The DOMA Decisions In The 9th Circuit

I have had several people ask me off blog about the “opinions” on the Defense Of Marriage Act (DOMA) that have surfaced recently in the 9th Circuit. I may write more later; but for now I want to lay out the sequence of facts and actions and start the discussion.

The current issue really took flight last month when 9th Circuit Chief Judge Alex Kozinski entered an order dated November 19, 2009 on the matter of Karen Golinski, a staff attorney for the 9th Circuit Court of Appeals. Judicial branch employees such as Golinski are Federal employees and therefore have their benefits administered by the Office of Personnel Management (the same folks Obama and Harry Reid want to administer their poor excuse of a substitute for the Public Option). Based upon the OPM’s stated position, the contracted benefits carrier (Blue Cross/Blue Shield) refused to provide health benefits for her same sex legal spouse, Amy Cunninghis.

From Judge Kosinski’s November 19 Order:

Karen Golinski has been denied a benefit of federal employment because she married a woman rather than a man. I previously determined that violates this court’s guarantee of equal employment opportunity. To avoid a difficult constitutional problem, I harmonized the Defense of Marriage Act (DOMA), 1 USC §7; the statutes creating the benefit program at issue, the Federal Employees Health Benefits Program (FEHBP), 5 USC §8901 et seq.; and this court’s commitment to equal employment opportunity.

I then entered [an] order

No “party or individual aggrieved” by my decision appealed it.

The Administrative Office of the United States Courts (AO) complied with my order and submitted Ms. Golinski’s form 2089 to the Blue Cross and Blue Shield Servie Benefit Plan, Ms. Golinski’s health insurance carrier. That’s as it should be; the AO is subject to the “supervision and direction” of the Judicial Conference of the United States, 28 USC §604(a), and I exercised authority delegated by the Judicial Conference when I ordered relief. After the AO submitted Ms. golinski’s form, I thought this matter had concluded.

The Executive Branch, acting through the Office of Personnel Management (OPM), thought otherwise. It directed the insurance carrier not to process Ms. Golinski’s form 2089, thwarting the relief I had ordered. (citations omitted)

That is the basic tale of Golinski and Kozinski. Since the November 19 Order the above language was taken from, the situation has become even more exacerbated by the intransigence of the Obama Administration and its OPM which, either comically or tragically depending on one’s view, is headed by John Berry who the Administration made a big show of touting as its highest ranking openly gay official.

The irony just oozes. After further refusal and contempt of his clear order, which the Administration never appealed, Read more

Blago Begins His Rahm Play

I’ve been noting for months that Rod Blagojevich would make a big deal out of the conversations his people had with Rahm about gaming the election for Rahm’s former seat. If for no other reason than Blago claims Rahm gave him the idea behind one of the charges, Blago has every incentive to embarrass Rahm thoroughly over the course of his trial.

And, not surprisingly, Blago has made the first move in that play.

Rod Blagojevich’s lawyers want the FBI to give up details of interviews conducted last year of President Obama, his chief of staff, Rahm Emanuel, White House adviser Valerie Jarrett and others as part of the investigation into the former governor.

In a Friday filing, Blagojevich attorneys also asked for information regarding first lady Michelle Obama. However, a source said late Friday that the FBI never interviewed the first lady.

Prosecutors may well delay (that’s certainly what Fitz did in the CIA Leak case, where he turned over materials on prosecution witnesses just weeks before the trial started).

But I can imagine that Obama would prefer to put off this little side show until health care gets done–if it does get done. And I imagine Blago knows that well.

Baucus’ Girlfriend Helped Arrange His Separation

Okay, this is just creepy, but creepy in terms that may impact politics more than Tiger Woods taking a hiatus from golf:

The Missoulian newspaper today disclosed that Sen. Max Baucus’s future girlfriend, Melodee Hanes, was involved in discussions with the senator’s divorce lawyer in 2007 while serving on the Montana Democrat’s Senate staff. The Montana newspaper quoted from billing records submitted by Baucus’s lawyer, Ronald F. Waterman, in Helena.

Main Justice obtained a copy of the billing records. Click here to see them.

The records show that Hanes – whom Baucus later recommended to the White House as a finalist for Montana’s U.S. Attorney – consulted with the divorce lawyer on such delicate matters as how to determine the value of the home Baucus shared with his then-wife, Wanda, in Washington’s exclusive Georgetown section.

