Federal Court Strikes Down Obama DOJ’s State Secrets Defense

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In what can only be described as a significant ruling, Judge Jeffrey White in the Northern California District (CAND) has rejected the federal government’s, via the Obama and Holder Department of Justice, assertion of state secrets privilege in the case of Jewel v. National Security Agency and the related consolidated case of Shubert v. Obama.

The full decision of the court is here, and in the critical active language from the court’s own summary states:

Having thoroughly considered the parties’ papers, Defendants’ public and classified declarations, the relevant legal authority and the parties’ arguments, the Court GRANTS the Jewel Plaintiffs’ motion for partial summary adjudication by rejecting the state secrets defense as having been displaced by the statutory procedure prescribed in 50 U.S.C. § 1806(f) of FISA. In both related cases, the Court GRANTS Defendants’ motions to dismiss Plaintiffs’ statutory claims on the basis of sovereign immunity. The Court further finds that the parties have not addressed the viability of the only potentially remaining claims, the Jewel Plaintiffs’ constitutional claims under the Fourth and First Amendments and the claim for violation of separation of powers and the Shubert Plaintiffs’ fourth cause of action for violation of the Fourth Amendment. Accordingly, the Court RESERVES ruling on Defendants’ motion for summary judgment on the remaining, non-statutory claims.

The Court shall require that the parties submit further briefing on the course of this litigation going forward.

Now, before too much celebration is made, there are some sobering aspects of this decision as well. As can be told from the quote above, several counts in both complaints have been dismissed based on sovereign immunity, and the court has questions about the continued validity of the remaining counts and has requested further briefing in that regard.

With the ultimate status of the litigation left for another day, the big news today is the negation of the dreaded state secrets assertion. To say this is a rare occurrence is to be too kind. In fact, the main instance where the privilege was overcome was the al-Haramain litigation, also in CAND, where Judge Vaughn Walker found non-classified evidence sufficient to proceed in the face of the state secrets assertion, and even that case was later reversed and dismissed by the 9th Circuit.

The court in Jewel mapped out the consideration process for the privilege challenge:

The analysis of whether the state secrets privilege applies involves three distinct steps. First, the Court must ascertain whether the procedural requirements for invoking the privilege have been satisfied. Second, the Court must make an independent determination whether the information is privileged. In determining whether the privilege attaches, the Court may consider a party’s need for access to the allegedly privileged materials. See Reynolds, 345 U.S. 19 at 11. Lastly, the “ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim.” El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007).

Noting that the assertion of state secrets must not cause “a complete surrender of judicial control over access to the courts”, Judge White wrote:

Here, having reviewed the materials submitted for review and having considered the claims alleged and the record as a whole, the Court finds that Defendants have timely invoked the state secrets doctrine. Defendants contend that Plaintiffs’ lawsuits should be dismissed as a result of the application of the privilege because the state secrets information is so central to the subject matter of the suit that permitting further proceedings would jeopardize national security. Given the multiple public disclosures of information regarding the surveillance program, the Court does not find that the very subject matter of the suits constitutes a state secret. Just as in Al-Haramain, and based significantly on the same set of facts in the record here, the Court finds that although there are certainly details that the government has not yet disclosed,

because of the voluntary disclosures made by various officials since December 2005, the nature and purpose of the [Terrorist Surveillance Program], the ‘type’ of persons it targeted, and even some of its procedures are not state secrets. In other words, the government’s many attempts to assuage citizens’ fears that they have not been surveilled now doom the government’s assertion that the very subject matter of this litigation, the existence of a warrantless surveillance program, is barred by the state secrets privilege.

507 F.3d at 1200; see also Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 986-88, 991 (N.D. Cal. 2006) (holding that the existence of a program of monitoring the contents of certain telephone communications was no longer a state secret as a result of the public statements made by the President and the Attorney General). Accordingly, the Court does not find dismissal appropriate based on the subject matter of the suits being a state secret. See Totten, 92 U.S. at 107.

White went on to note that there were significant items of evidence in the Jewel case tending to confirm or negate the factual allegations in Plaintiffs’ complaints that would be subject to state secrets exclusion. However, White held that, as a matter of law, the FISA procedural mechanism prescribed under 50 U.S.C. 26 § 1806(f) preempted application of the state secrets privilege in the litigation at bar.

