Judge Phillips’ DADT Order Is Not The Victory Being Claimed

/in , , , , , /by

As David Dayen is reporting at FDL News, Judge Virginia Phillips of the Central District of California United States Federal Court has issued her injunctive order in the Log Cabin Republicans’ (LCR) Don’t Ask, Don’t Tell (DADT) case, formally known as Log Cabin Republicans v. United States of America and Robert M. Gates:

(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.

Judge Phillips’ order is being hailed far and wide as the greatest thing since sliced bread – at least on LGBT rights as they relate to DADT. I am quite decidedly not so sure about that.

I simply do not see how this judge, Virginia Phillips, has either the authority or jurisdiction to enter the sweeping injunctive mandates she has done in sections 2 and 3. The scope of those sections appear well beyond her actual authority and, quite frankly, have the patina of such an overreach that they should be appealed based upon protection of Executive Branch power and authority concerns. It is hard to see how the federal government in DC can allow a single remote District Court judge to have that type of reach over the conduct of the entire United States military across the globe.

There is little question but that the CACD had the jurisdiction to hear the case itself and to grant relief to the specific individuals within the established umbrella of the designated plaintiff “Log Cabin Republicans” within the territorial jurisdiction of the CACD. Further, there is no question Phillips has the authority to rule the DADT policy unconstitutional on a facial challenge to its constitutionality, which the government strongly argued this case was Read more →

Todd Purdum & Vanity Fair Discover McCain the Gluehorse

/in , , /by

Todd Purdum has a pretty extensive and in depth article on John Sidney McCain III just up at Vanity Fair. Here are the take away quotes and ethos of the article:

The prevailing question about John McCain this year is: What happened? What happened to that other John McCain, the refreshingly unpredictable figure who stood apart from his colleagues and seemed to promise something better than politics as usual? The question may miss the point. It’s quite possible that nothing at all has changed about John McCain, a ruthless and self-centered survivor who endured five and a half years in captivity in North Vietnam, and who once told Torie Clarke that his favorite animal was the rat, because it is cunning and eats well. It’s possible to see McCain’s entire career as the story of a man who has lived in the moment, who has never stood for any overriding philosophy in any consistent way, and who has been willing to do all that it takes to get whatever it is he wants. He himself said, in the thick of his battle with Hayworth, “I’ve always done whatever’s necessary to win.” Maybe the rest of us just misunderstood.

Yes, no kidding, you certainly did misunderstand. Or were willfully blind because the bloated national media depiction of McCain has always been as fraudulent as he has always been.

There is a difference between facing a changed and shrunken external reality (which McCain surely now does) and changing one’s essential nature (which McCain almost certainly has not). He has always had a reckless streak, and he has repeatedly skated by after conduct that would have doomed others less resourceful, resilient, or privileged. As a navy pilot, he crashed three planes before being shot down by a surface-to-air missile over Hanoi. He spent harrowing years in captivity in North Vietnam, and parlayed that fame into a high-profile job as the navy’s liaison to the Senate, and then parlayed that—with the help of his second wife’s family fortune—into a political career in his adopted state of Arizona, first winning a seat in the House of Representatives in 1982, and then taking Barry Goldwater’s Senate seat upon his retirement, in 1986.

Yes, indeed. Put more simply, McCain is a dilettante who has always relied on his blue blood and family history, and then his POW status and wife and family’s largesse, to get everywhere he has gone; he has never been a man of accomplishment of his own accord. Nice of you to finally Read more →

Witt Reinstated To The Air Force; Wittless In The White House

/in , , , , , /by

The late, but great, news this fine Friday afternoon is the decision of Western District of Washington (WDWA) Judge Ronald Leighton in the case of Air Force Major Margaret Witt. Witt has been an Air Force reserve flight and operating room nurse since 1987 and was suspended from duty in 2004, just short of retirement, upon her base commanders being informed by an off base nosy neighbor that she was a lesbian.

From NPR:

A federal judge ruled Friday that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible in the latest legal setback to the military’s “don’t ask, don’t tell” policy.