Mind you, nothing about this development (unlike the fact that MaxTax nominated his girlfriend to be US Attorney and that he brought her on a trip to Dubai) is ethically scandalous. MaxTax just had his then State Director and now girlfriend handle discussions with the lawyers drawing up his separation agreement with his then wife.

Indeed, at one level this proves the point Baucus’ office has been making–that Baucus’ relationship with Hanes (which reportedly started in June 2008) had nothing to do with his split with his ex-wife.

But it is all rather, um, cozy.

Update: It gets creepier. Baucus’ then wife, Wanda, didn’t know that he was scheming on a separation at the time.

Wanda Baucus, the senator’s second wife, said Friday that she knew nothing about the 2007 meetings and that the couple had not at that point discussed getting a divorce.

“I think this whole thing is very sad. It’s not the way you do things,” she said in an interview.

[snip]

“Ending a 25-year marriage is a serious undertaking that should be discussed first within the family,” Wanda Baucus said. “There’s no justification for the staff being involved in such private matters.”

Which I guess means Baucus’ then State Director and now girlfriend knew that he was splitting before his then wife did.

ABC Returns the Blackwater Focus to Pakistan

ABC has now caught up to Jeremy Scahill. In this Blackwater installment, they describe sketchy details of two Blackwater operations in Afghanistan/Pakistan, one in 2003, and one in 2006.

CIA officials acknowledge that two private contractors were killed in Afghanistan in 2003 when they and other members of a CIA paramilitary team were in a firefight with Taliban fighters on a remote road.

In another case, in 2006, 12 Blackwater “tactical action operatives” were recruited for a secret raid into Pakistan by the U.S. military’s Joint Special Operations Command, according to a military intelligence planner. The target of the planned raid, code-named Vibrant Fury, was a suspected al Qaeda training camp, according to the planner, who said he did not know the outcome of the mission.

It’s not clear whether this on the record discussion of planning for an op in 2003 is the same one named above, in which two contractors (presumably BW) were killed. But note the explanation: a desire to avoid oversight.

A U.S. Army officer who ran human intelligence collections activities in Afghanistan in 2003, Tony Shaffer, says he never worked directly with Blackwater personnel but frequently encountered them in secret operations run by the military and the CIA.

“I actually met with the CIA and Blackwater operatives who were working together, totally hand in glove, to conduct operational planning and support of their objectives, which are paramilitary operations along the border,” said Shaffer, then a Major but now a Lieutenant Colonel who teaches at the Center for Advanced Defense Studies.

“The idea was to bring to bear additional resources for specific special operations missions,” he said. “The purpose for that, in my judgment, may have been to avoid some level of oversight.”

In 2006, the purpose of using BW was to provide forces that were otherwise unavailable because they were occupied in Iraq.

In the case of Operation Vibrant Fury, military personnel say the decision to request Blackwater personnel came after a request for military “tier one” operatives was denied.

Read more

Springsteen on the State Level Politics that Matter

In a predictable move of arrogance and ignorance, Chris Christie asked Bruce Springsteen to perform at his inauguration.

Christopher J. Christie, the Republican governor-elect of New Jersey, has attended 122 Bruce Springsteen concerts and wanted nothing more than to have the Boss appear at his inauguration. Mr. Christie’s brother, Todd, a stock trader, sent a message through an intermediary to Jon Landau, Mr. Springsteen’s manager, saying that he would make a gift to a charity of the singer’s choosing if Mr. Springsteen performed.

[snip]

But word came back that, while Mr. Springsteen had performed for the Democratic presidential candidates Barack Obama and John Kerry, “he doesn’t want to get involved in state politics,” Todd Christie said.

Turns out, though, Springsteen is willing to get involved in the kind of state politics that matter.

A BRIEF STATEMENT FROM BRUCE
Like many of you who live in New Jersey, I’ve been following the progress of the marriage-equality legislation currently being considered in Trenton. I’ve long believed in and have always spoken out for the rights of same sex couples and fully agree with Governor Corzine when he writes that, “The marriage-equality issue should be recognized for what it truly is — a civil rights issue that must be approved to assure that every citizen is treated equally under the law.” I couldn’t agree more with that statement and urge those who support equal treatment for our gay and lesbian brothers and sisters to let their voices be heard now.

May Santa bring coal to those who deserve it–and civil rights to all.

Update: To help Santa deliver civil rights to the same sex couples in New Jersey, click over to Garden State Equality and help make calls in advance of the vote on this.

Steven Rattner: I, MOTU. I Save World. You, Ignorant.

Steven Rattner, the Master of the Universe who may have had to step down from the Obama Administration because of ties to a kickback scandal, tells us we’re ignorant for thinking that Ben Bernanke might not the best guy to run the Fed.

