America, the Dystopian Reality Show: Pink Slime Edition

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When The Decline and Fall of the American Empire is written, I hope the historian writing it is astute enough to notice that the same week our nation’s highest court spent deciding whether the government could legally offer (badly conceived) health insurance reform, the business community was fighting to sustain a market for pink slime.

Pink slime arose as a typically American response to industrialization. After Jack in the Box killed a bunch of its customers by feeding them E. coli, rather than cleaning up the nation’s industrial meat supply, the food industry instead decided to scrub meat parts with ammonia before mixing it back in with The Beef.

But guess what? If you tell consumers what kind of slime you’re actually feeding them, they’ll stop eating it.

Ammoniated beef has taken a real beating in the media over the past couple years, and now fast-food giants McDonald’s, Taco Bell and Burger King are no longer using it. As veteran journalist Philip Brasher reported over the holidays, the Iowa-based company that manufactures the beef product — at one time used in around 70 percent of American ground beef — has watched sales drop by 25 percent.

Beef Products Inc. uses an innovative process to turn fatty beef trimmings, which used to go mainly into pet food and other byproducts, into hamburger filler. Because the trimmings are at risk for E. coli or Salmonella contamination, the company adds a mixture of ammonia and water (ammonium hydroxide) to kill bacteria. BPI’s process, progressive food safety policies, and state-of-the art system have received numerous food safety awards and the company has never been linked to a foodborne illness.

But when some consumers find out about the treated beef product — dubbed “pink slime” by a U.S. Department of Agriculture microbiologist — they don’t like what they hear and food companies are taking notice.

In 2008, many American eaters were introduced to the product by Food, Inc, the Oscar-nominated documentary, which portrayed the technology as merely masking a symptom of a bigger problem: the industrial meat system. A year later, a New York Times expose questioned whether the ammonium hydroxide process was really delivering on its food safety promise, which is especially critical considering the product is widely used in the National School Lunch Program.

After Krogers and McDonalds both decided they couldn’t continue to sell consumers pink slime anymore, the pink slime company, BPI, shut down a bunch of pink slime factories.

Now a bunch of Governors and other industry-owned hacks have taken to the airwaves to defend pink slime.

Three governors, among them recent presidential candidate Rick Perry of Texas, two lieutenant governors, and the Under Secretary for Food Safety at the U.S. Department of Agriculture all went to bat for Beef Products Inc. in a press conference in South Sioux City, Nebraska Thursday to assure consumers that Lean Finely Textured Beef, now widely known as “pink slime,” is safe and nutritious.

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White House Counsel Kathy Ruemmler Vows Not to Let the White House Be Defeated by Actual Citizens

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In an article describing how–in the guise of “flexibility”–the White House has continued the seeming relentless grab for unchecked executive power, White House Counsel Kathy Ruemmler offers a terribly cynical explanation for the Administration’s asinine levels of secrecy regarding its drone strikes.

But in an interview, White House Counsel Kathy Ruemmler acknowledged Mr. Obama has developed a broader view of executive power since he was a senator. In explaining the shift, she cited the nature of the office.

“Many issues that he deals with are just on him, where the Congress doesn’t bear the burden in the same way,” she said. “Until one experiences that first hand, it is difficult to appreciate fully how you need flexibility in a lot of circumstances.”

[snip]

Ms. Ruemmler said Mr. Obama tries to publicly explain his use of executive power, but says certain counterterrorism programs like the drone campaign are exceptions. Opening them to public scrutiny would be “self-defeating,” she said.

The WSJ doesn’t explain what she meant when invoking “self-defeat.” But her stance was described in a Daniel Klaidman article on the Administration’s decision, at a meeting in the Situation Room last November, to release more information about the targeted killing of Anwar al-Awlaki.

Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)

That is, Ruemmler’s not making an argument about the efficacy of the drone strikes themselves; al Qaeda already knows who’s responsible for the arms raining down on their heads.

Rather, Ruemmler doesn’t want to be “defeated” by journalists, civil liberties organizations, and ordinary citizens seeking to at least understand, if not limit, executive power.

Kathy Ruemmler’s not waging her counterterrorism war against al Qaeda when she warns of self-defeat. She’s waging her counterterrorism war against us.

Anonymous DOJ Statement: “Trust Us”

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The Senate Judiciary Committee is holding a hearing today to review the results of the Schuelke report on the prosecutorial misconduct in the Ted Stevens case and to entertain the Lisa Murkowski bill requiring disclosure. In response, DOJ submitted a statement for the record, opposing any legislation enforcing its discovery obligations.

