Profile: Paul J. McNulty

Republican Party officials in Wisconsin prepare a report, “Fraud in Wisconsin 2004: A Timeline/Summary,” that purports to document 65 “voter fraud” instances that they claim had a negative impact on the 2004 elections. US Attorney Steven Biskupic will investigate the claims in the report and find no evidence that crimes were committed. The document is later released by the House Judiciary Committee as part of its investigation into the 2006 US Attorney firings (see March 10, 2006, December 7, 2006, and December 20, 2006); Biskupic is listed for firing just after the report is disseminated (see March 2, 2005). The document is written by Chris Lato, the communications director for the Wisconsin Republican Party, under the auspices of the state GOP’s executive director Rick Wiley. Wiley commissioned the report for White House political chief Karl Rove; in 2007, a source described in the Milwaukee Journal-Sentinel as having “knowledge of the situation” will tell a reporter: “The report was prepared for Karl Rove. Rick wanted it so he could give it to Karl Rove.” The 30-page report spans the time period from August 31, 2004 through April 1, 2005, and contains reports and summatives with titles such as “RPW [Republican Party of Wisconsin] News Release: Evidence of Election Fraud Piles Up.” In March 2005, White House counselor Dan Bartlett, whose primary role is handling communications issues, identifies Wisconsin as one of the states from which the White House had “received complaints about US Attorneys.” In April 2005, Rove sends a copy of the report to White House counsel Harriet Miers, with a handwritten note calling it “a good summary” of the various voter fraud allegations in Wisconsin, and a notation about an allegation of more votes being cast in certain precincts than those precincts have registered voters, with “proof” of that allegation being that a “local newspaper” assigned “an investigative reporter” to look into the charges. “I was assured Saturday while I was in Milwaukee that the issue of more voters than people on the registration list is real,” Rove writes to Miers. The information in the RPW report will later be incorporated into a larger report disseminated in July 2005 by the American Center for Voting Rights Legislative Fund (ACVR), entitled “Vote Fraud, Intimidation & Suppression in the 2004 Presidential Election.” ACVR officials Brian Lunde and Mark “Thor” Hearne will write that their report “documents hundreds of incidents and allegations from around the country.… [T]housands of Americans were disenfranchised by illegal votes cast on Election Day 2004.… [P]aid Democrat operatives were far more involved in voter intimidation and suppression activities than were their Republican counterparts.” The report concludes that “government-issued photo ID” requirements will “help assure” that “no American is disenfranchised by illegal votes.” [Milwaukee Journal-Sentinel, 4/7/2007 ; In These Times, 4/18/2007; US House of Representatives, Committee on the Judiciary, 7/30/2009 ] US Attorney David Iglesias will later say of ACVR and similar organizations: “I hope the media keeps shining the spotlight on groups like the American Center for Voting Rights, the ACVR, who has been engaging in this type of voter suppression actions, especially targeting elderly people and minorities. And I mean, if you’re an American citizen who is not a felon, you have the right to vote.” [Democracy Now!, 6/4/2008] Miers will later testify that she has a vague recollection that she believed there was another explanation besides voter fraud for Rove’s “more voters than people on the registration list” characterization. She will recall hearing from the Justice Department “[t]hat the voting precinct in the county lines didn’t match. So in fact, there were instances where it really could be people voting in larger numbers than actually was the county population.” She will say that she believes she learned this from Deputy Attorney General Paul McNulty, but will not state this with certainty. “[I]t may be that it came from Bill Kelley,” she will say, referring to her deputy William Kelley. [US House of Representatives, Committee on the Judiciary, 6/15/2009 ]

One of several official logos for the LInX program. [Source: NCIS]Deputy Attorney General James Comey asks US Attorney John McKay (see October 24, 2001) to lead a pilot program in Seattle for entering Justice Department (DOJ) law enforcement information into a new information-sharing system called the Northwest Law Enforcement Information Exchange (LInX—see Early 2004). McKay has been a vocal proponent of the new program and has enjoyed Comey’s support for the program. Comey knows that he and McKay will encounter resistance from some DOJ agencies who jealously guard their information. Comey’s memo directs DOJ agency heads to participate in the program and gives deadlines for uploading information into the new system. McKay will later say the DOJ’s law enforcement agencies do not fully comply with Comey’s directive. Moreover, when Comey resigns in the spring of 2005, no one in the DOJ pressures agency heads to comply with the program directives. Enthusiasm for the project will wane further when Comey’s successor, Paul McNulty, takes the position. [US Department of Justice, Office of the Inspector General, 9/29/2008]

The Justice Department decides not to prosecute in most cases where detainees were abused and killed by the CIA. The cases, of which there are apparently eight, had been referred to the department by the CIA’s inspector general (see (August 2004)) and were investigated primarily by the US Attorneys Office for the Eastern District of Virginia, although officials at department headquarters in Washington are also involved in the decision not to prosecute. Although some of the cases are still technically under review at this time, the department indicates it does not intend to bring charges. [New York Times, 10/23/2005] The cases include:
The death of Iraqi prisoner Manadel al-Jamadi in CIA custody in November 2003 (see Between 4:30 a.m. and 5:30 a.m. November 4, 2003 and (7:00 a.m.) November 4, 2003);
The asphyxiation of Major General Abed Hamed Mowhoush in Iraq, also in November 2003 (see November 24 or 25, 2003 and November 26, 2003). This incident involved the military, as well as at least one CIA contractor; [New York Times, 10/23/2005]
The intimidation of al-Qaeda leader Abd al-Rahim al-Nashiri by a CIA officer named “Albert” using a gun and drill (see September 11, 2003).
