The Material Support of Hillary Clinton and Tarek Mehanna

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18 USC 2339(A) and 18 USC 2339(B) proscribe the material support of terrorism and designated foreign terrorist organizations. In short, it is the “material support” law:

the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials;

During oral argument on the now seminal defining case as to the astounding reach of this statute, Holder v. HLP, now Supreme Court Justice Elena Kagan argued, as Solicitor General, that even humanitarian lawyers could be charged and convicted under the wide ranging provisions:

JUSTICE KENNEDY: Do you stick with the argument made below that it’s unlawful to file an amicus brief?

GENERAL KAGAN: Justice Kennedy —

JUSTICE KENNEDY: I think I’m right in saying it that that was the argument below.

GENERAL KAGAN: Yes, I think that would be a service. In other words, not an amicus brief just to make sure that we understand each other. The Petitioners can file amicus briefs in a case that might involve the PKK or the LTTE for themselves, but to the extent that a lawyer drafts an amicus brief for the PKK or for the LTTE, that that’s the amicus party, then that indeed would be prohibited.

Kagan argued for an interpretation so broad that even the filing of an amicus brief would be violative of the material support prohibitions and the Supreme Court so held.

So, surely, the DOJ is going to heed the words and intent of the right honorable Justice Kagan over this report then, right?

The Iraqi government has promised to shutter Camp Ashraf — the home of the Iranian dissident group Mujahedeen e-Khalq (MEK) — by Dec. 31. Now, the United Nations and the State Department are scrambling to move the MEK to another location inside Iraq, which just may be a former U.S. military base.

The saga puts the United Nations and President Barack Obama’s administration in the middle of a struggle between the Iraqi government, a new and fragile ally, and the MEK, a persecuted group that is also on the State Department’s list of foreign terrorist organizations.

The Marxist-Islamist group, which was formed in 1965, was used by Saddam Hussein to attack the Iranian government during the Iran-Iraq war of the 1980s, and has been implicated in the deaths of U.S. military personnel and civilians. The new Iraqi government has been trying to evict them from Camp Ashraf since the United States toppled Saddam in 2003. The U.S. military guarded the outside of the camp until handing over external security to the Iraqis in 2009. The Iraqi Army has since tried twice to enter Camp Ashraf, resulting in bloody clashes with the MEK both times. (emphasis added)

Well, no, there will be no prosecution for aiding and abetting these terrorists. Now, in all Read more →

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Drone War Secrecy and Kill or Capture

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As we stand on the doorstep of President Obama signing into law the new NDAA and its dreaded controversial provisions, there are two new articles out of interest this morning. The first is an incredibly useful, and pretty thorough, synopsis at Lawfare of the new NDAA entitled “NDAA FAQ: A Guide for the Perplexed”. It is co-written by Ben Wittes and Bobby Chesney and, though I may differ slightly in a couple of areas, it is not by much and their primer is extremely useful. I suggest it highly, and it has condensed a lot of material into an easily digestible blog length post.

The second is a long read from the Washington Post on how secrecy defines Obama’s drone wars:

The administration has said that its covert, targeted killings with remote-controlled aircraft in Pakistan, Yemen, Somalia and potentially beyond are proper under both domestic and international law. It has said that the targets are chosen under strict criteria, with rigorous internal oversight.
….
“They’ve based it on the personal legitimacy of [President] Obama — the ‘trust me’ concept,” Anderson said. “That’s not a viable concept for a president going forward.”

The article goes on to state how the CIA, and the majority of voices in the White House, are fighting tooth and nail for continued utmost secrecy lest any of our enemies somehow discover we are blowing them to bits with our drones. This is, of course, entirely predictable, especially now that the former head of the CIA leads the military and the former military chief for the greater Af/Pak theater which has long been ground zero for the drone kill program, Petraeus, is the head of the CIA.

