Architects of Subversion
"You can fool some of the people all the time, and those are the ones you want to concentrate on."
President George W. Bush, Gridiron Club, March 2001
THE ARCHITECTS OF SUBVERSION
Introduction. For the last six years, politics appears to have trumped enforcement and altered the operations of the Civil Rights Division at the U.S. Department of Justice.
Career civil rights division employees – section chiefs, deputy chiefs, and line lawyers – have been forced out of their jobs in order to drive political agendas. Whole categories of cases are not being brought, the bar has been raised unreachably high for bringing suit in others, and still others are “slow walked” to death.
The vigorous enforcement of civil rights laws that once characterized the Division’s work has disappeared.
How did this perversion occur?
- By chipping away the protections of federal anti-discrimination laws
- By shifting priorities from traditional civil rights enforcement
- By politicizing personnel and decision-making within the Division.
These are the stratagems of the architects of subversion listed below:
David Palmer
Posts Held: Acting Special Litigation Counsel in the Office of Special Counsel for Immigration Related Unfair Employment Practices. Presently, Chief of Employee Litigation Section, Civil Rights Division.
Pay Discrimination. During his tenure at DOJ, David Palmer has led a significantly less productive Employee Litigation Section, the agency responsible for enforcing workplace anti-discrimination laws. Under his leadership, DOJ filed amicus briefs that contradicted long-standing policies of the EEOC and key interpretations of civil rights laws. For example, in Ledbetter v. Goodyear Tire and Rubber Co., DOJ filed an amicus brief arguing that Lilly Ledbetter, a victim of pay discrimination for more than 19 years, was not entitled to monetary relief because she filed her claim too late – soon after learning of the pay discrimination, but years after the original discriminatory pay decision was made.
In a contentious 5-4 decision, the Supreme Court used the brief’s rationale to deny Ms. Ledbetter the right to sue and be fairly compensated. In her impassioned dissent, Justice Ruth Ginsburg claimed that such a standard ignored the Congressional intent of the law and is at odds with the reality of the workplace given secrecy surrounding salaries. As a result, employers are now free to perpetuate a hidden form of discrimination and workers everywhere have their right to equal pay for equal work severely compromised.
Ignoring Employment Discrimination. Under Palmer's leadership, the Civil Rights Division filed a total of 35 Title VII workplace discrimination cases -- an average of six per year. That number includes five cases in which DOJ intervened in ongoing litigation. It also includes two cases initiated by the U.S. Attorney's Office for the Southern District of New York, using its own resources. By comparison, the Clinton Administration filed 34 such cases in its first two years in office. By the end of its term, the Clinton Administration had filed 92 complaints of employment discrimination or more than eleven cases per year.
Punishing the Messenger. Salon.com reported that under Palmer’s leadership DOJ filed an amicus brief in a Supreme Court case Burlington Northern v. White contradicting a long held EEOC position that prevented employers from retaliating against individuals filing discrimination claims. But in that ruling, the Court unanimously rejected the Department's argument as inconsistent with both the plain language and spirit of Title VII.
Poor Performance. According to a letter by his former supervisors, colleagues, and subordinates at DOJ, Palmer's leadership resulted in the unprecedented departure of managers, line attorneys, and other veteran professional staff from the Civil Rights Division.
Unethical Behavior. David Palmer has had more than one internal discrimination compliant filed against him during his time as Chief of the Employment Litigation Section. According to Salon.com, this includes " a complaint [that] arose after Palmer allegedly tried to have a woman with whom he had been romantically involved removed from federal service." But President Bush still sought to reward David Palmer for his work with a seat on the Equal Employment Opportunity Commission, the agency responsible for protecting equal employment opportunity. If confirmed, Palmer would have had direct input in the guidance of the agency's litigation and enforcement strategies. But a chorus of Congressional Democrats and civil rights groups that were troubled by his record pressured Palmer into withdrawing his name from consideration.
Where he is now: He continues to serve as the top official in the Employment Litigation Section.
Brad Schlozman
Posts Held: Principal Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice; Acting Assistant Attorney General, Civil Rights Division; Interim U.S. Attorney for the Western District of Missouri.
Voter Surpression. During his three years as supervisor of all of the Civil Rights Division’s activities, Schlozman helped rush the approval of draconian voter ID laws. Such laws have been known to depress turnout among elderly, poor and minority voters. Schlozman also helped target U.S. Attorneys who did not comply or simply questioned enforcement of voter ID laws.
Rogue Prosecutor. While serving as interim U.S. Attorney in Missouri, Schlozman filed criminal voter fraud charges against ACORN, a voter registration group that reaches out to the poor and people of color, on the eve of the hotly contested 2006 general election. This action violated the Justice Department’s own policy about the appropriate timing of such lawsuits, since they can unfairly influence the outcome elections. The indictments were filed despite the fact that voter fraud was virtually non-existent in the state of Missouri.
