Commentary Magazine


Topic: Assistant Attorney General

Just Hold Them

Benjamin Wittes of Brookings and Jack Goldsmith, a former assistant attorney general in the Bush administration (of which he was a sometimes critic), make a compelling case: forget civilian trials and military tribunals for enemy combatants. Their logic is sound:

Many critics of civilian trials claim that this problem would not have occurred in a military commission, but that is very probably wrong. The legal standard for excluding such evidence in military commissions would depend on the military judge’s sense of the “interests of justice.” The government would be foolish to rely on military judges’ willingness to admit evidence obtained – even in a derivative fashion — as a result of coercion. There is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a commission.

There is, however, reason to think that a commission trial would have presented problems not present in Ghailani’s civilian trial. One central problem is that the conspiracy charge on which Ghailani was nabbed might not be valid in military commissions; three sitting Supreme Court justices have said as much, and many scholars agree. On this and other issues from evidentiary and procedural rules to fundamental constitutional questions, military commissions raise legal uncertainties that have yet to be sorted out by appellate courts.

Instead, just hold the terrorists indefinitely. It’s tried and true and perfectly legal:

The government has a lesser burden in justifying military detention before a habeas corpus court than it has in convicting a terrorist of a crime at trial. The courts broadly accept that Congress has authorized military detention and that it is a perfectly legitimate form of terrorist incapacitation. … Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation.

Oh the jaws that will drop in European salons! Oh the howls from the ACLU! But at this point, these are precisely the sorts of elites that the Obama administration should dismiss with a back of the hand. The American people and our enemies abroad look at the Obama detention operation with a mix of astonishment and contempt. The White House, however, created the fiction that only civilian trials are true to our “values” but now has figured out that they may be inimical to our national security. It has puffed and postured about closing Guantanamo but has now discovered its utility.

So what better time to wipe the slate clean, declare that Guantanamo will remain in operation for the “worst of the worst,” and relegate KSM and the rest to indefinite detention? That would redound to Obama’s political benefit and restore some oomph to a commander in chief badly in need of some; moreover, it would finally recognize the obvious: we’re at war, and combatants are not criminal defendants.

Benjamin Wittes of Brookings and Jack Goldsmith, a former assistant attorney general in the Bush administration (of which he was a sometimes critic), make a compelling case: forget civilian trials and military tribunals for enemy combatants. Their logic is sound:

Many critics of civilian trials claim that this problem would not have occurred in a military commission, but that is very probably wrong. The legal standard for excluding such evidence in military commissions would depend on the military judge’s sense of the “interests of justice.” The government would be foolish to rely on military judges’ willingness to admit evidence obtained – even in a derivative fashion — as a result of coercion. There is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a commission.

There is, however, reason to think that a commission trial would have presented problems not present in Ghailani’s civilian trial. One central problem is that the conspiracy charge on which Ghailani was nabbed might not be valid in military commissions; three sitting Supreme Court justices have said as much, and many scholars agree. On this and other issues from evidentiary and procedural rules to fundamental constitutional questions, military commissions raise legal uncertainties that have yet to be sorted out by appellate courts.

Instead, just hold the terrorists indefinitely. It’s tried and true and perfectly legal:

The government has a lesser burden in justifying military detention before a habeas corpus court than it has in convicting a terrorist of a crime at trial. The courts broadly accept that Congress has authorized military detention and that it is a perfectly legitimate form of terrorist incapacitation. … Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation.

Oh the jaws that will drop in European salons! Oh the howls from the ACLU! But at this point, these are precisely the sorts of elites that the Obama administration should dismiss with a back of the hand. The American people and our enemies abroad look at the Obama detention operation with a mix of astonishment and contempt. The White House, however, created the fiction that only civilian trials are true to our “values” but now has figured out that they may be inimical to our national security. It has puffed and postured about closing Guantanamo but has now discovered its utility.

