Sunday, June 10, 2007

Former Justice Department Official Calls Gonzales' Actions 'Appalling'

Rebecca Carr, for Cox newspapers, interviews Dan Metcalfe:
Dan Metcalfe says he thought he had seen it all as a former senior Justice Department lawyer whose career stretches back to the Watergate scandal of the Nixon administration.

Over the years, Metcalfe says, he has taken pride in being able to work with Republican and Democratic administrations as director of the department's Office of Information and Privacy, which he co-founded in 1981.

But he says he has never seen anything quite like Attorney General Alberto R. Gonzales.

Metcalfe, 55, retired in early January, just before the storm erupted over the dismissal last year of nine U.S. attorneys. The House and Senate Judiciary committees are investigating whether the prosecutors were fired in order to squelch political investigations against Republicans or failing to aggressively pursue voter fraud charges against Democratic-leaning groups.

In an interview, Metcalfe said, "I think the way in which the firings themselves were handled was abominable, the way in which the ensuing controversy was handled was abysmal, and the way in which Gonzales has handled himself is absolutely appalling."

"As a long-term Justice Department official, I am embarrassed and increasingly incensed that he is still in there," he said.

The Justice Department, Metcalfe said, has been heavily damaged by "sheer political expediency, avoidance of individual responsibility, defensive personal aggrandizement, irresponsible 'consensus' decision-making (and) disregard for long-standing practices and principles."

He criticized the Bush administration for filling positions that are traditionally held by career employees with political appointees and protégés.

Historically, other administrations have had Justice Departments run by attorney generals with close ties to the White House. Attorney General Robert Kennedy was the brother of President John F. Kennedy.

But academics say that even the Kennedys maintained a healthy distance, in order to maintain the Justice Department's reputation for conducting investigations without any hint of political intrusion.

Gonzales has defended his decision to fire the prosecutors, saying there was nothing improper or illegal about their dismissal. The prosecutors, he said, serve at the pleasure of the president.

"I have admitted mistakes in managing this issue," Gonzales said during testimony before the Senate Judiciary Committee in April. "But the department, as a general matter, has not been mismanaged. We've done great things."

Over the last two years, Gonzales said, he has improved security to guard against terrorists, cracked down on gangs and shielded children against predators.

President Bush has strongly defended Gonzales, refusing to acquiesce to demands from Republicans and Democrats for his dismissal. On Sunday, his spokesman Tony Snow said on "Fox News Sunday" that a no-confidence vote on Gonzales scheduled for Monday was "purely symbolic" and would affect Bush's support "not a bit."

In an interview Sunday, Brian Roehrkasse, spokesperson for the Justice department, disagreed with Metcalfe's assessment of Gonzales's performance.

"Mr. Metcalfe is certainly entitled to his opinion. Unfortunately, his broad and overly general accusations are not necessarily grounded in fact," Roehrkasse said.

"I just don't think it is accurate to say that the department is filling up the jobs with political appointees. Look at the facts," he said. He said there are about 110,000 employees at the Department of Justice and fewer than 400 political appointees, Roehrkasse said.

Metcalfe is becoming a professor at American University's Washington College of Law and executive director of a new Center on Government Secrecy being established there next month. Here are excerpts from the interview:

Q.: You worked for both Republican and Democratic presidents since your start at the Justice Department in 1971. Can you tell the public why you left the Justice Department?

A.: First of all, I must say that 55 is not far too young an age at which to retire from government service if one is interested in having a second career, such as teaching law. One of the advantages of my having started out so young and becoming an office director before age 30 was having had a full career, at a high level, by that minimum federal retirement age. That said, though, there's no doubt that I would not have taken advantage of this so soon had I been working at age 55 in a different presidential administration.

Simply put, I found it increasingly difficult to look my wife and kids in the eye and say that even though I had a choice, I was going to continue working for George Bush and Alberto Gonzales. And this was before they and the public were able to fully comprehend why that sentence included Gonzales.

