Thomas Drake Proved To Be Bloody Well Right

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Well hello there Wheelhouse members! Marcy is still on the road, but I am back and ready to roll, so there will start being actual content here again! I want to start with a bit of interesting post-mortem news on Thomas Drake.

As you will recall, Tom Drake was belligerently prosecuted by the DOJ on trumped up espionage charges (See: here, here, here and here) and their case fell out from underneath them because they cravenly wanted to hide the facts. As a result, Drake pled guilty to about the piddliest little misdemeanor imaginable, and will be sentenced, undoubtedly, to no incarceration whatsoever, no fine and one year or less of unsupervised probation on July 15, 2011. But the entire Tom Drake matter emanated out of Drake’s attempt to internally, and properly, cooperate with a whistleblowing to the Department of Defense Inspector General.

The report from the DOD IG in this regard has now, conveniently after Drake entered his plea, been publicly released through a long sought FOIA to the Project On Government Oversight (POGO), albeit it in heavily redacted form:

The U.S. Department of Justice (DOJ) prosecuted Drake under the Espionage Act for unauthorized possession of “national defense information.” The prosecution was believed to be an outgrowth of the DOJ’s investigation into disclosures of the NSA warrantless wiretapping to The New York Times and came after Drake blew the whistle on widespread problems with a NSA program called TRAILBLAZER. Most of the Espionage Act charges against Drake dealt with documents associated with his cooperation with this DoD IG audit. However, this month the government’s case against Drake fell apart and prosecutors dropped the felony charges. Instead, Drake pleaded to a misdemeanor charge of exceeding the authorized use of a computer.

The report, which was heavily redacted, found that “the National Security Agency is inefficiently using resources to develop a digital network exploitation system that is not capable of fully exploiting the digital network intelligence available to analysts from the Global Information Network.” The DoD IG also found, in reference to TRAILBLAZER, that “the NSA transformation effort may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.”

Here is a full PDF of the entire redacted public version of the report in two parts because of file size: Part One and Part Two.

The report speaks for itself and I will not go in to deep quotes from it; suffice it to say, the DOD IG report proves that Tom Drake was precisely correct in his initial complaints that the TRAILBLAZER program was a nightmarish fraud on the taxpayers and inherently inefficient compared to the THIN THREAD program originally devised in house. The money quotes, as noted by POGO, are:

…the National Security Agency is inefficiently using resources to develop a digital network exploitation system that is not capable of fully exploiting the digital network intelligence available to analysts from the Global Information Network.

and

…the NSA transformation effort may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.

So, in sum, thanks to POGO’s FOIA release here, we now know that not only was the persecution of Tom Drake by the DOJ completely bogus and vindictive, Tom Drake was bloody well right about TRAILBLAZER versus THIN THREAD to start with. Who couldda predicted?

Obama War Powers Treachery and The Founders’ Remedies

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Signing-constitutionAs most know by now, Charlie Savage at the New York Times let loose a stunning blockbuster of an expose of the conduct of Barack Obama and his inner circle in relation to the Libyan war vis a vis the War Powers Resolution:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Let’s be crystal clear as to what happened here: The Attorney General, Head of the Office of Legal Counsel and the General Counsel for the Pentagon/DOD all listened to Obama’s plan to flat out ignore the War Powers Resolution (50 U.S.C. 1541-1548), and the Article I power it represents, and they unanimously said it was untenable and illegal in the face of the War Powers Resolution.

Mr. Obama knows the War Powers Resolution exists, does not challenge its viability or Constitutionality and, against the direct opinion and advice of the three most germane attorneys in the United States Government, has just blithely and unilaterally blown it off. There are nine fairly short provisions in the statutory delineation of the “War Power Resolution” and, despite the yammering from the Administration and dithering by the press, they are actually remarkably clear in their intent and letter.

A criminal can nuance, excuse and rationalize himself around pretty much every statutory criminal provision, but society as a whole has no problem looking at the statute and seeing that there is offending conduct. And so it is here; Obama has thrown up sophistry, excuse and self indulgent rationalization. But any honest review of the WPR yields the unmistakable conclusion Obama is in direct violation, and has been from the outset. Congress has been crystal clear that they have NOT authorized Read more →

Netroots Nation Recap: Saving the Middle Class

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Sorry to be AWOL for most of Netroots Nation. bmaz says I’ve been offline for the last few days because we’ve been drunk and busy, but it seems to me I’ve just been incredibly busy for five days straight. There were a lot of conversations, but the overall theme seemed like a desperate conversation on saving the middle class.

