by Andrew Zajac

Toronto's Globe and Mail this morning posted video of an interrogation of Omar Khadr, a 21-year-old Canadian citizen who was detained in Afghanistan in 2002 and is how held at the Guantanamo Bay naval base.

Khadr was questioned by the Canadian Security Intelligence Service at Guantanamo in 2003 when he was 16. The redacted, 10-minute video was released after a court battle by Khadr's defense team which hopes to pressure the Canadian government to call for his repatriation.

It's apparently the first time Guantanamo interrogation footage has been made public.

Khadr is accused of throwing a grenade that killed a U.S. soldier.

The video and companion article explaining how the tape of Khadr has come to public light can be viewed at theglobeandmail.com.

by Andrew Zajac

Chicago U.S. Attorney Patrick Fitzgerald has been lauded as the ultimate call'em-as-I-see'em prosecutor for his relentless pursuit of political corruption in Illinois and, on the national stage, for his investigation of the CIA leak case, which resulted in the perjury conviction of Vice President Dick Cheney's former chief of staff, Scooter Libby.

But Attorney General Michael Mukasey (pictured right) didn't sound like a member of the Fitzgerald fan club yesterday when he was asked by Pennsylvania Republican Arlen Specter about the jailing of former New York Times reporter Judith Miller for refusing to cough up her sources to Fitzgerald during the leak investigation.

While Mukasey didn't directly criticize Fitzgerald, he certainly managed to avoid defending the hard line the prosecutor took on Miller's unwillingness to cooperate.

Here's yesterday's exchange between Mukasey and Specter. (The legislation referred to is for a federal shield law that would sharply limit the circumstances under which the government could force reporters to give up information on confidential sources. It is opposed by the Justice Department.)

by Andrew Zajac

Steve Schmidt, the new man in day-to-day charge of the McCain presidential campaign, stoutly defended his lobbying and PR firm's hiring of Tim Griffin, a former prosecutor who figured in the U.S. attorneys firing scandal.

Griffin, a protégé of Karl Rove, went to work for Mercury Public Affairs after quitting as interim U.S. attorney in Little Rock, Ark. in June 2007 when it was disclosed that his predecessor, Bud Cummins, had been fired to create an opening for Griffin (pictured at right).

While U.S. attorneys serve at the pleasure of the president, they typically have not been removed except for ethical or legal lapses.

The removal of Cummins and the dismissal of eight other prosecutors in 2006 may have violated this unwritten rule and triggered an ongoing investigation by the Justice Department's inspector general into inappropriate politicization of DOJ employment. The uproar over the sackings also was a major factor in the downfall of former Attorney General Alberto Gonzales.

Ralph Cioffi, left, and Matthew Tannin are escorted to federal court in the Brooklyn borough of New York, U.S., on Thursday, June 19, 2008. Photographer: Daniel Acker/Bloomberg News.

by Frank James

The federal government's regulators may not have done as much as they could have to stop the mortgage crisis from happening in the first place but federal cops are evidently doing what they can to clean up the mess that's left, at least the part of it that has to do with alleged illegality.

In New York, federal prosecutors announced the arrests and indictment of two former Bear Stearns hedge-fund managers, Ralph Cioffi and Matthew Tannin, who were charged with securities fraud for allegedly hiding their concerns about their fund's investments in subprime mortgage from investors.

Meanwhile, in Washington, the Justice Department and Federal Bureau of Investigation announced the arrests of more than 400 people since March suspected of mortgage fraud.

Justice officials acknowledged they had packaged a lot of on-going cases to make a bigger splash, to add to the "deterrent factor."

Here's a snippet of what FBI Director Robert Mueller said:

And part of the reason they're bringing it together is the deterrent factor, to make persons understand, wherever they are around the country, whichever of these schemes that they become participants in, that we will get reports, generally through suspicious activity reports; we will follow up; we will investigate; and we will prosecute; and justice will be done.

by Mark Silva

The Supreme Court is not on the ballot in November.