So what better time to wipe the slate clean, declare that Guantanamo will remain in operation for the “worst of the worst,” and relegate KSM and the rest to indefinite detention? That would redound to Obama’s political benefit and restore some oomph to a commander in chief badly in need of some; moreover, it would finally recognize the obvious: we’re at war, and combatants are not criminal defendants.

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Watching DOJ

Judicial Watch continues to document the New Black Panther Party scandal, which was first reported by conservative media and now has attracted mainstream coverage. (But not the Gray Lady, which may have a tough time explaining to her readers next year why House Judiciary Chairman Lamar Smith is issuing all those subpoenas. Imagine tuning into Mad Men for the first time after a couple of seasons; you see the dilemma — at some point, there’s no use trying to catch up.)

In the latest batch of disclosures, Judicial Watch tells us:

[I]t has obtained documents from the Obama Department of Justice (DOJ) that provide new evidence that top political appointees at the DOJ were intimately involved in the decision to dismiss the voter intimidation case against the New Black Panther Party for Self Defense (NBPP). These new documents, which include internal DOJ email correspondence, directly contradict sworn testimony by Thomas Perez, Assistant Attorney General for the Civil Rights Division, who testified before the U.S. Commission on Civil Rights that no political leadership was involved in the decision. The new documents were obtained last week by Judicial Watch pursuant to a Freedom of Information Act lawsuit (Judicial Watch v. Department of Justice (No.10-851)).

You mean Perez gave false testimony to the U.S. Commission on Civil Rights? Oh yes: Read More

Judicial Watch continues to document the New Black Panther Party scandal, which was first reported by conservative media and now has attracted mainstream coverage. (But not the Gray Lady, which may have a tough time explaining to her readers next year why House Judiciary Chairman Lamar Smith is issuing all those subpoenas. Imagine tuning into Mad Men for the first time after a couple of seasons; you see the dilemma — at some point, there’s no use trying to catch up.)

In the latest batch of disclosures, Judicial Watch tells us:

[I]t has obtained documents from the Obama Department of Justice (DOJ) that provide new evidence that top political appointees at the DOJ were intimately involved in the decision to dismiss the voter intimidation case against the New Black Panther Party for Self Defense (NBPP). These new documents, which include internal DOJ email correspondence, directly contradict sworn testimony by Thomas Perez, Assistant Attorney General for the Civil Rights Division, who testified before the U.S. Commission on Civil Rights that no political leadership was involved in the decision. The new documents were obtained last week by Judicial Watch pursuant to a Freedom of Information Act lawsuit (Judicial Watch v. Department of Justice (No.10-851)).

You mean Perez gave false testimony to the U.S. Commission on Civil Rights? Oh yes:

The new documents include a series of emails between two political appointees: former Democratic election lawyer and current Deputy Associate Attorney General Sam Hirsch and Associate Attorney General Thomas Perrelli. Both DOJ officials were involved in detailed discussions regarding the NBPP decision. …

Assistant Attorney General for the Civil Rights Division Thomas Perez testified before the U.S. Commission on Civil Rights that no political appointees were involved in the NBPP decision. Perez suggested that the dispute was merely “a case of career people disagreeing with career people.”

In fact, political appointee Sam Hirsch sent an April 30, 2009, email to Steven Rosenbaum (then-Acting Assistant Deputy Attorney General in the Civil Rights) thanking Rosenbaum for “doing everything you’re doing to make sure that this case is properly resolved.” The next day, the DOJ began to reverse course on its NBPP voter intimidation lawsuit.

We’re going to see where the e-mail trail leads. There will be several storylines. First, how far will the scandal go? The administration may try to “amputate” at the assistant attorney general level (Perez), but evidence already revealed suggests that the associate attorney general level (the #3 position) can’t escape. But of course, the key question will be whether Eric Holder himself will be shoved off the stage. (We are going to get that frank discussion on race he’s been pining for regardless.)

