Elena Kagan Will Be The Most Unqualified Justice In History

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NBC News is reporting Elena Kagan is Barack Obama’s nominee to replace the liberal lion, Justice John Paul Stevens. Kagan is a remarkably poor choice.The stunning lack of curiosity and involvement in the important legal issues of her age, not to mention the law itself, and remarkable absence of compelling written work and record on the part of Elena Kagan has been previously covered.

I have previously explained the total lack of any experience – ever – of any kind – on Kagan’s part in the court system of the United States. Kagan has never set foot as an attorney of record into a trial courtroom in the United States, not even a small claims justice court; nor for that matter, any appellate court save for the literally handful of spoon fed cases she suddenly worked on as Solicitor General. Kagan has never been a judge in any courtroom, of any court, in the United States. Quite frankly, there is not even any evidence Elena Kagan has sat as a judge for a law school moot court exercise. I have had paralegals and secretaries with better experience than this. Does a nominee for the Supreme Court have to be Gerry Spence, Pat Fitzgerald or David Boies? No, but it would be nice if they had the passion, curiosity and commitment to their profession to go to court at least once. Never has there been a United States Supreme Court Justice with such a complete lack of involvement in the court system. Never.

Duke Law Professor Guy-Uriel Charles has damningly demonstrated a Kagan record of lily white hiring, and corresponding shunning of people of color, at Harvard Law under her guidance that, if considered under the seminal Batson standard of prejudice, would have netted Kagan a sanction from the court and a potential misconduct referral to the appropriate bar authority.

Curiously, and very notably, the only pushback by an Obama Administration, who has consistently gone beyond the call of duty in protecting and bucking up a patently poor nominee in Elena Kagan, has been on the racial hiring component exposed by Professor Charles. Here are the “talking points” memo the Obama Administration sent around to its acolytes and stenographic mouthpieces in the press and internet ether to counter the substantive criticism of Elena Kagan.

Notice anything missing in the official Obama White House talking points? I do. They are solely focused on the racial exclusion charge (and here is the response eating their lunch on that). Did you see what is NOT responded to, or addressed, in any way, shape or form by the White House? If you guessed “Elena Kagan’s complete lack of any record whatsoever of participation or accomplishment in the legal process of the United States”, take a bow, you are Read more →

Anthrax and Blago for Breakfast

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I forgot to mention this yesterday. But I’m going fishing this weekend, and you’re going to be blessed with the fine hospitality of bmaz and the likker cabinet until sometime Monday.

But while I’m sneaking my last Toobz fix in before Mr. EW wakes up and makes me put away the computer for the weekend, I wanted to point to two things.

First, Glenn links to two articles on the testimony of Henry Heine’s testimony before the scientific review of the Amerithrax case. I’m hoping Jim White will have a post up talking about the scientific side of these articles (the short version: Heine raised the same points that Jim has been raising for some time). But I wanted to point to this, from the second article.

After the committee left, Heine expressed frustration that he had already told the FBI everything he just presented, but that no one had listened to him. FBI agents he dealt with were professional, he said, but some officials at the Department of Justice were extremely arrogant.

He said the whole investigation was filled with lies. Officials told different USAMRIID researchers their co-workers accused them of committing the attacks, just to see their reaction. They searched his vacation house and car without warrants.

They misled him about the questions they would ask him in front of a grand jury. And they tried to get him to seek a restraining order against Ivins, only days before he committed suicide, by saying Ivins had threatened to kill Heine during a group therapy session.

Heine is not the only one who does not believe Ivins was the real killer.

“At least among my closest colleagues, nobody believes Bruce did this,” he said. He thinks the FBI went after Ivins because “personality-wise, he was the weakest link.”

Remember how one piece of evidence the FBI used to argue that Bruce Ivins was a killer was the purported death threat he made? Eventually, they got his therapist to report on it. But it turns out the purported death threat was against Heine–and the Government asked him, but he refused, to get a restraining order against Ivins. That, plus Heine’s comment about the FBI believing Ivins was “the weakest link,” suggests that Heine really believes they pushed Ivins at a time when he was losing it psychologically.

