ACLU Appeals 9th Circuit Jeppesen Decision to SCOTUS

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When the original three member panel opinion in Mohamed v. Jeppesen Dataplan, Inc. was issued by the 9th Circuit in late April of 2009, it was a breath of fresh air. Judge Michael Hawkins authored a thoughtful, well reasoned and heartening opinion placing appropriate curbs on the ability of the Executive Branch to silence wronged plaintiffs via the interjection of state secrets. Civil liberties scholars stood up and cheered. Unfortunately, it did not last and thanks to a very unfortunate panel assignment for the en banc review in the 9th, Hawkins was reversed and an erratic and contorted decision put in its stead by Judge Raymond Fisher handing the President and Executive Branch carte blanche to assert state secrets at will, effectively even to hide government illegality and misconduct. Civil liberties adherents jeered.

Now the ACLU, who represents the plaintiffs in Mohamed v. Jeppesen, has appealed from the 9th Circuit en banc decision by petitioning the Supreme Court for certiorari. The ACLU’s full petition is here. The ACLU press release reads, in pertinent part:

The American Civil Liberties Union late last night asked the U.S. Supreme Court to review a lower court decision dismissing its lawsuit against a Boeing subsidiary, Jeppesen DataPlan, Inc., for the company’s role in the Bush administration’s extraordinary rendition program. The ACLU and the ACLU of Northern California filed the lawsuit in May 2007 on behalf of five men who were kidnapped by the CIA, forcibly disappeared to U.S.-run prisons overseas and tortured. Although the federal government was not initially named in the lawsuit, it intervened for the sole purpose of arguing that the case should be dismissed based on the “state secrets” privilege.

“To date, not a single victim of the Bush administration’s torture program has had his day in a U.S. court,” said Ben Wizner, Litigation Director of the ACLU National Security Project. “The government has misused the ‘state secrets’ privilege to deny justice to torture victims and to shield their torturers from liability. The Supreme Court should reaffirm our nation’s historic commitment to human rights and the rule of law by allowing this case to go forward.”

In April 2009, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the government could not invoke the state secrets privilege over the Read more →

Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog Primer

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Liberty & Justice by Mirko Ilic

Emptywheel and Firedoglake have covered the groundbreaking marriage equality civil rights litigation in Perry v. Schwarzenegger from the outset. today is the critical appeal in the 9th Circuit and it is being televised on CSPAN live. In a separate dedicated post, Marcy Wheeler will be liveblogging and I will be assisting with color commentary both through her and in comments.

The case was filed by plaintiffs Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarrillo in response to the passage of an amendment to California’s constitution by Proposition 8 providing “Only marriage between a man and a woman is valid or recognized in California.”

There was a three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The appeal being argued today is from that decision by Judge Walker.

The oral argument is being televised live by CSPAN, will be carried by live feed on numerous internet sites, and will likely be on several other television networks as well. Here is a page with links and viewing information.

Here is Firedoglake’s dedicated Proposition 8 Resource Page containing just about everything you could possibly want to know about the case from start to finish including links to all of our coverage of the trial, closings, and judgment process, as well as the lead up to today’s argument, and nearly every important document, filing and brief in the case.

An article yesterday by Maure Dolan in the Los Angeles Times hit the nail on the head as to where to focus watching the oral argument:

When a federal appeals court meets in San Francisco on Monday for arguments on Proposition 8, legal analysts will be closely watching Judge Michael Hawkins, a moderate Democratic appointee whose vote is expected to be critical in the same-sex marriage case.

The randomly chosen three-judge panel of the U.S. 9th Circuit Court of Appeals also includes Judge Stephen Reinhardt, a California liberal appointed by President Carter, and Judge N. Randy Smith, a conservative from Idaho appointed by President George W. Bush.

“It’s a very favorable panel for the challengers to Proposition 8,” said Arthur Hellman, a University of Pittsburgh law professor and expert on the 9th Circuit.

