Terror Watch: A fired U.S. attorney strikes back

The Justice Department called David Iglesias, the U.S. attorney in New Mexico, an 'absentee landlord'—a key reason listed for his firing last December. Just one problem: Iglesias, a captain in the Navy Reserve, was off teaching classes as part of the war on terror. Now Iglesias is striking back, arguing he was improperly dismissed.

WEB EXCLUSIVE
By Michael Isikoff and Mark Hosenball
Newsweek
Updated: 2:26 p.m. CT April 4, 2007

April 4, 2007 - When he wasn't doing his day job as U.S. attorney in New Mexico, David Iglesias was a captain in the Navy Reserve, teaching foreign military officers about international terrorism.
But Iglesias's military service in support of what the Pentagon likes to call the Global War on Terror (GWOT) apparently didn't go down well with his superiors at the Justice Department. Recently released documents show that one reason aides to Attorney General Alberto Gonzales cited in justifying the decision to fire Iglesias as U.S attorney late last year was that he was an "absentee landlord" who was spending too much time away from the office.

That explanation may create new legal problems for Gonzales and Justice. Iglesias confirmed to NEWSWEEK that he was recently questioned by lawyers for the Office of Special Counsel, an independent federal watchdog agency, to determine if his dismissal was a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), a federal law that prohibits job discrimination against members of the U.S. military.

At the encouragement of Office of Special Counsel director Scott Bloch and his deputies, Iglesias said he is this week filing a formal legal complaint with OSC against the Justice Department over his dismissal on this and other grounds. (While the Justice Department normally prosecutes USERRA violations, the OSC, an independent federal agency that protects the rights of whistle-blowers, takes the case when the potential violator is the federal government itself.) "I want to make sure they didn't fire me because of my military duty," Iglesias said. "When I was away from the office, it wasn't like I was going on vacation in Europe." (A Justice Department spokesman did not respond for a request for comment on whether Iglesias's firing might have been a violation of the law.)
The OSC's inquiry into the Iglesias case—first reported this week in NEWSWEEK— injects yet another irony to the controversy over the U.S. attorney firings.

The Bush administration has vigorously promoted enforcement of USERRA—in large part because of the dramatic increase in National Guard and military reserve members who have been called into active duty due to the wars in Iraq and Afghanistan. The law's purpose—highlighted by Gonzales himself in a Justice Department press release last summer—is to make sure reservists and National Guard members don't suffer in the workplace when they are called to serve their country.

Gonzales announced last August the creation of a special Web site to inform reservists and National Guard members of their rights under the law. At the time, he also touted the first-ever class-action lawsuit under USERRA that had been brought by the Justice Department's Civil Rights Division. The suit against American Airlines alleged the company had reduced employment benefits for two pilots—one of them, like Iglesias, a captain in the Navy Reserve—because the pilots had taken too much leave to perform their military service. "This nation depends on our reservists to faithfully carry out their duty," said Wan J. Kim, assistant attorney general in the charge of the Justice Department's Civil Rights Division, when the lawsuit suit was filed. "No reservists—indeed, no members of our armed forces—should ever be punished or discriminated against for answering the call of duty."

"This is a really interesting issue," said Sam Wright, a veteran U.S. Navy lawyer and leading expert on USERRA, when asked about whether the law might apply in Iglesias's case. (Wright recently retired from government service).

Wright noted that USERRA prohibits employers—including government agencies—from taking any "adverse employment action" against reservists or National Guard members because of their military service or even using such service as a "motivating factor" in such actions.

While it is far from clear that the law can be stretched so far as to apply to U.S. attorneys, the circumstances of Iglesias' dismissal closely parallel the sorts of USERRA cases that are increasingly being brought by Bush administration lawyers, according to Wright and others familiar with the act.

Iglesias's background as a Navy JAG (Judge Advocate General) Corps lawyer and his membership in the Navy Reserve was well known within the Justice Department. Indeed, it was a major part of his biography when, at the recommendation of his original patron, Sen. Pete Domenici, he was first nominated by President Bush to serve as U.S. attorney in 2001. (Assigned to represent a young Marine charged in a military hazing incident in Guantánamo Bay in 1986, Iglesias mounted a vigorous defense of his client, in part by raising questions about the conduct of the commanding officer. His performance was the inspiration for the Tom Cruise character in the movie, "A Few Good Men.")

When he took off to perform his required 45 days of reserve duty each year, Iglesias said his secretary regularly notified the Executive Office of U.S. Attorneys; officials there fully understood the reason he was going to be away, he said.

