This Is Huge

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A White House document dump has provided new revelations about the U.S. Attorney purge. And the biggest revelation — although not a surprising one — is that the idea to fire U.S. Attorneys and replace them with politically compliant toadies originated in the White House.

I’m piecing together two news stories, one by David Johnston and Eric Lipton in today’s New York Times, and the other by Dan Eggen and John Solomon in today’s Washington Post. The story thus far:

In early 2005, White House legal counsel Harriet Miers asked D. Kyle Sampson, a justice department official, if it would be feasible to fire and replace all 93 U.S. attorneys. It appears the White House was unhappy with the attorneys because Republicans were alleging widespread voter fraud on the part of Democrats, and the attorneys were unwilling to bring indictments against the Democrats, most probably because the allegations were a fantasy. (Josh Marshall provides an archive of his posts on the voter fraud allegations going back to 2001.)

However, as Johnston and Lipton note, the documentation isn’t clear if the voter fraud issue was the real or only reason.

The documents did not provide a clear motive for the firings. Some suggested that department officials were dissatisfied with specific prosecutors, but none cited aggressive public corruption inquiries or failure to pursue voter fraud cases as an explicit reason to remove them.

As has been widely noted in the recent past, the pattern suggests that the White House and the Republican Party generally have been using the Justice Department as part of their election campaign process. In other words, Karl and Co. have been turning our criminal justice system into a Republican Party machine.

Sampson — who resigned yesterday, btw — replied to Miers that filling that many jobs at once would be too big a job. (The Washington Post reports that Attorney General Alberto Gonzales said the same thing at the time.) Instead, Miers and Sampson began working together on a select list of attorneys to replace. As they did this, Karl Rove and other White House officials helpfully relayed the complaints they were getting from Republican officials about the attorneys’ failure to indict Democrats on voter fraud.

Eggen and Solomon, WaPo (emphasis added):

The e-mails [between Miers and Sampson] show that Rove was interested in the appointment of a former aide, Tim Griffin, as an Arkansas prosecutor. Sampson wrote in one that “getting him appointed was important to Harriet, Karl, etc.”

Sampson sent an e-mail to Miers in March 2005 that ranked all 93 U.S. attorneys. Strong performers “exhibited loyalty” to the administration; low performers were “weak U.S. attorneys who have been ineffectual managers and prosecutors, chafed against Administration initiatives, etc.” A third group merited no opinion.

In January 2006, Sampson sent a first list of attorneys to be fired to the White House. Four of the attorneys who would be fired were on this list: Chiara, Cummins, Lam and Ryan (the final list is here). This list also suggested Tim Griffin be one of the replacements.

Eggen and Solomon, WaPo:

In September, Sampson produced another list of firing candidates, telling the White House that Cummins was “in the process of being pushed out” and providing the names of eight others whom “we should consider pushing out.” Five on that list were fired in December; the others were spared. …

… Sampson also strongly urged bypassing Congress in naming replacements, using a little-known power slipped into the renewal of the USA Patriot Act in March 2006 that allows the attorney general to name interim replacements without Senate confirmation.

“I am only in favor of executing on a plan to push some USAs out if we really are ready and willing to put in the time necessary to select candidates and get them appointed,” Sampson wrote in a Sept. 17 memo to Miers. “It will be counterproductive to DOJ operations if we push USAs out and then don’t have replacements ready to roll immediately.

“I strongly recommend that as a matter of administration, we utilize the new statutory provisions that authorize the AG to make USA appointments,” he wrote.

By avoiding Senate confirmation, Sampson added, “we can give far less deference to home state senators and thereby get 1.) our preferred person appointed and 2.) do it far faster and more efficiently at less political costs to the White House.”

[Update: See also Think Progress.]

Note that the Patriot Act provision came into being in March 2006, about a year after Miers and Sampson began work on their list. Coincidence? Not a chance.

Notice this little detail, from Eggen and Solomon:

Iglesias, the New Mexico prosecutor, was not on that list. Justice officials said Sampson added him in October, based in part on complaints from Sen. Pete V. Domenici and other New Mexico Republicans that he was not prosecuting enough voter-fraud cases.