But it may as well be.

On any number of critical issues, the inclinations of Republican Sen. John McCain and Democrat Barack Obama on the appointments of Supreme Court justices could turn a divided high court in one direction or another over the coming years.

The question of government detainees at Guantanamo Bay, Cuba, is only one of those matters. The Supreme Court ruled this week - by a vote of 5-4 - that the nearly 300 detainees still held in the Bush administration's "war on terror'' have a right to take their cases for release to federal courts.

McCain, campaigning at one of his signature "town-hall'' rallies in Pemberton, N.J., yesterday, called the court's ruling "one of the worst decisions in history. It opens up a whole new chapter and interpretation of our Constitution.'' President Bush also decried the ruling, placing McCain squarely in the president's camp on this one.

Obama, who has campaigned with a promise that "I will restore habeas corpus'' to detainees, suggested that the court's ruling had undercut Bush's assertions of executive power, raised questions about McCain's judgment and is "an important step toward "reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus'' (the writ enabling a prisoner to petition a judge to challenge a jailor's authority to hold him.)

McCain comes at this particular question as a former prisoner of war in Vietnam, held and tortured by the North Vietnamese for five and a half years. Obama, an attorney who has taught constitutional law, comes at it from a legal perspective.

McCain had helped craft the Military Commissions Act of 2006, which created a military system of trials as an alternative to civilian courts and prevented federal courts from considering the habeas corpus petitions of detainees at Guantanamo. Obama voted against the act. The court said a portion of the law stands in violation of the Constitution.

But more broadly, the philosophical differences and personal predilections of the two candidates point to how the next president might tilt the balance of a court precariously split on this and many other issues. McCain supports a reversal of Roe v. Wade, for instance. Obama supports abortion rights.

The next president will serve four, or perhaps eight, years. Justices serve for life. There's pretty good chance the next president will get a few picks.

Of the five justices who voted in the majority to allow detainees at Guantanamo access to federal courts, Justice John Paul Stevens is 88, Ruth Bader Ginsburg 75, and David Souter and Stephen Breyer are each 69. Justice Anthony Kennedy, author of the Guantanamo opinion, is 71.

The dissenters are generally younger: Chief Justice John Roberts, 53, Justices Samuel Alito, 55, Clarence Thomas, 59 and Antonin Scalia, 72.

by Andrew Zajac

The FBI takes it on the chin from the Justice Department Inspector General Glenn Fine today for "serious deficiencies that have resulted in large backlogs and questions about the reliability of the resulting information" on citizen and immigration application name checks.

The IG report says the FBI generally does a good job checking fingerprints, but falls down on the job of checking the names of people who want to become U.S. citizens or live here legally against investigative files.

The backlog has been a big issue for years now as enhanced, post-9-11 security measures have blended with government inefficiency to form an especially intractable bureaucratic problem.

In a summary of findings, the IG "found that the FBI's name check program processes about 86 percent of the name check requests it receives within 60 days. However, name check requests for the remaining 14 percent can take anywhere from several months to over a year to complete, with some name checks pending for as long as 3 years. As of March 2008 the FBI had over 327,000 pending USCIS name check requests. Backlogged name checks can hamper timely (Department of Homeland Security) adjudication of immigration applications, thereby impeding applicants' access to U.S. citizenship and permanent residency (green card)."

Here's a brief summary of some of the difficulties on the DHS side of things from an AP story earlier this year.

The IG report notes that the FBI has complained of inadequate funding to upgrade its name check technology but points out that the bureau has given lucrative private businesses like Major League Baseball and the National Football League a free ride in handling name check services for special events.

In its response to the IG's overall findings, the FBI mostly blames 9-11 for overwhelming its name checking capabilities.