Early in the week, I had some extended conversations with labor folks, including some interesting discussions about the UAW’s plans to organize transplants–I hope to do an extensive follow-up on that.

On Thursday, I had the honor to be on a podium between Howard Dean and Russ Feingold, two of my political inspirations. Though the speakers of the night were probably a Pakistani and Zimbabwean woman talking about how important blogs are to giving women voices in oppressive societies. American Federation of Teachers President, Randi Weingarten, also gave a great talk.

On Thursday, I joined the ACLU and Julian Sanchez talking about all the surveillance we’re under. I think we succeded in scaring a lot of people.

I had conversations with a number of elected officials: Luis Gutierrez on immigration, Keith Ellison on saving the middle class, Sheldon Whitehouse on saving the middle class. Alan Grayson talked about what he’s reading about our increasing inequality in Fed documents. While he’s not elected, Jared Bernstein and I had a great talk about the MI auto bailout (and the fact Republican leaders are now claiming credit for results of stimulus in the midwest).

And then there were two more panels: how to beat back the demonization of the working class, and how to make blogging sustainable. Not sure I know the answer to any of those questions.

I was so busy I didn’t get to see many panels. But Van Jones had a great speech and the best panel I did sit in on featured Whitehouse and Dahlia Lithwick talking about the corporatization of the courts. Whitehouse emphasized how real people are increasingly losing the access to jury trials, something which our Constitution protects with far more urgency than corporations.

And I suppose bmaz is right that we spent a good deal of time, um, socializing. Barry Eisler–the author of the novel, Inside Out, that features a character named Marcy Wheeler–was one of the people I met for the first time this year. I thanked him for making it so Marcy Wheeler didn’t get laid or killed. But I saw a bunch of old friends, too.

I’m sure I’ll have more substantive stuff as I process the last several days. But processing it all is going to take a day or so yet.

DOJ: Calling Out Government Lies Would Endanger National Security

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The government argues that, in spite of the fact that Saifullah Paracha’s Gitmo Detainee Assessment Brief was leaked in April, his lawyer, David Remes, cannot talk about it. Because if he did, we might conclude the DAB was real.

Granting Petitioner’s request could also be detrimental to the interests of national security, given the access to classified information that petitioners’ counsel enjoy but that members of the public at large do not. Reliance on the purported detainee assessments leaked to WikiLeaks in unclassified public writings by habeas counsel known to have access to classified information could be taken as implicit authentication of the reports and the information contained therein.

Of course, no one really doubts that it is real. But the government will claim that this public information remains classified to make sure Remes can’t mention the information. Remes can only represent his client, I guess, in court, not in the public sphere.

The problem, of course, is that the file contains obvious problems–if not out and out lies, then at least one gross misrepresentation, to wit: the government claims that Aafia Siddiqui “was detained in Afghanistan in mid-July 2008” (see Detainee assessment (the Scribd like embed at the link), page 5).

There are certainly other areas Remes would be interested in discussing and having the freedom to argue to the public on behalf of his client, because that is not only what defense lawyers are supposed to do, but are ethically required to do, in order to provide a zealous representation for their client.

The real extent of the conundrum this places Remes, and similarly situated Gitmo counsel, in is demonstrated by this from the Blog of Legal Times at the National Law Journal:

Remes, the department said, cannot have unrestricted use of the documents that the government refuses to confirm or deny are authentic assessments of detainees. DOJ’s submission (PDF) expands on the scope of the guidance the department issued this month to lawyers in Guantanamo habeas cases.

In court papers, the DOJ theme is clear: the Justice Department over and over refused to confirm or deny that any individual WikiLeaks document is an official government record.

“Unfettered public use, dissemination, or discussion of these documents by cleared counsel could be interpreted as confirmation (or denial) of the documents’ contents by an individual in a position of knowledge, with corresponding harm to national security,” DOJ Civil Division attorney Kristina Wolfe said in court papers.

The government, Wolfe said, cannot acknowledge the authenticity of one document and then refuse to substantiate another document. The “very act of refusal would in effect reveal the information the government seeks to protect—the authenticity of the purportedly classified document,” Wolfe said.