The death of detainee Gul Rahman, who froze to death at the Salt Pit prison in Afghanistan (see November 20, 2002). The case was examined by prosecutors, but, in the end, a recommendation not to prosecute the officer who caused the detainee to die is made. [Washington Post, 9/19/2009] The officer’s first name is not known, although his last name is Zirbel. [Mahoney and Johnson, 10/9/2009, pp. 29 ] The decision is made because prosecutors conclude that the prison was outside the reach of US law; although the CIA funded it and vetted its Afghan guards, it was technically an Afghan prison. In addition, it is unclear whether Rahman, who was captured in Pakistan and then taken to Afghanistan, would have died from injuries sustained during his capture, rather than by freezing. Although hypothermia was listed as the cause of death in the autopsy, the body was not available to investigators. According to the Washington Post, “questions remain whether hypothermia was used as a cover story in part to protect people who had beaten the captive.” However, according to a “senior official who took part in the review,” the decision not to prosecute in this case is not initially that clear, and an indictment is considered. However, the prosecutors decide not to press charges against Zirbel and a memo explaining this decision is drafted. An official involved in the review will later say there is “absolutely no pressure” from the Justice Department’s management to decide not to prosecute. However, a later report by the Post will indicate there may be a split among prosecutors over the decision, and that a political appointee, US Attorney for the Eastern District of Virginia Paul McNulty, assesses the case. McNulty will be nominated for the position of deputy attorney general around this time (see October 21, 2005). [Washington Post, 9/19/2009]
However, one CIA employee, a contractor named David Passaro, has been charged with detainee abuse (see June 18-21, 2003). [New York Times, 10/23/2005] The department will begin a second review of some or all of these cases in 2009 (see August 24, 2009).

The White House announces that President Bush will nominate Paul McNulty to be the next deputy attorney general. McNulty is currently the US Attorney for the Eastern District of Virginia, which the Washington Post will describe as the “central legal front in the Bush administration’s anti-terrorism strategy.” He was involved in the prosecutions of “American Taliban” John Walker Lindh and Zacarias Moussaoui, sometimes referred to as a candidate for the “20th hijacker” on 9/11. McNulty’s nomination comes after the previous nominee, Timothy E. Flanigan, withdrew his name from consideration at the start of the month due to opposition in the Senate. McNulty will keep his current job and serve as acting deputy attorney general until confirmed by the Senate. [Washington Post, 10/22/2005] McNulty recently took a decision not to prosecute CIA officers who abused and killed detainees in some cases referred to his office by the agency’s inspector general (see (August 2004) and Mid-October 2005).

