The FBI’s “special file room” in the bureau’s Washington, D.C., headquarters holds some of the government’s most secret information, too secret even for some officials at the agency with the highest levels of clearance. In response to a Freedom of Information Act request, the FBI is now releasing hundreds of pages of memos outlining why some files were classified top secret and stored in the special room, according to a Boston Globe piece published Monday.

The memos, which cover files from the 1950s to the 1980s, were obtained by the Globe from a researcher outside the FBI.

The room, established by FBI Director J. Edgar Hoover in 1948 and still used today, is home to case files on high-profile mob figures and their politician friends and documents detail the U.S. government’s surveillance of gay rights groups and “black nationalist extremists.’’

The newspaper reports that the documents are housed separately from the FBI’s central filing system in order to restrict access to the room. And some speculate that the separation was intended to keep the documents from becoming public

“It was a pretty efficient system Hoover devised,’’ Athan G. Theoharis, a former professor at Marquette University and a specialist on the reign of Hoover, said. “If you can minimize who knew what the bureau is doing, you can minimize any legal action’’ against the bureau if it operated outside of the law.

Although the room was originally housed at Justice Department headquarters in Washington, D.C., it was eventually moved, as the room on several occasions became so overcrowded that officials were concerned that the building could not withstand the weight.

Many of the files had “cryptic titles” and most files remain secret if they haven’t been destroyed, a former FBI official told The Globe.

The Justice Department said Monday morning it has cleared networking giant Cisco Systems Inc.’s  bid to acquire video conferencing provider Tandberg ASA. In a statement, the agency emphasized it had “cooperated closely” with its European counterparts in reviewing the deal, a sign of a smoother relationship between Brussels and Washington D.C., after the two agencies clashed on a similar deal earlier this year.

Cisco, Tandberg, and other industry participants signed waivers for the Antitrust Division and the European Commission’s Directorate General for Competition to share information and coordinate on potential remedies to ensure interoperability between Cisco’s new teleconferencing products and those of other companies. The Justice Department said it had taken those commitments into account, along with other factors, in reaching its determination not to challenge the deal.

“This investigation was a model of international cooperation,” Antitrust chief Christine Varney said in a statement. “The parties should be commended for making every effort to facilitate the close working relationship between the Department of Justice and the European Commission.”

The two agencies clashed last year in reviewing database software provider Oracle Corp.’s $7.4 billion purchase of Sun Microsystems Inc. The Justice Department OK’d the deal last summer, but European Union officials issued a set of objections to the sale in early November.

The DOJ responded to those objections by saying the sale did not raise major anti-competitive concerns and nudged the E.U. to clear the transaction.  Brussels responded with visible annoyance, but eventually cleared the deal.

Then in November, the Justice Department hired E.U. antitrust expert Rachel Brandenburger as a new adviser on international matters. A better working relationship between the two agencies seemed to follow. When the DOJ signed off on Microsoft Corp.’s advertising pact with Yahoo! Inc. in February, for example, it waited until European regulators had announced a decision.

On the Cisco deal, the DOJ said it was satisfied with the commitments the company made to Brussels. Cisco promised that its teleconferencing products could operate with products from other companies. Cisco had already entered the videoconferencing business when it announced its $3 billion purchase of the Norwegian company last October. The E.U. announced its decision earlier today.

“The commitments are designed to foster the development of open operating standards,” the DOJ said in its statement. “The department views those commitments as a positive development that likely will enhance competition among producers of telepresence systems.”

Cisco could not immediately be reached for comment on how the trans-oceanic review was handled.

Soon after taking office, President Barack Obama articulated a more limited position than his predecessor on the power to detain suspected members of al Qaeda without trial. Rather than assuming inherent authority to hold people suspected of ties to the terrorist group or its affiliates, Obama, through the Justice Department, described his power as emanating from the authorization granted by Congress to use military force against the perpetrators of the Sept. 11 attacks and defined by the laws of war. The president, the department told a federal judge in March 2009, could detain only people who were part of al Qaeda, its affiliates or their “substantial� supporters.

In Monday’s New York Times, Charlie Savage notes how lawyers in the administration have debated counterterrorism policies against this backdrop. A deep division has emerged, unsurprisingly, between the State and Defense departments, which squared off regularly during the Bush administration (with the Defense Department claiming victory more often than not).