Where he is now: In August 2007, Schlozman resigned from his post in the Department of Justice. He is still under investigation for allegedly hiring and promoting Justice employees based on political affiliation and his involvement in the firings of the U.S. Attorneys by the Inspector General at DOJ. Scholzman reportedly boasted about replacing career lawyers within the civil rights division to "make room for some good Americans."
Key Quote:
SCHUMER: Did you ever boast to anyone that you had hired a certain number of Republicans or conservatives for any division or section at the Department of Justice?
SCHLOZMAN: I mean, I don't remember — what I probably, I mean, I have made statements, you know, that we have in one section brought more, perhaps, individuals who were more professional and…
SCHUMER: No, I didn't ask professional. You've got to answer my question. I know you may associate Republican or conservative with professional, but that's not my question.
SCHLOZMAN: Senator, I mean, I may have made statements…
June 6, 2007 Bradley Schlozman before Senate Judiciary Committee
Hans Von Spakovsky
Posts Held: Trial Attorney, Voting Section, Civil Rights Division, U.S. Department of Justice; Counsel to Assistant Attorney General for Civil Rights. Presently, Federal Elections Commissioner.
Voter Supression. While serving in the U.S. Department of Justice, Hans von Spakovsky, along with Brad Scholzman, eagerly rushed to approve a Georgia voter ID law despite facing vigorous opposition from career voting rights attorneys who argued the law discriminated against minority voters. And the career attorneys were not the only ones who opposed it. In fact, a federal judge in Georgia agreed that the measure was discriminatory, and even compared the law to a Jim Crow-era poll tax. This dispute, and others like it, ultimately led to the majority of the voting rights section career lawyers leaving in protest, during von Spakovsky's tenure. Hans von Spakovsky has also been credited with masterminding the most burdensome voter ID provisions in the Help America Vote Act. These same provisions have made it harder, not easier, for ordinary Americans to register and cast ballots. Von Spakovsky also used his authority to advocate for stricter interpretations of federal laws that resulted in the purging of thousands of voters from voter rolls in several states.
Enforcing the Partisan Advantage. In 2003, von Spakovsky used his expertise and influence in the DOJ to push through Tom Delay's Texas mid-decade redistricting plan against the objections of the more experienced lawyers and analysts who said the plan discriminated against black and Latino voters. In 2006, the Supreme Court held that parts of the plan violated provisions of Voting Rights Act by diluting minority voting strength.
Where he is now: President Bush rewarded von Spakovsky through a series of year long recess appointments to the Federal Elections Commission, an agency devoted to administering and enforcing federal campaign finance laws. If confirmed by the Senate to a six year term, he could influence election law for the next three election cycles.
Alberto Gonzales
Posts Held: White House Counsel, and U.S. Attorney General.
Involvement in U.S. Attorney Scandals. As Attorney General, Alberto Gonzales behaved more like the president's lawyer than the people's lawyer. Soon after becoming Attorney General in 2005, and with the urging by the White House and other Republicans, Gonzales fired eight U.S. Attorneys for not engaging in baseless partisan voter fraud prosecutions. And despite evidence to the contrary, Gonzales described the firings as just an over-blown personnel matter.
Undermined Voter Rights. Gonzales' Justice Department also modified longstanding policies governing prosecution of voter fraud in an effort to investigate isolated or individual cases even if they arise on the eve of an election. The previous manual on election crimes, however, strongly advised against doing so since such investigations can influence the course of an election. (Read the new version here.) This means future investigations could unfairly affect elections, and wrongly target innocent Americans for simply exercising their right to vote. Overall, under Gonzales' leadership, the Justice department has been indifferent to racial disparities in voter participation due to discriminatory voter ID laws. It also reportedly adopted a permissive attitude toward the hiring, promotion and evaluation of career employees based on political leanings.
War on Terror as Pretext for Violating Civil Rights and Liberties. While serving as White House Counsel, Alberto Gonzales went to extraordinary lengths to get an illegal NSA surveillance program enacted. According to James B. Comey, a former aide to John Ashcroft, Gonzales raced to the hospital bed of then Attorney General Ashcroft to get the program approved despite Ashcroft's obvious debilitating condition. As Attorney General, Gonzales also ignored reports of the FBI using the Patriot Act illegally to obtain personal information due to the program’s authorization. Gonzales also helped write a memo arguing against certain sanctions in torturing so-called enemy combatants. In it, he reasoned the threshold for physical torture should be " injury such as death, organ failure, or serious impairment of body functions—in order to constitute torture."
Where he is now: After a bi-partisan outcry for him to resign for several months, Alberto Gonzales agreed to step down from his position as Attorney General on September 17, 2007.
Key Quote:
While I am grateful for the public service of these seven U.S. attorneys, they simply lost my confidence. I hope that this episode ultimately will be recognized for what it is: an overblown personnel matter.