As many as 10 journalists are expected to testify during the Lewis Libby perjury and obstruction trial. Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, calls the prospect “unprecedented and, as far as I’m concerned, horrifying.” Libby’s lawyers may subpoena as many as seven journalists, whom they have not yet identified, to testify, in order to bolster their contention that Libby’s poor memory caused him to inadvertently lie to the FBI (see October 14, 2003 and November 26, 2003) and to a grand jury (see March 5, 2004 and March 24, 2004) about his involvement in exposing the CIA identity of Valerie Plame Wilson (see January 31, 2006). Roy Peter Clark, a scholar at the Poynter Institute, says he worries about the fallout from the trial, particularly in the future ability of journalists to protect their sources. Deputy Attorney General Paul McNulty recently told Congress that the Justice Department routinely observes restraint in issuing subpoenas to reporters, and has only issued 13 media subpoenas involving confidential sources in the last 15 years. “This record reflects restraint,” McNulty told Congress. “We have recognized the media’s right and obligation to report broadly on issues of public controversy and, absent extraordinary circumstances, have committed to shielding the media from all forms of compulsory process.” [Associated Press, 1/2/2007]

Four Democratic members of the Senate Judiciary Committee request that Attorney General Alberto Gonzales be investigated for perjury in light of his contradictory testimony to the Senate Judiciary Committee regarding the NSA warrantless wiretapping program (see July 24, 2007). “It has become apparent that the attorney general has provided at a minimum half-truths and misleading statements,” the four senators—Charles Schumer (D-NY), Dianne Feinstein (D-CA), Russ Feingold (D-WI), and Sheldon Whitehouse (D-RI)—write in a letter to Solicitor General Paul Clement calling for a special counsel to investigate. “We ask that you immediately appoint an independent special counsel from outside the Department of Justice to determine whether Attorney General Gonzales may have misled Congress or perjured himself in testimony before Congress.” [Senate Judiciary Committee, 7/26/2007] (The letter is sent to Clement because he would be the one to decide whether to appoint a special counsel. Gonzales and outgoing Deputy Attorney General Paul McNulty have recused themselves from any such investigation due to their own involvement in the incidents. The next person in line at the Justice Department, acting Associate Attorney General William Mercer, lacks the authority to make such a decision.) [CBS News, 7/26/2007] Senate Majority Leader Harry Reid (D-NV), who did not sign the letter but supports the request for a special counsel, says, “I’m convinced that he’s not telling the truth.” The call for a special counsel follows earlier testimony by FBI director Robert Mueller that flatly contradicted Gonzales’s testimony (see July 26, 2007), though White House spokespersons denied that Mueller contradicted Gonzales.
White House Denies Perjury Allegation - White House press secretary Tony Snow says the apparent contradictions stem from Gonzales’s and Mueller’s restrictions in testifying in public about the classified program. “The FBI director didn’t contradict the testimony,” Snow says. “It is inappropriate and unfair to ask people to testify in public settings about highly classified programs. The president, meanwhile, maintains full confidence in the attorney general.” And Justice Department spokesman Brian Roehrkasse insists that Gonzales was referring during his testimony to a separate intelligence operation that has not yet been revealed, though numerous other sources have contradicted that position (see July 25, 2007). “The disagreement that occurred in March 2004 concerned the legal basis for intelligence activities that have not been publicly disclosed and that remain highly classified,” Roehrkasse says.
Further Instances of Misleading Testimony - Senate Democrats also assert that Gonzales has repeatedly given false and misleading testimony about the US attorney firings, has been part of a White House program to encourage White House aides to ignore Congressional subpoenas, has falsely claimed that he has never discussed the firings with other witnesses (including White House aide Monica Goodling, who recently testified that she discussed the firings with Gonzales), and other instances of deception. Schumer says, “There’s no wiggle room. Those are not misleading [statements]. Those are deceiving. Those are lying.” [Associated Press, 7/26/2007] Schumer says at a press conference later in the day, “The attorney general took an oath to tell the truth, the whole truth and nothing but the truth. Instead, he tells the half-truth, the partial truth and everything but the truth. And he does it not once, and not twice, but over and over and over again. His instinct is not to tell the truth but to dissemble and deceive.…I have not seen anything like it from a witness in the 27 years that I have been in Congress.” Feingold adds, “Based on what we know and the evidence about what happened in terms of the gang of eight and what he said in that sworn testimony in the committee, I believe it’s perjury.…Not just misleading—perjury.” [US Senate, 7/26/2007] Judiciary Committee chairman Patrick Leahy (D-VT) does not sign the letter asking for the investigation, and has instead sent his own letter to Gonzales giving him a week to resolve the inconsistencies in his testimony. “The burden is on him to clear up the contradictions,” Leahy says. Leahy is joined by ranking Republican committee member Arlen Specter (R-PA), who says the call for a special counsel is premature. Specter accuses Schumer of “throwing down the gauntlet and making a story in tomorrow’s newspapers.” [Associated Press, 7/26/2007] Specter has suggested that Gonzales resign instead of continuing as attorney general. [USA Today, 7/26/2007]
'Linguistic Parsing' - Justice Department aides acknowledge that Gonzales’s self-contradictory testimonies have caused confusion because of his “linguistic parsing.” [New York Times, 7/26/2007]

Former Attorney General Alberto Gonzales tells an NPR reporter that he never allowed the Justice Department (DOJ) to become politicized, and that he believes the historical judgment of his tenure in the department will be favorable. He acknowledges making some errors, including failing to properly oversee the DOJ’s push to fire nine US attorneys in 2008, a process many believe was orchestrated by the White House with the involvement of Gonzales and then-White House political guru Karl Rove.