But then the Post piece brings up our old friend, the OLC:

The Justice Department’s Office of Legal Counsel has opposed the declassification of any portion of its opinion justifying the targeted killing of U.S. citizen Anwar al-Awlaki in Yemen this year. Awlaki, a propagandist for the Yemen-based al-Qaeda affiliate whom Obama identified as its “external operations” chief, was the first American known to have been the main target of a drone strike. While officials say they did not require special permission to kill him, the administration apparently felt it would be prudent to spell out its legal rationale.
….
Under domestic law, the administration considers all three to be covered by the Authorization for Use of Military Force that Congress passed days after the Sept. 11, 2001, attacks. In two key sentences that have no expiration date, the AUMF gives the president sole power to use “all necessary and appropriate force” against nations, groups or persons who committed or aided the attacks, and to prevent future attacks.

The CIA has separate legal authority to conduct counterterrorism operations under a secret presidential order, or finding, first signed by President Ronald Reagan more than two decades ago. In 1998, President Bill Clinton signed an amendment, called a Memorandum of Notification, overriding a long-standing ban on CIA assassinations overseas and allowing “lethal” counterterrorism actions against a short list of named targets, including Osama bin Laden and his top lieutenants. Killing was approved only if capture was not deemed “feasible.”

A week after the Sept. 11 attacks, the Bush administration amended the finding again, dropping the list of named targets and the caveat on “feasible” capture.

“All of that conditional language was not included,” said a former Bush administration official involved in those decisions. “This was straight-out legal authority. . . . By design, it was written as broadly as possible.”

This brings us back to the notable October 8, 2011 article by the New York Times’ Charlie Savage on his viewing of the Awlaki targeting memo relied on by the Obama White House for the extrajudicial execution of Anwar al-Awlaki. Marcy, at the time discussed the incongruity of the collateral damage issue and the fact Samir Khan was also a kill in the targeted Awlaki strike.

I would like to delve into a second, and equally misleading, meme that has been created by the self serving and inconsistent secret law Obama has geometrically expanded from the already deplorable Bush/Cheney policy set: the false dichotomy in the kill or capture element of the Read more →

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Lanny Breuer Rewards DOJ Lawyers for Winning Impunity for Prosecutorial Misconduct

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I always like reading DOJ’s various expressions of their investigative and prosecutorial priorities–because they usually show a disinterest in prosecuting banksters, a thorough waste of resources on entrapping young Muslims, and an ongoing fondness for Anna Chapman.

Lanny Breuer’s choice of DOJ lawyers to recognize yesterday was, in some ways, an improvement over the trend. I’m happy to see prosecutors rewarded for taking down the “Lost Boy” website. Rather than fixating on Anna Chapman and entrapping young Muslims, Breuer recognized prosecutors who entrapped older Muslims who attempted to smuggle someone they believed to be a Taliban member into the US. And Breuer even celebrated the rare prosecution of a bankster, Lee Bentley Farkas.

And while Breuer’s multiple awards to people seemingly making it easier to shut down the InterToobz in the guise of IP violations concerns me, it’s this bit that I found disgusting.

The Assistant Attorney General’s Award for Distinguished Service was presented to Kirby Heller and Deborah Watson of the Criminal Division’s Appellate Section for their exceptional work in the successful appeal of sanctions imposed upon federal prosecutors in the case of Dr. Ali Shaygan.

Effectively, Lanny Breuer is rewarding two appellate section lawyers for winning an 11th Circuit Court decision overturning sanctions imposed on DOJ for gross prosecutorial misconduct. Breuer’s priorities, it seems, include ensuring that DOJ pays no price when it abuses its prosecutorial power.

The case goes back to February 2008, when Ali Shaygan was indicted for distributing controlled substances outside the scope of his medical practice; one charge tied that distribution to the death of one of Shaygan’s patients. Shaygan ended up hiring a defense team that included one attorney who had had a run-in with the prosecutors in his case. In addition, the lead prosecutor, Sean Paul Cronin, was admittedly buddies with the lead DEA Agent, Chris Wells. After Shaygan’s lawyers attempted (ultimately, successfully) to suppress a DEA interview with Shaygan on Miranda grounds, Cronin threatened the team.