Hawkins, an Arizonan appointed by President Clinton, “is the one to watch most closely,” Hellman said. He has sided with liberals in some key cases and will probably cast the decisive vote in the case if there is a split decision, Hellman and other analysts said.

Having spent my legal career practicing in the 9th Circuit, I can tell you Dolan is spot on here. Reinhardt is Read more →

Chris Christie-Patton Boggs Contract Shows Disturbing Trend

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New Jersey Governor Chris Christie, in one of his first major acts in office, killed the NJ-NY Hudson River Tunnel Project that had already been agreed to and would have brought much needed transportation congestion relief as well as billions in long term Federal construction spending, and related job creation, for his state. Christie said New Jersey could not afford to participate. As a result of Christie’s breach of the agreement and withdrawal, the Federal government, via the FTA, formally noticed demand for losses and expenses in the amount of $271 million dollars that resulted.

Christie, of course, doesn’t want to honor the government’s loss claim any more than he does the tunnel agreement. So Christie has hired the ultra high dollar white shoe Washington DC power law firm Patton Boggs to fight the claim:

New Jersey Governor Chris Christie has hired a law firm to challenge a $271 million tab the federal government says the state owes for the canceled ARC rail tunnel. Christie says he’s approved the selection of the high-powered Washington, D.C. firm of Patton Boggs.
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A Christie spokesman Michael Drewniak defended the hire, saying “We’re much better off using a firm like this than using our own in-house attorneys or attorneys general. Not to knock their expertise, but let’s face it, that’s what these attorneys [at Patton Boggs] do for a living.”
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Drewniak said the firm would be charging $485 an hour. He wasn’t sure where the money to pay that rate would come from — only that it would be found. “There are always contingencies for every agency of government for conducting legal affairs,” he said. “Everybody has to budget money.”

Patton Boggs is listed by the Center for Responsive Politics, a non-profit group that tracks influence in Washington, as the nation’s top lobbyist over the last twelve years, with about $400 million in billings since 1998. Its clients include Walmart, several health-care related companies and local governments.

Only $485.00/hr. for a high powered firm like Patton Boggs, the kind of firm where senior level counsel regularly charge $800-$1,000 an hour, looks pretty reasonable on the surface doesn’t it? Looks like Christie actually negotiated a pretty fair deal on outside lawyers, if he is not going to use any of the hundreds of state attorneys he already has on the payroll, doesn’t it? Well, not so much.

$485 an hour for a firm like Patton Boggs means they are using “blended rate” on their RFP response. They put in an estimate that shows a small number of partner hours at $800+, and large number of low level associate and paralegal hours at much lower rates.

After they get the contract, there will be lots more partner hours billed than in the estimate. The final bill will be a multiple of the estimated bill in the RFP.

This is how big white shoe law firms, with huge and expensive overhead, compete with small firms who legitimately charge less than $500 an hour for partner time on governmental contracts. It is a scam that was invented so politicians can funnel lucrative steady contract money to big powerful supporters and the big firms can siphon money from government coffers.

In the old days, the government would set a maximum “government rate” per hour they were willing to pay, and the big firms would not touch the work. Mid sized and smaller law firms specializing in such work, manned by ex-prosecutors and other government lawyer types who still wanted to do “public good work” would open boutique firms that charged less than 1/2 the per hour rate for senior attorneys the big firms could and would get these assignments because the big firms wouldn’t take the government rate. These firms often consisted of attorneys with substantial federal agency or DOJ experience, wanting to actually do more than get rich, and gave the taxpayers a far better deal, and just as good, if not far better, results because the firm was not beholden to Washington DC masters and political and lobbying affiliations.

So, if past practice in such situations is prologue, Chris Christie’s contract with Patton Boggs is not only questionable because the State of New Jersey has plenty of capable attorneys already on its payroll, it is also far from the reasonable deal it is being pitched as.