Citing one of the interlocutory appellate decisions in al-Haramain and the underlying logic of then trial judge Vaughn Walker), Judge White said:

In its opinion on remand in the Al-Haramain matter, this district court found that “FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes ….” In re National Security Agency Telecommunications Records Litigation (“In re N.S.A. Telecommunication Records Litig.”), 564 F. Supp. 2d 1109, 1111 (N.D. Cal. 2008). The undersigned agrees and finds that the in camera review procedure in FISA applies and preempts the determination of evidentiary preclusion under the state secrets doctrine. Section 1806(f) of FISA displaces the state secrets privilege in cases in which electronic surveillance yields potentially sensitive evidence by providing secure procedures under which courts can consider national security evidence that the application of the state secrets privilege would otherwise summarily exclude.

Section 1806 of the FISA enabling statutes in Title 50 of the United States Code provides, inter alia;

… whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State . . . to discovery or obtain applications or orders or other materials relating to electronic surveillance . . . the United States district court … shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.

This finding by Judge White reaffirmed at least some control by federal trial courts of sweeping assertions of state secrets privilege by the Executive Branch. That is, better than nothing, for sure. But it is rather small comfort in light of the finding of qualified immunity extended to the government on the Jewel and Shubert plaintiffs’ statutory claims under FISA.

In discussing the intersection of the FISA claims with related claims by plaintiffs under the Stored Communication Act and Wiretap Act, the court did leave several more general counts of the complaints active. However, there is no way to look at the entirety of Jeff White’s opinion and come away believing the plaintiffs have any clear path to victory in the long run. The Jewel and Shubert cases live on to fight another day, for now, but the handwriting is on the wall for either the 9th Circuit or Supreme Court to deal the death blow down the road.

The Marriage Equality Decisions

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Picture-1The moment of truth has finally come on the long and tortured path through the Supreme Court for the marriage equality movement. Without further adieu, the Defense Of Marriage Act has been struck down as unconstitutional under Equal Protection grounds in a 5-4 opinion authored by Anthony Kennedy. A lack of standing has been found by the court in the California Hollingsworth v. Perry Prop 8 case, thus meaning the case will revert to the Ninth Circuit decision.

Frankly, everybody in the universe is going to have instantaneous analysis and opinion on the nature and import of these two decisions. I will likely be along with the same on particular aspects later, but for now I want to get the decisions and opinions up here so that one and all can read and discuss them. Below I will give the links to the opinions and the critical language blurbs from each.

United States v. Windsor (DOMA): Here is the opinion. As stated above, it is a 5-4 split authored by Justice Kennedy, joined by the liberal bloc of Ginsburg, Breyer, Sotomayor and Kagan. Chief Justice Roberts, Scalia, Thomas and Alito dissent in separate dissents written by Roberts and Scalia.

The opinion is very broad in range and focuses on Section 3 of DOMA, which will effectively obliterate the law. The key holding comes at the end of Kennedy’s majority opinion:

DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA in- structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the mar- riages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

Hollingsworth v. Perry (Prop 8): Here is the opinion. As stated above, the court found a lack of standing by the appellants Hollingsworth (Prop 8 Proponents). ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined. So, just to be clear here: The liberals are the reason the court could not issue a decision granting ALL Americans the right to marriage equality that citizens in California, and the other few states who have state law marriage equality, will enjoy.

Anthony Kennedy, by his crystal clear decision and language he penned in the Windsor DOMA decision, and his willingness to find standing and rule on the merits in the Prop 8 case, was ready to make it happen. And all the liberal justices, save for Sonia Sotomayor, prevented it.

The court has remanded Hollingsworth back to the 9th Circuit with instructions to enter a similar ruling based on lack of standing/jurisdiction. That means that the broad and sweeping decision entered by Vaughn Walker in the district court trial will become law in California.

Now, to again be clear, I expect there will be litigation attempts by the Equality Haters to try to restrict Walker’s decision to the two plaintiff couples and/or the two respective counties at issue in the original Perry complaint. I do not believe that will bear any fruit and fully expect full marriage equality to exist across all of California, but it may not be as immediate as it should. We shall see.

