Quantcast

George Zornick | The Nation

  •  
George Zornick

George Zornick

Action and dysfunction in the Beltway swamp. E-mail tips to george@thenation.com

The 12 Scariest Findings in the New Report on the Bundy Ranch Standoff

Bundy Ranch Protestor

An armed protestor patrols a bridge near Cliven Bundy's ranch outside Bunkerville, Nevada. April 12, 2014. (REUTERS/Jim Urquhart)

The standoff at the Bundy Ranch in Clark County, Nevada has faded from the headlines, but a startling report released today by Southern Poverty Law Center warns that the incident may have some long-lasting, and potentially bloody, consequences.

Many of the militia members that flocked to the ranch were part of the antigovernment Patriot Movement, an extremist movement with a long history, but that has gained serious steam during the Obama presidency. In 2008 there were about 150 Patriot groups nationwide—and there are over 1,000 today.

The SPLC report finds that this reawakened movement has drawn a very dangerous lesson from the standoff, which ended with the Bureau of Land Management backing off and leaving the ranch: a lesson that the federal government can be scared off by heavily armed militias.

That’s not to say the Bureau of Land Management should have engaged in a firefight, but the report makes clear the Patriot Movement has been energized by the “victory.” Already, a couple that was at the ranch undertook a headline-grabbing shooting spree in Las Vegas after getting amped for conflict weeks earlier in Clark County. The report highlights several other low-level incidents that haven’t gotten much media attention.

It also details, through interviews with militia members who were at the ranch—goaded on, also, by support from conservative politicians and media outlets—just how eager many participants were for battle. Here are the twelve scariest findings from the report:

1. “Almost overnight, thanks largely to the Bundy's video going viral on antigovernment websites, the family's fight with the federal government became a touchstone for various Tea Party Republicans, libertarians, antigovernment Oath Keepers and militia members, many of whom saw in the footage the beginnings of a war.”

2.  “After watching the video from his home in Anaconda, Mont., 650 miles away, Ryan Payne, 30, an electrician and former soldier who had deployed twice to the Iraq war, became enraged […]

Payne left that day with another member of his militia, Jim Lardy, and drove through the night, a few sleeping bags in tow, burning up cell phones hoping to bring every militia member they could. On April 9 he sent out an urgent call for the militias to mobilize. ‘At this time we have approximately 150 responding, but that number is growing by the hour,’ he wrote, offering directions to the Bundy ranch. ‘May God grant each and every one of you safety, wisdom and foresight, and courage to accomplish the mission we have strived for so long to bring to fruition. All men are mortal, most pass simply because it is their time, a few however are blessed with the opportunity to choose their time in performance of duty.’”

3. “In a low-lying wash where gates held the Bundy herd, an angry, heavily armed crowd grew, defying orders and engaging in a tense game of chicken with BLM rangers in riot gear demanding through loudspeakers that they disperse. They shouted profanities and gripped their weapons.

“Militia snipers lined the hilltops and overpasses with scopes trained on federal agents. What happened was not unplanned. As Payne later told the SPLC, he had ordered certain gunment ‘to put in counter sniper positions’ and others to hang behind at the rance. ‘[M]e and Mel Bundy put together the plan for the cohesion between the the Bundys and the militia....Sending half of the guys up to support the protestors...and keep overwatch and make sure that if the BLM wanted to get froggy, that it wouldn't be good for them.’”

4. “Writing on his blog hours after the standoff, Mike Vanderboegh, an aging government-hating propagandist from Alabama who heads the III Percent Patriots, characterized the standoff in grandiose terms. ‘It is impossible to overstate the importance of the victory won in the desert today,’ he gushed. “The feds were routed—routed. There is no word that applies. Courage is contagious, defiance is contagious, victory is contagious. Yet the war is not over.’”

5. “Ignoring the fact that Bundy and his followers were the ones who drew their weapons, U.S. Rep. Jason Chaffetz (R-Utah) told The Los Angeles Times, ‘You can’t just show up with guns blazing and expect to win the hearts and minds of the public.’ Chaffetz, a firm advocate of those protesting the BLM, concluded, ‘The federals need a little more Andy Griffith and a lot less Rambo.’”

6. “A month after the standoff, San Juan County, Utah, Commissioner Phil Lyman led a protest against a ban on the use of motorized vehicles in Recapture Canyon that was meant to protect archaeological sites from damage.”

“Waving Gadsden flags just like those draped over the slain officer in Las Vegas and decrying the actions of the BLM, Lyman and several dozen ATV riders—including members of Bundy’s family—rode into the canyon to defy BLM authority. Lyman told the SPLC that the ride was meant to be a peaceful protest, but he did little to conceal his rage over what he characterized as federal tyranny.”

“‘If things don’t change, it’s not long before shots will be fired,’ Lyman said, joining other conservative lawmakers such as Chaffetz in warning of violence if the federal government didn’t rein in the BLM. ‘We can avoid it. But it’s not going to be by the people changing their attitudes and accepting more intrusion into their lives. It’s going to be by the federal government acknowledging people’s freedom.’”

7. “This May in Texas, militias and their allies came to protest a BLM survey of more than 90,000 acres along the Red River, fearing the federal government was planning a land grab.”

8. “A month earlier in Utah, two men pointed a handgun at a BLM worker in a marked federal vehicle while holding up a sign that said, ‘You need to die.’”

9. “In New Mexico’s Otero County, a brewing confrontation between state and federal officials ended after BLM officials opened gates cutting off water for grazing cattle to protect the jumping mouse. Again, there were conspiracy theories demonizing BLM efforts to protect the environment.”

