Judicial Ethics in the Gulf: Judge Feldman’s Conflicts and DOJ Malpractice

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Last week Federal district court judge Matin Feldman of the Eastern District of Louisiana (EDLA), in what has become a controversial decision, overturned the six month moratorium on deepwater oil drilling imposed by the Department of the Interior. It was a legally curious decision to start with as it, on its face, appeared to be contrary to the well established standard of review.

Almost immediately from the time Judge Feldman’s decision hit the public conscience, information on Feldman’s undisclosed (at least on the case record at issue) financial ties to the oil and gas exploration industry started coming out of the woodwork. From Saturday’s Washington Post:

The federal judge who presided over a challenge to the Obama administration’s six-month moratorium on deepwater oil drilling simultaneously owned stock in an oil company affected by the ban, according to a financial disclosure statement released Friday.

U.S. District Judge Martin L.C. Feldman sold the stock in Exxon Mobil 14 days after the case was filed in New Orleans by a group of oil service firms — and less than five hours before he struck down the moratorium.

Feldman said in a statement elaborating on the disclosure that he was unaware of his holdings in Exxon Mobil and a smaller oil company until 9:45 p.m. Monday, the day before he issued his ruling.

“Because he remembered that Exxon, who was not a party litigant in the moratorium case, nevertheless had one of the 33 rigs in the Gulf, the judge instructed his broker to sell Exxon and XTO [Energy Inc.] as soon as the market opened the next morning,” according to a statement released by his chambers and reported by Bloomberg News.

Even before this latest disclosure, Feldman was criticized by environmental groups and others for not recusing himself from the case. The groups pointed to his 2008 disclosure form, which showed that he had invested in companies involved in offshore oil and gas exploration.

So Judge Feldman not only held numerous oil and gas interest stocks, but was trading them up to and including the morning of his fateful decision, and doing so out of an admitted realization that he had an appearance of ethical conflict. Feldman owned and was trading Exxon stock, a company whose Gulf of Mexico rigs were losing money at the rate of a half million dollars a day due to the moratorium, during the entire time he was assigned the case. Yet, failing to disclose his appearance of conflict on the record or recuse, Feldman nevertheless proceeded to issue a questionable decision clearly benefitting the oil and exploration industry he is so invested in.

Lest there be any confusion that perhaps Judge Feldman somehow put himself in the clear by suddenly selling off his holdings in Exxon on the morning of June 22 just hours before issuing his surprising opinion Read more →

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Obama Monty Hall To Give Lovely Parting Gifts To BP Death Victims

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The title pretty much tells the tale. It was just stated on The Ed Schultz Show on MSNBC that:

Family of 11 victims of the Deep Horizon explosion to visit White House next week.

Well, that is just swell.

On the day a forlorn paucity of the media belatedly report on the deceptive collusion that the US Government and BP have been sitting on physical evidence, and factual conclusions drawn therefrom, contained in the full set of video feeds they both have been viewing from the outset of the BP Macondo/Deepwater Horizon blow out, we learn the White House is suddenly going to submit to external pressure and grant the victims of the BP/Deepwater Horizon homicides a walkby meet and greet ceremonial dog and pony show. After nearly two weeks of the victims screaming they have been forgotten, the audience has been approved from on high.

How refreshing. I hope the bereaved at least get an official White House coffee cup and Presidential keychain for their participation.

This is just wrong. It is not wrong for Obama to meet with the relatives and next of kin to the wrongfully deceased of an American natural disaster. It is wrong they had to beg for it, wrong it is being sold like a new product release, and wrong it is used as a convenient image makeover for an Obama Administration recalcitrant to treat mass scale criminal, and wholesale recklessly wanton environmental behavior as what it really is.

Think this is an exaggeration? Just wait and watch. Let me know when there is individual criminal liability where it belongs, as opposed to an inbred with the corporate culture, wink and nod plea and fine scheme in collusion with BP, Transocean, Halliburton and/or their powerful lobbyists. You know, criminal prosecution of the truly criminally negligent actors and authorities. The ones making the imminently foreseeable, cold, craven and disastrous decisions precipitating the needless death of eleven souls and the biggest environmental disaster in the history of the United States. Not the kind of cozy package deal the US government is known for giving BP when they have wreaked wholesale death and environmental destruction.

