Politics At The Department of Justice

   Here comes one for you from Bob Kengle, former Deputy Chief in the Voting Section of the Civil Rights Division at the Department of Justice.

   Mr. Kengle wrote a letter to the readers at Talking Points Memo to discuss why he left the DoJ in 2005. Of course, that would be because of the  politicization of the divisions within the department.

 

Why I Left the Civil Rights Division
Bob Kengle

During our interview I told you that I left my position as a Deputy Chief in the Voting Section of the Civil Rights Division in April 2005 after I reached my "personal breaking point". No doubt many of your readers envisioned a deranged federal office worker running amok in some dark corridor, but I'm afraid the reality was far less colorful, though more distressing. I spent over twenty years in the Civil Rights Division because it is a unique institution with which I identified not because it was perfect, but because it sought to advance a genuine public good above the political fray. I reached my "breaking point" when I concluded that I no longer could make that happen. I have not previously elaborated on my reasons for leaving the Civil Rights Division, but it seems now to be the right time to do so.

In short, I lost faith in the institution as it had become. This was not the result of just one individual, such as Brad Schlozman, although he certainly did his share and then some. Rather, it was the result of an institutional sabotage after which I concluded that as a supervisor I no longer could protect line attorneys from political appointees, keep the litigation I supervised focused on the law and the facts, ensure that attorneys place civil rights enforcement ahead of partisanship, or pursue cases based solely on merit.

1) I no longer could insulate the line attorneys I supervised from the political appointees.

From 2001 on there were repeated occasions on which I discovered after the fact that front office personnel (that is, the political appointees) had directly contacted attorneys I was supervising without first advising me or the section chief. Before this Administration such contacts were extremely rare and generally only occurred under exigent circumstances. This was a serious problem for several reasons. First, the front office personnel lacked the specialized litigation experience needed to successfully litigate voting rights cases at the highest level. Even if such direct contacts were well-intentioned, the political appointees' judgment often was poorly informed. By first discussing a matter with me or the section chief we could ensure that the appointees were aware of the relevant legal, factual, policy and tactical considerations before any directions were given to the line attorneys. What may appear to be a good argument in a particular case may be inconsistent with longstanding positions that in fairness should be adhered to absent a convincing reason to change. States, political subdivisions and public officials (who are the parties against whom the Voting Section generally litigates) have every right to expect the Department to be consistent. Ad hoc arguments are de rigeur for private litigants but the Department must be judged by a higher standard. Direct contacts with the line attorneys undermine these policy considerations.

Worse, such contacts could be less than well-intentioned, often seeming to occur after the front office had obtained some piece of information, or received a question or "helpful suggestion" from Republican officials or attorneys. This was a particular problem in a highprofile redistricting case involving the State of Georgia that we litigated from 2001-2003. I felt that it took every bit of my abilities to prevent the Voting Section from being hijacked in that case by pressure from the Georgia Republican Party. While I believe that with the unwavering support of my section chief Joe Rich I was successful in doing so, by late 2004 I became convinced that we no longer would be able to intercede in the same way.

I also was very concerned that increased interaction between line attorneys and political appointees would result in retaliation against line attorneys who did not toe the line. The Civil Rights Division historically had been structured so that part of my role as a supervisor was to be a buffer against such conflict between political appointees and line attorneys, who could then be evaluated by the quality of their work rather than the extent to which they were "team players" with the Administration. If there was a price for disagreeing with the front office, it was mine to pay – not the attorneys I supervised. In bypassing the section chief and deputy chiefs the front office seriously (and in my view quite deliberately) undermined the institutional safeguards protecting the Section's career staff.

2) I lost confidence that any litigation I supervised would be resolved based upon the merits rather than partisan factors.

Happily, many matters involving the Voting Section do not implicate partisan concerns, and the career staff have managed to bring and win several very good cases in the past two years that appear to have been unaffected by partisanship. My docket, however, tended to include high-profile cases in which such partisan pressures were a repeated diversion, and my personal conclusion by late 2004 was that my judgment and recommendation no longer would be sufficient to keep partisan influences at bay in my cases.