Please support our journalism. Get a digital subscription for just $9.50!

10. “[I]n mid-June, more violence erupted, as a BLM ranger and a California Highway Patrol officer were shot and wounded, allegedly by a self-declared sovereign citizen, Brent Douglas Cole, who was camping outside of Nevada City, Calif.”

11. “None of this has tamped down the rhetoric. The Bundy standoff has actually brought the spotlight to the antigovernment movement, and its leaders are soaking up the attention. Polarizing figures such as former Arizona sheriff Richard Mack and Stewart Rhodes of the Oath Keepers have been eager to take advantage of the moment. Mack, a longtime militia darling who has led a push for county sheriffs to stand against federal law enforcement agencies, told one crowd, ‘We don’t believe that bureaucratic policies and regulations supersede the Constitution. I came here because I don’t believe the BLM has any authority whatsoever. Grazing fees do not supersede life, liberty and the pursuit of property.’”

12.  “Among [Bundy’s current supporters] are politicians belonging to the Independent American Party (IAP)— the same party whose banner rabidly anti-immigrant former U.S. Rep. Tom Tancredo ran under during his bid for to become governor of Colorado. In late May, at an IAP event to honor Bundy for ‘his courage in standing up for state sovereignty,’ Bundy and his wife, Carol, signed paperwork to join the Nevada chapter. ‘Cliven Bundy is my hero,’ Janine Hansen, an IAP candidate running for Nevada’s 2nd congressional district, told a gathering of supporters. ‘We cannot allow this incredible opportunity that Cliven has given us to die. … It’s time that we are no longer serfs on the land in the State of Nevada. It is time that we become sovereign in our own state, our own sovereign state. It is long past time. We are not the servants of the BLM.’”

 

Read Next: An interview with Jesse Jackson about stopping the rebirth of the Old Confederacy in the New South.

Did the CIA Illegally Spy on the Senate? Now We May Never Know

US Senator Dianne Feinstein

US Senator Dianne Feinstein (Reuters/Jonathan Ernst)

The Department of Justice will not investigate whether the Central Intelligence Agency illegally spied on staffers of the Senate Intelligence Committee and removed documents from committee servers, McClatchy confirmed Thursday. The CIA also claimed committee staffers took documents from the intelligence agency without authorization, and that claim will also not be investigated.

“The department carefully reviewed the matters referred to us and did not find sufficient evidence to warrant a criminal investigation,” Justice Department spokesman Peter Carr told McClatchy.

It’s a fizzling denouement to one of the more fascinating political dramas of the Obama era. Earlier this year, without any warning, Intelligence Committee chairwoman Dianne Feinstein took the Senate floor and delivered a lengthy, forceful speech directly accusing the CIA of spying on private committee computers and removing sensitive documents. It was an unprecedented public eruption of tensions between the security state and the legislative branch.

The backstory is that the Intelligence Committee conducted an extensive investigation into Bush-era torture, and produced a 6,300-page report that is not yet public. It’s reportedly a “searing” indictment of the agency—and the CIA responded by denying many of the damning charges.

The problem is that investigators came across what’s known as the “Panetta review,” an internal review ordered by the former CIA director that reportedly confirms most of the worst findings about torture by CIA agents. It’s this review that Feinstein publicly charged the CIA with removing from private committee computers after gaining illegal access.

This is a serious charge—it’s not substantially any different from CIA agents breaking into a physical Senate office and removing files.

What’s odd about Justice’s refusal to pursue a formal investigation is that Feinstein claims Brennan essentially admitted the cyber break-in. This is what she said during her speech back in March:

[O]n January 15, 2014, CIA Director Brennan requested an emergency meeting to inform me and Vice Chairman Chambliss that without prior notification or approval, CIA personnel had conducted a “search”—that was John Brennan’s word—of the committee computers at the offsite facility. This search involved not only a search of documents provided to the committee by the CIA, but also a search of the ”stand alone” and “walled-off” committee network drive containing the committee’s own internal work product and communications.

According to Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the Internal Panetta Review. The CIA did not ask the committee or its staff if the committee had access to the Internal Review, or how we obtained it.

Instead, the CIA just went and searched the committee’s computers.

Please support our journalism. Get a digital subscription for just $9.50!

A second-party retelling of a confession may not be enough to obtain a conviction, but it’s hard to imagine there is not enough smoke here to at least pursue an investigation. Aside from the immediate implications regarding Bush-era torture—and, with the revelations this week about CIA spying in Germany, an agency that may essentially be going rogue—the incident raises grave concerns about constitutional separation of powers, as Feinstein herself noted in her speech.

Feinstein said she is at least happy that Justice won’t investigate the CIA’s claim that committee staffers essentially stole the Panetta report from CIA computers, a charge she firmly rebutted, at length, in her March speech.

Others took a more aggressive stand. Senator Mark Udall, a member of the committee, doesn’t think this is over:

Senate Majority Leader Harry Reid didn’t directly criticize the Justice Department on Thursday, but did restate that he believed the CIA was engaged in wrongdoing.

 

Read Next: Rebecca Gordon asks, Does America Still Torture?

What’s Stopping Congress From Reversing ‘Hobby Lobby’?

Hobby Lobby

(AP photo/Ed Andrieski)

Democrats in the House and Senate will unveil legislation that would reverse the immediate effects of Burwell v. Hobby Lobby and force closely held corporations to provide contraceptive coverage to employees regardless of whether the owners object.

A common misconception about the case is that the Court ruled the Affordable Care Act violated the religious freedom precepts laid out in the Constitution by requiring contraceptive coverage. It clearly didn’t—rather, the Court’s five conservatives ruled it violated the 1993 Religious Freedom Restoration Act, which forbid the federal government from “substantially burden[ing] religious exercise without compelling justification.”