Prop 8 Judge Tells H8ters to Get Lost; Denies Motion to Disqualify

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Liberty & Justice by Mirko Ilic

As you know from my report Monday when the three member appellate panel in the 9th Circuit was announce for the Prop 8 case of Perry v. Schwarzenegger, one of the judges assigned was Judge Stephen Reinhardt. Steve Reinhardt is one of the finest judges you will find anywhere, and he is an old school principled and unabashed liberal whose veins carry the lifeblood of social justice, fundamental fairness and equal protection for all citizens.

So, of course the hating bigots that comprise the pro-Proposition 8 Defendant-Intervenors filed a motion last night to disqualify Reinhardt. Here is the full motion to disqualify brief, it is only 18 pages (10 of text) long and gives a very good glimpse of just how the haters tried to attack Reinhardt here because – gasp! – his wife has spent her career at the ACLU who -gasp! – actually is in favor of marriage equality. In a nutshell, D-Is argue:

Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”). As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.
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The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned. His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit…
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It is thus plain that Ms. Ripston has an avowed interest in seeing Proposition 8 invalidated, an interest that unquestionably will be substantially affected by the outcome of this proceeding.

The D-I argument is, of course, ginned up baloney. Reinhardt’s wife, Ramona Ripston, was never an Read more →

Excellent Panel Announced for Perry Prop 8 Appeal

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When the appeal in Perry v. Scwarzenegger was initially lodged, I put forth the possibility that the panel assigned to hear the full merits appeal in December might be the earlier panel of Judges Wardlaw, Fisher and Berzon, which had heard substantive interlocutory appeals from the trial portion of the case when it was in Judge Vaughn Walker’s court. This was an exciting possibility as it would be a very favorable panel. That is not to be; however, the panel just announced that will hear the merits appeal on the morning of December 6 is very good and favorable to upholding Judge Walker’s seminal ruling.

Today it was announced the panel will consists of Judges Stephen Reinhardt, Michael Hawkins and N. Randy Smith. Stephen Reinhardt is the living epitome of an old school dyed in the wool liberal; you simply could not ask for a better man. Mike Hawkins is also an excellent judge and, although not quite as liberal as Reinhardt, should be expected to have little patience for the poorly fleshed out case the defendant-intervenors put on in the trial in front of Walker or that they belligerently reargue on appeal as if they never lost. N. Randy Smith, on the other hand, is a very conservative judge from Idaho, of Brigham Young University heritage both undergraduate and law school, and was appointed by George W. Bush. Smith is not so promising.

The bottom line is, early odds are on a 2-1 decision upholding Judge Vaughn Walker’s fine decision in Perry. The one stumbling block, of course, is the issue of standing, and on that I still have some concern that Hawkins, who can be a stickler on procedural details, might align with Smith to hold that there is no standing on the appeal. So, while there are still problems with the standing issue and therefore there should be no premature wild celebrations today, it is nevertheless a very favorable panel the Perry appeal has drawn. For that, there should be some joy.

As a reminder, the oral argument on the Perry appeal is scheduled for 10:00 am PST Monday December 6, 2010 – one week from today. Marcy and I will be live blogging it and, incredibly, it is currently set to be televised on, among other stations, CSPAN. So, one and all can watch this historic argument and join in the discussion!

Crist’s Morrison Pardon: 21st Century Fox In A Lizard King’s Henhouse

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Hey, being pretty much a sentient life long Doors aficionado, I am all in with pardoning Jim Morrison, which there has been a flurry of scuttlebutt emanating, cool and slow, with a backbeat narrow and hard to master, out of the instant swamps of Florida, regarding.

Oh, and when I heard the subject brought up by the patently unhip, plodding Blue Dog, holier than thou, I’m a better Democrat than you, scold Larry O’ Donnell on his craptastic bloviathon MSNBC show, that was just too fucking much. The backdoor rumor is Charlie Crist, who may or may not have eaten more chicken that a man has eve seen, is pondering giving the Big Scooter Libby Get Out Of Jail Free card to the Most Right Reverend Snake King Jim Morrison.

