The Statute of Limitations on Bush’s March 11, 2004 Illegal Wiretapping Expires Today
Five years ago today, Andy Card and Alberto Gonzales rushed to John Ashcroft’s ICU room to try to trick him into signing the re-authorization for George Bush’s illegal wiretap program over Jim Comey’s objections. Jim Comey arrived at the hospital in time to prevent Card and Gonzales from succeeding.
Five years ago tomorrow, George Bush re-authorized his illegal wiretap program with only the signature of Alberto Gonzales–then White House Counsel–to give it legal sanction.
Five years ago today and tomorrow, attorney Wendell Belew spoke to al-Haramain Director Soliman al-Buthi by telephone. Belew has reason to believe–and once had clear evidence that may have proved–those calls were wiretapped under Bush’s illegal wiretap program.
As bmaz explained last year, in March 2004, FISA had a standard 5-year statute of limitation.
The first question any criminal defense attorney is going to ask is "Gee, is this crime within the statute of limitations"? FISA is subject to the Federal general statute of limitation contained in 18 USC 3282, which is five years. And, remember, the statute starts to run when the crime is committed and/or when the government becomes aware of the conduct; in this case the Department of Justice knew about the conduct as, or before, it was being committed. When we, as citizens learned about it is not the relevant test.
That means that the statute of limitations on the potentially criminal March 11 wiretaps of Belew expire today. By all appearances, that means the statute will expire without George Bush being punished for illegally wiretapping an American citizen, even though clear evidence of that criminal wiretapping almost certainly exists.
Now, as it happens, a District Court Judge may have or may be about to judge whether or not that wiretapping was illegal. I’m referring, of course, to the al-Haramain suit currently before Vaughn Walker. The last known development in that suit came eleven days ago, when the 9th Circuit ruled that Walker should review the wiretap log to determine whether it shows that al-Haramain is an aggrieved party (meaning they were wiretapped illegally), and when the Obama Administration corrected "inaccurate" information on the wiretap program probably submitted three years ago. Since then, nothing has appeared in the docket for the case.
The absence of any activity in the docket could mean one of two things. First, Vaughn Walker may still be reviewing all the new information he received on February 27–the four new declarations about the program–as well as the rather astonishing OLC opinions revealed last Monday. In other words, by flooding Walker with new information, the Obama Administration may have prevented Walker from ruling quickly on whether the al-Haramain wiretapping was legal until after the statute of limitations expire. He may still be wading through new legal issues that go beyond those raised by the wiretap log itself.
Or, it’s possible that Vaughn Walker has already ruled. As I pointed out over the weekend, the Obama Administration requested that Judge Walker show them in his order before he publishes it to the docket so they can conduct a classification review and decide whether to appeal his decision.
Accordingly, the Government respectfully proposes that the Court utilize the following procedures. First, if the Court proceeds on an ex parte, in camera basis to review the Sealed Document in order to address the issue of standing, then regardless of how the Court would then intend to rule, the Government requests that the Court provide notice to the Government of any order it would place on the public record, so that the Government may conduct a classification review and determine whether to appeal before any information over which the Government claims privilege is disclosed to the public.
Frankly, if Walker said anything more than, "this suit may proceed" in his order, I would imagine he would respect DOJ’s request. So it’s possible he has ruled and DOJ has received his order.
If the latter scenario is the case, it would mean Eric Holder’s DOJ would have received a judge’s ruling that the wiretapping done five years ago was illegal. That is, DOJ may be sitting on a judge’s order finding Bush’s actions five years ago to be illegal under FISA.
Really depressing thought, isn’t it, to think that DOJ may be sitting there gaping at not just the evidence that shows Bush broke the law, but even a judge’s ruling that it did, even as the statute of limitations expires? Tick tock, tick tock, tick tock. Ding!!!!
Now, smart lawyers tell me there is still a way to hold Bush accountable for his actions five years ago–to charge the conspiracy to cover-up the criminal wrong-doing. I’ll let bmaz challenge that stance in the comments–but suffice it to say that, since DOJ has known about these activities all along, it’s going to be a hard case to make.
And, of course, there are later incidences of wiretapping (Belew also named a March 25 call, for example, as one he believed had been wiretapped) that probably fall in the period when the program operated with no sanction from DOJ. But even that would be all-but-impossible to indict between now and March 24.
Congratulations George Bush, Dick Cheney, David Addington, and Alberto Gonzales! With your stonewalling and delay, you appear to have avoided legal consequences for this particular crime committed while in office. You have deliberately violated a law designed to check presidential abuse of power, and Mukasey and Congress and Obama have let you get away with it.
Damn it!
–then there is the law for the rest of us.
More depressing is that they aren’t gaping, they’re grinning and doing little happy dances. It’s not as if there are good people involved in any of this.
Do lawyers actually engage in little happy dances?
Which smart lawyers suggested conspiracy? When that point was raised on your site it was dumped on by usual lawyers here.
I think a conspiracy charge is possible, but you would need a special prosecutor, outside the DOJ authority to do it, because DOJ is tainted by the conspiracy.
SO you need a Ken Starr type appointment, not a PAt Fitz type appointment.
This is NOT a comment ont he relative worth of those two prpsocutors, just on the mechanics of their appointments
Thank you.
I remain perplexed as to why the folks here seem to think that the way to roll back the overreach by the executive branch lies within the executive branch. To my long-unused brain, that seems to be the least likely place to look for permanent relief.
Congressional investigation and judicial review seem preferable.
I agree. Its time for Congress to stop being a doormat, and to resume its role in the balance of powers.
Is it not true that Congress has the power to appoint a special prosecutor all by themselves?
Bob in HI
We are not amused.
DUGG!
Thanks, EW!
From the outside, it appears the Wall St, Washington and almost the entire NE corridor is one large body of organized crime.
For example, I perceive that hiring people for the US Treasury is not possible for three reasons, first Geithner exhibits all the symptoms of a micro-manager (micro-managers are typically incapable of seeing the larger picture, and substitute activity for effectiveness), second Geithner wants a job after leaving the Treasury and cannot afford to alienate his potential future employers, and third there are no people in Wall St who can pass Obama’s strict ethics requirement, because they are all ethically tainted, including Geithner. Geithner because I don’t believe for a second that Geithner, receiving a 1099 for his pay, did not know about self employment taxes, especially after the first 30 seconds with his accountant.