The Voting Section tends to attract attorneys with a strong interest in politics. However, I can say with no hesitation that I never in more than 20 years in the Voting Section made a recommendation based upon the likely partisan outcome, and I expected any attorney I supervised to check such considerations at the door. For example, in the Georgia case to which I referred above the Voting Section was aligned in part with intervenors represented by the top Republican lawyers in the State of Georgia, against the State of Georgia and a state senate redistricting plan passed by its Democrats. The Voting Section argued that the senate plan unnecessarily jeopardized black voters' ability to elect candidates in three districts. At the same time, the Voting Section did not join those intervenors in opposing Democratic Congressional and state house redistricting plans that also were at issue. The difference in those positions was a principled one, as shown by the district court's decision adopting the Department's position (the Supreme Court vacated the district court's decision after deciding to invent a new legal standard, later overturned by Congress when it renewed portions of the Voting Rights Act in 2006). The team that litigated the case included line attorneys who were Democrats and at least one Republican, and while the case was positively swimming in partisan cross-currents, our recommendations were based completely on the law and the facts, not the partisan outcome -- and I never had to say a word to the line attorneys to make that happen; it simply was ingrained (I admit to some pride in attending a hearing in 2006 at which Cong. John Lewis and other colleagues of his stated that the Voting Section's position had been the correct one, so far as black voters' interests were concerned, notwithstanding some statements he previously made that had been used to support the State's position).

But by late 2004, I did not believe that I could ensure that following the law and facts would remain a higher priority than partisan favoritism. This was based partly upon my expectation that the Administration, if returned to office, would feel less constraint against heavy-handed management and biased enforcement than had been the case in the aftermath of the controversial 2000 election. To put it bluntly, before 2004 the desire to politicize the Voting
Section's work was evident, but it was tempered by a recognition that there were limits to doing so. That such constraints diminished over time is evidenced by the well-known and ham-fisted handling of decisions involving Texas' congressional redistricting plan in late 2003 and Georgia's voter ID law in 2005. My concerns also were greatly magnified by the evident intention of the political appointees to replace Joe Rich after the 2004 election with a new section chief who would be a willing "team player".

3) I lost confidence that the hiring process would bring in attorneys who placed civil rights enforcement over partisan considerations.

The takeover of hiring by political appointees has been documented elsewhere, so I don't feel that I need to repeat it. As someone hired during the Reagan Administration under the tenure of William Bradford Reynolds – a controversial period for reasons of ideology – I am reluctant to conclude that new hires should be judged simply by the people who hired them (as an aside, more than a few old hands in the Civil Rights Division now look back on the battles of the Reynolds era as hard-fought but highly professional by comparison to this administration, a real through-the-looking-glass experience).

Recent news, however, suggests that the culture of the Civil Rights Division has changed to one in which partisan advocacy was openly tolerated, if not encouraged, among new hires, at least until it was exposed. Thus, my concerns unfortunately appear to have been realized. It is a menace to the historic credibility of the Civil Rights Division (which I can tell you was a real thing and part of what made being a Division lawyer different), and especially the Voting Section, if its line attorneys come to be viewed by federal courts, by state and local governments and by the general public as just a bunch of Administration flunkies. It is an even greater danger if that is true. I am hopeful that with responsible leadership at the Division level the Section's staff will one day regain its reputation for impartiality. And I am pained by the thought that the reputation of former colleagues who still remain in the Voting Section may suffer in the meantime.

4) Policy decisions to pursue or avoid pursuing certain cases or types of cases.

In a chapter that I co-authored with Joe Rich and former colleague Mark Posner in The Erosion of Rights, released earlier this year and available from the Center for American Progress, we discuss in detail the (public) voting rights enforcement patterns of this Administration. As we discuss, in addition to the notorious Texas and Georgia Section 5 decisions, there are also great concerns about the lack of cases involving discrimination against African-American and American Indian voters, the use of the NVRA (Motor Voter Act) to pursue chimerical suspicions of vote fraud and the use of the Department's imprimatur to serve as an amicus curiae cheerleader for Republican litigants. I won't discuss recommendations that never made the public record but I will say that these also heavily influenced my decision to leave DOJ.

