Decision Day On al-Haramain (updated)

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graphic by politicalbaseIt is decision day for the gunslingers at the al-Haramain corral. If you recall when we last left this little vignette, exactly one week ago today, Judge Vaughn Walker had just issued a fairly terse ruling giving certain instructions to the parties. Both parties were given one week, until today, May 29th, to produce written responses to the court.

The plaintiff al-Haramain was addressed as follows:

Plaintiffs shall, no later than May 29, 2009, submit a memorandum addressing whether it would now be appropriate and/or feasible for plaintiffs to file a motion for summary judgment on their claim under 50 USC § 1810. Plaintiffs should address the merits of filing such a motion under two scenarios: (1) with a protective order in place allowing plaintiffs’ counsel access to the Sealed Document; and (2) with no such protective order and no such access.

Basically very good news for the plaintiff, they are apparently going to proceed with their case, but were being given the option on how to proceed. Make no mistake, proceeding forward with the case is what plaintiffs are in this for; it is not about money for them.

The obstreperous and defiant defendant, the United States government by and through President Barack Obama was, however, not treated so kindly by the court. Judge Walker, clearly fed up with their belligerence and recalcitrance, drew the blade of a guillotine over the government’s head (and rightly so I might add).

Defendants are now ordered to show cause why, as a sanction for failing to obey the court’s orders:

(1) defendants should not be prohibited, under FRCP 37(b)(2)(ii), from opposing the liability component of plaintiffs’ claim under 50 USC § 1810 —— that is, from denying that plaintiffs are “aggrieved persons” who were subjected to electronic surveillance; and

(2) the court should not deem liability under 50 USC § 1810 established and proceed to determine the amount of damages to be awarded to plaintiffs.

Defendants shall submit written response to this order no later than May 29, 2009.

By good fortune, today is May 29, and the documents are rolling in. Here is the filing from al-Haramain hot off the press and before it even hits PACER. As Marcy put it a week ago when Walker’s order was filed, “how do you feel about summary judgment 1) with also getting the document, Read more →

What Pelosi, Rockefeller & Harman Could Have Done

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There has been an ongoing discussion for the last two weeks or so about the briefings that congressional leaders were allegedly given regarding the Bush/Cheney torture program (See for instance here, here, here, here and here) and what Congressmembers like Pelosi, Rockefeller, Harman and Graham could have done to fight the malfeasance of Bush and Cheney. This post will explain what they could have done.

I promised a discussion on the speech and debate clause and what was possible, at least theoretically, for Nancy Pelosi, Jane Harman, Jay Rockefeller, Bob Graham, or any Congressmember that had knowledge, to have done about the wrongs of the Bush Cheney Administration, even in relation to national security level topics.

The speech and debate clause is found in Article I, section 6 of the Constitution and reads as follows:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The key wording is the last part "…and for any Speech or Debate in either House, they shall not be questioned in any other Place." The down and dirty is that congressmembers (and in certain cases key staff) cannot be questioned or held to answer in any forum, civil, criminal or otherwise, for speech and/or discussion regarding legitimate interests and business of Congress; such conduct occurring on the floor or in committee is absolutely privileged.

Let’s have a look at the history of the Speech and Debate Clause. In United States v. Gillock, 445 U.S. 360 (1980), the Supreme Court stated, "The Framers viewed the speech or debate privilege as fundamental to the system of checks and balances." Indeed, it was framed by the founders as one of the seminal checks and balances against the power and greed of the Executive Branch. You know, exactly what Congress was staring at, and cowering from, with the Bush/Cheney crew. The Congressional privilege has been discussed and upheld in a Read more →

Fast Trash!

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I’ve been busy lately; sorry about that. On a positive note, that is likely good for you readers. Nevertheless, this is the fastest and most awesomest weekend imaginable, it is a holiday weekend and time to blow some trash talk around. There is a convergence on Sunday of the Grand Prix du Monte Carlo (Monaco), the Indianapolis 500 and, yes Elizabeth, those good ole boys will be circle jerkin at the Coca Cola 600 in Concorde, North Carolina. Lotta horsepower.