If the Government, Military and Financial Industry are as corrupt as they appear (I don’t for a moment believe they are inept), then the United State experiment is over. Too much corruption to fix, too much personal danger to try. All that will happen is some fiddling around at the margins (as we are seeing currently).
Again from the outside, It’s hard to name one large institution, Government or Commercial, that has even the appearance of honesty and fair dealing.
To me it looks like “screw the consumer” is the modus operandi of all these institutions, in the good name of profit of course, profit sucked up by the greedy at the top.
I’m skeptical of your theory that Geithner knew about self-employment taxes and skipped them intentionally.
1099’s are also sent to the IRS (at least according to the little message at the bottom of the one I received this year). Why would Geithner intentionally skip paying self-employment tax on income he knew was being reported?
One copy of the 1099 is for the person receiving the money, one copy to the IRS, and one kept in the “employers” file. The standard form is a 4 part form.
Its my direct exeperience the IRS is very diligent and quick in sending a nastygram if you mess up on a 1099 or K1.
“From the outside, it appears the Wall St, Washington and almost the entire NE corridor is one large body of organized crime.”
Including Boston and Whitey Bulger?
I’m sure no one meant to omit Boston from any list of villiany.
Or Sacramento, Reno, Phoenix…..
Don’t forget Barstow. And Needles…
I am sorry to say I agree with you, but why limit it to the NE corridor? My limited observations from inside a Western US Federal Agency, as staff, revealed an amazing amount of corruption and illegality using the public’s money. Conflicts of interest abound.
In 2 short years I saw gross violations of federal environmental law. A senior Assistant Manager (since retired) had insured that his plans for retirement were firmly entrenched in the office budget, as projects earmarked for a consultant firm (guess where he ended up? see: revolving door, feather bed). A Nevada Casino/resort had a boat basin dredged, then re-dredged by the public (millions of dollars).
Damn discouraging, really.
Geithner and his group would be the people who actually saw the toxic assets in the brokerages and banks back starting in Sept 2009. Many people are surely afraid of what he knows, which is why he gets targeted for such personal hostility.
He could have been one of the assholes making CDO’s. He wasn’t.
Perfect, he isn’t.
But who among us is?
As for the Statute of Limitations… failure to restore justice is socially destabilizing.
I’m not hopeful, and I don’t believe people will march in the streets if the deadline passes quietly, but it will be one more silent, sullen, resentful, antagonistic factor in American life that will reverberate like a low-level earthquake. Buildings won’t collapse, but it’ll weaken the underlying foundations and later shocks will be more dangerous.
EW, I’m puzzled about your point on conspiracy and the DoJ. DoJ was part of the conspiracy — so how does it make it harder to prosecute because they were sitting on the information all along? That just makes them a co-conspirator doesn’t it?
Also, just wondering… Since Congress can grant retroactive immunity, can they also retroactively extend statutes of limitations? Just in principle, I’m just asking if it is possible…
Even though there is evidence to the stacking of the DOJ with Bushies for the sake of protection? That sounds like criminal conspiracy to me.
It’s a terrible mistake to assume that the only illegal wiretapping was during the time period that only Gonzales signed off on the program. It was clearly illegal until at least January 2007 when the FISC bought into it. The statute of limitations on the program doesn’t run out until January 2012. The only thing significant about the March 2004 period is that the telcos don’t have any legal cover during that time except that the retroactive immunity provision.
There is a difference between alleging criminal conduct and being able to establish it; these are the crimes that stood a reasonable chance of being established as far as criminal culpability and intentional mental state. There are quite arguable defenses that a good attorney could argue on points outside of this time period. Does that meant that those time periods did not contain mass criminality; no, clearly they did. Establishing that beyond a reasonable doubt in the face of savvy lawyers is quite another thing.
Likewise it’s a mistake to assume I’m assuming that.
One of the things you need to prove with FISA is intent to violate the statute. That whole task is a lot easier for the period when Bush acted contrary to DOJ’s advice.
I don’t see what’s so hard about this:
Did the TSP involve electronic surveillance? Yes
Was the electronic surveillance intentional? Yes
Was done ‘under color of law’? Yes
Was it authorized by statute? No
Was there a search warrant or court order? No
I don’t see anything in the statute that gives the President a free pass just because he was able to strongarm the DOJ into giving its blessing. What’s there to lawyer about? Either FISA was constitutional and therefore the Ashcroft/Gonzales DOJ was wrong so the President committed crimes passed on their erroneous advice or it’s not constitutional and we live in a constitutional dictatorship.
For all the other wiretapping, Bush would have a claim that he was operating under statute. He’d cite AUMF and EO 12333 and a bunch of other things and it would be bullshit. But he’d have a memo saying that that wasn’t bullshit. This would make it nearly impossible to prove he was intentionally operating outside of statute when he had a piece of paper that he could point to to say he believed he was operating within statute.
For this 45 day period, we have the situation where people in the functional position that had previously said, “this is legal” had instead said, “we can’t say this is legal.” And had said it the day before BUsh reauthorized the program anyway.
So for this period, unlike all the rest, you can prove intent. For the rest, you can only do so after you’ve dug up the emails between Addington and Yoo saying, “do me a favor and say this is legal.” Given that we don’t have those emails–at least not yet–we don’t have a case for the other periods.
Precisely.
I don’t think that’s right. You don’t have to prove intent to violate the law. You have to prove that the surveillance was intentional. Under FISA, there was a chance that over the air surveillance would unintentionally pick up protected conversations. Furthermore, much to the dismay of the executive branch, executive orders aren’t statutes. The idea that the AUMF authorized the wiretapping is clearly bogus, but if Bush wants to make that argument the place to do it is in court.
Oh boy, I see you have never seen a justification/not guilty defense presented to a jury. You sure as hell would have to prove effective intent, whether those specific words were used or not. You are fooling yourself here.
I’m not talking to a jury. I leave that to the lawyers. I’m arguing that the DOJ has a responsibility to enforce the law as it was written, that this particular date isn’t our last chance, and that there’s time to do a proper investigation.
Before you’re going to get your chance to present to the jury, somebody’s got do that investigative work, put pressure on the little fish, and dig into the documentary evidence that’s available. I want the Department of so-called Justice to provide some real justice to the millions of Americans who were illegally wiretapped by these yahoos. Just because it would have been easier to convict over the March 2004 activities is no reason to let them off the hook.
You’re looking at the wrong place to make your argument. Before you can even get to the language you’ve cited above, you’ve got to prove that the exclusivity clause in FISA overrides all the BS that Bush would present. That’s how–we know–he and DOJ claimed he was not violating FISA.
Once you’ve found a way to win that argument, then you can get into your language.
Legal nuances aside, is it not possible to file something that holds the statute? Or is the statute completely blown after close of business today?
On the underlying crime yes – midnight eastern time is it. There will then be another such occurrence on the 14th and then the 25th if memory serves correctly.
And presumably we’ll watch the tools over at Justice twiddle their thumbs right through those dates, as well. At least they’re consistent.
Given that a bunch of those are leftovers from the maladministration in question, you would seem to be correct.
You just have to prove they knew it was b.s. and I think the evidence for that is pretty much staring at us. You just show how their justifications changed, but their actions didn’t. They’re shovelling transparent b.s. and that will be blindingly obvious in a court room. I just don’t see this as that hard a case to win in court. The hard part is building the political will to bring the case in the first place.
AUMF = Authorization to use Military Force
“Military” isn’t ‘wiretapping’.
Bush has to rely on his fictional ‘inherent Executive authority in war time’.
“The whole world is a battlefield” was, I believe, their justification.
After reading 122 I was tempted to say “Love is a Battlefield”
How is military not wiretapping?
Last I checked, NSA was quite solidly in DOD. Ergo military.
Are you sure? “Intent to violate the statute” is quite a bit different than the usual “intent to do something which violates a statute”.
Why would Bush specifically want to violate a particular statute? To challenge the constitutionality of a law? Not likely. Of course, Bush did challenge all laws when he said that during war he could do anything.
There is an argument that something could be shoehorned through a conspiracy count and all that yadda, but when the overt acts start dropping from viability, that becomes pretty tenuous. You have to be able to establish criminality of an enterprise; to date, al-Haramain is the only place you can do that. The “gap period” resulting from the hospital scene contains the only real instances where criminal conduct seems really plausibly established. Without viable overt acts backing up your conspiracy allegation, no prosecutor is going to want to wrangle sucha case, and juries do not convict. If you want a recent example of which I speak, check out the Michael Carona case in California.
If Holder is “holding” the document, I would not want to be him or Obama. The people are not stupid and the people will uphold them as part of the criminal conspiracy.
We need to make a great deal of noise on this matter. Today.
Thank you EW. How did you know I had my calendar marked as the historic “justice” or “injustice” day? I would prefer the former, not the latter.
We have until 9 PM EST to make noise too.
And my further assessment is: a darn amazing threat awaits to back-up that statute of limitations. So, “slow walking it” is probably saving lives.
FWIW – email sent.
Dear Senator,
Are you aware that FISA is subject to the Federal general statute of limitation contained in 18 USC 3282, which is five years? And do you know that the statute starts to run when the crime is committed and/or when the government becomes aware of the conduct?
In the case of illegal domestic wiretapping the Department of Justice knew about the conduct as, or before, it was being committed (in particular on March 11-12, 2004). This means that time is running out to punish George Bush and learn the extent of his crimes. Tomorrow is a huge day in the history being made.
Can you please ask for a vote on the Senate floor to extend the statute of limitations on FISA for at least one year due to the extenuating circumstances facing a new Administration?
Thank you,
This should be made into a petition.
Salt Lake City
Vatican City
Saddam City
Not Tibet City…
Tibet City is riddled with reactionary elements frustrating the people’s will.
Once they’re overcome, regularly scheduled corruption will follow.
Is there any way to ascertain if Walker has already ruled, and submitted his ruling to DoJ?
There are no words to cover the level of injustice for Belew and al-Haramain. To have seen the call log and know the illegal act(s) occurred while the statute of limitations runs out (when you saw the evidence) is beyond comprehension.
Thanks,
President ObamaBarry and Eric.May the whole world see you both for what you truly are: complicit in shielding war criminals and crimes against humanity from US prosecution. You’ve freely chosen to protect monsters.
According to Phillipe Sands, the investigations will still happen – outside of US control. With “leaders” as depraved as you both have shown yourselves to be, that’s a blessing.
And this is precisely why there MUST be investigations and possibly prosecutions here in America. It would not only be tragic, it would be destructive of our relations with Europe and the world if we dallied and they felt they had to go ahead with this.
We really have no choice, but to do the right thing.
IANAL
bmaz,
Is there any way that the first viewing of the telephone log by al-Haramain, lawyers and Walker could be used to prove criminality?
They are estopped from testifying or otherwise talking about any such information because it is classified. So, really, no it is not easy without Walker freeing up the document. The bigger problem is that you need public exposure of what is going on here in order to shame the government into even thinking about prosecuting; it is something they desperately do not want to do.
So, the members of the DOJ team who have the clearance to see this as well as the delay in and poor method(s) of re-securing the classified doc by those with appropriate clearances cannot be used in any way to push this?
Is it at all possible that the process that took place to re-secure the classified information could be used against the government? That whole process was well documented with unclassified communication between all parties.
There has to be a toehold in that mess somewhere.
Obstruction maybe, but it is tough unless you can prove up specific crimes being obstructed. And asking for a jury to convict the highest actors in their own government? There is a difference between a law student being able to conjure up a crime, and a line prosecutor being able to charge and convict on it.
Again, IANAL and sorry to ask so many questions…
So, the government will just be able to argue that they “dropped the ball” on national security by not promptly securing a classified doc vital to protecting our country’s intel process? A doc brought to their attention by a judge in a huge case against the government?
“That” time-delay and lax methodology (non-traditional and failing all classified/intel protocol) securing of the classified information irt national security seems to make the argument that the information was not quite the “classified” level the government classified the information to be? If it was, why was it not secured the day the government was notified?
Some people screwed up there and a window has to exist in that screw up of the re-securing of intel, as opposed to the screw-up of leaking the log.
The government didn’t “screw up”. The government could have prosecuted from the second the crime, which they knew full well of, occurred. The government intentionally considered it to not be a crime and exercised their prosecutorial discretion to not prosecute it. Is it fucked up? Yes. Is that the way it is? Yes.
The remedy was impeachment, but the American people and their elected representatives just didn’t give a flying fuck. Life ain’t perfect.
I am confused. The poor exercise of protocol and inefficient timing in the re-securing of the classified information (phone log) was not a screw-up? The way the log was poorly secured was breaking the law? (In addition to the illegality of the phone log itself?)
(bmaz, I am so sorry. You are probably ready to ring my neck.)
Are you just talking about the illegal wiretapping? Because I am addressing the botched process of re-securing the classified document, the evidence of illegal wiretapping.
klynn
The document was discovered in August 2004, not when al-Haramain submitted its suit. THe govt says that the FBI first conducted an investigation to see whetehr it had been intentionally handed over before contacting al-Haramain to get the document back. The intention being that if a Saudi mole released the document they would be investigating possible espionage and would not want to admit to al-Haramain straight out that they knew about it.
I understand that. However, there were even slight delays and botched protocols when the second copy of the doc(obtained by al-Haramain) was re-secured after the filing the law suit. There should have been none at that point. I get the history, pre-lawsuit, regarding the investigation of espionage.
I am addressing the second time around.
Fixed. Pelosi had to stick her fingers in her ears, close her eyes, and yell “La la la la– I can’t hear you” for 2 years. Conyers ignored a flood of emails. When they finally relented and allowed the HJC to hold a hearing, the word “impeachment” was forbidden. The American people are not to blame, here. The fault lies with the 110th Congress.
Bob in HI
“Pelosi had to stick her fingers in her ears, close her eyes, and yell “La la la la– I can’t hear you” for 2 years.”
You forgot the tap-dancing part. Some trick, given all the aforementioned. She should take that show to Vegas….
Now bmaz, most of the American public are not lawyers, however MOST of Congress, those ‘elected representatives’, are.
Presumably, that means that most of the members of Congress knew full well the implications and consequences of what was ‘going on’ and they, in spite of their oath to preserve and protect the Constitution, and the viability of the nation itself, chose, for whatever reasons to do nothing.
Blame is not equal here.
While I suppose we should rejoice that some of the rule of law remains, at least that portion protecting those who deliberately broke the law (with what must have been a certain amount of knowledge of this behavior being known to those ‘elected representatives’), we must acknowledge that the overall respect for the law and those agencies which enforce it, specifically the DOJ is far less that it would be had the DOJ, the Congress and the courts all behaved as they should.
Considering that it is precisely those who benefit from statutes of limitation of this sort, are precisely the ones who make these laws in the first place, the Political Cla$$, and that they damned well do NOT want the public to understand very much about anything, going so far as to hide, willy-nilly behind claims of secrecy to ensure that awareness of malfeasance cannot be generally or broadly known, the greater responsibility, by virtue of the very nature of our governmental form, ‘representative’ as opposed to ‘participatory’, the greater burden of responsibility lies upon them, and to a lesser degree upon citizens who, while not representatives, are lawyers.
When the only portions of the rule of law which obtain are used to bludgeon truth into nonsense or hide culpability, then the law, both as a means of social order and as a profession, is perilously close to being, if not a joke, then a damned shameful thing.
Since we have had a failed ‘fourth estate’ as well, one that worked on collusion with the powerful, what little the public who did not dig deeper could readily have understood hardly suggests that the public was in any position to push for accoutability, and those members of the public who did ‘push’ received virtually no support from the Political Cla$$.
Gary Hart came here to shill for his book and was so annoyed at questions about impeachment that he said, “If you want to impeach, then impeach!”
Right, Gary, that is the public’s job, Congress just gets to sit on its laurels and pontificate.
No, bmaz the greatest responsibility lies with those who deny that they have any. They had the knowledge, and the means to learn more, they had the power and the means to bring about and enforce consequence.
They deliberately, to what should be their shame, chose to do … nothing.
I am really sorry about today’s milestone, but I can’t say I am the least bit surprised. Other than blogs, there does not seem to be much momentum available for pursuing justice.
EW: Did Senator Whitehouse ever get back to you when you informed him about the Statute of limitations a few months back?
My guess is no. One of the most aggressive opponents of Pixie Dust on the SSCI and SJC had no idea about the statute and voted for immunity.
As to WO@11, I agree there are still more recent violations to be found:
Yes Marcy, did Whitehouse ever do anything? I don’t recall hearing about it if he did.
4 – yes, but not well.
It’s all a pretty sad situation and not really anything much different than would have taken place if Clinton or McCain – or Limbaugh for that matter – had been elected instead.
I’d make a case that the “harm” wasn’t offically discovered until Walker reviewed the information. So the clock starts last week.
I might also make the case that preventing the court from reviewing the information promptly deprived me of my redress, which could be a separate clock.
I would also make the case that the Government committed perjury in order to run out the clock.
Boxturtle (Or have those ideas already been slapped down in case law?)
Nice try; no dice. Did you read the quote in the main post?
Well, I liked it anyway. I guess that’s why we keep lawyers around.
bmaz, thanks for your earlier comment raining on my DoJ-is-part-of-the-conspiracy parade, but you haven’t yet chimed in on the extension of SoLs. Has it ever been done? Could it be?
It is an ex post facto violation to extend a statute of limitation once it has expired; see Stogner v. California.
So, we can have ex post facto DEcriminalization (you are very welcome telcos!), but not ex post facto criminalization (you are also welcome Georgie).
In other words, as long as DoJ is part of the conspiracy, an obstructor of justice, or just garden variety incompetent, then anyone who can prevent the DoJ from indicting a crime gets a free never-go-to-court pass. That appears to be an especially handy tool for the President.
I think it is time to reconsider SoLs in terms of when the conduct comes to light versus when it was committed. And if that is too broad, then I would settle for Congress carving out an Executive Branch exception, that crimes committed within the Executive Branch (presumably with the advantage of a compliant DoJ) have SoLs that run for at least 13 years, permitting time for a change in administration.
Yeah, but I always though there was an exception for misconduct.
Boxturtle (This is a cool yellow brick road I’m on)
Hmm. That perjury one–or obstruction more generally–might work. It woudl depend on us being able to get declaration 1, declaration 2, and the most recent declarations, and show that the changes were an intentional attempt to hide some aspect of the program–or claim some legal cover for it that doesn’t exist.
Um, don’t forget that 18 USC 1623 has the provision that allows the offending declarant to recant as long as it is done so within the same proceeding. That would appear to apply here.
Goddamned lawyers.
Think they’ve got an answer for everything.
bmaz, that business about Judge Walker should notify Gov. after his ruling but before making it public….is that usual procedure?
behind the scenes arm-twisting to change ruling or wait out the clock?
The blatant using one law to obstruct justice under another is anger-making.
For my 2 cents, Judge Walker is at his own cross-roads in this matter; in my view he either stands up for justice or joins the crowd of corrupt judges. I’ve only had dealings with 2 County Court Judges, neither impressed me with their ‘justice’.
I’m hoping he chooses right.
When it finally comes to light, I want a poster of that March 11th Re-certification.
I don’t know about the other 990 words that that picture of Documented Tyranny might say, but 10 of them are ‘I, Chimpy, am above the law. Isn’t that right, Gonzo?’
Reviewing OLC Memos for legal integrity would appear to have been mooted by Bush’s March 11th Re-certification, which makes a mockery of All Law since the Magna Carta. Now, those OLC Memos are just so much chaff – all of them likely Ex-Post Facto ‘rulings’ anyway – thrown into the air by the Goopers, designed to obscure the truth of BushCo – that they were Loyal to Bush’s Word over the Rule of Law.
That’s what’s at the heart of the March 11th Re-certification – it’s Bush’s claim to an un-checked, un-balanced, un-restricted Single-Leader Model – aka, Fuehrerprinzip, cult of personality, a Banana Republic Dictator.
As far as we know, that Re-certification contains *no* good faith elements with either the Constitution or the other Branches of Government – it’s a self-declaration of unreviewable Power, cloaked in ‘national security,’ unconstrained by the Rule of Law – it’s everything the Founders fought against.
Hopefully, there’s no Statute of Limitations on Treason.
Yes, but section 3 of Article III of the Constitution sets the bar for treason quite high (see below):
IANAL, but it appears unlikely Bushco’s FISA infractions meet the above constitutional criteria for treason.
Ianal, either, but semantically, I think you’re correct – the Article lll definition of Treason only contemplates Overt Acts against the US.
However, taking into account the spirit of the measure – a dire warning to those plotting to over-throw Our Government – the Framers do not appear to have contemplated the possibility of the Executive leading a Covert Coup d’Etat to advance his Ideological Agenda, beyond the reach of Congress and the Rule of Law.
A hidden King-ship that Deceitfully uses the Patina of the Constitution to cloak itself in legitimacy seems, imvho, to be the highest of High Treason – it’s just that it was simply un-thinkable until Bush, Cheney and the Neocon Cabal came along! They had the element of surprise going for them – Nobody would have imagined the President as a Traitor to the Constitution and US – until Bush.
As I see it, Bush and Cheney *were* the Enemy that took Aid and Comfort for themselves and offered it to their Loyalists, crippled the Constitution that they swore to Defend, and spied on US outside of FISA – it’s just that they were very sneaky about it, with Full Consciousness of Guilt. They’ve done everything they could to hide their evil.
That’s a lot of Treachery, imvho, to let go on a definitional technicality – let’s hope the restoration of Our Republic, Our Democracy, has enough political will behind it to Mete out Justice, fairly and impartially, in Open Court so that We can categorically Reject Bush’s Unitary Executive as Kingship by another name – a foreign government to US.
The solution is to impeach and convict BushCo, even though they’re out of office now, to prevent them from ever holding public office again, and will bring all the facts into the open at the trial.
The problem is the Founders never imagined Congress would be so spineless and that Congresscritters of at least one party (Rethugs) would be zombies who rigidly followed the party line no matter what.
As old Ben Franklin said, our system of govt is “A republic, if you can keep it.” CAn we? That remains to be seen.
isn’t there any wiggle room with the statute of limitations wrt the discovery that an event has taken place? i know the supremes ruled contrary to this notion with the ledbetter case, claiming she had to file within the statute beginning at the onset of the violation. but isn’t there more typically such latitude? like, you’ve been defrauding me for years and i just now see documents to prove that; isn’t this the starting point and not the criminal events themselves?
No if the government commits a crime you can’t run the clock if the crooks running the Justice Dept at the time are being asked to investigate themselves.
Obama should get 5 years to investigate from the day he gets Holder confirmed.
We ought to take donations to run an ad in the NYT that shows a chart of all the dates where the statue of limitations runs out on the various crimes of Bush & Co. A sort of Justice delayed is justice denied message to the public.
This conundrum really implicates the special prosecutor debate. With both the authorization to data mine ostensibly coming from the top and the prosecutorial power in the executive there is no effective prospect for prosecution as long as the authorizing executive holds power.
In the parlance it is a loop hole. And with criminal tolling doctrines being narrowly available in comparison to civil tolling provisions Bush’s illegal wiretapping is increasingly a fait accompli under the cover of CIC doctrine, prosecutorial discretion and the acquiescence of a Congress with Obama joining the majority. Failure to act to protect the 4th Amendment as a practical matter signals its de facto erosion and effective repealing in the domain of private electronic communication.
Quite so. However, congress had the ability to investigate and take action; they did not. It is brutal, but at some point, the citizenry gets what it deserves; when people don’t give a damn and blindly go about their self serving ways, this is what happens.
Perhaps, but I recall a lot of interest in impeachment, just not on the part of Congress. So how do we regain control of our political processes when there is systemic rot and corruption and the two parties no longer act as proper checks and balances on each other? I share your frustration, but what frustrated me most was that the citizenry was ignored. We have to find a way to prosecute criminal acts conducted in plain view if we hope to regain our footing of being a country of laws. What has been so egregious has been the collusion in both parties to exempt themselves from legal constraints. I cannot accept that we have no options to remedy this situation, particularly when all they have to do is run out the clock.
The citizenry has had a chance to vote on almost all of the congressional do-nothings, and, as to the House members, pretty much all of them twice while impeachment was being discussed. Last I checked, Pelosi, Hoyer, Emanuel, and the rest of the gang got reelected quite easily.
Seriously bmaz??? Come on, you know perfectly well that both parties have a stranglehold on elections. If you are not a Dem or a Rethug your chance of getting elected is almost nil. How many times did people argue here over whether we should be supporting Dems or third party candidates? The public at large is held captive by both parties and until there is credible threat to them we will continue to be. I’m not so willing as you to blame the public for that. My Congresscritter is fairly useless, despite his deep blue district, he does whatever the leadership tells him. And who did I have to choose from? Him, a typical Rethug, and a wingnut Constitution Party candidate. It’s not like we had any really credible alternatives. Our critter had no primary challenge. In the grand scheme of things he isn’t horrible, so why bother? And then we end up with useless representation. How often have you heard people say they voted for the least worst — that’s hardly a public that is thrilled with their representation.
uhm, how did that “Statute of Limitation”thingy work out for those pedophile priests in Cali ???
anybody checked ???
here’s a clue:
as long as the criminal charge in question is in existence at the time of the crime, all bets are off. Statutes of limitation are subject to change
btw, there is a certain clause of the US Constitution that, in essence means:
“Ain’t anything carved in stone here, folks”
you could look it up
I think I’m going to throw up.
55 – I agree with the difficulties bmaz is raising, but I have to say that IMO another very vulnerable period is the time from when Judge Taylor ruled the program unconstitutional through the time when “the program” managed to pull of its supposed accomplishment of bringing itself within the FISCt for supervision.
OT – but apparently the G20 meeting is hitting the skids before it even starts, as no one can make plans for it or try to get the agenda rolling. Why? Apparently no one is home at Treasury.
Republicans are willing to crater a worldwide crisis meeting just to play obstructionists and keep any treasury staff nominations from reaching confirmation and getting to work.
My suggestion (other than nuclear options and straight up or down votes *g*) would be for Obama to put all his unconfirmed nominees in an LLC together then have his cabinet ministers outsource – hire the guys in the LLCS to work for them until the positions are filled.
Good point on Diggs Taylor.
Now we just have to find the evidence akin to the al-Haramain wiretap log.
Geez, the main reason for having lawyers in government is to avoid the hourly rates.
Notwithstanding my 68 – I think bmaz is right with this:
Still there were suits filed that were dismissed solely bc of DOJ obstructionism and failure to provide FOIA request info – if that was to cover up crimes, maybe there would be hook there as well.
phred @ 74 and DWBartoo @ 79 – a couple amen!s from my corner.
76-80, possible if you are a prosecutor.
Last night Olberman had what was, imo, one of his best pieces ever. It was on the derivatives mess and financial deregulation, the lobbying and the manuevering. One thing he mentioned was that in addition to strangleholds at the Fed level, the Feds also stepped in and kept States from enforcing their own predatory lending laws. That kind of thing happened here too IIRC. Several state DAs wanted to step in and investigate re: their own state privacy law violations and they were shut down.
Leaving the Federal prosecutors within DOJ to handle things.
Kind of like leaving tapeworm invested vixen to watch over the last known chicken.
87 – they can’t just appoint a prosecutor. They can pass independent counsel legislation like they had before during the Clinton years. That had big problems, and if they try to fix too many of them, then the legislation itself, as the independent counsel legislation was, may be subjected to litigation.
They can prosecute for impeachment themselves, but with almost everyone out of office, that’s not necessarily a great approach. They can also appoint investigative staff themselves, which might include lawyers of the prosecutorial bent, but the prosecutorial discretion would stay with the Executive branch.
Then you are left with the very uphill battle of showing Mr. Change is blocking the prosecutions as an abuse of office.
I can’t see what would stop Levin from investigating “alleged abuses” committed by the past administration.
Nor can I see this administration frustrating attempts to prosecute, if Levin’s staff turns up enough to do so
Mary,
The Wikipedia sez
(emphasis added)
Their reference is to Black’s Law Dictionary, 8th ed. 2004, “Counsel”. Is that obsolete?
Thanks,
Bob in HI
I don’t want to witness any of these thugs (Addington, Yoo, Feith etc) popping back up in future administrations.
Impeach
Refocusing the Impeachment Movement on Administration Officials Below the President and Vice-President:
Why Not Have A Realistic Debate, with Charges that Could Actually Result in Convictions?
By JOHN W. DEAN
http://writ.news.findlaw.com/dean/20061215.html
Impeach lower level officials so that they can not ever hold office again
I think that you want them convicted of crimes, not impeached.
I’m not sure that impeachment pertains to former, and not currently serving, officials or even if impeachment necessarily prohibits future government service.
From wiki
IIRC, upon conviction it is not required to ban from future office but is an option. As an example of this, Alcee Hastings was impeached and convicted as a Federal Judge but no limitations were placed which allowed him to run for the US House (where he currently is serving)
both
I believe according to Dean you can still impeach once they are out of office
From the Constitution
Which was my point in suggesting that conviction(Judgment) was the desired end and not impeachment(analogous to indictment).
Both we do not want these thugs popping back up in a future administration
I would have sworn you and I agreed on this earlier this evening.
91 – This is the part that doesn’t sell, “Nor can I see this administration frustrating attempts to prosecute, if Levin’s staff turns up enough to do so.”
1. No indication that states secret invocations applicable will be waived, and indeed they have been revived in several settings, so that Levin’s staff might not turn up all that much
2. Levin’s committee has limits on its jurisdiction to dig into matters that are intel and judiciary, albeit that NSA is a part of the military (btw, this is a pretty interesting story IMO from a few days back over at Wired’s Danger Room http://blog.wired.com/defense/…..cyber.html ) but most importantly –
3 – They don’t have to “frustrate” attempts to prosecute, they just don’t prosecute. With out access to a wide panorama of classified info, and without a prosecutor, Levin can’t do much if he wanted to.
And I have to say (apologies to EW first up) that when you are looking to Levin, you are looking to the guy who co-sponsored the DTA. Even if you put aside the dispute over what the DTA was or was not intended to do for pending detainee suits, there is not question whatsoever that the DTA that he co-sponsored was intended to disenfranchise any new habeas suits.
After all his briefings, after all his sitting back and refusing to exercise military oversight while Generals who turned themselves in to see their sons are stuffed in sleeping bags after being beaten and suffocated; while no investgiations are held into the multiple listed homicides from the detainee camps throughout Afghanistan and Iraq even while someone like Wecht is victimized for his input in categorizing some of those homicides as homicides; no oversight while a cab driver is solely and horrifically beaten – pulverized – until he dies; no oversight for years while the military gets to “figure out” whether or not it wants to bother with protecting civilian populations or just lighting them up; no oversight of the mass refugee crisis created by the military; no oversight of CSRTs or detention procedures —-
Levin’s response to all the civilian detainee abuses, from Abu Ghraib through Bagram through Cropper through GITMO — was to revoke habeas.
If that’s the guy to entrust with a real investigation and a real effort, it would surprise me.
fwiw.
On a lighter note – this LATimes piece on Lockheed’s sales pitch for the Raptor is a good read imo.
1. In response to congressional hearings, and the attendant publicity, there’s not much reason to think that Obama would fail to waive.
3.If the case is there, they might throw it, but why suppose they’ll ignore it?
As for Levin, who knows? I wouldn’t have wanted to bet the ranch on Sam Ervin or Earl Warren, either.
Thanks for the F-22 story. Attackerman has been on it quite a bit, less humorously though.
94 –
Well, Black’s might well define special prosecutor in that way, but it’s not really correct vis a vis Congress unless you are looking at an impeachment situation (in which case, it would be correct).
I use the terms special and independent casually all the time, and the Fitzgerald “nowhereland” appointment made it even diceier, but basically “Special” prosecutors would come from outside of the Dept of Justice (that is what would make them “special” since prosecutions are typically supposed to be handled by the DOJ).
The Attorney General has regs for appointing an outside Special Prosecutor, but keep in mind that those regs leave the AG in charge – iow, a DOJ appointed outside special prosecutor can be shut down anytime, anyplace, anywhere under the existing regs.
Congress can also hold a trial, but that is only in an impeachment setting, and if they did, they could also bring in “special” non-USgov prosecutors under whatever rules they decide. But Congress has no authority over “trials” other than in an impeachment setting (and some administrative law settings)
So how do you watchover the watchmen? Well, that’s where the Independent Counsel statute that Starr abused comes in. It was of questionable constitutionality, but was eventually upheld. What Congress did was set up a panel of Judges who could appoint and remove a “real” prosecutor, who could file cases against gov officials without the AG being able to do anything about it. That was the “Independent” (as in, not governed by the DOJ, vs just being Church Lady *special* by coming from outside gov) Counsel statute.
It died early on in the Bush administration. When the Plame case broke, there was widespread discussion to bring it back, with even Joe Lieberman pushing for that result, but instead Schumer and Comey brokered the Fitzgerald solution, ending up with a “special” prosecutor who wasn’t even from “outside” DOJ. As a result, even the faint protections (for Congressional and public information) of the DOJ “outside” special prosecutor rules didn’t kick in. Those would have required Congress to be apprised of certain kinds of information, even though the AG had the final word.
Obama, Pelosi, Leahy, Whitehouse etc “no one is above the law” yeah right
No I lobby influence on Freeman’s withdrawal (choke)
http://www.zoa.org/sitedocumen…..ertID=1592
Charles Freeman withdrew
http://voices.washingtonpost.c….._name.html
96 – as long as all the lawsuits are ongoing, I can almost bet he would not waive, as he has not, so far. Think about it – the waivers in connection with the lawsuits have been small, piddly requests – very specific items for specific lawsuits and specific uses, all asked for by plaintiffs (in the civil suits) or defense counsel (in the gitmo type settings) in a very structured, court supervised setting.
Congressional hearings won’t be nearly that closely held – if he won’t waive for the courts, I don’t see him waiving for Congress.
And this is a Congress that has had access to information like the Kurnaz case information for years now and the armed services committee hasn’t pushed – no push to even try to get declassification of 200 pages of intelligence agencies around the world saying -um, we checked, he’s not a terrorist”
Will Levin find time to meet with Lockheed and address THEIR concerns – sure. Will he, or is his committee even the appropriate one – to try to deal with an investigation of wiretapping? His take on habeas doesn’t make me think he’s the go to guy on domestic fourth amendment rights, and I’m kinda creeped out over having domestic fourth amendment rights being reviewed in the armed services committee as opposed to judiciary.
But who knows, you cculd be onto the right track and I could be logging miles on a circular road.
Just when I was about to tell you that I thought you were lacking good manners by consistently kicking my arguments across the field, you go and throw me a bone at the end.
All you have on your side is law, fact, and logic. I’m talking politics!
TO: OBAMA CABINET OFFICERS, SECURITY/INTEL AGENCIES
cc: NATIONAL PRESS CORPS AND INVESTIGATIVE REPORTERS
RE: BUSH DOJ LEGAL MEMOS USED TO PROVIDE LEGAL JUSTIFICATION FOR ONGOING DOMESTIC TORTURE VIA MICROWAVE RADIATION WEAPONRY
The Bush Justice Department “torture memos,” some still secret, are believed to have been used to provide legal justification for the covert use of classified, silent microwave radiation weapons on U.S. citizens — “targeted” under the pretext of the “war on terror” as “undesirables” and “dissidents.”
