Obama Becomes Bush As We Wait For Walker’s Ruling

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graphic by politicalbase

graphic by politicalbase

As you may recall, since February 27, we have been waiting for a decision, of some sort, from Vaughn Walker in the al-Haramain and Consolidated Cases litigation in NDCA. The decision is not in yet; however, there is a new filing in the Consolidated Cases further ingraining the oneness of Obama with Bush in the litigation.

There really wasn’t much doubt about the oneness with the exception of the nuance Marcy noted as to Obama shifting slightly away from privilege in favor of the merits. Slightly is the key word there; the overall tenor of the Obama position in the consolidated wiretapping cases is disgustingly identical to the duplicitous and wrongheaded state secrets policy of Bush/Cheney.

The new filing is by the government, by and through the Obama DOJ, and is a motion to dismiss in a recently consolidated case, McMurray v. Verizon Communications. Interestingly, McMurray was already a plaintiff from the start in the Consolidated Cases, but attempted to file a separate action in July of 2008 in the Southern District of New York challenging the application of Section 802 to their original action that had already been consolidated. Section 802 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C.§ 1885a(a) provides that a civil action “may not lie or be maintained” against electronic communication services providers alleged to have provided assistance to an element of the intelligence community, and “shall be promptly dismissed” if the Attorney General of the United States certifies that one of several circumstances exist with respect to the alleged assistance.

Now you may ask yourself why did McMurray file this challenge in SDNY instead of in Vaughn Walker’s court where his case, and all the others, already was lodged? Excellent question, and one I have no answer for since it was bound to be transferred out to Walker’s court with the rest of the Consolidated Cases including, notably, McMurray’s. Of course, the better question is how did all the cases ever get consolidated in the 9th to start with, and I will get back to that later.

Now, with respect to the motion to dismiss filed Friday the 13th, there is one new wrinkle regarding a takings clause claim, mostly, however, it is notable for the fact that it continues the same crappy and duplicitous pleading style that was so prevalent under Bush. It is yet one more (as if more was needed at this point) indication that Barack Obama has completely morphed into George Bush and Dick Cheney in terms of craven support for government intrusion into the privacy of the citizenry, and the ability to conceal the Constitutionally infirm activity through the unitary and unreviewable imposition of state secrets doctrine.

These counts largely repeat claims plaintiffs, including the McMurray plaintiffs, made in response to the Government’s prior dispositive motion, and fail for the reasons set forth at length in the Government’s brief, which are incorporated in full by reference herein.

Same old song, same old dance. Barack Obama avowed he was a man that believed in the sanctity of the Constitution, the rights of citizens and in transparency of the Executive. Obama would be the agent of change from Bush/Cheney. Except, now that he has taken office, that is all no longer operative. As Glenn Geenwald has noted, the Obama Administration has proven itself just as cravenly addicted to secrecy, imperial executive power and willingness to strip its citizens of their rights under the Constitution, and its Bill of Rights, as Bush and Cheney.

As to the Takings Clause violation allegation that the government claims is newfangled, I believe that is new only to McMurray, other plaintiffs in the Consolidated Cases have at least noticed the claim in their pleadings to the best of my knowledge, but this is a decent opportunity to discuss it a little. I first mentioned the theory well over a year ago in the indemnification post:

In addition to the foregoing, there is an extremely good case to be made that the granting of retroactive immunity to the telcos would comprise an improper and unjust taking of the existing plaintiffs’ right to compensation under the Fifth Amendment and would, therefore, be in direct violation of the Constitution. I don’t want to belabor this thought; just put it out there so that it is considered in the mix. Hey, "Teh Google" is a most marvelous thing; here is an absolutely outstanding discussion of this issue by Professor Anthony J. Sebok of the Cardozo School of Law.

In a nutshell, the takings clause is contained in the Fifth Amendment

…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

and is what protects citizens from having their property interests seized by the government without due process and just compensation. It is what lies at the root of eminent domain cases like the notorious Kelo v. City of New London decision. There is some intellectual merit to the Takings Clause argument, but not a lot of practical hope for success on it. There are far too many ways around the Constitutional provision, several of which the government picked up on in their motion to dismiss. If you are interested in a general primer in how the Takings Clause could theoretically apply to the FISA situation, see the Sebok article referenced in the quote above.