On the one hand, the State Department’s top lawyer, Harold Koh, has argued behind-the-scenes that there is no basis in the laws of war to detain as wartime prisoners supporters of al Qaeda captured far away from the battlefield. The contours of this position emerged in a secret memo by Koh, focusing on the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia and placed in the U.S. detention camp at Guantanamo Bay, Cuba. He was accused of facilitating the travel of those who wanted to go to Afghanistan to join al Qaeda.

A federal judge ruled that Bensayah’s support justified holding him prisoner. The Justice Department asked an appeals court to uphold the ruling.

Defense Department General Counsel Jeh Johnson produced his own secret memo, arguing for “a more flexible interpretation of who could be detained under the laws of war — now or in the future,” Savage writes in Monday’s Times.

According to Savage, David Barron, the head of the Office of Legal Counsel, was called in to referee the debate, but ultimately did not:

In September 2009, national-security officials from across the government packed into the Office of Legal Counsel’s conference room on the fifth floor of the Justice Department, lining the walls, to watch Mr. Koh and Mr. Johnson debate around a long table. It was up to Mr. Barron, who sat at the head of the table, to decide who was right.

But he did not. Instead, days later, he circulated a preliminary draft memorandum stating that while the Office of Legal Counsel had found no precedents justifying the detention of mere supporters of al Qaeda who were picked up far away from enemy forces, it was not prepared to state any definitive conclusion.

In the end, the Justice Department decided to avoid the question by changing the subject. They asked to appeals court to adopt the position that actions taken by people like Bensayah effectively made them part of the terrorist organization, rather than mere supporters, and thus detainable under both the State and Defense departments’ interpretations. The appeals court has not ruled in the case.

Defense and State are aligned on other matters, Savage writes, as when two judges on the U.S. Court of Appeals for the D.C. Circuit ruled in January that the laws of armed conflict did not limit the president’s war powers. Career lawyers in the Justice Department’s Civil Division, who are defending the Guantanamo cases in federal court, wanted to use the ruling to their advantage.

But Barron, Koh and Johnson felt the administration should continue abiding by the laws of war and thought the decision was susceptible to reversal, according to Savage. The Justice Department has since cited the ruling in classified briefs as precedent while maintaining its argument that the president is bound by laws of war.

As Savage writes, “The debate would go on.”

WSJ Scoffs at Ag Workshops

In an editorial Monday, the Wall Street Journal’s editorial board goes after the Justice Department’s workshops on competition in agriculture, the first of which was held earlier this month in Iowa. “The occasion looked more like the Obama Administration’s latest dunk tank for business,” the paper writes. The piece paints the Antitrust Division as a pawn of DuPont in its legal battles with the dominant manufacturer of weed killer-resistant seeds, Monsanto. “DuPont has filed an antitrust suit against Monsanto over its dominance of a sliver of the soybean market, and the company hopes Mr. [Eric] Holder’s trustbusters will grant it success where the market has not.”

Microsoft Behind Google Complaints? Apple’s Mobile Plans

On the Google front, online tech publication The Register looks at the antitrust complaints raised by U.K. comparison shopping Web site Foundem and decides they have merit. It’s not just Microsoft pulling the strings, the piece argues: “The Raffs wrote every word of their FCC filing, and they penned the meat of the EU complaint…”

“Substantial sections are basically us explaining our story and going through the Universal Search data,” Shivaun Raff, founder of Foundem, tells The Register. “That comprises a majority of the filing, and that we wrote.”

On Friday, MediaPost reported on Apple’s potential plans in mobile advertising. “Apple is preparing to announce its ‘next big thing’ — a new personalized, mobile advertising system that could well be called the ‘iAd’,” according to the publication. Apple bought mobile ad company Quattro in January for $300 million; Google’s $750 million purchase of rival AdMob is currently being reviewed by the Federal Trade Commission. Any Apple push into the mobile ad market probably lets Google’s lawyers breathe a little easier.

Ten House lawmakers last week urged the FTC to investigate privacy complaints about Google’s new social networking service, Buzz.