Those duties expanded in recent years, with the advent of the war on terrorism. In addition to prosecuting routine JAG Corps cases at naval bases in San Diego and Washington state, Iglesias told NEWSWEEK he was also enlisted to teach courses for allied military and intelligence officers at the Defense Institute of International Legal Studies at the U.S. Naval Station in Newport, R.I.—and at the Joint Special Operations University in Florida.

"I've taught foreign special forces on legal issues related to law enforcement and military operations," Iglesias said, in an e-mail exchange with NEWSWEEK. The courses focus in part on the use of military versus law-enforcement rules of engagement. "I try to get them to think of what rules of force apply to terrorists," he said.
But it wasn't until months after he was abruptly terminated as U.S. attorney last December that Iglesias was surprised to discover that his time away from the office doing his military service may have been a factor—or at least was being cited as a factor—in his dismissal.

In February, when the controversy over the abrupt firings of eight U.S. attorneys erupted, top Justice Department officials prepared internal "talking points" for Deputy Attorney General Paul McNulty, who was preparing to answer questions about the dismissals before the Senate Judiciary Committee. The talking points, part of thousands of pages of internal Justice Department documents released last month, show that officials listed "performance-related" reasons that McNulty could cite to explain why Iglesisas was fired. The second reason given was that Iglesias was "perceived to be an "absentee landlord" who relies on the first assistant U.S. attorney to run the office." (In one version of the talking points, the words "absentee landlord" are underlined.)

Although McNulty never addressed the specific reasons for Iglesias's firing in his Feb. 6 public testimony, a Justice Department official (who asked not to be identified talking about sensitive matters) confirmed that the deputy attorney general later mentioned the "absentee landlord" factor in a private briefing for congressional staffers.

To be sure, Justice officials cited other reasons, as well. They described Iglesias in the talking points as "under performing generally" and as a "lackluster manager."
They also contended that he was not doing enough to enforce border security. But one of McNulty's principal deputies, William Moschella, appeared to emphasize specifically the point about Iglesias being away from the office too much during his later testimony before the House Judiciary Committee. When asked by Democratic Rep. Linda Sanchez about the department's reasons for firing Iglesias, Moscella replied that "Iglesias had delegated to his first assistant the overall running of the office. And, quite frankly, U.S. attorneys are hired to run the office."

Of the U.S. attorneys fired, Iglesias's case has arguably created the biggest problem for the Justice Department. As Gonzales's former chief of staff, D. Kyle Sampson, testified last week, Iglesias was not on the original list of U.S. attorneys to be fired last fall—and was only added in November after White House aide Karl Rove complained to Gonzales that Iglesias was not doing enough to prosecute voter-fraud cases—a top GOP campaign priority. Iglesias has testified that he got two phone calls last October from Rep. Heather Wilson and Senator Domenici, both New Mexico Republicans, pressing him to bring indictments in a local corruption case that implicated Democrats—contacts that Iglesias has alleged were improper. Those contacts prompted Iglesias to brand his firing "a political hit."
Iglesias suspects that the Justice complaints about his absences were cooked up as an ex post facto rationale to justify a dismissal that was really made for political reasons. That's why, in filing his complaint with OSC, he is also alleging that his firing may have been a violation of the Hatch Act, which prohibits federal officials from using their offices to interfere with an election.

But it is his claim under USERRA that may raise the most interesting legal issues—especially in light of the Bush administration's strong stand on enforcement of the law. The OSC's Bloch, a Bush appointee whose lawyers interviewed Iglesias by phone last week, has made "aggressive" USERRA enforcement a top priority. The agency has handled more than 300 complaints since 2004 and routinely seeks internal documents from other agencies—under threats of subpoena—to complete its investigations. In about a half dozen cases, the OSC has actually brought suit against federal agencies for USERRA violations before the Merit Systems Protection Board. (OSC lawyers say they have been able to resolve many other cases through negotiations with the agencies.) The OSC has also taken an expansive view of the reach of USERRA, contending that high-level political appointees are protected by the act, not just midlevel civil servants. "Our view is that USERRA is required to be construed liberally," said one OSC lawyer, who asked not to be publicly identified talking about internal matters. "It's very broad. There is no exclusion for political appointees."

Wright, who co-wrote the USERRA law when he worked at the Labor Department in 1994, agreed that the reach of USERRA is unusually broad. But he said it's still an "open question" about whether the law could be used to protect the jobs of U.S. attorneys—Senate-confirmed appointees who serve at the pleasure of the president.
If the question is whether U.S. attorneys, like all other citizens, have rights under USERRA, "the answer is clearly yes," said Wright. "The harder question is whether there is any remedy."

John