Furthermore, I was outraged by the Administration's very deliberate decision to do nothing to prepare for the reauthorization of Section 5 of the Voting Rights Act, a critical federal protection for minority voters in states with a history of voting discrimination. The Voting Section far and away is the key player in Section 5 enforcement and has unique institutional knowledge. As a private citizen I was able to play a role in the renewal hearings in 2006, but had I remained in the Voting Section I would have been prohibited from developing a record to help Congress make its decisions. By 2004 the political appointees also had become increasingly antagonistic toward many of the professional Section 5 analysts and Section 5 attorney staff in the Voting Section, a campaign that appears to be continuing to worsen as a result of attrition and transfers.

In fairness I have the impression that the general climate in the Civil Rights Division under Assistant Attorney General Wan Kim and other new front office personnel has improved somewhat over its predecessor. But with the bar having been lowered so near the ground I cannot say if that is meaningful.

I am encouraged by the recent resumption of genuine Congressional oversight, and I am grateful for the attention that has been paid to the problems in the Civil Rights Division and the Department generally in recent weeks by you and other journalists. Joe Rich in particular has done a public service in his testimony, something that for such a long-time veteran of the Division is a hard thing to do. I hope that your readers find this informative, and will understand and support a return to a Justice Department that aspires to the impartial administration of our
country's laws.

Tags: Mr. Kengle Department of Justice Republican Congress

Democrats Failing On Iraq

    I've said before that the Democrats need to stop screwing around if they are serious about getting our troops out if Iraq, and just flat-out cut the war funding. This bullshit of passing a war funding bill, which will be veto' d by Bush, and then passing another without withdrawal deadlines, is a waste of time and it is an insult to our troops stationed in Iraq. It is also an insult to those of you who voted the Democrats into the House and Senate.

   Thus far, despite all of the rhetoric from the Democrats and the press, this " war " with the White House is nothing but cover as we will still be letting Bush " stay the course."

    Crossposted from Common Dreams

Published on Monday, April 30, 2007 by TomDispatch.com

Who Will Stop the U.S. Shadow Army in Iraq?
Don’t Look to the Congressional Democrats

by Jeremy Scahill

    The Democratic leadership in Congress is once again gearing up for a great sell-out on the Iraq war. While the wrangling over the $124 billion Iraq supplemental spending bill is being headlined in the media as a “show down” or “war” with the White House, it is hardly that. In plain terms, despite the impassioned sentiments of the anti-war electorate that brought the Democrats to power last November, the Congressional leadership has made clear its intention to keep funding the Iraq occupation, even though Sen. Harry Reid has declared that “this war is lost.”

For months, the Democrats’ “withdrawal” plan has come under fire from opponents of the occupation who say it doesn’t stop the war, doesn’t defund it, and insures that tens of thousands of U.S. troops will remain in Iraq beyond President Bush’s second term. Such concerns were reinforced by Sen. Barack Obama’s recent declaration that the Democrats will not cut off funding for the war, regardless of the President’s policies. “Nobody,” he said, “wants to play chicken with our troops.”

As the New York Times reported, “Lawmakers said they expect that Congress and Mr. Bush would eventually agree on a spending measure without the specific timetable” for (partial) withdrawal, which the White House has said would “guarantee defeat.” In other words, the appearance of a fierce debate this week, Presidential veto and all, has largely been a show with a predictable outcome.

The Shadow War in Iraq

While all of this is troubling, there is another disturbing fact which speaks volumes about the Democrats’ lack of insight into the nature of this unpopular war — and most Americans will know next to nothing about it. Even if the President didn’t veto their legislation, the Democrats’ plan does almost nothing to address the second largest force in Iraq — and it’s not the British military. It’s the estimated 126,000 private military “contractors” who will stay put there as long as Congress continues funding the war.

