Obama Becomes Bush As We Wait For Walker’s Ruling
As you may recall, since February 27, we have been waiting for a decision, of some sort, from Vaughn Walker in the al-Haramain and Consolidated Cases litigation in NDCA. The decision is not in yet; however, there is a new filing in the Consolidated Cases further ingraining the oneness of Obama with Bush in the litigation.
There really wasn’t much doubt about the oneness with the exception of the nuance Marcy noted as to Obama shifting slightly away from privilege in favor of the merits. Slightly is the key word there; the overall tenor of the Obama position in the consolidated wiretapping cases is disgustingly identical to the duplicitous and wrongheaded state secrets policy of Bush/Cheney.
The new filing is by the government, by and through the Obama DOJ, and is a motion to dismiss in a recently consolidated case, McMurray v. Verizon Communications. Interestingly, McMurray was already a plaintiff from the start in the Consolidated Cases, but attempted to file a separate action in July of 2008 in the Southern District of New York challenging the application of Section 802 to their original action that had already been consolidated. Section 802 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C.§ 1885a(a) provides that a civil action “may not lie or be maintained” against electronic communication services providers alleged to have provided assistance to an element of the intelligence community, and “shall be promptly dismissed” if the Attorney General of the United States certifies that one of several circumstances exist with respect to the alleged assistance.
Now you may ask yourself why did McMurray file this challenge in SDNY instead of in Vaughn Walker’s court where his case, and all the others, already was lodged? Excellent question, and one I have no answer for since it was bound to be transferred out to Walker’s court with the rest of the Consolidated Cases including, notably, McMurray’s. Of course, the better question is how did all the cases ever get consolidated in the 9th to start with, and I will get back to that later.
Now, with respect to the motion to dismiss filed Friday the 13th, there is one new wrinkle regarding a takings clause claim, mostly, however, it is notable for the fact that it continues the same crappy and duplicitous pleading style that was so prevalent under Bush. It is yet one more (as if more was needed at this point) indication that Barack Obama has completely morphed into George Bush and Dick Cheney in terms of craven support for government intrusion into the privacy of the citizenry, and the ability to conceal the Constitutionally infirm activity through the unitary and unreviewable imposition of state secrets doctrine.
These counts largely repeat claims plaintiffs, including the McMurray plaintiffs, made in response to the Government’s prior dispositive motion, and fail for the reasons set forth at length in the Government’s brief, which are incorporated in full by reference herein.
Same old song, same old dance. Barack Obama avowed he was a man that believed in the sanctity of the Constitution, the rights of citizens and in transparency of the Executive. Obama would be the agent of change from Bush/Cheney. Except, now that he has taken office, that is all no longer operative. As Glenn Geenwald has noted, the Obama Administration has proven itself just as cravenly addicted to secrecy, imperial executive power and willingness to strip its citizens of their rights under the Constitution, and its Bill of Rights, as Bush and Cheney.
As to the Takings Clause violation allegation that the government claims is newfangled, I believe that is new only to McMurray, other plaintiffs in the Consolidated Cases have at least noticed the claim in their pleadings to the best of my knowledge, but this is a decent opportunity to discuss it a little. I first mentioned the theory well over a year ago in the indemnification post:
In addition to the foregoing, there is an extremely good case to be made that the granting of retroactive immunity to the telcos would comprise an improper and unjust taking of the existing plaintiffs’ right to compensation under the Fifth Amendment and would, therefore, be in direct violation of the Constitution. I don’t want to belabor this thought; just put it out there so that it is considered in the mix. Hey, "Teh Google" is a most marvelous thing; here is an absolutely outstanding discussion of this issue by Professor Anthony J. Sebok of the Cardozo School of Law.
In a nutshell, the takings clause is contained in the Fifth Amendment
…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
and is what protects citizens from having their property interests seized by the government without due process and just compensation. It is what lies at the root of eminent domain cases like the notorious Kelo v. City of New London decision. There is some intellectual merit to the Takings Clause argument, but not a lot of practical hope for success on it. There are far too many ways around the Constitutional provision, several of which the government picked up on in their motion to dismiss. If you are interested in a general primer in how the Takings Clause could theoretically apply to the FISA situation, see the Sebok article referenced in the quote above.
What I find interesting (with a little prodding by Marcy) is that John Yoo and the Bush/Cheney regime planned on being confronted with Takings Clause complaints by citizens when they declared war on the Constitution. Yoo blithely dispensed with the applicability of the takings clause, indeed the entire Bill of Rights effectively, to the President’s military program (and remember the wiretapping was run militarily through the NSA) via a footnote in his infamous March 2003 Torture Memo. As Greenwald described Yoo’s execrable arguments:
The President’s power to use military force domestically in violation of the Bill of Rights applies equally even if the actions are ordered against American citizens on U.S. soil ….. The President, when using military force against American citizens on U.S. soil, is "free from the constraints" not only of the Fourth Amendment, but also of other core guarantees of the Bill of Rights — including First Amendment liberties, Due Process rights, and the takings clause ….. If this isn’t the unadorned face of warped authoritarian extremism, what is?
No kidding. The galling part is to compare and contrast what Yoo tried to do in his sweeping blithe evisceration of the Constitution and Bill of Rights, substantially via a freaking footnote, with a detailed lawyerly dissertation on specific case precedence and statutory history; the merits if you will. See, the Takings Clause can be worked around through proper legal argument, or at least a proper argument therefore made; that is proved by the government’s response in the March 13, 2009 motion to dismiss. But Yoo, Bush and Cheney wanted none of the legal niceties, they wanted to seize supreme unadulterated power and went about doing so in blanket fashion. Now they are using the bludgeon of state secrets to cover the power grab, even under the supposedly enlightened Obama. Different name, but the same totalitarian bludgeon for the same unitary executive power grab.
Oh yes, back to the interesting point about why the cases may have been consolidated in the 9th Circuit in the first place. It always has perplexed me as to how, and why, in the world the government ever allowed all these critical FISA/Fourth Amendment cases to be consolidated in the 9th, the most liberal and rebel appellate circuit of all. If there is any circuit you would think the government would not want to be stuck in, it is the 9th. Yet there they all are, consolidated in Vaughn Walker’s San Francisco courtroom and subject to appeals to panels of the notorious Ninth.