In fact, until Gonzales arrived at the Justice Department in early 2005, Dick Huff (the co-founder of the Office of Information and Privacy) and I had planned to work there until 2007 and at least 2008, respectively, in order to set up the best possible transition for OIP. That changed in mid-2005, however, when a rash of new mid-level political appointees, woefully lacking in government experience, began making the same types of mistakes over and again.

Mind you, these were almost entirely process problems, not policy ones per se, but in the aggregate they set a pattern of government disdain by a whole cadre of such aides who all too often were permitted to run rampant by the Department's senior leadership. It was almost comical at times, except that the work we were doing was serious. So Dick, who had long been retirement-eligible, retired much earlier than planned — and that suddenly freed me of my own personal commitment to stay well beyond the point of my own eligibility at the end of 2006.

Did this have something to do with the current "politicization" in the department? Of course it did. But the connection had everything to do with the processes of government decision-making and public administration rather than with matters of substantive policy.

When you see images of Kyle Sampson (Gonzales's former chief of staff), Monica Goodling (Gonzales's former counsel), and Mike Elston (chief of staff to the deputy attorney general) "handling" U.S. attorneys as they did, with virtually no adult supervision to compensate for their glaring lack of management experience, you get an idea of what Dick Huff and I saw, within our own policy realm, beginning when Gonzales arrived in February 2005, a year before I decided to retire.

Sheer political expediency, avoidance of individual responsibility, defensive personal aggrandizement, irresponsible "consensus" decision-making, disregard for long-standing practices and principles — it was all there, and it was tainted at most every turn by unprecedented White House involvement.

Q.: What do you think about the way Gonzales has handled the firing of nine U.S. attorneys last year? Were their rights under the 1974 Privacy Act violated by Justice Department officials airing their personnel files in open testimony and selective leaks?

A.: I think the way in which the firings themselves were handled was abominable, the way in which the ensuing controversy was handled was abysmal, and the way in which Gonzales has handled himself is absolutely appalling. As a long-term Justice Department official, I am embarrassed and increasingly incensed that he is still in there.

The U.S. attorneys who were fired surely deserved much better by any reasonable standard, regardless of the fact that they were appointees who served at the president's pleasure.

Remember that though these firings took place mostly in December, the controversy was largely fueled by the department's subsequent public pronouncements that they had been replaced for "performance" reasons. As several of them plaintively pointed out, this was highly stigmatizing, both for them personally and for the career professionals who worked for them in their districts. And it became only worse as aides such as Sampson and Elston flailed around to publicly justify their callous actions after the fact.

One has to wonder: What was the legal basis for the making of these reputation-damaging disclosures?

Surely the average federal employee is firmly protected from such gross recklessness by the strict disclosure prohibitions contained in the Privacy Act of 1974; dozens of cases under both the Privacy Act and the privacy exemptions of the Freedom of Information Act stand for that proposition.

Specifically, are political appointees such as U.S. attorneys any different? No, not if the adverse personnel information derives from (or properly should have been placed within) files maintained under a U.S. attorney's name or (as in this case, perhaps) any personal identifier, such as the judicial district in which he or she currently holds tenure.

And even the fact that such a disclosure might be made as part of a congressional inquiry does not absolutely insulate an agency from culpability or liability in this regard, especially where such an action is tantamount to public disclosure at the outset. At this point, would it surprise anyone to hear that this agency that is so vitally charged with enforcing the law has blithely violated the law in such a way? Sadly, it now would not — and that's part of the terrible damage that Gonzales's tenure has done to the Department of Justice.

Q.: Do you think that Gonzales has the confidence of the career civil servants to continue? How has the controversy affected the morale within the department?

A.: To put it mildly, it's hard to imagine that anyone but the most die-hard political appointees at the Justice Department would have any confidence in Gonzales today — and even that small amount of support would be based on blind loyalty rather than painful reality.