You can read a redacted version of the entire report here. (Click on top item on the list.)

by Andrew Zajac

Finally a bit of good news for a beleaguered Bush Administration beset by an unpopular war, record gas prices and a sputtering economy. Violent crime is down.

We don't even have to crack the file on the FBI's preliminary annual report on the subject.

The Justice Department was quick to issue a comment this morning pointing out the drop before the Swamp could click through the G-men's report. Give DOJ credit, though, they weren't chasing the spotlight, just making an even-handed observation and acknowledging that the drop is not evenly spread:

"The latest numbers from the FBI are very encouraging, though still preliminary and could change when the final numbers are released later this year," said spokesman Peter Carr.

"The report suggests that violent crime is decreasing and remains near historic low levels, which is a credit to increased cooperation among federal, state and local law enforcement. Some communities, however, continue to face localized violent crime challenges. While these challenges may be unique to each community, the Department is committed to providing targeted assistance wherever needed."

Here's AP's early take on the report.

by Mark Silva

Caroline Kennedy's name certainly made some headlines today, with her appointment to a small team assigned by Barack Obama's campaign to help him find a running mate.

But perhaps even more notable is the name of Eric Holder, former deputy attorney general and in some peoples' minds, candidate for attorney general in an Obama White House.

Holder graces the cover of The American Lawyer this month, with the bold headline, "Is he the next AG?"' our colleagues at The BLT, the Blog of Legal Times, note today.

"The Covington & Burling partner and former deputy attorney general is a national co-chairman of Sen. Barack Obama's campaign,'' they write. "His impressive credentials certainly make him qualified for attorney general....

"But if Obama wins the presidency, would Holder really accept the top spot at Justice? In the Am Law article, much is made of Holder's wife's objections to him rejoining the public sector. And in a past interview with Legal Times, Holder said his wife "was almost a single parent" while he was in government in the 1990s.

"Yesterday, though, Holder was even more frank when asked by Legal Times if he would, indeed, accept the AG spot: "That ain't gonna happen," he said.

Andrew Zajac

Attorney General Michael Mukasey offered a flattering assessment of the history of the agency formerly known as the Bureau of Alcohol, Tobacco and Firearms at dedication ceremonies last week for ATF's new fortress-like headquarters building at 99 New York Ave. NE here in the district.

Mukasey's prepared remarks cite the agency's high-profile role in battling Prohibition bootleggers and aiding in the convictions of the first World Trade Center bombers.

Given the ceremonial nature of the occasion, perhaps its understandable that Mukasey left out unhappier recent chapters of ATF history.

Under color of the Homeland Security Act of 2002, ATF switched bureaucratic addresses, moving from the Treasury Department to the Justice Department. The word "explosives" was added to its name, as in Alcohol, Tobacco, Firearms and Explosives, though the identifying acronym remained ATF.

The addition of the word made explicit ATF's long involvement with investigating bombings and other explosives-related crimes and reflected some new responsibilities connected to domestic terrorism.

Mukasey's speech includes a mention of a smooth incorporation of the agency into DOJ. Maybe that's true on the bureaucratic side of things, but the ATF's historically cool relations with the FBI, its new sister agency within Justice, have yet to warm.

Forced to work together more closely because of a new, post-9-11 emphasis on thwarting terrorism, the FBI and ATF have engaged in a series of as yet unresolved turf battles, as this recent Washington Post story details.

In his remarks, ATF Acting Director Michael Sullivan extolled the new building's role in the redevelopment of a shabby and neglected corner of the capital, though it's hard to imagine a structure less friendly to the street than walled, block-long compound.

The building itself is perhaps a symbol of the gulf between the two agencies. Despite getting folded into DOJ, ATF's building is a mile or so from Main Justice and the FBI, which occupy buildings on either side of Pennsylvania Avenue at 10th St.