In any case, the guy they wanted to use to buttress their case that Ivins was dangerous is now out there arguing that he could not be the killer.

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“Countering Violent Extremism”

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Sorry to let the threads grow so long of late–I’ve been out weeding again, if you know what I mean.

So partly to open up another thread to discuss the many ways in which our government kills Americans and/or journalists, and partly because we’ve been talking about whether the Hutaree militia organizing 40 miles from my house to the west, or whether the Imam gunned down by the FBI 30 miles in the other direction, were terrorists, I wanted to point to a Mark Hosenball post on the jargon replacing “GWOT”:

Not long after President Obama took office, he unofficially put an end to a favorite phrase of his predecessor: the “global war on terror.” True, George W. Bush used it so much that GWOT, as it became known in Washington, had largely lost its impact. But it got the job done—and Obama had yet to find a tough, pithy replacement. Until now.

In a speech today before a conference on post-9/11 intelligence-reform efforts, Director of National Intelligence Dennis Blair didn’t once utter the words “global war on terror.” But at least twice he talked about the administration’s efforts at “countering violent extremism.”

[snip]

CVE has been slowly catching on among the Obama crowd. Daniel Benjamin, the State Department’s top counterterrorism adviser, used it in testimony he gave to the Senate Armed Services Committee last month. As Benjamin explained it, “The primary goal of countering violent extremism is to stop those most at risk of radicalization from becoming terrorists. Its tools are noncoercive and include social programs, counter-ideology initiatives, and working with civil society to delegitimize the Al Qaeda narrative and, where possible, provide positive alternative narratives.” He added, “We are working hard to develop a variety of CVE programs.”

Hosenball also quotes John Brennan acknowledging that terrorism is a tactic.

It seems we’re replacing the word “terrorist,” then, with “extremist.” Preferable, in my mind, to be sure. But how will the term be used in the United States where we’ve got nutcases threatening members of Congress because they don’t like democratic votes? And will the fight against extremists merit special tactics in return, like the targeting of Americans with no due process?

The Chuck and Huck Show

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Say, have you noticed how often Chuck Schumer has been nuzzling up to Lindsey “Huckleberry” Graham lately?

There’s their plan on immigration reform which, among other things, calls for a national biometric ID card.

And there’s a bill to pressure China on currency manipulation.

I raise this for two reasons. First, Huck’s efforts to institutionalize indefinite detention thus far lack a real legislative champion. At the same time, Chuck’s flip-flop on 9/11 trials in NYC was one of the key reasons that plan failed. So I worry that Chuck will be the guy who gives Huck’s Constitution shredding a liberal face (and why not, if you’re already instituting national ID cards).

Of course, this is all happening against the background of a potential Majority Leader fight next year if Harry Reid loses his re-election bid. Chuck seems to be prepping a run on bipartisan effectiveness. With an eye at least partially on the Majority Leader run, after all, Chuck negotiated a deal with Orrin Hatch that ended up being the only jobs bill passed this year (though of course it won’t really do squat for jobs because it is far too small, and it may well endanger social security in the long run.

I have long thought Chuck would make a badly flawed (because Wall Street owns him, and because his moral compass blows with the wind) but effective (because a significant proportion of Senators owe their seat to him, and because he has the ability to throw big fundraising dollars to Senators) Majority Leader. Moreover, no matter whether I like it or not, I do think he’s the most likely person to replace Reid, if it comes to that.

Which is why I think it all the more important to start cataloging the way that Chuck’s efforts to rack up a quick record of bipartisan success compromise on bedrock Democratic principles.

You know … things like the Constitution.

Off-Season Trash: Who Will Be the First Corrupt Leader to be Ousted?

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I’m starting a pool: Who will be the first top leader to be ousted for his role in a corruption scandal?

Will it be A, Pope Ratzinger, for sending a pedophile priest for the “gay cure” then back to working with children rather than to prison back when he was an Archbishop?