AUSA Cronin warned David Markus, Shaygan’s lead attorney, that pursuing the suppression motion would result in a “seismic shift” in the case because “his agent,” Chris Wells, did not lie.

Nine months later, during the trial, one of the prosecution’s witnesses alluded in cross-examination that he had tapes of conversations–failed attempts to bribe Shaygan’s lawyer–at home.

During the cross-examination of Clendening on February 19, 2009, Shaygan’s counsel, Markus, asked Clendening if he recalled a telephone conversation in which Clendening told Markus that he would have to pay him for his testimony, and Clendening responded, “No. I got it on a recording at my house.”

This revelation led to exposure of the government’s collateral, failed investigation of Markus for witness tampering, as well as a significant number of discovery violations. In short, it became clear the government tried, unsuccessfully, to catch Markus bribing witnesses for favorable testimony and then hid all evidence they had tried. The prosecutor in the case was not properly firewalled form that investigation and even personally claimed to give authorization to tape the conversations. And in the days before the trial, the prosecutor checked in on the witness tampering investigation, apparently hoping to force Markus to withdraw from the case just as it went to trial. In the end, Shaygan was acquitted of all 141 charges against him.

After the trial, Miami District Court Judge Alan Gold held a sanctions hearing against the government for its gross misconduct. He held the government in violation of the Hyde Amendment. He had them pay all reasonable costs after a superseding indictment he judged was filed as part of the “seismic shift in strategy.” And he publicly reprimanded the prosecutors involved in the case.

Now, the government admitted that it committed significant errors.

The United States acknowledges that it initiated a collateral investigation into witness tampering and authorized two witnesses, Carlos Vento and Trinity Clendening, to tape their discussions with members of the defense team in violation of United States Attorney’s Office policy; that, although there were efforts made to erect a “taint wall,” the wall was imperfect and was breached by the trial prosecutors, AUSA Sean Paul Cronin and Andrea Hoffman, at least in part, because the case agent, DEA Special Agent Christopher Wells, was initially on both sides of the wall; and that, because the United States violated its discovery obligations by not disclosing to the defense “(a) that witnesses Vento and Clendening were cooperating with the government by recording their conversations with members of the defense team, and (b) Vento’s and Clendening’s recorded statements at the time of their trial testimony.” Finally, the United States “acknowledges and regrets” that, “in complying with the Court’s pre-trial order to produce all DEA-6 reports for in camera inspection on February 12, 2009 (Court Ex. 6), the government failed to provide the Court with the two DEA-6 reports regarding the collateral investigation, specifically Agent Wells’ December 12, 2008 report (Court Ex. 2) and Agent Brown’s January 16, 2009 report (Court Ex. 3).”

After the sanctions hearing, the government agreed to pay some legal fees associated with their misconduct. They just objected, and appealed, to the public reprimand and the requirement they pay for all fees after the superseding indictment.

But the appeals court not only threw out the entire financial sanction, it also vacated the public reprimands of the lawyers.

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The Albatross of Obama’s “Rule of Executive Order”

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The other day, John Bellinger and Matthew Waxman joined the long list of people voicing opposition to the detention provisions of the Defense Authorization. Yet there’s a part of their column that has received little focus, in spite of the fact it’s one of the things Bellinger emphasized when he linked to their column at Lawfare.

Bellinger and Waxman scold President Obama for not following through on his promise to develop laws covering terrorism detainees.

President Obama should have followed through on his pledge in his May 2009 National Archives Speech to work with Congress to develop an appropriate legal regime for detention of terror suspects who cannot be prosecuted or released, and Congress should have been more responsive to the concerns of counterterrorism officials in the Executive branch.

The substance of that promise–given at a time, remember, when Democrats had the majority in the House and 59 (soon to be 60) Senators in the Senate–was:

Now let me be clear:  We are indeed at war with al Qaeda and its affiliates.  We do need to update our institutions to deal with this threat.  But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability.