DOJ Agrees With DOT on US Airways/Delta Deal

The Dallas Morning News reported on Friday that the Justice Department backed the Transportation Department in asking US Airways and Delta Airlines to give up take off and landing slots at LaGuardia and Washington National airports in order to win approval for a proposed deal.

No Extra Time to Complain About Comcast-NBC

On Friday, the Federal Communications Commission rejected a bid by consumer groups to push back the deadline for comments on the Comcast-NBC deal.

The Bureau of Alcohol, Tobacco, Firearms and Explosives is getting back to basics and will emphasize its core mission of combating violent crime, conceding the lead role of investigating and stopping terrorism to the Federal Bureau of Investigation, according to an unpublished draft of its new strategic plan.

Headquarters of the Bureau of Alcohol, Tobacco, Firearms and Explosives (photo by Ryan J. Reilly / Main Justice).

The draft plan, which covers fiscal 2010 through 2016, will focus on ten areas including criminal groups and gangs, and illegal fire arms trafficking, among others.

The previous strategic plan — which covered fiscal 2004 to 2009 — contained a mission statement that said the bureau’s work would seek to “prevent terrorism, reduce violent crime and to protect the public in a manner that is faithful to the Constitution and the laws of the United States.”

But under the new plan, the ATF is taking on a less prominent role in investigating terrorism – leaving the issue primarily to the FBI – as it instead refocuses on combating violent crime.

“The terrorism police in the United States are the FBI, rightfully so, that’s where they should be focused,” said an ATF official who spoke on condition of anonymity because the plan has not yet been finalized. “We believe that our position, the way we best serve this country, is by impacting violent crime.”

The ATF will continue to assist the FBI by providing explosives expertise in, but not leading, investigations that are classified as “terrorist bombings.” That includes incidents tied to recognized terrorist organizations including domestic terrorism such as acts by animal- or environmental-rights extremists. According to ATF, 99 percent of all bombings in the U.S. are not tied to terrorist organizations and fall under its jurisdiction.

“We have a definite role in terrorism and national security, we regulate the tools of the trade,” said the ATF official. “But is our primary mission terrorism? No, it’s not.”

ATF went through a period “terrorism envy” after Sept. 11, the official conceded.

“But our responsibility, post 9/11, is really in the violent crime area,” the official said. “The entire focus of this plan is around reducing violent crime in America and protecting the public from incidents involving guns, explosives and fire.”

To demonstrate the changed focus, ATF has changed its slogan to “At The Frontline Against Violent Crime.” Previously, the ATF billed itself as “on the frontlines in our nation’s war against terror.”

But conflicts between the FBI and the ATF remain ongoing.

A DOJ Inspector General’s audit report issued last October found that the FBI and the ATF were not coordinating their efforts.

In testimony before a House panel last month, Inspector General Glenn A. Fine said the agencies’ explosives investigators would race to the scene of an incident in the hopes of “calling dibs” on a case. As some agents acknowledged to Fine, they believed “possession is nine-tenths of the law.â€� The Deputy Attorney General is meeting this month with working groups from both agencies to resolve the conflicts.

Priorities Include Gangs, Bombs and Gun Trafficking

The draft of the plan, in the final editing stages, lists ten core functions of the bureau. ATF’s strategic leadership team prioritized six of those core functions under the new plan. Four of the prioritized core functions are mission activities – criminal groups and gangs; explosives bombs, and bombings; illegal firearms trafficking; and fire and arson. Two others are management priorities in the areas of workforce and modernization.

Core functions not listed as priorities under the new plan are alcohol and tobacco; firearms criminal possession and use; firearms industry operations; and explosives industry operations.

Main Justice reported earlier this month that ATF had not yet published a strategic plan, which was supposed to go in to effect at the start of the fiscal year on Oct. 1, 2009. According to ATF officials, over the past two years the bureau has been implementing the strategic goals, even though the plan has not yet been publicly released.

Several trends and new threats have emerged since the last strategic plan, according to the report. The Internet has raised new issues for ATF because it makes it easier for trafficking guns and also makes it easy to access information about building bombs.