But much of the barrage of criticism is unfair, and some of it is simply ignorant.

For a guy calling others ignorant, though, what is supposed to be a defense of Bernanke (but is, instead, a defense of MOTUs generally) is really stupid.

Start with Rattner’s endpoint–that, rather than putting together a systemic regulator free from the incestuous ties to the banks that the Fed has (or, better yet, reimposing Glass-Steagall), Congress should give the Fed that power.

In return, instead of looking backward, we should give the Fed the tools it needs so that the unwinding of the next AIG doesn’t need to result in an unjust enrichment of stakeholders.

I’ll leave you all to chew on that sentence for a bit, with its “instead of looking backward” refrain even while it calls for giving the Fed more power. But for the moment, keep in mind that Rattner’s basically arguing not that Bernanke should be confirmed (the logic behind the timing of his op-ed), but that Bernanke should be confirmed and be given vastly increased powers.

Now, one of the reasons for that, presumably, is because (Rattner asserts) the Fed has “independence” from those it regulates.

[The Fed] “should remain adamant about its need for independence in conducting monetary policy”

But here are three of the lame-ass excuses Rattner gives for the mistakes the government’s MOTUs made last year and before:

  • “The refrain from all quarters after the bailout of Bear Stearns in the spring was that the next floundering bank needed to be allowed to fail”
  • “All of the regulators should have been more attentive to the irresponsible lending practices and excessive risk-taking of our major financial institutions than the free-market principles of the incumbents allowed. … Regulators were not the only ones at fault; the constant push, particularly by liberals, toward the worthy goal of increased homeownership put people into homes they couldn’t afford.”
  • Policymakers labored under “unfathomable pressure” last fall

Everyone was saying the next bank had to be allowed to fail, everyone was pushing increased homeownership, and policymakers were under unfathomable pressure.

Three of the five excuses Rattner gives his buddies are that they they were under some kind of pressure, and in two cases, that pressure was distinctly political (the “unfathomable pressure” in the last instance refers to time stress as much as everything else). In a piece arguing for the independence of the Fed, then, Rattner says they fucked up because they were under too much political pressure to make the decisions they did.

Read more

Will We Learn of the “Many Dark Actors”?

Anyone who has been following over the last eight years will not be surprised that Lord Goldsmith told Tony Blair that the Iraq War was illegal.

On July 29, [2002, Lord Goldsmith] wrote to Mr Blair on a single side of A4 headed notepaper from his office.Friends say it was no easy thing for him to do. He was a close friend of Mr Blair, who gave him his peerage and Cabinet post. The typed letter was addressed by hand, ‘Dear Tony’, and signed by hand, ‘Yours, Peter’.

In it, Lord Goldsmith set out in uncompromising terms why he believed war was illegal. He pointed out that:

  • War could not be justified purely on the grounds of ‘regime change’.
  • Although United Nations rules permitted ‘military intervention on the basis of self-defence’, they did not apply in this case because Britain was not under threat from Iraq.
  • While the UN allowed ‘humanitarian intervention’ in certain instances, that too was not relevant to Iraq.
  • It would be very hard to rely on earlier UN resolutions in the Nineties approving the use of force against Saddam.

Lord Goldsmith ended his letter by saying ‘the situation might change’ – although in legal terms, it never did.

I’m more interested, though, in the description of the scrum two Labour officials used to to convince Goldsmith to give the Iraq War some legal sanction.

He was summoned to a No10 meeting with Lord Chancellor Lord Falconer and Baroness Sally Morgan, Mr Blair’s senior Labour ‘fixer’ in Downing Street. No officials were present.

A source said: ‘Falconer and Morgan performed a pincer movement on Goldsmith. They more or less pinned him up against the wall and told him to do what Blair wanted.’

After the meeting, Lord Goldsmith issued his brief statement stating the war was lawful.

With this stuff coming out during the Iraq War inquiry, I honestly wonder whether we’ll eventually learn about the “dark actors playing games” who went after David Kelly.

The Burrower and the Gate-Crashers

I’m not much interested in the gate-crashing Salahis. But I am interested in two data-points that suggest Republicans are preparing to use the gate-crashing episode like they did the travel office attack under the Clintons.

First, there’s this tweet from Karl Rove.

Good question @rip120751. SS getting bad rap. Haven’t gotten to bottom of this, likely low-level WH staffer involved—we’ll see.