This is beyond absurd, the DOJ is refusing to admit or deny, and is wantonly limiting the ability of lawyers to use, something the entire world is in on. They are treating the information like it is secret material under a Read more →

The Quiet Death of Habeas Corpus

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Pow Wow left a comment, in response to me and Candace Gorman, on Marcy’s Gitmo Lawyers Information Gulag post that warrants highlighting and further comment. For convenience, here it is in full:

This is what bmaz and hcgorman @ 12 are referencing:

Two Guantanamo detainees, Fahmi Al-Assani and Suleiman Al-Nahdi, have moved the D.C. Circuit to dismiss their habeas appeals (Al-Assani’s motion is here, Al-Nahdi’s is here). Both men lost their district court habeas cases in decisions by Judge Gladys Kessler; the Al Assani decision is here, the Al-Nahdi decision is here. Both men appealed, and today, both men have given up their appeals as lost causes.

Their lawyer, Richard Murphy, explained in an email,

Judge Kessler denied our clients’ habeas petitions and we appealed to the D.C. Circuit, but then stayed the appeals pending the outcome of several [other Guantanamo habeas] cases in which [Supreme Court] cert petitions had been filed. Once cert [review] was denied [by the Supreme Court] in all of the relevant cases coming out of the D.C. Circuit it became clear that the appeals were futile. Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantanamo.

This development strikes me as a big deal–albeit a quiet one that won’t get a lot of press attention. […] – Benjamin Wittes, June 2, 2011

That grim assessment of the current posture of Guantanamo habeas petitions, which, for years, have been pending before federal judges serving in the Judicial Branch of the United States Government, was further illuminated and reinforced by this June 8, 2011 Benjamin Wittes post:

Habeas lawyer David Remes sent in the following comments on recent developments in D.C. Circuit case law. He emphasizes that he has been counsel in several of the cases discussed below and that the following represents his own opinion only:

I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.

Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.

The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court Read more →

Executive Nominations, Judicial Emergencies and Change in WH Counsel’s Office

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Abby Philip and Josh Gerstein at Politico have an excellent piece up on the state of Executive Branch nominations in the Obama Administration.

It’s crunch time for the White House to get key executive branch jobs filled before the end of President Barack Obama’s first term.

Dozens of top posts in both the executive branch and the judiciary remain vacant, while some of those who started near the beginning of the administration are bailing out.

Nominees who aren’t confirmed by the Senate by the end of this year likely will become tangled in election-year politics, given Republican hopes of taking the White House, the Senate or both. If Obama wants a good shot at getting his nominees through this year, Hill veterans say, names need to reach the Senate by the summer recess.

Adding to the heightened urgency for action: Many of the unfilled posts deal with Obama’s major policy priorities, including financial regulatory reform, immigration and health care. Not coincidentally, those positions also are some of the most likely to become ensnared in partisan disputes.

Go read their full article, it is a good across the board discussion on nominees and where we stand in various areas of interest.

There are two areas of the Politico piece I want to draw attention to. The first is the critical importance of work and support by the White House for their nominees and the nomination process.

But one former official said much of the blame for the slow pace lies with the White House.

“A lot of fingers have been pointed at the Senate,” said Chase Untermeyer, who served as director of presidential personnel for President George H.W. Bush. “I always say that two-thirds of the job is on the executive side.”

Exactly. For one thing, it is hard for an administration to get a confirmation if it does not make nominations. Take federal judges for instance, for most of the past two years there have been around a hundred vacancies on the Circuit and District courts; Mr. Obama has rarely had nominees for more than half of them. This is simply federal administrative incompetence, and it takes a heavy toll Read more →

The Un-Patriot Acts of Harry Reid

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As you undoubtedly know by now, the furious rush to extend the Patriot Act is once again in full swing. The Patriot Act is an odious piece of legislation that was birthed by fearmongering and the imposition of artificial drop dead, if we don’t pass this today the terrortists are gonna OWN us, artificial time emergencies. Then it was extended the same way. That is not a bug, it is indeed a feature.

When the government, through its executive and compliant Congress, wants to cut surveillance and privacy corners out of laziness and control greed, and otherwise crush the soul of the Constitution and the 4th Amendment, demagoguery and fake exigencies are the order of the day. And so they are again. Oh, and of course they want to get out of town on their vacation. And that is what has happened today.

