Mixed Message

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MARCH 26, 2007

Mixed Message

It's 40 minutes into yesterday morning's Senate Judiciary hearing on the recent FBI privacy-abuse scandal, and Judiciary Committee Chairman Patrick Leahy is grousing about Iraq. What with all the Justice-related flaps breaking of late, Leahy has become a temporary King of the Hill, and today he has summoned FBI Director Robert Mueller to kiss his ring and explain why the Justice Department's inspector general found two weeks ago that the FBI had been committing gross violations of its prerogative to use "national security letters" to collect phone and e-mail records without a judge's permission. But, like the imperious king he is, the white-haired and gravelly voiced Leahy has taken to subjecting his long-suffering vassals to rambling digressions about the other problems afflicting his dominion, and today his frame of mind is stuck in the Middle East. After Mueller complains that Congress didn't apportion the FBI adequate funds for a compliance program, Leahy grumbles about how the Bush administration cut "cop money because we need well-maintained police in Iraq." He threatens the hearing's assembled audience that he might go on a rant about "how the administration spends funds in Iraq and ought to be spending them at home." And, after pointing out the FBI's failures to communicate with another agency, he barks at Mueller, "It's almost like one of you are the Sunnis and one are the Shiites! Somebody ought to tell you we're all Americans!"

So the messed-up FBI is like the messed-up situation in Iraq. Or maybe it's more like that messed-up thing with the U.S. attorneys. Whatever. In the last couple of weeks, even in the minds of the lawmakers tasked with oversight, the administration's scandals and screw-ups have started to blur together into one Meta Screw-Up--a situation in which every procedural safeguard, institutional norm, and carefully designed plan seems to have "just melted into oblivion with this sloppy administration," as Senator Dianne Feinstein put it at the Mueller hearing. The impression that we are, by now, witnessing the unfolding of one giant, undifferentiated scandal is compounded by the sense that this is some kind of watershed moment: The U.S. attorneys affair unleashed last Thursday's complaint that Bush partisans meddled with a Justice Department tobacco prosecution, which unleashed Monday's accusation that the General Services Administration was misused for political ends, and on and on.

It may be useful to understand all these flare-ups as part of the same institutional problem, as the Editors do in this week's issue. But that interpretation happens to derail badly Leahy's Mueller hearing. The FBI's misuse of the Patriot Act doesn't really have anything to do with these other little fires. In fact, the withering report that implicates various FBI field offices in years-long abuses of power--failing to save copies of national security letters, omitting 20 percent of the letters in their reports to headquarters, making up emergencies to bypass court approval for warrants, and saving inappropriately gathered private information that should have been purged--suggests the FBI affair is, arguably, just as serious as the U.S. attorneys scandal and the others. At the very least, it's worth a lengthy, focused, and hard-hitting inquisition of the agency's chief.

 

But, instead, Mueller's hearing wandered aimlessly through other provinces of the Meta Screw-Up. Here's what ranking Republican Arlen Specter wanted to ask the FBI chief first: "Director Mueller, is it true that [fired U.S. attorney] Carol Lam's continued employment as a U.S. attorney was crucial to ongoing investigations?" He was referring to a January story in the San Diego Union-Tribune that quoted San Diego Field Chief Dan Dzwilewski as saying that she shouldn't have been fired--and that she was crucial to the progress of ongoing investigations. Mueller, with an edge in his voice now, disagreed with Dzwilewski's opinion and even suggested that the quote did not, in fact, represent what Dzwilewski himself thinks: "Our chief out there believes he was misquoted," said Mueller, wearily. "Now on to Iglesias!" said Specter, apparently planning to use his time to question Mueller attorney-by-attorney.

Speaking next, Feinstein, in a soft and deadly voice, brought up the same Union-Tribune story and revealed she'd had her chief counsel actually call the San Diego field office, whose agents had apparently been "warned to say no more." Exasperated and shifting in his seat, Mueller shot back with Attorney General Alberto Gonzales's standard talking points: "I don't believe it's appropriate to comment on personnel decisions made by the Department of Justice."

The die-hard conservatives on the committee did little to help Mueller out. Arizona Republican Jon Kyl offered some backhanded words of defense: "I think it's important not to compound one set of mistakes with another," he said, by way of telling Congress to ease up. But, not to be deterred by his own advice, Kyl then complained to Mueller about the treatment of sacked Arizona attorney Paul Charlton. Über-conservative Alabama Senator Jeff Sessions, looking frail and baby-pink under his tufts of white hair, drawled hesitantly, "I think it was good what we did" with the Patriot Act--but then proclaimed that the FBI had been "seriously embarrassed" by the recent allegations. And Specter! Even for a maverick, he was in his finest petulant form. After Mueller argued that information had been mishandled because certain "affidavits are exceptionally long; there are thousands of facts, and mistakes can be made," Specter retorted in an ominously dry and bitter tone: "Director Mueller, I am not impressed by your assertion that there are 'thousands of facts'! That's your job!"

 

But we were not to learn any more about the thousands of facts, or where they had gone, or why Mueller's FBI agents could not handle them. A couple of sentences later, Specter wrapped up his inquiry and disappeared. Sneaking out to use the bathroom, I found him parked in the fluorescent-lit Dirksen hallway outside the hearing room, where he had been accosted by TV cameras and boom mikes. Reporters with pads thronged around him; a frantic-looking pregnant woman strained to keep a tape recorder thrust up to his side. But they weren't asking him about the FBI scandal, or the brief but successful flaying Specter had just given Mueller on his lame excuses for the agency's carelessness. Instead, they demanded to know why Gonzales aide Monica Goodling was refusing to testify before the Judiciary Committee in the U.S. attorneys kerfuffle: We're only interested in the next hottest break in the Meta Screw-Up! A tolerant expression on his face, Specter happily complied.

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