“A common trend emerging in explosives and bombing incidents is the increased use of [Improvised Explosive Devices],” according to the report. “The Internet has made the knowledge available to a broader range of the public than ever before, including those who would use that knowledge to commit violent crimes. Many of the materials required to produce an explosive device are common household goods, available with minimal or no regulation.”

ATF plans to prevent such incidents involving homemade explosives by partnering with various law enforcement agencies and preventing the misuse of the materials used to make homemade bombs. They will focus on the means of acquisition and distribution of such materials, according to the strategic plan.

The economic downturn may lead to an increase in arson for profit because small business owners and individuals may be under financial pressure and intentionally burn their properties to collect insurance, according to the plan.

In addition, the trafficking of firearms from the U.S. to Mexico is an increasing problem. ATF has requested to make permanent the new offices it established along the border using stimulus funds as part of the Gunrunner Project.

Measuring Performance Indicators

The new strategic plan is designed to be easy for the average citizen to read and comprehend, the ATF official said. Under the new plan, instead of technical definitions, the congressional budget submissions would read more like report cards with various assignments that add up to an overall grade. A performance index will weight each performance indicator in relation to one of the ATF’s 10 core functions.

“Anyone can look at these and say, okay, these are pretty straightforward statements,” the ATF official said.

According to the draft, the ATF’s Strategic Leadership Team “may change which performance indicators are included in the index at any time, but recognizes that such changes may positively or negatively affect the index.”

The official said the indexed approach is of interest to the Office of Management and Budget and the Justice Department.

A draft of the plan is available below.

ATF Strategic Plan FY 2010-2016 (Draft)

A former federal prosecutor in Florida has refiled a lawsuit against the likely nominee for U.S. Attorney for the Middle District of Florida, accusing him of violating federal laws by releasing confidential information in an effort to get himself appointed U.S. attorney.

Last month, Jeffrey Del Fuoco’s defamation lawsuit against Assistant U.S. Attorney Robert O’Neill was thrown out of court, and a judge scolded him for making scandalous accusations. The latest lawsuit also names Attorney General Eric Holder, The St. Petersburg Times reported Saturday.

Del Fuoco, who blames the loss of his job on O’Neill, sent letters and e-mails to the White House and Sen. Bill Nelson (D-Fla.) claiming that investigations were compromised because of a extramarital relationship that O’Neill allegedly had with another staffer in the U.S. Attorney’s office.

O’Neill, the head of the Middle District office’s criminal division and Del Fuoco’s former boss, is reportedly the frontrunner for the U.S. Attorney nomination and is said to be undergoing a background investigation. Other finalists who were submitted by a Florida screening committee included Jacksonville, Fla., lawyer Harry Shorstein and another Assistant U.S. Attorney, Robert Handberg.

According to Del Fuoco, the chairman of the selection panel distributed Justice Department documents to other committee members, including a letter that states the reasons Del Fuoco departed the U.S. Attorney’s Office. Del Fuoco claimed that many of the allegations are not true and said they are damaging to his reputation. O’Neill has previously accused Del Fuoco of filing lawsuits repeatedly in an attempt to smear his reputation.

President Barack Obama will give recess appointments to 15 nominees who have been awaiting a confirmation vote in the Senate, the White House announced Saturday. But no Justice Department nominees are among them.

Emboldened perhaps by his victory on health care reform, Obama is making use of his recess appointment power for the first time in the face of what a White House blog post called an “obstruction-at-all-costs mentality” of Senate Republicans.

A total of 217 nominees have been pending before the Senate for an average of 101 days, the White House said. The 15 nominees Obama intends to appoint during the congressional recess have been pending for an average of 214 days, the White House said.

Among the recess appointments will be Jeffrey Goldstein, nominee for Under Secretary for Domestic Finance at the Treasury Department.

But Dawn Johnsen isn’t on the list. The Indiana University law professor’s nomination to head the Justice Department’s Office of Legal Counsel has been awaiting a vote in the Senate for more than a year. Republicans have objected to Johnsen’s prior work for an abortion rights group and her opposition to Bush-era national security legal policies.

President Barack Obama will give recess appointments to 15 of his nominees, but none for the Justice Department (Official White House Photo by Pete Souza).

