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Eyes Wide Shut

As most readers of this magazine are aware, back in May Democrats in the Texas legislature fled the Lone Star State for several days to prevent an unprecedented GOP effort to gerrymander congressional districts just two years after a census-mandated redistricting. In response, the architect of the gerrymandering plan, House Majority Leader Tom DeLay, called the Federal Aviation Administration for information on a civilian aircraft believed to be transporting the runaway Democrats.This information was passed on to the Texas Department of Public Safety (DPS), which had been ordered by Republican State House Speaker Tom Craddick to apprehend the fugitive statesmen. DPS, in turn, used the information to involve a branch of the Department of Homeland Security (DHS) in the hunt. That a federal agency whose purpose is combating terrorism was roped into a local partisan dispute struck many observers as outrageous.

Asked on May 16 whether he believed the DHS’s involvement was appropriate, White House spokesman Scott McClellan explained, “That is a matter that is being addressed in the state of Texas.” Efforts to address it, however, were hindered by the fact that DPS officials had destroyed all notes, memoranda, and other correspondence relating to the episode. By the end of the month, Democratic State Representative Kevin Bailey concluded an investigation of the Texas House General Investigation Committee by noting that, on the question of whether the DHS was misused, “I’m not sure it’s anything that I can really, or we can really, get information on.”

At about the same time, a White House spokesperson responded to Senator Joe Lieberman’s request for a federal investigation into the Texas case by explaining that “the facts and circumstances involving any contacts that took place will be explored by the appropriate agency, and, in this case, that’s the Department of Homeland Security.” This, then, was to be the investigation that got to the bottom of the matter. Alas, it didn’t either. On June 16, the DHS released its report, which, to be blunt, is a joke. The department limited itself to the question of whether employees of the department had knowingly used its resources for an inappropriate purpose. (The report concluded they did not.) Neither the possibility that DPS officials misled DHS employees nor DPS’s subsequent destruction of documents pertaining to the case was considered part of the investigation. The report does not even attempt to identify who authorized DPS’s misuse of federal resources--rather, it relays DPS employees’ refusals to answer that question. “The conduct of DPS,” explains the report, “was referred to the FBI for whatever action they deemed appropriate.” And what might that action be? Nothing: The FBI has declined to follow up.

There has, in other words, been no true investigation into how the resources of the DHS were brought into a state-level partisan squabble. We don’t know what official authorized DPS to call the federal agency. And it looks as though we never will.

How did the scandal-plagued 1990s give way to an era in which such a serious potential abuse of power could pass without even cursory investigation? The answer lies partly in the 1999 expiration of the independent counsel law. The law, whose demise this magazine cheered, was deeply flawed. But it did offer a mechanism for dealing with situations in which law enforcement agencies might be compromised by political concerns--situations such as what just took place in Texas. In its absence, it is crucial that the media and members of the opposition party create enough political pressure that the administration has no choice but to authorize a thorough investigation.

Sadly, it doesn’t look like that will happen. The media has moved on: The New York Times published 317 words on page 19 after the DHS released the results of its useless investigation; The Washington Post didn’t bother to cover it at all. The Democrats, too, are largely silent. Apart from Lieberman, no Democratic presidential candidate or member of the party’s leadership has called for a thorough inquiry into the Texas incident. The days when an out-of- control independent counsel can leap from lengthy investigation to lengthy investigation have thankfully passed. But some other institution must ensure that, when a political situation cries out for investigation, elected officials are pressured to comply. If Americans have to wait for this administration to police its own apparent abuses of power, we will be waiting a very long time.

This article originally ran in the July 7 & 14, 2003 issue of the magazine.