Senators Wyden and Mark Udall had a superb amendment proposed to narrow the Patriots core provisions ever so slightly so as to maintain some Constitutional integrity. Marcy explained the details here. But, because that would engender real and meaningful debate on the efficacy of Patriot, it had to be quashed, and that is exactly what has occurred. Harry Reid and Diane Feinstein gave a couple of hollow and meaningless “promises”, of unknown content, to Wyden and Udall and strongarmed them into withdrawing their amendment. The citizens are simply not entitled to meaningful debate on their Constitution.

Spencer Ackerman, over at Wired’s Danger Room, shredded Reid for his unPatriotic act. Gloriously:

Remember back when a Republican was in the White House and demanded broad surveillance authority? Here’s Reid back then. ”Whether out of convenience, incompetence, or outright disdain for the rule of law, the administration chose to ignore Congress and ignore the Constitution,” Reid said about Bush’s warrantless surveillance program. When Bush insisted Congress entrench that surveillance with legislation in 2008, Reid turned around and demanded Bush “stop fear-mongering and start being honest with the American people about national security.” Any claim about the detrimental impact about a lapse in widespread surveillance were “scare tactics” to Reid that ”irresponsibly distort reality.” (Then Reid rolled over for Bush.)

That’s nowhere near the end of Reid’s hypocrisy here. When the Senate debated renewing the Patriot Act in 2006, Reid, a supporter of the bill’s surveillance procedures, himself slowed up the bill’s passage to allow amendments to it — the better to allow “sensible checks on the arbitrary exercise of executive power.” Sounding a whole lot like Rand Paul, the 2006-vintage Reid registered his “objection to the procedural maneuver under which Senators have been blocked from offering any amendments to this bill” and reminded his colleagues, ”the hallmark of the Senate is free speech and open debate.”

Reid could hardly be more of an opportunist here. He favors broad surveillance authorities — just as long as those scary Republicans stop being mean to liberals. When Attorney General John Ashcroft warned civil libertarians that their “phantoms of lost liberty… only aid terrorists,” Reid told CNN on December 8, 2001 that “people should just cool their jets” — but not that Ashcroft was actually, you know, wrong. By contrast, the ultra-conservative pundit Bob Novak said Ashcroft made “one of the most disreputable statements I have heard from an attorney general.”

Exactly right. But it gets worse. Rand Paul also had an amendment, but he, unlike our fine Democratic Senators, was not willing to quietly go off into the night. Paul stood his ground and now Reid has agreed to let Paul’s amendment to exempt gun purchases from Patriot’s scope have a vote:

Senate Democratic leadership seems poised to acquiesce to Sen. Rand Paul’s (R-Ky.) demand that the chamber vote on an amendment that would restrict national security officials from examining gun dealer records in their efforts to track potential terrorists.

The Kentucky Republican had been insisting that such language at least receive a vote as an addition to the extension of the USA Patriot Act.

So, that is where the Democratic party, Democratic Senate Leadership and the Obama Administration are on protecting the Constitution and its 4th Amendment. Sane and intelligent amendments to narrow focus and appropriately protect American’s privacy are squashed like small irritating bugs under a hail of fearmongering and demagoguery – from Democratic Leadership – and terrorists’ rights to buy guns with impunity and privacy are protected because just one GOP senator has the balls to actually stand up and insist on it.

Hanoi Harry Reid is on point and leading this clown car of civil liberties insanity, and so deserves a healthy chunk of the blame, but he is certainly not alone. For all the noise they made, why cannot Ron Wyden and Mark Udall stand up in a similar fashion? Where are the other Democrats who used to have such alarm when it was the Bush/Cheney Administration doing these things? Where is Russ Feingold, I miss him so, but I am sure that Obama and Reid are glad he is gone on days like today. Exactly why Feingold was, and is, so important.

UPDATE: There is late word Reid may have talked Mitch McConnell and GOP Senate leadership into putting a clamp on Rand Paul and holding up his amendment debate demand. We shall see.

Goodwin Liu To Get Senate Floor Vote On Cloture Thursday

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News broke this afternoon that Harry Reid might file for cloture on a floor vote on Obama’s nominee for the 9th Circuit Court of Appeals, Goodwin Liu:

Goodwin Liu’s bid for a federal judgeship may be headed for a crucial vote this week, in what would be the biggest fight yet over any of President Barack Obama’s nominees for the lower federal courts.