Second, we’ll see how much interference Democrats are willing to run for the White House. The administration’s toady commissioner Michael Yaki tried his best to derail the commission’s investigation but wound up only embarrassing himself as the evidence gushed forth. Will House Democrats be in the mood to follow that path — or is this a fine opportunity to display their “independence” from the White House?

And finally, we’ll find out how much the administration has learned and how beholden it is to liberal activists. The Obama team has two options: (1) admit fault, repudiate a race-specific view of civil rights enforcement (e.g., only whites can be defendants), come clean, and let heads roll; or (2) fight tooth and nail, keep stonewalling, and reassure the NAACP and other liberal civil rights groups that they will stick with the left-leaning party line (i.e., civil rights laws are there to protect only “traditional” victims).

This issue is not remotely the biggest headache the administration will have to face in the next two years, but it sure will be revealing. And quite entertaining, I suspect.

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Flotsam and Jetsam

Sounds like every pro-Israel organization and self-described pro-Israel candidate should be in agreement with Noah Pollak: “Congress funds 22 percent of the [UN Human Rights] Council’s activities. Is it right to collude in allowing a democratic ally to become an international punching bag for activists who are only prevented from treating us the same way by virtue of our greater power? And should the United States help promote the idea that one of the most important and effective national security tools we employ — targeted killings — is an act of state terrorism that must be prosecuted by international courts? … It is time that the administration abandoned the Council. And it is time that Congress stopped funding it.”

Sounds like Nixon: “The hypocrisy of the Obama Justice Department has reached staggering proportions on a host of issues stemming from the New Black Panther voter-intimidation case. Such systemic evasion of justice breeds lawlessness. The Justice Department’s latest thumb in the eye of its critics came in an Aug. 11 letter from Assistant Attorney General Thomas E. Perez to the U.S. Commission on Civil Rights.”

Sounds like the Big Apple is part of second America: “A majority of New Yorkers remain opposed to a mosque proposed as part of a planned Islamic cultural center near ground zero and the issue will be a factor for many voters this fall, according to a statewide poll released Wednesday. The Siena College poll showed 63 percent of New York voters surveyed oppose the project, with 27 percent supporting it.”

Sounds like the rest of California: “The city of Bell gave nearly $900,000 in loans to former City Administrator Robert Rizzo, city employees and at least two council members in the last several years, according to records reviewed by The Times. … The loans raise new questions about how officials were compensated in Bell. The Times revealed last month that top city administrators were among the highest paid in the nation, sparking outrage and investigations by both L.A. County prosecutors and the California attorney general. Rizzo’s contract for this year called for him to receive more than $1.5 million in salary and benefits. The loans appear to have come on top of that compensation.”

Sounds like Milton Friedman: “Almost every action the president has taken has deepened and lengthened the downturn. … His policies are anti-investment, anti-jobs, and anti-growth. Raising taxes — with a 15 percent hike on certain small business corporations, new taxes to pay for ObamaCare, and an increase on the dividend tax from 15 percent to nearly 40 percent — depresses new investment throughout the economy.” Worth reading in full; Mitt Romney appears ready to roll in 2012.

Sounds like Barney Frank is spitting mad: “President Obama, whom I greatly admire … when the economic recovery bill — we’re supposed to call it the ‘recovery bill,’ not the ‘stimulus’ bill; that’s what the focus groups tell us — he predicted or his aides predicted at the time that if it passed, unemployment would get under 8 percent. … That was a dumb thing to do.” Focus groups at the White House — how Clintonian!

Sounds like Charlie Crist is taking political lessons from Obama and Pelosi: “Crist recently refunded a $9,600 contribution from Jim Greer, the indicted former Republican Party of Florida chairman. ‘He asked for it back, so I gave it to him,’ said Crist. But Crist said that doesn’t apply to anyone who asks for a refund. Asked what was different about Greer, Crist said, ‘I think he really needed it.'” The rest of the donors will just spend it on dumb things like groceries, mortgages, family vacations, and Marco Rubio, you see.

Sounds like every pro-Israel organization and self-described pro-Israel candidate should be in agreement with Noah Pollak: “Congress funds 22 percent of the [UN Human Rights] Council’s activities. Is it right to collude in allowing a democratic ally to become an international punching bag for activists who are only prevented from treating us the same way by virtue of our greater power? And should the United States help promote the idea that one of the most important and effective national security tools we employ — targeted killings — is an act of state terrorism that must be prosecuted by international courts? … It is time that the administration abandoned the Council. And it is time that Congress stopped funding it.”

Sounds like Nixon: “The hypocrisy of the Obama Justice Department has reached staggering proportions on a host of issues stemming from the New Black Panther voter-intimidation case. Such systemic evasion of justice breeds lawlessness. The Justice Department’s latest thumb in the eye of its critics came in an Aug. 11 letter from Assistant Attorney General Thomas E. Perez to the U.S. Commission on Civil Rights.”

Sounds like the Big Apple is part of second America: “A majority of New Yorkers remain opposed to a mosque proposed as part of a planned Islamic cultural center near ground zero and the issue will be a factor for many voters this fall, according to a statewide poll released Wednesday. The Siena College poll showed 63 percent of New York voters surveyed oppose the project, with 27 percent supporting it.”

Sounds like the rest of California: “The city of Bell gave nearly $900,000 in loans to former City Administrator Robert Rizzo, city employees and at least two council members in the last several years, according to records reviewed by The Times. … The loans raise new questions about how officials were compensated in Bell. The Times revealed last month that top city administrators were among the highest paid in the nation, sparking outrage and investigations by both L.A. County prosecutors and the California attorney general. Rizzo’s contract for this year called for him to receive more than $1.5 million in salary and benefits. The loans appear to have come on top of that compensation.”

Sounds like Milton Friedman: “Almost every action the president has taken has deepened and lengthened the downturn. … His policies are anti-investment, anti-jobs, and anti-growth. Raising taxes — with a 15 percent hike on certain small business corporations, new taxes to pay for ObamaCare, and an increase on the dividend tax from 15 percent to nearly 40 percent — depresses new investment throughout the economy.” Worth reading in full; Mitt Romney appears ready to roll in 2012.

Sounds like Barney Frank is spitting mad: “President Obama, whom I greatly admire … when the economic recovery bill — we’re supposed to call it the ‘recovery bill,’ not the ‘stimulus’ bill; that’s what the focus groups tell us — he predicted or his aides predicted at the time that if it passed, unemployment would get under 8 percent. … That was a dumb thing to do.” Focus groups at the White House — how Clintonian!

Sounds like Charlie Crist is taking political lessons from Obama and Pelosi: “Crist recently refunded a $9,600 contribution from Jim Greer, the indicted former Republican Party of Florida chairman. ‘He asked for it back, so I gave it to him,’ said Crist. But Crist said that doesn’t apply to anyone who asks for a refund. Asked what was different about Greer, Crist said, ‘I think he really needed it.'” The rest of the donors will just spend it on dumb things like groceries, mortgages, family vacations, and Marco Rubio, you see.

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Conservatives Should Stay Smart

Some conservatives have latched onto the news that Tony West, the assistant attorney general for the Civil Division, is the lead lawyer on the Justice Department’s case regarding Arizona’s immigration law. West previously represented al-Qaeda terrorists and, as I have written about at length, thereby raised a thicket of ethical issues insofar as he now is in charge of Gitmo litigation. But the criticism of his role in the Arizona litigation is misplaced.

No conservative administration would have hired West, but the reason why Obama was wrong to do so is that it introduced a potentially crippling ethical issue with regard to terror cases and raised real concerns about how vigorously the administration would litigate on key national-security issues in which West’s sympathies clearly were with the detainees.