In closing, a very good day for marriage equality and LGBT rights. The DOMA decision is broad and provides for heightened scrutiny in evaluating marriage and sexual identity issues; that portends well for future rights litigation. And, of course, DOMA is dead. Also heartwarming that all of California’s citizens will have their rights protected; it is, however, sad that this will not extend to all Americans.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

The Day of Sentencing Judgment for Scott Bloch

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When we last left Scott Bloch, the former Bush attorney who was the appointed head of the Office of Special counsel (OSC), it was the original date for his sentencing. The court delayed entry of sentence to further investigate the full extent of his criminal conduct. It appeared that, after strong letters like from this blog and attorney Debra Katz, who represents several former OSC employees and good government groups, the court had real concerns about the entirety of Bloch’s vast criminal conduct compared to the sweetheart whitewashing collusive plea the DOJ was giving him.

Today, the court showed it really was not nearly as concerned as had been hoped. Scott Bloch has just been sentenced to one day in jail and two years probation. The single measly day in jail was stated by the court to be due to the “seriousness” of the offense. What a joke. I guess we should just be thrilled that, unlike James Clapper, Bloch was prosecuted at all. Still, it is a grossly soft sentence considering the entirety of Bloch’s admitted criminal conduct.

Just so the record is complete after all these years, here are the significant documents documents lodged with the court between the first sentencing date and today:

1) Bloch’s supplemental sentencing memorandum

2) DOJ’s supplemental sentencing memorandum

3) Bundle of additional sentencing letters from Bloch supporters

4) Supplemental sentencing letter from this blog

One last thing should be noted, and that is the sheer and craven hutzpah of the Department of Justice in whitewashing this matter. I refer to their supplemental memorandum (item 2 above), but specifically to footnote 1 therein that baldly claims other members of the public and victims aggrieved by Bloch just don’t have all the secret facts that the government was able to collect. It was truly an amazing thing to see the government saying they had the hidden facts mitigating Bloch’s conduct. Simply astounding and, as stated in the responsive letter to the court (item 4 above), it was unconscionable:

The bald faced hubris of the DOJ in footnote 1 of their “Supplemental Memorandum In Aid Of Sentencing” lodged in docket Number 21 to claim, and rely on, uncharged and unstated evidence and facts to mitigate the sentence of the defendant is far the other side of unconscionable and shocking. Hidden considerations cited by the government, in the face of the shocking record of conduct by defendant Bloch, are an insult to the court, and the citizens and rule of law it is designed to protect. In fact, the recitations of fact by the government itself demonstrates how absurd their protestations for mitigation, much those of Bloch himself in his supplemental sentencing memorandum (Docket Number 22), really are.

The perfidy, and obstruction to the American form of government, by Executive Branch officials upon the function of the Congress is a scourge that cannot be tolerated by the American people or the courts of the United States. After the questions germinated by ODNI Clapper’s testimony, there has been a sudden and welcome bi-partisan return of healthy concern over the conduct of Executive Branch officials in front of Congress.

This court stands at the crossroads on a seminal issue to the Constitutional health of these United States and the health of the separation of powers in our form of government. The problem of disdain for, and duplicity in front of, Congress must be addressed and a precedent set for the future. Mr. Bloch violated the trust and damaged the people and their lawfully elected representatives. Frankly the plea in this case is outrageous and should never be accepted, it is not in the interest of justice. But, if it is to be followed, and sentenced thereon, a precedent should be set and an appropriate sentence handed down for the egregious conduct of Scott Bloch.

If not in the instant case, then where? If not now, then when?

The answer is Article II Executive Branch officials and attorneys simply cannot, and will not, be prosecuted for perjury and obstruction of Congress, and neither the Article I Congress, nor the Article III Courts, seems to particularly care that such violation of constitutionally protected powers and prerogative is occurring habitually. It is a sad comment.

Aaron Swartz, Plea Leveraging & The Bordenkircher Problem

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CryingJusticeAs Netroots Nation 2013 begins, I want to emphasize one of the best panels (If I do say so) of the event. It is titled: Beyond Aaron’s Law: Reining in Prosecutorial Overreach, and will be hosted by Marcy Wheeler. Joining Marcy will be Aaron Swartz’s attorney, Elliot R. Peters, of Keker & Van Nest LLP in San Francisco, Shayana Kadidal of the Center for Constitutional Rights in New York, and Professor Jonathan Simon of Boalt Hall at Berkeley. The panel goes off at 3:00 pm Saturday June 22.

As a lead in to the panel discussion, I want to address a topic that struck me from the first moment of the tragic loss of Aaron Swartz, the pernicious effect of the late 70’s Supreme Court case of Bordenkircher v. Hayes.