The decision by U.S. District Judge Ronald Leighton came in a closely watched case as a tense debate has been playing out over the policy. Senate Republicans blocked an effort to lift the ban this week, but two federal judges have ruled against the policy in recent weeks.

Maj. Margaret Witt was discharged under the “don’t ask, don’t tell” policy and sued to get her job back. A judge in 2006 rejected Witt’s claims that the Air Force violated her rights when it fired her. An appeals court panel overruled him two years later, leaving it to Leighton to determine whether her firing met that standard.

This is indeed a wonderful decision, and one based upon the elevated level of scrutiny that is now clearly the standard in Federal court consideration of the rights based on sexual preference. The full text of the court’s decision is here. The critical language from the decision setting and clearing the table is as follows:

Plaintiff commenced this action by filing a Complaint on April 12, 2006. On July 26, 2006, this Court granted the government’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), concluding that the regulation was subject to rational basis scrutiny, and that the evidentiary hearings held, and factual findings adopted, by Congress provided a sufficient foundation to support the regulation. Plaintiff timely appealed.

The Ninth Circuit agreed with plaintiff. It held that Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003) effectively overruled previous cases wherein the Ninth Circuit had applied rational basis to DADT and predecessor policies. It held that something more than traditional rational basis review was required. Witt v. Department of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008). The Circuit

Court vacated the judgment and remanded to the District Court the plaintiff’s substantive and procedural due process claims. It affirmed this Court’s dismissal of the plaintiff’s equal protection claim. On remand, this Court was directed to determine whether the specific application of DADT to Major Witt significantly furthers the government’s interest, and whether less intrusive means would substantially achieve the government’s interest. Witt, 527 F.3d at 821.

Now comes the interesting part of the opinion (and case as argued by the government) and it ties in directly with the Log Cabin Republicans v. USA DOD decision recently rendered in the Central District of California (I will return to that in a bit). Specifically, the 9th Circuit based at least partially upon briefing in the alternative by the government (i.e arguing multiple positions), granted the government’s argument that, at a minimum, they were at least entitled to argue that homosexuals were bad for Read more →

The Nomination Gap In The Justice System

/in , , , , /by

Hot on the heels of a pretty spirited discussion of the Obama Administration treatment of progressive nominees, both in the blog post here at Emptywheel and yesterday on Twitter, comes the reminder by Main Justice that there are no appointed, nor confirmed, US Attorneys in all of Texas:

Career prosecutors have run the four U.S. Attorney’s offices in Texas for more than a year. Obama has made one U.S. Attorney nomination in Texas thus far: state Judge John B. Stevens Jr., who withdrew from consideration for Eastern District of Texas U.S. Attorney.

The Senate has confirmed 66 of Obama’s U.S. Attorney nominees. There are 93 U.S. Attorney posts.

Now the framing of the report is a complaint by John Cornyn, which I have little sympathy for, and who has undoubtedly contributed somewhat to the impasse; but that said, the facts are pretty astounding.

Over a year and a half into the Obama Presidency, and still over 30% of the US Attorney positions remain unfilled or, even worse, still under the control of Bush/Cheney appointees. The percentage is only that low due to a recent surge in investitures of US Attorneys; for most of the current Administration’s term, the situation was even far worse than it is as of today.

Which led me to wonder exactly what the corresponding status was for federal judicial nominations. It is fairly bleak. There are 103 Federal judicial vacancies and, shockingly, on 48 of them even have so much as a nominee pending. 12% of the 876 total Federal judgeships are sitting vacant. In my own little nook of the world, the 9th Circuit, there are 13 total judicial seats vacant, and only three of them have even putative nominees.

The critical importance of filling judicial vacancies is explained very nicely in a current post by Gaius Publius at AmericaBlog that expands on my Progressive Nominations/Goodwin Liu post yesterday:

This matters for several reasons. One is that the current judiciary is overwhelmingly Republican-appointed and conservative (including Movement-Conservative):

Over the last three decades, Republicans have put the appointment of conservative judges at the top of their agenda. And controlling the White House 20 of the last 30 years has allowed them to carry out their plan. By the time George W. Bush left office, 60.2 percent of the judges, including two-thirds of the Supreme Court, had been appointed by Republican presidents. The younger Bush appointed nearly 40 percent of all federal judges.