Senate Majority Leader Harry Reid (D-Nev.) is considering filing a cloture petition as soon as tonight, a spokesman said. That would set up a vote later this week on whether to end debate on Liu’s nomination, a motion that needs the support of 60 senators to pass. The Democratic caucus controls 53 seats, so they would need Republican help to defeat a filibuster.

Well, shocking as it may be, and it really is, Harry Reid indeed pulled the trigger:

Prior to adjournment on Tuesday, May 17th, Senator Reid filed cloture on Executive Calendar #80, Goodwin Liu, of California, to be United States Circuit Judge for the Ninth Circuit. Senators should expect a roll call vote on the motion to invoke cloture on the Liu nomination to occur at a time to be determined on Thursday.

This is a fairly astounding happening as Liu was first nominated to the 9th in February of 2010, but the nomination died at the end of the 2010 session from lack of even an attempt to call for a floor vote. President Obama promptly renominated Liu, and he was again promptly reported out of the Judiciary Committee on a straight party line vote, but it appeared as if the nomination would be again be left to die a quiet death. Apparently not.

If you do not know about Goodwin Liu, you should. Liu is quite arguably the brightest and most accomplished young legal liberal star in the universe. He is the future of any liberal hope on the Supreme Court; like Antonin Scalia or John Roberts on the right, Liu is the future legal heavyweight for the liberal future. At only 39 years of age, Liu’s resume and record of accomplishment, service and involvement in the law makes Elena Kagan look like a malnourished piker. He is literally that good and valuable for the future, Liu is worth fighting for tooth and nail. For a great look at Goodwin Liu the man and scholar, take a look at Bob Egelko’s in depth biography from the San Francisco Chronicle.

So Goodwin Liu is set to get a floor vote on cloture Thursday, and if that threshold can be passed, he would look good on an up or down vote for confirmation. That is the good news. The bad news is, unless Harry Reid and/or the Obama White House have cut some kind of deal to get Liu through, there is little, if any, chance his nomination can muster the 60 votes necessary for cloture. And, despite some fast checking this afternoon, I can find no evidence of any such a deal having been cut or even discussed.

We will know by Thursday night whether Harry Reid and the Obama White House actually had a plan to get Goodwin Liu through and confirmed, or whether they just want the issue done and over with. One thing is for sure, it will not happen unless there is a plan and they have whipped some GOP support for cloture. Will Reid and Obama be heroes or goats? Stay tuned.

Why Can’t DOJ Investigate as Well as the Hapless Senate?

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There’s a lot to loathe about the current incarnation of the Senate, that elite club of millionaires where legislation goes to either get rewritten to serve corporate interests or killed.

What does that say about DOJ, then, that the Senate is doing such a better job at investigating crimes? In just one month’s time the Senate has produced two investigations that have left DOJ–and the SEC and FEC–looking toothless by comparison.

First there was Carl Levin’s investigation of the banksters, released last month. Matt Taibbi does us the favor of outlining the case Levin’s investigators made.

Here is where the supporters of Goldman and other big banks will stand up and start wanding the air full of confusing terms like “scienter” and “loss causation” — legalese mumbo jumbo that attempts to convince the ignorantly enraged onlooker that, according to American law, these grotesque tales of grand theft and fraud you’ve just heard are actually more innocent than you think. Yes, they will say, it may very well be a prosecutable crime for a corner-store Arab to take $2 from a customer selling tap water as Perrier. But that does not mean it’s a crime for Goldman Sachs to take $100 million from a foreign hedge fund doing the same thing! No, sir, not at all! Then you’ll be told that the Supreme Court has been limiting corporate liability for fraud for decades, that in order to gain a conviction one must prove a conscious intent to deceive, that the 1976 ruling in Ernst and Ernst clearly states….Leave all that aside for a moment. Though many legal experts agree there is a powerful argument that the Levin report supports a criminal charge of fraud, this stuff can keep the lawyers tied up for years. So let’s move on to something much simpler. In the spring of 2010, about a year into his investigation, Sen. Levin hauled all of the principals from these rotten Goldman deals to Washington, made them put their hands on the Bible and take oaths just like normal people, and demanded that they explain themselves. The legal definition of financial fraud may be murky and complex, but everybody knows you can’t lie to Congress.