Marcy previously discussed the September 25, 2001 Memorandum Regarding Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches authored by John Yoo. Tucked in that memo on page 10, innocuously stuck in the middle of all the Yoo goo, is this paragraph:
In order to police the line between legitimate foreign intelligence searches and law enforcement, most courts have adopted the test that the "primary purpose" of a FISA search is to gather foreign intelligence. See id.; United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987), cert, denied, 486 U.S. 1010 (1988); United States v. Badia, 827 F.2d 1458,1464 (11th Cir. 1987), cert, denied, 485 U.S. 937 (1988). Not all courts, however, have felt compelled to adopt the primary purpose test. The Ninth Circuit has explicitly reserved the question whether the ”primary purpose" is too strict and the appropriate test is simply whether there was a legitimate foreign intelligence purpose. United States v. Sarkissian, 841 F.2d 959,964 (9th Cir. 1988). No other Circuit has explicitly held that such a formulation would be unconstitutional.
So it is quite possible that the reason the government today finds itself twisting in the 9th is because, at the start, they stupidly forum shopped looking for a tiny bit of extra advantage on the merits, when their whole defense rested not on the merits at all, but on states secrets, classification privilege and other obstruction. It sure isn’t the play I would have made were I in their shoes, but it is the best explanation to date for the insanity of the government not having fought tooth and nail to stay the heck out of the wooly 9th.
If that is indeed the reason, or even part of the reason, the cases were consolidated in the 9th, it was a fools errand. The 9th may have left the issue unresolved in Sarkissian, but it by no means left any indication that it would be open to a trumped up illegal skim like was being run by the "Bush Program". If the government thought they were going to build a life raft out of this thin reed, in the 9th Circuit of all places, they were stark raving mad.
Do we know if the DoJ staff on these cases has changed since Holder took over?
Where to begin. Burn the village to save the Villagers? The president is not at war with his fellow citizens; his primary constitutional duty is to enforce the law, not reign above it. There are specific provisions limiting his use of the military on US soil, absent a declaration of martial law. There has been none. The authorization to use military force against al Qaeda does not accomplish the same thing. It is the slimmest of threads on which hangs the legal pick-up truck, complete with gun racks, of the Cheney regime.
The jumble of arguments by Yoo is knowing CYA. His work is not lawyering, was not done in good faith, and is not a valid defense to his and his superiors’ violations of the law. Why does Obama feel empowered to defend its results, but not Yoo’s reasoning when he should discard both?
If Addington and Gonzales were forum shopping, why avoid the obvious attractions of the 4th or 5th Circuits in favor of the California-dominated 9th? It’s probably the most liberal, civil rights oriented among the federal circuits. (A relative attribute, given that the GOP has appointed two-thirds of all sitting federal judges.)
Or you know, the DC Circuit. It truly is a question that has always perplexed me. This is the best explanation I have found yet. Now in fairness, I am sure the plaintiffs were thrilled in most regards to be sited in the 9th and the Multi-District Panel gets to make the call, but I do not recall a battle to the death by the government like you would expect. Even given the nuance I discussed in the post, there is no way in hell I would want this stuff to go to the 9th if I were the government.
Uness they’re throwing it.
There was a case in SDNY that went into the consolidation. Before the consolidation lots the judges were buzzing about the proposed consolidation and specualting about where it would be sighted.
Strangley there was gleeful “the adminsitration won’t like it” prediciton back then. I’ve said it before and Iwill say it again, I think the judical branch is the only reason we still have anything left of the Constitution to patch together. GOP and Dem judges both tried to actually do their jobs, unlike the Rubber Stamp Congress
Heh, well, you know, the 9th isn’t the flaming bastion of liberal thought it once was, but it is still light years better than the rest in that regard. Somebody, or somebodies, on the MDP had a sense of humor and irony here.
I wonder if there was a good person in the Justice Department who persuaded the powers? Is that even possible during W?
I think the answer to the SDNY filing is simple. Even though the MDL panel has consolidated all existing litigation and shipped it off to NDCA, a new litigant still needs to sue where there is territorial jurisdiction and proper venue. My guess, without even having seen the new suit, mind you, is that the plaintiff had two choices gven the relevant contacts (the connections to various forums that can establish jurisdiction under the good ol’ International Shoe case) and that plaintiff probably came up with two choices: SDNY or DC. I would damn sure prefer the Second Ciruict to the DC Circuit in this case, on the off chance the MDL panel doesn’t transfer. In short, I doubt that the SDNY plaintiff could establish jurisdiction in the NDCA; the MDL rules relax the venue/territorial jurisdiction rules, but only with respect to properly filed (i.e., non-jurisdictionally defective) cases, and only after the MDL panel orders a transfer can one get the benefit of those relaxed rules.
End of Advanced Civil Procedure lecture for the day.
Plus, thre’s a downside to the Ninth Circuit. It’s a cert. magnet, and in the view of a majority of the Justices of the U.S. Supreme Court, always presumptively wrong. If I were litigating one of these cases and had the chance I would take a panel with the likes of Cabranes, Sotomayor, Newman, Leval, or Feinberg over a liberal Ninth Circuit panel (e.g., Reinhardt, Fletcher, Berzon, Tashima) any day. More gravitas, less baggage. Plus, the Ninth is a big place and the panels can end up very right-wing. (Keep in mind that the likes of Jay Bybee are on that court, although I would like to think he’d have the sense to recuse in these cases).
A further point: The case ended up in the Ninth Circuit due to the decision of the Judicial Panel on Multidistrict Litigation. That panel has an awful lot of leeway — indeed, basically plenary authoirty — over the questin of where (i.e., to which district judge) they can assign a case that is fit for Section 1407 transfer. And there really is no way to appeal that determination. The panel can take into account all kinds of factors — which include not only obvious practical ones like where a critical mass of the cases are already pending, where the evidence is, etc., but also “the experience and skill of the available judges” (Manual for Complex Litigation sec. 31.13). The panel has its favorites and in my experience that factors hugely into its decisions. In other words, they think long and hard about who can handle these kinds of cases. Some judges are known to be good managers and to be able to handle the difficulties of say, mass torts (there are one or two in the EDPA who are MDL transfer magnets for this reason). I would love to know what went into the decision to name Judge Walker.
The panel, by the way, is made up of seven sitting federal judges. Right now, they are all, I think district judges. They are appointed, under the statute “from time to time” by the Chief Justice. The language is odd and a little vague, but I think that the custon is that appointees are there for as long as they want to be.
It’s all a rather occult system actually, and it’s only been with us for a little over 30 years.
The 9th Circuit has never ruled on one key aspect of FISA, whereas most of the other circuits have ruled more strictly against the exec. I’d have to find precisely what it is–but Yoo relies on the distinction in his FISA memo to David Kris.
Hey now, I discussed all that in the post near the bottom.
Yoo’s perceived Sarkissian distinction is pretty weak tea to have not fought like rabid dogs to keep this out of the Ninth though.