I do not presume to speak for the Deepwater deceased and their survivors; but I find it hard to believe they would not rather the President and American government show they will no longer accept the absent regulatory effort, coddling of profit before morals corporate greed, and “looking forward” blind ignorance of accountability for dereliction and destruction of the ethos we should, and claim to, stand for. The dead and their relatives are entitled to better than is given the latest basketball team to win a championship.

Mr. Obama, show the victims of the negligent homicide at Deepwater Horizon you have something more than meager food for souls forgot.

[Graphic from Rachel Maddow Show via Jalopnik]

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UN Special Rapporteur Condemns America’s Killer Drones

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One of last Friday’s big stories somewhat lost in the hustle and focus on the BP Gulf oil disaster and the holiday weekend concerned the continuing outrage of the US drone targeted assassination program. Specifically, Charlie Savage’s report at the New York Times that the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, was expected to issue a report calling on the United States to stop Central Intelligence Agency drone strikes thus “complicating the Obama administration’s growing reliance on that tactic in Pakistan”.

Today, the report is out, and Charlie Savage again brings the details in the Times:

A senior United Nations official said on Wednesday that the growing use of armed drones by the United States to kill terrorism suspects is undermining global constraints on the use of military force. He warned that the American example will lead to a chaotic world as the new weapons technology inevitably spreads.

In a 29-page report to the United Nations Human Rights Council, the official, Philip Alston,the United Nations Special Rapporteur on extrajudicial executions, called on the United States to exercise greater restraint in its use of drones in places like Pakistan and Yemen, outside the war zones in Afghanistan and Iraq. The report — the most extensive effort by the United Nations to grapple with the legal implications of armed drones — also proposed a summit of “key military powers” to clarify legal limits on such killings.

In an interview, Mr. Alston, said the United States appears to think that it is “facing a unique threat from transnational terrorist networks” that justifies its effort to put forward legal justifications that would make the rules “as flexible as possible.”

Here is Alson’s official report.

Interestingly, Alston’s report comes hot on the heels of the news the biggest get yet for the Obama drone assassination program, Al-Qaida Number Three (or at least the latest Number Three) Mustafa Abu al-Yazid. But Alston, although indicating that al-Yazid migh could be distinguished because of the direct al-Qaida status, nevertheless expressed reservations even is such situations.

For example, it criticized the United States for targeting drug lords in Afghanistan suspected of giving money to the Taliban, a policy it said was contrary to the traditional understanding of the laws of war. Similarly, it said, terrorism financiers, propagandists and other non-fighters should face criminal prosecution, not summary killing. Read more →

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BP’s LMRP: Claws, Craws, Saws and Jaws

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As you undoubtedly know by now, BP has failed miserably at every “fix” they have attempted so far. There is growing evidence of what a total sham exists in the craven use by BP of any number of subsidiaries to insulate itself from criminal and civil liability.

But right now the focus is on the ongoing LMRP attempt that BP now is warning could drag on from four days to a week. Many of you have been keeping up the monitoring of this back on the previous Top Hat and Tails: BP Has Yet Another “Solution” thread from Sunday. Please continue that discussion and reporting here.

One other thing I would like to point out; despite making a big dog and pony show of its commitment to speak with a single voice, Thad Allen, and quit making a media show of parading a series of Cabinet Officers down to the Gulf in a vain attempt to look like they are on top of things, the Obama Administration is …. wait for it …. making a media show of sending Attorney General Eric Holder down to the Gulf to make it look like they are on top of things. From Reuters:

Attorney General Eric Holder will survey the damage from the Gulf Coast oil spill on Tuesday and meet with federal prosecutors and state attorneys general, the Justice Department said on Monday.
…..
After a tour and briefing by the U.S. Coast Guard, Holder will meet with the state attorneys general from Louisiana, Alabama and Mississippi as well as U.S. attorneys from those states. Holder is also scheduled to speak to reporters in New Orleans.

The Justice Department has already demanded that the companies involved in the spill, including BP Plc, Transocean Ltd and Halliburton Co to preserve paperwork related to the accident that could become part of an investigation.