In addition, Tax Division nominee Mary Smith and Office of Legal Policy nominee Chris Schroeder were not given recess appointments. Smith took a position in the Civil Division as she awaits confirmation. Schroeder’s nomination first went to the Senate in June 2009.

“The United States Senate has the responsibility to approve or disapprove of my nominees.  But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis,� Obama said in a statement.

“Most of the men and women whose appointments I am announcing today were approved by Senate committees months ago, yet still await a vote of the Senate. I simply cannot allow partisan politics to stand in the way of the basic functioning of government,” Obama said.

A recess appointment lasts until the end of the next congressional session. Recess appointments are done infrequently, because they usurp the Senate’s constitutional role, angering many senators. During his tenure President George W. Bush made a number of recess appointments, spawning objections from Democrats.

Obama threatened in February to make recess appointments but relented after Senate Republicans lifted holds on some nominees, allowing 27 new administration officials to be confirmed.

Other nominees who are slated to receive recess appointments include David Lopez, Obama’s nominee for general counsel of the Equal Opportunity Commission, who previously worked in the Civil Rights Division of the Justice Department; and Eric L. Hirschhorn, a partner in the Washington, D.C., office of Winston & Strawn LLP, who will be appointed to head the Bureau of Industry and Security at the Department of Commerce.

In a commentary for Foreign Policy published Thursday, David Kaye, executive director of the UCLA School of Law International Human Rights Program and an attorney-advisor in the State Department from 1995 to 2005, argued that the United States needs a torture commission to look at the policy during the George W. Bush administration.

John Yoo (file photo by Ryan J. Reilly).

“The story of that period is a cautionary one for any administration: Presidents and their most senior officials get advice from a system prone to politicized and occasionally ideologically-driven legal advice,” Kaye wrote. “Lawyers, for their part, must constantly guard against politicization and improper influence from the “client” — the administration.”

Noting that the Office of Professional Responsibility report about former Justice Department lawyers John Yoo and Jay Bybee was “softened” to “poor judgment” by a senior Justice Department official, Kaye argued that the focus shouldn’t be on individuals.

“But even if Justice had come down hard on Yoo and Bybee, the focus on them, while appropriate for ethics purposes, encourages the public to see the torture scandal as a failure of particular lawyers,” Kaye wrote. “It was that, but it was also much more. It was the failure of an entire structure of government decision-making. There was a deliberate attempt to thwart the normal process of government legal advice. Quite apart from the substance of the advice, the process itself suggests that government officials conspired to commit torture.”

Read his full piece here.

Jim Letten (DOJ)

Since he took the helm of the New Orleans-based U.S. Attorney’s Office in 2001, Eastern District of Louisiana U.S. Attorney Jim Letten has gained respect for his office’s successful prosecutions of thieves, drug dealers and corrupt politicians. But Letten’s also got one other thing that people love: a “sweet mustache.”

Houma Courier columnist Laura McKnight of Terrebonne Parish, La., revealed her appreciation for Letten’s ’stash in a column Friday. Knight served on a federal jury for several months, and recently she and her fellow jurors had the opportunity to talk to Letten.

Here’s her story:

For the past six months, each time I had spotted Letten in the paper, I instantly fixated on one aspect of his character, one signature facet of his presence.

Now that he stood in front of us, I struggled against the urge to bring this item to his attention. I had actually thought about e-mailing him to mention this topic, but now I had the chance to say it in person.

A war started in my head, between Civilized Normal Human Being and Unashamed Ridiculousness.

“Do NOT say it. Just sit in the back, be quiet and act NORMAL,� Civilized said.

“You HAVE to say it. You will regret it for the rest of your life if you don’t,� Unashamed said.

“You are going to get in trouble. They already warned everyone not to ask him about refills on toilet paper or Splenda, so don’t be a clown,� Civilized said.

“It’s not being a clown if you’re sincere. You will never get this chance again,� Unashamed fired back.

“You’ll turn crawfish red.�

“So? Who cares?�

Eventually, Unashamed won, and I raised my hand, cringing a little at how ridiculous I was about to look.

I was all the way in the back of the room, so I had to say it loud without turning red, and to my relief, I did.

“I like your mustache.�

Moment of silence.

Laughter.

I then felt a neurotic need to explain myself, so people wouldn’t think I was joking.