First up to bat is arguably the biggest auto race in the world, the Grand Prix of Monaco. The legendary street course in the Principality is treacherous and nerve wreaking for the drivers. Ususally you simply cannot win at Monaco unless you start in one of the top four spots on the grid, because it is very difficult to pass on the narrow course full of tunnels, hairpins and chicanes. Jenson Button, driving for the brand new Russ Brawn team (Brawn took over the remnants of the defunct longtime Honda team that quit F1 due to financial concerns), is leading the points chase and has won a shocking four out of the first five GPs this year. Button has a 14 point lead on Rubens Barricholo, his Brawn teammate. Sebastian Vettel is third, 18 points back. I got up and watched qualifying this morning out on the patio as dawn came over Camelback Mountain. Was beautiful. Button is on pole, with Ferrari’s Kimi Raikkonen joining him on the front row (a first for a Ferrari this year, they may be finally sorting the bugs out of their rides). Rubens and Vettel are in the second row, with Ferrari’s Felipe Massa in P5. For those of you not familiar with the historic circuit through the streets of Monte Carlo, I have attached a cool music video with footage from the 2003 race to give a flavor for how hair raising it really is (See also here). Should be a great race, and the festivities start at 7:30 am EST on Speed Channel. I think this is a real shot for a Ferrari breakthrough for either Kimi or Massa.

250px-2009_indianapolis_500svg.thumbnail.pngNext up is the Indianapolis 500. Indy used to be called "The Greatest Spectacle In Racing". Somehow or another, it just doesn’t have the lustre it used to; but Read more →

Senate Judiciary Hearing on Torture, Two

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Whitehouse: SASC report. Great deal of disagreement with OLC analysis. Mora called 2003 OLC memo profoundly in error. To extent that it relied on memo, did not include fair analysis. Chart based on OLC opinion. Green means go column. Read Admiral Dalton, that green column was wrong legally, embarrassing. At Haynes’ direction, directed that OLC opinion supplant opinions of working group. Zelikow, you heard that copies of your memo should be collected and destroyed. What does that say?

Zelikow: Lawyers did not welcome peer review. Would shut down challenges even inside the govt. 

Whitehouse: It’s our nature to quarrel with each other. Is there any suggestion you would draw that they were less than perfectly confident with their views?

Zelikow: Arguments I was making were pretty profound, their whole interpretation of CID standard raises grave consequences. They had options. Let’s take another look at this. Or, Zelikow, boy, this shows how rusty you are in practicing law. They didn’t do either of those things, C, we don’t want to talk about it.

Whitehouse: Luban. Lee decision. Texas decision. Addicott didn’t cite it. Lee describes waterboarding as torture. In 93 pages, where they dig out medicare reimbursement, they don’t find a case on point, in which the 5th circuit, calls it repeatedly torture. I’ve pressed the DOJ on this, bc I think it’s unimaginable. AG Mukasey’s response was that it wasn’t relevant under Civil Rights Act, doesn’t relate under CAT. At that time I was out of time. Civil RIghts Act has no substantive elements of its own. Vehicle for enforcing Constitutional violations. Leads directly to Constitutional standards on torture. What OLC said about it–definition also founded on Constitutional standards of US. Impossible by Congress by statute, the statute criminalizing torture cannot create a definition of torture that narrows Constitutional definition. Distinction is yet another false device. They either missed case on point. I guess we’ll find out from OPR which it was. 

Luban: Lee case decided in 1983, before CAT and torture statutes. Not surprising that it didn’t exist yet. 

Graham: Would it be torture to put a spider inside a jail cell who was afraid of spiders. 

Luban: Conceivably.

Graham: Would you say if we put a spider in the jail cell we were torturing them.

Luban: If we knew that spiders are deadly. An ordinary person.

Graham: Mr. Addicott has a different view about torture. Do you think he is unethical.