Glenzilla had a link to the actual brief filed by the gov’t. In it, one of their first garumments no less, is that the court can’t order access to top secret info because——wait for it—an Executive Order says that the head of the agency classifying it has to determmine that there is a “need to know”.
Um, Executive Orders are binding on,um, like THE EXECUTIVE BRANCH. Judge Walker, he no worky in Executive Branch.
Glenn said the brief was Yoo quality work and he is not kidding. My kid in a frshman in HS and she knows more about the sepration of powers than the dingbats who wrote this silly silly brief.
Judge Walker must have laughed until he has a stich in his side when he read it.
I wouldn’t ask that question
if I read this right, McMurray wants out of the consolidation, right ???
I might be tempted to question why he wants out
and he seems to be opting out of a favorable forum, to pursue a case in a less favorable forum
so I might also question his logic and legal strategy
maybe this guy filed his case in an effort to torpedo the other cases in the consolidation
we’ve been thru the looking glass for so long that I suspect that anybody who does something totally stupid is a repuglitard plant
if norm coleman’s legal team didn’t exist, I would just think McMurray has the dumbest fucking lawyer on the planet
Your lead makes journalistic sense, you captured my attention.
I was just reading in the Globe, where Obama “boosts Amtrak funding…
Northeast to get half of $1.3 billion grant…”
I was elated since Bush has left the Northeast cold for the last long
eight years…
Obama becomes Bush? Hardly.
I see your points, well documented, but Obama becomes Bush?
Holy shit, no….
The panel on multidistrict litigation was responsible for the cases ending up with Walker. At the time, they indicated that it was bc he and his court were the furthest along with the existing consolidated cases. I have to wonder if there were any nudges from other judges to the judges on the panel, bc even back then Walker had shown he wouldn’t be a doormat.
Oh, no doubt it was the MDP that made the call; I think it is arguable that Walker was “the farthest along” though; I think there were others (Diggs Taylor?) that could have been similarly viewed. Also a couple of cases in SDNY as I recall. I do think some judges had some, shall we say enlightened, input. There was no big stink upon the original designation, and, to the best of my knowledge, no writs sought objecting, which are available on a transfer order (although not on a declination of transfer). I think there is likely a lot of crap that could have been pulled behind the scenes to stop assignment to the 9th if the government wanted to; I get get the strong inclination they were quite content with the assignment. And that still perplexes me.
Maybe it has to do with Ex Parte Milligan? The 9th Circuit is located in San Francisco, right? Is San Francisco overdue for another earthquake?
Hah hah hah, San Fran is always overdue for another earthquake.
I recall your writing about that. It seems a thin thread on which to hang a pick-up trick. But hey, any port in a storm. I agree with what I think were your and bmaz’s earlier comments: the strategy seemed to be to keep shifting arguments and circuits just to keep the balls in the air, to avoid an unappealable decision, and to keep the law murky enough that they could claim they weren’t wrong, even if they weren’t right. For most of their claims, that worked, certainly for the duration of their tenure.
apropos to this post:
At a local library today I attended a “Community Meeting” of constituents of US Rep John Tierney (D-MA). The stated goal: “[Rep Tierney] invites you, your neighbors and friends to join him in an open dialogue about federal issues of importance to you. ” At the library Tierney discussed the recent bail out bills and money coming to Massachusetts.
While the economic disaster and government’s plans to combat it are important and were the topic of questions by the majority of the audience, my topic of concern was restoring rule of law and having Congress provide oversight of government.
The discussion did not go well, however, because instead of hearing me out Rep. Tierney assumed he knew what I wanted to say. When I brought up al-Haramain v. Bush and now al-Haramain v. Obama, Tierney nodded and immediately started talking about the “consolidated cases” and that because of state secret issues we would not be hearing very much about these issues. That’s why they’re not in the news…
I was able to clarify that I specifically wanted to hear Congress become vocal about the issues in al-Haramain–that the DoJ recently “corrected an error” in its representation of state secrets (suggesting they lied when first submitted the info under Pres Bush and now that it was obvious Judge Walker was about to see the documents, came clean), that this case was a chance to show Bush committed a federal crime eavesdropping without a warrant on American lawyers, that classification of NSA’s illegal wiretaps is a violation of the classification rules.
That this case provided a plaintiff standing in the courts to challenge warrenless wiretapping and could effectively restore 4th amendment rights.
Tierney didn’t disagree, but he ended the subject by saying that “they are being investigated” by select committees (see Conyers, etc). Not sure what he meant by this, however.
I did not get the impression (or maybe he’s that good) that he was actively evading the subject. I did get the impression, though, that he did not understand what my ultimate concern was–which many of you share:
that the Obama administration is effectively working to cover up Bush crimes. Where’s the change?
I didn’t even get to mention the expiration this week of the 5 year statute of limitations on Bush’s illegal eavesdropping of Americans, or ask for a comment on the Obama administration’s threat to withhold intelligence information from the UK if its High Court released information about Binyam Mohamed’s treatment in Gitmo.
Not a gratifying experience. I guess I need to write Tierney a letter now.
This is a good summary of the issues. Congress can revisit them by Leahy’s State Secrets Act, by a wide-ranging investigation, or by revisiting FISA. They appear to have been given by Obama more to do than usual so perhaps they will settle on bringing one through for now, especially since everyone at DOJ has not been confirmed.
I am late to read this post, but I am delighted that you have made this contact with Tierney. He chairs the Government Reform and Oversight Subcommittee on National Security and Foreign Affairs and is vice chair of the Intelligence Committee subcommittee on Oversight and Investigations. He is in a position to impact policy in these areas.
The best thing to do is write a letter. Letters from constituents are taken seriously. More importantly, answering a letter (unless you are totally blown off) requires some research on the part of the staff person drafting the reply. Consequently, a well drafted (very specific questions) letter serves as a tool to educate the Member and staff.
You can also follow up by requesting a meeting with Tierney staff in MA or DC. I will be glad to help with this. For the record, I am a registered lobbyist for a trade association (www.foca.net) that formerly included Al Haramain as a member (AHIF no longer exists).
Wendell Belew
[email protected]
ahem,
any chance this is N-dimensional chess ? i.e., make semi-weak case to the court EXPECTING/WANTING to lose because it thereby establishes case law toward what you really want….if you really want to change things it beats withdrawing your argument… Lets the courts establish their authority (checks and balances) and makes firm the constitutional principles by making precedent/case law. ????
I doubt it. Imagine if Obama looked at the illegally obtained NSA intercept of the al-Haramain lawyers.