The new headquarters may also be viewed as an example of the fiscal inefficiency that has accompanied much of the massive build-up of the national security apparatus prompted by 9-11.

by Mark Silva

The House Judiciary Committee wants to talk to Karl Rove, and it isn't asking any more. Rove's lawyer appears a little concerned that the committee chairman has a, well, butt-kicking, in store for his client, "a free agent.''

Rove wasn't willing to have an on-the-record public talk with congressional investigators. So the House Judiciary Committee today subpoenaed the former deputy chief of staff for President Bush and ex-chief of White House political affairs - who has gone on to appearances on cable news shows and a newsmagazine column of his own, as well as opening up a Washington consulting firm.

The subpoena is part of a continuing probe of the White House's involvement in the Justice Department's firing of several federal prosecutors.

The subpoena orders Rove to appear on July 10 and face expected questions about the White House's role in the firing of nine U.S. attorneys in 2006 as well as the prosecution of former Gov. Don Siegelman of Alabama, a Democrat. Rove has denied playing any role in the Siegelman affair.

House Judiciary Chairman John Conyers had negotiated with Rove's attorneys for more than a year about testifying voluntarily.

"It is unfortunate that Mr. Rove has failed to cooperate with our requests," Conyers (D-Mich.) said in a statement today. "Although he does not seem the least bit hesitant to discuss these very issues weekly on cable television and in the print news media, Mr. Rove and his attorney have apparently concluded that a public hearing room would not be appropriate."

"Unfortunately, I have no choice today but to compel his testimony on these very important matters," Conyers said.

In light of Conyer's reported remarks for the need for "someone'' to "kick his ass,'' Rove's attorney, Robert Luskin, wrote to the chairman this week, he is "not the least bit confused about the committee's motives or intentions.''

"I confess, however, that I do not understand why the committee is threatening a subpena to Mr. Rove for information related to the alleged "politicization of the Justice Department... I do not understand why the committee insists on provoking a gratuitous confrontation ... or why the committee refuses to consider a reasonable accommodation.''

See Luskin's words: Luskin's letter to Conyers.pdf

See the chairman's words: Conyers letter to Rove's attorney.pdf

See the subp0ena for Rove: Rove subpena.pdf

by Andrew Zajac

Justice Department Inspector General Glenn Fine identifies both sins of commission and omission in the FBI's involvement with detainee interrogations in Afghanistan, Iraq and Guantanamo Bay, but the missteps and oversights either weren't frequent enough or big enough to warrant coming down hard on the bureau, according to a report released Tuesday morning.

Fine launched his investigation into FBI interactions with detainees following reports, some from bureau personnel, about abusive tactics employed on people picked up in the war on terror.

The U.S. government's treatment of detainees has been a source of raging controversy in this country, among U.S. allies and within the Muslim world, where most of the detainees come from.

Since it's freshly released and 370 pages long, The Swamp hasn't had a chance to read the report completely, but here's a link to the redacted, unclassified version of the document.

The tortured title of the report -- A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq -- suggests a certain amount of hairsplitting and eggshell-walking.

Among the new findings, Fine identified a renegade FBI effort to subject harsh treatment for Muhammad al Qatani, who allegedly was supposed to serve as an additional hijacker on Sept. 11, 2001:

by Steven Schmadeke

John Paul Stevens and Antonin Scalia, U.S. Supreme Court justices from opposite ends of the ideological spectrum, were in Chicago Monday and spoke about something on which they apparently agree - how good Scalia's new book is.

The two senior jurists spoke to several hundred attorneys and judges gathered in the 7th floor ballroom of the Intercontinental Hotel for the Seventh Circuit Bar Association's annual dinner.

Scalia's speech kept the attorneys and judges, who had just finished adinner of filet mignon with thyme-roasted fingerling potatoes, in stitches. He spoke at length, tongue-in-cheek, about the importance of choosing the right colored cover to contain a filing and the importance of footnotes.