To take just one very specific aspect of his "performance," his astonishing lack of memory alone indicts him. It was bad enough when he claimed he couldn't remember having had a conversation with President Bush bout a U.S. attorney that even the White House (uncharacteristically) acknowledged had in fact taken place. But when he swore before the Senate in mid-April that he could not remember attending the Nov. 27 "U.S. attorney firing" meeting that was the only such meeting held — well, that was either non-credible or, if true, incredibly sad.

Remember that Gonzales had earlier testified on this subject on Jan. 18, less than two months after that Nov. 27 meeting; one should be able to assume that he specifically reviewed the basic facts of the matter then, scant as they were, regardless of how busy or distracted he might have been at any other time.

Yet it seemed that about all he could remember on the day of his Senate testimony in April was to show up as scheduled and take a seat — which, by the way, appears to have been Bush's low standard for his own blind vote of "confidence."

What a disgrace to the position of attorney general to have one who has become an iconic antithesis of personal responsibility. As for morale within the Department, perhaps someone should take an "exit poll" of its career employees as they leave the building at the end of the day; do you think Gonzales would muster even a fraction of Bush's own approval rating of 28 percent?

Q.: Did the Justice Department decision-making processes that you saw in 2005 and 2006 fit with what we now know about Gonzales' role in the U.S. attorneys matter?

A.: Yes, it was a perfect predictor of it. What I saw soon after Gonzales arrived was nothing less than a culture shift within the department, from one of individual responsibility to self-protection, from institutional integrity to highly transactional morality, and from professional confidence to fear of the unknown.

And make no mistake: The source of that fear almost invariably was "the White House" — which meant even the vice president's office on down to the most junior of White House staff members. When you have that fear, I saw, the best antidote apparently is to operate by "consensus," the mantra that Gonzales has repeated so tirelessly and pitifully whenever anyone has questioned his U.S. attorney decision-making — even as recently as in his House testimony on May 10 and at his exploitative National Press Club appearance immediately after Deputy Attorney General Paul McNulty announced his own resignation.

Evidently, the first thing you do in "consensus" decision-making is pledge to acquiesce to every suggestion that anyone else involved in the process might have, without caring a bit about the resulting "lowest common denominator" level of quality. Then you make sure that decisions that you absolutely have to be involved in (i.e., those that you cannot get away with completely delegating) are group decisions; that way, no one person takes responsibility for anything in particular.

As I saw time and again, this can both diffuse and obscure individual involvement, even for a person who by dint of his responsibility could not otherwise hope to evade accountability. Case in point: The very fact that no one knows even yet who it was who engineered the firing of U.S. Attorney David Iglesias is a quintessential example of how Gonzales's idea of "consensus" decision-making worked. Yes, to this very day, it has indeed "worked."

Q.: In a recent radio interview, you noted that middle management positions are being filled by political appointees or proteges of political appointees. What is the danger in that?

A.: In that interview I spoke of a particular personnel trend that is distinct from the "politicization" problem I've alluded to above, but which also compounds it.

What the general public probably does not realize is that at any sizable agency in the federal government there is a standard balance between career officials and non-career political appointees who together manage the agency, based upon a traditional division of positions along career/non-career lines. At some agencies, given the nature of their work, the ratio of political to career officials is relatively high; at the Department of Justice, given its unique role in the administration of justice, the opposite has always been the case. Until the current Bush administration, that is.

It is well grounded in fact that during the past six years many more positions have been filled by political or "political protege" appointees there, rather than by career officials as in the past.

These positions include that of an assistant attorney general, numerous deputy assistant attorneys general, and even some positions down at the level of branch director or section chief in the department's litigating divisions. And this is true also at the "component head" level. The Justice Department is divided into 40 components, with a group of "component heads" who predominantly are presidential appointees as you would naturally expect.

But when I retired this year as the longest-serving "component head" of the current group, I was one of a dwindling number of such officials who were not political appointees. What the public should understand is that apart from anything else, a political official is far more likely than a career one to bend the rules or even the law under any pressure that he receives from above or from the White House — and at Justice lately, the two have become one and the same.