All it would take, then, to undo the immediate effects of the ruling would be for Congress to go back and pass legislation overriding the RFRA.

That’s what Democratic Senators Patty Murray, Mark Udall and Dick Durbin are proposing to do with their bill unveiled Wednesday morning, the Protect Women’s Health from Corporate Interference Act. In the House, Representatives Louise Slaughter, Diana DeGette and Jerrold Nadler have a companion bill with the same name.

The legislation would explicitly forbid employers from refusing to offer health coverage, including contraceptives, that is otherwise guaranteed by federal law, and would make explicit that the RFRA cannot override the Affordable Care Act. It would still allow exemptions for houses of worship and religious non-profits.

Please support our journalism. Get a digital subscription for just $9.50!

“After five justices decided last week that an employer’s personal views can interfere with women’s access to essential health services, we in Congress need to act quickly to right this wrong,” said Murray. “This bicameral legislation will ensure that no CEO or corporation can come between people and their guaranteed access to health care, period. I hope Republicans will join us to revoke this court-issued license to discriminate and return the right of Americans to make their own decisions, about their own health care and their own bodies.”

The immediate prospects of the legislation are fairly dim: or rather, it is certainly dead on arrival in the Republican-controlled House, and faces a tough path in the Senate, where it will come for a vote next week.

But the idea is to begin legislative momentum now for an eventual reversal of the RFRA—and in the meantime, put Republican Senators on the record now about whether they think corporate executives should be making healthcare decisions for their female employees.

 

Read Next: Zoë Carpenter on Hobby Lobby and the religious rights of Muslim prisoners

145 Nominees Still Can’t Do Their Jobs Because Republicans Won’t Do Theirs

Harry Reid

Senate Majority Leader Harry Reid of Nevada (AP Photo/J. Scott Applewhite)

With all due respect to Michael Hoza, his nomination to be US ambassador to Cameroon isn’t exactly a thrilling political development. Few people outside his professional circle likely even know who he is, and no US senators have raised substantive objections to his nomination.

Nor should they—he’s a career foreign service officer with a stellar résumé, and has worked extensively in Africa.

Yet Hoza has been awaiting a Senate confirmation vote since mid-January, one of 145 nominees languishing on the Senate calendar. He is waiting alongside nominees to a wide variety of offices and positions, from the associate director of the Office of Science and Technology Policy to assistant secretaries at the departments of Energy and Defense.

Perhaps if these nominees were wildly controversial or had long records demanding extensive examination, the Senate would be properly exercising its constitutional duty to advise and consent on appointments. But many of these nominees are almost laughably benign, and if recent history is a guide, will eventually receive a bipartisan confirmation vote.

So why are these nominees waiting so long? Routine obstruction by Republican senators who are deliberately stretching out the confirmation process for virtually every nominee to come through the Senate. And now Senate majority leader Harry Reid is threatening to once again enact rules reform that would neutralize the GOP’s slow-down tactics.

“If they’re going to continue this, maybe we’ll have to take another look at that. It’s outrageous what they’ve done,” Reid said on the Senate floor Monday when he returned from the July 4 holiday. “There’s no other way to look at what they’re doing. This is obstruction for obstruction’s sake.”

Though Democrats did enact the so-called “nuclear option” eliminating filibusters on executive and judicial nominations (Supreme Court excepted), the cloture process is still in place—and it allows for as much as thirty hours of debate per nominee. Republicans have been regularly using all of the time they can, which dramatically slows the Senate down.

Reid has options for changing the Senate rules to combat the slow-down, which he has said wouldn’t happen until next year (and, of course, if Democrats retain the majority). One possibility is “use it or lose it” reform, which has been advocated by several good government groups, like Fix the Senate Now. Basically, senators would have to use that debate time to actually debate the nominee in question, or they would forfeit it.

So if Senator John Cornyn wants to spend ten hours on the Senate floor talking about the nominee for US smbassador to the Democratic Republic of Timor-Leste (waiting nearly six months for a vote), he’s welcome to do so, but he almost surely wouldn’t.

This is a particularly effective way of speeding up the Senate because Republicans can’t argue they are losing any means to exercise minority rights—they can still actually use the thirty hours on any nominee they choose. They would just have to explain why they object, which is a tall order since Republicans apparently approve of many of the nominees they are nonetheless slowing down.

Please support our journalism. Get a digital subscription for just $9.50!

A report by Common Cause in May found nineteen examples of Republican senators chewing up cloture time on judicial nominees who were later confirmed unanimously by the Senate. Many executive branch nominees go through the same process. Republicans draw out the process and then end up voting for the nominee, as this chart from the report notes:

The level of obstruction is unprecedented. The average wait time for an executive branch or independent agency nominee is now nine months, according to Common Cause. There are around 110 executive branch or independent agency nominees awaiting action—and at this time in the George W. Bush presidency, there were only thirty-two. The number of cloture votes being forced for executive branch nominees are at record highs:

This obstruction is taking place largely out of the public eye—nobody particularly cares who is the assistant undersecretary to some alphabet-soup agency. But these are crucial posts in the everyday machinations of the federal government.

Take Hoza, for example, awaiting confirmation to be US ambassador to Cameroon. That country has been plagued by violence from the extremist Boko Haram group for months, and has been widely criticized, including by neighboring Nigeria, for being slow to respond to the threat.

Would having a US ambassador in the capital city of Yaounde have helped speed the response? We won’t ever know. Hoza has been on the Senate calendar since January 15, waiting for a vote.

