Lawyers for former prosecutor Richard Convertino aren’t giving up their quest to find out who leaked news of a Justice Department ethics investigation into his handling of a 2003 terrorism trial. They have asked a judge to order Detroit Free Press editors to give up the information, after the paper’s reporter, David Ashenfelter, argued his Fifth Amendment rights would be violated if he divulged the source.

Convertino is suing the Justice Department for privacy violations. He claims the leak was illegal, which is why Ashenfelter invoked the Fifth. The journalist’s earlier argument that the First Amendment protected his confidential source was rejected. 

Convertino’s motion argues the newspaper itself can’t claim the Fifth. Because the paper’s ethics policy instructs reporters to reveal their confidential sources to an editor, the editors must know the source’s identity, Convertino argues.

A judge agreed with the DOJ’s Public Integrity Section that unsealing documents in a highly publicized insurance fraud case would improperly reveal secret grand jury material involving an investigation into public corruption in South Florida. Read the Miami Herald story here.

We are chagrined to say we missed this, but the Senate confirmed Ron Weich to head the DOJ’s Office of Legislative Affairs yesterday. But it was easy to miss: the nomination was approved by unanimous consent, with no drama.

Here is the statement Weich’s now-former boss, Senate Majority Leader Harry Reid (D-Nev.), gave on the Senate floor after the nomination was confirmed:

Mr. REID. Mr. President, before I turn this over to Senator Durbin to close, I want to say a word or two about this nomination we just completed. That is the nomination of Ron Weich.

   I know Ron has waited with his family for a long time to get this done, but I have tremendously mixed emotions. A part of me was saying: I wish maybe

   He is going to lead the Justice Department regarding legislative affairs. He has had prosecutorial experience and Government experience. I know and respect all he has done to strengthen our national security, forward the cause of justice, and raise the ethics standards of our Government and in the whole country. In fact, Ron took a lead role in the last Congress, as we passed the most sweeping ethics and lobbying reforms in the history of our Congress and our country.

   Those who know and work with Ron value not only his extensive experience but just the person he is. I express my appreciation to Ron Weich for his sound judgment, his collegiality, his honesty, and loyalty to me. Eric Holder will find the same there.

   While many of his colleagues from Columbia University and Yale Law School, where he was educated, are out in the private sector making a lot of money, Ron has spent most of his life in public service. He came back to the Senate after having been in a renowned law firm downtown. But he came back because this is what he wants to do. He is able to make enough money to raise his family. He is not interested in how much money he makes. He is interested in what good he can do for our country.

   Our Nation benefits immensely when people as good at what they do as Ron is–and as good to others as Ron is–choose to make a difference.

   As I have indicated, I am sad to see him leave this Capitol complex. I am comforted by knowing that Ron will play an important role in rebuilding Attorney General Holder’s Justice Department to a place where all are once again equal under the law, protected by the law, and no one is above the law.

UBS AG says the effort to uncover the names of 52,000 Americans who used its account to evade taxes would violate Switzerland’s bank secrecy laws. Read the Reuters story here.

So, former “enemy combatant� Ali Saleh Kahlah Al-Marri did indeed turn out to be an al-Qaeda operative. And a very dangerous one at that. Trained in al-Qaeda camps and schooled in chemical warfare, the dual Qatar-Saudi Arabian citizen admitted in a plea deal Thursday the government could prove he’d been sent to the U.S. by 9/11 mastermind Khalid Sheikh Mohammed to be part of a sleeper cell to launch further attacks.

But when President Bush designated al-Marri an “enemy combatant� in 2003, throwing him into a Navy brig in South Carolina for five years in violation of his habeas rights, some people began to think he really was just a student and not, as the government alleged, hard-core al-Qaeda.

Al-Marri defense attorney Andrew Savage told the New Yorker’s Jane Mayer for a story published in February:

 “I don’t fear him, not personally and not for the United States,� Savage said. “Is he putting me on? Scamming me? Putting it over on me? I really don’t think so. I’m not naïve. I’ve defended multi-murderers, child murderers, child molesters, and all sorts of violent criminals. But I really don’t think Ali’s a terrorist.�

Not naïve? Give me a break!

Mayer’s piece is one of the few that thoughtfully explores the dilemma facing the Obama administration, which is under fire from the Left for defending the Bush positions on state secrets and other security matters. To wit: This stuff ain’t easy, folks.

Originally charged with credit card and identity fraud, al-Marri’s case presented a problem for the Bush administration. Inside the government, where officials had access to all the intelligence and investigatory material, it was clear al-Marri was a terrible danger. But what if a jury found otherwise? They do it all the time, even in the face of overwhelming evidence of guilt – just look at the Sami Al-Arian case that we’ve written about previously at Main Justice. If al-Marri hadn’t been convicted, he would have been deported, yes. But then he might have gone right back into circulation, working with al-Qaeda to plan more attacks on the United States.

But Bush’s solution – lock him up and throw away the key – is antithetical to everything the Founders envisioned when they wrote our Constitution.

Georgetown law professor Neal Katyal, who won the 2006 Hamdan case before the Supreme Court striking down Guantanamo military tribunals, and who is now the principal deputy solicitor general, has proposed a national security court to take on these difficult cases. This court would be staffed by lawyers with high-level clearances and judges who specialize in the national security. In this manner, some form of preventive detention consistent with the constitution could be achieved, he’s written.

Attorney General Eric Holder in a statement about the al-Marri plea recognized the balancing act. “Without a doubt, this case is a grim reminder of the seriousness of the threat we, as a nation, still face.  But it also reflects what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which this nation was founded and the rule of law.�

Still, the maximum sentence al-Marri faces is 15 years. That seems a bit lenient. There are Americans sitting in jail today for the rest of their lives for much lesser offenses. Al-Marri’s already been locked up for nearly eight years. Here’s hoping he doesn’t get credit for any time served.