The 145,000 active duty U.S. forces are nearly matched by occupation personnel that currently come from companies like Blackwater USA and the former Halliburton subsidiary KBR, which enjoy close personal and political ties with the Bush administration. Until Congress reins in these massive corporate forces and the whopping federal funding that goes into their coffers, partially withdrawing U.S. troops may only set the stage for the increased use of private military companies (and their rent-a-guns) which stand to profit from any kind of privatized future “surge” in Iraq.

From the beginning, these contractors have been a major hidden story of the war, almost uncovered in the mainstream media and absolutely central to maintaining the U.S. occupation of Iraq. While many of them perform logistical support activities for American troops, including the sort of laundry, fuel and mail delivery, and food-preparation work that once was performed by soldiers, tens of thousands of them are directly engaged in military and combat activities. According to the Government Accountability Office, there are now some 48,000 employees of private military companies in Iraq. These not-quite G.I. Joes, working for Blackwater and other major U.S. firms, can clear in a month what some active-duty soldiers make in a year. “We got 126,000 contractors over there, some of them making more than the secretary of Defense,” said House Defense Appropriations Subcommittee Chairman John Murtha. “How in the hell do you justify that?”

House Oversight and Government Reform Committee Chairman Rep. Henry Waxman estimates that $4 billion in taxpayer money has so far been spent in Iraq on these armed “security” companies like Blackwater — with tens of billions more going to other war companies like KBR and Fluor for “logistical” support. Rep. Jan Schakowsky of the House Intelligence Committee believes that up to forty cents of every dollar spent on the occupation has gone to war contractors.

With such massive government payouts, there is little incentive for these companies to minimize their footprint in the region and every incentive to look for more opportunities to profit — especially if, sooner or later, the “official” U.S. presence shrinks, giving the public a sense of withdrawal, of a winding down of the war. Even if George W. Bush were to sign the legislation the Democrats have passed, their plan “allows the President the leeway to escalate the use of military security contractors directly on the battlefield,” Erik Leaver of the Institute for Policy Studies points out. It would “allow the President to continue the war using a mercenary army.”

The crucial role of contractors in continuing the occupation was driven home in January when David Petraeus, the general running the President’s “surge” plan in Baghdad, cited private forces as essential to winning the war. In his confirmation hearings in the Senate, he claimed that they fill a gap attributable to insufficient troop levels available to an overstretched military. Along with Bush’s official troop surge, the “tens of thousands of contract security forces,” Petraeus told the Senators, “give me the reason to believe that we can accomplish the mission.” Indeed, Gen. Petraeus admitted that he has, at times, been guarded in Iraq not by the U.S. military, but “secured by contract security.”

Such widespread use of contractors, especially in mission-critical operations, should have raised red flags among lawmakers. After a trip to Iraq last month, Retired Gen. Barry McCaffery observed bluntly, “We are overly dependant on civilian contractors. In extreme danger–they will not fight.” It is, however, the political rather than military uses of these forces that should be cause for the greatest concern.

Contractors have provided the White House with political cover, allowing for a back-door near doubling of U.S. forces in Iraq through the private sector, while masking the full extent of the human costs of the occupation. Although contractor deaths are not effectively tallied, at least 770 contractors have been killed in Iraq and at least another 7,700 injured. These numbers are not included in any official (or media) toll of the war. More significantly, there is absolutely no effective system of oversight or accountability governing contractors and their operations, nor is there any effective law — military or civilian — being applied to their activities. They have not been subjected to military courts martial (despite a recent Congressional attempt to place them under the Uniform Code of Military Justice), nor have they been prosecuted in U.S. civilian courts – and, no matter what their acts in Iraq, they cannot be prosecuted in Iraqi courts. Before Paul Bremer, Bush’s viceroy in Baghdad, left Iraq in 2004 he issued an edict, known as Order 17. It immunized contractors from prosecution in Iraq which, today, is like the wild West, full of roaming Iraqi death squads and scores of unaccountable, heavily-armed mercenaries, ex-military men from around the world, working for the occupation. For the community of contractors in Iraq, immunity and impunity are welded together.