Experts have said the Justice Department was likely eyeing potential violations of the Clean Water Act, the Endangered Species Act, the Migratory Bird Treaty Act and the Refuse Act.

Notice what is missing from that last paragraph? There is no mention of prosecution under the negligent and/or reckless provisions of the Federal manslaughter law for the eleven deaths occurring on Deepwater Horizon as a result of BP’s willful and wanton conduct. The article mentions the deaths, but the Obama Administration and Holder DOJ never does. When it comes to talk of potential accountability, it is like the eleven deaths never happened to the Obama Administration. But hey, there are business interests and military fuel contracts they must protect and, clearly, that takes precedence for this Administration.

[Graphic – BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]

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BP Criminal Liability Working Thread

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Jason Leopold and I have both been going head on at the DOJ and Obama Administration over the issue of criminal treatment for BP and its actions in causing the Gulf disaster; see: here, here, here and here. One of the thoughts has regarded the DOJ’s ability to leverage one or both of the Federal criminal probation matters BP is currently operating under for past crimes.

One case was for the Alaska spill and BP was placed on criminal probation for three years starting in December 2007. The other case was a felony plea resulting from the Texas City Refinery explosion. Here is the plea agreement from the Texas City Refinery case and here is the concurrent statement of facts in support thereof.

The key to unlocking where we stand on this is understanding the exact relationship, and how clearly defined it is, between the parent company “BP Plc.”, the Texas City criminal defendant entity “BP Products North America Inc.” and the Alaska criminal defendant entity “BP Exploration (Alaska) Inc. Also, what exact names are on the permits and leases for the Macondo well project? How do all these fit together and can we pierce these alter egos and reasonably argue that the parent entity BP Plc. is legally, including criminally, liable for all?

So this is a crowdsourcing game for one and all that are interested in helping. If we can dissect this bull manure for the cute liability dodge sham it is, maybe we can gain some traction. Put any thoughts, links, cites and results of your work in the comments. Many of you are a lot better at drilling into corporate entities than I am, so thanks for the help!

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BP Criminals In The Gulf

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The major media and rest of the country are catching on to what should have been patently obvious from the start, i.e. the discharge from the BP Deepwater Horizon catastrophe in the Mississippi Canyon offshore oilfield in the Gulf of Mexico is many factors larger than was being disclosed by either the relentlessly dishonest BP or the US government partnering with them in the disaster response. But while the public attention has been focused on the Top Kill well closure attempt and the mind numbing spill cam BP was finally forced to “allow” the public to see, hearings have been proceeding in not only Congress as covered by Emptywheel (see here and here), but also in Kenner Louisiana in front of a joint Coast Guard/MMS Federal inquiry board.

There have been startling revelations, especially out of the Kenner joint inquiry. The New Orleans Times Picayune is once again on a path to a Pulitzer for their disaster coverage and has given comprehensive coverage from Kenner and The Hill in Washington. Here are some items from the evidence set being adduced in Kenner and Congress:

The failed blowout preventer on the Deepwater Horizon oil rig had a hydraulic leak and a dead battery in one of its control pods, and testing in the hours before an April 20 explosion revealed that pressure in the well was dangerously out of whack.

While some data were being transmitted to shore for safekeeping right up until the April 20 blast, officials from Transocean, the rig owner, told Congress that the last seven hours of its data are missing and that all written logs were lost in the explosion.

Heavy drilling fluid was unconscionably replaced with lighter seawater against industry standards just prior to the blowout. Over heated objections by experts on the scene, BP management supervisors overruled drillers, and insisted on displacing the mud with seawater

The broken blow out preventer had not been inspected in over five years.

BP was in a severe economic and time crunch to finish the job quickly and were over six weeks behind schedule.

Immediately leading up to the explosion, BP used procedures that violated their own drill plan; and in spite of indications of a “very large abnormality,” kept testing until they got something they could disingenuously claim fulfilled the test.

BP management supervisors refused to run the comprehensive cement bond log test, a definitive test of the integrity of a well’s cement mandated by Federal Regulations if there are concerns with the results of negative and positive pressure Read more →

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The OTHER 2002 Jay Bybee Opinion

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The WaPo reports that the Obama Administration might be impeded from filing a suit against the AZ anti-immigrant law because of a 2002 Jay Bybee Memo holding that local police have the authority to detain people for both civil and criminal violations of Federal immigration law. It pitches the story as the Obama Administration being constrained by a Bush Administration reversal of a Clinton Administration position.

