Edwin Meese III

Former Attorney General Ed Meese on Wednesday joined in the criticism of Attorney General Eric Holder’s controversial decision to try alleged Sept. 11, 2001, terrorism mastermind Khalid Sheikh Mohammed in federal court in New York. Meese served as Attorney General under President Ronald Reagan from 1985 to 1988.

In a blog posting on Web site of the Heritage Foundation, where Meese is the Ronald Reagan Distinguished Fellow in Public Policy and chairman of the Center for Legal and Judicial Studies, he also criticized the decision to “abandon” the Guantanamo Bay detention camp.

Here’s Meese’s full blog posting:

“It is clear that foreign terrorists and terrorist groups have committed acts of war against the United States, and that our national security requires that we respond accordingly. This means that President Bush’s prudent actions and the military response which he led should continue as our answer to these attacks.

Congress overwhelmingly reaffirmed their commitment to military commissions in 2006, which have historically been the way that we respond to acts of war. To abandon our two centuries of tradition and to substitute some new civilian procedure as a response to such attacks endangers the security of our country and our national interest.

It was a tragic mistake to decide to abandon the prison facility at Guantanamo Bay, which was designed physically and legally to handle these types of cases. It is a further tragic mistake to now bring the detained war combatants into the United States and to employ civilian criminal procedures which were never intended for this type of situation.

The U.S. Constitution protects American citizens and visitors from the moment they are suspected of criminal wrongdoing through a potential trial. These same protections are not, have never, and should not be granted to enemy combatants in war, since it is clear that regardless of the outcome of the trial, these detainees will likely remain in the custody of the United States.�

Michel Nicrosi (courtesy Trinity Episcopal Church)

Former federal prosecutor and tax-fraud expert Michel Nicrosi on Thursday will file papers with the Alabama Secretary of State to run for the Democratic nomination for state Attorney General, The Associated Press reports. She told The AP she wants the job because the office needs a prosecutor and not a politician.

Nicrosi had been mentioned earlier this year as a possible nominee for U.S. Attorney for the Middle District of Alabama. She was the first choice of a selection committee formed by Democratic Rep. Artur Davis. But she didn’t have the support of Alabama Republican Sens. Jeff Sessions and Richard Shelby.

The White House instead has vetted Joseph P. Van Heest, a criminal defense attorney in Montgomery, for the job. Van Heest was Davis’s second choice. But his nomination has been held up for months over objections from Shelby, who reportedly supports the daughter of a friend and political support for the Middle District instead.

Check out our previous report here.

Nicrosi, who previously was an assistant U.S. Attorney in Mobile, where she is now in private practice, successfully defended a top aide to former Gov. Don Siegelman (D) against racketeering charges.

The only other Democrat to announce a Secretary of State candidacy is former state Democratic chairman Giles Perkins. Two other Democrats have been mentioned as possible candidates for the nomination: attorney James Anderson and Marshall County District Attorney Steve Marshall.

On the GOP side, current Attorney General Troy King plans to run for re-election. He will face Luther Strange, a Republican activist who also sought the post in 2006.

Eric Holder (DOJ)

During his trip to Las Vegas last month, Attorney General Eric Holder avoided Sen. John Ensign (R-Nev.), going out of his way to ensure that the two would not be in attendance at the same event, Politico reports. Holder, who let his hair down a bit during his visit, was in Las Vegas to attend several events, including the Anti-Defamation League’s (ADL) 2009 American Heritage Award Dinner.

Holder was scheduled to appear on stage during the Oct. 17 dinner with Senate Majority Leader Harry Reid (D-Nev.) and Ensign. However, the event came weeks after the disclosure that Ensign had tried to help find lobbying work for Doug Hampton, a former top aide to Ensign whose wife, Cindy, had a nine-month affair with the senator from 2007 to 2008. Although Ensign has admitted to the affair, he has denied trying to help Hampton find work.

Politico reports that a Justice Department official called the ADL before the event and told them Holder would not attend the dinner if Ensign would also be there. Ensign “graciously agreed” to the request and compromised that Ensign would appear at the event via video, Politico reports.

Sen. John Ensign (R-Nev.)

