Why We Can't Have Federal Whistleblowers, Per Congress

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I’m watching the debate over amendment adding federal whistleblower protection to the stimulus package, on CSPAN.

And thus far, I’ve seen the following explanations for why we can’t have our billions of dollars in stimulus and TARP funds protected by Federal whistleblower protections.

Crazy Pete Hoekstra says we can’t have federal whistleblower protection because it would expose sources and methods.

Think about that. We can’t allow federal employees to come forward to report waste and fraud (and subsequently have their jobs protected) because doing so would expose sources and methods. 

Apparently, we’re stimulating the economy by employing a bunch of new spooks.

Then, another Congressman (sorry, didn’t get who it was) who argued that federal whistleblower protection would make it hard for TSA to ramp up screeners quickly.

Don’t worry, though, because the amendment just passed. So apparently those spooks who are getting hired under stimulus (!) better be careful…

The Blagojevich Shakedown

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The IL Legislature has posted transcripts and tapes of the four conversations Fitz released to the Impeachment Committee. (Right now, the tape servers are overwhelmed, but the trasncripts give a glimpse of the sweet guys these are. Update: The Trib has working audio.)

Tape 1 Transcript 1

Tape 2 Transcript 2

Tape 3 Transcript 3

Tape 4 Transcript 4

They consist of four conversations: one on November 13, two from December 3 surrounding a visit Lon Monk paid to John Johnston at his track, and one from December 4. All conversations pertain to $100,000 that Monk, Blago, and his brother Rob seem to understand Johnston will pay, though they are concerned about the timing of the donation in relation to Blago’s signing a bill funneling a chunk of profits from casinos to track owners. 

The most damning part of this conversation actually comes from Monk, who relates telling Johnston,

And I said, "Look, there’s a concern that there’s gonna be some skittishness if your bill gets signed because of the timeliness of the commitment." He said, "Absolutely not. I mean do you want me to put some into the next quarter." I said. "No. That’s not my point. My point is this has all gotta be in now."

Suggesting that Lon was demanding Johnston’s contribution before Blago signed the bill (which he eventually did sign on December 15), because he otherwise might not get the money. 

This is all very thuggish. But particularly since Johnston replied, "I’ve always been there," it’s not at all clear that Blago wouldn’t have signed the bill without getting the money; indeed, it’s not clear whether he got his money or not. Even given the limited transcripts we saw in the complaint, this doesn’t appear to be the most damning of the conversations included in the complaint.

The other thing that’s interesting is the timing of this. The Monk visit to the track took place on December 3, just days before Fitzgerald arrested Blago (and just as Blago was apparently trying to orchestrate $1.5 million out of Jesse Jackson Jr.’s backers for the Senate seat). 

It’s not clear that Blago ever got any of his money that first weekend in December. But dang! He had a demand out for it from just about everyone in Illinois.

Rove's "Renewed" Privilege Assertion: Is It Absolute Immunity or Executive Privilege?

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Thanks to MadDog for finding someone besides Gloria Borger discussing Bush’s recent letter reasserting his support for Rove to blow off Congress.

It’s unclear, from the reporting, whether the letter reasserts absolute immunity or asserts, for the first time, old-fashioned executive privilege regarding the information Conyers subpoenaed Rove to testify about. The WSJ speaks clearly in terms of "renewed assertion," suggesting Bush is making the same argument that he did earlier for Rove, that presidential aides can simply blow off Congressional subpoenas pertaining to their official duties. 

Robert Luskin, Mr. Rove’s attorney, said Mr. Rove recently received a renewed privilege assertion from President Bush, before the president left office. Mr. Luskin said he would consult with Mr. Obama’s White House counsel to determine the Obama administration’s stance.

But in an interview with the WaPo, Luskin clearly discusses executive privilege.

Robert D. Luskin, an attorney for Rove, said his client will "abide by a final decision from the courts." Luskin noted that Bush, in a letter to Rove, recently reasserted executive privilege.

"It’s generally agreed that former presidents retain executive privilege as to matters occurring during their term," Luskin said. "We’ll solicit the views of the new White House counsel and, if there is a disagreement, assume that the matter will be resolved among the courts, the president and the former president."

