Brandon Mayfield Gets Hosed By The 9th Circuit

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As Fatster noticed, the Ninth Circuit has ruled against Brandon Mayfield on his attempt to hold the PATRIOT Act declared unconstitutional under the Fourth Amendment.

Mayfield was a former suspect in the 2004 Madrid train bombings. After the Madrid bombings, the Spanish National Police (“SNP”) recovered fingerprints from a plastic bag containing explosive detonators. The SNP submitted digital photographs of the fingerprints to Interpol Madrid, which subsequently transmitted them to the FBI in Quantico, Virginia. The FBI searched fingerprints in its system and, among other possibilities, produced Mayfield, an US citizen and lawyer from the Portland Oregon area, as an alleged match. FBI surveillance agents began to watch Mayfield and follow him and members of his family when they traveled to and from the mosque, Mayfield’s law office, the children’s schools, and other family activities. The FBI also applied to the Foreign Intelligence Security Court (“FISC”) for authorization to surreptitiously place electronic listening devices in the Mayfield family home; searched the home while nobody was there; obtained private and protected information about the Mayfields from third parties; searched Mayfield’s law offices; and placed wiretaps on his office and home phones. The application for the FISC order was personally approved by John Ashcroft, then the Attorney General of the United States.

The Spanish SNP, however, looked at the FBI evidence and found it lacking evidentiary credibility. In spite of this fact, the FBI submitted an affidavit to a US Federal court, stating that experts considered the identification of Mayfield 100% positive, intentionally failing to advise that the SNP had reached a diametrically opposite conclusion. As a result, Mayfield was arrested and held on a material witness warrant, and the public informed of his identity and supposed involvement in the bombings. Over two weeks later, the SNP conclusively matched the fingerprint to an unrelated Algerian citizen and Mayfield was absolved. Mayfield sued the US Government under numerous theories including that the PATRIOT Act was unconstitutional under the Fourth Amendment. The government, being in an egregiously bad position, settled with Mayfield and even allowed the unusual provision that he could maintain the Fourth Amendment challenge to PATRIOT, but could only obtain declaratory relief, not monetary damages.

Mayfield pressed his complaint seeking a declaration that PATRIOT was unconstitutional under his stipulated facts, and the District Court of Oregon, in denying the government’s motion to dismiss and granting Mayfield’s motion for summary judgment, agreed with Mayfield and ruled in his favor. The government appealed to the 9th Circuit arguing that the trial court had no jurisdiction because Mayfield had already been compensated, that the court erred in finding PATRIOT unconstitutional and that other matters, in totality, placed the matter outside of the court’s power to award redress. These arguments were proffered by the government in spite of it having knowingly and specifically agreeing that Mayfield intended to raise and argue said issues and agreeing in their unusual settlement agreement to let him do so.

The usually enlightened 9th Circuit, this time took it upon itself to contrive and contort a way Read more →

Dana “Pig Missile” Perino to Help Oversee TV Marti

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I realize that Mitch McConnell really pushed Obama to do this. (h/t SE)

Still, there seems an inherent–and glaring–problem with appointing Dana Perino to serve on the Broadcast Board of Governors. It’s this:

Created in 1994, the BBG oversees all of the US government’s non-military international broadcasting outlets, including Voice of America, Alhurra television, Radio Sawa, TV Marti, Radio Free Asia and Radio Free Europe. [my emphasis]

As you’ll recall, Perino admitted on “Wait Wait Don’t Tell Me” two years ago that she didn’t know what the fuck the Cuban Missile Crisis was:

“I was panicked a bit because I really don’t know about . . . the Cuban Missile Crisis,” said Perino, who at 35 was born about a decade after the 1962 U.S.-Soviet nuclear showdown. “It had to do with Cuba and missiles, I’m pretty sure.”

So she consulted her best source. “I came home and I asked my husband,” she recalled. “I said, ‘Wasn’t that like the Bay of Pigs thing?’ And he said, ‘Oh, Dana.'”

So now Obama is about to make her one of the people overseeing our propaganda outlet blasting into Cuba.

