No criminal prosecutions are planned for former Justice Department officials accused of allowing politics to influence the hiring of prosecutors, immigration judges and other career government lawyers…

[Mukasey] told delegates to the American Bar Association annual meeting, “Not every wrong, or even every violation of the law, is a crime. In this instance, the two joint reports found only violations of the civil service laws.”

Other intrusions of Bush administration politics into department hirings and firings remain under investigation. Justice officials say the attorney general’s remarks do not preclude criminal prosecutions if wrongdoing is found in the firing of nine U.S. attorneys in 2006 and the hiring practices in the department’s civil rights division.

Attorney General Mukasey says no prosecutions planned in Justice Department hiring scandal by Mark Sherman (Tribune/AP)

See also: ACS Criticizes DOJ Hiring Practices

What was the administration doing prior to 2004 that was so illegal that the entire top level of the DOJ threatened to quit over it? It’s nice that the Senate Judiciary Committee wants a criminal investigation concerning Gonzales’ perjury.

But the real criminal investigation that is needed here — and that has been needed for quite some time — is an investigation over the underlying surveillance crimes — both warrantless eavesdropping and whatever else it was that they were doing that caused the DOJ mutiny on the ground that it was against the law.

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues.

The article acknowledges that (warrantless and illegal) data mining operations already have been disclosed by the president. Josh Marshall points out that the NYT article suggests something more than “data mining:”

Of course, ‘data mining’ can mean virtually anything. What kind of data and whose you’re looking at makes all the difference in the world. Suggestively, the Times article includes this cryptic passage: “Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details. They would not say whether the differences were over how the databases were searched or how the resulting information was used.”To put this into perspective, remember that the White House [has] been willing to go to the public and make a positive argument for certain surveillance procedures (notably evasion of the FISA Court strictures) which appear to be illegal on their face. This must be much more serious and apparently something all but the most ravenous Bush authoritarians would never accept. It is supposedly no longer even happening and hasn’t been for a few years. So disclosing it could not jeopardize a program. The only reason that suggests itself is that the political and legal consequences of disclosure are too grave to allow.

Yup.

The image above is taken from an orgnet.com advertisement entitled “Data Mining Email to Discover Social Networks and Emergent Communities”.

Ashcroft, then Comey, and now Gonzales, Frazier, Shipley, Killinger and Pell have built a case on fantasy, supposition, prejudice and fear mongering.

[T]he Bush administration’s claim that they only eavesdropped on Terrorists has never made sense, given that it is precisely under such circumstances when obtaining a FISA warrant is easiest. One would need to bypass the FISA court only in those circumstances where one was uncertain about the ability to obtain judicial approval — i.e., when one sought to eavesdrop on someone other than people likely connected to the Terrorists. In all events, it inexcusable that we still do not know the answer to that question, and there is no justification to assume … that the administration exercised these powers properly.

I’d venture to guess that even if the government played a terrorist version of The Six Degrees of Kevin Bacon the FISA court likely would grant a warrant. Whether the warrantless wiretapping program was/is some sort of large-scale “data mining” project or some sort of racial profiling system, or something else, the program must have been/be so patently violative that not even the most secret and arguably most pro-government court would approve of it.

“In some instances, Presidents Reagan and Clinton may have been pleased with the work of the U.S. attorneys, who, after all, they had appointed,” Kyle Sampson, former chief of staff to Attorney General Alberto Gonzales, speculated in a 2006 memo outlining Bush’s alternative approach. “In other instances, Presidents Reagan and Clinton may simply have been unwilling to commit the resources necessary to remove the U.S. attorneys.”

This is precisely why the Administration had the provision inserted into the Patriot Act which negated the necessity of Senate confirmation for US attorneys.

When, for example, Donald Rumsfeld tendered his resignation as Secretary of Defense, there were Senate confirmation hearings for replacement Robert Gates. Not only did these hearings allow the Senate to assess the merits of the new appointment, it also allowed for the Senate to engage in oversight over the Defense Department. The Senate raised issues of Defense Department operations under Rumsfeld’s tenure and questioned Gates as to his plans and priorities for the Defense Department going forward.

Moreover, the confirmation process acts as the only practical protection against the President’s use of US Attorneys for primarily political ends. When Sampson writes that Reagan and Clinton “may simply have been unwilling to commit the resources necessary to remove the U.S. attorneys,” Sampson is precisely correct. The precious resources of political capital lost during confirmation hearing for replacements would outweigh the benefit of attempting to fire independently-minded attorneys and attempting to replace them with political sycophants. Confirmation hearings would bring front-and-center the reasons for both the firings, and then close scrutinization of the replacement attorneys. These are necessary and fundamental oversight powers of the Congress.

The new Patriot Act provision allowed for an end-run around this process. Simply put, the Administration sought to insulate itself from the “resource costs” of purely political and cronyistic use of officers of the federal courts.