"It takes a real lawyer...to write a text that is entirely meaningless or banal unless the reader consults the footnotes," Scalia said to laughter. "It is also essential to legal English that one write as pompously as possible, using words and formulas that have long since disappeared from intelligent English discourse."

Stevens scored some laughs of his own with a joke that seemed very funny to the legal eagles in the room, apparently because it was so self-evident.

"The other very important and interesting feature of the book is its recommendation that whenever you have a case involving statutory construction be sure to prepare yourself on the legislative hi story,"

Said Stevens to much laughter. "That's very sound advice."

Scalia, seated next to the podium, shouted back a reply.

"You're out of order," Stevens said to laughter and applause.

Even Frank Easterbrook, chief judge of the U.S. District Court of Appeals, flogged the book, called "Making Your Case: The Art of Persuading Judges."

"I'm going to put in a plug for the book just as Justice Stevens did," said Easterbrook, who plopped the book on the podium. "For entirely selfish reasons, the more people who read it and follow its advice the better my life will be."

Mildred and Richard Loving, January 26, 1965. (AP Photo)

by Frank James

On this day when people in Indiana and North Carolina are choosing between the Democratic candidates for president, one of whom is the offspring of an interracial union, it's mind-boggling to think that just over 40 years ago, marriages like that which produced Sen. Barack Obama were illegal in many states, including North Carolina where voters are going to the polls.

But all that was changed in 1967 because of two quiet and courageous people who fought for their love by fighting an unjust law, Richard and Mildred Loving of Virginia. Their desire to have their marriage recognized in the eyes of the law in native state led them all the way to the U.S. Supreme Court which struck down all anti-miscegenation laws in the nation.

Mildred Jeter Loving, an African-American, died at 68 last week. Her husband was killed in 1975 by a drunken driver. But she and he will forever have a place in history as the Loving family in ironically perfect legal citation Loving v. Virginia.

A humble woman by all accounts, Loving didn't see herself as a hero akin to Rosa Parks. But she and her husband started something that hasn't ended, for champions of same-sex marriage view the Lovings as a model.

by Andrew Zajac

The turnover in the Justice Department's executive suites continues. This afternoon it's Alice Fisher, head of the criminal division, who announced she's leaving, effective May 23.

Departures are expected in the waning days of a lame duck administration, but they began earlier and have been more frequent in the Bush 43 Justice Department, thanks to last year's federal prosecutors firing uproar and mounting discontent on Capitol Hill over DOJ's role in crafting post-9-11 counter-terror policies on surveillance and treatment of detainees.

Fisher, 41, had the kind of political credentials common in the upper reaches of the administration's legal apparatus: Federalist Society, deputy counsel in the Senate Whitewater investigation and the national steering committee of Women for Bush/Cheney, 2004.

But she managed to avoid getting dragged into the contentious Congressional hearings that so badly damaged former Attorney General Alberto Gonzales and several other top Justice officials.

Fisher, who served two different stints in the criminal division, oversaw the unit's response to the 9-11 attacks, including advising on the prosecutions of John Walker Lindh, Zacharias Moussaoui and Richard Reid, and she had a hand in carrying out provisions of the Patriot Act.

Here's DOJ's announcement of Fisher's pending departure:

by Andrew Zajac

Downstate Illinois Republican powerbroker Robert Kjellander stoutly denies going to the White House to try to get Chicago federal prosecutor Patrick Fitzgerald fired. But former Sen. Peter Fitzgerald, who recommended Patrick Fitzgerald for his Chicago post in 2001, said there's no doubt in his mind that top White House political operative Karl Rove knew of his long-time pal Kjellander's unhappiness with the prosecutor.

According to Peter Fitzgerald, Rove, in late 2003, told him that "Kjellander felt that I was out to get him through my U.S. attorney appointments."

Fitzgerald said he's baffled by that perception. "What would any law abiding person have to worry about from a U.S. attorney?" he said.

Yes, but was Peter Fitzgerald using his prosecutoria