Paul Hayes was a defendant on a rather minor (involved $88.30), but still felonious, bad check charge in Kentucky. But Hayes had a bad prior criminal history with two felony priors. The prosecutor offered Hayes a stipulated five year plea, but flat out threatened Hayes that if he didn’t accept the offer, the prosecution would charge and prosecute under Kentucky’s habitual criminal (three strike) law. Hayes balked, went to trial and was subsequently convicted and sentenced to life in prison under the habitual offender enhancement charge. It was a prosecutorial blackmail threat to coerce a plea, and the prosecutor delivered on his threat.

Hayes appealed to every court imaginable on the theory of “vindictive prosecution” with the prosecutorial blackmail as the underlying premise. Effectively, the argument was if overly harsh charging and punishment is the penalty for a defendant exercising his right to trial, then such constitutes prosecutorial vindictiveness and degrades, if not guts, the defendant’s constitutionally protected right to trial.

Every appellate court along the way declined Hayes’ appeal until the 6th Circuit. The 6th, however, came up with a surprising decision, granting Hayes relief, but under a slightly different theory. The 6th held that if the prosecutor had originally charged Hayes with the habitual offender charge, and then offered to drop it if Hayes pled guilty, that would have been perfectly acceptable; but using it like a bludgeon in plea negotiations once the case was charged was impermissibly vindictive, and therefore unconstitutional.

Then, from the 6th Circuit, the case finally made its way to the Supreme Court of the United States. By that time, Hayes had long been in prison and the prison warden, Bordenkircher, was the nominal appellee in the caption of the case. The Supreme Court, distinguishing another seminal vindictive prosecution case, Blackledge v. Perry, reversed the 6th Circuit and reinstated Hayes’ life sentence.

Blackledge v. Perry is a famous case known in criminal defense circles as the “upping the ante case”. Blackledge was convicted of a misdemeanor and appealed, which in North Carolina at the time meant he would get a new trial in a higher court. The state retaliated by filing the charge as a felony in the higher court, thus “upping the ante”. The Supreme Court in Blackledge held that to Read more →

Government Spying: Why You Can’t ‘Just Trust Us’

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imagesOkay you Wheelhouse mopes, Marcy, Jim and I are all in San Jose at Netroots. Not sure the jail in this here town is big enough to hold us all. Marcy already put up two posts earlier today, but posting may be a bit spotty, we shall see. I have an important one that will probably go up tomorrow morning on the Aaron Swartz case.

At any rate, to give some extra fodder here, and because Ms. Wheeler is terminally lame at noticing our own blog when she writes articles elsewhere, I am hereby placing you on notice that she has a great article that went up late yesterday at The Nation titled:

Government Spying: Why You Can’t ‘Just Trust Us’

Go read it, you will be glad you did! Other than that, use this as an open thread for Trash Talk (GO SPURS!), and anything and everything else you want to yammer about.

5th Amendment Silence: One Day In Salinas We Let It Slip Away

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There is a famous line in the famous Kris Kristofferson song “Me and Bobby McGee” that reads:

Then somewhere near Salinas, Lord, I let her slip away

Today the United States Supreme Court let a bit of the 5th Amendment backbone right to silence slip away down the slippery slope. In the case of Salinas v. Texas, with Justice Alito writing for the Court (rarely a good sign), it was held that a criminal defendant’s silence can be used against him at trial. This is a stunning decision placing a knife blade in the age old general rule that a defendant’s silence cannot be taken against him at trial.

The facts, as laid out in the court’s syllabus are as follows:

Petitioner [Salinas], without being placed in custody or receiving Miranda warn- ings, voluntarily answered some of a police officer’’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner’’s murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the pros- ecution’’s use of his silence in its case in chief violated the Fifth Amendment.

Alito held that petitioner’’s Fifth Amendment claim fails because he did not “expressly” invoke his privilege to silence affirmatively in response to the police officer’’s questions. The upshot is that the word “silence” in “right to silence” does not necessarily mean “silence”. This follows a long line of similarly disquieting cases going back to the likes of the 1984 decision in Minnesota v. Murphy to the quite recent decision in Berghuis v. Thompkins, where the Court held that a defendant failed to invoke his Miranda right by remaining silent for nearly three hours.

The difference between the Berghuis line of cases and the Salinas decision today, however, is huge. The Berghuis line all involved admissibility of evidence, whether statements or physical evidence, in the face of Miranda rights. Today’s decision in Salinas travels a light year past that and allows the prosecution at trial to infer a defendant’s guilt from his silence.