A widening child sexual abuse inquiry in Europe has landed at the doorstep of Pope Benedict XVI, as a senior church official acknowledged Friday that a German archdiocese made “serious mistakes” in handling an abuse case while the pope served as its archbishop.

[snip]

In Munich case, a priest from Essen, “despite allegations of sexual abuse, and in spite of a conviction — was repeatedly assigned work in the sphere of pastoral care by the then-Vicar General Gerhard Gruber,” who worked under Benedict when he was the archbishop.

The priest, identified only with the initial “H,” was moved to Munich in January 1980, where he was supposed to undergo therapy, a decision that was taken “with the approval of the archbishop,” according to the archdiocese’s statement. Benedict was archbishop of Munich from 1977 to 1982.

Or will it be B, Timmeh Geithner, for helping Dick Fuld defraud investors?

Well, it is folks, as a [pdf] newly-released examiner’s report by Anton Valukas in connection with the Lehman bankruptcy makes clear. The unraveling isn’t merely implicating Fuld and his recent succession of CFOs, or its accounting firm, Ernst & Young, as might be expected. It also emerges that the NY Fed, and thus Timothy Geithner, were at a minimum massively derelict in the performance of their duties, and may well be culpable in aiding and abetting Lehman in accounting fraud and Sarbox violations.

We need to demand an immediate release of the e-mails, phone records, and meeting notes from the NY Fed and key Lehman principals regarding the NY Fed’s review of Lehman’s solvency. If, as things appear now, Lehman was allowed by the Fed’s inaction to remain in business, when the Fed should have insisted on a wind-down (and the failed Barclay’s said this was not infeasible: even an orderly bankruptcy would have been preferrable, as Harvey Miller, who handled the Lehman BK filing has made clear; a good bank/bad bank structure, with a Fed backstop of the bad bank, would have been an option if the Fed’s justification for inaction was systemic risk), the NY Fed at a minimum helped perpetuate a fraud on investors and counterparties.

This pattern further suggests the Fed, which by its charter is tasked to promote the safety and soundness of the banking system, instead, via its collusion with Lehman management, operated to protect particular actors to the detriment of the public at large.

And most important, it says that the NY Fed, and likely Geithner himself, undermined, perhaps even violated, laws designed to protect investors and markets. If so, he is not fit to be Treasury secretary or hold any office related to financial supervision and should resign immediately.

Enter your bet below and win a shiny hubcap!!!!

… what’s that you say? The correct answer is C, none of the above? Or rather, D, Eric Holder will be the first to be ousted, because he argued to uphold the Constitution and limit Presidential abuse of power?

(Shiny hubcap from http://www.flickr.com/photos/daryl_mitchell/ / CC BY-SA 2.0)

Rove: Three More Detainees Waterboarded?

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Check out this tidbit MadDog found:

In 2008, CIA head Michael Hayden told Congress it had only been used on three high-profile al-Qaeda detainees, and not for the past five years.

One of those was Khalid Sheikh Mohammed, a key suspect in the 9/11 attacks.

Mr Rove said US soldiers were subjected to waterboarding as a regular part of their training.

A less severe form of the technique was used on the three suspects interrogated at the US military prison at Guantanamo Bay, he added.

Maybe this is a typo. But it appears to feature Turdblossom, boasting that three Gitmo prisoners (as DOD detainees, not included among the three CIA detainees who got waterboarded), got waterboarded in some “less severe” form.

Richard Shelby Held Up

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Remember that Richard Shelby hold? Where he was holding the Senate hostage so Airbus could get a tanker refueling contract?

Well, given that Airbus withdrew from the competition yesterday, I thought it appropriate to see what Shelby has to say about all this…

The Air Force had a chance to deliver the most capable tanker possible to our warfighters and blew it.  This so–called competition was not structured to produce the best outcome for our men and women in uniform; it was structured to produce the best outcome for Boeing.  The Air Force’s refusal to make substantive changes to level the playing field shows that once again politics trumps the needs of our military.