Despite the tens of thousands of contractors passing through Iraq and several well-documented incidents involving alleged contractor abuses, only two individuals have been ever indicted for crimes there. One was charged with stabbing a fellow contractor, while the other pled guilty to the possession of child-pornography images on his computer at Abu Ghraib prison. While dozens of American soldiers have been court-martialed — 64 on murder-related charges — not a single armed contractor has been prosecuted for a crime against an Iraqi. In some cases, where contractors were alleged to have been involved in crimes or deadly incidents, their companies whisked them out of Iraq to safety.

As one armed contractor recently informed the Washington Post, “We were always told, from the very beginning, if for some reason something happened and the Iraqis were trying to prosecute us, they would put you in the back of a car and sneak you out of the country in the middle of the night.” According to another, U.S. contractors in Iraq had their own motto: “What happens here today, stays here today.”

Funding the Mercenary War

“These private contractors are really an arm of the administration and its policies,” argues Rep. Dennis Kucinich, who has called for a withdrawal of all U.S. contractors from Iraq. “They charge whatever they want with impunity. There’s no accountability as to how many people they have, as to what their activities are.”

Until now, this situation has largely been the doing of a Republican-controlled Congress and White House. No longer.

While some Congressional Democrats have publicly expressed grave concerns about the widespread use of these private forces and a handful have called for their withdrawal, the party leadership has done almost nothing to stop, or even curb, the use of mercenary corporations in Iraq. As it stands, the Bush administration and the industry have little to fear from Congress on this score, despite the unseating of the Republican majority.

On two central fronts, accountability and funding, the Democrats’ approach has been severely flawed, playing into the agendas of both the White House and the war contractors. Some Democrats, for instance, are pushing accountability legislation that would actually require more U.S. personnel to deploy to Iraq as part of an FBI Baghdad “Theater Investigative Unit” that would supposedly monitor and investigate contractor conduct. The idea is: FBI investigators would run around Iraq, gather evidence, and interview witnesses, leading to indictments and prosecutions in U.S. civilian courts.

This is a plan almost certain to backfire, if ever instituted. It raises a slew of questions: Who would protect the investigators? How would Iraqi victims be interviewed? How would evidence be gathered amid the chaos and dangers of Iraq? Given that the federal government and the military seem unable — or unwilling — even to count how many contractors are actually in the country, how could their activities possibly be monitored? In light of the recent Bush administration scandal over the eight fired US attorneys, serious questions remain about the integrity of the Justice Department. How could we have any faith that real crimes in Iraq, committed by the employees of immensely well-connected crony corporations like Blackwater and Halliburton, would be investigated adequately?

Apart from the fact that it would be impossible to effectively monitor 126,000 or more private contractors under the best of conditions in the world’s most dangerous war zone, this legislation would give the industry a tremendous PR victory. Once it was passed as the law of the land, the companies could finally claim that a legally accountable structure governed their operations. Yet they would be well aware that such legislation would be nearly impossible to enforce.

Not surprisingly, then, the mercenary trade group with the Orwellian name of the International Peace Operations Association (IPOA) has pushed for just this Democratic-sponsored approach rather than the military court martial system favored by conservative Republican Senator Lindsey Graham. The IPOA called the expansion of the Military Extraterritorial Jurisdiction Act — essentially the Democrats’ oversight plan — “the most cogent approach to ensuring greater contractor accountability in the battle space.” That endorsement alone should be reason enough to pause and reconsider.

Then there is the issue of continued funding for the privatized shadow forces in Iraq. As originally passed in the House, the Democrats’ Iraq plan would have cut only about 15% or $815 million of the supplemental spending earmarked for day-to-day military operations “to reflect savings attributable to efficiencies and management improvements in the funding of contracts in the military departments.”