You may remember that in October 2006 — shortly before the elections — Domenici had called U.S. attorney David Iglesias and asked him about the status of an investigation into a Democratic state senator. Domenici also spoke to President Bush. Then Bush spoke to Gonzales “to pass along concerns by Republicans that some prosecutors were not aggressively addressing voter fraud,” Johnston and Lipton write. Thus Iglesias was added to the purge list, even though he had received a “strong performer” rating from Miers and Sampson in the earlier stages of their list-making.

A White House spokeswoman insisted that the President did not call for the removal of any specific attorney. Nor did he know that Miers, Sampson, and Rove had been drawing up a list already. (Bush never seems to know anything that’s going on under his nose, does he? I find it hard to believe that Bush didn’t at least mention Iglesias to Sampson.)

A few weeks after the conversation between Bush and Gonzales, the Justice Department forced out seven prosecutors.

Johnston and Lipton, NY Times:

On Dec. 4, 2006, three days before the dismissals, Mr. Sampson sent an e-mail message to the White House with a copy to Ms. Miers outlining plans to carry out the firings

“We would like to execute this on Thursday, Dec. 7,” Mr. Sampson wrote. Because some United States attorneys were still in Washington attending a conference, he planned to postpone telling them they were being fired. He wrote, “We want to wait until they are back home and dispersed to reduce chatter.”

Eggen and Solomon, WaPo:

On the day of the Dec. 7 firings, Miers’s deputy, William Kelley, wrote that Domenici’s chief of staff “is happy as a clam” about Iglesias.

A week later, Sampson wrote: “Domenici is going to send over names tomorrow (not even waiting for Iglesias’s body to cool).”

Domenici is so busted.

E-mails show that Justice officials discussed bypassing the two Democratic senators in Arkansas, who normally would have had input into the appointment, as early as last August. By mid-December, Sampson was suggesting that Gonzales exercise his newfound appointment authority to put Griffin in place until the end of Bush’s term.

Griffin’s appointment and his connection to Karl Rove was reported in Arkansas newspapers in mid-December. This was one of our first clues that something screwy was going on regarding the U.S. attorneys.

Miers resigned as White House counsel less than three weeks later, in early January.

As for D. Kyle Sampson, in a sidebar story the New York Times reports that he had been using his post as chief of staff to the attorney general to get named U.S. attorney in Utah, his home state, even though he had never worked as a full-time prosecutor. The White House and Justice Department backed Sampson, but Senator Orrin Hatch wanted Brett Tolman, “a one-time Utah federal prosecutor who had spent the previous three years working on antiterrorism issues for the Judiciary Committee staff.”

This suggests to me that Orrin Hatch has known about some of these shenanigans for some time. But let’s go on …

This put Mr. Sampson in an unusual position. As Mr. Gonzales’s chief of staff, he was fielding calls and letters from Mr. Hatch’s office, even though he was vying for the job that Mr. Hatch was writing about, two former officials from Mr. Hatch’s office said. That made at least some Senate officials uncomfortable.

“It was a little like the fox watching the hen house,” said one former Senate staff member, who asked not to be named because he now works in a different job.

Mr. Sampson did not respond to phone calls seeking comment.

Mr. Hatch finally made a personal appeal to Mr. Gonzales to drop his bid to nominate Mr. Sampson. After a four-month delay, President Bush nominated Mr. Sampson’s rival for the job last June.

Sampson — did I mention he resigned yesterday? — is a religious conservative (a Mormon) who “told the Brigham Young University news service that he admired Mr. Bush because the president recognized that politics and religious beliefs could not be separated.” Apparently Mr. Sampson’s religious beliefs didn’t teach him anything about ethics.

This really is huge. The “underlying crime” in the Watergate scandal was the White House’s illegal activities — such as money laundering and breaking into Dem Party offices to look for something incriminating — to ensure Nixon’s re-election in 1972. Now there is mounting evidence that the Bush White House and other Republican officials have been trying to use the entire federal criminal justice system to win elections for Republicans. I say this has Watergate beat all to hell. So far we know thatGonzales has lied to Congress about the reasons for purging the attorneys, and certainly more juicy bits will be revealed as time goes on.