None of this has anything to do with the Arizona case. And as I previously argued, conservatives who are delighted by a 50-state onslaught against illegal aliens should rejoice that they can now test their position. So what  is their beef?

On this issue, some conservatives risk appearing unhinged as they rail against the latest scrap of news. When I explained to an otherwise sensible conservative that the Obama administration had a plausible and indeed potentially winning argument on preemption grounds, he snapped back, “The Constitution is not an suicide pact among the states.” This is simply nonsense. It’s bad for a system of immigration enforcement to be this wildly flouted, and we certainly need to secure the borders. But there is no national suicide remotely at issue, and opposing the Arizona law doesn’t mean you want America to drop dead.

It is this sort of hysteria and overheated blather that conservatives should be wary of. Political winds are blowing at the right’s back, but the quickest way to be knocked off course is to propound ill-conceived arguments and give voters the idea that conservatives are unsober and unserious. Let’s get focused, guys.

Some conservatives have latched onto the news that Tony West, the assistant attorney general for the Civil Division, is the lead lawyer on the Justice Department’s case regarding Arizona’s immigration law. West previously represented al-Qaeda terrorists and, as I have written about at length, thereby raised a thicket of ethical issues insofar as he now is in charge of Gitmo litigation. But the criticism of his role in the Arizona litigation is misplaced.

No conservative administration would have hired West, but the reason why Obama was wrong to do so is that it introduced a potentially crippling ethical issue with regard to terror cases and raised real concerns about how vigorously the administration would litigate on key national-security issues in which West’s sympathies clearly were with the detainees.

None of this has anything to do with the Arizona case. And as I previously argued, conservatives who are delighted by a 50-state onslaught against illegal aliens should rejoice that they can now test their position. So what  is their beef?

On this issue, some conservatives risk appearing unhinged as they rail against the latest scrap of news. When I explained to an otherwise sensible conservative that the Obama administration had a plausible and indeed potentially winning argument on preemption grounds, he snapped back, “The Constitution is not an suicide pact among the states.” This is simply nonsense. It’s bad for a system of immigration enforcement to be this wildly flouted, and we certainly need to secure the borders. But there is no national suicide remotely at issue, and opposing the Arizona law doesn’t mean you want America to drop dead.

It is this sort of hysteria and overheated blather that conservatives should be wary of. Political winds are blowing at the right’s back, but the quickest way to be knocked off course is to propound ill-conceived arguments and give voters the idea that conservatives are unsober and unserious. Let’s get focused, guys.

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Flotsam and Jetsam

But they are supposed to go into harm’s way for their country: the Navy takes away the lard and water hoses from a 60-year tradition in which plebes climb a greased 21-foot monument. Why? They might get hurt. A former Naval Academy graduate chimes in: “We’re going to send these guys to war but they can’t climb a monument because they might get hurt? Come on.” Next thing you know, they’ll be allowing proper names in Scrabble.

But don’t we have a First Amendment or something? “Former Alaska Gov. Sarah Palin accused the president of being in the pocket of Big Oil, a charge usually leveled by Democrats at the GOP. ‘You’ve got to have a license to drive a car in this country, but, regrettably, you can get on a TV show and say virtually anything,’ White House press secretary Robert Gibbs said.” Gosh, if we only licensed talking heads.

But he’s a “genius”! “Millions of Americans are out of work, the budget deficit is in the trillions and Europe is flirting with economic collapse. Fear not, says Larry Summers, the chief economic adviser to President Obama. It is merely a ‘fluctuation.'” His long-winded gobbledygook about moving from the G-7 to the G-20 “was vintage Summers: smart, esoteric — and utterly unhelpful.”

