Civil Liberties

A Glimpse Into Government

What those Justice Department emails really reveal.

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Of all the reasons to be outraged at Alberto Gonzales' Justice Department, it's typical that it was the firing of a handful of U.S. attorneys that finally motivated Congress to perform its proper oversight function. The charge is that Gonzalez and Chief of Staff Kyle Sampson fired the attorneys for overtly political reasons, such as San Diego U.S. Attorney Carol Lam's prosecution of GOP Rep. Randy "Duke" Cunningham, or Seattle U.S. Attorney John McKay's refusal to launch a voter fraud investigation that may have overturned a Democratic victory in the 2004 governor's race in Washington State.

I've written in the past that the White House's official explanation for the firings of the attorneys – a disagreement over priorities – is actually more disturbing than what the White House is actually being accused of, which is basically abusing the office for partisan purposes, because of what this administration's priorities actually are (foolish pursuits of vicitmless crimes like obscenity cases, Internet gambling, and the mass investigation of people who sell marijuana pipes over the Internet).

In addition to its misplaced priorities, this Justice Department has endured allegations of illegal spying and wiretapping, abuse of national security letters, neglecting federalism in its enforcement of drug and death penalty policies, attempting to suspend habeas corpus for terrorism suspects, and all-around contempt for the Constitution. It's sad, but not terribly surprising, that it would take accusations of excessive partisanship – that is, unfairly using the office to gain a political advantage over the Democrats – to spur the Democrats in Congress to take any meaningful action. Trample on the rights of U.S. citizens, and the Democrats largely look the other way – can't be seen as soft on crime, or on national security. But trample on the political prospects of Democrats, and the subpoenas fly.

The one useful thing to come of all of this is the small modicum of transparency that occurred almost by accident when the Justice Department responded to Congressional information requests by releasing thousands of emails related to the firings. The emails reveal some disturbing truths about the inner workings of this Justice Department, and in so doing show not only the vital importance of transparency in government, but just how much the unprecedented secrecy of the current administration conceals from the public.

Consider the case of just one fired attorney: Arizona prosecutor Paul Charlton. Charlton was terminated despite having the backing of Arizona GOP Sen. John Kyl, and that he led the nation in total prosecutions last year. Charlton brought 9,500 immigration prosecutions alone, a four-fold increase over four years ago. One Justice Department official recently dismissed Charlton's haughty numbers as the fortunate result of his jurisdiction being near the U.S.-Mexico border, where easy drug and immigration cases abound.

The emails indicate that Charlton frequently butted heads with higher-ups in DOJ over priorities and procedures. The emails show a comparatively cautious, careful prosecutor who, despite his gaudy record, seemed concerned with the actual administration of justice and the proper role of a federal prosecutor, not just in goosing his statistics. The emails also show that his critics at DOJ seemed to have little patience for such petty nuances.

Charlton, for example, was criticized in emails between senior-level Justice Department officials because he refused to take low- or mid-level marijuana cases, preferring to conserve his resources for major distributors. One email cited complaints from then-Speaker Rep. Dennis Hastert (R-Ill) about Charlton's refusal to prosecute marijuana cases involving less than 500 pounds of the drug. Of course, you needn't be an ardent drug war critic to feel that federal resources are better spent going after major suppliers instead of propping up statistics with low level prosecutions.

The porn industry publication Adult Video News and the Nation's Max Blumenthal revealed last week that Charlton also came under fire from federal "Porn Czar" Brent Ward for his reluctance to take on federal obscenity cases. But the case in question had a curious twist. The government wanted to charge a porn distributor for shipping obscene movies across state lines. The problem is, another Arizona distributor just a few miles a way was selling several of the same movie titles. The second distributor had recently declared bankruptcy, and was being run by trustees for the federal government to fill its federal tax obligations.

The discrepancy understandably gave Charlton pause: How could he prosecute a company for violating federal obscenity laws when another company was making money for the federal government selling the same titles? The conflict didn't seem to faze the Justice Department. Charlton's hesitation sparked a letter of complaint from Brent Ward to Kyle Sampson. In an office where the attorney general had declared fighting obscenity a "top priority," a complaint from Gonzalez's hand-picked "Porn Czar" undoubtedly carried heft.

Salon's Glenn Greenwald uncovered an even more disturbing revelation to come out of Charlton's firing. The emails reveal that Charlton was concerned with some of the techniques FBI agents were using to interrogate suspects. In Charlton's view, the government was losing cases because the FBI refuses to videotape its agents' questioning of suspects. Suspicious juries were dismissing cases where the only record of a disputed confession came from the notes of the FBI agents present during the questioning. Charlton suggested all federal law enforcement agencies begin recording their questioning of suspects.

One senior-level DOJ official called Charlton's proposal "thoughtful" and ticked off a list of reasons why it ought to be implemented (tellingly, none of those reasons included actually preventing abusive interrogation techniques, it argued only in terms of the effectiveness of interrogations, and how they're perceived by juries).

Predictably, federal law enforcement agencies wanted no part of the proposal. Their corresponding emails provide a candid, revealing, and disturbing look at how federal officials can rationalize away disclosure and transparency.

Some interrogation techniques "may be unsettling" for jurors in video or audio form, wrote the BATF, and therefore shouldn't be recorded. Perfectly "acceptable" techniques may not "come across to lay persons as a proper means of obtaining information," wrote the FBI, and recording those techniques could sway a jury—to which an unknown official added the handwritten annotation: "So we want to hide the truth? Don't [sic] want jury to reach its own judgment?"

Apparently not. The Justice Department ultimately sided with the law enforcement agencies, noting that it's best to hide "unsettling" interrogation techniques from juries, even when it was those techniques that extracted the confession.

As Greenwald explains, this is particularly disturbing, because interrogation techniques would only come up in those cases in which a defendant's confession was in dispute. And in those cases, the agents would almost certainly already be asked about their techniques at trial. The very purpose of a video, then, would be to determine who's telling the truth.

The difference between recording v. no recording is not whether the conduct of federal agents will be an issue in a trial. The difference is whether there will be an accurate or inaccurate record of what these law enforcement agents are doing to extract statements and obtain confessions.

So here we have several disturbing revelations pertaining to the way the Justice Department operates. And all were revealed via a series of emails pertaining to just one U.S attorney by way of an unrelated scandal. We see from this one example that a federal prosecutor's attempts to make just a few recommendations on good government and proper procedures with respect to the way federal crimes are prosecuted were shunted aside as unnecessary hurdles to more charges, more convictions, and more sentences. That's worth knowing. And it makes you wonder what else we'd discover were this administration not so hell-bent on keeping everything it possibly can hidden from public scrutiny.

As unseemly and overtly political as the U.S. attorney scandal may be, then, the one thing it has done—perhaps by accident—is demonstrate the importance of transparency in government.

Radley Balko is a senior editor of reason.

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