Yesterday Sen. Charles Schumer (D-NY) said he intends to subpoena Karl Rove if he doesn’t testify to Congress voluntarily. Stay tuned.

Last Refuge of a Soundrel

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“Patriotism is the last refuge of a scoundrel,” Samuel Johnson said. Maybe ’twas true then, but we’ve stooped a bit lower since. When all else fails, blame incompetence.

At least, that’s what the Wall Street Journal is doing. Check out this editorial about the FBI’s improper use of national security letters:

Just when President Bush seemed to have beaten back the Congressional defeatists on Iraq, along comes his own Justice Department to undermine some hard-won antiterror policy gains. The incompetence at Justice is getting to be expensive for Presidential power.

Remember, WSJ still believes President Bush has a glorious strategy for victory in Iraq. So for them to have gone from denial to excuses in such a short time is something of a miracle.

It’s true that the Justice Department’s internal investigation on the national security letter issue blamed human error and shoddy record keeping for most of the unauthorized wiretapping. But this tells me that the people at the top — Attorney General Alberto Gonzales and FBI Director Robert Mueller — have been winking at nodding at gross violations of citizens’ 4th Amendment rights. If these two had made it clear that all surveillance would be conducted lawfully, you can bet there’d have been a whole lot less human error and shoddy record keeping.

Dem Senator Chuck Schumer has called on Alberto Gonzales to resign. Republican Senator Lindsay Graham accused Schumer of interjecting “a little politics here.” I guess some righties are still in denial. I also infer that it’s unseemly for a Senator to speak up on a serious lapse if the lapser is a member of the other party. But if Republicans would take responsibility for their problem children, the Dems wouldn’t have to speak up. But Republicans, in effect, let the kids run all over the restaurant screaming and tripping the waiters and stealing food off plates, and when, finally, some adult says stop that, you little brat, the GOP gets all indignant about it.

(On a related note, see the Carpetbagger — “It’s become a fairly common refrain, hasn’t it? The right does something offensive, the left gets mad when there are no consequences, time elapses, and the right, annoyed by lingering resentment, tells the left to ‘get over it.’”)

Meanwhile, the U.S. attorney purge continues to get attention. What we know so far is that some of the U.S. attorneys were fired after Republican officials in their districts complained to Karl Rove— the bleeping White House political director — about the attorneys’ performance.


Paul Krugman wrote today,

Sources told Newsweek that the list of prosecutors to be fired was drawn up by Mr. Gonzales’s chief of staff, “with input from the White House.” And Allen Weh, the chairman of the New Mexico Republican Party, told McClatchy News that he twice sought Karl Rove’s help — the first time via a liaison, the second time in person — in getting David Iglesias, the state’s U.S. attorney, fired for failing to indict Democrats. “He’s gone,” he claims Mr. Rove said.

After that story hit the wires, Mr. Weh claimed that his conversation with Mr. Rove took place after the decision to fire Mr. Iglesias had already been taken. Even if that’s true, Mr. Rove should have told Mr. Weh that political interference in matters of justice is out of bounds; Mr. Weh’s account of what he said sounds instead like the swaggering of a two-bit thug.

As Digby writes,

The minute I read that the Arkansas replacement was one of Rove’s little minions and that Iglesias had been pressured before the election to indict a Democrat, it was clear that this was Rove deal all around.

The Dems want to question Rove ao I suspect we are going to see some executive privilege claims start flying. Rove seems to have developed a bad case of SMS (Scooter Memory Syndrome) in which he can’t remember a damned thing whenever it becomes clear that he was playing politics in the lowest most obvious way possible. In his case, once the investigations start, the disease will render him braindead so he probably won’t be much use to anyone from this point forward.

And have I mentioned in the last few hours that we are paying this asshat’s salary?

See also Ron at Middle Earth Journal.

Update: Jack Cafferty calls Alberto Gonzales a “weasel.”

Supporting the Troops!