I wouldn’t make too much of that, though, because Luskin has very consistently tried to normalize the radical assertion of absolute immunity Rove relied on last year by talking in more general terms of privilege.

So thus far, we know Rove has a new piece of paper, but we don’t know what is on that paper.

And that could make all the difference between whether we get Rove testimony within hours of Holder taking over at DOJ, or whether Rove’s testimony gets litigated for some time going forward. Here’s why (for background read this post and this post). What follows is my NAL description–those of you with real credentials here, feel free to correct me where I screw this up.

Executive privilege is a constitutionally recognized privilege for the President to shield certain topics from the scrutiny of the other branches, the idea being that Courts or Congress should not be able to snoop into the Executive’s doings in matters that they have no constitutionally recognized business snooping in. Read more →

Three Data Points on Blagojevich

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While some of us were busy in DC meeting Roland Burris this week, there were three data points of note in the Blagojevich scandal.

Genson Gone

First and foremost, Blago defense attorney Edward Genson quit his criminal trial.

Powerhouse lawyer Edward Genson, who most recently helped singer R. Kelly beat a child-pornography rap, said he will be "formally off" Blagojevich’s criminal case "when the next court hearing comes along.

"I wish him luck, and I hope he wins," Genson said. 

Now this is different from Genson’s earlier refusal to defend Blago in his impeachment trial. In that action, Genson was joined by co-counsels Sam Adam Sr. and Jr. This decision, however, appears to stem from disagreements with the Adams.

Genson, sources said, had been frustrated over a lack of communication with other attorneys for Blagojevich. That dissension boiled over Thursday when lawyer Sam Adam Sr. and his son Sam Adam Jr. said they planned to file a lawsuit to block the governor’s upcoming Senate impeachment trial. Genson had said there was no chance a lawsuit would be filed.

The Genson announcement is interesting for a couple of other reasons. Recall that Sam Adam Jr. was the one who brokered the Burris appointment–even after Genson had announced that Blago would not appoint anyone for the seat. When asked by the legislative committee whether having one’s defense attorney negotiate the appointment of a senate seat described in the criminal complaint tainted that appointment, Genson insisted that Sam Adam Jr. was not a part of the defense team.

And here we are, just a few weeks later, and Adam is a part of the team and Genson is not.

But the split here may represent larger disagreements about the proper course for Blago. If Genson fought unsuccessfully to prevent Blago from appointing anyone, and if he is now implicitly accepting the legal basis for the impeachment (or at least the inadvisability of challenging its legality), it is possible his defense strategy more closely resembled what a sane person’s would be: for Blago resign without appointing to the seat before an impeachment and get the best deal from Fitz you can. And, as a reminder, Blago’s team (or at least his team prior to Genson quitting) readily agreed to a 90 day delay of Blago’s indictment. Not that his new, Genson-less team could change their mind or would. Read more →

Working Thread on WH EMails "Compliance"

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Much of this is Greek to me–and it’ll take a while to upload it all–but I’m sure MadDog and WO can make some sense out of what the Bush Administration says is proof they’re complying with requirements to save their emails. Here’s the document explaining what this inventory is.

Copy Set Inventory

Damaged Tapes

EDM

Geneva 1

Obama Drafts Order To Close Gitmo; Suspends Habeas Cases In DC Circuit

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First off, President Obama has already drafted the order to close Gitmo, as he had promised. The AOL News is reporting:

The Obama administration is circulating a draft executive order that calls for closing the detention center at Guantanamo Bay within a year.

The draft order also would declare a halt to all trials currently under way at the facility, where roughly 800 detainees in the war on terror are held.
…
Word of the draft order comes on the same day that a judge granted Obama’s request to suspend the war crimes trial of a young Canadian in what may be the beginning of the end for the Bush administration’s system of trying alleged terrorists.
The judge, Army Col. Patrick Parrish, issued a written order for the 120-day continuance, without even holding a hearing on the question. Another judge was expected to rule later Wednesday on a similar motion to suspend the trial of five men charged in the Sept. 11 attacks.