So, one might think a waiver of this magnitude of one’s Fifth Amendment privilege must be voluntary and affirmative, not so according to Alito:

We have before us no allegation that petitioner’’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’’s use of his noncustodial silence did not violate the Fifth Amendment.

But, by far, the biggest problem with the Salinas decision is the extension of the old doctrine Read more →

Federal Judge Blasts Joe Arpaio’s Racial Profiling and Detention Policy

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In a scathing decision just entered by Judge Murray Snow in the District Court for the District of Arizona, the court has hammered the racial profiling and detention policies of Maricopa County Sheriff Joe Arpaio. The case is Melendres v. Arpaio, and the Arizona Republic described the decision thusly:

The Maricopa County Sheriff’s Office has engaged in racial profiling and must not use Hispanic ancestry as a factor when making law-enforcement decisions, a federal judge has ruled.

U.S. District Judge Murray Snow issued the ruling Friday, more than eight months after a seven-day trial on the subject concluded. The trial examined longstanding allegations that Sheriff Joe Arpaio’s emphasis on immigration enforcement led deputies to target Latino drivers based on their race, and that by doing so, they violated the constitutional rights of Maricopa County residents and the sheriff’s own policies requiring constitutional policing.
….
The class of Hispanic citizens that brought the racial-profiling lawsuit against the Sheriff’s Office never sought monetary damages. Instead, the group asked for the court to issue injunctions barring Arpaio’s office from discriminatory policing.

Snow obliged — and indicated more remedies could be ordered in the future.

Here is a link to the full decision.

The decision is long at 142 pages, but it is beautiful and contains specific findings of fact and conclusions of law that will make it hard to reverse on appeal to the 9th Circuit. There is no question but that Arpaio will appeal, but he will not be doing so from a good position in light of this decision.

Here are some quick highlights:

As is set forth below, in light of ICE’s cancellation of the MCSO’s 287(g) authority, the MCSO has no authority to detain people based only on reasonable suspicion, or probable cause, without more, that such persons are in this country without authorization.
…
Thus, the MCSO’s LEAR policy that requires a deputy (1) to detain persons she or he believes only to be in the country without authorization, (2) to contact MCSO supervisors, and then (3) to await contact with ICE pending a determination how to proceed, results in an unreasonable seizure under the Fourth Amendment to the Constitution.

And

Thus, to the extent it uses race as a factor in arriving at reasonable suspicion or forming probable cause to stop or investigate persons of Latino ancestry for being in the country without authorization, it violates the Fourth Amendment. In addition, it violates the Plaintiff class’s right to equal protection under the Fourteenth Amendment to the Constitution and Title VI of the Civil Rights Act of 1964.

And

Finally, the knowledge that a person is in the country without authorization does not, without more, provide sufficient reasonable suspicion that a person has violated Arizona criminal laws relating to immigration, such as the Arizona Human Smuggling Act, to justify a Terry stop for purposes of investigative detention. To the extent the MCSO is authorized to investigate violations of the Arizona Employer Sanctions law, that law does not provide criminal sanctions against either employers or employees. A statute that provides only civil sanctions is not a sufficient basis on which the MCSO can arrest or conduct Terry stops of either employers or employees.

There is a LOT of prime substance to this decision, and it all needed to be said. The fact that it comes with specific and articulated findings of fact and conclusions of law, after a trial, makes all the difference in the world as to strength. It is a treat for the Memorial Day weekend.

Scott Bloch Sentencing Blocked By The Court

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I have been a bit busy lately, so this is a tad late; but I should probably give the update on the Scott Bloch criminal sentencing that was scheduled for 9:30 am Monday morning May 13 in DC District Court in front of Judge Robert L. Wilkins. As you will recall, this blog has covered the Bloch case closely over the years due to its symbolism for government accountability and/or lack thereof.

The most recent coverage was immediately prior to the sentencing, and was in the form of a comprehensive post entitled “Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing”. As promised, a copy of said post was mailed to the court and it was entered on the docket. Several others sent letters as well, such as here for example.

The upshot is that Judge Robert L. Wilkins heard the voices. In what I can only describe as truly commendable, yet still refreshingly surprising, this is what happened at sentencing as described by Ann Marimow of the Washington Post:

The legal odyssey of Scott J. Bloch, the former head of the federal agency that protects government whistleblowers, continued Monday when a federal judge balked at proceeding with sentencing because of what he called an “improperly sanitized version of events.”
….
But U.S. District Judge Robert L. Wilkins chastised attorneys on both sides for presenting a narrow account of Bloch’s actions that the judge said doesn’t fully describe the conduct at issue. Wilkins said he was uncomfortable issuing a sentence until a fuller description of Bloch’s actions was in the record.