Obama believes in the rule of law. He ran a presidential race on this idea.
He believes the document was improperly classified–improper because classification should not be applied to data proving a crime. The crime is warrantless wiretapping.
In my N-dimensional chess game, Obama follows the law. Declassifies the NSA intercept.
Bush goes to jail, because the courts subsequently demonstrate that Bush broke the law.
Back to reality…
Let me answer that for you, NOOOO.
You really don’t know much about trial courts to make such a hypothesis. It is one of the most absurd suggestions I have ever heard. And couldn’t be more wrong if your life depended on it. This is simply delusional.
For those of us who are not lawyers and have little to no trial experience, why is the “Obama’s doing this on purpose in the hopes of losing” scenario so implausible, let alone delusional? As a non-lawyer myself who initially wondered about this scenario but now no longer believes in it, I was just wondering what an actual trial lawyer’s reason was for why this is so.
My understanding of the reason is that if this was what Obama was trying to do, he would have allowed previous rulings against his DoJ to stand and not try to keep on appealing them, but has instead directed the DoJ to keep on trying to find ways around these rulings. I.e. if he’s hoping to lose, why does he keep trying to win?
Is that basically it, or is there more?
I usually hang out at Greenwald’s blog or Daily Kos where I discuss these issues–and have been attacked by DKos Obamabots for being criticial of Obama on his stances on these issues so many times that I’ve lost count–but I check in here from time to time to hear your and Marcy’s analysis, which is always interesting and informative.
Thanks.
I’m sorry if I offended your sensibilities as a lawyer. However, I’m not entirely sure that ridicule invalidates my point. Some facts maybe ? To me (IANAL- just a PhD with real jobs for a long time), situation seems to be this (PLEASE disabuse me with FACTS): Bush was ASSERTING authority to suppress this case. By continuing the case but with weaker arguments, Obama invites the courts to rule against the weak case, thereby establishing a public pattern (I’d say precedent, but that probably has excess meaning for lawyers). The COURTS decide,not the executive. If he just drops the case, it remains undecided for some future Bush to try and maintain the perversions. if he asserts the case weakly (inviting defeat), not only do the Courts get to rule, but it sets a specific example of decision for the future. So I’d appreciate some line of reasoning for your response rather than a blanket “you are so stupid I’m not going to give you a sensible answer”.
Bmaz. It was a question that could certainly have had a kinder answer, as the question wasn’t adverserial in content.
16- they really had their hands full if they wanted to make a stink. Judge Diggs-Taylor issued her ruling the DAY AFTER she was given notice that her case was going to be consolidated for pre-trial proceedings.
http://www.scotusblog.com/wp/n…..-by-judge/
But perhaps more importantly, if Yoo (who really needs to brush up on reading caselaw for comprehension) really wanted the 9th Circuit, the thing that made Walker the *advanced* case at the time of the transfer is that his ruling, refusing to dismiss, was already up at the 9th Circuit when the assignment was made, and he was actually just sitting with stays out, waiting for the Circuit Court decision.
http://www.scotusblog.com/wp/1…..ge-walker/
So I guess you could have a quasi-indpendent rationale that a Circuit court would get the first chance to rule in his proceeding – or the Yoowantsthe9th rationale that assignment to Walker, even though he had ruled against them, put their case quickly in front of the 9th.
The Sixth Cir ruling in Diggs-Taylor’s case, the home circuit of US v USDist Ct, was a disgrace.
No kidding. It is really abominable. As to the the bit on the assignment; yeah, I have no idea really. All I know is if it were me, i would have been trying anything and everything to stay out of the 9th. They have shown a proclivity for even bad faith maneuvering; but no overt evidence of any of that. It still strikes me that they were okay with the delegation to the 9th. And I still find that amusing.
Assuming that the DoJ continues its current course of fighting this all the way, how do you see these cases as most likely proceeding, given what you know about Walker and his district, the 9th circuit, and SCOTUS? Do you see any chance at all that at least some of them will end up in plaintiffs’ favor, and deal Obama and Holder a major blow? And is that likely to take years if it happens?
You did not offend me, and I did not mean to be insulting. I can see where you might see that, but that was not the intent. It does get trying after a while to keep knocking back this argument. For starters, there is absolutely nothing to support the contention or thought that Obama has made “weaker arguments”; in fact, Obama has cleaned up and strengthened the arguments in several regards and has certainly fully maintained the duplicitous assertions across the board. There is simply nothing to support that Obma has done anything but fight the matter fully in every perfidious regard that Bush/Cheney did.
Secondly, assuming for the sake of argument only, that what you are hypothesizing were true, that would mean that Obama was intentionally cravenly playing fast and loose with the very construct of the Constitution and Bill of Rights because he felt that more politically expedient than doing the right thing straight up. If that is his tact, he ought to be impeached on the spot.
ok. Reset then. So, whether Obama’s arguments are weaker or stronger than Bush’s arguments is sort of a lawyer-academic issue. To me (IANAL remember), the fact he is continuing to press arguments (as opposed to findng a way to drop it) is GOOD for the reasons mentioned earlier — makes the COURTS decide important issues. If he drops the case, no clean line of decision for the future (including WHO decides). If the courts rule in Exec favor, God save us all and shame on them. If he makes his “best case” and courts rule against him, good for us all systemically and legally. “Craven” seems over-the-top….High-stakes maybe, but craven ?
The suits are not Obama’s to “drop”. What he could easily do is drop the obstructing tactics, allow the justice system’s due process to flow and let the chips fall where they may, as Mary discussed above. That he can drop. But the suits are private actions against corporations and the Federal government, there is nothing for Obama to so “drop”. He is doing neither you, me, nor the Constitution any favors here in any remote regard; in fact, just the opposite.
Perhaps I am over thinking this, but I have decided that Addington/Cheney is/are a(n) evil genius.
They knew that they could stall any case for the life of their administration. So for their actual law breaking purposes they were covered.
Once a case goes actually qualifies for appeal, the Bush cabal still have nothing to lose: 1) verdict for the plaintiff = a democratic administration with less power; “This loss is clearly a result of the ‘dishearted’ DOJ under Obama” they will say; They want the activity reversed so that they can rationalize their abuse of the constitution as only “temporary.”
2) In the event of an unlikely verdict for U.S. govt from the 9th, then the next Republican admin will have more to work with. Further, they can argue that “if what we did was so wrong, why did the Obama people argue in favor of it.”
My best guess is the government/DOJ trying to mount a passable defense at best. The Prior administration is in a win/win situation and the Obama administration also can’t lose.