The Senate isn’t any closer to voting on Justice Department Office of Legal Counsel nominee Dawn Johnsen, Assistant Senate Majority Leader Dick Durbin (D-Ill.) said at a reporter’s gaggle in the Capitol today. ”We need some Republicans on our side,” Durbin said.

For weeks, Democrats have tried to unify their caucus behind the liberal Indiana University law professor and woo some Republicans to prevent a filibuster. With Sen. Arlen Specter’s party switch this week, Democrats have 57 seats in the Senate. In addition, two independents caucus with the Democrats. And one Republican – Johnsen’s home state senator, Richard Lugar of Indiana – has said he supports her nomination.

But that doesn’t mean Democrats are over the 60-vote hurdle to cut off debate. After weeks of staying mum on the subject, Specter said Tuesday he opposes Johnsen’s confirmation. But he didn’t answer a question about whether he’d vote with his new party on a procedural motion to end debate.

Moreover, Sen. Edward Kennedy is battling brain cancer and unlikely to make it for a vote. And the Minnesota Senate race is still undecided. That means: Even if all the Democrats (including Specter but minus Kennedy), and the two independents, and Lugar vote to end debate on Johnsen, Democrats only have 59 votes.

If Specter balks at voting with his new party on the procedural vote, Democrats only have 58 votes.

If any conservative Democrat peels off, Democrats could be even farther in the hole. (We have a call into Arkansas Sen. Blanche Lincoln, who is up for re-election next year in a conservative-leaning state, but haven’t heard back about her position on Johnsen). However, conservative Democratic Sen. Ben Nelson of Nebraska, who opposes Johnsen’s confirmation over her past advocacy for abortion rights, has said he will stick with his party on the procedural vote and support ending debate.

The Democrats are still whipping. Majority Leader Sen. Harry Reid (D-Nev.) said he “had a conversation” about the Johnsen nomination on Tuesday. He wouldn’t say with whom, but moderate Maine Republicans  Sens. Susan Collins and Olympia Snowe have said they have not made up their minds on Johnsen.

Ali Saleh Kahlah al-Marri pleaded guilty today to being an al-Qaeda ‘sleeper’ operative working on U.S. soil under the direction of Khalid Sheikh Mohammed, planner of the 9/11 attacks. He case was before Judge Michael M. Mihm in U.S. District Court for the Central District of Illinois. Al-Marri was arrested in December 2001 on a material witness warrant issued in connection with the Sept. 11, 2001 attacks. Charges against him of credit card and identity fraud were dismissed in June 2003, when President Bush designated the dual Saudi-Qatari national an “enemy combatant” and sent him to a Navy brig in South Carolina, where he remained until the Obama administration transfered his case to the civilian courts with a new indictment issued in February.

From today’s DOJ news release:

“Al-Marri researched the use of chemical weapons, potential targets and maximum casualties,â€� said Arthur M. Cummings, II, Executive Assistant Director of the FBI’s National Security Branch.  …

“Ali al-Marri today admitted that he traveled to central Illinois as an al-Qaeda operative the day before the Sept.11, 2001, attacks to plan and prepare for future acts of terrorism within the United States,� said Jeffrey B. Lang, Acting U.S. Attorney for the Central District of Illinois.  

The government said al-Marri knew the government was prepared to prove he attended terrorist training camps from 1998 to 2001 and stayed in safe houses in Pakistan run by al-Qaeda. He gave al-Qaeda operatives his family contact information should he be killed or “martyred” during an al-Qaeda mission, the DOJ news release said. KSM approached him in 2001 about going to the U.S. no later than Sept. 10, 2001. Al-Marri used codes and email to communicate with KSM, the government said. 

The case is being prosecuted by Trial Attorneys Joanna Baltes and Sharon Lever of the Counterterrorism Section of the Justice Department’s National Security Division, and Assistant U.S. Attorney David E. Risley of the U.S. Attorney’s Office for the Central District of Illinois. Assistant U.S. Attorney Kevin F. McDonald of the U.S. Attorney’s Office for the District of South Carolina also provided critical assistance.

Maine Reps. Michael Michaud and Chellie Pingree have recommended four people to the White House to fill the state’s U.S. Attorney position. They are: Superior Court Justice Thomas Delahanty II, District Attorney Evert Fowle Jr., former U.S. Attorney Jay McCloskey and attorney Thimi Mina.

A Salt Lake Tribune columnist wrote an opinion column reflecting on the role Mormons played in devising U.S. torture policies.

Salt Lake attorney David R. Irvine,  a former Utah state lawmaker and retired U.S. Army Reserve brigadier general, writes:

[M]embers of The Church of Jesus Christ of Latter-day Saints served as helpful enablers. Not only did they provide the legal architecture, they provided the “scientific” patina for the plunge into the barbaric business of torture

Irvine is referring to former White House deputy counsel Timothy E. Flanigan; former Office of Legal Counsel head Jay Bybee, and psychologists James E. Mitchell and John B. Jessen, who worked with the Air Force’s Survival, Evasion, Resistance and Escape (SERE) programs. SERE was a program to help captured Americans learn techniques to survive torture, but elements of the program were “reverse engineered” to apply the methods to al-Qaeda detainees during the Bush administration.

Levine’s bio says he also taught prisoner of war interrogation and military law for 18 years for the Sixth United States Army Intelligence School.

 

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So says the Defense Secretary in testimony before the Senate Appropriations Committee today. The administration is requesting $50 million to build new cell blocks “in case” they need to house the Guantanamo Bay prisoners on U.S. soil. Read the New York Times story here.