Sentencing documents, Wilkins noted, make little mention of Bloch’s previous deal with the U.S. Attorney’s Office in which he pleaded guilty to a misdemeanor charge of contempt of Congress.
….
In the current case, federal guidelines call for a sentence from zero to six months in prison. But prosecutors have agreed not to oppose a period of probation and want Bloch to pay a $5,000 fine and complete 200 hours of community service.

Wilkins suggested Monday, however, that he intends to consider Bloch’s conduct related to the previous case, which could expose him to jail time. The judge pointed specifically to Bloch’s position as a presidential appointee, a “position of public trust, operating with little oversight.”

Bloch’s sentencing hearing has been rescheduled for June 24.

We will try to do another update on status again before the next sentencing date on June 24. But, for now, hat’s off to Judge Robert L. Wilkins for hearing the voices of the public who object to the whitewash that was being applied to the misconduct in high office by Scott Bloch. Maybe there is hope for this Rule of Law thing after all.

Some Canadian Bacon Is More Equal than Some Carnitas

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The funny thing about this Josh Marshall column against (other peoples’) dual citizenship is that he didn’t need to go to the issue of dual citizenship at all. He wrote it in response to a proposal to let NYC non-citizens vote in municipal elections.

I’m curious to hear what you think about the New York City Council proposal to let non-citizens vote in municipal elections. To me, it’s definitely a bad idea.

But as part of his effort to explain his concept of “thick citizenship” he goes there: condemning the legal status of dual citizenship for Latino immigrants but not, apparently, for Canadian (and Israeli) ones.

If Latin American immigrants maintain citizenship in the countries of their birth, doesn’t that undermine the claim to full equality here?

[snip]

Now, as a practical matter I know there are people who carry dual citizenship because of very practical reasons like child custody and basic convenience for bi-national families. My wife is probably arguably a dual citizen simply because there’s no obvious way to renounce her original citizenship in the country of her birth. So I don’t see people who have dual US-Canadian citizenship as some great threat to the commonwealth or something or something that we actively need to eliminate. It’s basically a non-problem. But I think it would be a bad thing if it became more pervasive – which is something that I think is possible as the free flow of peoples becomes easier and more common.

As a reminder, I’m a dual citizen, having gotten Irish citizenship before they made doing so much more onerous some years ago, because of the possibility that at some point my Irish spouse and I might move somewhere in the EU (though not necessarily Ireland — funny how that works).

Perhaps it offends the Irish that an American, seven-eighths of whose ancestors were Irish, whose Irish forebears left Ireland before some of my spouse’s arrived there, now has legal paperwork that permits her to live and work in Ireland (and the rest of the EU), not to mention go through either line at customs in Dublin. They’ve never said that, though. They do, however, complain about the East Europeans who came to Ireland as cheap workers during the Tiger era and have made it their thick citizenship home. Curiously, they sometimes tell my cousin — who lives and works for an “thick citizenship” NGO in Ireland but doesn’t have citizenship — she has “returned,” I guess because Irish-Americans never stop being Irish.

There’s a difference, it seems, between nationality and citizenship.

Now, not only have I not ever voted in an Irish election (they don’t allow absentee voting, but boy would I if I could), neither has my spouse, in part because he has lived in Japan or the US almost from the time he could vote. That’s the way pre-Celtic Tiger Ireland was (and is again, increasingly). Mr EW has, however, engaged in a number of activities that would fall under Marshall’s “thick citizenship” category here in the US (with about five exceptions, though, only if I dragged him along kicking and screaming).

So my response to the substance of Marshall’s post is this: I’m agnostic on non-citizen voting at the local level (though I think it beats the hell out of what we have here in MI, where inner city citizens are being stripped of their municipal franchise left and right, and I think it’s a way to encourage thick citizenship). I think thick citizenship is a good thing for everyone where ever they live — it’s a fundamental part of building community, and the more we integrate all contributors of our local society into its thick citizenship, the more we’ll develop both the local and global empathy we need to get along in this world. And I think thick citizenship and legal citizenship are entirely different things (as demonstrated by both my cousin and my spouse, engaging in thick citizenship in countries where they’re not citizens). It’d be nice if the former had some tie to the latter, but as it is, we really only demand minimal competence in citizenship from immigrants, not from kids raised and schooled here.

