subpoena by Congressional Republicans investigating the Clinton administration.

In other words, by letting criminal bygones be bygones within the Executive branch (Ford's pardon of Nixon, the Iran-contra crimes, and now Bush lawbreaking), Presidents maintain their gentleman's agreement that they are free to commit crimes in office -- break our laws -- with total impunity.

Nobody believes that "policy differences" should be criminalized. That's a strawman -- an obfuscating term -- erected by those who are defending presidential lawbreaking license without having the intellectual honesty to admit they're doing that. This is about having laws in place that clearly and explicitly say that "X shall be a felony," only to then watch as the President does X, and thereafter have our political establishment announce that it's more important to avoid partisan anger than it is to hold high political officials accountable under the rule of law.

Here, X = "eavesdropping on Americans with no warrants," and "torturing detainees," and "destroying evidence relating to investigations," and "interfering in criminal prosecutions for political purposes." Those are crimes -- felonies -- in every sense of the word, not policy differences. And they are all actions in which Bush officials have clearly engaged.

Raped in the Military? You'll Have to Pay for Your Own Forensic Exam Kit

Raped in the Military? You'll Have to Pay for Your Own Forensic Exam Kit
But allow me to introduce the large pink elephant that has been sitting quietly in the corner of the room: TRICARE, the Pentagon's Military Health System that covers active duty members, doesn't pay for rape kits, either.

Spec. Patricia McCann, who served in Iraq with the Illinois Army National Guard from 2003 to 2004, raised the issue at the Winter Soldier Investigation in March. McCann read a memo issued to all MEDCOM commanders clarifying that "SAD kits" -- which are forensic rape kits -- "are not included in TRICARE coverage." *

That would put Alaska and the military in a very special category.

Women in the military are twice as likely to be raped as their civilian counterparts. In fact, "women serving in the U.S. military today are more likely to be raped by a fellow soldier than killed by enemy fire in Iraq," Congresswoman Jane Harman, D-Calif., told the House Subcommittee on National Security and Foreign Affairs in May.

Harman said, "The scope of the problem was brought into acute focus for me during a visit to the West Los Angeles VA Health Center where I met female veterans and their doctors. My jaw dropped when the doctors told me that 41 percent of the female veterans seen there say they were victims of sexual assault while serving in the military, and 29 percent said they were raped during their military service."

In July, a House Oversight and Government Reform subcommittee hearing subpoenaed Kaye Whitley, director of the Pentagon's Sexual Assault Prevention and Response Office (SAPRO), to explain what the department is doing to stop the escalating sexual violence in the military. Her boss, Secretary of Defense Robert M. Gates, ordered her not to appear.

Whitley was finally made available to the committee on Sept. 10, but only after having been threatened with a contempt citation.

Whitley first informed the committee that the DoD was conducting a "crusade against sexual assault."

She then sought to reassure the committee with an accounting of all the heroic measures the Pentagon is planning to implement in the very near future.

But finally, she had to admit that in 2007 there were 2,688 sexual assaults in the military, including 1,259 reports of rape. Just 8 percent (181) of those cases were referred to courts martial, compared to a civilian prosecution rate of 40 percent. And almost half of those cases were dismissed without investigation. (And I say Whitley "had to admit" the number of cases because in 2004, Congress woke up to the fact that the DoD was blowing off the issue and required the military to make yearly reports on all matters relating to sexual assault in the Armed Forces. But those reports did not indicate either prioritizing or progress -- hence the hearings.)

Obama Eyes Consumer Activists for Agency Posts

Obama Eyes Consumer Activists for Agency Posts
The Food and Drug Administration (FDA), the Environmental Protection Agency (EPA), and other government agencies that affect consumers, are likely to look very different under President Obama than they do under President Bush.

With the priority on economic posts, no consumer agency heads have yet been announced, though that hasn't stopped Washington from engaging in its favorite pastime, speculating on who's up and who's down.

At EPA, Robert F. Kennedy Jr. appears to have the inside track to head the agency. The Washington Post quotes sources familiar with the process as saying Kennedy is a strong candidate, through several other prominent environmentalists are also in the running.

Kennedy, son of the late Sen. Robert F. Kennedy, currently chairs a water quality group and serves as an attorney for the Natural Resources Defense Council.