March 7, 2007, "They Lost My Confidence" USA Today
John Ashcroft
Post Held: U.S. Attorney General
Undermining Voting Rights. As Attorney General, John Ashcroft launched the Voter Access and Integrity Initiative in 2002, which made investigating charges of so-called voter fraud a high nationwide priority for the Justice Department and U.S. attorneys. But the initiative focused more on enforcement of voter ID laws, and chasing phantom charges of “voter fraud” than it did on achieving greater access to the polls for all Americans. In its five year existence, the initiative has not found widespread instances of voter fraud. In fact, only “120 people have been charged and 86 convicted as of last year.” And according to news reports, most of these were individuals who made innocent mistakes and had no intention of committing fraud. The majority of those targeted by the initiative have been minorities or the poor. The initiative also placed needless pressure on, and eventually led to the firing of, several of the U.S. Attorneys in 2006 that did not energetically prosecute or investigate baseless voter fraud cases.
Violating Immigrant Rights. In the wake of September 11th, Ashcroft authorized the secret arrests and indefinite detention of more than 1,200 non-citizens, mainly from the Middle East, South Asia, and North Africa. In secret hearings, a high percentage of the detainees were charged with violating immigration law simply as a pretext for investigating them for potential links to terrorist organizations. A report found that out of the thousands arrested only a handful of the so-called "special interest" detainees were actually charged with a terrorism-related crime. In 2002, Ashcroft also unilaterally issued a new set guidelines for immigration courts that effectively circumscribed or prevented many immigrants from receiving their constitutionally guaranteed right to a court hearing and unfairly concentrated more power in the hands of the Attorney General. The new guidelines resulted in placing thousands of Muslim and Arab men in deportation proceedings for routine visa violations. President Bush has subsequently appointed GOP partisans to immigration court judgeships, despite their having little or no expertise in immigration law.
Where he is now: John Ashcroft currently serves as chairman of the Ashcroft Group, LLC, a consulting group specializing in advising companies within the homeland security and law enforcement industries. The consulting group also included other former Bush administration officials for the Departments of Justice and Homeland Security.
Key Quote:
"To those who pit Americans against immigrants, and citizens against non-citizens; to those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists—for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends."
November 6, 2001 – Senate Judiciary Committee Hearing
President George W. Bush
Current Position: President of the United States
Hurricane Katrina. Before Hurricane Katrina struck the Gulf Coast, President Bush flatly stated “We are fully prepared.” Despite the bold pronouncement, Bush ignored the threat the category four hurricane posed to New Orleans and had no emergency plans in place to protect Katrina victims. In the wake of Hurricane Katrina, hundreds of thousands of jobs were lost, thousands of small businesses were completely destroyed, and countless families who lost their homes were driven deeper into poverty. At one point 80 percent of New Orleans was flooded. More than 81,000 business were impacted by the hurricane, costing the region nearly 450,000 jobs. In the Gulf Coast Region, approximately 250,000 homes in the New Orleans metropolitan area were rendered uninhabitable.
On September 15, 2005, in New Orleans, Louisiana, George W. Bush declared “And the federal government will undertake a close partnership with the states of Louisiana and Mississippi, the city of New Orleans, and other Gulf Coast cities, so they can rebuild in a sensible, well-planned way. Federal funds will cover the great majority of the costs of repairing public infrastructure in the disaster zone, from roads and bridges to schools and water systems. Our goal is to get the work done quickly.”
Two years later, houses are being demolished without notice to tenants or owners, only 45 percent of the schools in New Orleans, and less than 40 percent of childcare centers have reopened. And according to Salon.com, “the city's Housing Authority has slated thousands of units of public housing for demolition, the majority of which were not damaged by the storm.”
Housing Crisis. Subprime loans, which are often used in predatory lending schemes, have constituted 20 percent of the mortgage market since 2005. But President Bush has largely ignored enforcement of fair housing laws and allowed the crisis in the subprime market to fester. This crisis has disproportionately affected the poor, and people of color.
Racial Profiling. In the wake of September 11th, President Bush endorsed Ashcroft's policy of racial and religious profiling, including secret arrests of Muslims, Arab, and South Asian men, which frequently led to rushed deportation proceedings.
Real ID Act. After hastily pushing it through Congress without much debate, President Bush signed the Real ID Act in 2005 which mandates onerous new requirements for state-issued ID cards such as drivers' licenses. Under this law, states will be required to establish a person’s citizenship status before issuing them a state ID. This requirement will make it much harder for many Americans to obtain driver’s licenses and other forms of state ID, since many Americans do not have either a copy of their birth certificate or a U.S. passport. State officials have claimed that compliance with the law will cost $11 billion, cause a spike in registration fees, and result in stressful delays for 245 million Americans, if the May 2008 compliance deadline is honored.
Right Wing Judiciary. In addition to appointing officials at the Justice Department devoted to undermining the civil rights of ordinary Americans, President Bush has also appointed several conservative activist judges to the federal judiciary, who are seeking to narrow the scope of federal anti-discrimination law. On the Supreme Court alone, President Bush's appointees, Chief Justice John Roberts and Justice Samuel Alito together have weakened anti-pay discrimination law and undermined school integration efforts.
Where he is now: President Bush's approval ratings remain in the low 30's.
Key Quote:
"A dictatorship would be a heck of a lot easier, there's no question about it." Associated Press July 27, 2001
