Wednesday, January 12, 2005

Is the Times going to be stuck playing catch up on another Homeland Security nominee?

Richard W. Stevenson & Eric Lichtblau's Bush Names Judge as Homeland Security Secretary makes the front page and let's hope this isn't another case where the Times is going to play catch up with the New York Daily News and Newsday on a story that they should "own." (As they ended up doing with Bernard Kerik.)

The reporters tell us a number of things including that " Chertoff was the administration's leading prosecutor on corporate fraud, leading the case in the Enron scandal that led to the collapse of Arthur Andersen, the accounting firm."

The writers don't point it out but the "Enron scandal" is hardly one that's resulted in much action over four years, is it? I mean Martha Stewart went to jail but Ken Lay?

The same superficial coverage can be found elsewhere:

Judge Chertoff has a well-documented if at times controversial record on issues related to fighting terrorism. As the Justice Department, he favored aggressive steps like holding Muslim immigrants for questioning and passage of the USA Patriot Act to give the government more antiterrorism tools.
In 2003, he argued before an appeals court that a terror suspect who faced a federal trial, Zacarias Moussaoui, was not entitled to question an operative of Al Qaeda who was held overseas as an enemy combatant.
Mr. Moussaoui's case, which has stalled, and the collapse of a terrorism case in Detroit amid accusations of prosecutorial misconduct, are among the few missteps in a record that includes the successful prosecutions of John Walker Lindh, an American captured in Afghanistan, and accused Qaeda sympathizers in Lackawanna, N.Y.

The successful prosecution of John Walker Lindh? That was a plea bargain and one that's raised legal concerns as more details have emerged.

Maybe the reporters missed Jane Mayer's "Why did the government’s case against John Walker Lindh collapse?" from The New Yorker?

This past summer, however, the government abruptly dropped nine of the original charges. The case was settled in a weekend-long flurry of negotiations that ended at 2 a.m. on the day that key evidence against Lindh was to be challenged in open court. As part of the plea agreement, Lindh accepted guilt on a charge that was not directly related to terrorism: violation of a 1999 executive order forbidding American citizens from contributing “services” to the Taliban. Ashcroft’s high-profile prosecution effort mysteriously imploded. The Attorney General was not entirely convincing when he declared that Lindh’s plea agreement was “an important victory in the war on terrorism.”

There are a number of legal issues that are still raised by that case. That's an area reporters should be covering now that Chertoff is nominated for a new post.

The Times reports that the Bully Boy 'praised Judge Chertoff as having an 'impressive record of cutting through red tape and moving organizations into action.'" Yeah, looks like a lot of "red tape" got cut through on the Walker Lindh case.

They might also look into some things Jane Mayer noted in her interview about the story:

It seems clear in retrospect that the Justice Department charged Lindh with numerous crimes for which they had little or no evidence. Having portrayed him as a dangerous terrorist, the government had to back down into accepting a plea that was only indirectly and remotely related to terrorism. So the prosecutors lost a lot. Lindh, however, had to accept an extraordinarily long sentence for a nonviolent felony conviction for a first-time offender: twenty years. His lawyers reasoned that, in the current political climate, it was the best they were likely to do—especially given that the trial would have taken place in one of the most conservative courts in the country, just nine miles from the Pentagon, where the terrorist attack was still very fresh in potential jurors' memories.
. . .
You describe some of the conditions of Lindh's detention by the United States military: malnourishment, sleep deprivation, isolation in a metal container, being kept bound and naked. How typical was this of how prisoners were kept? Was he treated better or worse than ordinary Taliban soldiers?
We don't really know much about the conditions of other 9/11 detainees, so it's hard to judge whether Lindh's treatment was typical. One of the documents that Lindh's defense team was able to find during the discovery phase of the case was a statement from a U.S. marine to a Navy medic, explaining that the U.S. military viewed sleep deprivation, cold, and hunger as legitimate tools of interrogation.
There was one lawyer in the Justice Department, Jesselyn Radack, who expressed concerns about the way in which the F.B.I. questioned Lindh, and then, after objecting, received what she characterized as a "blistering" performance review that cast doubt on her legal judgment. Can you talk a little bit about her concerns, and about how it was that she agreed to speak with you?
I discovered Jesselyn Radack while researching this piece when her name came up as the author of several e-mails that were published by Newsweek last spring. By the time I went looking for Radack, she was no longer at the Justice Department. She had no listed phone number, either. I was finally able to get her address from the Brown University alumni notes, and I just drove over to her house, which is in the Washington area, to see if she might let me interview her. She wasn't home, but I left a long letter of explanation with her babysitter. By the time I got back to my desk, she had called, and she agreed to be interviewed if a lawyer she had retained thought it a safe thing for her to do. I think she spoke up because she feels very passionately that the Justice Department did not live up to its ethical obligations in its prosecution of Lindh.
Lindh was not the only American citizen captured in Afghanistan; there was also Yaser Esam Hamdi, who was born in Louisiana and raised in Saudi Arabia. But, unlike Lindh, he has been detained, so far, without indictment or trial. Why has his case been handled differently?
Few people realize it, but Hamdi was actually captured along with Lindh on the same day at the same place in Afghanistan. One of the great differences between Hamdi and Lindh, however, is that Lindh provided a stream of statements to the press and to U.S. interrogators, which, in turn, provided the government with enough information to indict him. Hamdi, as far as can be determined, didn't provide similar self-incriminating evidence, which may be one reason he has yet to be charged.


Hamdi, as most people probably remember, is no longer in U.S. custody.

As for whether he's qualified for the post, readers have to go to Newsday to find this point being made:

Aside from his legal expertise, Chertoff doesn't offer strong management skills or policy experience on key issues such as port security, said Roger Cressey, a counterterrorism expert with Good Harbor Consulting in the Washington area.

After being beat to the story on Kerik by Newsday and The New York Daily News, let's hope the Times is going to work a little harder in the days to come.