One of the reasons Holder might have wanted to avoid a run-in with the senator is that DOJ is considering whether to launch a criminal probe into the Ensign matter, Politico reports. DOJ will not confirm whether a probe will take place, although department officials “signal that the case is a low-priority matter for them,” according to Politico. No one close with either Ensign or the Hamptons has been contacted by DOJ investigators, Politico reports.

According to Politico, “Launching a criminal investigation of Ensign based on Hampton’s accusations is fraught with legal and political difficulties for DOJ.” Among them are the fact that only one member of Congress — Republican Bob Ney of Ohio — has ever been convicted of violating the lobbying ban for a former top aide, Politico reports. In addition, the department’s Public Integrity Section “has taken a battering this year,” according to Politico. Doug Hampton also has made numerous public statements about Ensign, which calls into question whether he could be considered a reliable witness, according to Politico.

Harry Reid (gov)

If DOJ opts not to take up the Ensign case, his future will lie with the Senate Ethics Committee, which has begun a “preliminary reviewâ€�of the case, according to Politico. Because the panel and DOJ rarely conduct simultaneous investigations, the committee’s steps hint “that DOJ is standing down its own investigation, at least for the moment,” Politico reports.

From the Washington Post:

Herbert J. “Jack” Miller Jr., who led the Justice Department’s war on organized crime in the 1960s and later brokered the pardon of President Richard M. Nixon and prevented the release of Nixon’s White House tapes after the Watergate scandal, died Nov. 14 at Shady Grove Adventist Hospital in Rockville of renal failure after being treated for influenza. He was 85.

Mr. Miller was chosen by Robert Kennedy to lead the Justice Department’s criminal division, with an emphasis on organized crime. He won a conviction in 1964 against Hoffa for jury tampering and led the successful prosecution of Bobby Baker, a Senate secretary and close Lyndon B. Johnson associate, for influence peddling.

The Post also has an entry on its Post Mortem blog by Matt Schudel, the author of the obituary, that offers further background on Miller.

The Justice Department recovered $2.4 billion in settlements and judgments from False Claims Act cases in fiscal 2009, the second largest haul since the statute was reformed more than 20 years ago, the Justice Department announced on Thursday.

The fiscal 2009 collections bring to $24 billion the amount recovered by the government since 1986, when the FCA was amended to make it easier for private citizens to sue on behalf of the government. About $2 billion of the last fiscal year’s total was recovered through qui tam actions, in which citizens, called relators, initiated the lawsuits. When companies doing business with the government submit false or fraudulent claims for payment, they are liable under the FCA.

Health care fraud represented about $1.6 billion, or about two-thirds, of the 2009 total.

In a briefing with reporters on Thursday, Tony West, the Assistant Attorney General for the Civil Division, attributed the uptick to increased focus on the health care industry, combined with tremendous incentive for citizens to make claims.

Relators receive between 15 and 25 percent of the proceeds of a successful suit. In fiscal 2009, they were awarded $255 million.

“The extraordinary success of this public-private partnership goes far beyond the $2.4 billion recovered, to additional billions saved through deterrence and vigilance,” West told reporters.

Assistant Attorney General Lanny Breuer, who heads the Criminal Division, announced last week that Foreign Corrupt Practices Act violations by pharmaceutical companies would be enforced vigorously.

In May, the department unveiled the Heath Care Fraud Prevention and Enforcement Team, a joint efforts by the DOJ and the Department of Health and Human Services to combat Medicaid and Medicare fraud.

West said prosecutors and civil lawyers are sharing information, when appropriate, and deploying the “full panoply” of enforcement tools, when possible.

The 2009 FCA figures included two record-breaking settlements, both triggered by qui tam actions. The state of New York and New York City agreed to pay the United States $540 million in a settlement of Medicaid claims. NetApp Inc. and NetApp U.S. Public Sector Inc. paid the government $128.7 million in a defective-pricing involving the General Services Administration.

In September, Pfizer Inc., the world’s largest drug maker, agreed to pay $2.3 billion in a settlement with the government over charges that it illegally marketed several of its drugs. About $1 billion stems from FCA claims.

West said the Pfizer case, the largest-ever health care settlement, was not tallied in the fiscal 2009 accounting because Pfizer had not yet made any payments in that period.