As it stood, this was a stunningly insufficient plan, given ongoing events in Iraq. But even that mild provision was dropped by the Democrats in late April. Their excuse was the need to hold more hearings on the contractor issue. Instead, they moved to withhold — not cut — 15% of total day-to-day operational funding, but only until Secretary of Defense Robert Gates submits a report on the use of contractors and the scope of their deployment. Once the report is submitted, the 15% would be unlocked. In essence, this means that, under the Democrats plan, the mercenary forces will simply be able to continue business-as-usual/profits-as-usual in Iraq.

However obfuscated by discussions of accountability, fiscal responsibility, and oversight, the gorilla of a question in the Congressional war room is: Should the administration be allowed to use mercenary forces, whose livelihoods depend on war and conflict, to help fight its battles in Iraq?

Rep. Murtha says, “We’re trying to bring accountability to an unaccountable war.” But it’s not accountability that the war needs; it needs an end.

By sanctioning the administration’s continuing use of mercenary corporations — instead of cutting off all funding to them — the Democrats leave the door open for a future escalation of the shadow war in Iraq. This, in turn, could pave the way for an array of secretive, politically well-connected firms that have profited tremendously under the current administration to elevate their status and increase their government paychecks.

Blackwater’s War

Consider the case of Blackwater USA.

A decade ago, the company barely existed; and yet, its “diplomatic security” contracts since mid-2004, with the State Department alone, total more than $750 million. Today, Blackwater has become nothing short of the Bush administration’s well-paid Praetorian Guard. It protects the U.S. ambassador and other senior officials in Iraq as well as visiting Congressional delegations; it trains Afghan security forces and was deployed in the oil-rich Caspian Sea region, setting up a “command and control” center just miles from the Iranian border. The company was also hired to protect FEMA operations and facilities in New Orleans after Hurricane Katrina, where it raked in $240,000 a day from the American taxpayer, billing $950 a day per Blackwater contractor.

Since September 11, 2001, the company has invested its lucrative government pay-outs in building an impressive private army. At present, it has forces deployed in nine countries and boasts a database of 21,000 additional troops at the ready, a fleet of more than 20 aircraft, including helicopter gun-ships, and the world’s largest private military facility — a 7,000 acre compound near the Great Dismal Swamp of North Carolina. It recently opened a new facility in Illinois (”Blackwater North”) and is fighting local opposition to a third planned domestic facility near San Diego (”Blackwater West”) by the Mexican border. It is also manufacturing an armored vehicle (nicknamed the “Grizzly”) and surveillance blimps.

The man behind this empire is Erik Prince, a secretive, conservative Christian, ex-Navy SEAL multimillionaire who bankrolls the President and his allies with major campaign contributions. Among Blackwater’s senior executives are Cofer Black, former head of counterterrorism at the CIA; Robert Richer, former Deputy Director of Operations at the CIA; Joseph Schmitz, former Pentagon Inspector General; and an impressive array of other retired military and intelligence officials. Company executives recently announced the creation of a new private intelligence company, “Total Intelligence,” to be headed by Black and Richer.

For years, Blackwater’s operations have been shrouded in secrecy. Emboldened by the culture of impunity enjoyed by the private sector in the Bush administration’s wars in Iraq and Afghanistan, Blackwater’s founder has talked of creating a “contractor brigade” to support US military operations and fancies his forces the “FedEx” of the “national security apparatus.”

As the country debates an Iraq withdrawal, Congress owes it to the public to take down the curtain of secrecy surrounding these shadow forces that undergird the U.S. public deployment in Iraq. The President likes to say that defunding the war would undercut the troops. Here’s the truth of the matter: Continued funding of the Iraq war ensures tremendous profits for politically-connected war contractors. If Congress is serious about ending the occupation, it needs to rein in the unaccountable companies that make it possible and only stand to profit from its escalation.

Jeremy Scahill is the author of the New York Times bestseller Blackwater: The Rise of the World’s Most Powerful Mercenary Army. He is currently a Puffin Foundation Writing Fellow at the Nation Institute.

© Copyright 2007 Jeremy Scahill

Tags: Democrats Iraq Bush U.S. troops