What I find interesting (with a little prodding by Marcy) is that John Yoo and the Bush/Cheney regime planned on being confronted with Takings Clause complaints by citizens when they declared war on the Constitution. Yoo blithely dispensed with the applicability of the takings clause, indeed the entire Bill of Rights effectively, to the President’s military program (and remember the wiretapping was run militarily through the NSA) via a footnote in his infamous March 2003 Torture Memo. As Greenwald described Yoo’s execrable arguments:

The President’s power to use military force domestically in violation of the Bill of Rights applies equally even if the actions are ordered against American citizens on U.S. soil ….. The President, when using military force against American citizens on U.S. soil, is "free from the constraints" not only of the Fourth Amendment, but also of other core guarantees of the Bill of Rights — including First Amendment liberties, Due Process rights, and the takings clause ….. If this isn’t the unadorned face of warped authoritarian extremism, what is?

No kidding. The galling part is to compare and contrast what Yoo tried to do in his sweeping blithe evisceration of the Constitution and Bill of Rights, substantially via a freaking footnote, with a detailed lawyerly dissertation on specific case precedence and statutory history; the merits if you will. See, the Takings Clause can be worked around through proper legal argument, or at least a proper argument therefore made; that is proved by the government’s response in the March 13, 2009 motion to dismiss. But Yoo, Bush and Cheney wanted none of the legal niceties, they wanted to seize supreme unadulterated power and went about doing so in blanket fashion. Now they are using the bludgeon of state secrets to cover the power grab, even under the supposedly enlightened Obama. Different name, but the same totalitarian bludgeon for the same unitary executive power grab.

Oh yes, back to the interesting point about why the cases may have been consolidated in the 9th Circuit in the first place. It always has perplexed me as to how, and why, in the world the government ever allowed all these critical FISA/Fourth Amendment cases to be consolidated in the 9th, the most liberal and rebel appellate circuit of all. If there is any circuit you would think the government would not want to be stuck in, it is the 9th. Yet there they all are, consolidated in Vaughn Walker’s San Francisco courtroom and subject to appeals to panels of the notorious Ninth.

Marcy previously discussed the September Read more →

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“And it does not employ the phrase ‘enemy combatant'”

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In DOJ’s press release on Obama’s rejection today of the term "enemy combatant," that sentence appears at the end of the first paragraph:

In a filing today with the federal District Court for the District of Columbia, the Department of Justice submitted a new standard for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase "enemy combatant." [my emphasis]

That’s it. Part of the lede. They’re not using the same phrase Bush used.

Whoop.

Dee.

Doo.

They are, mind you, situating their authority to detain people solidly in the AUMF (rather than Article II) and admitting SCOTUS kicked Bush’s ass on these issues on multiple occasions.

 The United States bases its detention authority as to such persons on the Authorization for the Use of Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarily informed by principles of the laws of war. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality). The laws of war include a series of prohibitions and obligations, which have developed over time and have periodically been codified in treaties such as the Geneva Conventions or become customary international law. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006).

But from this purported "refinement" of its stance toward detainees, it proceeds to reassert the role of the executive in judging which detainees to hold.

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. [my emphasis]

The President has the authority … the President determines … the President has the authority.

You see, it’s still the same unitary power, stripped of the baggage of Bush’s vocabulary. And even as they abandon Bush’s vocabulary, they progressively expand the reach of that authority to include just about all those whom Bush already determined were enemy combatants, no matter how nebulous that person’s ties to al Qaeda.

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The IP Treaty Is Secret Too?!?!?

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A reader sent this link, reporting that the Obama Administration refuses to release under FOIA a number of documents pertaining to an intellectual property treaty negotiated under Bush.

Last September, the Bush administration defended the unusual secrecy over an anti-counterfeiting treaty being negotiated by the U.S. government, which some liberal groups worry could criminalize some peer-to-peer file sharing that infringes copyrights.

Now President Obama’s White House has tightened the cloak of government secrecy still further, saying in a letter this week that a discussion draft of the Anti-Counterfeiting Trade Agreement and related materials are "classified in the interest of national security pursuant to Executive Order 12958."

[snip]

Jamie Love, director of the nonprofit group Knowledge Ecology International, filed the Freedom of Information Act request that resulted in this week’s denial from the White House. The denial letter (PDF) was sent to Love on Tuesday by Carmen Suro-Bredie, chief FOIA officer in the White House’s Office of the U.S. Trade Representative.

Love had written in his original request on January 31–submitted soon after Obama’s inauguration–that the documents "are being widely circulated to corporate lobbyists in Europe, Japan, and the U.S. There is no reason for them to be secret from the American public."