When concerns were first raised about the handling of the prosecution of Senator Stevens, the Department immediately conducted an internal review. The Attorney General recognized the importance of ensuring trust and confidence in the work of Department prosecutors and took the extraordinary step of moving to dismiss the case when errors were discovered. Moreover, toensure that the mistakes in the Stevens case would not be repeated, the Attorney General convened a working group to review discovery practices and charged the group with developing recommendations for improving such practices so that errors are minimized. As a result of the working group’s efforts, the Department has taken unprecedented steps, described more fully below, to ensure that prosecutors, agents, and paralegals have the necessary training and resources to fulfill their legal and ethical obligations with respect to discovery in criminal cases. These reforms include a sweeping training curriculum for all federal prosecutors and the requirement–for the first time in the history of the Department of Justice–that every federal prosecutor receive refresher discovery training each year.

In light of these internal reforms, the Department does not believe that legislation is needed to address the problems that came to light in the Stevens prosecution. Such a legislative proposal would upset the careful balance of interests at stake in criminal cases, cause significant harm to victims, witnesses, and law enforcement efforts, and generate substantial and unnecessary litigation that would divert scarce judicial and prosecutorial resources.

In short, DOJ is saying, “trust us. We don’t need a law requiring us to do what case law says we need to.”

Right off the bat, I can think of 5 major problem with this statement:

No one has been held accountable

We are three years past the time when Stevens’ case was thrown out. Yet none of the prosecutors involved have been disciplined in any meaningful way.

No doubt DOJ would say that it will hold prosecutors responsible if and when the Office of Professional Responsibility finds they committed misconduct. But in the interim three years, DOJ as a whole has sent clear messages that it prefers protecting its case to doing anything about misconduct. And–as Chuck Grassley rightly pointed out at the hearing–thus far no one has been held responsible.

This statement may claim DOJ is serious about prosecutorial misconduct. But its actions (and inaction) says the opposite.

Even after this training, discovery problems remain

As the DOJ statement lays out, in response to the Stevens debacle, DOJ rolled out annual training programs for prosecutors to remind them of their discovery obligations.

And yet, last year, Leonie Brinkema found that prosecutors in the Jeff Sterling case had failed to turn over critical evidence about prosecution witnesses–one of the problems with the Stevens prosecution. The prosecutor involved? William Welch, whom Schuelke accused of abdicating his leadership role in the Stevens case (note, DOJ says the CIA is at fault for the late discovery; but Welch is, after all, the prosecutor who bears responsibility for it).

If William Welch can’t even get discovery right after his involvement in this case and, presumably, undergoing the training DOJ promises will fix the problem, then training is not enough to fix the problem.

Eric Holder won’t run DOJ forever

The statement focuses on Holder’s quick decision to dismiss the case against Stevens, as if that, by itself, guards against any similar problems in the future. But before Holder was AG, Michael Mukasey was–and Judge Emmet Sullivan grew so exasperated with Mukasey’s stonewalling on this case, he ordered him to personally respond to questions about the case.

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ACA at SCOTUS: Some Thoughts On The Mandate

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As you likely know by now, we stand on the cusp of historic oral arguments this week in the Supreme Court on the Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare”. The arguments will occur over three days, for a total of six hours, Monday through Wednesday. Yes, they really are that historic, as Lyle Denniston explains in SCOTUSBlog. The schedule is as follows: Monday: 90 minutes on whether the Anti Injunction Act (AIJA) prevents consideration of a challenge to the individual mandate until it takes effect in 2014; Tuesday: Two hours on the Constitutionality of the individual mandate; and Wednesday: 90 minutes on severability of the main law from the mandate and 60 minutes on state sovereignty concerns of Medicaid reform.

There are two areas of particular interest for me and which really are the meat on the bone of the overall consideration. The first is Monday’s technical argument on the AIJA, which I actually think may be much more in play than most commentators believe, because the Supremes may want to punt the politically sticky part of the case down the road until after the 2012 elections, and the AIJA argument is a ready made vehicle to do just that. Judge Brett Kavanaugh’s dissent in Seven Sky v. Holder explains how that would go should the Supreme beings decide to punt. This is by no means likely, but do not be shocked if it occurs; can kicking down the road is certainly not unknown at SCOTUS on politically sensitive cases.