Legal citizenship may be how we draw boundaries around the legal entrees to thick citizenship (though we often exclude felons even though they’re citizens), but it is also at least as much about how one legally negotiates daily life, particularly economic life, which is one reason so many people retain dual citizenship.

But all that’s what I think about the larger points in Marshall’s post.

It’s the underlying logic, though, of suggesting that there’s no problem with Canadians retaining dual citizenship but there is for “Latin American” immigrants.

Some pigs are more equal than other pigs.

Does Marshall include Mexico in that category which, like Canada, is part of NAFTA, and provides far more people who serve as America’s cheap labor but also (because of our immigration preferences) tends to create lifestyles that require splitting families across borders? Does it foster “thick citizenship” if a farm worker and union member who lives most of the year in California has to choose between engaging in legal citizenship in the country he lives most of the time or the country where his wife and kids live (and he sends remittances)? Are our national interests so divorced from those of Mexico (but not Canada!?!) that we need to maintain strict unitary citizenship only for those from the south, in spite of how closely tied our countries have become. Why? Is there some common “white Anglo” culture, one which hasn’t been enriched by the Latino heritage of much of the US?

A poor Latino immigrant — or even a poor white working class American — gains power against rich (often white) people through a combination of thick citizenship and legal citizenship rights. To suggest just Latinos should have additional barriers to gain those legal rights out of some sense they’re more likely to have divided loyalties than Canadians only serves to strengthen the rich white people by comparison.

More importantly, though, the US is so powerful, has such an overriding influence on the daily lives of poor people all over the world, and our daily life has become so globalized, it seems we’d do well to expand the fluidity of citizenship, not curtail it. If we affluent white Americans felt more common citizenship with the Mexicans who pick our food or the Bangladeshis who make our clothing, we might be a lot more embarrassed about the ways we benefit from their exploitation.

If we don’t share “thick citizenship” with the people whose lives we affect so negatively, then it’s not doing the work it needs to.

Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing

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CryingJusticeWhen this blog last substantively left the continuing saga of Bush/Cheney Special Counsel Scott Bloch, it was with these words:

So, between August 2, 2011 and December 21, 2012, a period of nearly a year and a half’s time, the DOJ has done nothing whatsoever in furtherance of prosecuting Scott Bloch. Until today. And the vaunted Department of Justice has, on the Friday before the Christmas holiday…..filed a Motion to Dismiss. However, that is not the end of the story, as clause 5 of the Motion to Dismiss contains this language:

Concurrent with this Motion to Dismiss, the government is filing a new information.

Well, not quite concurrent, as the Motion to Dismiss was filed mid to late morning, and the new information was just now made public. The new charge, a misdemeanor, is pursuant to 18 USC 1361 Depredation of Government Property or Contracts. The factual basis is made out from the “seven level wiping” Bloch caused to be done. Here is the new information just filed.

Yes, that is the “Reader’s Digest” version of how Scott Bloch came to be where he is now….awaiting sentencing in the United States District Court for the District of Columbia. For a crime that barely even references, much less is indicative of, the actual acts he committed against the United States Government, and the citizens it represents.

But, Bloch is indeed now facing sentencing on the latest cushy plea he has been afforded by the Department of Justice; sentencing scheduled for Monday May 13, 2013, less than one week from today. Here is Defendant Bloch’s sentencing memorandum, and here is the curiously collusive memorandum from the DOJ, who simply cannot stand for any Article II Executive Branch attorney being sent to jail/prison for lying to Congress because, seriously, many more might be in jeopardy if that was the case and precedent.

So, what is Mr. Scott Bloch doing? Taking his medicine quietly for having been given the gift plea by the DOJ to a misdemeanor after he actually committed such acts that appear by all legal rights to warrant felony allegations? Allegations as were described the last time Bloch was tried to be handed such a gift horse plea by the DOJ as:

…felony crimes Bloch could have been, and should have been, charged with are staggering; including obstruction of justice, false statements, perjury, willful destruction of government property and Federal Records Act violations. But Defendant Bloch made a deal to plead to one little misdemeanor with the guarantee he would be considered under the most favorable sentencing guideline conditions imaginable.

Nothing has changed; not a single underlying fact has changed in the least, and Bloch still stands Read more →