 

Read Next: Katrina vanden Heuvel, “Economic Inequality Is Not an Act of God

10 Questions All Politicians Should Answer About Gun Control

NRA Gun Convention

National Rifle Association's (NRA) annual convention in Houston, Texas (REUTERS/Adrees Latif)

For years, the National Rifle Association has pressed candidates for local and national offices to answer questions about gun control policy. The highly publicized results, which help form a candidate’s often sacred “NRA rating,” not only affect races in the short term but help shape policy long after as politicians are hemmed into a particular position on guns before even taking office.

Now, a leading pro-gun control group is launching a counter-effort: Everytown for Gun Safety, funded by former New York City Mayor Michael Bloomberg, will soon present federal candidates in the 2014 midterms with a ten-part questionnaire about gun control policy. Bloomberg has committed to spending $50 million on the midterms, and the questionnaire is a good starting point for evaluating where candidates stand.

In many cases, this is the first time these candidates will be asked in detail about gun control policy. Among the questions, which you can read in full here:

  • Does the candidate support closing the gun show loophole?

  • What about loopholes that allow people to buy guns online without a criminal background check?

  • Does the candidate support increased penalties for straw purchases and gun trafficking?

  • Should the size of ammunition clips be restricted? (There is no baseline given).

Please support our journalism. Get a digital subscription for just $9.50!

Some of the questions are traps, in a sense, for candidates who normally hew close to the NRA line and oppose any restrictions on gun rights whatsoever. For example, one question asks if the candidate supports laws to keep guns out of the hands of people who have been convicted of stalking or of abusing a dating partner. (Current federal law only prohibits gun ownership by people convicted of spousal abuse, but not domestic violence more generally.) Any sensible answer to the question would be yes, and a “no” answer is a campaign ad waiting to happen.

Other questions are clearly designed to build political support among potential members of the next Congress for things like expanded background checks or even smaller-bore policy items like increased funding for the federal background check database.

But there is one curious omission, especially for a group whose name is supposed to recall the horror of the shootings in Newtown, Connecticut: no question asks about an assault weapons ban. There was notable state-level action around restricting assault weapons after Newtown, but congressional Democrats dropped this from last spring’s major gun control legislation. Apparently Everytown for Gun Safety isn’t too interested in pushing Congress forward on this issue.

 

Read Next: David Cole on the one Supreme Court decision we can celebrate

What the SCOTUS Decision Ending Obama’s Recess Appointment Power Means

Supreme Court

The US Supreme Court (AP Photo/J. Scott Applewhite)

President Obama overstepped his power when he named three people to the National Labor Relations Board at the end of 2011, the Supreme Court decided unanimously on Thursday.

Here’s the background: since 2009, Senate Republicans undertook routine obstruction of President Obama’s appointments by wielding a filibuster that required sixty votes to break. They did this against all sorts of nominees, for offices big and small; in some cases, Republicans didn’t even bother to claim a substantive problem with the nominee. The only criteria for a filibuster, at times, seemed to be that Obama nominated that person.

One area where this was extremely problematic was the National Labor Relations Board—three members had their five-year terms expire in 2012, and Senate Republicans filibustered Obama’s replacements. With three empty seats, the NLRB would not have a quorum to function, and the practical effect would be that US labor law would no longer be enforced. (It’s not hard to see this as the GOP’s goal here).

The White House didn’t want this to happen, and Obama contemplated and ultimately made “recess appointments” to the three seats.

The law around presidential appointments during recess has historically been vague. Article II, section 2, clause three of the Constitution grants the president “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” That was a sensible clause for an era when it could take weeks for Congress to return to Washington via horse and buggy—if the war secretary died of tuberculosis, it would not be practical to wait that long to confirm a replacement.

In the modern era, how should that clause be interpreted? Presidents began making recess appointments when the Senate gaveled out of session, even for a few days, which was clearly within the letter of the law, though probably not the original spirit. That was legally fine—even three Supreme Court members were appointed in that fashion.

In the aughts, to prevent President Bush from placing un-confirmable nominees into office when the Senate broke for recess, Senator Harry Reid devised a strategy to hold “pro forma” sessions every three days. This consisted of a senator coming to the floor when everyone else was out of town, gaveling the Senate into session, and then right back out. As a technical matter, the Senate was always in session, and the president could not make recess appointments.

Republicans later adopted this strategy, but Obama—bolstered by a lower-court ruling that those pro forma sessions were not legitimate—decided in late 2011 to issue three recess appointments to the NLRB to keep it functioning in late 2011 in the midst of some pro-forma sessions. This is what is at issue in Thursday’s case, NLRB v. Canning.

The administration urged the justices to look at the practical matter here: the Senate was not really in session in any true sense, and the pro-forma sessions every three days were an obvious ploy by Republicans to prevent recess appointments.

The justices disagreed:

In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here.[…]

The Solicitor General asks us to engage in a more realistic appraisal of what the Senate actually did. He argues that, during the relevant pro forma sessions, business was not in fact conducted; messages from the President could not be received in any meaningful way because they could not be placed before the Senate; the Senate Chamber was, according to C-SPAN coverage, almost empty; and in practice attendance was not required.

We do not believe, however, that engaging in the kind of factual appraisal that the Solicitor General suggests is either legally or practically appropriate. From a legal perspective, this approach would run contrary to prece­dent instructing us to “respect…coequal and independent departments” by, for example, taking the Senate’s report of its official action at its word. From a practical perspective, judges cannot easily determine such matters as who is, and who is not, in fact present on the floor during a particular Senate session. Judicial efforts to engage in these kinds of inquiries would risk undue judicial interference with the functioning of the Legislative Branch.