Outstanding. And long over due. Because if some fucking little germ boy, bear cage child threatening, functionally traitorous subservient to Cheney blank like I. Lewis “Scooter” Libby can get a walk from a complicit President of the United States in order to mask apparent criminal behavior, then why not a posthumous hall pass for James Douglas Morrison? Seriously.

If you are comparing and contrasting facts and circumstances, one was an entertainer who may or may not have, for a fleeting moment, exposed himself in 1969 to a Miami audience at the end of a Doors concert that truly could not only have cared less, but were bummed they had not done so earlier. The other, Cheney’s toy Scooter, conspired to expose and out a classified top CIA clandestine agent working on the most critical issue of the day, the existence of nuclear and/or weapons of mass destruction in Iraq and/or Iran. You know, the fraudulent reason the very same Mr. Cheney and wooden operated mouthed George Bush relied on to affirmatively, aggressively and illegally start a war against Iraq for the sins of 9/11 that Iraq not only did not commit, but had actual avarice for the people who did.

That Scooter Libby.

So, if Scooter Libby can skate and, in the process, serve as a firewall for the immorality and illegality of the Bush/Cheney Administration, there is no reason the Lizard King should not be posthumously exculpated.

No tears, no fears, but a lot of ruined years. Charlie Crist made clear intimations he wanted to do this when he took office. Being a gutless politician at heart he, of course, never did it as Governor of the rockin state of Florida. Instead he cowered to the perceived sensabilities of the people in rockin chairs. And lost his ass, soul and electability in the process. Douchebag. Crist is toast. But if he wants to belatedly clean up the halls of the Morrison Hotel, well then I am all for that. Mr. Mojo is rising; Charlie Crist is not. Lizard Kings rule; political blanks drool.

We have constructed pyramids in honor of this escaping. Let the spirit of Mr. Mojo fly Mr. Charlie Crist. It is about the only thing of merit, morals and guts you can do at this point. Get on with it you ineffectual political chameleon stale fish.

Expect Our Banana Republic-Like Access to Justice to Get Worse

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Not long ago, an independent group showed that the access to justice for the average American rivaled that of a banana republic. And no one is making much of an effort to fix that problem. As DDay reported last week, while the Dodd-Frank bill authorized $35 million to support legal services, no one has appropriated it (and the folks about to take over the House aren’t likely to do so anytime soon).

Unfortunately, the one guy in the Obama Administration tasked to do something about that problem, Lawrence Tribe, is about to leave.

After nine months as the Justice Department’s “senior counselor for access to justice,” Laurence H. Tribe, a prominent Harvard law professor and mentor to President Obama, will leave his position and return to Massachusetts early next month.

[snip]

During Mr. Tribe’s brief tenure, he traveled around the country meeting with judges, prosecutors, public defenders, and legal aid workers, in an effort to find places where access to the justice system could be improved for ordinary people. He said he was pleased with the ways his office had found “to create a much more energized network, even though the problems are pervasive and cannot be transformed overnight.”

In partnership with other agencies, Mr. Tribe’s office pushed programs to increase training and collect more data about indigent defense, use the Internet to expand legal services to poor people in rural areas, strengthen legal services for victims of domestic violence, and expand mediation as an alternative to lawsuits for people involved in foreclosures.

Mind you, Tribe is not leaving because he’s disgruntled with the Administration. Rather, he’s returning to get medical care for a problem that has recurred.

Still, at a time when one of the only forces keeping the banksters from running roughshod over the private property of a bunch of real people is a bunch of legal services lawyers, the loss of Tribe comes at a terrible time.

Are Obama and Congress Set To Screw American Counties, Homeowners and Give Wall Street Mortgage Banksters a Retroactive Immunity Bailout?