If it turns out not to be Kennedy, the sources tell the Post that former Sierra Club president and environmental activist Lisa Renstrom is under consideration, as is California Air Resources Board chair Mary Nichols. Pennsylvania Department of Environmental Protection Secretary Kathleen McGinty and Massachusetts Energy and Environmental Affairs Secretary Ian Bowles also reportedly have a shot at landing the post.

Most of the speculation centers on a Commissioner for the U.S. Food and Drug Administration, a frequent target of critics from both sides of the aisle during the Bush Administration. Both Republicans and Democrats complained that the agency seemed to be a bit too cozy with the industries it regulated. It went four of Bush's eight years with only an acting Commissioner.

Among the names surfacing this week for FDA Commissioner in the Obama Administration are Dr. Steven Nissen, a cardiologist at Cleveland Clinic and an outspoken consumer advocate; Susan Wood, a former director of the FDA's women's health office; and public health advocates such as Dr. Joshua Sharfstein, Baltimore's chief health officer.

"The FDA's going to have to re-earn the trust of the public," said Dr. Sidney Wolfe, director for the consumer group Public Citizen's Health Research Group.

In addition to a strong commissioner, Wolfe and others would like to see the FDA receive more resources and power. Late last year an unlikely alliance that included the Consumer Federation of America and Center for Science in the Public Interest, as well as the Grocery Manufacturers Association and the Food Marketing Institute, publicly supported efforts by Congressional Democrats to beef up the FDA's FY2009 budget.

The media took it easy on McCain

Media continue to uncritically report McCain campaign attacks on their coverage, but case studies still show disparate coverage in McCain's favor
A Media Matters review of the media's coverage of two stories negatively affecting or reflecting on Sen. Barack Obama -- his ties to Bill Ayers and Antoin Rezko -- and two stories negatively affecting or reflecting on Sen. John McCain -- his reported facilitation of land deals that benefited donors and his association with G. Gordon Liddy -- found that, while the five major newspapers frequently mentioned Obama's ties to Ayers and Rezko throughout the 2008 election cycle, they rarely mentioned McCain's reported facilitation of land deals that benefited donors, and they almost completely ignored McCain's association with Liddy. In addition, the three evening network news broadcasts mentioned Obama's ties to Ayers and Rezko several times, but never reported on McCain's reported facilitation of land deals that benefited donors or his association with Liddy. This despite the fact that the media continued to uncritically report complaints by the McCain campaign that they favored his opponent in their coverage of the presidential race.

A Farewell to Dubya All-Time Loser in Presidential History

A Farewell to Dubya All-Time Loser in Presidential History
"Forgotten but not gone" was the way in which the supremo of Boston politics, Billy Bulger, liked to dismiss the human irritants he had crushed beneath his trim boot. The same could now be said for the hapless 43rd President of the United States as the daylight draws mercifully in on his reign of misfortune and calamity. How is he bearing up, one wonders, as the candidate from his own party treats him as the carrier of some sort of infectious political disease? How telling was it that the most impassioned moment in John McCain's performance in the final debate was when he declared: "I am not George Bush."

Where, O where are you, Dubya, as the action passes you by like a jet skirting dirty weather? Are you roaming the lonely corridors of the White House in search of a friendly shoulder around which to clap your affable arm? Are you sweating it out on the treadmill, hurt and confused as to why the man everyone wanted to have a beer (or Coke) with, who swept to re-election four years ago, has been downgraded to all-time loser in presidential history, stuck there in the bush leagues along with the likes of James Buchanan and Warren Harding? Or are you whacking brush in Crawford, where the locals now make a point of telling visitors that George W never really was from hereabouts anyroad.

Whatever else his legacy, the man who called himself "the decider" has left some gripping history. The last eight years have been so rich in epic imperial hubris that it would take a reborn Gibbon to do justice to the fall. It should be said right away that amid the landscape of smoking craters there are one or two sprigs of decency that have been planted: record amounts of financial help given to Aids-blighted countries of Africa; immigration reform that would have offered an amnesty to illegals and given them a secure path to citizenship, had not those efforts hit the reef of intransigence in Bush's own party. And no one can argue with the fact that since 9/11 the United States has not been attacked on its home territory by jihadi terrorists; though whether or not that security is more illusory than real is, to put it mildly, open to debate.