But isn’t it like allowing Keith Olbermann to review a George W. Bush biography? The Washington Post has David Frum (who’s carved out a niche in Limbaugh-bashing for the mainstream media) review the latest biography of Rush Limbaugh. Surprise, surprise, he concludes: “It might seem ominous for an intellectual movement to be led by a man who does not think creatively, who does not respect the other side of the argument and who frequently says things that are not intended as truth.”

But you didn’t really buy all that “transparency” jazz did you? “The Justice Department has rejected a Republican request to appoint a special counsel to investigate allegations that the White House offered a job to Rep. Joe Sestak if he would drop out of the Pennsylvania Senate Democratic primary. … In the letter to [Rep. Darrell] Issa, Assistant Attorney General Ronald Weich wrote that the DOJ could handle the allegations without creating a special counsel. But Weich gave no indication that the department was looking into the Sestak matter.”

But if David Axelrod is right about there being “no evidence” of a deal, then Sestak is lying. Mark Hemingway: “There’s no good outcome here for the White House. Either the White House did something illegal here or their party’s Senate candidate in Pennsylvania is a delusional fabulist. But regardless, their prolonged foot-dragging here only appears to be making things worse.”

But the White House said, “Trust us”: “The number two Democrat in the Senate, who has close ties to the White House, is urging Rep. Joe Sestak to come clean. Senate Majority Whip Dick Durbin told CNN Tuesday that the Pennsylvania Democrat should fully explain whether Obama administration officials pressed him to drop his Democratic primary challenge to Sen. Arlen Specter in exchange for a job.”

But Democrats insisted we needed a humungous new uber-department! James Carafano on the BP response: “Explain to me why nine years after 9/11 we struggle with disasters. Well, the answer is easy. Homeland Security wastes its time on routine disaster; the secretary worries more about how to grant amnesty to illegals than battling terrorists and preparing for catastrophes. Congress dumps money in wasteful programs and uses 108 committees, sub-committees, and commissions to provide chaotic and incoherent oversight to the department.”

But (as a sharp colleague suggested) couldn’t we work out a deal where Richard Blumenthal and Rand Paul both exit their races? Jonah Goldberg sums up why conservatives should carry no water for Paul: “[I]t’s certainly repugnant and bizarre for libertarians like Paul to lament the lost rights of bigots rather than to rejoice at the restored rights of integrationists.” (By the way, would Paul commend Obama for doing nothing at all about the BP spill?)

But they are supposed to go into harm’s way for their country: the Navy takes away the lard and water hoses from a 60-year tradition in which plebes climb a greased 21-foot monument. Why? They might get hurt. A former Naval Academy graduate chimes in: “We’re going to send these guys to war but they can’t climb a monument because they might get hurt? Come on.” Next thing you know, they’ll be allowing proper names in Scrabble.

But don’t we have a First Amendment or something? “Former Alaska Gov. Sarah Palin accused the president of being in the pocket of Big Oil, a charge usually leveled by Democrats at the GOP. ‘You’ve got to have a license to drive a car in this country, but, regrettably, you can get on a TV show and say virtually anything,’ White House press secretary Robert Gibbs said.” Gosh, if we only licensed talking heads.

But he’s a “genius”! “Millions of Americans are out of work, the budget deficit is in the trillions and Europe is flirting with economic collapse. Fear not, says Larry Summers, the chief economic adviser to President Obama. It is merely a ‘fluctuation.'” His long-winded gobbledygook about moving from the G-7 to the G-20 “was vintage Summers: smart, esoteric — and utterly unhelpful.”

But isn’t it like allowing Keith Olbermann to review a George W. Bush biography? The Washington Post has David Frum (who’s carved out a niche in Limbaugh-bashing for the mainstream media) review the latest biography of Rush Limbaugh. Surprise, surprise, he concludes: “It might seem ominous for an intellectual movement to be led by a man who does not think creatively, who does not respect the other side of the argument and who frequently says things that are not intended as truth.”