By contrast, unless a career official is unduly concerned about her position, either current or prospective, such pressure should not pose an immediate danger to doing the right thing. So when one looks at the Justice Department these days, with its "politicization" problems at multiple levels, one should not overlook the types of people who are filling positions of authority and certainly should compare them to those who held such positions in the past.

Q.: You were there during the Nixon years, including the infamous "Saturday night massacre." Some lawmakers compare the current situation at Justice to that era, given the recent testimony by former Deputy Attorney General James Comey that mass resignations were in the works over Gonzales, as White House counsel, pursuing a domestic surveillance program that the Justice Department deemed illegal. Do you agree with that assessment?

A.: From my perspective, these current comparisons to the Watergate era are quite apt, even recognizing that the wide-ranging Watergate scandal involved many elements of proven criminality that do not appear to be present here.

It is the arrogance of power, the palpable disdain for the rule of law, and the utter disregard for the Justice Department's integrity that brings this so very close to the Watergate era.

Yes, I was lucky enough to have been working as a law clerk in part of the attorney general's office at the time of the "Saturday night massacre" in October of 1973, and I saw first-hand the devastating effects on the department's morale and its functioning when Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus were forced to resign rather than do Nixon's bidding and when William Saxbe came in as a replacement attorney general in 1974. That was a time characterized by virtually zero independence of the Justice Department from the White House and by fears of lawlessness as well. The rule of law was very much in question back then, as it unfortunately is again today.

And certainly the comparison is now all the more chilling with former Jim Comey's vivid account of then-White House Counsel Gonzales's blatant attempt to subvert the Justice Department's legal authority in a darkened hospital room. My own view of that sorry episode is that it tellingly took nothing less than threatened resignations, rather than proper legal arguments, to back a president down from a wrongful path, and that the nation is very lucky to have had people of the caliber of Jim Comey and FBI Director Robert Mueller to have done so.

You know, there were those who said in 1973 that our constitutional system of government had succeeded in withstanding a grave test when the Richardson and Ruckelshaus resignations permitted Nixon's firing of (Watergate) Special Prosecutor Archibald Cox on that Saturday night, but I think the real success of Watergate was when Nixon ultimately lost in the courts, setting the stage for impeachment and removal. One wonders whether the comparison will continue to hold in that way.

Q.: The tradition has long been that the Justice Department keeps a healthy distance from the White House. Is there a healthy distance between the Bush White House and the Gonzales Justice Department?

A.: No, there is an unhealthy lack of distance between the Justice Department and the White House now. That tradition of distance and independence stems from the Department's singular role in its administration of our system of justice and the rule of law.

To be sure, it was breached badly under Nixon, but that tradition has been a solid one ever since the Justice Department's post-Watergate repair by Attorney General Edward Levi under President Ford. To say that it has been absolutely shattered by the concerted efforts of Gonzales, Bush, and Karl Rove (not to mention those in the office of the vice president) is nearly redundant by now.

Q.: How does the Gonzales Justice Department compare to that of fellow conservative John Ashcroft? How does Gonzales compare to other attorney generals?

A.: To those of us who worked in the Justice Department under both Ashcroft and Gonzales, the contrasts were more striking than we ever could have imagined.

To be sure, Ashcroft ran the Department with a much more pronounced career/non-career divide than other attorneys general (especially his immediate predecessor Janet Reno) by importing the management model that had worked for him as a senator — and this was far from ideal.

But notice that I said he "ran" the Department; he wasn't just an "empty suit." He also was a man of no small integrity; whether you agreed with him or not, at least there was a basis for thinking that he was trying his best to do the right thing, particularly in the aftermath of 9/11. That certainly showed when he staunchly rebuffed Gonzales, on multiple grounds, from his hospital bed.

And in comparison to Gonzales, the fact that both are conservatives has become meaningless. The key contrast is their standing as individuals and as respectable holders of public trust, or not. Gonzales has now shown himself to be so lacking as to defy complete description; words seem inadequate in the face of such blithe noncompetence. Suffice to say that his standing relative to other attorneys general comports with how this president compares with his own predecessors.