FAA and NORAD Changed Records to Accord with Cheney Lies

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A senior Counsel for the 9/11 Commission, John Farmer, has written a book exposing the degree to which our response to 9/11 was disorganized and outdated–geared to respond to an attack from Russia rather than from terrorists. Most significantly, Farmer reveals that FAA and NORAD altered their chronologies of the day only after a briefing at the White House.

Perhaps nothing perturbs Farmer more than the contention that high-ranking officials responded quickly and effectively to the revelation that Qaeda attacks were taking place. Nothing, Farmer indicates, could be further from the truth: President George W. Bush and other officials were mostly irrelevant during the hijackings; instead, it was the ground-level commanders who made operational decisions in an ad hoc fashion.

[snip]

Yet both Deputy Defense Secretary Paul Wolfowitz and Vice President Dick Cheney, Farmer says, provided palpably false versions that touted the military’s readiness to shoot down United 93 before it could hit Washington. Planes were never in place to intercept it. By the time the Northeast Air Defense Sector had been informed of the hijacking, United 93 had already crashed. Farmer scrutinizes F.A.A. and Norad rec­ords to provide irrefragable evidence that a day after a Sept. 17 White House briefing, both agencies suddenly altered their chronologies to produce a coherent timeline and story that “fit together nicely with the account provided publicly by Deputy Defense Secretary Wolfowitz and Vice President Cheney.”

We’ve know for a long time that the FAA records, in particular, were politicized. Given already documented proof that Cheney lied to hide the fact that he violated the chain of command on 9/11 it’s not surprising that that politicization served Dick Cheney’s false narrative of leadership.

But we can add this book to the long list of proof that Cheney’s a big liar trying to hide his own incompetence.

Obama DOJ Declines To Support Legality Of Bush Surveillance Program

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Hot on the heels of the Telephone Immunity Secrecy Blob, today the 2nd Circuit Court of Appeals heard oral argument on Wilner v. NSA and DOJ, a FOIA case wherein the Center for Constitutional Rights is seeking disclosure of evidence of clandestine surveillance of attorney-client conversations between detainees and their counsel. The CCR issued this press release today:

The Court of Appeals heard arguments today in the Center for Constitutional Rights (CCR) warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argued that the executive branch must disclose whether or not it has records related to wiretapping of privileged attorney-client conversations without a warrant.

Said Kathryn Sabbeth, Assistant Professor of Law at the University of North Carolina at Chapel Hill School of Law, who argued the case, “No argument could be made that targeting American lawyers on American soil to obtain information about their clients was legal, and indeed when counsel for the government was pressed for an explanation he offered none.”

The rights attorneys appealed the government’s Glomar assertions, meaning its refusal to either confirm or deny the existence of records sought in Freedom of Information Act (FOIA) litigation relating to the NSA warrantless wiretapping program and surveillance of attorneys representing detainees at Guantánamo.

“Our work with our clients may have been deeply compromised by illegal surveillance carried out by the last administration,” said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative. “The new administration has no legal basis for refusing to come clean about any violations of attorney-client privilege by the NSA.”

During arguments, the government’s counsel stated, “We take no position on the legality of the TSP,” referring to the Bush administration’s Terror Surveillance Program.

The case is a FOIA lawsuit on behalf of 23 attorneys, including CCR staff attorneys Gitanjali S. Gutierrez and Wells Dixon, law professors, and partners at prominent international law firms, who believe they may have been the subjects of the NSA’s warrantless wiretapping program authorized by the prior administration shortly after September 11, 2001. CCR, the Institute of Public Representation at Georgetown University Law Center and the Chicago law firm Butler Rubin Saltarelli & Boyd filed the case in the U.S. District Court for the Southern District of New York on May 17, 2007. The district court ruled the NSA could refuse to say anything either confirming or denying the existence of any related materials because to do so “would reveal information about the NSA’s capabilities and activities.”