And then there’s this post from Michael Isikoff, in which he seems to have reverted to both his form and his beat of the mid to late 90s. In it he credulously repeats the story of a former Bush political appointee who burrowed into the career staff at the White House before Bush left. Said burrower suggests that by stripping her of her responsibilities, White House social secretary Desiree Rogers allowed the gate-crashers to break in.

The White House staff member whose job was to supervise the guest list for state dinners and clear invitees into the events says she was stripped of most of her responsibilities earlier this year, prompting her to resign last June.

The account of Cathy Hargraves, who formerly served as White House “assistant for arrangements,” raises new questions about whether changes that she says were made by President Obama’s social secretary, Desiree Rogers, may have contributed to the security lapses that permitted Virginia socialites Michele and Tareq Salahi to crash the state dinner for India’s prime minister last week and get themselves photographed with the president.

[snip]

Hargraves tells Declassified in an exclusive interview that, while she had originally been hired as a White House political appointee in 2001, she landed a new position on the White House residence staff in 2006 and was specifically detailed to the social office to work on state dinners.

And Michael Isikoff–who surely knows the implications of someone being burrowed in before a President leaves–accepts Hargraves’ claims that she’s not political at all.

In some ways, Hargraves’s account is reminiscent of culture clashes that have arisen in the past between outgoing and incoming White House staff members. Moreover, Hargraves acknowledges that the new Obama staff may have distrusted her because she had originally served as a political appointee in the office of the cabinet secretary under President Bush. But Hargraves, who is a registered nurse by profession, says she has never worked on a political campaign and, as far as she is concerned, her loyalty was to the White House as an institution, not to the Bush administration.

Because registered nurses who get hired as political appointees never had any political agenda, not at all.

Especially when they appear to be reading from Karl Rove’s script.

The Negroponte Warning

One more tiny detail from the torture tape FOIA.

Document 27, dated July 28, 2005, and titled, “DNI News” is described as “a one-page email with a CIA attorney’s opinion, conveyed to his client, regarding the DNI’s position [sic] the destruction of the videotapes.”

We know a little bit about what the email might say from this Isikoff-Hosenball story from when the House Intelligence Committee was investigating the destruction.

In the summer of 2005, then CIA director Porter Goss met with then national intelligence director John Negroponte to discuss a highly sensitive matter: what to do about the existence of videotapes documenting the use of controversial interrogation methods, apparently includ­ing waterboarding, on two key Al Qaeda suspects. The tapes were eventually de­stroyed, and congressional investigators are now trying to piece together an extensive paper trail documenting how and why it happened.

One crucial document they’ll surely want to examine: a memo written after the meeting between Goss and Negroponte, which records that Negroponte strongly advised against destroying the tapes, according to two people close to the investigation, who asked for anonymity when discussing a sensitive matter. The memo is so far the only known documentation that a senior intel official warned that the tapes should not be destroyed. Spokespeople for the CIA and the intel czar’s office declined to comment, citing ongoing investigations.

The “news” referred to in the subject line of this email must be John Negroponte’s opposition to destroying the torture tapes.

Interestingly, even though the description says this included a CIA attorney’s recommendation, this is one of the few documents in this Vaughn Index for which CIA hasn’t claimed some kind of attorney product privilege (though they do claim a deliberative privilege). The reference to the attorney’s recommendation is even more interesting given that two CIA lawyers told Jose Rodriguez it was alright to destroy the torture tapes. Was one of these two lawyers the lawyer who knew of Negroponte’s opposition to destroying the torture tapes?

Hal Turner: Chris Christie Declined to Prosecute Me

Oh, this might get interesting. (h/t Main Justice)

A subpoena has been issued for Gov.-elect Chris Christie to appear next month at the federal trial of North Bergen Internet radio host and blogger Hal Turner.

Michael Orozco, Turner’s lawyer, said in an affadavit supporting the subpoena, that Christie, as the U.S. Attorney, knew that Turner was working with the FBI, Christie gave legal advice to the FBI Joint Terrorism Task Force regarding Turner, and issued a “Blanket Letter of Declination,” refusing to prosecute Turner.

For his part, Christie says he has yet to receive the subpoena, but that he might not be able to testify because it would expose internal deliberations.

Christie said it would be hard to testify because of the internal deliberations and other legal issues that go into the decision-making process.

“It’s very difficult for a U.S. Attorney to testify,” he said. “We’ll see what happens during the road.”

So does the fact that Christie is talking about “internal deliberations” support Turner’s contention that Christie declined to prosecute him, even while several other prosecutors were pursuing such a prosecution?