The only loser in any scenario is the Constitution, Rule of law and Civil Liberties.
bmaz, don’t know if you’ve seen aeon’s diary for the hat tip, but he has this link;
if you haven’t seen it, I suspect it will be the core of many a thread
26 – Why do you think he is making a “weaker” argument? He’s not. He has reiterated pretty much all the Bush arguments. They have emphasized more an approach that the 9th Cir has already ruled on the states secrets invocation (which they couldn’t emphasize before the 9th Cir made that ruling) vs dwelling as much on making the case again for state secrets, but they still make that same case.
At this point, Obama is claiming the ability to classify evidence of statutory violation as a “state secret” If you know about the statutory violation and conspire to cover it up, that is, at best, obstruction. Let’s just say that engaging in obstruction of justice isn’t some kind of high school kid kewl head fake.
These aren’t games. Lawyers are prohibited from just filing stupid stuff and giggling. That is the very issue that the lawyer who filed the suit challenging Obama’s citizenship is having to deal with now for that matter, a Judge is on his butt to show why his pleadings were not frivolous and why he shouldn’t be sanctioned.
Obama has a whole host of things he could do other than proceeding with all of Bush’s arguments. He could, himself, declassify to the point where the underlying elements of the crime were publicized. He could have Holder, as AG, direct the issuance by OLC (even without Johnsen in yet) of (or by HOlder himself – it is the AG’s power that OLC exercises by delegation) issue superceding opinion, or agree to dismissals, etc.
Why would it be a good idea to risk a forever court ruling disenfranchising American citizens, because you think a head fake is more kewler? And the truth of the matter is, on a hugely powerful separation of powers argument, there is every incentive for a court to let the executive run wild, even on a crappy argument. Why? Bc the judiciary has NO enforcement mechanisms. It relies on the Executive to support its rulings and so is very reluctant to get into a head butting showdown with the Executive.
And no matter how “weak” the arguments Obama might make, what you now are placing before a court is that TWO DIFFERENT administrations, two different Presidents from two different political parties with vastly different backgrounds, three attorney generals under one administration and another attorney general under the other (who had been Dep AG under yet a third administration) have all joined hands to assert the correctness of the assertion of states secrets. When the second President, especially from a different party, joins in to also claim that national security is jeopardized, the factual presentation to the court is very very bad for overruling the doubley affirmed Executive branch determination. The legal saying is along the lines of, bad facts make bad law but the pragmatic impact is that Obama is saying to the Court, Hey, despite my heated rhetoric to the contrary, now that I’m President and have all the info, I think Bush was a fine, wise, wonderful guy who only did what I’m doing now too. That makes it incredibly difficult for the courts.
And a bad ruling, what Obama is putting on the table, is with the nation for what will likely be much longer than the impact of Dred Scott or Korematsu.
Indeed, and that’s most salient take from BO & co. on this and so many other issues. Horton cuts into same subject as this bmaz post looking @ several other slices of same thing & comes to same conclusion.
Same w/his econ actions funding the kleptocracy and playing favs w/banks, his reiteration of W’s war on whistleblowers…
I worked here (Albuquerque) to get BO & (even more) Tom Udall elected. Udall’s creds near as good as they can be for freshman Senator IMO. Yet, I’ve made 2 trips to Santa Fe in order to have face 2 face w/Udall’s communications director & I’ve expressed my grave concerns on each of these points:
* legal GWOT stuff as described in this post.
* massive econ realities vs. entirely ineffectual BO policy
In each case gave ‘em files w/details on each subject… broken down, examples/links/summaries etc. Udall & his office knows who I am. Yet, I have received from them 2 responses, both form letter emails extolling the stimulus’ value in “rebuilding America” and legal summary of subjects I addressed expressing his/BO’s commitment to “keep America safe.”
At this point I have no truck w/either of ‘em, and regard my efforts as a complete waste of time. When it’s all said & done, dems just same side of republican/neo-con coin.
Hope & Change, for me, turned into dismal disgust. Fuck ‘em… supporing these guys no different than romancing a whore.
Hang in there. You’re doing great stuff. Don’t be discouraged by lack of response. I can tell you from personal experience, the economic crisis has seriously jammed up the political process in Washington. The phone lines are at capacity, thousands of letter pours in every day and staff is overwhelmed. Udall is potentially a great senator who is still staffing up and finding his sea legs.
28 – It doesn’t take an evil genius, just the evil part. Any lawyer knows that the Achilles heel of the Judicial branch in a confrontation with the Executive is that the Executive branch has all the enforcement mechanisms. And when you have a Congress that won’t act, supported by a media that is in the bag and won’t give the public the info it needs to make it want to push for action, the courts are treading water in the middle of a shark infested ocean.
Especially with no independent counsel and no good men and women at DOJ (imagine if no one had given a damn when Nixon asked to have the Special Prosecutor fired, or if one had never even been appointed, etc.) there’s just no hammer.
Mary,
I have often thought exactly that about the Nixon firings. Comey came close when he refused to recertify domestic surveillance, but even he failed to step down in a manner that clearly and fully conveyed to the public that a lawless regime was loose.
31 – Craven, absolutely. Especially since he will have the ability, at any point and everypoint to pull what they pulled in Padilla and al-Marri, which is to make sure they yank the case before a final determination. Padilla was Bush taking that route, but al-Marri was Obama following in the exact same footsteps. It’s scrimmaging right now, but Skilly is right. He really doesn’t have a “lose” path for Executive power. He’s pummeling away at the Fourth Amendment and the rule of law and he’s doing it in multiple forums on multiple fronts. All knowing what really went on.
OT-Just got to read today’s Book Salon. I’m going to order Russ Baker’s book. Which books on JFK’s murder are most highly recommended?
thom harmann has an eye opening perspective, take a look at his book;
thom has done a book salon here at the lake, I wonder if he would do one on the kennedy assasination
Thanks, perris. I should have been writing them down over the last few week.
There is international news again about various countries’ bailouts forming an interest group to lobby the Helvetians to scrutinize for taxdodgerAccounts; in one of the McMurray cases from Sdny there are numerous references to international banking. So maybe there is a quid pro quo in the banking biz in pressuring VWalker to unbundle this specific reed from the windrow.
Babytelcos’ politics also may have factored into the bundling. Sdny is also part of BellAtlanticNynexSnetVerizon-Seidenberg of the Bedminster mirror noc fame’s territory. I have migrated from the former document archive, so would have to research his early Nacchioistic reluctance to interpret Calea as TIAequivalency. Swift as part of the traceback efforts riled a few bankers, and my guess is Swift’s uplink is in Seidenberg’s territory. I have been away from the lit eons.