Secondly, as I explained in the last post, President Obama has moved to suspend tribunal proceedings at Gitmo, and the military panels have started entering the orders. As further evidence of the determination to immediately address, and bring a new sense of enlightened justice to, the detainees in Guantanamo, the Administration has imposed analogous continuance motions in pending Habeas cases in United States District Court for the District of Columbia.

Specifically via a motion in Bostan v. Bush et. al, (DC Dist. 05-CV-00883), and a similar motion filed in Mohammon v. Bush et. al (DC Dist. 05-CV-02386), the Administration has moved to continue two hearings scheduled for this afternoon in respective Habeas Corpus cases.

The gist of the motions in both cases can be gleaned from the operative language in the Bostan case motion:

1. The Court previously scheduled a hearing on petitioners’ motions for expedited
judgment on the record for Wednesday, January 21, 2009, at 2:00 p.m. See, e.g., Bostan v.
Obama, No. 05-cv-0883, Order (Jan. 12, 2009, dkt. no. 109). The argument will involve issues
such as the appropriate nature and scope of the Executive’s detention authority during wartime.

2. Earlier today, Barack Obama assumed the office of the President of the United
States.

3. The Government is now assessing how it will proceed in the above-captioned
Guantanamo Bay detainee habeas corpus cases. Time is needed to make that assessment and
determination. Accordingly, the Government Read more →

President Obama Officially Halts GITMO Show Trials

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h/t Amnesty International

President Obama has ordered an abrupt halt in the Gitmo Show Trials. From Peter Finn at the Washington Post:

In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba — a clear break with the approach of the outgoing Bush administration.

The instruction came in a motion filed late Tuesday with a military court handling the case of five defendants accused of organizing the Sept. 11, 2001, attacks on the United States. The motion called for "a continuance of the proceedings" until May 20 so that "the newly inaugurated president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

In the legal field, this is known as an act taken "in the interests of justice". An incredibly welcome move by an administration literally only hours into its initial term. You have to hand it to President Obama, Guantanamo is a sensitive topic, especially with the neocon screechers, yet he proved the courage of his convictions and acted immediately upon being sworn in.

It appears that the action was foreshadowed at Camp Delta, as Carol Rosenberg of McClatchy already had reported, even before Obama was sworn in, that the trial of Omar Khadr had been put on hold:

A military judge on Tuesday postponed next week’s trial of Canadian captive Omar Khadr, easing pressure on the new occupant of the White House to make a swift decision on military commissions.
…
Until Tuesday, the Khadr case was shaping up to be an early test of Obama’s pledge to close the prison camps.
…
But Parrish’s indefinite delay — he set no new trial date — also derailed Pentagon plans to airlift a jury panel of U.S. military officers to this remote base this weekend.

The stay of all proceedings at Guantanamo for at least 120 days is, as stated, wonderful news; however, the better question is what it portends for the future disposition of the legal cases of the detainees including Khalid Sheik Mohammed and his co-defendants accused of organizing the 9/11 attacks.

Notably, the defense teams do not appear quite as thrilled as one might would expect by the move, citing fears that the government is simply trying to clean up the tribunal process minimally in order to continue on. Lt. Cmdr. William Kuebler, who represents Read more →

Colin Powell Tees Off A Parting Shot At Bush & Cheney

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Inauguration Day was not kind to the Bush/Cheney cabal (nor should it have been for that matter). The sheer enormity of the crowds on the Capitol Mall and in the streets of Washington DC was a powerful message on the joy of the new and the disdain of the old.

From the subtle pricks of President Obama’s words proclaiming an "end to the petty grievances and false promises, the recriminations and worn out dogmas, that for far too long have strangled our politics", to the massive crowd on the mall chanting and singing "Na-na-na-nah, hey, hey, goodbye" as Bush fled tail between his legs on Marine Executive One, it was really a fairly overt slap in the face to the banished cabal.