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There are rapidly emerging signs the Obama Administration and Congress may be actively, quickly and covertly working furiously on a plan to retroactively legitimize and ratify the shoddy, fraudulent and non-conforming conduct by MERS on literally millions of mortgages.

From CNBC:

When Congress comes back into session next week, it may consider measures intended to bolster the legal status of a controversial bank owned electronic mortgage registration system that contains three out of every five mortgages in the country.

The system is known as MERS, the acronym for a private company called Mortgage Electronic Registry Systems. Set up by banks in the 1997, MERS is a system for tracking ownership of home loans as they move from mortgage originator through the financial pipeline to the trusts set up when mortgage securities are sold.

Just to make clear the implications of this craven action, the White House and Congress are conspiring to give a get out of jail free bailout card to the biggest banks and finance companies in the country to cover up and mask their illegal behavior and behavior that did not conform with state, county and local laws throughout the United States. On at least sixty (60%) percent of the existing mortgages in America.

There are dozens of implications to individuals and both private and public entities. At a root minimum, it will likely decimate, if not bankrupt, most counties in every state of the union.

If courts rule against MERS, the damage could be catastrophic. Here’s how the AP tallies up the potential damage:

Assuming each mortgage it tracks had been resold, and re-recorded, just once, MERS would have saved the industry $2.4 billion in recording costs, R.K. Arnold, the firm’s chief executive officer, testified in 2009. It’s not unusual for a mortgage to be resold a dozen times or more.

The California suit alone could cost MERS $60 billion to $120 billion in damages and penalties from unpaid recording fees.

The liabilities are astronomical because, according to laws in California and many other states, penalties between $5,000 and $10,000 can be imposed each time a recording fee went unpaid. Because the suits are filed as false claims, the law stipulates that the penalties can then be tripled.

Perhaps even more devastatingly, some critics say that sloppiness at MERS—which has just 40 full-time employees—may have botched chain of title for many mortgages. They say that MERS lacks standing to bring foreclosure actions, and the botched chain of title may cast doubts on whether anyone has clear enough ownership of some mortgages to foreclose on a defaulting borrower.

Why would the Obama Administration and Congress be doing this? Because the foreclosure fraud suits and other challenges to the mass production slice, dice and securitize lifestyle on the American finance sector, the very same activity that wrecked the economy and put the nation in the depression it is either still in, or barely recovering from, depending on your point of view, have left the root balance sheets and stability of the largest financial institutions on the wrong side of the credibility and, likely, the legal auditory line. And that affects not only our economy, but that of the world who is all chips in on the American real estate and financial products markets.

What does that mean to you? Everything. As quoted above, even the most conservative estimate (and that estimate is based on only a single recording fee per mortgage, when in reality there are almost certainly multiple recordings legally required for most all mortgages due to the slicing, dicing and tranching necessary to accomplish the securitization that has occurred) for the state of California alone is $60 billion dollars. That is $60,000,000,000.00. California alone is actually likely several times that. Your county is in the loss column heavy from this too.

Where will the roads come from? Where will the county courts, judges and prosecutors come from? The Sheriffs? Who will build and maintain the bridges, parks and public works entities? Removal and obviation of this funding mechanism may literally kill any and every county.

That is without even going into the real and myriad effects on individuals, families and communities. This is a death knell to the real property system as we have always known it and the county structure of American society as we have known it. And millions of people will have lost the ability to benefit from the established rule and process of law that they understood and relied on. After the fact. Retroactively. So Obama and Congress can once again give a handout and bailout to the very banks and financial malefactors that put us here.

Durham Torture Tape Case Dies, US Duplicity in Geneva & The Press Snoozes

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From the best available information as to the original destruction date of the infamous “Torture Tapes” having been on November 8, 2005, the statute of limitations for charging any general crime by employees and/or agents of the US Government for said destruction will expire at midnight Monday November 8, 2010 as the general statute of limitation is five years. By operation of law, the statute would have run yesterday were it not a Sunday. So, by the time you are reading this, it is over. Absent something extraordinary, and I mean really extraordinary, a criminal statute of limitation is effectively a bar to subject matter jurisdiction and that is that. Ding dong, the John Durham torture tape investigation is thus dead.