But you didn’t really buy all that “transparency” jazz did you? “The Justice Department has rejected a Republican request to appoint a special counsel to investigate allegations that the White House offered a job to Rep. Joe Sestak if he would drop out of the Pennsylvania Senate Democratic primary. … In the letter to [Rep. Darrell] Issa, Assistant Attorney General Ronald Weich wrote that the DOJ could handle the allegations without creating a special counsel. But Weich gave no indication that the department was looking into the Sestak matter.”

But if David Axelrod is right about there being “no evidence” of a deal, then Sestak is lying. Mark Hemingway: “There’s no good outcome here for the White House. Either the White House did something illegal here or their party’s Senate candidate in Pennsylvania is a delusional fabulist. But regardless, their prolonged foot-dragging here only appears to be making things worse.”

But the White House said, “Trust us”: “The number two Democrat in the Senate, who has close ties to the White House, is urging Rep. Joe Sestak to come clean. Senate Majority Whip Dick Durbin told CNN Tuesday that the Pennsylvania Democrat should fully explain whether Obama administration officials pressed him to drop his Democratic primary challenge to Sen. Arlen Specter in exchange for a job.”

But Democrats insisted we needed a humungous new uber-department! James Carafano on the BP response: “Explain to me why nine years after 9/11 we struggle with disasters. Well, the answer is easy. Homeland Security wastes its time on routine disaster; the secretary worries more about how to grant amnesty to illegals than battling terrorists and preparing for catastrophes. Congress dumps money in wasteful programs and uses 108 committees, sub-committees, and commissions to provide chaotic and incoherent oversight to the department.”

But (as a sharp colleague suggested) couldn’t we work out a deal where Richard Blumenthal and Rand Paul both exit their races? Jonah Goldberg sums up why conservatives should carry no water for Paul: “[I]t’s certainly repugnant and bizarre for libertarians like Paul to lament the lost rights of bigots rather than to rejoice at the restored rights of integrationists.” (By the way, would Paul commend Obama for doing nothing at all about the BP spill?)

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Obama Civil Rights Head Defends Black Panther Dismissal

On Friday, the much anticipated testimony of Civil Rights division head Thomas Perez before the U.S. Commission on Civil Rights was heard. As the Washington Times reported, Perez implicitly rebuked both the trial team that filed the case and the appellate section that endorsed the work of the trial team:

Assistant Attorney General Thomas E. Perez told the U.S. Commission on Civil Rights on Friday there was “insufficient evidence” to bring a civil complaint against members of the New Black Panther Party who disrupted a Philadelphia polling place in the 2008 general elections.

Mr. Perez, the only Justice Department official to testify publicly before the commission about the case, said that without sufficient proof that party members or the organization’s leader, Malik Zulu Shabazz, directed or controlled unlawful activities at the poll or made speeches to incite or produce lawless action, the complaint “would have likely failed” in court.

Perez declared that, of course, the Justice Department is committed to equal enforcement of the civil rights laws regardless of the race of the defendants. But one commissioner, independent Todd Gaziano, isn’t buying it:

I wanted to believe there were all sorts of wrongheaded but NOT racist reasons for the decision to dismiss the defendants. But there are several reasons for me to believe that a racist application of the voting rights laws might have been at play. There is some evidence that is already in the public domain. Examples of that are the fact that there apparently is a culture in the civil rights division where some senior section chiefs and other supervising attorneys have expressed the view and engaged in conduct supporting that view that they don’t believe the voting rights laws should ever be enforced against blacks and other minorities. Those reports have been in the press in the past year or so and it seems to me from Perez’ response that he has done nothing to investigate whether that culture or those caustic views really are held by some of his supervising attorneys.”

And: “There is other evidence. There is the absence of a satisfactory explanation for why they did dismiss the Black Panther suit. Reasonable people know that if there is a racist reason for something and a good reason for something, and the reason has been called into question, a decent law enforcement agency when called to explain would want to provide the reasonable explanation – and they still haven’t done that. Third, [former civil rights division Voting Section chief] Chris Coates’ farewell address suggests that there still are several people in the division who do not believe in a race neutral application of the voting rights laws. And it seemed from Perez’ responses to me today that he did nothing specific to investigate why Chris Coates believed that [about his former co-workers].