Bet against that there is the matter of hundreds of thousands of Iraqi civilian casualties, more than 4,000 American troops dead, many times that gravely injured, not to mention the puncture wounds and mutilations inflicted on internationally agreed standards of humane conduct for prisoners - and on the protection of domestic liberties enshrined in the American constitution. If the Statue of Liberty were alive, she would be weeping tears of blood.

If Bush himself has been largely kept out of sight, his baleful legacy has been visible in the McCain campaign. McCain has made much of his credentials for independence of mind, a claim which once was credible given his support for immigration reform and opposition to Bush's tax cuts. But somewhere along the road to the Republican nomination, all of this became less important than the lessons of the Reagan-Bush-Rove political playbook which, with the exception of the Clinton election of 1992, seemed to have a track record of unbroken success.

McCain knew this from bitter personal experience, having been on the receiving end of Bush lowball politics in the South Carolina primary in 2000. Coming out of a convincing win against George Bush in New Hampshire he was stopped in his tracks by a smear campaign conducted through push-poll phone calls in which people were asked whether they knew that the daughter McCain had adopted from Sri Lanka was in fact the illegitimate child of an affair with a woman of colour. Now you would think McCain could never reconcile himself to a politician capable of those kinds of tactics. But there he was in the campaign of 2004, stumping the country for the incumbent, ingratiating himself with the conservative base he knew he would need, even as his old Vietnam buddy, John Kerry, was being coated in slime by the Swift Boaters.

Whatever misgivings McCain might have had about adopting the hardball tactics of his 2000 adversary have long since disappeared before the blandishments of classic Bush-style operatives like Rick Davis and Stephen Schmidt. "Do you want to be pure, or do you want to win"? they must have asked right after the nomination. Ditching Joe Lieberman as a running mate and unleashing pitbull Palin was his answer.

So even while George Bush is kept at arm's length from the campaign, his campaign style lives on as Obama is stigmatised as a terrorist-friendly stealth-socialist, too deeply unAmerican to be let anywhere near the Oval Office. "He just doesn't see America as we do" says Sarah Palin trying to wink her way into Dick Cheney's seat. McCain is betting the house that this way of doing politics has at least one more hurrah left in it, and we will find out on in the early hours of Wednesday morning whether he is right.

The Bush presidency is the spectre haunting the feast in more than tactics. Although every conservative administration since Ronald Reagan has promised to deliver, through supply-side stimulation, economic growth without bloated deficits, they have never been vindicated in their blind faith in what Bush senior once rashly called "voodoo economics". Consistently, they have brought the US Wall Street crashes and recessions along with massive deficits; and yet somehow, the stake that history attempts to drive through the heart of their economic theology never puts the ghoul away.

Sorry Republican Wing-nuts Obama Gets Security Clearance

Obama receiving intel briefings

For some time now - since before the Democratic and Republican conventions - U.S. intelligence officials have been briefing the Democratic and Republican candidates for president on some of the most pressing issues, such as terrorism, that the winner of the Nov. 4 election will confront.

And whoever the winner is will be given the intelligence community's most secret briefing, the one that President Bush receives every morning, beginning on Nov. 5.

Director of National Intelligence Michael McConnell told a public symposium in Nashville on Oct. 30 that the intelligence briefings for Sens. John McCain, R-AZ, and Barack Obama, D-Ill, have been part of an official transition process approved by the Bush administration that has also included briefings for their campaigns.

"What we proposed to the administration is give us the opportunity to tee up intelligence substance to the leading campaigns before the conventions. We came up with 13 topics. If you made a list, you'd probably get 11 or 12 of the 13. It's the normal thing you would expect," he told the gathering sponsored by the U.S. Geospatial Intelligence Foundation, an industry and promotional organization.

"Our proposal beyond campaigns was we would like to brief the candidates at every opportunity at the time and place of their choosing. We have done so," McConnell continued. "Most of the focus has been on terrorism and a few related topical issues."

"The third part of it is once we have a President-elect next Tuesday, we will there for the full PDB (President's Daily Briefing) to include not only intelligence substance but all the background and what we do and how we do it."