“Next year ought to be a good year, too,” West said. “So stay tuned.”

The Justice Department’s Inspector General investigated two DOJ officials in connection with the Jack Abramoff lobbying scandal, but they were never charged, according to court papers filed Wednesday night.

The disclosure came in a government sentencing memorandum for Robert Coughlin II, a former lawyer in the Office of Intergovernmental and Public Liaison and deputy chief of staff in the Criminal Division. Coughlin, the only DOJ official to be charged in the influence-peddling probe, pleaded guilty in April 2008 to a conflict of interest charge. Coughlin is scheduled to be sentenced on Nov. 24.

The memo does not name the other two DOJ officials, but it notes that the investigations are closed. The sentencing memo seems to put to rest questions about whether any other Justice officials, past or current, could face prosecution in the Abramoff probe.

The memo notes Coughlin’s help to prosecutors in probing other aspects of the case, but points out that he was “minimal assistance” in its investigation of former Abramoff associate Kevin Ring. Still, the Justice Department is crediting him for his earlier help. Coughlin faces up to six months in prison — but that’s unlikely, given his assistance and the treatment received by the majority of the other 17 officials convicted in the probe.

Federal prosecutors had planned to use Coughlin as a witness in the trial of Ring, who gave him more than $4,000 in meals and tickets to concerts and sporting events. Prosecutors say Coughlin helped Ring achieve lobbying victories, giving him inside information and setting up meetings with officials in return for a stream of gifts.

Days before he was to testify, Coughlin told prosecutors during a mock cross-examination that he felt he was unfairly targeted by the Justice Department and that “the things of value Mr. Ring gave him did not influence his official actions,� according to court papers.

Prosecutors dropped Coughlin from the witness list and “had to scramble on the eve of the trial to find other witnesses who could fully and accurately describe Ring’s efforts to corruptly influence and reward DOJ officials,” the memo says. (Ring’s case ended last month in a mistrial. Prosecutors have said they will bring the case again.)

Before Coughlin’s revelation during trial preparation, he had submitted to eight interviews with various agents.

According to prosecutors:

Coughlin was interviewed by DOJ Office of the Inspector General (OIG) agents regarding other DOJ officials. He was also interviewed by an FBI agent regarding the broader Abramoff investigation. And he was interviewed by a DOJ Inspector General agent regarding allegations of politicized hiring at DOJ. The bulk of these interviews required him to travel to Washington, D.C., and to stay overnight. These interviews were of some use in closing the OIG’s investigations of two DOJ officials, and in completing the investigation of allegations of politicized hiring at the DOJ.

During the Ring trial, David Ayres, the chief of staff to then-Attorney General John Ashcroft, invoked his Fifth Amendment right against self-incrimination to avoid testifying.

Ring’s lawyers wanted to question Ayres about a $16.3 million grant the Justice Department awarded to one of Ring’s tribal clients in 2002 and college basketball tickets he and his wife received from the lobbyist.

Prosecutors said Ring intended to cultivate Ayres, who is now CEO of Ashcroft’s consulting firm, with the tickets in return for future favors.

The government alleged that in January 2002 Ayres helped Ring secure the grant for the Mississippi Band of Choctaw Indians, overruling then-Deputy Assistant Attorney General Tracy Henke, who thought the $16.3 million figure, to be used for a new jail, was too much.

Ring’s defense lawyers said they could show that Ayres did not make the decision to award the grant.

Associate Deputy Attorney General Donald Verrilli at a panel at American University today (Photo by Ryan J. Reilly / Main Justice).

The Obama administration inherited approximately 20 state secrets cases from the Bush administration and is working to develop a stricter definition of the controversial legal privilege, Associate Deputy Attorney General Donald Verrilli said Wednesday.

The administration wants to ensure the privilege is only invoked when there are legitimate national security concerns, Verrilli said at a forum Wednesday.

Still, he acknowledged there has not been a bottom-line change from the Bush administration on the privilege, which the government can invoke to keep information out of public court records if it is deemed to be harmful to national security.

Speaking as part of a panel at American University’s Washington College of Law, Verrilli said the administration was working towards a “narrow tailoring” of the state secrets privilege. The goal is to assert it “to the minimal extent necessary,” he said, adding that as a matter of policy, the administration would not assert the privilege to cover up government wrongdoing.