As I recall it is right Hepting was the most advanced in some respects, though, if I remember, the states secrets tack was most successful in Sdny, KagroX used to write about that case as did ew. DiggsTaylor issued a stay the same day, pretty much, as the scolding to the emperatur; interesting to learn she was a day beyond the date specified, but the consolidating panel likely afforded her some largesse, as her research was fairly fully drafted at that moment.
There are plenty of threads in the MTD, if I have time to review more.
US Role in Keeping Canadian Trapped in Sudan
This would be Obama’s administration that is heading up the current exercise of this “behest.”
Abdelrazik supposedly went to Sudan to visit his sick mother and in 2003 was picked up in the GWOT. Since he was “detained” Canada’s CSIS and RCMP and Sudanese authorities have all said he should not be on the UN list. The Canadian embassy has given him a temporary refuge, but Harper isn’t really all that keen to have him come back and isn’t pushing to take advantage of the exception to the travel ban that allows return to a home country.
So 100 or so Canadians, including former Iraq hostages James Loney and Harmeet Singh Sooden and former Liberal solicitor-general Warren Allmand have done something that puts them at risk of running afoul of Canadian terrorism laws, and of the US putting them on the list to get Maher Arar’s treatment. They have all chipped in to provide “support” to someone on the terror list by providing funds for an airplane ticket.
Isn’t that lovely.
Our cynics and paranoiacs won’t dare touch Warren Allmand, so I think he has pre-empted that twit-begotten threat about the anti-terrorism act. Allmand’s a very good guy, serious civil libertarian; I only wish we heard more from him these days, although he’s not young any more and it was great of him to step forward as a shield for others.
So Abdelrazik has his plane ticket now. Any more tricks you’d like to pull out of your, um, hat, Steve?
Abdelrazik is one of those eight cases (the ones we know of) where we have been bad but BushCo were worse, and Obama isn’t moving very fast on the two where actual suffering continues, Abdelrazik and Omar Khadr.
I just read Danner’s summary of the ICRC report (see perris’s link @ 29), and I’m working on my anger-management. It’s hard to write usefully when the only word that keeps coming to you is scum, scum, scum of the earth. I get especially inarticulate every time I come to a mention of doctors and psychologists present and observing the torture. We have to do something.
Dang. Several hours ago I was halfway through composing a long comment when a reference I was trying to get froze up my browser and I lost all my work! So here goes again. For future reference, does performing a “preview” save your work so if your browser have to be closed, you can recover it? (I’m using Firefox)
Anyway, most of us here are bent out of shape by the Obama/GregCraig/DOJ pleadings during the past 50 days. The rap around Washington is that the public just doesn’t care. As if our elected and other federal officials require polling support to defend the Constitution and the Bill of Rights! (What was in that oath of office?)
Here’s something to do. Progressive Democrats of America has a working group on Accountability and Justice . David Swanson is a member of the PDA board, I believe, and one of the activists involved. He has organized support for a “statement” that amounts to a petition asking Attorney General Eric Holder to appoint a special prosecutor for Bush, Cheney, et al. So far, about 170 organizations have signed on to it, along with a number of prominent individuals, including Progressive Democrats of Hawaii, for which I am secretary.
The working group also recommends meeting with your senators during the upcoming April recess. Show him/her the 6/08 and 12/08 letters from John Conyers to Mukasey, as models for what you’d like your senator to write, as well as the 16-page preliminary brief on torture by the Jackson Committee, and David Swanson’s collection of Quotes by Notables supporting prosecution. Ask for
1. a letter to Holder, and offer to help get co-signers; and
2. a public statement from him/her supporting prosecution.
You and your group should also be prepared to discuss your position on Leahey’s “Truth and Reconciliation” commission proposal. I recommend LHP’s position, expressed here at the Lake, in a lead post and in a comment below her post. In searching for a link, I did something that froze my browser before, so I won’t try that again. But essentially she supported Leahey’s commission on the condition that it not hand out immunity like candy, and that it recommend prosecution when appropriate. But be sure to let him/her know about your position on that, too.
Apparently, an oath of office is not sufficient motivation. Let’s let them know what we think!
Bob in HI
dammit-tall .. the underpinnings for my pre-coital grant of good faith to the serving obamites are crumbling more each day … i’m down to 32% and fading … post-coitally ..
legally speaking:
dear serving obamites: “hey dudes?? where’s my change ??”
btw .. how do ya pronounce “bmaz” is it beam-azz or b-maaz ??
heh..heh ..
There’s a bigger context here, perhaps, although the evidence is purely inferential. Given that BushoCo is guilty of war crimes, crimes against humanity, and crimes against federal law, one would not have expected them to cede the presidency willingly. Indeed, a “self-coup” (indefinite postponement of elections, dissolution of Congress, rule by decree) might have been expected to have occurred. Yet none of that happened. Obama was peacefully sworn in as POTUS on 1/20/09, and, in form at least all seems well.
The only rational explanation for the peaceful transfer of power is that there was some sort of deal between BushCo and Obama. What sort of deal? Well just look at all the legal actions the Obama administration is not pursuing, and it’s pretty obvious, isn’t it.
Is this a price worth paying to preserve (the forms of) democracy in the US? Time will tell. But it’s not without precedent (see post-Reconstruction deals between North and South after 1877.)
bmaz, you (& our other hosts) each need a short bio page as while I know you have a bar license (state ??) & have read and appreciated your material for quite some time, there are new readers & a bio (for each) would be quite helpful WRT ‘where you’re coming from’. (unless it’s already here albeit somewhere…)
EW – loved your Rove & VP live commentary from a few years ago.
CHS – Thanx…
VP = Valerie Plaime
“bmaz, you (& our other hosts) each need a short bio page…”
If you’ll go upstream to the title of this or any other top post at the Lake, look at the author’s name right below the title. Click on that, and you’ll see where the bio stuff belongs. Even LHP, who is otherwise anonymous, has a paragraph of bio. But bmaz is bashful, and is not into tooting his own horn– well, let me rephrase that. Anyway, maybe someday he’ll assemble some of the clues dropped here at the Wheel house into a brief bio to post at the top of the page that his name links to.
Anyway, I don’t think I’m giving too much away if I mention that the ..az part of his handle refers to one of the 50 states. But if you’ve been paying attention here at the Wheel House, you’d know that already.
Bob in HI
bmaz’s Bio:
I was born in Babylonia
Moved to Arizona
I vote with the donkey
And I’m a total honky
Tut, tut. That doesn’t sound right ; )
Fifty days of the Obama administration channeling Gonzales/Mukasey and yet so few progressives seem to believe it. What the hell will it take?