In the legal battle over Arizona’s new immigration law, an ironic subtext has emerged: whether a Bush-era legal opinion complicates a potential Obama administration lawsuit against Arizona.

[snip]

The 2002 opinion, known as the “inherent authority” memo, reversed a 1996 Office of Legal Counsel opinion from the Clinton administration. “This Office’s 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken,” says the 2002 memo, which was released publicly in redacted form in 2005 after civil rights groups sued to obtain it.

Though that doesn’t account for the fact that the 2002 opinion not only explicitly reverses that 1996 memo, but also dismissed doubts raised in 1989 in an OLC memo authored by Douglas Kmiec.

Indeed, the only contrary suggestion [as to whether local police can enforce federal statutes] of which we are aware is contained in a footnote in a 1989 opinion of this Office. In that footnote, after stating that “it is not clear under current law that local police may enforce non-criminal federal statutes” and tbat any exercise of authority granted under state law “would necessarily have to be consistent with federal authority” we opined that “unlike the authorization for state and local involvement in federal criminal law enforcement, we know of no similar authorization in the in the non-criminal context.” Memorandum for Joseph R. Davis, Assistant Director, Federal Bureau of Investigation, from Douglas W. Kmiec, Assistant Attorney GeneraI, Office of Legal Counsel, Re: Handling of INS Warrants of Deportation in relation to NCIC Wanted Person File at 4 & n.11 (Apr. 11. 1989) (“1989 OLC Opinion”) (emphasis added).

Why does Poppy Bush hate W?

In any case, the WaPo’s discussion does ignore Eric Holder’s suggestion in an exchange with Judy Chu last week (from around 2:54:40 to 2:56:25) that DOJ is considering the 2002 OLC opinion in its larger review of the Arizona law.

REP. CHU: Well, in 1996, the Office of Legal Counsel concluded that the state and local police lacked legal authority to detain individuals solely on the suspicion of being in the country illegally; however, in 2002, Assistant Attorney General Jay Bybee, issued an Office of Legal Counsel memorandum concluding that federal law did not preempt state police from arresting aliens on the basis of civil deportability.

Have you officially asked the Office of Legal Counsel to review this policy?

MR. HOLDER: Not as yet, but the part — as we go through our review, one of the things that has to be taken into account is the 2002 opinion that you referenced, its continued viability, whether it is a correct assessment of the law, that is all a part of what our review team will be — is in fact, looking at.

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The Flaming Hypocrisy Of US Terrorist Designation

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[Note Update Below]

On the fateful September 11, 15 men from Saudi Arabia, along with four others, perpetrated the attacks on the World Trade Center in New York. Since that time, the United States has invaded Afghanistan and Iraq in response with hundreds of thousands dead in the process. Saudi Arabia was not only never considered as an enemy, its citizens were spirited out of the country while US citizens were grounded.

Also since then a list longer than you can measure of countries and/or entities have been designated as global terrorists by the United States government. One of those so designated is al-Haramain of Oregon, who happens to be the root plaintiff in the critical litigation – pretty much the sole remaining substantial hope of challenging the incredible, illegal and unconstitutional executive power grabs by the Bush/Cheney Administration now hypocritically supported and adopted by the Obama Administration.

In spite of the fact there has never been any substantive link to terrorism, much less September 11, on the part of al-Haramain Oregon, the US government has steadfastly maintained it on the designated list. Now maybe al-Harmain was, and maybe it was not, even remotely involved in terrorism in any provable way; however the one irreducible fact is the US has never, despite repeated challenges, anted up any convincing factual support on the record for the allegation.

In fact, while al-Haramain Oregon is defunct and no longer exists in any form, the US has stood mute and even gone so far as to allow an US Federal Court to declare their wiretapping of al-Haramain’s attorneys, nearly a decade ago, patently illegal. All the while still maintaining the long defunct and non-existent charity on the specially designated terrorist list and so cocksure and adamant about it that the government has stated they cannot allow any judgment to be entered, much less settle, the al-Harmain litigation because they could not possibly think of a designated terrorist organization receiving one red cent from the US government.