What I’m particularly interested in is Shelby’s accusation that the Air Force blew it.

But they blew it (according to Shelby) without the three Air Force appointees that Shelby placed a hold on.

Fat lot of good it did you, Shelby, huh?

See, not only was Shelby’s little fit obstructive and wasteful, but it didn’t even serve Shelby’s purpose.

Will Akio Toyoda Testify on Brakes?

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As you may know, there are a slew of hearings scheduled next week to try to understand the Toyota brake problems. The head of Toyota (and grandson of the company founder) caused a bit of a stir yesterday when he tried to correct the mistaken impression that he would testify personally.

Akio Toyoda told a press conference Wednesday morning that he would not travel from Tokyo to Washington, D.C., to answer questions from a Congressional panel on car safety. No, this is not as bad as when General Motors sicked detectives on Ralph Nader, but Toyota is getting there.

“I trust that our officials in the U.S. will amply answer the questions,” Toyoda said.

Rather than have a guy bearing the company name testify, Toyota was sending Yoshimi Inaba, President of Toyota North America and–rather significantly–someone who was away from the company for two of the years in which Toyota was not responding to its own brake problems. In addition, Inaba’s background with the company is also primarily in sales, not engineering. In other words, rather than have Toyoda testify, the company was sending a guy who, just six months after he assumed a position of authority, agreed to recall millions of cars.

At the same press conference yesterday, Toyoda said he might consider testifying personally if he was invited.

But after persistent questioning, Mr. Toyoda said he “would consider” appearing before Congress if he receives a formal invitation, which none of the committees have issued.

So, in an unsurprising move, the House Reform Committee has now done just that, invite Toyoda to testify publicly.

Dear Mr. Toyoda:

As you know, there is widespread public concern regarding reports of sudden unintended acceleration in Toyota motor vehicles.  Toyota has recalled millions of its vehicles and even halted production.  In addition, there are reports that this problem may have been the direct cause of serious injury and even death.

There appears to be growing public confusion regarding which vehicles may be affected and how people should respond.  In short, the public is unsure as to what exactly the problem is, whether it is safe to drive their cars, or what they should do about it.

To help clarify this situation, I am inviting you to testify at a hearing of the Committee on Oversight and Government Reform on Wednesday, February 24, 2010, at 10 a.m. in room 2154 Rayburn House Office Building.

[snip]

Sincerely,

Edolphus Towns

Chairman

It’ll be hard for Toyoda to decline this invitation and save face. So it’ll be interesting to see how serious Toyoda is about not testifying under oath to the US Congress.

Update: Toyoda accepts.

We are pleased Mr. Toyoda accepted the invitation to testify before the Committee.  We believe his testimony will be helpful in understanding the actions Toyota is taking to ensure the safety of American drivers.

Second Working Thread on Exigent Letter IG Report

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It has taken me a while. But I’ve finally gotten through the DOJ IG Report on exigent letters. Page numbers below will be to the PDF page.

Page 14: Footnote 1 notes there are Secret and TS/SCI versions of this report. Keep that in mind as you read the redactions–while it’s probably safe to assume that Feingold and Wyden (who are both on SSCI) have seen the entire report, it’s not clear who else will have seen the entire report.

Page 14: I hadn’t really noticed it before, but the time frame on the first IG Report’s investigation of exigent letters ended on December 16, 2005–the day that Eric Lichtblau and James Risen exposed the illegal wiretap program. That suggests that the use of exigent letters, among other things, may have changed on that date in response to the discovery of the program. Also note that in Fine’s first report on NSLs, he decided to lump 2005 in which the time frame–2002 to 2004–required by statute. This is parallel to what he did with Section 215, suggesting that there were significant changes in 2006 after disclosure of the overall program.

Page 18: Note that the IG Report doesn’t say when the Public Integrity Section declined to prosecute these abuses. I do hope Fine gets asked that question.