[snip]

There are no neat or easy answers here.  I wish there were.  But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo.  As President, I refuse to allow this problem to fester.  I refuse to pass it on to somebody else.  It is my responsibility to solve the problem.  Our security interests will not permit us to delay.  Our courts won’t allow it.  And neither should our conscience.

[snip]

Having said that, we must recognize that these detention policies cannot be unbounded.  They can’t be based simply on what I or the executive branch decide alone.

[snip]

I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred.  Our goal is not to avoid a legitimate legal framework.  In our constitutional system, prolonged detention should not be the decision of any one man.  If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.  And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

[snip]

We seek the strongest and most sustainable legal framework for addressing these issues in the long term — not to serve immediate politics, but to do what’s right over the long term.  By doing that we can leave behind a legacy that outlasts my administration, my presidency, that endures for the next President and the President after that — a legacy that protects the American people and enjoys a broad legitimacy at home and abroad. [my emphasis]

Obama made that promise in a speech that spoke grandly about the importance of using our fundamental values–our laws–to beat tyranny.

I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values.  The documents that we hold in this very hall — the Declaration of Independence, the Constitution, the Bill of Rights — these are not simply words written into aging parchment.  They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality, and dignity around the world.

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Why Is William Welch, Whose Team Is Accused of Intentional Prosecutorial Misconduct, Still at DOJ?

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As Nedra Pickler first reported, Judge Emmett Sullivan has submitted a scathing order describing the results of an investigation into the Ted Stevens prosecution.

Based on their exhaustive investigation, Mr. Schuelke and Mr. Shields concluded that the investigation and prosecution of Senator Stevens were “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

[snip]

Mr. Schuelke and Mr. Shields found that at least some of the concealment was willful and intentional, and related to many of the issues raised by the defense during the course of the Stevens trial. Further, Mr. Schuelke and Mr. Shields found evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed – at least to the Court and to the public – but for their exhaustive investigation.

Sullivan’s investigator, Henry Schuelke, found the lawyers involved could not be charged with criminal contempt because they had not been explicitly ordered to follow the law.

Mr. Schuelke bases his conclusion not to recommend contempt proceedings on the requirement that, in order to prove criminal contempt beyond a reasonable doubt under 18 U.S.C. § 401(3), the contemnor must disobey an order that is sufficiently “clear and unequivocal at the time it is issued.” See, e.g., Traub v. United States, 232 F.2d 43, 47 (D.C. Cir. 1955). Upon review of the docket and proceedings in the Stevens case, Mr. Schuelke concludes no such Order existed in this case.

But he did hint that at least some of the six attorneys might be charged with Obstruction of Justice (which DOJ would have to do).

Mr. Schuelke “offer[s] no opinion as to whether a prosecution for Obstruction of Justice under 18 U.S.C. § 1503 might lie against one or more of the subject attorneys and might meet the standard enunciated in 9-27.220 of the Principles of Federal Prosecution.”

One of the attorneys investigated here, of course, is William Welch (the others are Brenda Morris, Edward Sullivan, Joseph Bottini, and James Goeke, as well as Nicholas Marsh, who committed suicide last year), who has overseen the Jeffrey Sterling and Thomas Drake cases.

Now, Sullivan made it clear that at least some of the lawyers involved might be well served for Schuelke’s report to be made public.

in fact, under these circumstances, some or all of the subjects may be prejudiced by withholding the results of Mr. Schuelke’s Report from the public;

So we can’t be sure whether Welch was directly implicated in the misconduct, or whether just those lawyers who reported to him were.

But Welch’s prosecutions since have been beset by the same kind of prosecutorial problems as the Stevens one. For example, in the Drake case, the government didn’t tell the defense that one of the documents they charged Drake with leaking was unclassified until 10 months after the indictment. Then, when they tried to apply CIPA to unclassified documents, they did so after the opportunity to object had passed. The judge in that case, Richard Bennett, called the prosecution “unconscionable.”

And in the Sterling case, it appears that Welch postponed telling Sterling that one of the key witnesses against him had herself leaked classified information until after the opportunity for discovery on that leak had passed–the same kind of derogatory information on a key witness the Stevens prosecutors withheld.