But, as Steve Benen points out, it’s pretty devastating when even you own men are blistering your backsides like former Bush Secretary of State Colin Powell did with Bush/Cheney today. From an Interview with CBS anchor Katie Couric:

…Barack Obama’s election to the nation’s highest office a "reaffirmation of American principles values that will help us overcome some of the difficulties of recent years with respect to the attitude of the world toward us."

Speaking with CBS News Managing Editor Katie Couric, Powell said America’s prestige abroad has improved since Mr. Obama won a decisive victory over Senator John McCain.

"I think it has really, really been an remarkable event in terms of getting everybody to stand back and say, look at what we have seen here in America," Powell said. "The America we remember is back again."

Ouch. That’s a cold shot baby.

And, guess what, the cold shots were fired across the bow of Republicans in general today. From McClatchy:

Senate Minority Leader Mitch McConnell and fellow Republicans received a reception Tuesday that rivaled the frigid winter weather, as hundreds of attendees greeted GOP lawmakers with boos, chants, hisses and — in some cases — stony silence.

The chilly display toward McConnell, who was flanked by other high-ranking Republicans as he took the stage at President Barack Obama’s swearing-in ceremony, was a momentary break in the otherwise jubilant spirit of the day.

Well, what do you know, the people have it all figured out as to the degraded state of America and who is to blame; I wonder when the big media sources, their blathering heads and pin head pundits will catch on?

Today IS The Day!

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photo by michael foley

Today is the day. Now is the time. Change is in the air. Marcy is on the ground, we will update as she checks in. Consider this an open thread for anything you have to say. Spill your thoughts, emotions and hopes. Post any breaking news you see that I, and all of of us, might need to know.

I can just feel the difference already, can you?

Let’s get it on people!

UPDATE:

Loo Hoo reminded me of Marie Roget. Although I knew her only from the blog, I loved Marie Roget. I know many others did as well. She was a self proclaimed "fire breathing progressive". She lived to see the day today, and tragically, was not able to complete the journey with us. Marie lives on through us today, and this video was one of her favorites. It is wonderful.

Coach Bush is 3-23 In Real Courts On Gitmo Show Trials; Katyal, The Hero Of Hamdan, To Join Obama Administration

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If your local football coach was 3 wins and 23 losses for the season, you could rest assured of two things; one, you are a Detroit Lions fan and, two, the coach is getting fired. Well, there was an interesting little article that was published in today’s New York Times, and the upshot is that 3 and 23 is exactly what the Bush/Cheney regime’s record is when their Guantanamo Detainee cases see the sunshine of a real court. Clearly we have pretty much been endlessly detaining a lot of innocuous people on unsubstantiated evidence.

Describing the release last weekend of Haji Bismullah, an Afghan detainee held at Guantánamo Bay for nearly six years, the Times notes:

The decision was part of a pattern that has emerged in the closing chapter of the administration. In the last three months, at least 24 detainees have been declared improperly held by courts or a tribunal — or nearly 10 percent of the population at the detention camp in Guantánamo Bay, Cuba, where about 245 men remain.
…
While Mr. Bismullah’s case was decided by a military panel, the rulings for the other 23 detainees occurred in habeas corpus hearings in federal court. Since a Supreme Court decision in June gave detainees the right to have their detentions reviewed by federal judges in habeas cases, the government has won only three of them.

Get that?? 3 and 23. Not. Real. Good. Certainly puts the lie to Cheney and Bush’s promises that they were holding only the "worst of the worst" after all these years doesn’t it?

The cases provide a snapshot of the intelligence collected by the government on the suspects and suggest that there was little credible evidence behind the decision to declare some of the men enemy combatants and to hold them indefinitely.
…
“The government’s failure in case after case after case to be able to prove its case calls into question everybody who is there,” said Susan Baker Manning, a lawyer for 17 Uighur detainees from western China who were ordered released by a federal judge in October. The Justice Department has appealed that order from a federal district judge, Ricardo M. Urbina, and the men are still at Guantánamo.

Well, I guess, as shocking as it is, this is not exactly breaking news anymore. The brittle patina of legitimacy and credibility, to the extent there ever was any, began to crack with the first major Read more →