[snip]

Love’s group believes that the U.S. and Japan want the treaty to say that willful trademark and copyright infringement on a commercial scale must be subject to criminal sanctions, including infringement that has "no direct or indirect motivation of financial gain." 

Frankly, I don’t know why Obama is keeping this secret. He doesn’t want Americans to realize that our largest export–Intellectual Property–is as vulnerable in some ways as the housing market? He doesn’t wants us to know that he’s maintaining, on an international level, policies which violate his claim to be net friendly on the national level? He doesn’t want us to know the technology they’re advocating for pursuing peer-to-peer software? Maybe the discussions the parties to the treaty had touched on some or all of this…

Or maybe he just want us to know what tunes Osama bin Laden has on his iPod? 

Update, from WO in comments:

I found the leaked draft on wikileaks. I suspect the reason for the secrecy is this line that I don’t think anybody has noticed:

Civil enforcement:
— Authority to order ex parte searches and other preliminary measures;

Ex parte searches? For digital materials? Sounds like the NSA’s dream come Read more →

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Sam Zell Chats with Fitz

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I’m not so much surprised by the news, from yesterday, that the consultant brokering a deal between the Tribune Company and Rod Blagojevich spoke with Blago’s Chief of Staff John Harris the day before the FBI arrested Blago to stop a "political corruption crime spree."

[Consultant Marc] Ganis also noted the Cubs were not part of the firm’s bankruptcy filing and said, "Nils [Larsen] is going to call you and Sam [Zell] is going to call the Gov."

Nor am I surprised by the news that Sam Zell chatted with Fitz and friends under subpoena, or that he spoke with Blago the day before he was arrested.

Tribune Co. Chairman Sam Zell hired well-known defense lawyer Anton Valukas and was interviewed in January by federal prosecutors as a "potential witness" in the criminal investigation of former Illinois Gov. Rod R. Blagojevich, the company acknowledged Wednesday.

[snip]

In their subpoena to Tribune Co., federal authorities sought information about potential staff cuts or changes to the newspaper’s editorial board. The company has said Tribune Co. executives did nothing inappropriate.

Tribune Co. also acknowledged state records, recently obtained by the Chicago Tribune, that show Zell making a phone call and giving a gift to Blagojevich.

According to records of Blagojevich’s telephone logs, Zell placed a call to the governor Dec. 8, the day before the arrest. Zell placed "courtesy calls" to several elected officials, including Mayor Richard M. Daley, that day to notify them that the company had just filed for bankruptcy protection, according to the statement from Liebentritt. "Mr. Zell’s call to Mr. Blagojevich was not returned," the statement said.

Records also show that Zell gave Blagojevich a gift during 2008. The Liebentritt statement described the gift as a music box "or other specially created work of art."

The statement noted that for more than 30 years Zell has given such gifts to "local, national and world leaders . . . designed to share Mr. Zell’s vision for the coming year for the investment climate and the economy."

I’m most intrigued by the timing of it.

Zell spoke to proscutors in January. But we’re just learning about it now, in mid-March. And we’re learning about it from official sources at the Trib, not via less official sources.

You see, Fitz got a 90-day extension to the time when he needs to indict Blago, from January 7 to April 7. Which means anyone who wants to pre-empt news appearing in the indictment has Read more →

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Getting Their Kicks: The American-Saudi Go Around Come-Around

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Despite a decent amount of negativity roiling around the socio-political scene lately, on a fine Saturday night right here in the ole USA, this gives me a lot of heart somehow:

Then, with a scream of revving engines, it begins: a yellow Corvette and a red Mitsubishi go head to head, racing down the road at terrifying speeds, just inches apart. Shouts go up from the sidelines, and another pair of racers shoot down the road, and another.

This may be the most popular sport of Saudi youth, an obsessive, semilegal competition that dominates weekend nights here.
…
For Saudi Arabia’s vast and underemployed generation of young people, these reckless night battles are a kind of collective scream of frustration, a rare outlet for exuberance in an ultraconservative country where the sexes are rigorously segregated and most public entertainment is illegal. They are, almost literally, bored out of their minds.

“Why do they do it?” … “Because they have nothing else to do. Because they are empty.”

Despite all the shrieking of teh military-industrial class, the iron curtain fell and the cold war subsided because of information, lifestyle and ethos penetration into the supposed enemy. Thing was, they were not the enemy, they were people just like us. And so the walls came down. The Rolling Stones, Beatles and Beach Boys had as much, if not far more, to do with the victory as military might (not to mention the start of the internet and satellite teevee).