Please support our journalism. Get a digital subscription for just $9.50!

In effect, this ends all recess appointments by the president, except in a rare scenario outlined by the Court in which the House and Senate disagree about the congressional calendar.

What does all this mean? In the short term, not much: Obama withdrew those now-illegal appointments, and the Senate confirmed three others to the NLRB earlier last year. Democrats then undertook rules reform this year that eliminated the filibuster on non-judicial appointments. That removed any real need for Obama to make recess appointments.

But, should things go poorly for Democrats in November, the Senate will become Republican. If history is a guide, they will block any further Obama appointments almost as a matter of reflex. And now recess appointments will be out of the question.

The long-term implications for organized labor here are also dire, as Ian Millhiser at the Center for American Progress has been relentlessly pointing out. The three seats in question here have terms that expire in 2018.

So: imagine a scenario in which Republicans hold the Senate in 2018, and refuse to confirm a Democratic president’s nominees to the NLRB, even if they are entirely noncontroversial. There will now be no recourse, and the NLRB will go dark.

 

Read Next: Supreme Court Kills the Old Robocop Dream

Lois Lerner’s Missing E-mails Are the Tip of the Iceberg

Lois Lerner

IRS official Lois Lerner at the House Oversight Committee hearing to investigate extra IRS scrutiny to the Tea Party, May 22, 2013 (AP Photo/ J. Scott Applewhite)

The GOP scandal machine kicked into a new gear this week when the Internal Revenue Service disclosed late Friday that two years of e-mails belonging to IRS official Lois Lerner are missing and apparently permanently lost.

Lerner has, for some time, been the focal point of the Republican Party’s grand theory of Tea Party persecution as the IRS official supposedly leading politically motivated probes of tax-exempt conservative groups. Coupled with Lerner’s repeated invocation of her Fifth Amendment rights in congressional hearings, the missing e-mails are treated as prima facie evidence of a nefarious plot. “If you think, by the way, that the Lois Lerner e-mails are lost, you need to wake up. There is no way those e-mails are gone,” Rush Limbaugh thundered on Monday. “[The administration is] thinking nobody’s gonna try to stop them, nobody’s gonna push back, nobody’s gonna call them on it. It’s just the way that they’re gonna deal with it.”

While Republicans’ grand theory about the IRS “scandal” has a few holes, to put it lightly, they are correct to be mad here. It’s unacceptable that a high-ranking government official’s e-mails are missing.

Moreover, this is not an uncommon occurrence. Federal record-keeping borders on abysmal. Time and again crucial documents from many different agencies have gone missing. This episode reveals a much more banal form of federal noncompliance and malfeasance than what’s alleged by Limbaugh and company—but a much more real scandal.

In 2010, only 5 percent of federal agencies had a “low risk” of losing records, according to a review by the National Archives. Meanwhile, 46 percent were classified as having “high risk” and 49 percent were at a “moderate risk.” The 2012 review, the most recent one conducted by the National Archives, showed some improvement—20 percent of federal agencies were in the “low risk category” and 36 percent were “high risk.” That’s encouraging, but still far from an acceptable standard.

The basic problem is the federal government has been very slow to adapt its technology to the demands of permanently archiving millions of electronic records, mainly in the form of e-mails. The Federal Records Act theoretically requires agencies to do so, but enforcement is rare, penalties are relatively low, and only the federal government can force compliance.

The government, incidentally, appears to be in no particular rush to fix the system. In August 2012 the National Archives and the Office of Management and Budget said agencies don’t need to have a system to manage their permanent and temporary records in an easily accessible electronic format until December 31, 2016.

This has lead to a patchwork system of record-keeping and frequent data losses. “The truth is the disappearance of agency records is not unusual. Government-wide, records are routinely lost or simply not preserved,” Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, said in a statement. “Unless and until Congress gets serious about fixing this widespread problem by amending the Federal Records Act to include increased penalties and to allow outside groups to sue agencies not complying with the law, we’ll inevitably have other missing e-mail scandals.”

Please support our journalism. Get a digital subscription for just $9.50!

The Lerner e-mail imbroglio is pretty clearly a result of a poorly designed record-keeping system. The agency said in a letter to Congress that until 2012, it used digital tape to back up its e-mail servers—but every six months, those tapes were erased and reused. (The IRS has since extended the life of those tapes.) Complicating this arrangement was that employees could only use 500 megabytes of space on the e-mail server, and then had to start deleting e-mails or moving them to their hard drives.

So while the IRS possesses, and has turned over, 67,000 of Lerner’s e-mails, there is a two-year gap from 2009 to 2011. What happened, according to the agency, was that she hit her storage limit and began moving e-mails to her hard drive—which crashed in 2011, and the data on it was deemed unrecoverable. The e-mails were no longer on the agency server, the IRS was not backing up individual employees’ computers, and the digital tapes from when they were on the server had already been recycled.

There’s no evidence that Lerner was acting maliciously, though Congress should—and certainly will—investigate whether Lerner was deliberately deleting those e-mails, knowing that the digital records of them were ephemeral.

It wouldn’t be the first time that federal e-mail records of high importance—that almost surely revealed wrongdoing—were deleted under suspicious circumstances.