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The Talking Dog interviews James Yee! You might remember that Yee was the Muslim Chaplain at the Guantanamo Bay detention camp. While on leave Captain Yee was arrested and accused of espionage and spying, charges which carried the death penalty. He was then placed in solitary confinement in the Naval Brig in Charleston, South Carolina, under conditions resembling those in which Guantanamo detainees were kept, for 76 days. As the case against Yee fell apart, the military instead added criminal charges of adultery and having pornography on his computer, charges that were also eventually dropped. Captain Yee left the Army with an honorable discharge and service commendations.

Lindsay Beyerstein interviews Nina Berman, who took this iconic photograph of an Iraq vet and his bride.

Mark Benjamin reports that injured soldiers are being sent back to Iraq.

As the military scrambles to pour more soldiers into Iraq, a unit of the Army’s 3rd Infantry Division at Fort Benning, Ga., is deploying troops with serious injuries and other medical problems, including GIs who doctors have said are medically unfit for battle. Some are too injured to wear their body armor, according to medical records.

Feel free to snark about how Bush supports the troops in the comments.

Pure Faith

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Following up the last post — Robert Kagan has a column in today’s Washington Post claiming that “the surge” is succeeding. Glenn Greenwald asks the sensible question, “Why would any rational person listen to Robert Kagan?” Glenn reminds of of several things Kagan has declared to be true in the past that, um, weren’t. See also No More Mr. Nice Blog.

Naturally, the usual Kool–Aiders uncritically embrace everything Kagan wrote.

In the last post I talked about “idealists” in Washington cooking up impractical policies for Iraq. Here we see a variation on the same phenomenon — Kagan’s writing from his home — I believe he lives in Brussels — and he knows the surge is working. How? He reads the blog Iraq the Model. He also mentions a report by NBC’s Brian Williams.

At least 42 people were killed by suicide bombers in Iraq today, but who’s counting? Kagan doesn’t mention bombs in his op ed. The new counterinsurgency strategy is having a significant effect, Kagan says. Of course, if 42 Americans were killed by suicide bombers in U.S. cities, Kagan would think it among the greatest atrocities ever to befall mankind. Not to mention reason to start two or three more wars.

The New Aristocrats

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Rajiv Chandrasekaran in today’s Washington Post writes that agencies in the Bush Administration and the U.S. embassy in Baghdad are not playing well with each other.

Instead of collaborating, agencies have often found themselves split by the gulf between idealistic officials in Washington, some of whom have never been to Iraq, and embassy staffers whose ambition to promote change has been attenuated by the violence and dysfunction they witness every day.

The disagreements often center on arcane subjects — such as tariff policy or the rehabilitation of state-owned enterprises — but the impact can be profound, according to people on both sides of the fights. Embassy staffers said they have wasted countless hours squabbling with Washington instead of focusing on more urgent initiatives to stabilize Iraq. In one incident, as the bickering between Commerce and State intensified, the embassy blocked a team of Commerce officials from entering the country.

Most of the article discusses an Iraqi food distribution program that the idealists in Washington want eliminated.

Some background: Last year at a Camp David meeting, President Bush requested that the departments of agriculture, commerce and energy get more involved in Iraq. Commerce Secretary Carlos M. Gutierrez then asked his staff to draw up a list of Iraq-related projects. Two months later, Commerce sent its list to Baghdad and waited for the embassy to shower them with gratitude.

Instead, the document, “Secretary Gutierrez’s Five Priority Areas for Economic Reform in Iraq,” set off a bureaucratic grenade in Baghdad’s Green Zone. The second item on the list called for the United States to pressure Iraq’s government to cease providing people with monthly food rations, which more than half of Iraq’s population relies on for sustenance.

Embassy officials were incensed. Although the embassy’s economists favored changes to the ration system, they believed that dismantling it as Commerce was proposing could spark riots that might topple the Iraqi government.

“Commerce was stunningly naive,” said a senior State Department official involved in Iraq policy. “They were way out of their lane.”

Part of the problem seems to come from what one means by “help.” When the State Department and the Baghdad embassy say they want help, they seem to mean they want more people and resources. But the Washington idealists think that “helping” in Iraq means thinking up better policies and telling the Baghdad crew what to do.