As I said above, the inferential evidence points to the fact that Bushco made a deal with Obama.
Well, how about a million peasants marching in the streets of Washington, D.C. carrying pitchforks and torches. Short of that it seems clear nothing will change.
“Change you can’t believe in.”(TM)
“Change you can’t believe in.”(TM)
How about “Change you can’t buy anything with”? Nuthin but pennies and nickels.
or how about “Change that doesn’t amount to much”?
Or we could fall back on the French, Plus ca change, plus la meme chose?
Oh, dear. I’m being cynical. Time to go to bed.
Bob in HI
How about “change you wanted to believe in.”?
oh i love beam-azz .. he’s sharp as a tack and just as thorny .. and exactly the right blend of pithy and blasphemous .. a driller .. slasher .. logician .. a lymnist ..
and LHP .. gawd bless ’er .. explorer and diviner ..disector …
mary .. mary .. quite un-contrary [ but i’d avoid ’rubbing her the wrong way .. ] astute ..adamantine crystalizer .. a distiller
marcy .. another driller .. and a refiner .. parcer ..read-bewtween-the-liner extraordinare .. m’lady of loquacious lettters ..
and labdancer .. sighted rarely .. thus far defying reliable classification … [expert on the concept of ”funings” .. and literary licenses .. ]
thanks y’all it’s always an interesting and educational read .. and the snark here is usually weapons grade .. lol
Or “change you’d better count.”?
what’s most disturbing here is the fact that obama clearly sees this as something to defend for the previous administration and for himself
I don’t see this as a power obama (or anyone not interested in stealing) needs or cares about so I am left with the possibilty that he might have seen information that he thinks justifies the defending the administration or he has something to hide himself
I don’t know about defending the previous administration’s position; I think BobTheGeek may have a point re: this being a game of chess, but the challenge is whether the entities in play are all of them understood.
This case in the 9th could be a move that generates precedent against other, better cases in the future. The court could lay out all the reasons why they believe the Bush (and now Obama) administration were acting against Congress and the Constitution, “at lowest ebb” per Youngstown; this court might be the one to do the thorough job required in advance of other cases and in advance of any trip to the Supreme Court.
On the other hand, the concern I have is a wild card: the Parsky Commission surely has more than one purpose. Was Walker appointed after clearance by the commission? I can’t recall, but I can’t rule it out without digging.
IANAL, my conjectures are purely hypothetical meanderings pull out from goodness-knows-where.
Why is it that no one answers the question about whether Eric Holder (and by extension the Obama White House) has indeed extended control in the DoJ over these cases?
My clue is the fact that all of Bush’s US Attorneys are still in place.
When exactly did the transition take place? Just by the confirmation of Eric Holder everything the DoJ does in now Obamas, whether the dead enders are doing it because Holder can’t deal with everything all at once?
We need a diary that specifically examines this issue before we blithely assert that “Obama” did this or “Obama” did that. What is the evidence that Obama has indeed made these decisions or at the least approved of them?
Maybe the last sixteen years have made me very suspicious, but there are two many Republicans who still have a hand in what’s going on — from the lagging confirmation hearings to the remaining deadenders. It is very easy for me to suspect a strategy to divide folks like us from Obama in order to weaken Obama.
What is the evidence that Obama has indeed made these decisions or at the least approved of them?
First, the new Attorney General was sworn in on February 4th. He’s been in office for well over a month. Therefore the default, common-sense assumption is that filings made by the Dept. of Justice now, especially in high-profile, closely watched cases involving accountability for torture, reflect the new administration’s positions. A claim that these positions are being taken without Obama’s approval is an extraordinary one, and puts the burden of proof on the person making it.
As a good example of such a case, I would include Friday’s filing in Rasul v. Rumsfeld. President Obama has given every sign of reluctance for his DoJ to prosecute officials of the previous administration; I believe we’ve all heard that he “prefers to look forward”. This recent filing continues a pattern begun on Feb. 9 in Mohamed v. Jeppesen Dataplan of going further than that: preventing others — the victims of those officials’ crimes — from holding anyone accountable for them.
Now, the Mohamed v. Jeppesen Dataplan Inc. position did come less than a week into the new AG’s term. This, combined with the fact that Mr. Letter, the DoJ lawyer arguing the case was making the same Bushian broad claim of state secrets to get the case dismissed, caused the judges to ask your question, a far more appropriate one at that point. He replied that the change of administration had not made a difference in the government’s position in the case, and that his arguments had been approved by the appropriate people at the highest levels. Some Dept. of Justice officials have lied to federal judges on occasion in the last eight years, but I don’t believe that they make a habit of it. If AG Holder’s and Obama’s position in the case was not being reflected accurately by Mr. Letter, they certainly did not say so.
It had been made clear to the transition team back in November by the ACLU and others in the ‘100 Days’ campaign that the Mohamed case would be closely watched as a signal of the new administration’s position on accountability issues.
Civil liberties spokespeople and Obama supporters therefore predictably expressed surprise and horror at the new administration taking the remarkable step of abusing the state secrets privilege as a weapon to dismiss a case entirely (rather than letting the case go forward while retaining its right to claim state secrets privilege to protect certain pieces of evidence), an abuse Obama actually campaigned against. But did any reporter get Holder or Obama or anyone in a policy-making position to answer questions or offer an explanation on the record? They did not. Nor did AG Holder or Obama volunteer any.
How convenient for those who might wish to maintain the illusion, faintly credible at that point in the new administration, that The Leader was being outmaneuvered or undermined by low-level operatives.
Finally, Obama recently appointed a Bush-Yoo holdover to lead the task force reviewing detention issues and how to prosecute the few real criminals among the current detainees. Valtin has more details. This appointment is a case of direct approval. It remains to be seen what recommendations Weininger’s task force makes, but whatever they turn out to be, Obama is who set him to making them.
Having heard countless times the argument that Obama may be “hoping to lose the case” so that legal precedent is set against the very thing for which his DOJ is arguing, I wonder something simple: whether there is a single example in the history of Constitutional law where the DOJ has so argued — presumably with that motivation being exposed at a later date.
If it hasn’t taken place in Constitutional law, has it occurred elsewhere? Has any state or county or city ever so argued?
If there’s a precedent for it, how did it proceed, and how does it compare to this case?
If there isn’t, why on earth believe it’s going on here?
Let me just mention one very good reason not to argue for a case you hope to lose: you might win the case.