Plaintiffs argued Read more →

Feinstein Issues Statement On IG; Misunderstands Army Field Manual

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Senator Dianne Feinstein of California has issued an official statement "On Release of Documents Related to CIA Interrogation and Detention Program and Renewed Commitment to Army Field Manual Standard for Interrogations":

“The documents released today provide evidence that the CIA detention and interrogation program exceeded its authority as follows:

· Beating a detainee in Afghanistan, who later died in custody, with a heavy flashlight;
· Threatening a detainee with a handgun and a power drill;
· Staging a mock execution;
· Threatening to kill a detainee’s family;
· Choking a detainee to the point of unconsciousness;
· Applying waterboarding in ways that beyond what the Office of Legal Counsel had authorized, and not informing OLC of how waterboarding was being done in practice prior to the Inspector General’s report.

The IG report also noted a case in which the interrogators at a ‘black site’ recommended ending the use of enhanced interrogation techniques on a detainee, but were overruled by officials at CIA headquarters and told to resume waterboarding the detainee.

I first learned of this and other IG reports, starting in September of 2006. I expressed significant concern with the program and introduced legislation in 2007 to limit CIA interrogations to techniques authorized by the Army Field Manual. This provision was passed by Congress in 2008, but was vetoed by President Bush. I reintroduced this legislation in January.

President Obama has committed to requiring that the CIA only use the proven and effective interrogation techniques authorized by the Army Field Manual, and I strongly agree with that position.

The Senate Intelligence Committee is conducting a comprehensive, bipartisan study of all aspects of CIA’s detention and interrogation program. This study includes how the program was created and operated, how it was briefed to the Congress and other parts of the Executive Branch, its compliance with guidance from the Department of Justice, and the information produced. The study is ongoing. We have reviewed thousands of documents on a number of high-value detainees, and will review the cases of all such detainees.

The Committee’s study will continue until we complete our work, regardless of any decision by Attorney General Holder on whether to proceed to a criminal investigation. I Read more →

Why Send Andy Card and Frances Fragos Townsend to Rebut Ridge?

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Mary reminded me that I wanted to comment on the Bush Administration’s response to Tom Ridge allegation–or rather, confirmation–that the terror alert system was politicized. Politico tells us that when the  were asked about Ridge’s allegation they–apparently all of them–referred reporters to Frances Fragos Townsend and Andy Card.

Ridge did not respond to numerous requests for comment from POLITICO and a number of former top political and national security officials within the Bush administration declined to respond to Ridge, referring POLITICO to Card and Townsend.

Don’t you think that a little odd? That "a number of former top political and national security officials" would all tell reporters to speak to Townsend and Card? Particularly since, as Card Townsend tells it, he didn’t know Ridge was writing a book?

“I didn’t even know Tom was even really writing a book,” said Card.

So what you’re left with is Card claiming he never saw Bush overriding the decisions of the National Security Council and Department of Homeland Security, which is different than saying those in NSC didn’t push Ridge towards certain decisions. You’ve got Townsend, the woman whom the Bush Administration didn’t read into the warrantless wiretap program even though it was a core function of her job, claiming that (as with Jim Comey) she never saw any pressure exerted on Ridge.

“Never in my experience did I see any political influence exerted on the cabinet secretary.” 

And you’ve got Andy Card, the guy who, seven years ago, was just rolling out the September new product, claiming the Bush Administration never let politics influence national security decisions.

“We went over backwards repeatedly and with great discipline to make sure politics did not influence any national security and homeland security decisions,” former White House chief of staff Andy Card told POLITICO. “The clear instructions were to make sure politics never influenced anything.” 

If this is the best the Dead-Enders can do to rebut Tom Ridge, I expect Ridge will be having a long and very profitable book tour. Because this response is simply not credible.

Update: Card/Townsend error fixed.

Random Thoughts On The Purgegate Document Dump

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Eric Lichtblau and Eric Lipton have an article on the Purgegate document release in today’s New York Times. There were a few paragraphs by the two Erics that stood out to me:

Aides to former President George W. Bush have asserted that the Justice Department took the lead in the dismissals, which set off a political firestorm that lasted months. Mr. Rove played down his role in the firings in a recent interview and in closed testimony last month before Congressional investigators.