Some at Commerce regard embassy staffers and their bosses at the State Department as ungrateful and unwilling to embrace others’ ideas — even as Secretary of State Condoleezza Rice pleads with other federal agencies to send more people to Iraq. “We were willing to help, as the president asked us to do, but the State Department feels that it has control of the situation,” said a senior Commerce official involved in the food-ration policy.

Officials at State contend that they do want other federal departments to assist in Iraq, but they said they are less interested in policies that are developed by those agencies in Washington and imposed on Baghdad.

“The problem stems from this view at the White House that the whole Cabinet has to be involved,” the senior State Department official said.

The result, an embassy official with direct knowledge of the food-ration debate said, is that “there are too many cooks in the kitchen.”

The ration program has been going on since sanctions were imposed on Iraq after the Gulf War. In 2003, when L. Paul Bremer’s Coalition Provisional Authority was running Iraq, Bremer wanted to dismantle the program because it interfered with the CPA’s plans to promote capitalism. (Bremer, you might recall, is the same genius who dismantled the Iraqi Army.) The U.S. military objected, saying that there was enough social unrest going on as it was.

Then last year the Commerce Department delivered its list of nifty policy ideas to the Baghdad embassy, touching off months of squabbling. Then Susan Hamrock, the director of Commerce’s Iraq task force, and one of her subordinates, Stephen L. Green, asked the embassy for permission to visit Baghdad. Hamrock wanted to bypass the Embassy and talk directly to the Iraqi minister responsible for the food distribution system. The Embassy refused to give Hamrock and Green clearance to visit the Green Zone. Then Hamrock found out the minister would be attending a conference in Brussels.

Hamrock and Green flew to Brussels to see the Iraqis. According to Hamrock’s written summary of the meeting, they discussed changes in the ration system.

Since then, the Commerce official said, Hamrock and other Commerce officials have continued to discuss the ration system with Iraqi officials over the phone and by e-mail.

The minister and other Iraqi officials “fully support our efforts,” the Commerce official said.

The trade minister, Abdul Falah al-Sudani, could not be reached for a comment.

However, it seems that in Iraq, “full support” may not mean full support, exactly. So far, the only reform the Iraqis have been willing to make is to exclude senior government officials from receiving rations.

Commerce isn’t giving up. Hamrock’s boss, Franklin L. Lavin, the undersecretary for international trade, wants “free-market solutions” for the food problem.

Last month, Lavin traveled to Iraq to meet with trade ministry officials. His PowerPoint presentation included an exhortation to revise the ration system by providing handouts only to the needy.

The Iraqi officials present nodded in agreement. But that is about all they have done, embassy officials said.

“No Iraqi politician wants to get rid of free food. It’s political suicide. They’re not going to do it,” said a former embassy official who worked on ration-related issues. “These grand schemes are irrelevant. I can’t tell you how many hundreds of hours everyone has wasted on this issue, when there were all sorts of more productive things they could have been doing with their time.”

What is it with Bushies and Powerpoint presentations? Anyway, I thought this bit was illuminating [emphasis added] —

Commerce was not the embassy economic section’s only concern when it came to rations. Last fall, the embassy’s Joint Strategic Planning and Assessment Office, headed by a Rand Corp. analyst on contract with the embassy, created its own plan to restructure the ration system. It was even more aggressive than Commerce’s. It called for eliminating the rations in 38 weeks …

… The officers convened a working group composed of representatives from the economic section, the planning office, the U.S. Agency for International Development, the U.S. military command and the State Department’s Iraq Reconstruction and Management Office. No Iraqis were invited, according to the two embassy officials.

We keep saying we want Iraqis to take charge of their own country, and then we go right ahead and impose our solutions to their problems.

Over the course of several meetings last fall, the participants who were not from the strategic planning office chipped away at the 38-week proposal. They eventually reached a compromise: The ration system would cease by the end of 2008 — in more than 100 weeks.

To the embassy’s economists, saying they wanted to kill the program in two years was an elaborate ploy, the embassy officials said. It would get them on the record as favoring major changes, but the timeframe almost certainly meant it would not happen. “Things in Iraq change every six months,” the first embassy official said. “If you say you plan to do something in two years, it means you’ll never do it.”