Page 24: Notes that most exigent letters issues from April 2003 to March 2006. That latter date suggests they implemented a fix with the PATRIOT revision passed that month.

Page 28: Note the organization of the Communication Exploitation Section (CXS):

  • Document Exploitation (which became Digital Media Exploitation on March 26, 2006
  • Communication Analysis Unit (the section that issued the exigent letters, and therefore working on communities of interest)
  • Electronic Communication Analysis Unit (how does this differ from CAU???) (ECAU)
  • Electronic Surveillance Operations and Sharing Unit (EOPS)

Does this suggest the EOPS collected this stuff and the others did network analysis on it?

Page 29: Note the final date for the exigent letter range here is November 13, 2006, which is different from the December 16, 2005 used elsewhere

Page 34: Note how Company A (AT&T per EFF’s math) does something (maybe “analyze” toll records) that the other two providers don’t do (per footnote 26).This is almost certainly the community of interest analysis. This may sugges that by default mean they were working with massive data collection, since it would mean they had access to the signals of their competitors?

There also must be internet analysis in here (which presumably might be the ECAU), which itself would seem to require telecom assistance. So I wonder whether that fully-redacted paragraph describes a contract that does both phone and internet analysis?

Page 35: Does the redaction showing the size of the contract midway down the page appear to be 10 digits? Suggesting the contract would be in the single million range? (That making the digits something like this: $X,XXX,XXX) Though the amount for Company B seems to consist of words, not just numbers.

Page 36: The language about whether companies were able to provide subscriber data or not closely resembles language surrounding Section 215, which was used during some of this time period to get subscriber data (though possibly in larger batches). And note the redacted second half of the first full paragraph on this page says that they were also doing something in addition to giving meta data and subscriber data. And footnote 28, saying that Company A would only provide subscriber data, suggests that that company (AT&T?) was demanding more than one of the others was, legally.

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Patterico Confirms NYT Owes Its Readers a Correction

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I wouldn’t think I’d need to explain this to a Deputy District Attorney for a major city like Patterico, but here are some of the definitions Merriam-Webster includes for the word “Bugger.”

Bugger: (Noun) A worthless person

Bugger: (Verb) Damn

Bugger: (Verb) Bungle or botch

Bugger: (Noun) A person who plants bugs

Bugger all: (Noun) Nothing

Bugger off: (Verb) Leave

Now, Patterico may not know me well enough to know that I live with an Irishman, and therefore it is not uncommon for me to hear and even use the word “bugger” as the Irish or Brits or Aussies do, as a catchall swear word generally tied to a fuck-up (though said Irishman wants it known that he says “bollocks” more than he does “bugger”). But it’s hard to know anything about me without knowing that I have a bit of a reputation for having a potty-mouth.

And so when Patterico thinks he’s caught me in a lie because I persist in describing four pathetic overgrown boys who botched their prank in Senator Landrieu’s office as TeaBuggers…

“Teabugger”? Oh, I get it. It’s like “tea bagger” — only the word “bugger” is substituted . . . a reference to O’Keefe’s “bugging,” which it’s now clear he did not do. So it’s a joke name based on a lie.

When the post in question includes all this in the first paragraph…

TeaBugger James O’Keefe had called on the FBI to release the videos he took while (according to the FBI) by false pretense, entering US government property with the intent of interfering with a phone system owned by the US government. He wanted those released because they would show he neither bugged the phones nor managed to do anything in the phone closet (largely because they were arrested before they were able to get to the phone closet).

It just shows that Patterico knows bugger all about language.

But Patterico’s post is quite amusing for the lengths he goes to to … confirm the NYT owes its readers a correction.

You see, Patterico claims that when the NYT wrote the following passage:

Mr. O’Keefe made his biggest national splash last year when he dressed up as a pimp and trained his secret camera on counselors with the liberal community group Acorn — eliciting advice on financing a brothel on videos that would threaten to become Acorn’s undoing.

He quickly became a cult hero among young conservatives who saw his work as groundbreaking and sought to emulate him.