In other words, we can not be sure that Welch committed the misconduct at the heart of the Stevens case. But his ongoing cases do seem to be subject to the same kind of misconduct.

So why is he still at DOJ, prosecuting cases, when an independent investigator has determined this his past prosecution teams didn’t follow the law because they had not been specifically ordered to, and such behavior might amount to Obstruction of Justice?

Updated: Added Bennett’s comments.

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California Supreme Court Rules There Is Standing For Prop 8 Intervenors

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Liberty & Justice by Mirko Ilic

When the Ninth Circuit initially referred the issue of standing for the Defendant-Intervenors in the Perry v. Schwarzenegger/Brown back at the start of the year, I wrote this:

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

The California Supreme Court just issued its opinion and I have been affirmed! In short, the highest California appellate court has certified to the 9th Circuit that, as a matter of state law, the DI’s have legitimate standing to represent their side of the matter in Federal appellate courts.

The key finding is:

At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide a question of California law that is relevant to the underlying lawsuit in this matter now pending in that federal appellate court. (Perry v. Brown (9th Cir. No. 10-16696); see Cal. Rules of Court, rule 8.548.) As posed by the Ninth Circuit, the question to be decided is “whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so”.
….
Accordingly, we respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.

Here is the full decision.

The opinion was written by newly seated Chief Judge Tani Cantil-Sakauye, who was literally sworn in the day before the 9th Circuit dumped this question in the laps of the California Supremes. It appears quite well sculpted and the full court signed on to her opinion; however, Judge Kennard issued a specially concurring opinion to “highlight the historical and legal events that have led to today’s decision and to explain why I concur in that decision”. As I said back in January, this was not really all that novel of an issue in California jurisprudence, and so the court has noted and, now, established with certainty.

Time for Steve Reinhardt and his merry band of 9th Circuit pranksters to fire up the cert alert in the stodgy halls of SCOTUS! And I think that will be happening sooner rather than later as the 9th has already received full briefing and oral argument on the merits. I would even go so far as to say there are draft opinions already written and ready to be tweaked and supplemented with today’s California Supreme Court ruling. So expect a ruling from the 9th fairly quickly.

I will be adding in some more analysis after a thorough reading of the full opinion.

[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.]

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SCOTUS and GPS Tracking: US v. Jones and Secret PATRIOT

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As I read the transcript of the SCOTUS hearing in the US v. Jones yesterday, I was most interested in what the comments suggest about the government’s secret use of the PATRIOT Act to–presumably–use phone geolocation to track people. (Here’s Dahlia Lithwick, Orrin Kerr, Julian Sanchez, Lyle Denniston, and Kashmir Hill on the hearing itself.)

Mind you, the facts in Jones are totally different from what we think may be happening with Secret PATRIOT (I’ll borrow Julian Sanchez’ speculation on what Secret PATRIOT does for this post). In Jones, a suspected drug dealer had a GPS device placed on his car after the 10-day warrant authorizing the cops to do so had already expired. As such, Jones tests generally whether the government needs an active warrant to track a suspect using GPS.

Whereas with Secret PATRIOT, the government is probably using Section 215 to collect the geolocation data from a large group of people–most of them totally innocent–to learn whom suspected terrorists are hanging around with. Not only does Secret PATRIOT probably use the geolocation of people not suspected of any crime (Section 215 requires only that the data be relevant to an investigation into terrorists, not that the people whose records they collect have any tie to a suspected terrorist), but it collects that information using a device–a cell phone–that people consensually choose to carry. Moreover, whereas in Jones, the government was tracking his car in “public” (though Justice Sotomayor challenges that to a degree), Secret PATRIOT probably tracks the location of people in private space, as well. Another significant difference is that, in Jones, the government is doing the tracking themselves; in Secret PATRIOT they probably get tracking data under the guise of business records from cell phone companies.