Failure to Engage - “No question, I should have been more engaged in that process,” he says, but adds that he is being held accountable for decisions made by his subordinates. “I deeply regret some of the decisions made by my staff,” he says, referring to his former deputy Paul McNulty, who resigned over the controversy after telling a Senate committee that the attorney firings were performance-related and not politically motivated. Gonzales says his then-chief of staff, Kyle Sampson, was primarily responsible for the US attorney review process and for working with McNulty. “If Paul McNulty makes a recommendation to me—if a recommendation includes his views—I would feel quite comfortable that those would be good recommendations coming to me” about the qualifications of the US attorneys under question, Gonzales says. He adds that he has “seen no evidence” that Rove or anyone at the White House tried to use the US attorneys to politicize the work at the DOJ. A review by the DOJ’s Inspector General found that the firing policy was fundamentally flawed, and that Gonzales was disengaged and had failed to properly supervise the review process.
Claims He Was Unfairly Targeted by 'Mean-Spirited' Washington Insiders - Gonzales says he has been unfairly held responsible for many controversial Bush administration policies, including its refusal to abide by the Geneva Conventions (see Late September 2001, January 9, 2002, January 18-25, 2002, January 25, 2002, August 1, 2002, November 11, 2004, and January 17, 2007) and its illegal eavesdropping on US citizens (see Early 2004, March 9, 2004, December 19, 2005, Early 2006, and February 15, 2006), because of his close personal relationship with former President Bush. Washington, he says, is a “difficult town, a mean-spirited town.” He continues: “Sometimes people identify someone to target. That’s what happened to me. I’m not whining. It comes with the job.”
Visiting Ashcroft at the Hospital - In 2004, Gonzales, then the White House counsel, and White House chief of staff Andrew Card raced to the bedside of hospitalized Attorney General John Ashcroft to persuade, or perhaps coerce, Ashcroft to sign off on a secret government surveillance program (see March 10-12, 2004). The intervention was blocked by Deputy Attorney General James Comey (see March 12-Mid-2004). Gonzales says he has no regrets about the incident: “Neither Andy nor I would have gone there to take advantage of somebody who was sick. We were sent there on behalf of the president of the United States.” As for threats by Justice Department officials to resign en masse over the hospital visit (see Late March, 2004), Gonzales merely says, “Lawyers often disagree about important legal issues.”
Warning about Plain Speaking - Gonzales says Obama’s attorney general nominee, Eric Holder, should refrain from making such statements as Holder made last week when he testified that waterboarding is torture. “One needs to be careful in making a blanket pronouncement like that,” Gonzales says, adding that such a statement might affect the “morale and dedication” of intelligence officials and lawyers who are attempting to make cases against terrorism suspects. [National Public Radio, 1/26/2009]

Cover of CIA OIG report, with redactions. [Source: CIA / New York Times]A 2004 report by the CIA’s inspector general (IG) on torture (see May 7, 2004) is released to the public, after months of speculation as to its contents. The CIA opposed the release of the report for years, arguing that the release would demoralize its personnel and make it more difficult for the agency to do its job. The report’s release is triggered by a federal judge’s ruling in response to a lawsuit filed by the American Civil Liberties Union (ACLU). The report, authored by former Inspector General John Helgerson, is heavily redacted, but the portions released to the public include a number of illegal and ethically questionable tactics used by US interrogators against detainees. Some of those tactics include the use of handguns, power drills, threats, smoke, and mock executions. Many of the techniques used against detainees were carried out without authorization from higher officials, and the Justice Department is reopening investigations into a number of the most serious allegations (see First Half of August 2009). The report says that the CIA’s efforts to provide “systematic, clear, and timely guidance” to interrogators were “inadequate at first” and that that failure largely coincided with the most significant incidents involving the unauthorized coercion of detainees, but as guidelines from the Justice Department accumulated over several years, oversight “improved considerably.” In the words of the Washington Post, “the report pointed to ongoing tensions between interrogators in the field and officials at the CIA Counterterrorism Center as to when detainees were compliant and when the use of ‘enhanced interrogation techniques’ was appropriate.” [MSNBC, 8/24/2009; Washington Post, 8/24/2009] In a statement, Helgerson says, “The most important findings of the review related to basic systemic issues: had management controls been established; were necessary laws, regulations, and guidelines in place and understood; had staff officers and contractors been adequately trained; and had they discharged their responsibilities properly?” [Washington Post, 8/24/2009] Newsweek reporter Michael Isikoff says that the “report was generated at the beginning by agency officials within themselves who had deep concerns about what was going on. I was struck. One officer is quoted in this report saying that he’s concerned that he might one day—agency officers might one day end up on some ‘wanted list’ to appear before the world court for war crimes stemming from these activities. It was agents—it was the concerns about this came from within the agency. That’s what generated this report.”