Consider:

  • In 2009, the Department of Justice’s Office of Professional Responsibility finished a high-profile probe into how the memos that allowed the United States to engage in torture were crafted. One problem: OPR was looking for e-mails between Deputy Attorney Generals John Yoo and Patrick Philbin, but found that most of Yoo’s e-mails were “deleted and…reportedly not recoverable.” OPR said its investigation was “hampered by the loss of Yoo’s and Philbin’s email records.” Yoo has maintained the e-mail losses were accidental, perhaps even a technical glitch—but it’s probably too late to ever know. Once again, overwriting backup tapes was a central problem—and even there, DoJ didn’t adhere to its own guidelines on overwriting.

  • The Securities and Exchange Commission issued a controversial directive that SEC enforcement staff should destroy any records created as a result of a preliminary investigation. Accordingly, more than 9,000 case files were destroyed—among them investigations into the activities of Bernie Madoff, into Goldman Sachs trading in credit default swaps in 2009, and into financial fraud at Wells Fargo and Bank of America leading up to the financial crisis. When the SEC later went back to conduct investigations into how it missed so much fraud, crucial pieces of the record were gone forever. CREW sued to stop the deletion, but a federal court ruled the Federal Records Act was written narrowly enough to allow it.

  • Then there’s the big one: the loss of millions of e-mails from the Bush White House. Former Bush officials screaming about the IRS lost e-mails should perhaps stop and reflect upon this incident. The Bush White House revealed in 2007 that as many as 5 million e-mails from March 2003 to March 2005 had gone missing. They were no longer on the White House servers and digital backups were not maintained. Consequently, investigations into wrongdoing at the White House—like Patrick Fitzgerald’s inquiry into the leaking of Valerie Plame’s name to reporters—were significantly hampered by missing e-mails. The Obama administration launched an effort to recover some of those e-mails, but millions more are gone forever.

Lerner wasn’t the first official to have an embarrassing e-mail gap, and she likely won’t be the last. CREW wrote this week to Representative Darrell Issa, chair of the House Committee on Government and Oversight, and his Senate counterpart Tom Carper, asking for a thorough review of government record-keeping problems and the need to amend the Federal Records Act.

Given Issa’s stated, deep concern for the IRS scandal, perhaps he will act quickly.

 

Read Next: Lauren Windsor covers the Koch brother’s secret billionaire summit

Hillary Still Doesn’t Get It on Iraq

Former Secretary of State Hillary Clinton speaking in Washington on May 14, 2014. (AP/Cliff Owen)

The unfortunate re-eruption of warfare in Iraq will lead to many more questions for Hillary Clinton about her past support for the war—a rather unfortunate thing from her point of view, given the issue was a key reason for her 2008 Democratic presidential primary loss.

Her answer to one such question at a forum in Toronto reveals Clinton still has serious trouble talking about the war in a language recognized by those who opposed it—and there are a great many.

According to Alex Seitz-Wald of National Journal, this is what Clinton said at an event sponsored by the Toronto Region Board of Trade:

That statement echoes some of the worst impulses of the Bush administration, which were to frame supporting the war publicly as a matter of “supporting the troops.”

Please support our journalism. Get a digital subscription for just $9.50!

One of the central animating concerns of the anti-war movement—from the Cindy Sheehan encampment to a young Senator named Barack Obama’s describing soldiers from Illinois who had been badly maimed by battle—was for the thousands of US troops dying, and the thousands more being injured, in what was ultimately a needless war. When George W. Bush would bash war opponents as people who didn’t “support the troops,” the anti-war refrain was: that’s exactly what we’re doing. Hillary perhaps does not accept that argument—or if she does, it’s hard to tell.

When Terry Gross went after Clinton last week on NPR on gay marriage, she was trying to get at a basic question: Did Hillary always support gay marriage but withhold her public support for political reasons? What about all the people being denied rights, how might they have been helped sooner if she spoke out?

Here, Hillary seems to be pre-answering that same question as it applies to Iraq, and giving a pretty terrible answer for why she didn’t speak her mind on the war.

UPDATE: There is now video of Hillary’s full response to this question, which are hardly exculpatory. Transcript of the response where it begins in earnest (at 1:01) below the video.

CLINTON: I kept trying to say “Well if we knew then what we know now it would not have ever come for a vote,” all of which was true, but just sort of avoided the fact of my saying “You know I just got it wrong, plain and simple. I made a mistake.” I thought a lot about that, because people said well—“You’re not saying you made a mistake for political reasons.” Well in fact, in the Democratic Party at that time, the smart political decision, as so many of my colleagues did, was to come out and say “Terrible mistake, shouldn’t have done it,” and you know blame the Bush administration. I had this sense that I had voted for it, and we had all these young men and women over there, and it was a terrible battle environment. I knew some of the young people who were there and I was very close to one Marine lieutenant who lead a mixed platoon of Americans and Iraqis in the first battle for Fallujah. So I felt like I couldn’t break faith with them. Maybe that doesn’t make sense to anybody else but me, but that’s how I felt about it. So I kept temporizing and I kept avoiding saying it because I didn’t want there to be any feeling that I was backing off or undercutting my support for this very difficult mission in Iraq.

 

Read Next: Peter Van Buren on “How the ‘War on Terror’ Became a War on the Constitution

Who Will Replace Eric Cantor?

Kevin McCarthy

Majority Whip Kevin McCarthy holds ideas from constituents regarding a health care bill. (Photo by Elena Schneider/ Medill News Service, CC) 

After 2014 passes, Eric Cantor will no longer represent the 7th Congressional district in Virginia. But after July passes, he will also no longer serve as majority leader of the House of Representatives—a crucial position, and one in which he has used to considerably influence national policy.