By far, however, the biggest, and most contentious, kahuna of the healthcare debate is the individual mandate, and that is where I want to focus. The two sides, pro (predominantly liberal left) and con (predominantly conservative right), have been selling their respective wares since before the law was passed and signed by the President. As we truly head into the arguments, however, the pro left have crystallized around a matched pair of articles by Dahlia Lithwick and Linda Greenhouse, and the con right around response pieces by James Taranto and Ed Whelan.

Now this hardly seems like a fair fight, as Taranto has no degree, nor legal training, whatsoever; that said he and Whelan actually lay out the contra to Dahlia and Linda pretty well. Each side effectively accuses the other of being vapid and hollow in argument construct. I will leave aside any vapidity discussion because I think both sides genuinely believe in their positions; as to the hollowness, though, I think both sides are pretty much guilty. Which is understandable, there is simply not a lot of law directly on point with such a sweeping political question as presented by the mandate. “Unprecedented” may be overused in this discussion, but it is not necessarily wrong (no, sorry, Raich v. Gonzales is not that close; it just isn’t).

In short, I think both sides are guilty of puffery as to the quality of legal support for their respective arguments, and I believe both are guilty of trying to pass off effective political posturing as solid legal argument. Certainty is just not there for either side. This is a real controversy, and the Supreme Court has proved it by allotting the, well, almost “unprecedented” amount of time it Read more →

Three Men Plead Guilty to Federal Hate Crimes for Brutal Murder of African American Man

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The three men who committed the grisly, senseless murder depicted in this video just plead guilty to Federal hate crimes.

The Justice Department announced today that Deryl Paul Dedmon, 19, John Aaron Rice, 19, and Dylan Wade Butler, 20, all from Brandon, Miss., pleaded guilty today in U.S. District Court in Jackson to federal hate crime charges in connection with an assault culminating in the death of James Craig Anderson, an African-American man, in the summer of 2011.

Dedmon, Rice and Butler were each charged with one count of conspiracy and one count of violating the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, for their roles in the death-resulting assault of Anderson, 47, of Jackson, Miss.  Dedmon, Rice and Butler entered guilty pleas to both counts.  The maximum penalty for these charges is life in prison and a $250,000 fine.

“We hope that today’s guilty pleas provide some closure to the victim’s family and to the grievously wounded community that has mourned Mr. Anderson’s death,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.  “Today’s historic pleas mark the first time that the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act has been used in a case where the defendants’ actions resulted in a victim’s death.  The Department of Justice will vigorously pursue those who commit racially motivated assaults and will use every tool at our disposal to ensure that those who commit such acts are brought to justice.  And I note that our investigation in this matter is ongoing.”

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FBI Admits It Used GPS Tracking on 250 People without Probable Cause

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NPR’s Carrie Johnson puts together the numbers on how many GPS trackers the FBI had to get warrants for after US v Jones held that you need a warrant to attach a GPS tracker to a car. And while she doesn’t state it this way, what the FBI basically admitted is that in 250 of the 3,000 cases where they had GPS units activated but no warrant–over 8% of the GPS devices in question–they lacked probable cause.

Before the Supreme Court ruling in late January, the FBI had about 3,000 GPS tracking devices in the field.

Government lawyers scrambled to get search warrants for weeks before the decision, working to convince judges they had probable cause to believe crimes were taking place.

But after the ruling, FBI officials tell NPR, agents still had to turn off 250 devices that they couldn’t turn back on.

FBI General Counsel Andrew Weissmann even admits to Johnson that they were using GPS tracking to get probable cause.

Weissmann says FBI agents in the field need clear rules. So, for now, he’s telling agents who are in doubt “to obtain a warrant to protect your investigation.”

But he says that’s not always possible.

“And the problem with that is that a search warrant requires probable cause to be shown and many of these techniques are things that you use in order to establish probable cause,” Weissmann says. “If you require probable cause for every technique, then you are making it very very hard for law enforcement.”

Now, I can understand why Weissmann and Robert Mueller would like to use GPS in the examples Mueller cited–where they have things like Internet statements and gun purchases.

But last I checked both of those things were constitutionally protected activities themselves.

So what the FBI’s reaction to Jones has really revealed is that it had been violating the Fourth Amendment protections of around 250 people to get around their First and Second Amendment protections.