There are other programs that the embassy and the agencies are fighting over, and I’m not certain the agencies don’t have a point about some of these programs. But after all that’s happened (and gone wrong), the unflappable hubris of the Bush Administration continues to amaze me. They remind me of Old World aristocrats — the ones in movies, anyway — inbred, vain, spoiled, and privileged. Movie aristocrats are arrogant fops who get shown up by the plain spoken American hero, who (unlike the fops) is skilled and experienced and smart. Now I wonder how many Bush Administration officials it takes to screw in a light bulb. Oh, wait, they have maids for that. Never mind.

Bush’s Consigliere

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Great editorial in today’s New York Times:

During the hearing on his nomination as attorney general, Alberto Gonzales said he understood the difference between the job he held — President Bush’s in-house lawyer — and the job he wanted, which was to represent all Americans as their chief law enforcement officer and a key defender of the Constitution. Two years later, it is obvious Mr. Gonzales does not have a clue about the difference.

He has never stopped being consigliere to Mr. Bush’s imperial presidency. If anyone, outside Mr. Bush’s rapidly shrinking circle of enablers, still had doubts about that, the events of last week should have erased them.

Be sure to read the whole thing. And speaking of abuse of power — Margaret Talev and Marisa Taylor write for McClatchy Newspapers —

Presidential advisor Karl Rove and at least one other member of the White House political team were urged by the New Mexico Republican party chairman to fire the state’s U.S. attorney because of dissatisfaction in part with his failure to indict Democrats in a voter fraud investigation in the battleground election state.

In an interview Saturday with McClatchy Newspapers, Allen Weh, the party chairman, said he complained in 2005 about then-U.S. Attorney David Iglesias to a White House liaison who worked for Rove and asked that he be removed. Weh said he followed up with Rove personally in late 2006 during a visit to the White House.

“Is anything ever going to happen to that guy?” Weh said he asked Rove at a White House holiday event that month.

“He’s gone,” Rove said, according to Weh.

“I probably said something close to ‘Hallelujah,'” said Weh.

If Gonzales is Tom Hagen, is Rove Pete Clemenza? Or Luca Brasi?

Things Fall Apart

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For some reason I’m on a mailing list called “Conservative News.” I have requested a couple of times to be taken off the list, but somebody keeps signing me up again. Anyway, today, “Conservative News” is announcing “The Conservative Exodus Project.”

I am copying and pasting this from the Exodus web page. Make of it what you will.

The Pledge

We, the undersigned, petition the Republican Party to support real conservative candidates for the 2008 presidential nomination.

In the belief that the Republican Party has become too liberal, we pledge, unless a suitable candidate is selected for the GOP 2008 presidential nomination, to stay home or vote third party (e.g. Constitution Party).

Returning to its liberal roots, the GOP has recently become the party of big business, neoliberal globalism, and unwise interventionism – not the party of conservatism.

The following presidential candidates are UNACCEPTABLE: John McCain, Rudolph Giuliani, Mitt Romney, Newt Gingrich, Sam Brownback, Mike Huckabee, Chuck Hagel, Condoleezza Rice, et al. They all support the third-world invasion of the United States.

Unless a candidate is chosen who is tough on immigration (e.g. Ron Paul, Tom Tancredo, Duncan Hunter, or another candidate yet to announce), we shall have no choice but to vote third party.

We would like to stress these five points.

(1) We oppose the third-world invasion of the United States, and reject amnesty and any path to citizenship for illegals. We support deportation, attrition, and massive reductions in legal immigration, especially from the third world.

(2) We oppose free trade, the support of which has become an ideological suicide pact. Free trade is both destroying our economy and undermining our sovereignty. Historically, conservatives have opposed free trade, and they should, but many in the GOP have been “neoconned” on this issue.

(3) We support a moral candidate, critical of secularism, who embodies the virtues of the Christian Western tradition.

(4) We oppose the illegal neocon war in Iraq. The transformation of the Middle East to liberal democracy is Jacobin, not conservative.

(5) We wish to see big government reduced in size – in all three branches – and for many offices and functions to be returned to the states, where they Constitutionally belong.

Unless the above criteria are met, we pledge to stay home or vote third-party in 2008.