Certainly the arguments of the Obama DOJ on these matters are mostly identical to those of Bush. Certainly we can expect that the Bush DOJ had a very sincere interest in winning the case, and put forward their best arguments. It’s doubtful they would believe that they had no chance of winning the case with those arguments.
And if the Obama DOJ won the case which supposedly they wanted to lose, it would be the worst possible outcome: legal precedent exactly supporting the very thing they wanted to shoot down.
Finally a voice of reason appears. Thank you.
Well, there is always the possibility, however remote, that they are in fact “hoping to lose”, but either haven’t seriously considered the possibility that they’ll actually win, and how that would massively backfire, or that they are EXTREMELY confident that they’ll lose, such that the possibily of winning strikes them as so remote as to be worth the tiny risk that it entrails.
If so, I serious doubt that the former could be the case. Obama and Holder are not idiots, and only an idiot would fail to consider the possibility of losing and what it would mean in light of such a strategy. Which leaves the latter scenario. But if so, what could possibly convince them that winning was a near impossibility? Inside knowledge of some sort that would verge on separation of powers conflicts? A review of the legal cases being argued so far that convinces them that, based on precedent in these courts of jurisdiction, a win is absurdly unlikely? Extremely nuanced hints and winks at the court that would also raise separation of powers issues?
And in any case, they HAVE been losing, and yet keep plugging away, refining their arguments or coming up with new ones, and appealing to higher courts in ever more inventive ways. I thought that losing meant, um, losing. Or are they trying to systematically have every possible argument that could be made in favor of their position get shot down, to give such a loss as broad an impact on future cases as possible? Or, perhaps, are they trying to move these cases to the highest level of appeal as possible, preferably SCOTUS, to make their rulings as broad in terms of jurisdiction as possible?
I’m not ruling out that in their minds, they believe that they’re trying to do this. But it does raise all sorts of questions as to WHY.
Just to add to my point,
Shouldn’t those who argue that the Obama DOJ is trying to lose the case so that legal precedent is set be required to present a single case in relevant legal history that demonstrates that that technique has been employed?
One thing I can certainly report is that I have most definitely never seen such a case produced by any of those who suggest that that’s what’s taking place.
…waiter, I’ll have what the author is having…
Great work, bmaz.
I think that if more people would comment in support of the notion that Obama’s trying to lose these cases that we can cause a return to Babalonia.
If there was not already an outstanding action, I would agree. However, there was an outstanding McMurray case which begets the question of why not bring these issues as motions, or if you thought them that unique, amendments to the existing complaint. It is what other plaintiffs have done in this particular MDL consolidated case. As to the remainder, you know those judges better than I do, but I would take my chances here any day
Yeah, in other words, what he probably should have done is amended his complaint in the existing action. I think the suit may be a clever-clever attempt to forum shop. Or perhaps he’s trying to plead himself out of a problem he’s created in the existing action (which could, one would think, still be cured through amendment). Probably too clever. But if it’s truly a wholly separate and distinct cause of action — one that would not be dismissed on res judicata grounds because the plaintiff attempted to split his claims — then he’s within his rights in filing a new action, and he would have no choice but to file where he has venue, even if he wants to be in Walker’s court (and aside fromt he downsides of the Ninth Circuit in terms of credibility, there is an obvious upside to being in Walker’s court).
BTW, do you know anything about the lawyer(s)? I.e., do you have a sense the lawyer(s) is(are) bright and know(s) what she/he/they is doing, or do you get a sense of flailing about?
No clue on the lawyers on McMurray. I know a couple of ket plaintiff’s lawyers on the case out here, but none of the east coast guys. This is probably stupid, but one thought I had was convenience/laziness. The clerks office for SDNY is likely next door, or just down the street, from these guys’ NY office. Maybe they just filed it there knowing that it would be sent over. Okay, I am mostly joking here…..
No appeal, however it is addressable via an extraordinary writ. Not the easiest of avenues, but an avenue nevertheless. I can easily see the government seeking such a writ and pulling some national security mumbo jumbo in an effort to site the consolidation in the forum of their choosing. They would do it in a heartbeat if they felt slighted, and that would be a very cognizable argument under those circumstances I would imagine. There is also known to be back channel pressures placed on the assignment process, which is aided by the fact that, as you note, it is not the most transparent or common process extant. I don not have personal experience on this point, but have talked to those that do and so indicate.
I still arrive at the conclusion that the government was just fine with being sent to the 9th for consolidation. And I still find that to be a curious mistake on their part.
I suppose the All Writs Act is available, but addressed to whom? Who oversees the MDL Panel? No court I can see, other than the Supremes in their supervisory capacity over the the federal courts. I would love to see the brief in support of the writ: “To the Honorable Justices fo the U.S. Supreme Court. Please issue a writ of mandamus to the MDL panel to remove the case from Judge Walker’s docket on the ground that the Ninth Circuit cannot be trusted to issue a decision in a case involving national security. They are in fact granola-eating commies and traitors and should all be impeached (except our buddy Jay). And, dear justices, please send the case to the 11th Circuit, since the Fourth has gotten too liberal lately. Kthnxbai. Your BFF the DoJ.”
Have you seen the other shit they have pulled in this case? Spend a weekend reading the al-Haramain docket some time. Absurdly enough, the pleading you spoof is easily within their purview.
My capacity to be shocked is getting quite dulled but I might just do that just for amusement’s sake. The DoJ has really chucked Louis Brandeis for Lewis Carroll and Jerome Frank for Franz Kafka.
I’ve been up against DoJ Civil Appellate lately in a case that is quite a bit less freighted but still politically charged. And they have been astonishingly disingenuous if not dishonest.
This is just an article describing some of the shenanigans, you should see the pleadings behind the lot of it. Most of the worst ones have been filed under seal from what I am told by the folks I know involved. The ones available on PACER are plenty amusing and infuriating though.
http://www.salon.com/opinion/f…..index.html
ZOMG! Thanks for the link. I now rememberthat piece (I read it last year and just hadn’t made the link with the discussion of all the consolidated cases). We have definitely gone down the rabbit hole, become Josef K, lost ourselves in Bleak House — you name the metaphor. That the DoJ has not walked into Walker’s court in sackloth and ashes and contritely disavowed every argument and every action it has taken in the case — and asked for a 3-month stay within which to reach new, and different positions on every issue — should be to Constitutional Scholar Obama an indelible stain.
I knew I should have taken the Blue Pill.
You mean ‘tack’ or ‘tactic’. And if he had started this case, you might be right about the impeachment. His administration has just been caught up in it. They didn’t start it. Has it occured to anyone that there might be other information that needs to be protected, that wasn’t the result of criminality?