Luban: I think he would be unethical if Read more →

al-Libi Dies in a Libyan Prison

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Graphic by Darkblack

Graphic by Darkblack

We have been talking heavily about torture, renditions and the legal and motivational justifications therefore nonstop for the last couple of weeks. But one of the earliest entries in this sordid tale (witness the December 18, 2001 entry on Marcy’s Torture Timeline) was the capture and torture of Ibn Sheikh al-Libi. What became of al-Libi has been ripe discussion ever since he was disappeared. From Andy Worthington (h/t Barb) we learn of al-Libi’s demise:

The Arabic media is ablaze with the news that Ibn al-Shaykh al-Libi, the emir of an Afghan training camp — whose claim that Saddam Hussein had been involved in training al-Qaeda operatives in the use of chemical and biological weapons was used to justify the invasion of Iraq — has died in a Libyan jail.
…
This news resolves, in the grimmest way possible, questions that have long been asked about the whereabouts of Ibn al-Shaykh al-Libi, perhaps the most famous of “America’s Disappeared” — prisoners seized in the “War on Terror,” who were rendered not to Guantánamo but to secret prisons run by the CIA or to the custody of governments in third countries — often their own — where, it was presumed, they would never be seen or heard from again.

Al-Libi was captured by Pakistan on or about December 18, 2001 and was one of the earliest subjects rendered at the will if the CIA, being sent to Egypt for torture. And what did Bush/Cheney want out of him? Information connecting Sadaam Hussein with al-Qaida of course, which he eventually coughed up to his tormenters.

The significance of al-Libi in the events that followed and have led us to where we are today cannot be overestimated.

In Egypt, he came up with the false allegation about connections between al-Qaeda and Saddam Hussein that was used by President Bush in a speech in Cincinnati on October 7, 2002, just days before Congress voted on a resolution authorizing the President to go to war against Iraq, in which, referring to the supposed threat posed by Saddam Hussein’s regime, Bush said, “We’ve learned that Iraq has trained al-Qaeda members in bomb making and poisons and deadly gases.”

That October 7, 2002 speech in Cincinnati was a critical base for entire set of lies that put us into the unconscionable and unjustified invasion and occupation of Iraq. You might remember the Cincinnati speech, it was the first time Bush Read more →

Obama To Git-Mo Better Military Tribunals

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graphic by twolf

graphic by twolf

The GOP squeals and Obama greases their detainee wheel. On May 1st, the New York Times warned that President Obama was contemplating reinstating the tyrannical Bush/Cheney military tribunals for Gitmo detainees.

Yes, the same Barack Obama that forcefully pronounced to the American public during the election:

By any measure our system of trying detainees has been an enormous failure,

Not to mention declaring that as President he would:

reject the Military Commissions Act.

That was then, this is now. And now, today, it is seems nearly confirmed that military commissions will be back. From Peter Finn at the Washington Post:

The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections, government officials said.

The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly.
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Officials said yesterday that the Obama administration will seek a 90-day extension of the suspension as early as next week. It would subsequently restart the commissions on American soil, probably at military bases, according to a lawyer briefed on the plan.

To be clear, the Administration indicates that Obama has not given the final sign off on the plan, and the ACLU has already sworn to fight any such plan. One thing is for certain, however, Obama is not contemplating this move in order to give the detainees so tried the equivalent level of due process and justice that would be afforded by American courts, else he would simply use American courts as he stated was his intention while campaigning for votes.

