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Justice Department Needs New Priorities, Not New Prosecutors

Earlier this month, the U.S. Department of Justice asked seven U.S. attorneys across the country to step down from their positions. Critics of the Bush administration, including California Sen. Dianne Feinstein, have since questioned the move, noting that it seems to have been politically motivated.

One fired U.S. attorney, for example, led the prosecution of California Republican Rep. Randy "Duke" Cunningham.

The Bush administration counters that these U.S. attorneys were fired because their priorities were out of line with administration policy. Specifically, the DOJ told the New York Times that the prosecutors were being replaced "based on a review of their performance in carrying out [Attorney General Alberto] Gonzales's violent crime priorities."

According to the DOJ, one U.S. attorney was fired specifically for her poor record in prosecuting violations of federal weapons laws.

Given their larger budgets and investigative manpower, their federal jurisdiction, and their detachment from local affairs, one would think that investigating public corruption should among the highest priorities of U.S. attorneys. Long, expensive corruption investigations are generally too costly and too burdensome for local law enforcement to handle – not to mention the fact that local police officials may sometimes work for the very people who need to be investigated.

The Justice Department is correct in one respect. The position of U.S. attorney is inherently political. New federal prosecutors are appointed by the president, and he's naturally going to appoint attorneys who share his values and views on crime.

It's in this way that prosecutors and the politicians they serve effectively make public policy. It isn't just a matter of "enforcing the law." Like any other public office, a prosecutor's office has limited resources. What cases it chooses to pursue and spend those resources on, then, determines which laws will be aggressively enforced, and which laws won't be.

Still, while a president may appoint federal prosecutors who share his priorities as previously appointed U.S. attorneys' terms expire, it's rare that a U.S. attorney is dismissed without cause, much less a half dozen or more of them at the same time.

One reason for that may have been that in the past, the president's appointments for the position had to be confirmed by the United States Senate within 120 days. A president still at least had to abide by the pretense that federal prosecutors served the law, not the president. A wholesale dismissal of attorneys appointed by a prior administration would be met with skepticism in the Senate.

But that's not the case anymore. In March 2006, President Bush signed the reauthorization of the PATRIOT Act. Included in that bill was a provision allowing interim U.S. attorneys appointed by the president to serve indefinitely without Senate confirmation. This means that the prosecutors appointed by President Bush to replace those he just fired will be able to serve out the remainder of his term without being subjected to scrutiny from the Senate.

All of this grows even more troubling when you consider what the priorities of the current Justice Department actually are. Attorney General Gonzalez himself, for example, has that the "top priority" of his tenure at the Justice Department would be, of all things, the prosecution of pornography. Not child pornography, mind you. Regular, adult porn--the kind starring and bought, produced, and sold by consenting adults.

Earlier this month, federal officials arrested the founders of Neteller, an overseas online payment processor, while they were in the U.S. to switch planes. They were arrested because Neteller was allowing its U.S. customers to use the service with online gambling sites. It's the third time U.S. officials have arrested foreign citizens in a U.S. airport on online gambling charges, despite the fact that in all three cases, the suspects were citizens and residents of foreign countries where online gambling is perfectly legal.

The Justice Department is now investigating U.S. firms and/or investors for even doing business with overseas gambling operators.

Last week, federal officials raided several medical marijuana dispensaries in southern California, all legal under state law. Federal law enforcement seized marijuana plants and medical marijuana, but also the medical records of their clients, many of them cancer, AIDS, and multiple sclerosis patients. It's just the latest in a series of raids that have gone on since California legalized medical marijuana in the mid-1990s. This has been another law enforcement priority of the Bush administration: aggressively enforcing federal drug laws, even in states that have decided to give their citizens a bit more pharmacological freedom.

Perhaps the best example of the Bush administration's law enforcement priorities is Mary Beth Buchanan, formerly the U.S. attorney in the Pittsburgh area. Ms. Buchanan is widely considered a rising star in the Republican party. Her career has been carefully incubated in the Bush Justice Department, both under first Attorney General John Ashcroft, and under Gonzalez.

Buchanan's most famous case as attorney general was "operation pipe dreams," in which some 2,000 law enforcement officers spent $12 million in taxpayer dollars collaborating to arrest 55 people for selling glass-blown bongs over the internet. The trophy in those arrests was actor/comedian Tommy Chong. Despite having no criminal record, Buchanan went after Chong with zeal, because, she said, he had glamorized the use of marijuana in his movies. Chong received the harshest sentence of any of those arrested.

Buchanan was also the first U.S. attorney to take up Attorney General Gonzalez's challenge to go after pornographers. She filed precedent-setting charges against the porn producer Extreme Associates, a company that isn't even located in her district. It was the first time the federal government has brought an obscenity case in more than a decade. Her case was later thrown out in federal court.

Perhaps Buchanan's most troubling crusade was her pursuit of Dr. Bernard Rottschaefer, a Pittsburgh-area pain specialist who she says was writing prescriptions for OxyContin and other drugs in exchange for sex. Since Dr. Rottschaefer's conviction, Buchanan's case has fallen to pieces. Her star witness admitted in letters to her boyfriend that she made up the lurid sex-for-drugs stories in exchange for leniency from Buchanan's office on her own drug charges.

The discovery proceedings in a related civil trial have also since revealed significant problems with the testimony of Buchanan's other four witnesses. Buchanan never relented from her prosecution, and never pursued perjury charges against her star witness.

All of this seems like a lot of taxpayer money wasted on morality-driven cases that do little to make us safer. This warped sense of priorities grows all the more poignant when you consider that Buchanan took office six days before the attacks of Sept., 11, 2001, but that United flight 93 actually crashed to the ground in her district. One would think that might motivate a law enforcement official to devote all of her time and resources to protecting the country from future terrorist attacks. Instead, Buchanan has gone after bong sellers, pornographers, Dr. Rottschaefer, and, if you need another example, a couple of retired veterans who exaggerated their military experience.

With that kind of record, you might guess that Mary Beth Buchanan was among those U.S. attorneys let go last week. You'd be wrong. In fact, late last year, she was promoted. She now heads up the Justice Department's Office on Violence Against Women.

The most troubling thing about the Justice Department's recent dismissal of several U.S. attorneys, then, isn't that Attorney General Gonzalez expects his subordinates to share his priorities. What's most disturbing is what those priorities actually are.

Radley Balko is a senior editor with Reason magazine. He publishes the weblog, TheAgitator.com.

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