“Article 18 of the United States Code, Section 1001,” says Loyola University law professor Michael Kaufman. “There are statutes that prohibit perjury and obstruction of justice, but this is the federal statute that explicitly prohibits lying to Congress.”

The law is simple: You’re guilty if you “knowingly and willfully” make a “materially false, fictitious or fraudulent statement or representation.” The punishment is up to five years in federal prison.

When Roger Clemens went to Washington and denied taking a shot of steroids in his ass, the feds indicted him — relying not on a year’s worth of graphically self-incriminating e-mails, but chiefly on the testimony of a single individual who had been given a deal by the government. Yet the Justice Department has shown no such prosecutorial zeal since April 27th of last year, when the Goldman executives who oversaw the Timberwolf, Hudson and Abacus deals arrived on the Hill and one by one — each seemingly wearing the same mask of faint boredom and irritated condescension — sat before Levin’s committee and dodged volleys of questions.

[snip]

Lloyd Blankfein went to Washington and testified under oath that Goldman Sachs didn’t make a massive short bet and didn’t bet against its clients. The Levin report proves that Goldman spent the whole summer of 2007 riding a “big short” and took a multibillion-dollar bet against its clients, a bet that incidentally made them enormous profits. Are we all missing something? Is there some different and higher standard of triple- and quadruple-lying that applies to bank CEOs but not to baseball players?

Then there’s the investigation of John Ensign. Scott Horton lambastes DOJ’s decision to indict Ensign’s cuckold but not Ensign himself.

Alarmingly, the Justice Department not only failed to act against Ensign, it actually indicted Doug Hampton, Ensign’s former senior staffer, who was clearly a victim of Ensign’s predatory conduct and who had blown the whistle on him. The new report does suggest that Hampton may have engaged in improper lobbying activities, with Ensign’s connivance. But it also makes clear that Hampton’s statements about what happened were truthful and complete, whereas Ensign’s were often cleverly misleading, and sometimes rank falsehoods. In this context, the Justice Department’s decision—to prosecute the victim who spoke with candor and against his own interests, and let the malefactor who lied about his conduct go free—is perverse. It is also completely in line with recent Justice Department pubic integrity prosecutions, which have displayed an unseemly appetite for political intrigue and an irrepressible desire to accommodate the powerful.

And the NYT writes a more sheepish article featuring both an FEC official who apparently wouldn’t go on the record with his shock–shock! that there was gambling going on in the casino someone lied to the FEC.

An election commission official, who asked not to be identified while the case was pending, acknowledged that the commission took the senator at his word, whereas the Senate dug deeper. This official expressed anger to learn the true circumstances behind the $96,000 payment.

“I hate it when people lie to us,” the official said, adding: “If somebody submits a sworn affidavit, we usually do not go back and question it, unless we have something else to go on. Maybe we should not be so trusting.”

The NYT also cites several legal experts attributing DOJ’s impotence to embarrassment over the Ted Stevens trial (without, at the same time, wondering why William Welch is still at DOJ acting just as recklessly, only this time against whistleblowers and other leakers).

Several of these reviews of DOJ’s failure to act wonder why the understaffed Senate Ethics Committee or Levin’s Permanent Committee on Investigations–again, this is the hapless Senate!–managed to find so much dirt that the better staffed DOJ and regulatory bodies did not.

But Taibbi really gets at the underlying issue.

If the Justice Department fails to give the American people a chance to judge this case — if Goldman skates without so much as a trial — it will confirm once and for all the embarrassing truth: that the law in America is subjective, and crime is defined not by what you did, but by who you are.

These two Senate committees did an excellent job mapping out the crimes of the powerful. But unless we see action from DOJ, the committees will also have, by comparison, mapped out the stark truth that DOJ refuses to apply the same laws we peons abide by to those powerful people.

Roberts Court Sticks Another Dagger In the Back Of Consumers

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The Supreme Court today handed down its decision in AT&T v. Concepcion. From Reuters:

By a 5-4 vote, the high court ruled that AT&T Mobility could enforce a provision in its customer contracts requiring individual arbitration and preventing the pooling together of claims into a class-action lawsuit or classwide arbitration.