David Gregory & NBC Give John McCain Blowjob; Screw Americans

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Saturday evening, the New York Times put up an important editorial, The Banks Win Again, on its website regarding the financial crisis, an editorial piece that would be key in their Sunday Morning Edition Opinion Section:

Last week was a big one for the banks. On Monday, the foreclosure settlement between the big banks and federal and state officials was filed in federal court, and it is now awaiting a judge’s all-but-certain approval. On Tuesday, the Federal Reserve announced the much-anticipated results of the latest round of bank stress tests.

How did the banks do on both? Pretty well, thank you — and better than homeowners and American taxpayers.

That is not only unfair, given banks’ huge culpability in the mortgage bubble and financial meltdown. It also means that homeowners and the economy still need more relief, and that the banks, without more meaningful punishment, will not be deterred from the next round of misbehavior.

The nation is on the cusp on having the government, both federal and states, sign off on arguably the biggest financial fraud on the American public in history, and doing so in a way that massively rewards the offending financial institutions and refuses serious investigation, much less prosecution, of any participants perpetrating the conduct. This pattern of craven conduct cratered not just the US economy, but most of the world economy.

In the face of all this, David Gregory and MTP had on the Sunday morning show one of the most senior Senators in the United States Senate, John McCain, who serves as a key member of both the Governmental Affairs and Health, Education, Labor and Pensions Committees, both of which Read more →

The Full Text of the Schuelke Report on DOJ Misconduct

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Earlier this morning, we posted A Primer On Why Schuelke Report Of DOJ Misconduct Is Important that laid out all the legal and procedural background underlying the Schuelke Report into prosecutorial misconduct in the Ted Stevens criminal case.

The full 500 page report has now been released, and is titled:

Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009

I wanted to get the post framework and document link up so everybody could read along and digest the report together. Consider this a working thread to put thoughts, key quotes – whatever – into as we chew on the report. Then after having been through it, Marcy and I will; later do smaller stories on specific angles raised.

We know the irreducible minimum found:

The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness

You would think the involved attorneys would be ducking and apologizing for their ethical lapses that terminated the career of the powerful chairman of the Appropriations Committee on the US Senate. You would, of course, be wrong.

The mouthpiece for Brenda Morris, Chuck Rosenburg, is already clucking:

Brenda is a woman of tremendous integrity and an exceptionally talented prosecutor—she was fully honest with the investigators and always hoped that one day this report would be made public so that the facts of her individual role would be known.

Um, no, Ms. Morris does not smell like a rose here Chuck. Edward Sullivan, one of the AUSAs had this statement by his lawyer already this morning:

Mr. Sullivan is a diligent attorney, with strong character and integrity, whose conduct comports with the Department’s highest ethical standards. Mr. Sullivan was rightfully exonerated by Mr. Schuelke and the Department’s Office of Professional Responsibility, and his vindication is evidenced by the fact that he continues to prosecute cases in the Criminal Division’s Public Integrity Section

Well, yeah, sure, you betcha Ed Sullivan. I guess that is why as late as yesterday you were personally in the DC Circuit Court of Appeals trying to have the whole matter both stayed and sealed and were arguing you would be harmed if it wasn’t. Today, Edward Sullivan is suddenly a spring flower of purity.

So, yes, all these spring flowers in bloom must be operating off some pretty fertilizer, and the manure is indeed rather deep. So, let us dive in and see what we find. Put your thought, comments and opinions in comment as we work. See you there!

A Primer On Why Schuelke Report Of DOJ Misconduct Is Important

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Yesterday morning, the District of Columbia Court of Appeals entered its per curiam order denying a DOJ prosecutor’s motion for stay of the release of the Schuelke Report on prosecutorial misconduct in the Ted Stevens criminal case. As a result, barring unforeseen Supreme Court intervention, later this morning the full 500 page plus Schuelke Report will be released by Judge Emmet Sullivan of the DC District Court. What follows is a recap of the events leading up to this momentous occasion, as well as an explanation of why it is so important.

The existence of rampant prosecutorial misconduct in the Department of Justice case against Alaska Senator Ted Stevens was crystal clear before the jury convicted him in late October 2008 on seven counts of false statements in relation to an ethics investigation of gifts he received while in office. The trial judge, Emmet Sullivan of the District of Columbia District Court, could well have dismissed the case before it ever went to the jury for verdict but, as federal courts of all varieties are wont to do, he gave the DOJ the benefit of the doubt. It, as is all too often the case these days, proved to be a bridge too far for the ethically challenged DOJ.