The United States government and tunnel visioned world press were too slow to figure out what was really up the first time, and lo and behold, they are biting off on the same steel fisted bunk again. It is cultural progression that is softening the underbelly of yet another clash of the civilizations. Who’d a thunk it? Who will realize it?

Then the car leaps forward, accelerating furiously, and breaks into a sudden skid, spinning around, nearly colliding with a concrete barrier and leaving thick black marks on the pavement. A stifling smell of burnt rubber hangs in the air.

It is not the bombs. It is La Bamba.

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The Northeast Takes Over Freedom and Commerce in Georgia

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All because Bush screwed up the economy so badly that another bank failed.

(And yes–it’s Saturday night. So let me have my stupid fun.)

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Burris’ Partner Fred Lebed Spoke of Favors for Blagojevich

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When Roland Burris was asked by the legislative committee whether his partner, Fred Lebed, had had any influence over the September 2008 hiring of Patti Blago at a non-profit on whose board he served, Burris claimed he would have no idea about Lebed’s actions.

Perhaps that’s true. But on the day when Blago appointed Burris (which was three months after Blago’s wife had gotten hired), Lebed sure knew he’d have some favors to return to the Governor.

On the same December day then-Gov. Rod Blagojevich named Roland Burris to fill President Obama’s U.S. Senate vacancy, Burris’ right-hand political man, Fred Lebed, phoned an associate and told him, "We’ll have to do some things for the governor."

That’s the recollection of the associate, a health-care and political consultant named John Ruff, who went on to become one of Burris’ co-plaintiffs on a January lawsuit that sought to help Burris claim his Senate seat.

Besides raising new questions about a possible quid pro quo between Blagojevich and Burris, Ruff also recalled Lebed telling him he’d had discussions about Burris’ interest in the seat with Blagojevich representatives as far back as October. That claim by Ruff contradicts what Burris said in a Jan. 5 sworn statement that is now part of a state perjury investigation.

[snip]

Ruff is adamant that if prosecutors want to get to the bottom of whether Burris perjured himself, Lebed could be a key.

"There is more to be discovered," Ruff said. "I know the key to finding the information out is through Fred. That’s the main point I wish to get across."

[snip]

One of the calls between Lebed and Ruff came Dec. 30, before Blagojevich made the stunning announcement later in the day he was appointing Burris to the vacant Senate seat.

"He called me at 9:04 a.m," Ruff said of Lebed. "We talked for 12 minutes. He called to tell me that Gov. Blagojevich was appointing Roland as senator. I congratulated him and asked him how he managed to pull that one off. And that’s when he made some flippant remark about ‘We’ll have to do some things for the governor.’ "

If Lebed was talking about Burris angling for the seat back in October, it puts it very close to the time when Patti got appointed to the charity. From which she has since been fired. 

I’d say Ruff is correct in suggesting that Lebed might have more to say about this topic. 

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Most Convictions Against Siegelman Upheld

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Three Republican-appointed judges have upheld most of the convictions of Governor Don Siegelman–while throwing out two counts of Mail Fraud.

The opinion starts by invoking the controversy surrounding the case–then nods to deference to the jury in retaining the convictions.

This is an extraordinary case. It involves allegations of corruption at the highest levels of Alabama state government. Its resolution has strained the
resources of both Alabama and the federal government.

But it has arrived in this court with the “sword and buckler” of a jury verdict. The yeoman’s work of our judicial system is done by a single judge and a jury. Twelve ordinary citizens of Alabama are asked to sit through long days of often tedious and obscure testimony and pour over countless documents to decide what happened, and, having done so, to apply to these facts the law as the judge has explained it to them. And they do. Often at great personal sacrifice. Though the popular culture sometimes asserts otherwise, the virtue of our jury system is that it most often gets it right. This is the great achievement of our system of justice. The jury’s verdict commands the respect of this court, and that verdict must be sustained if there is substantial evidence to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942).

Furthermore, to the extent that the jury’s verdict rests upon their evaluations of the credibility of individual witnesses, and the reasonable inferences to be
drawn from that testimony, we owe deference to those decisions.

It’s the jurors, fault, you see, even though several issues mentioned in the appeal pertain to problems with the jury. 