No, you can safely bet that the idea is to use evidence and restrict rights in order to obtain convictions and severity of sentences that would be less likely with traditional due process and fundamental fairness. Not that the original iteration of the tribunals produced particularly good results as a mere three convictions have been produced out of a known total of 779 detainees since the inception of Gitmo. One area clearly in play to obtain the desired easier convictions under Obama’s tribunals would be allowance of hearsay evidence:

Under the administration’s rule changes, hearsay evidence would be admissible if a judge determines it is reliable, officials said. Read more →

Bed Dinnertime For Bonzo Gonzo

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Hello Americans, it’s Friday! Are you mystified, bewildered and puzzled? Well I sure as heck am. Guess who’s coming to dinner? This weekend’s White House Correspondent’s Dinner that is. From The Swamp:

But now The Sleuth reports on a certain high-value guest who will lend some enhanced interest to the Houston Chronicle’s dinner party, which is going against conventions, perhaps, but is certain to get some memos out of its guest at the black-tie fete:

Alberto Gonzales, the former attorney general in the Bush administration, which, as we’ve all been reading lately, went to some legal lengths to authorize harsh interrogations of detainees in the "war on terror" — such as waterboarding — and which, by the graces of the Obama administration, may escape any legal liability for any of that.

The Washington Post’s Sleuth suggests that "Gonzo would be a little bashful about showing up at a place that will be jam-packed full of the new guard in the Obama administration and the very Democrats in Congress who drove him from office. But no, he’ll be there all right this Saturday night. Gonzales is a confirmed guest of the Houston Chronicle, his old hometown paper.

This is a perp chump walk if I ever saw one. What kind of naive mental midget thinks this is a good idea for a social outing for himself? AGAG, that’s who. Jeebus, the jokes just about write themselves, and I invite one and all to do just that.

It has been a long week, and I was stuck in court much of the day. I will be looking at a couple of things now that I am settled in, but in the meantime consider this an open thread for a little relaxation, breaking news, trash talk, etc. Oh, and by the way F1 Circus afficinados, this weekend is the Gran Prix de Espana.

And because there is no trash without football trash, it seems the National Favre League may be back in business. Oh and one of the Deetroit Lions is promising playoffs.

"I won’t make a prediction about how many games we’re going to win, but I will say this: We will definitely make the playoffs this season. Believe it or not we weren’t far off last year. Almost every game we could have won, we were one play or one player short. Except for Tennessee on Thanksgiving, they just came out and beat us to sleep. Read more →

Pelosi’s Advisory On Abu Zubaydah And Torture

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As Marcy noted back on April 29th, the issue of Nancy Pelosi’s briefing back in 2002 on the Bush/Cheney torture program, whether or not it was being applied to Abu Zubaydah and, if so, to what extent, has really turned into a he said-she said game. (See also here regarding the Porter Goss offensive against Pelosi and Harman).

So, it should not come as any surprise that yet another missive has been launched in this little passion play. Today’s strike comes courtesy of Rick Klein at ABC News:

ABC News’ Rick Klein reports: House Speaker Nancy Pelosi was briefed on the use of “enhanced interrogation techniques” on terrorist suspect Abu Zubaydah in September 2002, according to a report prepared by the Director of National Intelligence’s office and obtained by ABC News.

The report, submitted to the Senate Intelligence Committee and other Capitol Hill officials Wednesday, appears to contradict Pelosi’s statement last month that she was never told about the use of waterboarding or other special interrogation tactics. Instead, she has said, she was told only that the Bush administration had legal opinions that would have supported the use of such techniques.

MadDog has slithered into the depths of Human Events.com to find what they claim is "the report". He has also given us a hand glossary for the abbreviations. The Washington Post seems to think it is "the report" as well, for what it is worth:

In a 10-page memo outlining an almost seven-year history of classified briefings, intelligence officials said that Pelosi and then-Rep. Porter J. Goss (R-Fla.) were the first two members of Congress briefed on the tactics. Then the ranking member and chairman of the House intelligence committee, respectively, Pelosi and Goss were briefed Sept. 4, 2002, one week before the anniversary of the terrorist attacks of Sept. 11, 2001.

Pelosi has already, of course, issued a denial through a spokesman. More he said-she said. Quite frankly, without more, today’s play should be taken with a grain of salt. Multiple major news organizations have this hot off the press info right after Congress receives it and right wing hit rag Human Events (Jed Babbin) is pitching it as a slam on Pelosi. How very convenient. As further evidence of the need for grains Read more →

Big Auto Musical Chairs

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Okay, I didn’t see this one coming.