As Chris Hayes pointed out last night on All In, Cantor was the chief advocate for driving a 2011 debt-ceiling showdown and the severe austerity measures that resulted. That’s not to say it was his sole prerogative; Cantor was advocating on behalf of a coalition of far-right Tea Party lawmakers who desperately wanted a showdown with the White House. But inside the leadership offices on Capitol Hill, it was Cantor who made sure that Speaker John Boehner heard and reacted to their concerns. As the number-two Republican in the House, he served as a conservative sword of Damocles over Boehner’s head: cross the conservatives too much, and they just might replace Boehner as Speaker with Cantor.

In addition, the majority leader’s considerable influence over the House gives that person unique power to make sure his or her top donors received what they want. In Cantor’s case, it meant Wall Street had an even stronger voice on Capitol Hill.

As of Thursday, only two candidates have emerged to take Cantor’s place: Representatives Kevin McCarthy and Pete Sessions. It’s useful to take a look at the political backgrounds and pet issues of both to see what direction the House might be headed post-Cantor.

Representative Kevin McCarthy
District: California’s 23rd
In Congress since: 2007
Biggest Contributors: Pharmaceutical and Health Product PACs contributed the most to his campaign committee; for individual donations, a plurality were from the securities and investment industry.

McCarthy is to some extent an empty vessel; he rose very quickly through California state politics. After stints with the California Young Republicans in the 1990s, he went on to work for Representative Bill Thomas, a congressional powerhouse who chaired the House Ways and Means Committee. Thomas was a titan for the pharmaceutical industry and helped get the Medicare Part D drug benefit passed; the ties McCarthy developed during this time are likely why he maintains high financial support from drug companies.

McCarthy left that office to run for California State Assembly, and won a seat in 2002. He quickly became assembly Republican leader, a theme throughout his career—he seems to excel most at internal politicking and obtaining caucus leadership posts. As Ryan Grim and Ashley Alman wrote at The Huffington Post, “There isn’t much to dislike about McCarthy, unless you’re annoyed with empty ambition.”

McCarthy is almost surely Boehner’s choice for the job, though he hasn’t said so publicly. He’s a moderate (by, of course, the standards of the increasingly polarized and extreme House GOP caucus.) In fact, he’s arguably more moderate than Cantor on the key issue of immigration—he said early this year that immigration reform should include legal status for the undocumented. All in all, McCarthy is unlikely to lead the Tea Party vanguard in the House. In fact, he’ll probably blunt its impact.

Representative Pete Sessions
District: Texas’s 32nd
In Congress Since: 1997

Biggest Contributors: Health Professionals PACs contributed the most to his campaign committee; for individual donations, a large plurality were either ideological donors or people in the Securities and Investment industry.

McCarthy is, quite clearly, not the preferred choice of the more conservative House GOP members. Their hopes initially rested on Representative Jeb Hensarling, a Tea Party favorite and chairman of the powerful and extremely lucrative, from a fundraising standpoint, House Financial Services Committee. Perhaps because he was unwilling to give up that plum spot, Hensarling elected not to run for majority leader and publicly tossed his support to Sessions. Other hardcore conservatives like Representatives Tom Price and Jim Jordan also chose not to run.

So it’s looking, for now, like a two-man race between McCarthy and Sessions. Some conservatives remain unsatisfied—Representative Steve King, for example, said Thursday he still wants a “staunch conservative [and] anti-amnesty candidate” to step up, but so far, nobody else has.

Sessions conservative credentials, though, are hardly in doubt. During the government shutdown last year, a member of the House was reported to have told President Obama, to his face, “I cannot stand to even look at you.” Several people in the meeting later identified Sessions as the speaker, though he denied it.

In early 2009, as Obama settled into the White House, Sessions favorably compared the coming GOP rebellion to the tactics of the Taliban. “Insurgency, we understand perhaps a little bit more because of the Taliban,” Mr. Sessions said in an interview with Hotline. “And that is that they went about systematically understanding how to disrupt and change a person’s entire processes.” (Aides immediately stressed Sessions wasn’t really comparing the GOP to the Taliban, just noting there was a blueprint for insurgent tactics out there. This seemed a distinction without much difference.)

Sessions appears to be basing his campaign around a tough anti–immigration reform stance. While GOP members gathered to say goodbye to Cantor on Wednesday in the Capitol, Sessions was busy finding the assembled press cameras and hinting at why he needed to take Cantor’s position. “I think this administration needs to be prodded and reminded that the entire sovereignty of the United States is at risk if we do not secure our border—north, south, east, and west,” Sessions said, as Breitbart News reported. “The things which are occurring at our border must be stopped and must be controlled before we do anything else that encourages people to come here.”

Please support our journalism. Get a digital subscription for just $9.50!

But some hard-right anti-immigration reform activists aren’t totally sold on Sessions. He faced a Sarah Palin–backed primary opponent who repeatedly blasted Sessions for taking an (extremely timid) step in the direction of reform. At a 2013 town hall meeting, he was caught on tape endorsing a guestworker program—though one that would never lead to full citizenship.

Ethical issues might also undo Sessions. He had an uncanny knack for getting himself mixed up in some of the more unseemly scandals of the aughts. He was caught up in the Jack Abramoff scandal when Sessions wrote letters to Bush administration officials asking them not to shut down certain Indian casinos—and then got wads of cash in campaign donations from tribes represented by Abramoff. He also got significant money from disgraced financier Alan Stanford and flew often on his private jet. Vice reported extensively Wednesday on some of the favors Sessions may have done.

But Sessions is no doubt a true believer—hence the large amounts of ideological money he’s received. He also chaired the National Republican Campaign Committee during the 2010 takeover, which burnished his credentials while making many Tea Party members indebted to him for their seats.