Within a week of the ill be gotten verdict obtained by the DOJ in the criminal case, Ted Stevens had lost his reelection bid, after serving in the Senate for 40 years (the longest term in history). Before Stevens was sentenced, an FBI agent by the name of Chad Joy filed a whistleblower affidavit alleging even deeper and additional prosecutorial misconduct, and, based on the totality of the misconduct, Judge Emmet Sullivan, on April 7, 2009, upon request by newly sworn in Attorney General Eric Holder, dismissed with prejudice all charges and convictions against Ted Stevens.

But Emmet Sullivan did not stop with mere dismissal, he set out to leave a mark for the outrageous unethical conduct that had stained his courtroom and the prosecution of a sitting United States Senator:

Judge Emmet G. Sullivan, speaking in a slow and deliberate manner that failed to conceal his anger, said that in 25 years on the bench, he had “never seen mishandling and misconduct like what I have seen” by the Justice Department prosecutors who tried the Stevens case.

Judge Sullivan’s lacerating 14-minute speech, focusing on disclosures that prosecutors had improperly withheld evidence in the case, virtually guaranteed reverberations beyond the morning’s dismissal of the verdict that helped end Mr. Stevens’s Senate career.

The judge, who was named to the Federal District Court here by President Bill Clinton, delivered a broad warning about what he said was a “troubling tendency” he had observed among prosecutors to stretch the boundaries of ethics restrictions and conceal evidence to win cases. He named Henry F. Schuelke 3rd, a prominent Washington lawyer, to investigate six career Justice Department prosecutors, including the chief and deputy chief of the Public Integrity Section, an elite unit charged with dealing with official corruption, to see if they should face criminal charges.

On August 9, 2010, Ted Stevens died in a small plane crash in Alaska, never having seen the results of Henry Schuelke’s special prosecutor investigation into the misconduct during the Stevens criminal case. And lo, all these years later, we finally sit on the cusp of seeing the full Schuelke report in all its gory glory.

On November 21, 2011, Judge Sullivan issued a scathing order in relation to his receipt of Henry Schuelke’s full report, and how it would be reviewed and scheduled for release to the public. Actually, scathing is a bit of an understatement. The order makes clear not only is Schuelke’s report far beyond damning, but Judge Sullivan’s level of anger at the misconduct of the DOJ has Read more →

Judge Cebull’s Smart Response To His Incredibly Stupid Act

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I was going to delve deeper into the Cebull insult of Obama case after Friday’s events, but I now have something else I need to get to, so this is a shorter take. As you will recall, the intertoobz blew up at the end of last week, starting late Wednesday, with the story of Judge Richard Cebull, Chief Judge of Montana’s US District Court, and his email distributed slur on Barack Obama. The incident was first reported by a local paper, the Great Falls Tribune, but quickly hit the national wires.

I am not going to reprint the email, but it is fairly disgusting and very inappropriate (you can see it in the original form here). Numerous outraged individuals and organizations immediately called for Cebull’s resignation. David Dayen has a rundown on some of the loudest, as well as of Cebull’s “explanation/apology”, which has not been accepted to well by those calling for Cebull’s head. And, while Cebull’s statement is indeed less than exculpating, it is pretty much all he could say under the circumstances. Unlike Rush Limbaugh, at least Cebull had the guts to own up to the full weight of his act, even if concurrently inferring “heck I thought it was private”.

You can quibble about whether the “joke” was directly racist, or only indirectly racist in overtone, and I can see both sides of that argument; however, there is no denying that it was in unconscionably bad taste and completely inappropriate for a federal judge to be trafficking in. That’s a given. I am, at this point, far more interested in Cebull’s response which, all things considered, I find pretty crafty.

Cebull immediately admitted his full involvement, did so publicly to the press, and took the affirmative step of immediately filing his own formal judicial complaint – against himself – over the matter, and asked for an inquiry by the judicial council of the 9th Circuit. He also immediately issued a formal written apology to President Obama:

Dear Mr. President:

I sincerely and profusely apologize to you and your family for the email I forwarded. I accept full responsibility; I have no one to blame but myself.

I can assure you that such action on my part will never happen again. I have requested that the Judicial Council of the Ninth Circuit review this matter.

Honestly, I don’t know what else I can do. Please forgive me and, again, my most sincere apology.

Richard F. Cebull

It is brief and to the point and, frankly, there is not much more he can do to erase the stain he left. Which is where it gets interesting. As you can see by clicking on the link to Cebull’s self initiated complaint (there are others that will be later joined, but his was immediately self filed, that will count large), it is submitted to the Chief Judge of the Ninth Circuit, Alex Kozinski. Not only Read more →