General Motors is staring imminent bankruptcy dead in the eye:

In April, the automaker drew another $2 billion and has said it would expect to need another $2.6 billion from the U.S. Treasury before the June 1 deadline. That would take GM’s debt to the U.S. government to $18 billion.

GM has asked its three major creditor groups to write off at least $43 billion in debt in exchange for ownership stakes in a restructured company.

GM bondholders, who are owed $27 billion, have also been offered new stock in exchange for writing off debt in a bond exchange the automaker launched last week.

GM is targeting a reduction of at least $24 billion, or 90 percent, of its bond debt under the plan and has warned that it could be forced into bankruptcy if that cannot be achieved.

Read the entire article, it is a bleak picture for the General.

Good golly that sounds dire, I wonder what new ideas are afoot to reign in the size and voracious appetite for spending at GM? Well, glad you asked, because they want to acquire a significant stake in Fiat!

Four years after paying $2 billion to extricate itself from a partnership with Fiat, General Motors is seeking a stake in the Italian automaker in exchange for its Latin American and European operations.

General Motors is eager to cede control of its money-losing Opel unit in Germany. But Fiat has also expressed interest in G.M.’s other European operations as well as its historically profitable Latin American business, though the possible terms of such a deal have not been discussed publicly.

G.M., despite its precarious financial position, now feels it has a bargaining chip with its Latin American unit, and is negotiating with Fiat over what it might get in return.
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But G.M. executives are holding out for at least 30 percent of the Fiat Auto Group, according to these people, who said they were not authorized to comment publicly because the discussions are fluid.

Fiat. You know, the same Fiat that is supposedly saving Chrysler by merging with it. A merger, by the way that is effectively being subsidized by the bailout funds from the US taxpayers. And they are going to cut a deal with GM, who is surviving almost exclusively by the good graces of the US taxpayer.

And here is a nice little kicker, Fiat is looking for Read more →

The Value Of The Hometeam

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Sports are a fickle thing, they bring out the best and the worst of people. Professional sports franchises often come, in a way, to define their cities. Pittsburgh, home of the Steelers. Boston, home of the Red Sox. Detroit, home of the Red Wings. But what is their intrinsic value? What does it mean when they leave? The City of Phoenix may be about to find out:

Less than an hour before the National Hockey League commissioner planned to broker a deal to sell the Phoenix Coyotes and strip team owner Jerry Moyes of his duties Tuesday, Moyes filed for bankruptcy to sell to his own buyer.

Moyes, as part of a Chapter 11 reorganization filing, agreed to sell the team for $212.5 million to a BlackBerry wireless magnate who plans to move the team to a yet-to-be determined location in southern Ontario, Canada.

The move is not a certainty. Already, the NHL and Glendale, which leases Jobing.com Arena to the Coyotes, have objected to Moyes’ tactics. And other investors could outbid BlackBerry executive Jim Balsillie’s PSE Sports & Entertainment LP.

But the Coyotes, who have played in metro Phoenix since 1996, habitually have lost money in the desert, first when they shared an arena with the Phoenix Suns in downtown Phoenix and most recently in Glendale.

Moyes, who since 2001 has invested more than $310 million in the team, declined to be interviewed. Earl Scudder, his financial and legal adviser, said Moyes had no option but to file for bankruptcy because that was the only way to void the team’s lease with Glendale.

There are so many threads here it is hard to know where to start. The arrogance of an owner. The bankrupt state of a national sports franchise. And not just any hockey franchise either, one run by the Great One, the greatest hockey player ever, Wayne Gretzky and playing in one of the newest most state of the art single sport dedicated stadium in the league. Oh, and hey, does the line "no option but to file for bankruptcy because that was the only way to void the team’s lease with Glendale" not sound an awful lot like the mantra of the Obama Administration and the auto manufacturers trying to shed those pesky dealership agreements?

So, apparently the market value of the Phoenix Coyotes is 212.5 million – if the team is shipped off to somewhere in Read more →