Point #4 is especially fascinating — “The transformation of the Middle East to liberal democracy is Jacobin, not conservative.” “Conservative News” needn’t worry; the Middle East is more likely to be transformed into an Islamic theocracy than anything else.

Granted, “Conservative News” may be one old curmudgeon and not a mighty hoard. But this isn’t too far away from the stuff Richard Viguerie has been cranking out lately.

BTW, the elephant art is from a 1911 Puck cover. The fellow in the top hat in the background is President Taft. In 1912 Republicans renominated Taft, after which Theodore Roosevelt cut his ties to the GOP and became the Progressive Party nominee for President. This split Republican votes and enabled the election of the Democrat, Woodrow Wilson.

To Arms

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I wrote yesterday, in a mostly flip way, about the appeals court decision that struck down a DC gun control law. David Nakamura and Robert Barnes write for the Washington Post:

The panel from the U.S. Court of Appeals for the D.C. Circuit became the nation’s first federal appeals court to overturn a gun-control law by declaring that the Second Amendment grants a person the right to possess firearms. One other circuit shares that viewpoint on individual rights, but others across the country say the protection that the Second Amendment offers relates to states being able to maintain a militia. Legal experts said the conflict could lead to the first Supreme Court review of the issue in nearly 70 years.

Some time back I researched the history of the individual rights v. collective rights arguments. I don’t have my research findings any more (that was about four computers ago), but I do remember that the bulk of historical documentation and scholarship weighed in on the “individual” side. Yes, the wording of the clause is ambiguous. But if you put the writing of the amendment in a historical context, it seems the amendment was intended to protect an individual right to own firearms so that the federal government could not deprive states of their militias. (Under the Militia Act of 1792, every citizen enrolled in the militia must own and maintain his own firearm.)

As I said, I don’t have the research notes any more and I don’t have time to re-research the question. I do remember that a lot of early American documents and case law seemed to assume the right was individual, not collective.

The District’s law bars all handguns unless they were registered before 1976; it was passed that year to try to curb gun violence, but it has come under attack during the past three decades in Congress and in the courts. Yesterday’s ruling guts key parts of the law but does not address provisions that effectively bar private citizens from carrying guns outside the home. ….

…The suit said the ban on handgun ownership violates the Second Amendment, which states: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

U.S. District Judge Emmet G. Sullivan dismissed the suit a year later, saying the amendment was tailored to membership in a militia, which he defined as an organized military body.

The case moved to the appellate court, with the National Rifle Association siding with the pro-gun faction, while the Brady Center to Prevent Gun Violence joined the District. Reflecting the case’s national importance, various state governments lined up on each side.

In the majority opinion, Silberman wrote that federal and state courts have been divided about the extent of protections covered by the Second Amendment. Some have sided with the District’s position, that a militia means just that. Others have ruled that the amendment is broader, covering the individual rights of people who own guns for hunting or self-defense.

The Supreme Court addressed the Second Amendment in 1939, but it did not hold that the right to bear arms meant specifically that a person could do so.

Yesterday’s majority opinion said that the District has a right to regulate and require the registration of firearms but not to ban them in homes. The ruling also struck down a section of the D.C. law that required owners of registered guns, including shotguns, to disassemble them or use trigger locks, saying that would render the weapons useless.

If this case does go to the Supreme Court, I suspect the SCOTUS will either decline to take it or uphold the appeals court decision.

One of the things “everybody knows” about liberals is that they are opposed to gun ownership. But this perception comes from NRA fundraising letters (the liberals are going to take away your guns!) not reality. For years this has been a great wedge issue for the GOP.

It turns out I wrote about the DC gun ban in September 2004. And in that I linked to this Harold Meyerson column —

Election Day approaches, which means it is time for House Republicans to run fully amok. Today, the House will take up a bill by Indiana Republican Mark Souder to lift the gun controls in the District of Columbia. Souder’s bill legalizes ownership of semiautomatic weapons and armor-piercing ammunition. How this would increase security around the White House and the Capitol is something that Souder and Co. have neglected to explain, but no matter. The House Republican leadership knows the bill won’t pass the Senate. The only reason it was even introduced was to force House Democrats — a number of whom represent gun-loving districts — to vote on this nonsense.