But critics say they expected more from President Barack Obama, who campaigned against perceived Bush-era civil liberties abuses. They also worry that the internal executive policy of justifying the use of the states secrets privilege on a number of levels wouldn’t be binding on future administrations. The critics want Congress to act.

Sharon Bradford Franklin of the Constitution Project (Photo by Ryan J. Reilly / Main Justice)

“We’ve pulled back from the brink, but there’s still a long way to go,â€� said Sharon Bradford Franklin, senior counsel to the Constitution Project. “It’s a welcome development, but really is the first small step.”

Bradford said there is a need to reassert the role of the courts to provide a check on the executive branch when it comes to the state secrets privilege.

She also said it was important to make sure the executive branch is not policing itself. Secrecy and over-classification has been an issue in the government for years, said Bradford.

Verrilli sits on a task force of senior Department of Justice officials that was asked by Attorney General Eric Holder earlier this year to review every pending case in which the states secrets had been invoked. The panel has spent a large amount of time on the issue, said Verrilli, who noted that he went into it with an “extremely skeptical point of view.”

Verrilli said the problems with invoking the state secrets privilege are a potential lack of public confidence in a court’s result when information is withheld. He also said there is a potential erosion of the value of the court system if a case cannot proceed because the government invokes the privilege, said Verrilli.

“Those costs are real and they’re serious and we acknowledge that they exist here, and the question for us is what can we do to address that set of problems that exist here,” said Verrilli.

Verrilli said the DOJ task force has tried to set up a system of accountability. Credible allegations of wrongdoing by government officials require referrals of the allegations to the Inspector General office of the agency whose conduct is at issue. The administration is also committed to robust congressional oversight, said Verrilli.

“While it’s not a perfect substitute, it’s our hope it will be an important mechanism,” said Verrilli.

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union (Photo by Ryan J. Reilly / Main Justice).

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union, noted the panel’s topic was the Obama administration’s emerging position on the state secret privilege and how it differs from the Bush administration.

“We can address that pretty quickly, it hasn’t” changed, said Wizner. “It’s been pretty much the same.”

Wizner said overly broad secrecy claims amount to immunity for the government. He said that immunity was not simply the effect of, but rather the intent of, the government in many cases in which it invoked the state secrets privilege.

“We do not have a single judicial opinion that rules on whether the Bush administration’s torture program was legal,” Wizner said.

Verrelli also said that the Obama administration doesn’t have a position on reform legislation from Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee’s Constitution subcommittee. Nadler gave the keynote speech at the forum Wednesday morning.

“We’re engaged in a dialogue, it’s ongoing and it will continue,” said Verrelli.

Sen. Jeff Sessions (R-Ala.) almost thought he had an anarchist in his midst during a Senate Judiciary Committee nominations hearing today.

John Laub (University of Maryland)

The panel’s ranking member questioned John Laub, who is nominated to lead the Justice Department’s National Institute of Justice, about a paper he wrote as a doctoral student that seemed to espouse anarchism. But Laub was ready.

The nominee said he had a feeling that Sessions would ask about the paper he wrote in 1978 when he was studying for his Ph.D at State University of New York at Albany’s School of Criminal Justice.

“I re-read the article 30 years out and frankly didn’t understand much of it,” Laub said at the hearing, drawing laughter from the audience. He added that his track record as a professor — most recently at the University of Maryland — shows that he is not an anarchist.

Susan B. Carbon (National Council of Juvenile and Family Court Judges)

The panel also heard from Susan Carbon, who is nominated to head the department’s Office on Violence Against Women. The state judge, who supervises the New Hampshire judicial branch family division, said, if confirmed, she would focus on the prevention of domestic violence and efforts to help children suffering from the effects of domestic abuse.

“I know that the issue of violence against women is extremely important to this administration and I’m particularly humbled to have been nominated for this position,” Carbon said.

The panel has yet to schedule votes on Laub and Carbon, who were nominated last month.

Attorney General Eric Holder used his Senate Judiciary Committee appearance today to push back against conservative critics on national security.

