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Thursday May 25, 2006 |
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The case of the missing ambassador |
by Richard Ackland Sydney Morning Herald, Sydney, Australia By Richard Ackland
May 26, 2006
GEORGE Bush nominated Robert McCallum to be his ambassador to Australia, the most obliging of the willing nations. That was more than two months ago and still there is no sign on the horizon of Bush's pal from the Skull and Bones society. There were 15 Bonesmen in the 1968 group at Yale and, according to Alexandra Robbins's investigation of the society in The Atlantic Monthly (May 2000), Bush was supposed to give himself a name to be used by other members. He couldn't think of one, so they called him "Temporary".
Bush got into Yale despite his poor academic showing at Andover. Robbins explains that this may have had something to do with the fact that three of the seven members of the admissions committee were members of the Skull and Bones. The organisation operates as an unofficial lifetime system of patronage and cronyism.
Ambassador-designate McCallum would not have had to fluke his way into university. He is by all accounts a bright button who did law at Yale, was awarded a Rhodes scholarship and went on to a masters degree at Oxford.
Bush plucked him from an Atlanta law firm and brought him to the Justice Department. At the time he was nominated as ambassador to Australia, McCallum was the acting deputy attorney-general, having risen rapidly from the job of associate attorney-general, where he was in charge of the department's civil division.
He was the senior official who instructed the department's lawyers to radically alter the Government's submission in the racketeering case in the US District Court against cigarette makers. The Government pulled back from the initial proposal to seek a penalty of $US130 billion ($172 billion) payable over 25 years to fund a national quit-smoking campaign, to a penalty of $US10 billion over five years.
McCallum has denied any political influence was involved in this decision to, as one Justice official said, "throw the case down the toilet". He argued that the reduced penalty was in line with appeals court rulings that only the future misconduct of tobacco companies could be addressed, not past misconduct.
Democrat members of the House and Senate have called on the department's office of professional responsibility to investigate the meddling in the case by a political appointee of the President. There doesn't seem any great rush by the office to announce an outcome of its inquiries.
And there it has rested. The US embassy in Canberra doesn't know when the foreign relations committee of the Senate is going to begin its hearings into the nomination.
In the meantime, another interesting story has turned up, also heavily covered with McCallum's fingerprints. This is a long-running class action case, Cobell v Norton. Elouise Cobell is the lead plaintiff, representing American Indian organisations against Gale Norton as the (now former) US secretary of the interior.
The case is being conducted in the US District Court for the District of Columbia, the same place as the tobacco case, before Judge Royce Lamberth. Basically it alleges that the US Government mismanaged trust accounts that had been mandated for individual Indians as far back as 1887. The plaintiffs are seeking a determination of what is owed from the revenues from mining, oil, gas, grazing and timber industries on lands managed by the US Government as trustee for Indian beneficiaries. Several billion dollars are at stake for an estimated 500,000 Indians and, no doubt, a swarm of starving lawyers.
McCallum has had significant influence in overseeing the litigation for the Government since 2001 and his name is on most of the briefs filed by the defendants.
A row broke out when the Government and its counsel sent documents to Indian children purporting to be statements of accounts for trust monies. These statements were drawn up before a planned reform of the trust administration had been completed. If the children disagreed with the accounting for the trust money they were expected to start administrative proceedings by way of challenge. If they didn't start those proceedings the Justice Department said they waived their rights to the money.
Subsequently Lamberth found that McCallum and five other Justice Department lawyers on the case had violated the court's ethical rules against lawyers communicating directly with parties on the other side. He referred them to the disciplinary panel of the US District Court, where the matter stays unresolved.
The Government has fought back and on three occasions has sought to remove Lamberth from the case on various grounds, but basically because he has been critical of its conduct. He's beaten off two attempts in the Federal Court and the third is still pending.
At the moment McCallum's ethics are subject to reference in two places, the Justice Department and the District Court. He's perfect for Australia.
justinian@lawpress.com.au
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