Kenneth Melson testifies at a hearing on the Bureau of Alcohol, Tobacco, Firearms and Explosives's budget in March (photo by Ryan J. Reilly).

During a time of increased gun-related violence on the Mexican border, the White House cannot find anyone to fill the position of director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

White House officials say they are having a tough time filling the role because a nominee would likely face opposition from the gun lobby, including the National Rifle Association, reported Newsweek .

In fact, Kenneth Melson, the acting director of ATF, was recently demoted to deputy director because the law limits how long acting chiefs can run federal agencies. Critics say the lack of a permanent director has made the ATF more cautious in its investigations of gun-trafficking rings and firearms dealers, according to Newsweek.

“The message that’s sent to the employees is, ‘You don’t matter,’” said Jim Cavanaugh, who recently retired as the agent in charge of the Nashville office.

But Melson disputed the notion that ATF has backed off big cases. He said the lack of a permanent head hasn’t had “any impact” on the agency’s operations. “I emphatically deny that the agency has stood still,” said Melson.

Main Justice reported last month that an unpublished strategic plan for the agency for the next seven years gives the agency a less prominent role in investigating terrorism – leaving the issue primarily to the FBI. Instead the agency intends to focus on combating violent crime.

The Justice Department on Friday will publicly defend a little-known law-enforcement practice that allows federal prosecutors to obtain the collection of cell-phone “tracking” records that identify the physical locations where the phones have been, reports Newsweek’s Michael Isikoff:

It may come as a surprise to most of the owners of the country’s 277 million cell phones, but their cell-phone company retains records of where their device has been at all times—either because the phones have tiny GPS devices embedded inside or because each phone call is routed through towers that can be used to pinpoint the phone’s location to within areas as small as a few hundred feet.

“Most people don’t understand they are carrying a tracking device in their pockets,” says Kevin Bankston, a lawyer with the Electronic Frontier Foundation, a privacy group that has been trying to monitor the Justice Department’s practice.

According to the Newsweek article:

A panel of three federal judges in Philadelphia on Friday is due to hear oral arguments in a landmark case in which Bankston’s group and the ACLU are contending that the Justice Department’s cell-phone tracking practice raises profound “privacy” issues under the Fourth Amendment to the Constitution. The groups contend the Justice Department should be required to first obtain the equivalent of search warrants from federal judges in which they would have to establish “probable cause” that the records will actually yield evidence of a federal crime.

Read more from Newsweek: Can the FBI Secretly Track Your Cell Phone? – Declassified Blog.

Ace investigative reporter Michael Isikoff of Newsweek used his minute with Eric Holder at the Justice Department’s crowded holiday party last night to interrogate the Attorney General about the number of candles in the Hanukkah menorah.

Michael Isikoff (Newsweek)

According to Isikoff, there should have been six, not five, candles in the menorah that was on display in the Attorney General’s conference room, along with other symbols of religious faiths. We were unable to hear Holder’s answer and may have to file a Freedom of Information Act request to get to the bottom of this issue.

In the Justice Department’s defense, there appears to be some disagreement about how many candles should have been lit.

Our friend Al Lengel, author of the law enforcement Web site Tickle the Wire, emailed us: “There were supposed to be 8 candles last night. 7 regular and one is called the shammus candles.. the first night you start out with 2.. the shammus candle is the one high candle. the rest are usually on the same level.”

We consulted Wikipedia, which describes two menorah-lighting traditions:

The Hanukkah menorah has a ninth branch for an auxiliary candle, the shamash, that, by shedding its own light, keeps the other candles from inadvertently serving any purpose other than their ritual one. The shamash is also used to light the other candles. The holder for the shamash candle is generally distinguished in some way from the other eight, traditionally being placed higher than the others, and often in the center, with four of the other candles on each side.

In addition to the shamash, on the first night one candle is placed in the holder on the far right, and is lit using the shamash. Each night afterwards for the next seven nights, one more candle than the night before is kindled. The shamash is used to light the other candles present from left to right. This is the teaching of the House of Hillel. The House of Shammai teaches to light eight candles the first night, seven the second night, six the third night, and so on all eight nights.

It has become clear that enhanced interrogation techniques were used on Abu Zubaydah before the first legal memos authorizing their use had been written by the Office of Legal Counsel.  Zubaydah entered U.S. custody on March 28, 2002.  The Justice Department issued its first memo on torture on Aug. 1, over 4 months later.

In April and May, which fall between the capture of Zubaydah and the Bybee memo, “contractors had to keep requesting authorization to use harsher and harsher methods.”  That quote is from former FBI agent Ali Soufan’s testimony before the Senate Judiciary administrative oversight and the courts subcommittee last week.  Soufan testified that many of the techniques authorized by the Bybee memo were used during this period, including nudity, sleep deprivation, loud noise and extreme temperatures during interrogations.

Newsweek reporter Michael Isikoff received an e-mail last month from a CIA spokesperson saying that:

The Aug. 1, 2002, memo from the Department of Justice wasn’t the first piece of legal guidance for the [interrogation] program.

So where was the CIA getting this legal guidance?

Well, Ari Shapiro at NPR reports that:

One source with knowledge of Zubaydah’s interrogations agreed to describe the legal guidance process, on the condition of anonymity.

The source says nearly every day, [psychologist James] Mitchell [the aforementioned CIA contractor] would sit at his computer and write a top-secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

A new document is consistent with the source’s account.

The CIA sent the ACLU a spreadsheet late Tuesday as part of a lawsuit under the Freedom of Information Act. The log shows the number of top-secret cables that went from Zubaydah’s black site prison to CIA headquarters each day. Through the spring and summer of 2002, the log shows, someone sent headquarters several cables a day.

“At the very least, it’s clear that CIA headquarters was choreographing what was going on at the black site,” says Jameel Jaffer, the ACLU lawyer who sued to get the document. “But there’s still this question about the relationship between CIA headquarters and the White House and the Justice Department and the question of which senior officials were driving this process.”

Gonzales did not respond to a request for comment through his lawyer.

It’s important to note that Gonzales was not Attorney General at this time, he was White House counsel to President George W. Bush.

You can watch Shapiro’s interview on The Rachel Maddow Show last night below:

“There has to be a distance between me and the president,” now Attorney General Eric Holder said in his confirmation hearings. “I will be an independent attorney general and the people’s lawyer.”

That’s not the picture you got if you listened to Michael Isikoff’s interview on The Rachel Maddow Show last night, detailing an off-the-record meeting with leading human rights and civil liberties groups held in the White House yesterday.

Isikoff said that the meeting came on the heels of scathing criticism over President Obama’s announcement re-instating military commissions.  Fun fact: while Obama was listening to these activists complain about how he was allowing Bush policies to become his own, the Senate was voting to withold the funds to close Guantanamo Bay.  Bonus fun fact: Obama didn’t appreciate the Bush comparison, at all.

When the discussion turned to the proposed “truth commission,” Obama had an interesting explanation for why he was against it.  He said that all the Congressional investigations and the litigation that is going on are too distracting to his staff.  

He then turned to stare directly at Holder and once again noted that too much time was being taken up by this issue.

Someone raised the idea of a “trophy” criminal prosecution as a symbol, but Obama curtly dismissed it.

Isikoff says that Holder just sat and listened, not saying a word.  Not exactly the “independent attorney general” we were promised.

OR MAYBE… Holder just knew that this story would get out and figured he’d have more clout with Obama in future negotiations if he was portrayed in the media as letting Obama compromise his independence.  

Click here to read our earlier piece on Holder’s political maneuvering skills.

Also, you can watch Isikoff’s news-making interview in full below: