Right Wing Finally Talking about Rule of Law
Don’t get me wrong. I’m happy that–after all these years–someone on the right is calling out Presidents Bush and Obama on their abuse of power (watch the video to hear Andrew Napolitano complain about Obama’s targeting of Anwar al-Awlaki).
Nader: Is that what you mean also about throwing people in jail without charges violating habeas corpus?
Napolitano: Well that is so obviously a violation of the natural law, the natural right to be brought before a neutral arbiter within moments of the government taking your freedom away from you. And the Constitution itself, as the Supreme Court in the Boumediene case pretty much said, wherever the government goes, the Constitution goes with it and wherever the Constitution goes are the rights of the Constitution as a guarantee and habeas corpus cannot be suspended by the president ever. It can only be suspended by the Congress in times of rebellion which in read Milligan says meaning rebellion of such magnitude that judges can’t get into their court houses. That has not happened in American history.
So what President Bush did with the suspension of habeas corpus, with the whole concept of Guantanamo Bay, with the whole idea that he could avoid and evade federal laws, treaties, federal judges and the Constitution was blatantly unconstitutional and is some cases criminal.
Nader: What’s the sanction for President Bush and Vice President Cheney?
Napolitano: There’s been no sanction except what history will say about them.
Nader: What should be the sanctions?
Napolitano: They should have been indicted. They absolutely should have been indicted for torturing, for spying, for arresting without warrants.
I agree with everything Napolitano says and I’m glad he’s pitching a book saying it. Welcome to the lonely battle of fighting for the rule of law.
But the time for the right wing to make these arguments was probably 2004, not 2010.
Glad you picked up those links. Nader interviewing Napolitano a treasure.
Loved this one
“Napolitano: They should have been indicted. They absolutely should have been indicted for torturing, for spying, for arresting without warrants.”
When Repubs were jumping ship during the first administration it was clearly evident Cheney/Bush/were finally in some trouble for their criminal ways.
Still no Accountability.
Clearly our congress more concerned about blowjob accountability than the Bush administrations WMD snowjob and torture
Lies under oath about a blowjob = impeachment
A WMD intelligence snowjob and torture = hundreds tortured, hundreds of thousands dead, injured, millions displaced
No need to wonder why folks around the world think we are one sick nation
How quaint. Next he’ll start implying that the rule of law applies to non-us citizens. He certainly seems to imply, if not outright state that the rule of law also applies to muslems.
I’d like to beleve that this is the start of something good, but I believe he’s just selling his book. Not joining the battle for the rule of law.
Boxturtle (I hope Napolitano makes me eat those words)
http://www.booktv.org/Program/11711/After+Words+Andrew+Napolitano+Lies+the+Government+Told+You+interviewed+by+Ralph+Nader.aspx
Don’t worry he will make you eat your words. Happily, Napolitano’s statements to Ralph Nader are not new and pre-date any of the books he has written.
Judge Napolitano has bluntly called Bush and Cheney tyrants since the passage of the Patriot act. He has repeated the charge with each new outrage: the Clinton warrantless wire tapping Bush expanded from an AT&T only operation, the extraordinary renditions, corporate welfare (e.g. TARP I).
Here are a few YouTube videos going back to 2007 (looking for the 2002 on the patriot act)
FFF conference June, 2007
August 2007
October 2008
I have no doubt Judge Napolitano will continue to bluntly call the Patriot act policies, the warrantless wire tapping program, the continued extraordinary renditions of the Bush/Obama régime tyranny. While the Judge would not put it so, it is clear his yardstick is: “Tyranny is as Tyranny Does.”
IIRC, Bruce Fein and John Dean were making those arguments at the time, they were simply ignored by Rethug leadership, just as Rethugs in power will continue to ignore A. Napolitano, and just as Dem leadership ignores us DFH civil libertarians.
I don’t think this is an issue of lack of complaints across the political spectrum, it is a lack of power for those of us complaining to hold those in power to account.
Talking about “The Rule of Law” is sure preferable to talking about “Our ‘Murkin Way of Life.”
Sure remember Bruce Fein coming out quite a while back and making a stand.
http://www.pbs.org/moyers/journal/05012009/profile.html
“But Fein rejects the notion that torture is a partisan policy dispute. Reacting to Karl Rove making a similar point on FOX NEWS, Fein told Bill Moyers on the JOURNAL: “That is nonsense on stilts. Torture is not a political issue. Torture is something prohibited under a treaty by the U.S. Senate. It was prohibited in the U.S. Criminal Code — a bill passed by the House and Senate, including Republicans.”
In the WALL STREET JOURNAL, Peggy Noonan writes that public hearings would divide the country and “would be a self-immolating exercise that would both excite and inform America’s foes. And possibly inspire them.”
But according to Mark Danner, it is this very divisiveness that makes it such an important political issue. He believes addressing the political climate in which the U.S. government used these techniques is as important as investigating potential lawbreakers. Without publicly considering the costs and efficacy of torture, we cannot come to a national consensus, leaving the door open for prisoner abuse by this or future administrations.”
He’s talking Bush AND Obama here, to be sure. And why now from a neocon? Could it be because the “next step” is to argue that Bush had “plausible deniability” because he was girded by “legal opinions” (remember Yoo, so credible that even Rumsfeld rescinded his secret torture apologias?); that argument was good enough for Mukasey and certainly appears to have been adopted by Holder as far as Bush et al goes. But — the argument now will morph — Obama plainly knew better and, therefore, cannot claim to have “reasonably relied upon the advice of counsel in good faith” when continuing and expanding what Bush set in motion. So, now, Obama is to be faulted, while Bush still relaxes in a Dallas suburb. Wait for it. But, just maybe, that’s exactly what it may take for our presidents to recognize that maybe it’s a good idea to respect the Constitution and their oath of office, because if you’re going to rely upon the continued good will and acquiescence of those who are your political rivals instead of enforcing the law itself, that might not work out for you so good when the rivals see a weakness.
Obama made a pact with devil when he decided not to look backwards.
I hope he lives to regret that decision, since in my opinion, torture is
non negotiable.
And now he is going to bring up the last eight years all of the time coming up to the fall elections. The “you don’t want to go back that way do you”
Only using the look back strategy when it comes to his “looking forward, turn the page, next chapter, don’t be about vengeance, witch hunts” agenda.
No, Obama is being true to himself, his priorities and those he admires and wants to emulate when he says, “Look forward, not back.” The system as is made him; he likes it quite a bit, thanks very much. He’s like the one-in-a-million kid from the street team on the wrong side of the tracks who made it to the NBA, who thinks he need do nothing but play ball, invest his money and have a good time.
His campaign rhetoric aside, his actions tell us he views the law as a tool of power, not a limitation on the powerful. The same could be said of the current leadersheep of the once Democratic Party. There are a few outsiders, like Mr. Feingold and Ohio’s Sherrod Brown. Let’s do what we can to make sure there are more of them.
I disagree with Obama on the war and torture.
He’s done a credible job on many fronts.
He’s a paradox, sometimes I find myself outraged, amazed,
and then somewhat gratified with his grasp of ideas…
I am suprised to see anyone here say that Obama’s done a credible job on many fronts. I agree that he has, but it is unusual that to be recognized here.
Not trying to throw cold water on this but can you guys supply me a short list of the things “He’s done a credible job on many fronts” I really would like know what those fronts are ? I think? a lot of us are coming around to the fact that both parties are corrupted and beyond repair. That it’s in their best interest to keep the facade of being 2 parties both representing “Americans” when neither plainly does.
The best explanation of why Progressive Dems bash Obama comes from Hendrik
Henderson…
On driving the dissent: “I think it’s about the left’s (Obama) lack of a radical vision. The self-respecting leftist is supposed to have a structural analysis of social ills. But the American left is highly moralistic for understandable reasons, so when things are going too slowly to suit them or are not quite in the direction they were hoping, they blame the moral character of their leaders, beginning with the ones they are close to.”
Other factors have arisen, but the one that drives me mad is the term “Corporatist”…. a totally inane slogan and label, in my view, to describe his policies… He’s not the villain Fagan or Bill Sikes, although a case could be made that he is an “Artful Dodger”
BSLibrul;
A “self-respecting leftist” is not a dem, “progressive” or otherwise …
Perhaps Obama’s “problems” stem from the Great Expectations he summoned? Or, maybe it is the current Hard Times? Does Obama inhabit Bleak House, or does he now reside in the legacy class, soon to retire to the role of “elder statesman”, following the profitable and peripatetic example of Bill Clinton?
“Moral character of their leaders” …?
BS, you’ve a hard sell, here.
It must be most-pleasant to be untroubled by Obama’s behavior and apparent “philosophy” of expedient acquiescence to “corporate” interests, and the utter brutality of the war machine, even if sending out drones may be some small diversion from the tedious business of insuring the financial well-being of the few.
No doubt, you see things differently?
DW
If we have to stick with Twist for the cast of characters, I’d go with Mr. Bumble for Obama.
Ah yes, the parish beadle, charged with the “duties” of charity …
(and bedeviling the hindmost).
“Obumble” has the ring of authentic truth to it (as opposed to the manufactured variety …), though it is a lesser mettle, and may leave a stain …
(Mary, always so very good to see you and ponder upon your well-considered analysis of our “predicament”.)
DW
OK, you’re right. More people on FDL should recongnize the credible job Obama did for Wall Street and PhRMA execs. Just think if Obama hadn’t worked so hard for them, they might have ended up with a smaller home in the Hamptons or had to buy and Eclipse 500 instead of a Gulfstream.
I agree, most don’t credit him with any good these days, especially around FDL. Still, he was wrong on torture and on not closing that cesspool they call GITMO down and some other things. I am anxiously awaiting to see if he pivots to the economy and unemployment after FINREG and Kagan. Could be he is holding his powder dry for the time being. We will see. The dems will lose big time if he does not turn that corner and convince people he still cares. A speech or two won’t do it.
That whole rhetoric thing not matching up with his actions? Oh, what a paradox!
Obama doesn’t want to look backwards because he’d be looking forward to whatever legal action was taken against Bush since Obama is doing the same things. Not looking backwards isn’t done to protect the previous administration, but rather to protect the current administration – Obama couldn’t very well go after Bush for indefinintely detaining people at Gitmo when Obama is working to indefinitely detain people in Illinois.
RE: And why now from a neocon?
Because he is not a neo-con. The best pidgeon-hole is that he is a Ron Paul Republican or a LewRockwell.com anti-state/anti-war libertarian.
There is no way a person with a lick of sense would classify Judge Napolitano as a neo-con. I think the neo-con news network, Fox, will regret their decision to give him his own show, because he will not buckle to editorial “suggestions” from management.
The test though will be his attack on James Sensenbrenner when he mounts his REAL-ID pony again. REAL ID is one of the pet peeves of Napolitano.
Torture/ Murder/ Treason and nothing less.
They had an astounding set of brass balls, george and dick.
Lies The Government Told You
by
Andrew Napolitano
interviewed by
Ralph Nader
on
C SPAN
Sorry, Marcy, but Napolitano has been talking this way for years. He’s part of the right-wing that very much cares about civil liberties. They’re out there, you know. They just didn’t happen to be running the White House. And just in case you’re wondering, the neocons considers these folks just as much as enemies as they do civil libertarians on the left.
But remember, this is Nader. We all know he’s an egomaniac and no doubt will run for Prez. again in 2012. He’s just doing this to tear down the Dems.
/s
not that any of those other folks who decide to run for Pres are “egomaniacs” I have been around Nader numerous times and have never found him to be so. But so what het?
I was amazed while talking with GM retirees, teamster retirees, Vets in 2000 how many of them have a deep respect for Nader. I can’t tell you how many of them say that they would vote for him if they thought he stood a chance.
I have great respect for Nadler and I’m not even a Merkin. Do the right thing, and the world will notice.
Oh — Nader/Nadler. Sorry. Missed that. Never mind.
The old union guys sure have a deep respect for him and that says a lot
Maybe Napolitano and Nadler should talk…
Rep. Nadler: Investigate torture or face road to ‘tyranny’
By Sahil Kapur
Tuesday, July 13th, 2010 — 12:51 pm
I hate it when I don’t do my homework and I ass-u-me that simply because somebody works for Fox, he/she has sold his soul.
Having done a bit of homework, it certainly appears that he’s speaking from the heart and not simply hawking a book.
Boxturtle (I retract paragraph #2 of post #2)
that is certainly what I picked up. Although Marcy has a very solid point “But the time for the right wing to make these arguments was probably 2004, not 2010.”
Or how about as soon as the public became aware of what was going on in Abu Gharib. Many of us who receive Peggy Gish’s updates from Iraq heard about the torture as soon as Peggy and the CPT were documenting (starting the late spring of 2003) what was going on in there and tried to take their reports to the U.S. military. They were told to go away
I know Napolitano has been outspoken about warrantless wiretapping before, but I was surprised to see the “with the whole concept of Guantanamo Bay” reference, though.
I must be getting confusified in my old age, but I could’ve sworn Napolitano was one of the guys they did the PR tours with early on and he returned to Fox singing the place’s praises. I must be very very confused.
Fox broke out on the wiretapping thing way back in late 2001
http://www.informationclearinghouse.info/article5133.htm
(watch all four reports) saw them on Fox in 2001
Fox breaking out in front of the MSM pack on the I/P conflict here
Surprisingly truthful ‘Fox News’ report on Jerusalem
http://mondoweiss.net/2010/07/surprisingly-truthful-fox-news-report-on-jerusalem.html
Thank you, EW.
The pristine silence of the legal profession becomes louder every day.
DW
I suspect that bmaz is rarely, if ever, silent, and is probably more earthy than pristine.
Bmaz is one in a million, EOH, beloved, believed sometimes bemusing and, occasionally, bellicose, sui generis, in fact (and fancy) is our bmaz.
It is not those lawyers who attend and tend the Wheel House, who whose behavior offends, but the tongue-tied many who find no call within or without themselves to bestir their sensibilities, to pique their sluggish curiosities to impel them to wonder, to question, or even to ponder what must offend even the most casual of those who profess respect for the rule of law.
If these many notice nothing amiss, then the quality of legal education generally, in America, must be beyond reproach, if not reason, and it has, doubtless, moved directly on to the spiritual heights of an immaculate conception of the law as simply a means to an end.
The end of justice, the debasement of truth, and the justification of raw, brute power, as the only thing that matters, except for money, and SCOTUS, as an example of “our” legal system, has embraced both, as it happily, and with little to gainsay it, dismantles the essential protections of the Constitution, such “social contract” as the nation may claim, and the common decency, and essential need, of respect for life.
The lawyers are screwing the law, but Yoo know that.
And so do ALL lawyers capable of reason, and possessed of the merest modicum of human decency.
DW
Well, I’m not graduating from Google U with honors today – the only thing I can find remotely about what I thought I remembered (Napolitano coming back from a GITMO PR tour a few years back and talking about what a great place it was and what great cases Bushco had against the detainees) are some references in a pdf that is online and comes up when you google GITMO tour and Naplitano, but says it is a draft and is not to be circulated or cited without author’s permission, so I guess I won’t link it.
It does have a freeze frame pic from some FOX video from 2006 of Napolitano on his trip and pulls in this quote from him, discussing the nifty special guy briefing Bushco gave him “‘We had FBI interviews, I actually sat down and examined the evidence they’re going to use at trial with prosecutors. It was very detailed’ reported retired judge and Fox News commentator Andrew Napolitano.”
Maybe you can ask him.
Ah – ok, here’s a truthout article
http://www.truthdig.com/eartotheground/item/20060623_reporters_guantanamo_fox
No Reporters Allowed in GITMO – Except for Fox
that takes you to a ThinkProgress piece
http://thinkprogress.org/2006/06/23/fox-gitmo/
Gentle, child-like, or, as Susan Crawford dubbed it, um, treatment that “met the legal definition of torture.”
Agreed. Doesn’t look good.
I’d still ask him about that episode.
I do remember him on wiretap stuff from early on and he isn’t phased when someone like Beck or Hannity goes to pieces or bonkers.
(Trouble with homonyms Dept.):
Heh. Did you mean “phased” or “fazed”? Maybe it works either way…
Bob in AZ
I don’t see Nadler using his position the do the right thing any time soon.
Napolitano is actually a Libertarian. He never changes his stance because it’s unpopular. These are his beliefs and all his books are worth reading. Don’t insult him and say he’s right winged.
Libertarianism as it has come to be defined is right wing to the extreme, one could say fascist.
Goldwater today?
Certainly describes the Randnuts of today,
I think Goldwater was more sane. But I am grateful the John Birch Society was not successful in in getting him elected.
We lose when we try to line up all political camps on a one-dimensional polarity such as Left-Right. Libertarians cannot be reduced accurately as merely right-wing Republicans.
Bob in AZ
On the rule of law: I was amazed to see that Nora Dannehy ha been replaced as US Attorney for Connecticut ( see http://www.mainjustice.com/2010/07/12/fein-officially-sworn-in-as-conn-u-s-attorney/ ) with no mention of the fact that she has left office without fiing a report on the Rove/Justice scandal that Mukasy assigned to her on Sept. 30, 2008.
Dannehy’s had 22 months to investigate and report. Most federal grand juries have terms of 18 months, sometimes 24. Plenty of time for her to get to the bottom of this, particularly as the grand jury has likely been dissolved. But the last story to appear on this was in Sep. 2009,
Does anyone have eny idra what is going on?
Auriga
Guess it is a start…
How about “Should be” indicted.
On Fox News on the illegality of Gitmo, June 16, 2009
Media Matters March 29, 2006 again on the illegality of Gitmo
The Geneva convention is clear. If not a uniformed combatant, then you are either casualty of war or tried in civilian court. Napolitano is equally clear. The Bush Doctrine of infinite/indefinite detention without charge or trial is a violation of this clause of the Geneva Convention.
When the Pubs are in power, the Dems are all about civil rights, and when the Dems are in power, the positions reverse (though it’s a harder stretch for the GOP than it is for the Dems, somewhat).
Tangentially related (via the AP):
And via the New York Law Journal, here’s Judge Kaplan’s unclassified ruling (there was also a classified one that we’ll apparently never see):
Judge Kaplan’s ruling (48 page PDF)
Getting a dismissal on speedy trial grounds was a long shot at best. We’ll see how they do on admissable evidence.
The classified ruling likely just lists the compelling government reasons specifically enough to either endanger sources and methods or to permit DFH bloggers to debunk them.
Boxturtle (Last thing ObamaLLP wants is to have to argue 100 page of Marcy in front of a judge)
How does Andrew Napolitano’s argument vindicate our unfulfilled cause?
Apologies if a dupe. Unbelievable, if I understand this correctly. What’s next? Captivity on a whim? Oh, wait . . .
Sweeping U.S. victory on detainees Circuit Court chastises judge
“The D.C. Circuit Court, in a broad hint to the Justice Department to adopt a new strategy in detainee cases, suggested strongly on Tuesday that federal judges are now demanding too much evidence from the government to justify holding prisoners at Guantanamo Bay, and elsewhere. Although the three-judge panel said it was not deciding the issue finally, it said that detention might be legal if the government has only “some evidence” to support captivity. Even a “preponderance of the evidence” standard may be too strict, it indicated.’
LINK.
“Some” is such an interesting word in English. It can be used to express admiration, as in Charlotte’s tribute to Wilbur: SOME PIG. Or it can be used pejoratively, as I might do if I were to say in the present context “some evidence.”
This whole sorry saga, from the very start nine years ago, seems to have brought us to the point of loss of reason. Well, some of us, anyway.
Maybe the lawyers here will read that article and explain it to the rest of us. I simply despair.
Talk about your activist judges – Randolph just couldn’t restrain himself from citing to his own works as the rationale for why Kessler is “wrong.” IMO, he’s really been out to nail her bc of how forthright she was about the Binyam Mohamed torture being used to generate the “intel” for holding the detainee in front of her in the earlier case.
In this one, you had Gov and Defense AGREEING with the Dist Ct’s preponderance standard and assinine DC Circuit in an *unlucky* panel draw going out into neverneverland and using a standard far beyond what even gov advocated.
Lordhelpus
So, it was as bad as I thought. Appreciate so much your input, Mary. And DWBartoo has added eloquent insight, too. Both of you confirm what I feared. If there were any available around here, I’d order a margarita. Do they go well with lemon squares?
The serially-overturned A. Raymond Randolph (joined in this latest indefensible decision by Henderson and Kavanaugh) is not the only appellate judge apparently gunning for Kessler, on the operational Supreme Court for Guantanamo habeas corpus appeals [meaning the Court of Appeals for the D.C. Circuit, so long as the actual Supreme Court continues to ignore what politically-motivated judges on the nominally-lower appellate court (with exclusive jurisdiction over the matter) have been up to].
The now-recessed Supreme Court continues to turn its back on what has become of both its Boumediene and Munaf decisions in the D.C. Circuit since June, 2008, and thus on the future of the 180 detainees remaining in 7 (all non-POW) Prison Camps at Guantanamo, and on the future of the hundreds or thousands of “protected” wartime detainees under American control in Afghanistan contesting, to a pitiless, indifferent “superpower,” their unlawfully-applied armed conflict “enemy combatant” status.
As I noted the other day:
__________________________________________________________________________
You can say that again.
In fact, there’s an ongoing under the radar (to coin a phrase) fight underway right now between one of those federal judges for the District of Columbia (Senior Judge Gladys Kessler) and a three-member panel of the federal court of appeals for the D.C. Circuit (the only federal district and appeals courts, short of the Supreme Court, with jurisdiction over Guantanamo habeas corpus cases).
Josh Gerstein of Politico and Lyle Denniston of scotusblog are both doing a great job of monitoring the mostly-secret proceedings of this ugly dispute between at least two appellate judges and district judge Kessler (with the Obama DOJ/DOD and State Department in the middle), in a case which has implications for the ability of all the district judges overseeing these cases to actually effectuate the release of detainees deemed unlawfully held by the U.S. military at Guantanamo. [Josh & Lyle’s monitorings are in turn being monitored via twitter by the stalwart Carol Rosenberg (whose work gives meaning to the phrase “watchdog media”).]
Keep in mind, as you read Lyle’s latest report, that this is how a federal appellate panel is responding to a lower judge – who’s doing her best to safeguard, in fact not in theory, the life and liberty of a prisoner she’s ordered released from American military custody (an Algerian detained in Pakistan, and then in Guantanamo since February, 2002) – in a case that’s now basically akin to a death row appeal, if the fears of the detainee in question are valid:
Brett Kavanaugh, of course, is the federal appellate judge who brazenly asserted in January in Al-Bihani v. Obama (jointly with his colleague Janice Rogers Brown) that “the international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. . .therefore while the international laws of war are helpful to courts, [they] lack controlling legal force.”
Josh rightly sums up the current status quo in his latest, this way:
For more about bin Mohammed, see this summary of his pre-detention and case history from the invaluable Andy Worthington. And see Judge Kessler’s unclassified November, 2009 ruling ordering bin Mohammed’s release from Guantanamo, here.
__________________________________________________________________________
Lyle Denniston reports today on further developments in the Kessler/Circuit panel showdown concerning bin Mohammed’s fate (at least, his fate in the view of Judge Kessler, who’s not in obvious pursuit of a wider, Constitution-hostile agenda to dangerously empower the Executive, unlike a deplorable number of her colleagues on the D.C. Circuit):
Meanwhile, as Lyle also noted today, there are now three pending petitions to the D.C. Circuit for rehearing en banc (obviously soon to be four, with today’s decision), that challenge assorted panel decisions aggressively expanding the reach of the unilateral military power to detain (as triggered and maintained by the existence of armed conflict), including the latest brought on behalf of the Uighurs, whose new en banc petition asserts that “[T]he courts have not merely lost the judicial power. Kiyemba I and III cede it to the Executive Branch. This is inimical to an independent judiciary, which, under our tripartite system, may not constitutionally cede remedy in a case or controversy to the political branches”:
P.S. Good Going, hcgorman, with regard to a seemingly like-minded colleague of the majority of judges on the D.C. Circuit – a veteran district judge who’s evidently unwilling to do his duty [hard though it may be, and unnecessarily made more so by the ongoing refusal of Congress and the President to hold the Executive Branch in check, in accordance with the law of the land], the way his colleague Judge Kessler is honorably doing hers:
Chief Judge Lamberth apparently has little faith in the adversarial proceedings conducted by our independent judiciary, and would rather let some other unaccountable Authority do his thinking and judging for him, in secret and in violation of the “inalienable rights” of innocent people if need be, just in case…
Judge Lamberth and fellow travelers: “If ye love wealth better than liberty, the tranquility of servitude than the animating contest of freedom, go from us in peace. May your chains sit lightly upon you, and may posterity forget that ye were our countrymen!” – Samuel Adams
Unfortunately the full story of J. Lamberth’s recusal was not reported. Yes I asked him to recuse himself after he publicly announced that he could not be fair (WTF?) but in response to my recusal motion the Government off handedly admitted that “by the way….we had an ex-parte conversation with judge Lamberth about discovery in this very same case and the judge told us we did not have to provide certain discovery.” I mean, shit….it is hard enough pretending to be an attorney in these cases without the government rubbing it in our face by asking the judge (outside my presence) if they really had to provide the discovery that was ordered….and then having the judge say “nah…”
The judge called my motion “a side show” (at the same time as he admitted he should recuse himself)…the Government called it a judicial policy….one that I feel certain that are following to this day.
Makes me sick.
A judicial policy? On whose part? IANAL and would greatly appreciate it if you would take a moment or two to help me understand. Thank you.
Powwow,
Please submit your entire comment as a diary on The Seminal; it deserves its own space. Thanks for your work on this.
Bob in AZ
Btw, sorry to be AWOL all day. Out protecting the world for consumerism.
You have a life beyond blogging? Who knew? *g*
I would never have put Napolitano in the “right wing” category…I wish he were an example of the right wing….A few years back I was representing a class of individuals in a federal lawsuit and the defendants suggested mediation to try and settle the case and they proposed Napolitano as the mediator…(I almost always let the defendant pick the mediator so they can’t complain about how biased the mediator was…) anyway it was a race discrimination class action and I did not know anything about Napolitano… Turns out he is very bright, thoughtful and a “character” in the best sense of the word. We settled mostly because of his hard work… and he was on my clients’ side from the get go…
He plays one on TV.
The US atty scandal was part of the BushCheney ambience; cf. that article which asks who fired Carol Lam.
The “pretense”, hcgorman, is not yours, for you ARE an attorney of merit and courage, the pretense is that the rule of law obtains in what pretends to be a democracy, “of the people, by the people and for the people” … now THAT is “rubbing it in”.
Thank you, hcgorman, for being where you are, for trying to do what is just, what is proper, what is right, and what is humane.
Your efforts are appreciated and shall not be forgotten.
Neither will the behavior of those who would destroy the rule of law … be forgotten.
DW
They asked the judge in this ex parte conversation if his discovery order really required them to provide exculpatory evidence regarding Government expert witnesses…and he told them “no”…. which I take it to mean (and I think that is why they raised this is their response) they will not provide exculpatory evidence regarding their “experts”… I am pasting in a footnote from my reply which explains how damaging this can be:
A hypothetical example: suppose the Government expert opined that the XYZ group, of which a Petitioner allegedly was a member, was funded by the Taliban and took its directives from al Qaeda, but that the government had a raft of information suggesting that the expert’s view was based purely on his own speculation, and had been discredited by detailed intelligence reports showing that the XYZ group was funded by an NGO based in the United Kingdom and took its directives from the United Nations. Surely this would be exculpatory evidence that the Government ought to have searched for and provided to the Petitioner? Under the scenario set up by the Government in this ex parte “privileged” communication the Government would simply no longer look for such evidence.
I feel quite certain that the government has taken the judges response as being the end of this discussion and they are following his private advice…Since I no longer have the judge I will not be exploring this further….but other attorneys that have this judge should know that the Government has this “side decision” that they are probably following.
The mind reels. Thank you for taking the time to provide this explanation but thank you many times more for being who you are, where you are and doing what you do. You are an inspiration.
That’s disappointing info about Lamberth – to give them a bye on providing exculpatory info that his order appeared to require, and all without anyone ever notifying the defense of that the judge and prosecutors met and agreeded to their own special, secret definition of what the order means – that’s just not good.
On your exculpatory point, the situation in Judge Sullivan (and others) courtroom comes to mind. IIRC, he had an order of production out where exculpatory info re: witnesses was required to be provided and Gov had a witness who was another GITMO detainee and apparently experiencing severe mental health issues (Mr. X). Mr. X was a star witness (and maybe even the only real witness?) in several cases.
Gov, in clear violation of the production order, hid this information. The defense, in doing some of the day in, day out, boring production review, found some obscure reference and eventually was able to track down what was going on and in the transcript from the hearing that I saw then (don’t know if it is still available online or not) Gov was truly incredible in their arguments.
They argued that it was ok for them to unilaterally decide to violate the order and hide the info, bc the info was exculpatory bc it discredited their witness AND, they said, they had already provided enough (in their opinion) OTHER info that already so discredited their own witness that no one should probably believe him.
So that was the argument for knowingly and wilfully violating the court order.
Our main – or sole – witness for which we base our years long detentions of this kidnapped person is so impaired on so many fronts that no one in their right mind would believe anything he says; therefore, we don’t have to follow a court order that makes us provide even more info about how unreliable he is than we already have provided.
And then you see Kavenaugh who was plucked from no real background, no real non-political qualifications, and planted on the DC Circuit on so many of these panels and it’s really depressing. Read the MCA and DTA and how, pre-Boumediene, they expected the DC Cir to act as a rubber stamp for the Military COmmission Kangaroo Cts and it is pretty overwhelming – the failed Exec, the failed Congress, the failed Courts, the failed media, the failed citizens.
The problem is that even when the Government is clearly disobeying the court orders and we point it out to the judges the Judges just kinda shrug their collective shoulders…. very likely the same detainee witness you are discussing, but I found out that a detainee that accused my client of being one of the hundreds of Osama bin Laden body guards at guantanamo had severe mental health issues and was somehow getting alcohol while a detainee…I brought this to J. Bates attention-again claiming this information should have been turned over as clearly exculpatory- the Judge ordered that I receive the medical records- low and behold they showed severe mental health problems and alcohol dependence (WTF??). When I complained this should have been given to me without my finding it out by accident…the response was “hey you have it now so stop complaining.” The Judges apparently think it is our duty to figure out what excupatory evidence the government is hiding……..
The shock-waves from 9/11/01 just keep pulsating, destroying so much in their wake, while those in a position to stop them either won’t or don’t seem to know how. Those of you who stand tall and strong in this struggle for justice and conscience are truly remarkable and deserve our sincerest gratitude.
Unbelievable – and yet, when you have a big corporation involved and lawyers play games with production, you get the Qualcomm/Broadcom sanctions, and when you have a whistleblower who tries to get info out, they face crim charges and jail.
How the courts find a benefit in allowing prosecutors to defy the courts and violate codes of conduct is hard to process. The only benefits they could possible get are personal, not institutional. And a detainee with bad alcohol dependence – wth is that?
In a novel, it would be that someone cook up another enhanced interrogation technique – get someone into a substance dependency situation and then manipulate the substance. Luckily we know that no one involved in detainee handling would do such a thing.
What’s next? Cocaine? Opium? Oxycontin? or are we back to good ol’ Soma?
Bob in AZ
I know, but I can’t tell you – it’s classified. ;) /s
BTW- exculpatory evidence is evidence that helps…in this case…the detainee. Under the rules the government is supposed to provide ALL exculpatory evidence.
One more BTW- I get more exculpatory evidence from emptywheel than I do from the government…..Thank you very much!
Well now that is certainly reassuring.
I dont think its fair to say that the right is finally talking about the rule of law. There were quite a few folks on the right who were very critical of Bush on civil liberties including Bruce Fein, Judge Napolitano, Tom DeWeese, David Keen, Grover Norquist, John Whitehead, lew Rockwell, Bob Barr, etc.
I stuck a toe in the water yesterday and, in posting #8, referred to Napolitano as a “neocon”. Several people explained my error, that he’s actually libertarian. Got it, and it does change things for me, as I’m not that surprised if a libertarian thinks torture is worth prosecuting. I made an uninformed presumption of neocon-ness based upon an unrefined interpretation of “right wing” in the post, and shouldn’t do that, the info is appreciated. In my own defense, I guess I don’t actually spend a lot of my time keeping tabs on “Important Libertarian Thinkers”… which, on reflection, reminds me of nothing more than the stewardess on Airplane offering, for “something light”, a pamphlet called “Famous Jewish Sports Legends.” Thirty years, that movie.
But I really wanted to come back this morning to thank, from the bottom of my American heart, hcgorman and those like hcgorman who are trying to do what hcgorman is trying to do: respect the rule of law, all the time, even when it’s viewed by some as hard or unpopular. You make me proud. Thank you.
If you want to learn, as you clearly do, this is a great place. I learn more every day and appreciate everyone’s contributions. Most of all, of course, we appreciate EW’s fine analyses and her generosity in making available this space where we can share.
I guess what I want is for Powwow, hcgorman, and Mary to put their heads together to produce a combined diary on The Seminal. Great work, all of you!
Thanks,
Bob in AZ
This guy spews nonsense all day long on Fox News and you Libs hate him, but he offers one opinion (albeit, the most dimwitted one he has had so far) and you like him….Wow, LMAO. Anyway. The reality is that Bush and Cheney did not torture, spy or imprison people for fun. They did it because they genuinely felt it made us safer. You, me, all of us. And there seems to be some evidence it worked. I don’t recall any major attacks on US soil since 9/11-That fact and what they did are not a coincidence. Liberals, like most of you, act so above everyone…As if your moral compass will save us in time of danger. News Flash: It won’t. What does? Being forceful, violent and facing down the threat. Bush and Cheney did that for our own good and I thank them for it. Now all of you can sit here, ALIVE, and complain about it. That is your right. Bush and Cheney made sure you are here to appreciate it.
Too bad Bush & Cheney didn’t heed all the warnings coming in fast and furious in the seven or eight months prior to 9/11. LINK.
Bull.
Bush and Cheney sent Ibn al-Shaykh al-Libi to Egypt to be tortured expressly to have him “confess” during that torture to non-existent ties to Iraq so they could get traction on that. Then they sent him off to be killed in Libya – if anyone had thought he really had information and they were trying to protect this country, he’d have been turned over to the FIB and others for questioning instead of being sent to Libya to be killed.
They also started torturing first – then went and got a memo to ‘cover’ them for their torture, and when that memo said that the justification for the torture had to include the fact that the torturee was a “high value operational member of al-Qaeda” and many of their torture victims weren’t, they restarted the torture for the really sick purpose of making one victim (A) under torture falsely “identify” someone else (B)they had tortured as being a HV al-Qaeda operations person, then they’d torture B to get him to say A was HV al-Qaeda.
They tortured to get lies for political benefit and then to get lies to cover up for themselves for their torture.
In August of 2002, the CIA gave the WH a memo explaining specific people at GITMO who were “mistakes” and never should have been sent there, and they kept them there and tortured them there anyway, bc they didn’t want their mistakes turned loose.
They tortured for the same reason as other torturers – bc they could.
Because of their torture, they weren’t able to use well-qualified interrogators knowledgeable about al-Qaeda. All kinds of al-Qaeda experts in the FBI where not able to participate in the torture interrogations and the CIA/Bushco used that exclusion to manufacture things that the FBI experts would have known were wrong. Instead, the CIA had to use people like Deuce Martinez, who had no al-Qaeda background and no language skills, to interrogate KSM.
If you want to protect the nation, you don’t turn detainees over to guys who know nothing about them or their language and specifically exclude the guys who DO know something.
Bush and Cheney did the same things Obama is doing now in a different setting. In the end, the people who are smart and well informed and have integrity and COULD protect the nation are too repelled to be involved with the political torturers, opportunists and egomaniacal or pathetically needy politicians. Luckily for those opportunists and torturers – there’s still a place for them on puddinridge.
And because once they torture, they can’t let their victims out, lest they reveal their torture – and the pointlessness of it with regard to the claimed purpose of it: protecting national security. The circularity would be hilarious in a moot court debate; it is heinous criminality in the real world.
Good topic to bring to the current EW article on Judge Kaplan.
Bow down, bow low, to your All-Knowing President, puddinridge, and may your chains sit light upon you in your tranquil servitude to power. That’s so much easier, and gratifying, and popular, after all, than thinking for yourself, or being responsible for the actions of your government.
In doing so, please note that most of the collective Other (aka Liberals) in this thread who you spitefully and defensively accuse of “act[ing] so above everyone” are not the ones worshipping at the feet of two men who you’ve defined to be “above everyone” because they – unlike every other human being – can do no wrong in your eyes, so long as they claim that their actions in public office are “for our own good,” the law of the land be damned.
On Bastille Day, no less, you can’t wait to give the Executive Branch – in particular, One Man at its top (if not the incumbent, at least his successor, once The Party label again suits your taste, as his predecessor’s did) – all the power it craves to control the citizens who nominally run this country. Because undoubtedly – no evidence-based tests or due process in fancy-pants courts needed – when One Man in the presidency states that he’s only acting to Keep Us Safe, by definition he “genuinely” is, because his judgement is impeccable, unimpeachable, and wise, no matter how “forceful and violent” he chooses to become as he secretly “faces down the threat” we can’t be trusted to share the burden of repelling, or how he may violate our laws in the name of National Security.
http://www.andyworthington.co.uk/2010/07/14/innocent-student-finally-released-from-guantanamo/
Requiring our government’s military and police authorities to respect the basic human and due process rights of citizens of Yemen, and other foreign nations, who have been imprisoned by our military for years, before an independent judge finally has to force them to do so? Don’t make puddinridge laugh, because he knows, in his bones, and his chosen Authority Figures conveniently reinforce his view, that VIOLENCE and FORCEFUL ABUSE solve this world’s (and the little woman’s domestic) problems. After all, only Presidentially-gifted American lives count, and then only certain American lives, because “Libs,” for example, deserve whatever they get, and after they’ve been dealt with, it will be easier to identify the remaining subversives threatening puddinridge’s tranquil, shackled, slavish servitude to the Powers That Be.
May posterity forget that you were our countryman.
Interesting show today on Diane Rehm:
The future of America’s empire, with
Normally, I can tell when I’m listening to a Republican: My stomach starts to churn and get knotted up. Exhibit A is David Frum, whom I had confused for a while with Al From. But Bruce Fein is a different story: When I hear him talk, it’s usually to cheer him on, and to wish that Democrats would pay attention.
In this forum, Fein and Cole were the reasonable voices, and David Frum played the role of blithering idiot. Nevertheless, he’s just saying the same thing as most of the Republican establishment.
I’m guessing that we’re going to see a Barry Goldwater 1964 redux, with Sarah Palin in 2012 as Barry Goldwater. Look at what happened in the 1964 Republican Primaries, and I see a lot in common with how things are shaping up in the next few years. That prepared the way for Nixon’s narrow win over Reagan in 1968, Nixon’s re-election in 1972. there was the brief interruption of Jimmy Carter’s victory over Gerald Ford in 1976, and then Reagan’s victories in 1980 and 1984.
In other words, the Goldwater debacle of 1964 was followed by Republicans winning 4 of the next 5 Presidential elections. I think there is a lot to learn from that history.
Bob in AZ
On a different note I learned a short while ago that Charly Gittings died. If you did not know of him it is your loss….I am doing a link to his website:
http://www.pegc.us/
and to his memorial page:
http://pegc-us.blogspot.com/