Such is the seriousness of actions that could lead an entity to be designated a terrorist by the United States government. Well, except for the Saudis of course. And now, apparently, the Pakistani Taliban. From Mike Isikoff at Newsweek Declassified:

In light of evidence that the group known as the Pakistani Taliban was behind the attempted May 1 Times Square bombing, the Obama administration is “actively considering” designating it as a ”foreign terrorist organization” in the next few weeks —a move that would allow the U.S. government to freeze any assets belonging to the group and make it a federal crime Read more →

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Government Remains Belligerent in al-Haramain; Will Fight On

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Yes, I know, it was hard to see this coming. As Condi Rice would say, “who could have expected”? Nevertheless, here it is. As you may recall, back at the end of March, Judge Vaughn Walker entered his somewhat earth shattering order granting summary judgment to Plaintiffs al-Haramain (see: here and here) and on April 16 Plaintiffs lodged their proposed form of judgment (see also: here).

Well, last Friday the government, by and through their ubiquitous attorneys the Department of Justice, filed their response to Plaintiffs’ proposed judgment. To put it mildly, the government is not consenting to the entry of judgment and is not going quietly into the night. The government did not just object to Plaintiffs’ judgment, they have lobbed another giant thumb in your eye belligerent pile of repetitive argument on Judge Walker:

Although the Court has made a finding of liability as to plaintiffs’ FISA claim (with which the Defendants respectfully disagrees), plaintiffs cannot merely rely on that determination at this stage. Rather, the entry of damages and other equitable relief is a separate matter, and plaintiffs have failed to demonstrate that there is any basis for the Court to award them the amount of liquidated damages they seek, punitive damages, or the other forms of relief set forth in plaintiffs’ proposed judgment.

For those not familiar with reading between the double spaced lines of legal pleading, the government is continuing to object to everything up to, and including, the Plaintiffs’ right to exist as plaintiffs in the first place. They will not consent to judgment; they will not agree to pay. They are not going to stop at go; they are not going Read more →

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BP Oil Slick The Result Of Republican DOJ And Regulatory Policy

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The economic and environmental damage resulting from the exploding fireball compromise of the Deepwater Horizon oil platform may be unprecedented, with the potential to emit the equivalent of up to four Exxon Valdez breakups per week with no good plan to stop it. There will be plenty of finger pointing among BP, Transocean and Halliburton, while it appears the bought and paid for corporatist Congress put the screws to the individual citizens and small businesses by drastically limiting their potential for economic recovery; all in the course of insuring big oil producers like BP have effectively no damage liability for such losses.

How did this happen? There are, of course, a lot of pertinent factors but, by far, the one constant theme underlying all is the mendacious corporate servitude of the Republican party, their leaders and policies. The arrogance and recklessness of BP and its oily partners gestated wildly under the Bush/Cheney administration.

Until the turn of the decade, BP had a relatively decent safety and environmental record compared to others similarly situated. Then BP merged with American oil giant Amoco and started plying the soft regulated underbelly of Republican rule in the US under oil men George Bush and Dick Cheney. Here from the Project On Government Oversight (POGO) is an excellent list of BP misconduct, almost all occurring and/or whitewashed under the Bush/Cheney Administration. If you open the door, foxes eat the chickens.

But it is not just regulatory policy behind the open and notorious recklessness of BP and its ilk, it is intentional policy at the Department of Justice as well. Here is how the former Special Agent In Charge for the EPA Criminal Investigative Division, Scott West, described the DOJ coddling of BP under the Bush/Cheney Administration:

In March 2006, a major pipeline leak went undetected for days, spilling a quarter-million gallons of oil on the Alaskan tundra. The spill occurred because the pipeline operator, British Petroleum (BP), ignored its own workers warnings by neglecting critical maintenance to cut costs. The spill sparked congressional hearings and a large federal-state investigation. Despite the outcry, in a settlement announced in late October 2007, BP agreed to one misdemeanor charge carrying three-year probation and a total of only $20 million in penalties (a $12 million fine with $8 million in restitution and compensatory payments).

The settlement resulted from a sudden U.S. Justice Department August 2007 decision to wrap up the case, according to West. That precipitous shutdown meant Read more →

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