Recommendations Redacted - Isikoff notes that at least half of the report is redacted, including the IG’s recommendations, and says, “I’m told the worst stuff is in those blacked out passages, which means we still don’t know the full story of this program.” [MSNBC, 8/25/2009] The report contains 10 recommendations for action on the CIA’s part, but all of them are redacted. [McClatchy, 8/24/2009] Helgerson states his regret that so much of the report is redacted. “The essence of the report is expressed in the Conclusions and Recommendations,” he says. “I am disappointed that the government did not release even a redacted version of the Recommendations, which described a number of corrective actions that needed to be taken.” [Washington Post, 8/24/2009] Isikoff’s Newsweek colleague, Mark Hosenball, says he believes much of the redacted information has to do with “renditions”: detainees transferred to foreign countries “and abused there.” [PBS, 8/24/2009]
Detailing 'Crime Scene[s]' - Author and reporter Jane Mayer says she believes the report, “in essence, [details] a crime scene. It’s very hard to get away from the fact that things like death threats and mock executions are specifically identified as torture under the Convention Against Torture and, therefore, are illegal, and they’re considered very major crimes. So the problem for the Obama administration, which inherited this report and the question about what to do about it, is that it’s a red flag to any prosecutor. It’s very hard to ignore this, when you’ve taken an oath of office that says you’re going to execute the laws and uphold the Constitution. So they’ve got to somehow do something with this. I was interviewing Larry [Laurence] Tribe, a law professor, who said, you know, it’s hard to do nothing about this when you see it.” Reporter David Ignatius notes that an earlier review by Justice Department prosecutors found that no one at the CIA could be prosecuted for crimes based on the findings of the report. However, that may no longer be true. “[I]t is interesting and troubling to people at the CIA that something that was already decided not prosecutable is now maybe prosecutable,” he says. Mayer notes that during the Bush administration, possible prosecutions were short-circuited by political appointees such as then-US Attorney Paul McNulty, “who was very much a political player, who actually wound up having to resign later in the Bush administration for other political problems.” [PBS, 8/24/2009]
Federal Prosecutor Appointed - In part as a result of reviewing the CIA report, Attorney General Eric Holder names a special prosecutor to determine if the CIA or its hired contractors broke any laws in interrogating detainees (see August 24, 2009).
Reactions - CIA Director Leon Panetta issues a statement that supports the agency’s efforts while avoiding defending torture or abuse. In his statement, Panetta writes that he is not “eager to enter the debate, already politicized, over the ultimate utility of the agency’s past detention and interrogation effort.” He says the program produced crucial intelligence but adds that use of the harsh methods “will remain a legitimate area of dispute.” Overall, Panetta says, the agency is committed to “moving forward” and not spending large amounts of time reflecting on past practices. Senator Sheldon Whitehouse (D-RI) calls the report, and the concurrent appointment of special prosecutor John Durham to investigate torture allegations (see August 24, 2009), “a great relief, a great moment for America as a country.” He continues: “We’ve finally seen the rule of law brought forward in a way that it is clear and direct on this situation, which has been so sort of poisoned with personalities and politics and propaganda. It’s a first kind of clear, bright light, and I couldn’t be happier, couldn’t be more relieved.” [New York Times, 8/24/2009; Central Intelligence Agency, 8/24/2009; MSNBC, 8/25/2009] The ACLU’s Jameel Jaffer says, “The report underscores the need for a comprehensive criminal investigation that reaches not just the interrogators who exceeded authority but the senior officials who authorized torture and the Justice Department lawyers who facilitated it.” [Washington Post, 8/24/2009] Joanne Mariner, the terrorism and counterterrorism program director at Human Rights Watch, says: “The CIA inspector general’s report provides compelling official confirmation that the CIA committed serious crimes. A full criminal investigation into these crimes, and who authorized them, is absolutely necessary.” [Human Rights Watch, 8/24/2009]