In other words, to vote against possession of armor-piercing ammunition near the White House makes one a “gun grabber.” The appeals court decision deprives the wingnuts of one of their talking points.

So far I’ve found no opposition to the decision on the Left Blogosphere. If the righties were hoping we liberals would be up in arms, so to speak, about this decision, I suspect they are disappointed. Ron Chusid writes:

In reviewing the reaction in the blogosphere it is clear, as anticipated, that intensity of support for the right to own guns is greater on the right. While this is a lower priority on the left, the sentiment is also with the rights of the individual. Even where bloggers have not commented it is noteworthy that there is no outrage over the court’s decision as would be expected if restriction of gun ownership was really a goal of liberals.

Ron links to several liberal bloggers who agree with the decision. These include Taylor Marsh, Matt Yglesias, Jeralyn Merritt, and (naturally) the Gun-Toting Liberal.

Personally, I agree with what Jeralyn Merritt wrote here:

Being for the Second Amendment doesn’t mean defense lawyers are not liberals. It means they won’t give up any constitutional right, even ones they may not exercise personally. Give ’em an inch and…..besides, the Second Amendment is only one away from the Fourth.

In other words, there’s to be no cherry picking of the Bill of Rights. If one amendment is expendable, they all are.

Constitutional Capers

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David Johnston and Eric Lipton write for the New York Times,

The Justice Department’s inspector general has prepared a scathing report criticizing how the F.B.I. uses a form of administrative subpoena to obtain thousands of telephone, business and financial records without prior judicial approval.

The report, expected to be issued on Friday, says that the bureau lacks sufficient controls to make sure the subpoenas, which do not require a judge’s prior approval, are properly issued and that it does not follow even some of the rules it does have.

Under the USA Patriot Act, the bureau each year has issued more than 20,000 of the national security letters, as the demands for information are known. The report is said to conclude that the program lacks effective management, monitoring and reporting procedures, officials who have been briefed on its contents said.

Details of the report emerged on Thursday as Attorney General Alberto R. Gonzales and other officials struggled to tamp down a Congressional uproar over another issue, the ousters of eight United States attorneys.

For the best analysis of what the FBI has been doing, you must read Glenn Greenwald.

Several Republicans have expressed disapproval of Gonzales and his, um, cavalier reading of the Constitution in recent days, Johnston and Lipton write. But other Republicans have separate constitutional issues.

For example, Congressman John Shadegg has introduced an Enumerated Powers Act. As I understand it, this act would require that every bill passed by Congress cite the specific part of the Constitution that gives Congress authority to do the thing it wants to do in the bill.

Which leads me to a vital question — what part of the Constitution gives Congress the authority to require that every bill passed by Congress cite the specific part of the Constitution that gives Congress authority to do the thing it wants to do in the bill? Hmmm?

If Congress took this seriously and made it retroactive it would mean the end of the Center for Disease Control (nothing about controlling disease in the Constitution), not to mention paper money. Although I’m all in favor of the government sticking to enumerated powers (especially war powers), if they were to start getting anally literal about it, the federal government would be rendered effectively inoperative. We’d have an 18th-century government in the 21st century. And the terrorists will have won. Or something. I suggest Shadegg’s bill amounts to a can of worms. On the other hand, if the President were to have to play by the same rules … let me think about that …

Meanwhile, although the Right Blogosphere has had little to say about the FBI’s unconstitutional abuse of power, they’re gleeful about an appeals court decision that struck down a District of Columbia gun control law. Eugene Volokh seems to think this decision, which upholds an individual rather than a collective right to keep and bear arms, will impact the 2008 elections somehow.

I doubt it. The Democrats have pretty much conceded gun control, especially as it pertains to an individual’s right to keep a firearm in his house, which is (I believe) what the DC law was about. The only gun control laws anyone seems to care about — and even then, not much — are the sort of laws that might prevent a schizophrenic Islamofascist with a felony record from buying a truckload of assault weapons at a gun show without having to submit to a background check. And even that seems like small potatoes compared to what the FBI is doing.