You can read through the rest and see what you make of the Courts issue by issue treatment of Siegelman’s appeal. But note, in particular, the centrality of Nick Bailey’s testimony in the Court’s decision to uphold most of the convictions. 

That’s important because–as 60 Minutes reported on its piece on Siegelman–there are allegations Prosecutors coached Bailey’s testimony and then did not turn over notes from that coaching to Siegelman’s defense team to use to impeach Bailey. Here’s Scott Horton explaining what happened (and Mukasey’s non-denial denial of the problem).

Back on February 24, CBS News’s Sixty Minutes aired a story on the prosecution of the Siegelman case that contained two bombshells. CBS interviewed Nick Bailey, the former Siegelman aide whose testimony literally sent Siegelman to prison. Read more →

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Elena Kagan Confirms Her Vacuity and Farce

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Yesterday’s Judiciary Committee consideration of Obama Solicitor General nominee Elena Kagan proved that confirmation hearings are not totally useless. We knew that the selection to be the nation’s lead advocate to the Supreme Court had never in fact appeared before the Supreme Court, had shockingly little experience in front of significant courts of any kind, thought Bush apologist and cover artist Jack Goldsmith was a boffo hire to make at Harvard Law, thought the same of the Constitutionally malleable shill Cass Sunstein, and thinks it is just fine to detain people indefinitely without due process as "enemy combatants".

That is what we knew; yesterday we learned something new about Kagan before the SJC. She was for honest and open answers to Senator’s questions at confirmation hearings before she was against it. This oh so shocking revelation is documented courtesy of the Washington Post:

She once wrote that nominees should answer questions from senators.

And in no uncertain terms, either. Reviewing Stephen Carter’s book "The Confirmation Mess" for the University of Chicago Law Review in 1995, Kagan opined that "when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."

She thought that executive branch nominees, "for whom ‘independence’ is no virtue," really deserved to be grilled.

Those statements apparently are no longer operative.
…
Kagan, the dean of the Harvard Law School, told the lawmakers she had endeavored to answer their questions but acknowledged: "I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I [previously] suggested."

Isn’t that convenient. And a good thing to know about a woman roundly considered to be at the very top of Obama’s list of choices for future appointment to the Supreme Court. Now Kagan ducked and dodged on the ground that, as a nominee to be the Administration’s advocate, her opinions were not germane:

"I do not think it comports with the responsibilities and role of the solicitor general for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions," she repeatedly said.

There is some merit to that position on the surface, but the problem I have is we have no ability whatsoever to gauge Kagan’s ability to dissect and understand difficult Read more →

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The HJC Agreement with Rove and Miers

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Here’s the written agreement between HJC and the Bush Administration for Rove and Miers’ testimony. Some highlights:

The House Judiciary Committee (the “Committee”) will interview Karl Rove and Harriet Miers, but there will be no additional interviewees / witnesses (subject to the one exception [possibly William Kelley, who has reportedly been subpoenaed in the probe on this]). 

On this, I wonder whether there isn’t someone else in the White House who was the real fulcrum of the effort? Rove’s denials have always been couched to say he didn’t talk to DOJ, but leaving open the possibility that someone else did (at least on these issues). I wonder if they’ve included this requirement to protect that person?

The scope of the interviews will be limited to: (1) facts relating to the evaluation of, decision to dismiss, or decision to replace the former U.S. Attorneys in question; the alleged decisions to retain certain U.S. Attorneys; and any allegations of selective prosecution related thereto; and (2) testimony or representations made by Department of Justice officials to Congress on the U.S. Attorneys matter. For the period beginning on March 9, 2007 (the date of the Committee’s first written demand for information from the White House), interviews will not include the content of conversations involving: (i) Mr. Rove and members of the White House Counsel’s office; or (ii) Ms. Miers and members of the White House Counsel’s office. In the case of Mr. Rove, the interview also will include facts relating to the prosecution of Alabama governor Don Siegelman.

I’ve asked whether bullet (1) includes the alleged attempt to fire Pat Fitz–will let you know if I hear.

As to the rest–they’ve clearly carved out the White House Counsel Office, presumably to protect Attorney-Client privilege. Bill Clinton and his blow job, of course, enjoyed no such privilege.

As to official privileges, counsel will direct witnesses not to respond to questions only when questions relate to communications to or from the President or when questions are outside the scope of questioning set forth above.

Regarding the David Iglesias firing, of course, there are allegations that Bush intervened directly to give the order to fire him. Read more →

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