It seems, for now, that McCarthy has the race locked up—but then again, everyone said that about Eric Cantor, too.

 

Read Next: Ali Gharib asks if Cantor’s departure will affect Iran policy

Eric Cantor Loses, and Immigration Reform Is Damaged

Eric Cantor

House majority leader Eric Cantor, R-VA, delivers his concession speech in Richmond on Tuesday, June 10, 2014. (AP Photo/Steve Helber)

House majority leader Eric Cantor was defeated Tuesday night in the Republican primary for his House seat in Virginia—a truly shocking political loss in every sense of the word. Quite literally nobody in the political arena saw this coming, apparently including the challenger himself, Dave Brat, a professor of economics at Randolph-Macon College. He wouldn’t give a victory speech “until he was sure it was real,” according to Fox News host Megyn Kelly during the network’s Tuesday night broadcast.

The immediate question is obviously: How did this happen? How did one of the most powerful Republicans in Congress lose to a political neophyte that he outspent 26-to-1?

In politics, there’s a rush to find “the answer.” There’s no one reason why Cantor lost, but a crucial part of the story no doubt begins in Central America.

In recent months, tens of thousands of children unaccompanied by their parents have been flooding across the US border with Mexico. Sixty thousand will come this year, up tenfold from 2011, and as many as 130,000 may arrive in 2015. Lackland Air Force Base in Texas is filling up with these refugees, one of three military bases now being used to house the new arrivals. President Obama has declared it an “urgent humanitarian situation.”

The situation has gotten light to moderate coverage in the mainstream press, but in the right-wing press the coverage has been wall to wall: it has been relentlessly covered by online outlets like Breitbart News, and talked about incessantly on right-wing radio. Fox News has also devoted considerable attention to the crisis; the night before the Virginia primary, for example, Kelly had a long segment about it on her prime-time show.

Naturally, the right-wing concern isn’t exactly driven by a humanitarian spirit. The overwhelming message is that the influx—which will indeed cost taxpayers millions of dollars—is not only a harbinger of things to come but a direct result of Obama’s desire for immigration reform. Specifically, goes the narrative, Obama’s promise of a DREAM Act that would confer citizenship on undocumented youth is spurring the stampede.

This is mainly nonsense: for one, the proposed DREAM Act would apply only to youth living continuously in the United States for five years before enactment. Though right-wing outlets like the Drudge Report have found immigrants here and there aware of the bill and hopeful that it might apply to them, by and large analysts agree that increasing violence in Central America is driving parents to send their children to safer areas in large numbers. Escalating drug wars in Mexico and improved US economic conditions are making the United States the obvious landing spot for the northward-bound refugees.

But this all came at a terrible time for Cantor. His biggest foray into the immigration debate was to propose and draft a Republican version of the DREAM Act dubbed the KIDS Act. The bill stalled out late last year, in part over disagreements about whether youth who obtained citizenship would be able to then sponsor their parents for legalization.

So you can see where this is going. Brat was already running hard against Cantor for supposed softness on immigration. He employed an effective approach: instead of coming at it from an unhinged, xenophobic and divisive position, Brat played the populist. He charged that Cantor was a tight friend of Wall Street, the US Chamber of Commerce—another broad theme of Brat’s campaign—and that Cantor’s alleged desire for immigration reform was done so his buddies in the corporate world could employ more cheap labor.

In recent weeks, as the right-wing media fulminated over the refugee crisis, Brat took out the sledgehammer. One ad cooked up by the campaign, released this week, charged directly that “tens of thousands of illegal immigrants are pouring across the border on the promise of Eric Cantor’s amnesty”:

That’s naturally a wild distortion of what’s happening, and the presentation is amateurish in the extreme. (It badly misspells ‘Reuters’ at one point.) But if you’re looking for a reason Cantor suddenly fell, attacks like that could be the answer. “Closing the border is very important,” Brat told Sean Hannity on Tuesday night after his victory. “I ran hard on that issue.”

Now for all the necessary caveats: this was a House race where fewer than 100,000 people voted, and so it’s perhaps unwise to draw broad political lessons. Conservative activists made a convincing case Tuesday night that Cantor’s strong-arming of Tea Party types during state-level political meetings and conventions boiled grassroots anger, which also surely contributed to his loss.

Please support our journalism. Get a digital subscription for just $9.50!

Another caveat is that other pro-immigration Republicans, like Senator Lindsey Graham, won their contests. It should be noted, however, that Graham had some uniquely feckless opponents who did not attack him on immigration with the same zeal as Brat, nor were they as polished. The second-place finisher to Graham in Tuesday’s primary wants South Carolina to mint it’s own currency and compared the IRS to Nazi brownshirts.

It’s also true that Cantor made a sharp right turn on immigration and was basically an ally of anti-reform Republicans: he didn’t push for any of the very modest bills passed out of committee to come to the floor, and just last month he blocked a measure sponsored by a fellow Republican that would have given citizenship to undocumented US service members.

But in politics, perception is reality. Cantor was perceived as soft on immigration by many right-wingers, and may have lost because of it. The perception that he lost for that reason, in turn, will terrify Republicans for even dipping a toe in the reform waters.

One could say the GOP had already decided not to act on immigration any time soon, which might be true. But that intransigence, which perhaps could have been softened by midterm election results or external dynamics, has now only been hardened. Immigration has “been off the table for a while but now it’s really never going back on the table,” a lawmaker close to the House Republican leadership told Buzzfeed Tuesday night. “No one who wants to be in leadership eventually will ever, ever go for it and likely raise holy hell if it comes up.”

 

Read Next: John Nichols on Cantor’s defeat

Syndicate content