Well that was clearly a pack of lies; let’s call it what it is fellas.

“The amount of backstabbing and treachery involved is just breathtaking,” Mr. Iglesias said of the White House e-mail, in an interview on Tuesday. “It’s astounding that without reviewing the evidence or talking to the F.B.I. or anything, the White House would assume that these were provable cases and that I needed to file them for the political benefit of the party. That’s not what U.S. attorneys do.”

Hey Dave, they didn’t give a damn if the charges were provable, they just wanted them filed to prejudice Democrats before the election. Iglesias was wronged here, but he keeps consistently soft pedaling what occurred so as to remain a good Republican, and the distinction is a critical and clear one. It wansn’t that they "assumed provable cases"; they just didn’t care about the sufficiency of the charges. I really like Iglesias in a way, but this isn’t the first time he has treaded too lightly, he was all mushy over Scott Bloch too. Enough.

Robert Luskin, a lawyer for Mr. Rove, said the material released Tuesday demonstrated that there was “absolutely no evidence” the White House had used inappropriate political motivations to punish federal prosecutors. Mr. Luskin said Mr. Rove and other White House aides were legitimately concerned about voter fraud and were debating “completely reasonable and legitimate policy questions.”

Gold Bars is such a total tool. And man does he get around with the media outlets. Does he rent space at all of them or something?

Bush administration officials have publicly suggested that Mr. Iglesias was dismissed because of a subpar performance and absences from the office — he was a Navy reservist.

Those issues do not surface in the newly released e-mail. Rather, the dissatisfaction of New Mexico Republicans over the investigations was the focus in 2005 and 2006. Nonetheless, one message shows that the White House was told that the Justice Department planned to say the New Read more →

Gonzales and Bush Haven’t Spoken

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It has been pretty apparent, given Alberto Gonzales’ utter failure to stumble on any wingnut welfare since resigning, that the Bush camp hasn’t been helping him out much.

But an interview in the NYT shows just how much relations between Gonzales and Bush have chilled.

Do you still talk to President Bush?
I have not spoken with the president since he left office.

Have you ever been tempted to pick up the phone and say hi to him?
I do, of course, think about our time together, and there are times when I think about doing that. But listen, I know that he has his life to live. I’ve got challenges and my life to live as well.

This of course means Gonzales has not been invited to Bush’s legacy planning meetings (not surprisingly). But it also means Gonzales hasn’t even bumped into Bush in over six months. That would be hard to do, if Gonzales were traveling normal Texas Republican circles.

I’m particularly interested in Gonzales’ representation of the timing of this: he says nothing about whether he spoke to Bush before he left office. I wonder whether something happened at the end to make Gonzales clam up? Did Gonzales, for example, ask for a little Bushie pre-emptive pardon, just like Cap Weinberger got?

Add in Gonzales’ whining about his legal bills–and the suggestion that Bush and Cheney have not been forthcoming to help with them–and it all seems to reinforce the notion that Bush has sacrificed Gonzales to legal problems he has at least partly because of larger Bush Administration actions.

Have you asked Bush or Cheney to help defray your legal bills?
I have not asked them personally.

I think you should ask them. They got you into this pickle. Shouldn’t they help get you out?
Listen, I have a group of supporters that are helping me fund-raise. They’re making decisions about how to do this successfully.

What are your legal bills like?
Substantial. I’ll say that obviously it’s been a burden. We did establish a legal-defense fund, and we have raised and are in the process of raising additional monies to pay for the lawyers.

But then, Gonzales has been whining about his bills for some time, to no avail. 

Read more →

The Yoo Tumor

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John Yoo is a cancer on the Constitutional body politic of the United States, and he won’t go away. For some inexplicable reason, Carrie Johnson, and her editors at the Washington Post, have decided to fluff the one man self rationalization and obfuscation tour Yoo has been on as of late:

Some public figures, if their judgment and ethics come under fire, retreat into solitude. Then there is John C. Yoo.

The former Justice Department official, whose memos blessed the waterboarding of terrorism suspects and wiretapping of American citizens, has come out fighting, even as negative assessments of his government service pile up.