Nevertheless, the concerns expressed by the Justices seem to be directly relevant to Secret PATRIOT. After all, Chief Justice Roberts almost immediately highlighted that the government’s argument–that the use of GPS to track cars on public streets was not a search and therefore it did not need probable cause to use it on anyone–meant that the government could also use GPS trackers on the Justices themselves.

CHIEF JUSTICE ROBERTS: You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you’re entitled to do that under your theory?

MR. DREEBEN: The justices of this Court?

CHIEF JUSTICE ROBERTS: Yes.

(Laughter.)

MR. DREEBEN: Under our theory and under this Court’s cases, the justices of this Court when driving on public roadways have no greater expectation

CHIEF JUSTICE ROBERTS: So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?

[snip]

CHIEF JUSTICE ROBERTS: Well, then you’re -you’re moving away from your argument. Your argument is, it doesn’t depend how much suspicion you have, it doesn’t depend on how urgent it is. Your argument is you can do it, period. You don’t have to give any reason. It doesn’t have to be limited in any way, right?

MR. DREEBEN: That is correct, Mr. Chief Justice.

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Eric Holder: Torture Inquiries, Ted Stevens Prosecutorial Misconduct Investigations Almost Finished

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Eric Holder is testifying before the Senate Judiciary Committee right now. [watch here]

In response to two questions from Orrin Hatch, Eric Holder revealed that the John Durham investigation into torture and the Office of Public Responsibility investigation into the prosecutorial misconduct in the Ted Stevens case are both nearing their end.

While none of the Senators asked for Holder to make the results in the torture investigation public, Hatch, Pat Leahy, and DiFi all asked for the Stevens report to be made public.

Let me predict for them what that report will say: While problematic, the behavior of DOJ’s own does not merit punishment. Love, David Margolis.

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Gitmo’s Commanders and My 4-Year Old Niece Play Games

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I enjoyed watching my 4-year old niece wallop Mr. EW in a game of “Matches” last week. She kept making up new rules every turn, ensuring Mr. EW didn’t know precisely what the rules of the game were.

It provided me an excellent opportunity to teach her what the word “shrewd” means–“A special kind of smart.”

I’m less amused by this: Gitmo’s second new set of Military Commission rules in as many years. Last year, they released the 2010 Manual for Military Commissions hours before Omar Khadr’s trial started. This year, they’re introducing the 2011 Regulation for Military trial days before the Abd al Rahim al-Nashiri death penalty case starts. But make no mistake, this “Regulation” amends last year’s Manual. As Carol Rosenberg reports:

The Defense Department released the document two days ahead of the arraignment of a Saudi-born captive charged with murder and terrorism for al Qaida’s suicide bombing of the USS Cole off Yemen.

[snip]

Almost simultaneously, the document appeared on the war court’s new nearly $500,000 website, numbering 202 pages and including some changes to procedures. For example, each case’s military judge now has the authority to approve the costs of a so-called “learned counsel,” typically a civilian defense attorney with extensive experience defending capital murder cases. It also outlined procedures through which observers could protest, through a chief clerk, a judge’s decision to declare an aspect of a trial as “protected.”

[snip]

The Pentagon’s new Deputy Secretary of Defense, Ashton B. Carter, signed the new document on Sunday. He said in a foreword that it provided guidance at times that differed from the way the U.S. military court martials its own troops. “That difference is necessitated by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need.”

Legal experts were poring over the document Monday night.

Meantime, Human Rights Watch attorney Andrea Prasow called the timing troubling.

“The very idea that new rules could be issued moments before someone is arraigned to face the death penalty offends any notion of due process,” said Prasow, who has worked on war court defense cases. “The stamp of illegitimacy has been firmly affixed to Nashiri’s case.”

To make it all the more pathetic, check out the image at the top of the page.

Nothing

That’s the top corner of these brand new rules. From DOD. The biggest bureaucracy in the world.

With no headers.

How the hell can DOD release new rules governing a capital case without even bothering to include headers or footers (the document has simple centered page numbers) to indicate these are actually the rules issued by the biggest bureaucracy in the world?