Last week, I wrote a letter to the DOJ and saw to it that it was delivered to the main contacts, Dean Boyd and Tracy Schmaler, as well as John Durham’s office. None of them responded. Finally, late Monday afternoon I called Durham’s office, and they acknowledged having received the letter. Although extremely cordial, there was simply no meaningful information or discussion to be had on the subject. “We have no comment” was about the size of it. I asked about the remote possibility of the existence of a sealed indictment; there was “no comment” on that either, and there is absolutely no reason in the world to think anything exists in this regard.

Oh, there was one thing; when I asked why there had been no formal response to my letter, I was told perhaps it was a “little edgy”. Apparently actually phrasing an inquiry with legal specificity and facts makes it too “edgy” for the United States Department Of Justice. Who knew? Ironically, at the same time this discussion was transpiring today, the very same Obama DOJ was in US Federal Court, in front of Judge John Bates of the DC District, arguing for their unfettered right to extrajudicially execute an American citizen, and do so in secret without explanation. But my letter asking about the dying Durham investigation was edgy. The DOJ’s priorities, morals and duties seem to be a bit off kilter when it comes Read more →

Letter to DOJ and John Durham Re: Torture Tape Crimes Expiring

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As you may know, in early November of 2005, agents of the United States government destroyed at least ninety two videotapes containing direct evidence of the interrogation and, upon admission and belief, torture of Abu Zubaydah and Abd al-Rahim al-Nashiri (see: here, here, here, here and here). The statute of limitations, for the criminal destruction of said taped evidence in the cases of Abu Zubaydah and al-Nashiri will expire on Sunday November 7 (since the last day falls on a weekend, the statute should maintain through the next business day, which is Monday November 8). As we have heard absolutely nothing from Eric Holder, John Durham, the DOJ or the Obama Administration in relation to indictments or other results of the investigation Mr. Durham has been conducting since January 8, 2008, nearly three years, I thought a letter was in order asking just exactly what their status was. Said letter was addressed to Dean Boyd and Tracy Schmaler, official representatives and spokesmen for the Department of Justice, and reads as follows:

Dean and Tracy,

As I believe you are already aware, the statute of limitation on criminal charges including, notably, obstruction of justice for the destruction of evidence, are about to expire. The destruction appears to have occurred on or about November 8, 2005 and there is a five year statute on most all of the general crimes that could possibly be under investigation by John Durham. No competent prosecutor would have waited this long to file charges if he intended to do so, but there are still a couple of days left; what is the status?

Secondly, I would like to point out that should you be thinking about relying on some rhetoric that Mr. Durham simply cannot find any crimes to prosecute and/or that there were no proceedings obstructed, it is intellectually and legally impossible to not consider the tapes to be evidence, and as they almost certainly exhibit torture to some degree and to some part they would almost certainly be exculpatory evidence, in the cases of Abu Zubaydah and al-Nashiri themselves. The United States government continues to detain these individuals and they have charges that will putatively be brought against them in some forum (civil or tribunal), Habeas rights and/or indefinite detention review processes that will occur in the future.

In short, there exist not just the potential, but the necessity, of future proceedings, and agents of, or on behalf of, the United States government have destroyed material, and almost certainly exculpatory, evidence. Crimes have been committed. At a bare root minimum, it is crystal clear Jose Rodriquez has clear criminal liability; there are, without question, others culpable too. What is the status?

If the DOJ does not intend to proceed in any fashion on these clear crimes, please provide me with some intellectually consistent explanation for why the US government is covering up, and refusing to prosecute, the criminal acts of its own employees and agents.

Thank you.

bmaz

emptywheel.com

If there is any worthwhile or meaningful response, I will advise.