Last month, a federal judge in California refused to dismiss a lawsuit that accuses Yoo of violating a detainee’s constitutional rights. This month, the Justice Department’s inspector general described Yoo’s legal analysis of the Bush surveillance program as "insufficient" and sometimes inaccurate. Also expected in coming weeks is a department ethics report that sources have said could renounce Yoo’s approval of harsh CIA interrogation practices and recommend that he and Jay S. Bybee, a former colleague, be referred to their state bar associations for discipline.

While former colleagues have avoided attention in the face of such scrutiny, Yoo has been traveling across the country to give speeches and counter critics who dispute his bold view of the president’s authority. Now a law professor at the University of California at Berkeley, he engages in polite but firm exchanges with legal scholars over conclusions in their academic work. This month, he wrote an opinion piece in the Wall Street Journal defending his actions and labeling critics’ arguments as "absurd" and "foolhardy" responses to "the media-stoked politics of recrimination."

There is nothing whatsoever new in the story, save perhaps for the information that even if the long delayed OPR Report recommends bar discipline against Yoo, he is unlikely to suffer any consequences because the only state he is licensed in, Pennsylvania, has a five year statute of limitations on ethics infractions. Johnson and the Post, of course, do not discuss whether the Pennsylvania statute may have been tolled because the information was not publicly available for a good deal of the time.

The Post article is beyond disingenuous with the way it blithely equates the pros and cons of Yoo and his work. It even points out the recent decision in Federal court in NDCA by Judge Jeffrey White without noting in any detail that Read more →

The US Government Owns Abu-Zubaida’s Thoughts

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I just found an interesting article by Walter Pincus tucked away in the lower half of the Washington Post website. It contains no new or breaking news, but is an interesting description of just how far the government has run amok in their over-classification and demand to control information flow to the American people and the world.

Abu Zubaida’s writings are being used against him but being withheld from the public. For example, within days of the Sept. 11, 2001, attacks, according to a summary of his diary entry read aloud at his military tribunal hearing on March 27, 2007, the Palestinian detainee wrote that he was buying and storing weapons as part of a plan that Osama bin Laden devised in expectation of U.S. military action.

At the tribunal hearing, which was designed to inform Abu Zubaida of the charges against him, a summary was read of an entry from early 2002 in which he wrote that he would wage war against the United States, using explosive attacks, attacking gas stations and fuel trucks.

In all, Abu Zubaida has nine handwritten volumes of diaries. Six of them, totaling about 1,500 pages, were written before he was captured, and three were composed after his capture. So far, the government has kept all nine volumes sealed, though they are apparently considered unclassified. Even the government’s court motion on their status has remained sealed.

Marcy discussed the initial rumblings of this back in May when Abu Zubaida’s attorneys first raised the matter. It was at that point the government admitted it could not or would not produce key volumes of Abu Zubaydah’s diaries in preparation for his Combat Status Review Tribunal hearing. As Marcy noted:

The whole filing is worth reading for the Kafkaesque situation it describes, in which AZ, whose memory is described to be completely dysfunctional, has been refused the sole record he has of the events of which he has been accused, even though at least three of those accusations come directly from his diary.

Abu-Zubaida’s attorneys, because of the hyper degree of over-classification by the government, cannot fully discuss their case with their client, cannot discuss information learned from their client with their own investigators, experts and other potential witnesses, and cannot correct lies and misinformation the government has put in the public record about their client. This is a gross and intentional invasion of the attorney-client relationship and a denial of full and effective assistance of counsel.

How exactly has the government (yes, again it is both Bush and Obama, a oneness no longer shocking) effected this information and thought seizure?

While the executive order authorizing classification requires the information to be "owned," "produced," or "controlled" by the U.S. government, Abu Zubaida’s attorneys say the Justice Department has made a novel argument, that "to detain a prisoner creates a new, parallel authority to classify any and all utterances made by that prisoner for the period he is incarcerated." "Control" means government control over the agency that originates the information, not control over Abu Zubaida "by virtue of Read more →