So what now? The Justice Department continues to stonewall, refusing to allow witnesses with direct knowledge of the decision-making process to testify and refusing to appoint a special prosecutor to litigate the issue of the commission’s subpoenas. It’s quite a performance by an administration that promised to insulate from politics the work of its career attorneys. Well, one possibility is that one or more members of the trial team will defy the orders of their superiors not to testify and come forward to defend their work and reveal the interference they encountered. Another is that if the House flips control, congressional oversight will finally be undertaken and the appropriate witnesses subpoenaed and required to testify. One senses that after Perez’s performance and his hear-no-evil-see-no-evil approach to widespread reports that his division does have a double standard for civil rights enforcement, conscientious career lawyers must be mulling their options.

On Friday, the much anticipated testimony of Civil Rights division head Thomas Perez before the U.S. Commission on Civil Rights was heard. As the Washington Times reported, Perez implicitly rebuked both the trial team that filed the case and the appellate section that endorsed the work of the trial team:

Assistant Attorney General Thomas E. Perez told the U.S. Commission on Civil Rights on Friday there was “insufficient evidence” to bring a civil complaint against members of the New Black Panther Party who disrupted a Philadelphia polling place in the 2008 general elections.

Mr. Perez, the only Justice Department official to testify publicly before the commission about the case, said that without sufficient proof that party members or the organization’s leader, Malik Zulu Shabazz, directed or controlled unlawful activities at the poll or made speeches to incite or produce lawless action, the complaint “would have likely failed” in court.

Perez declared that, of course, the Justice Department is committed to equal enforcement of the civil rights laws regardless of the race of the defendants. But one commissioner, independent Todd Gaziano, isn’t buying it:

I wanted to believe there were all sorts of wrongheaded but NOT racist reasons for the decision to dismiss the defendants. But there are several reasons for me to believe that a racist application of the voting rights laws might have been at play. There is some evidence that is already in the public domain. Examples of that are the fact that there apparently is a culture in the civil rights division where some senior section chiefs and other supervising attorneys have expressed the view and engaged in conduct supporting that view that they don’t believe the voting rights laws should ever be enforced against blacks and other minorities. Those reports have been in the press in the past year or so and it seems to me from Perez’ response that he has done nothing to investigate whether that culture or those caustic views really are held by some of his supervising attorneys.”

And: “There is other evidence. There is the absence of a satisfactory explanation for why they did dismiss the Black Panther suit. Reasonable people know that if there is a racist reason for something and a good reason for something, and the reason has been called into question, a decent law enforcement agency when called to explain would want to provide the reasonable explanation – and they still haven’t done that. Third, [former civil rights division Voting Section chief] Chris Coates’ farewell address suggests that there still are several people in the division who do not believe in a race neutral application of the voting rights laws. And it seemed from Perez’ responses to me today that he did nothing specific to investigate why Chris Coates believed that [about his former co-workers].

So what now? The Justice Department continues to stonewall, refusing to allow witnesses with direct knowledge of the decision-making process to testify and refusing to appoint a special prosecutor to litigate the issue of the commission’s subpoenas. It’s quite a performance by an administration that promised to insulate from politics the work of its career attorneys. Well, one possibility is that one or more members of the trial team will defy the orders of their superiors not to testify and come forward to defend their work and reveal the interference they encountered. Another is that if the House flips control, congressional oversight will finally be undertaken and the appropriate witnesses subpoenaed and required to testify. One senses that after Perez’s performance and his hear-no-evil-see-no-evil approach to widespread reports that his division does have a double standard for civil rights enforcement, conscientious career lawyers must be mulling their options.

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