The plaintiffs, Vincent and Liza Concepcion, filed their class-action lawsuit in 2006, claiming they were improperly charged about $30 in sales taxes on cellphones that the AT&T wireless unit had advertised as free.

AT&T, the No. 2 U.S. mobile service, was backed in the case by a number of other companies and by the U.S. Chamber of Commerce business group, while consumer and civil rights groups supported the California couple.

Companies generally prefer arbitration as a less expensive way of settling consumer disputes, as opposed to costly class actions, which allow customers to band together and can result in large monetary awards.

Well, yes, of course this was the decision of the Roberts Court; it was as predictable as the sun rising in the east. The conservative block in the Roberts Court – Roberts, Scalia, Alito, Thomas and Kennedy rarely miss an opportunity to buck up big business and screw individuals and consumers when it comes to any issue involving class action law and/or standing. It is simply what they do, and they have no problem doing by politicized 5-4 majority opinion, which is exactly what occurred here.

The full opinion, including the dissent from Breyer, is here.

The dissent pointed out, correctly, that California law (the case was brought in California), known as the Discover Bank Rule for the main case setting it out, forbade such clauses and rendered them unenforceable as adhesion clauses that were forced down consumer’s throats. The majority simply dismissed the California provision as being inconsistent with the Federal Arbitration Act. The Roberts block sure don’t care much for state’s rights if said rights conflict with their pet causes, such as bucking up big business.

Irrespective of the California Discover Bank Rule, however, Breyer and the other dissenting judges pointed out an even bigger consideration: By forcing each individual to sue for a small sum (in Concepcion, it was $30), the majority was effectively denying consumers a viable remedy:

In general agreements that forbid the consolidation of claims can lead small­ dollar claimants to abandon their claims rather than to litigate. I suspect that it is true even here, for as the Court of Appeals recognized, AT&T can avoid the $7,500 payout (the payout that supposedly makes the Concepcions’ arbitration worthwhile) simply by paying the claim’s face value, such that “the maximum gain to a customer for the hassle of arbitrating a $30.22 dispute is still just $30.22.”

What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim? In California’s perfectly rational view, nonclass arbitration over such sums will also sometimes have the effect of depriving claimants of their claims (say, for example, where claiming the $30.22 were to involve filling out many forms that require techni­ cal legal knowledge or waiting at great length while a call is placed on hold). Discover Bank sets forth circumstances in which the California courts believe that the terms of consumer contracts can be manipulated to insulate an agreement’s author from liability for its own frauds by “deliberately cheat[ing] large numbers of consumers out of individually small sums of money.” Why is this kind of deci­ sion—weighing the pros and cons of all class proceedings alike—not California’s to make? (citations omitted)

Exactly right. Scalia and the others in the majority have effectively deemed big businesses – and any that do not yet have these clauses in their service and sales agreements will certainly incorporate them now – immune from accountability on systemic small dollar fraud. Which is a HUGE gift to companies with thousands to millions of customers. Now all we are waiting for is for the Supreme Court to finish gutting class action litigation altogether in the Wal-Mart v. Dukes case argued March 29th.

In a late breaking development, Representative Hank Johnson, and Senators Franken and Blumenthal have announced legislation to overcome the Supreme Court’s decision today in the AT&T v. Concepcion case:

After consumers were dealt a blow today when the Supreme Court ruled that companies can ban class action suits in contracts, U.S. Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.) and Rep. Hank Johnson (D-Ga.) said today they plan to introduce legislation next week that would restore consumers’ rights to seek justice in the courts.

Their bill, called the Arbitration Fairness Act, would eliminate forced arbitration clauses in employment, consumer, and civil rights cases, and would allow consumers and workers to choose arbitration after a dispute occurred.

Many businesses rely on mandatory and binding pre-dispute arbitration agreements that force consumers and employees to settle any dispute with a company providing products or services without the benefit of legal recourse.

“This ruling is another example of the Supreme Court favoring corporations over consumers,” said Sen. Franken. “The Arbitration Fairness Act would help rectify the Court’s most recent wrong by restoring consumer rights. Consumers play an important role in holding corporations accountable, and this legislation will ensure that consumers in Minnesota and nationwide can continue to play this crucial role.”

This sounds wonderful but, of course, stands about zero chance of making it through the Republican controlled House of Representatives that serve as the daily lackey water carriers for big business.