Yet Obama has been cautious to the point of weird about reversing this trend. While news stories on this subject headline his lack of judicial confirmations, stories like this one also contain tales of his caution; Bloomberg:

A lot of groups are still waiting for this president to nominate someone who will really reshape the bench,” said Barbara Arnwine, executive director of the Lawyers’ Committee on Civil Rights in Washington. The group supports expanding legal protection for blacks and other minorities.

Gaius Publius is exactly right. In fact, reshaping the Federal judiciary away from the hard conservative Federalist society bent that has been installed and Read more →

Obama’s Relentless Abandonment of Progressive Nominees

/in , , , , , /by

Barack Obama was never a hard liberal nor progressive, whatever the supposed difference between the two really is. Those blinded by hope and change who thought otherwise were imprinting their own desires and beliefs on what was a relatively blank slate, which was probably easy enough to do in the despair resultant from the eight years of George Bush. By the same token, however, Mr. Obama cultivated and encouraged such beliefs; this he worked hard at, and it was critical to him being elected president.

Now if you listened to, and read Obama, and paid attention, you knew he was a centrist who worked by increment, compromise and seeking consensus as opposed to a liberal beacon that would take the country in a new and markedly different direction. Again, that said, the liberals and progressives who served as the ground force, heart and soul of Obama’s candidacy and election had every right to believe he would would at least include them at his table and utilize their talents in his Administration and appointments. There was an implicit deal made in this regard, and Obama purchased on it to his wild success. Now he has defaulted.

I first wrote significantly on the betrayal of the Obama White House toward liberal nominees in relation to the nomination of Dawn Johnsen to the critical post of head of the Department of Justice’s Office of Legal Counsel. The scorn for, and abandonment of, the Johnsen nomination still stands out because of the fact it is clearly established that there were 60 votes cloture on a Senate floor vote for Johnsen’s nomination. It wasn’t that Johnsen could not be confirmed, she absolutely could have been and would have been; it was that Obama did not want her and would not call for a vote.

Johnsen was not only the best person for a critical job, she was a symbol to a critical part of Obama’s and the Democratic constituency. It is far more than Dawn Johnsen however it is a pattern of abuse and scorn the Obama White House relentlessly exhibits to a major portion of the base. Currently the focus of progressives is on the potential nomination of Elizabeth Warren as head of the newly enacted Consumer Financial Protection Bureau. Despite some public platitudes, it is quite clear the Obama Administration does not want a competent crusader for citizens like Warren and, apparently, is working through the cut out of Chris Dodd to see Warren doesn’t get the nod.

Maybe the pressure will get to the Obama White House and Warren will get the post she deserves and would be perfect for; but don’t count on it because Obama, Geithner, Summers, Rahm and the boys on the Obama bus just do not want her. And they didn’t want Christine Romer either, so they let the misogynistic, consistently wrong about everything he touches, Larry Summers push her out. It is becoming a broken record with this White House.

Most distressing to me, because I practice law in the 9th Circuit, is the complete abandonment of two critical liberal judicial nominees, Goodwin Liu and Edward Chen; you may not be aware of because Read more →

Limp Daily Caller Attacks Journolist (Again) and Spencer Ackerman

/in , , , /by

About a month ago, the semi-irrelevant “FishbowlDC” and Tucker Carlson’s self indulgent sandbox “Daily Caller” impressed themselves by scalping Dave Weigel from his position at the Washington Post. Fresh off the closest thing to a victory these folks may ever achieve, they have attempted to replicate their recently past glory by pulling the same cheap stunt with more purloined emails from the now defunct “Journolist”, with the biggest dagger in the back aimed at Spencer Ackerman, noted national security reporter now with Wired’s Danger Room Blog and his own site Attackerman right here at Firedoglake.