Victims, including the journalist who authored the articles linked below, say these painful, debilitating and illness-inducing microwave assaults constitute torture and “slow-kill,” a military descriptive for prolonged assaults that eventually result in death — what could be described as an American genocide.
Victims of these assaults say their family finances are decimated by an array of secret “programs of personal financial destruction” that involve the forced cooperation of private enterprise; surveillance and interception of mail and telecommunications; and the forging of billing, utility, banking and mortgage statements — what they charge is a process of expropriation and theft by deception.
Sources say these covert programs were justified by the Bush Justice Department under legal theories that are said to include a suspected “nexus to terrorism” and, according to a source, the legal theory that weapons and/or medical experimentation on U.S. citizens is permissible if subjects are under federal investigation for suspected offenses.
These microwave weapons assaults have continued under the Obama administration, and are facilitated by an “extrajudicial punishment network” enabled by federal agencies; local police nationwide; and “community gang stalker” citizen vigilantes fronted by government-funded community policing and volunteer organizations.
***
Victims have asked the FBI/Justice Department to launch a civil rights investigation. They say officials have told them they see nothing to investigate, and hint that victim accounts are delusional.
Victims maintain that marginalizing the persecuted as “unstable” or “mentally ill” is a tactic being used to cover up crimes against humanity, a highly organized and well-funded social genocide.
***
TEAM OBAMA: WHAT DO YOUR BUSH HOLDOVERS KNOW ABOUT THIS:
* Silent, covert microwave radiation weapons assaults on innocent but “targeted” U.S. citizens;
* Terroristic vigilante community gang stalking, surreptitious home entry, police-tolerated vandalism;
* Secret federal “programs of personal financial destruction.”
http://www.nowpublic.com/world…..s-citizens
http://www.nowpublic.com/world…..ific-shame
OR (if links are corrupted / disabled):
http://www.NowPublic.com/scrivener
ew “Congratulations George Bush, Dick Cheney, David Addington, and Alberto Gonzales! With your stonewalling and delay, you appear to have avoided legal consequences for this particular crime committed while in office. You have deliberately violated a law designed to check presidential abuse of power, and Mukasey and Congress and Obama have let you get away with it.”
So does that five year rule apply to all of the false pre-war intelligence to? No way to hold anyone accountable for the “pack of lies”?
John Dean???? and you’re worried about who popping up?
did you witness him pop back up in any administration?
Possibly during the administration of an enema.
“Dean’s supporters saw him as courageous and truthful; his detractors saw him as self-serving and disloyal. The law saw him as guilty of obstruction of justice, and Dean was sentenced to four months in prison for his role in the scandal (he spent the four months under a “witness protection” program)”
####think we’ll witness Yoo, Addington, Feith etc do any time?
1. He didn’t do any time.
2. Do the nation and yourself a favor and don’t defend him.
He did serve several months and was disbarred.
Sentenced to four months which was adjusted to “time served”. He had spent the four months hiding and guarded by U S Marshals.
You’re right in the strict sense of served, but do you think of that as serving time?
Hey lawyer folks. If a peasant commits a crime that undermines national security does the crime have a 5 year Statute of Limitations?
I had to go into our local courthouse yesterday. The 20 something year old was in shackles (both ankles and wrist) and in her orange suit. Talked with a young woman and her mother she was in for possession of marijuana (don’t know how much)
Her two year old daughter was with her grandmother and was witnessing this.
This is justice? this is insanity
fuck Feith, Yoo, Addington, Cheney, Bush, Wolfowitz etc. I am pushing for “justice under the (alleged) law” Is it wrong to push for this system to stand for what they (judges, lawyers, congress) claim that it stands for? Talk is cheap. The peasants want to see the action…the follow through
Thank you both for the clarification.
Bill Leonard, retired, works if subpoenaed, hear-tell, though at this late hour for an issue as controversial as the OR matter, perhaps a stretch, if expertise in assessing for appropriateness of classification is relevant. There are other issues besides the 4th which congress is working to memorialize, and most Republicans endeavoring to delay and refuse to let nomination votes proceed. Look for years of obstruction. It would be wierd if, this go round, Reid/Biden and lower chamber leadership had to recess congress so there could be a new form of executive governance by sequential recess appointments, smaller government, Republican dogma, with apologies to canines, bless their hearts.
How’s the SOL on a civil suit? Say, a class action to recover the salaries and bonuses paid to the DOJ and their bosses for not doing their jobs?
This is a depressing day to mark, but the wordless (from the MSM and WH) passing of the statute of limitations should be marked nonetheless.
Sorry, Future Americans. Our leaders sucked. They should have spit.
OT – but not by much.
Obama can keep putting his fingers in his ears and imitating Pelosi, but the world won’t stop for him.
The UN is continuing it’s investigation into American renditions to torture.
They aren’t sold that the Obama administration is “Change” they can believe in.
Apparently they don’t buy into the “the world is a battlefield” theory that Holder and Kagan have gotten huggy with.
Just a note – the US denies using torture at its black sites, yet Binyam Mohamed, in his comparisons of Pakistani torture, Moroccan torture that included razoring his gentials, and American “dark prison” torture, says that his worst, lowest moments were experienced at the US prison.
Meanwhile, Obama is leading a crusade against “bad teachers.”
Good torturers? Those are still in the family fold.
Thanks very much for that link, Mary; I hadn’t heard about the announcement of the broader investigation.
The Guardian yesterday focused on Scheinin’s report itself, specifically his charges that the UK and other countries have been complicit in the U.S. rendition program:
I would have been annoyed, actually, if we weren’t named on that list. I am annoyed that our clear complicity in a heinously illegal system is not much of an issue here (yet), whereas the British courts, press, and public are at least starting to pay attention, mainly because of Binyam Mohamed’s case.
We’ve got a lot of work to do.
Does anyone but me remember what happened to Dag Hammerskold, (sp?) first head of UN? His plane blew up. I was in about 7th grade then.
Must be a day of celebration for Republicans.
Something for them to cherish as a gift from the majority party.
Makes one feel that there are those above the law in America. other than the Wall Streeters.
emptywheel:
http://www.washingtonpost.com/…..eheadlines