I said something to the effect of: “I work for a newspaper and I had to do a big story on mustaches, so I really notice and appreciate good mustaches now.�

Letten’s top assistant wondered aloud why I would be investigating mustaches as part of my job, so I explained that my editor had assigned me a story examining trends in upper lip hair with a specific focus on whether the mustache is making a comeback.

Letten then noted that fashion always cycles back around and launched into a history of his mustache, beginning with its debut in 1971. That kicked off a brief discussion on how mustaches can become an integral part of someone’s character.

So several people complimented Letten on his efforts to clean up southeast Louisiana shenanigans.

And I complimented him on his sweet mustache. On the record. With the court reporter taking notes.

It really is a fantastic mustache.

Before he left, Letten mentioned his recent appointment to an advisory team to U.S. Attorney Gen. Eric Holder.

I’m sure this is an exciting achievement, but all I could think was this: Eric Holder has a mustache, too.

In a letter to two Republican senators Friday, Attorney General Eric Holder apologized for not listing several friend-of-the-court briefs on the Senate Judiciary Committee questionnaire during his confirmation process last year. But Holder maintained his current position on executive power is consistent with what he expressed in the briefs.

A National Review column published earlier this month blasted Holder for not disclosing on his questionnaire two Supreme Court amicus briefs in the high-profile terrorism case of Jose Padilla that he had joined in signing. In one of the briefs, Holder and several former DOJ officials from the Clinton administration argued that the danger of a too-powerful executive branch outweighs the risk of losing intelligence in terrorism cases prosecuted in civilian courts.

Republicans pounced on the omission and several days later, the DOJ turned over to the Senate half a dozen Supreme Court briefs Holder neglected to disclose.

Sen. Jeff Sessions (R-Ala) and Attorney General Eric Holder (file photo by Ryan J. Reilly).

In a letter Friday addressed to Senate Judiciary Committee Republicans Jeff Sessions of Alabama and Jon Kyl of Arizona, Holder wrote that the omision occurred because his initial reviewers relied on his law office files, which were incomplete. Later during the confirmation process, a second set of reviewers found the Padilla briefs but left them out because they “understood that question to call for briefs on which I had been the lawyer, not the client,” Holder wrote.

“Although it does not excuse my failure to list these briefs, I note that they have always been included in widely available legal databases, and have never been hidden from public view at all,” he added. “The bottom line, of course, is that I should have included these documents in my submission to the Committee. I am aware of no other inaccuracies in my questionnaire, and none has been brought to my attention.”

Last Friday, Sessions and Kyl sent a letter to Holder concerning the briefs and said they planned to question him at a panel oversight hearing on “the apparent contradictions� between his current views on terrorist detention and what he previously expressed in the briefs. That hearing was later postponed and rescheduled for April.

“Having now reviewed these briefs, we are concerned that some of the arguments contrast sharply with statements you made as Attorney General in defense of civilian trials for Khalid Sheikh Mohammed (KSM) and his fellow 9/11 co-conspirators,� the senators wrote in the letter last week.  “Your brief also contrasts with the administration’s defense of its interrogation and civilian criminal handling of the Christmas Day bomber, Umar Farouk Abdulmutallab.�

In the response Friday, Holder said the amicus brief was fully consistent with his current view that the “criminal justice system remains a powerful weapon in our arsenal.”

“To be sure, the brief acknowledges the fact that, in light of legal constraints, there might be ’some hypothetical situation’ in which it may not be possible to use our numerous law enforcement tools to arrest and extract information from a U.S. citizen who we suspect is linked to terrorist activity,” Holder wrote. “This merely states the obvious fact that there may be limitations upon the ability of the executive branch to restrict the liberty of U.S. citizens, at least absent further authorization from Congress.”

He continued, “as noted in that brief, Congress has provided the president with comprehensive and extraordinary powers to fight terrorism without making claims that strain the Constitution. Where necessary, the president should work with Congress to obtain additional authority.”

As an example, Holder cited the Bush administration’s work with Congress to pass the USA PATRIOT Act.

“We are safer today because we have those tools,” Holder said of the Patriot Act.

The full text of the letter is embedded below. Leah Nylen contributed to this report.

Sessions Kyl 032610