It was the moment of greatest peril for then-Sen. Barack Obama’s political career. In the heat of the presidential campaign, videos surfaced of Obama’s pastor, the Rev. Jeremiah Wright, angrily denouncing whites, the U.S. government and America itself. Obama had once bragged of his closeness to Wright. Now the black nationalist preacher’s rhetoric was threatening to torpedo Obama’s campaign.

……

Watching this all at home were members of Journolist, a listserv comprised of several hundred liberal journalists, as well as like-minded professors and activists. The tough questioning from the ABC anchors left many of them outraged. “George [Stephanopoulos],” fumed Richard Kim of the Nation, is “being a disgusting little rat snake.”

…..

In one instance, Spencer Ackerman of the Washington Independent urged his colleagues to deflect attention from Obama’s relationship with Wright by changing the subject. Pick one of Obama’s conservative critics, Ackerman wrote, “Fred Barnes, Karl Rove, who cares — and call them racists.”

Michael Tomasky, a writer for the Guardian, also tried to rally his fellow members of Journolist: “Listen folks–in my opinion, we all have to do what we can to kill ABC and this idiocy in whatever venues we have. This isn’t about defending Obama. This is about how the [mainstream media] kills any chance of discourse that actually serves the people.”

That’s it?? So this is the Daily Caller’s claim to fame? Raison d’etre? This is the best and brightest they have to offer? Apparently so, and they are proud of it since they are going to the same putrid well of long dead private emails again so eagerly. What a bunch of cowardly limp dicks.

Spencer Ackerman and his friends on Journolist saw a wrong being committed in a craven political dirty play and discussed a way to right the wrong. If Daily Caller thinks that is controversial and worthy of a featured expose, they must be awfully hard up over there.

The subject attack by the right on Jeremiah Wright during the 2008 election, just as Ackerman and his fellow journalists discussed, was indeed a malicious and dishonest Read more →

Another Obama Recess Appointment For Someone Not Named Johnsen

/in , , , , , /by

President Obama has announced yet another recess appointment; the courtesy and propriety that he would not give to Dawn Johnsen:

President Barack Obama, frustrated by Republican obstruction of key administration staffing appointments, will use his power to appoint his pick to run Medicare and Medicaid while the U.S. Congress is in recess, the White House said on Tuesday.

Obama will make the appointment on Wednesday of Dr. Donald Berwick, a healthcare expert he nominated in April to run the vast federal medical programs for poor and elderly Americans, according to White House Communications Director Dan Pfeiffer.

Obama has found the inner spine to recess appoint NLRB member Craig Becker along with 14 other people to a variety of positions from the DOJ to Treasury Department, has stated he will do so for militarized spook James Clapper (who neither side seems to like), and now Donald Berwick.

Obama seems to consider Berwick critical:

Berwick’s appointment as administrator of the Centers for Medicare and Medicaid Services (CMS) place him at the heart of Obama’s historic healthcare reform, and the role was too vital to leave unfilled, Pfeiffer said.

“CMS has been without a permanent administrator since 2006, and even many Republicans have called on the Administration to move to quickly to name a permanent head,” he said.

Dan Pfeiffer and the White House are full of dung. If “many Republicans” were clamoring for his nominee, even a couple in the Senate, he would not need to recess appoint. What is truly stunning though is that Obama considers this position critical, but not the head of the Office of Legal Counsel, the body that is supposed to be the legal conscience of an administration. Equally galling is the fact the White House trots out the excuse that “CMS has been without a permanent administrator since 2006”. Four years is too long for CMS, but six years is no problem for the critical Office of Legal Counsel? Really?

As I have repeatedly explained and demonstrated with facts and evidence, Barack Obama had 60 votes for confirmation of Dawn Johnsen to head OLC for the entire second half of last year and sat on her nomination, refusing to even call a vote. The fact that Obama flat out refused to even consider a recess nomination for Dawn Johnsen to an office dying for real leadership, and that he will use the recess appointment power anywhere and everywhere else, ought to be proof to any doubters that the sole reason Dawn Johnsen is not leading the OLC is because Barack Obama did not want her there.