Liberals have denounced his methods as dishonest, a form of entrapment, but national Republican leaders seized on them as revelatory, pressuring Congress into cutting Acorn’s financing.

Mr. O’Keefe produced his videos with a partner, Hannah Giles, who posed as a prostitute in them [my emphasis]

The NYT did not mean (Patterico claims) to imply that James O’Keefe was wearing his silly pimp costume when he went into ACORN offices and filmed them not breaking the law. Rather, Patterico insists, the NYT only meant that O’Keefe was posing at being a pimp, without suggesting that he was dressed up as one.

You can “pose” as a pimp without dressing like one. Look up the definition if you don’t believe me.

And therefore, Patterico seems to be saying, Bradblog was wrong to ask the NYT to correct the impression they left that O’Keefe was dressed up as a pimp when he went into the ACORN videos.

But there’s a problem with that, aside from the NYT’s use of the phrase “he dressed up as a pimp.”

The editor in question, Greg Brock, made it quite clear he understood the passage to mean that O’Keefe was wearing his pimp costume in the ACORN offices, because one of his emails said this:

As I said, we see nothing to correct. It is not merely a matter of accepting his version. He was videotaping some of the action, including when he left some of the offices. At one point, the camera was turned in such a way to catch part of the “costume” he was wearing. And ACORN employees who saw him described his costume.

And, as Eric Boehlert points out in his response to this same Patterico post, the NYT’s earlier reporting (which Brock also references for his proof that they don’t need to make a correction) clearly says that O’Keefe was dressed as a pimp, not just claiming to be a pimp while wearing his typical prep outfit.

Ready for the embarrassing part where I quote the New York Times claiming O’Keefe was dressed as a pimp visiting ACORN offices?Behold:

The undercover videos showed a scantily dressed young woman, Hannah Giles, posing as a prostitute, while a young man, James O’Keefe, played her pimp. They visited Acorn offices in Baltimore, Washington, Brooklyn and San Bernardino, Calif., candidly describing their illicit business and asking the advice of Acorn workers. Among other questions, they asked how to buy a house to use as a brothel employing under-age girls from El Salvador. Mr. O’Keefe, 25, a filmmaker and conservative activist, was dressed so outlandishly that he might have been playing in a risque high school play.

And again:

But never has his work had anything like the impact of the Acorn expose, conducted by Mr. O’Keefe and a friend he met through Facebook, 20-year-old Hannah Giles. Their travels in the gaudy guise of pimp and prostitute through various offices of Acorn, the national community organizing group, caught its low-level employees in five cities sounding eager to assist with tax evasion, human smuggling and child prostitution.

So Patterico is insisting that O’Keefe wasn’t dressed as a pimp but was just posing as one, all the while wearing khakis. He’d better tell the NYT, then, because they have reported multiple times (and Brock continues to claim in his response to Brad) that O’Keefe was not posing-in-khaki but was in fact dressed as a pimp.

One more thing.

In response to my repeated calls for O’Keefe to release his raw video from the ACORN stunt (particularly as he calls for authorities to release his raw video from the Landrieu stunt), Patterico very generously reminds me that there are unedited audiotapes of the stunts.

Also, all three bloggers repeatedly refer to a supposedly “independent” report by a guy paid by ACORN, which makes various findings totally at odds with the unedited audio that the report (and all three bloggers) refuse to acknowledge even exists. (Did you know there is unedited audio? In all the whining about the lack of unedited video, did anyone ever bother to tell you that you can listen to the full unedited audio of these visits? It’s true! Click the link if you don’t believe me.)

That’s as clever as Patterico gets, I guess! Want proof of how O’Keefe was dressed in one or another of his stunts, given that the videotape we do have is clearly edited? I know! Check the audiotape!

Video. Audio.

Yeah.

In other words, try as hard as Patterico can, he’s got bugger all to refute that O’Keefe in both his ACORN videos and his Landrieu stunt was involved in a bolloxed attempt to deceive.

Update: Edit to bugger reference above.