Without naming names, Holder refuted recent comments by former Attorney General Michael Mukasey and Mukasey’s close friend, former New York City Mayor Rudy Giuliani, both of whom have slammed Holder’s controversial decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed in federal court in New York.

“There are some who have said this decision means that we have reverted to a pre-9/11 mentality, or that we don’t realize this nation is at war,” Holder said in his opening remarks before a Justice Department oversight hearing. “I know that we are at war.”

The “pre-9/11 mentality” comment appeared aimed right at Mukasey, who was President George W. Bush’s last Attorney General, and who served as an Assistant U.S. Attorney in the Southern District of New York in the mid 1970s with Giuliani.

Mukasey had earlier criticized the Obama administration for dropping use of the Bush-era “war on terror” phrase.

“Using soft, cushy euphemisms instead reflect they’re back in a pre-9-11 mentality,” Mukasey told the Washington Times. “In some ways it’s worse, because at least before [the attacks] we were not aware of what we were facing.”

And Giuliani said Wednesday that if Holder “truly believes we are at war,” he will reverse the decision to try KSM in civilian court and instead let the military try him. “It sends a signal to the terrorists that we are not taking this seriously, as we did before,” the 2008 Republican presidential candidate told reporters on a conference call arranged by the Republican National Committee.

Giuliani became famous for his leadership of New York through the Sept. 11, 2001 attacks that brought down the World Trade Center. He became mayor in 1994, a year after followers of an Islamist leader with ties to Osama Bin Laden, the “blind sheikh” Omar Abdel Rahman, had first tried to bring down the towers, using explosives.

NBC’s First Read political newsletter points out a perceived inconsistency in Giuliani’s statements over time. In 1994, the New York mayor praised a guilty verdict in the first WTC bombing trial as demonstrating that “New Yorkers won’t meet violence with violence, but with a far greater weapon — the law.”

For his part Mukasey has been on an op-ed spree in recent weeks, publishing arguments in favor of military commissions in the Wall Street Journal and The Washington Post.

Holder on Wednesday said his critics who said courts can’t handle terrorism cases and that classified information wouldn’t be protected are spreading “misinformation.”

“Our courts have a long history of handling these cases, and no district has a longer history than the Southern District of New York in Manhattan,” Holder said. Among the high profile terrorism trials in New York was the 1994-95 trial of Abdel Rahman, who was convicted of plotting to blow up the United Nations and other New York City landmarks. Mukasey, then a federal judge, presided over the trial.

At Wednesday’s hearing, Sen. Orrin Hatch (R-Utah) cited Mukasey’s previous statements that he believed the Abdel Rahman trial had been bad for national security. The trial produced a public list of  unindicted co-conspirators — including bin Laden — that may have tipped off the al-Qaeda leader he was wanted by the U.S. government, Mukasey has said.

Holder parried that prosecutors would have sought to keep the unindicted co-conspirator list classified and secret, if it had really compromised national security.

But one of the most interesting exchanges Wednesday came with a Democrat on the Senate panel. Sen. Herb Kohl (D-Wis) asked Holder what he planned to do if a jury failed to convict KSM. ”Failure is not an option,” Holder said, adding that he’d spoken already to the prosecutors about it. “These are cases that have to be won. I don’t expect that we will have a contrary result.”

Replied Kohl: “Well, that’s an interesting point of view. Um, I’ll just leave it at that.”

First Assistant U.S. Attorney Robert Cessar has been named acting U.S. Attorney for the Western District of Pennsylvania, The Pittsburgh Tribune-Review reports. Mary Beth Buchanan, who was named the office’s head prosecutor in 2001, resigned on Monday.

While Buchanan did not announce her official plans, she has been in discussions with local Republican party leaders about running for the Republican nomination to challenge  Rep. Jason Altmire (D), who represents Pennsylvania’s 4th congressional district.

Cessar has served in the office since 1990 and had held the position of first assistant since 2002. He was previously an attorney for the Federal Deposit Insurance Corporation in Washington. Cessar can hold the acting title for 210 days. President Obama has yet to nominate a replacement. Democratic Sens. Arlen Specter and Bob Casey haven’t announced whether they’ve made recommendations to Obama for any of Pennsylvania’s three districts.