For a President intent on granting retroactive FISA immunity to criminally complicit telecoms, asserting endless claims of “state secrecy” to cover up crimes of the Bush/Cheney Administration, suppressing torture photos, tapes and evidence, ordering the indefinite detentions without trial or due process and ordering the extra-judicial assassination of remote targets (including American citizens), well I guess a person of Dawn Johnsen’s morals and ethics indeed might not be convenient. Even given that, why did the White House engage in such crass duplicity with the country and hang Dawn Johnsen out to dry for so long? Why won’t anybody ask that question of them and demand a legitimate answer?

Obama Administration Follows Bush/Cheney On Politicization Of DOJ

/in , , , , , , , , , , , /by

Remember the plaintive cries of Democrats and progressives about the wrongful politicization of the Department of Justice by the Bush/Cheney Administration? Remember the stunning chart Sheldon Whitehouse whipped out at a Senate judiciary hearing on Alberto Gonzales’ tenure as AG showing how politicized the hallowed independent prosecutorial discretion of the DOJ had become under Bush, Cheney and Gonzales? The one that Pat Leahy called “the most astounding thing I have seen in 32 years”?

That was in late April of 2007, little more than three years ago. Despite the most fervent hope of a Democratic and progressive base that they were voting to change the wholesale invasion of the prosecutorial discretion by the White House political shop (along with so, so many other things), it appears little has changed. In fact, the invasion of province appears to be being writ larger and more profound. From Jerry Markon in the Washington Post:

Now, the decision on where to hold the high-profile trials of Mohammed and four others accused of being Sept. 11 conspirators has been put on hold and probably will not be made until after November’s midterm elections, according to law enforcement, administration and congressional sources. In an unusual twist, the matter has been taken out of the hands of the Justice Department officials who usually make prosecutorial decisions and rests entirely with the White House, the sources said.

“It’s a White House call,” said one law enforcement official, who spoke on condition of anonymity to discuss internal deliberations. “We’re all in the dark.”

The delays are tied to the administration’s broader difficulties in closing the U.S. military prison at Guantanamo Bay, Cuba — where Mohammed and the other detainees are held — and are unlikely to affect the outcome of a trial that officials vow will be held at some point. But people on all sides of the debate over whether Mohammed should be tried in federal court or before a military commission expressed frustration that nearly nine years after Sept. 11, justice for the attacks seems so elusive.

“It’s important that these trials actually take place, and soon,” said Jameel Jaffer, director of the national security project at the American Civil Liberties Union, which has long pushed for the trials to be held in federal court. “It’s not just that people held for long periods of time in government custody deserve to contest the evidence against them. It’s also that these trials are important to the country.”

For all the hope and change, nothing has changed. Toying with the root charging and prosecutorial functions and discretion of the Department of Justice as a way to respond to the prevailing political winds is a craven path for the Obama Administration to take. And hanging Attorney General Eric Holder and his Department out to dry in those winds is despicable political and executive cowardice.

So, on this fine Fourth of July, as we celebrate America’s independence and reflect on our founding principles, it would be wise to remember, and refresh the recollection of the Obama Administration, Read more →

More Obama Administration Civil Liberties Neglect

/42 Comments/in , , , , , , /by

In New York, the cops are getting frisky with minorities (suspect classes under the equal protection clause):

From 2004 through 2009, in a policy that has gotten completely out of control, New York City police officers stopped people on the street and checked them out nearly three million times, frisking and otherwise humiliating many of them.

Upward of 90 percent of the people stopped are completely innocent of any wrongdoing. And yet the New York Police Department is compounding this intolerable indignity by compiling an enormous and permanent computerized database of these encounters between innocent New Yorkers and the police.

Not only are most of the people innocent, but a vast majority are either black or Hispanic. There is no defense for this policy. It’s a gruesome, racist practice that should offend all New Yorkers, and it should cease.