It’s like some sergeant somewhere who doesn’t know how to operate Microsoft Word was tweaking these until an hour ago.

Seriously, I haven’t even gotten into the contents of these new rules yet. But they look like a–very long–high school project, not the considered rules of  court of law.

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The Coordinated Leaky Drips In The White House

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As I’ve noted previously, there has been a hue and cry against the critical and untenable use, and abuse, of secrecy by the United States government. There has always been some abuse of the government’s classified evidence for political gain by various administrations operating the Executive Branch, but the antics of the Obama administration have taken the disingenuous ploy to a new art form.

Today, via Politico’s old fawning Washington DC gluehorse, Roger Simon, comes an unadulterated (sometimes x-rated) and stunningly tin eared and arrogant admission of what the Obama White House is all about, straight from the lips of Obama consigliere Bill Daley:

Rahm was famous for calling reporters, do you call reporters? I ask.

“I call; I’m not as aggressive leaking and stroking,” Daley says. “I’m not reflecting on Rahm, but I’m not angling for something else, you know? Rahm is a lot younger [Emmanuel is 51], and he knew he was going to be doing something else in two years or four years or eight years, and I’m in a different stage. I’m not going to become the leaker in chief.”

You’ve got others for that, I say.

“Yeah, and hopefully in some organized leaking fashion,” Daley says, laughing. “I’m all for leaking when it’s organized.”

Oh, ha ha ha, isn’t that just hilarious? Bill Daley, and the White House he runs, are all for leaking, history bears out even the most highly classified government secrets, and doing so in an organized pre-planned fashion, when it serves their little self-centric petty political interests. But god help an honest citizen like Thomas Drake who, after exhausting all other avenues of pursuit within the government, leaks only the bare minimum information necessary to expose giant government waste, fraud and illegality because he feels it his duty as a citizen.

For citizens like Tom Drake, the “most transparent administration in history” will come down on his head like a ton of nuclear bricks even when they embarrass themselves in so doing. But they are more than willing to exploit and leak to self serve their own interests. What is good for the king is not appropriate for the commoner.

In this regard, I wish to amplify point that Glenn Greenwald has previously made about the pernicious affect of this duplicitous use of classified information. Glenn said:

But the problem is much worse than mere execssive secrecy. Anyone who purports concern over the harmful leaking of classified information should look first to the Obama administration, which uses secrecy powers as a manipulative tool to propagandize the citizenry: trumpeting information that makes the leader and his government look good while  suppressing anything with the force of criminal law that does the opposite. Using secrecy powers to propagandize the citizenry this way is infinitely more harmful than any of the leaks the Obama administration has so aggressively prosecuted.

That is exactly right. It is not just that the government keeps unnecessary secrets from the public on information that is critical to their duties and responsibilities as citizens, it is that the self-serving selective leaking creates an intentionally fraudulent paradigm for the citizenry. It is not only manipulative, is fundamentally dishonest and duplicitous.

When the leaking is so selective and self-serving it is not just the people who are deceived, is the press they rely on as a neutral information conduit from which to make their opinions and determinations. The press then becomes little more than a hollow funnel for opportunistic and dishonest spin. We saw the effects of this in the case of Anwar Awlaki’s extrajudicial assassination, and have seen it again in the Scary Iranian Terrorist Murder ruse.

The last bastions against this pernicious practice are the press and courts. Until both start admitting how they are relentlessly gamed and played by the White House, there is little hope for change. And make no mistake, the press ratifies this pernicious conduct by lazily accepting such leaks and reporting without properly noting just how malignant the process is. It is all a joke to Bill Daley and Barack Obama, and the joke is on us.

PS: For a little more on the joy that is White House Chief of Staff Bill Daley, see Digby today. And a fine dissertation of why Daley should be fired on the spot by Joan Walsh in Salon. I would only note that it is not just Rahm and Daley, it is the man who consistently brings this Chicago style heavy handed belligerence to the White House. Mr. Obama’s two Chiefs of Staff do not operate apart from him, they ARE him and his Presidency. The buck for this stops at the top.

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