Police Department statistics show that 2,798,461 stops were made in that six-year period. In 2,467,150 of those instances, the people stopped had done nothing wrong. That’s 88.2 percent of all stops over six years. Black people were stopped during that period a staggering 1,444,559 times. Hispanics accounted for 843,817 of the stops and whites 287,218.
….
“They have been collecting the names and all sorts of other information about everybody who is stopped and frisked on the streets,” said Donna Lieberman, the executive director of the New York Civil Liberties Union, which is fighting the department’s stop-and-frisk policy and its compiling of data on people who are innocent. “This is a massive database of innocent, overwhelmingly black and Latino people,” she said.

Bob Herbert is right, it is “a gruesome, racist practice”. Thank god we have a Constitutional law scholar President, expert in civil rights and dedicated to protecting the liberties afforded by them. This is a perfect situation for the President’s Privacy and Civil Liberties Oversight Board!

Oh, wait……..

When President Bush two years ago failed to name members to a federal board to monitor the protection of civil liberties, Democrats and activist groups were duly outraged, seeing it as one more example of his administration’s indifference to the subject.

But more than a year into a new presidency, the Privacy and Civil Liberties Oversight Board—created by Congress in 2007—remains as much a cipher under Barack Obama as it was under George W. Bush. The White House has yet to Read more →

Obama's Royal Scam and The Iron Fist Of Rahm

/in , , , /by

Audacity To Hope

Change We Can Believe In

Rule of Law

Accountability

Freedom From Lobbyists and Special Interests

Privacy

Harm From Illegal Surveillance

Constitutional Scholar

Transparency

Predatory Business Practices

Closing Guantanamo

Withdrawing From Iraq and Afghanistan

These are but some of the major buzzwords, issues and concepts Barack Obama based his candidacy and campaign on to convince the American electorate to sweep him in to office. Mr. Obama, however, has gone significantly in the opposite direction on each and every one since taking office. As Frank Rich noted, there is a growing “suspicion that Obama’s brilliant presidential campaign was as hollow as Tiger’s public image — a marketing scam…”.

Is there support for this allegation other than anecdotal evidence? Yes, and Micah Sifry has an excellent piece out detailing the basis:

After all, the image of Barack Obama as the candidate of “change”, community organizer, and “hope-monger” (his word), was sold intensively during the campaign. Even after the fact, we were told that his victory represented the empowerment of a bottom-up movement, powered by millions of small donors, grassroots volunteers, local field organizers and the internet.

….

The truth is that Obama was never nearly as free of dependence on big money donors as the reporting suggested, nor was his movement as bottom-up or people-centric as his marketing implied. And this is the big story of 2009, if you ask me, the meta-story of what did, and didn’t happen, in the first year of Obama’s administration. The people who voted for him weren’t organized in any kind of new or powerful way, and the special interests–banks, energy companies, health interests, car-makers, the military-industrial complex–sat first at the table and wrote the menu. Myth met reality, and came up wanting.

….

Should we really surprised that someone with so much early support from Wall Street and wealthy elites overall might not be inclined to throw the money-changers out of the temple?

….

When it came to planning for being in government, it turns out that Plouffe, along with David Axelrod, was a chief advocate for bringing in then Rep. Rahm Emanuel as Obama’s chief of staff. He writes, using a baseball analogy: “Rahm was a five-tool political player: a strategist with deep policy expertise, considerable experience in both the legislative and executive branches, and a demeanor best described as relentless.” (p. 372) Note that nowhere in that vital skill-set is any sense of how to work with the largest volunteer base any presidential campaign has developed in history. Rahm Emanuel came up in politics the old-fashioned way; organizing and empowering ordinary people are the least of his skills.

It is an extremely interesting piece by Sifry, and I recommend a read of the entirety. For those that have not read David Plouffe’s book on the campaign, The Audacity To Win, or one of the other long form reports of the Obama 2008 campaign, Sifry lays open the hollowness of Obama’s “grass roots”. Use em and lose em appears to have been the Obama modus operandi. The American people were desperate for something to latch onto, and Obama and Plouffe gave them a slickly tailored Read more →