Feinstein Issues Statement On IG; Misunderstands Army Field Manual

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Senator Dianne Feinstein of California has issued an official statement "On Release of Documents Related to CIA Interrogation and Detention Program and Renewed Commitment to Army Field Manual Standard for Interrogations":

“The documents released today provide evidence that the CIA detention and interrogation program exceeded its authority as follows:

· Beating a detainee in Afghanistan, who later died in custody, with a heavy flashlight;
· Threatening a detainee with a handgun and a power drill;
· Staging a mock execution;
· Threatening to kill a detainee’s family;
· Choking a detainee to the point of unconsciousness;
· Applying waterboarding in ways that beyond what the Office of Legal Counsel had authorized, and not informing OLC of how waterboarding was being done in practice prior to the Inspector General’s report.

The IG report also noted a case in which the interrogators at a ‘black site’ recommended ending the use of enhanced interrogation techniques on a detainee, but were overruled by officials at CIA headquarters and told to resume waterboarding the detainee.

I first learned of this and other IG reports, starting in September of 2006. I expressed significant concern with the program and introduced legislation in 2007 to limit CIA interrogations to techniques authorized by the Army Field Manual. This provision was passed by Congress in 2008, but was vetoed by President Bush. I reintroduced this legislation in January.

President Obama has committed to requiring that the CIA only use the proven and effective interrogation techniques authorized by the Army Field Manual, and I strongly agree with that position.

The Senate Intelligence Committee is conducting a comprehensive, bipartisan study of all aspects of CIA’s detention and interrogation program. This study includes how the program was created and operated, how it was briefed to the Congress and other parts of the Executive Branch, its compliance with guidance from the Department of Justice, and the information produced. The study is ongoing. We have reviewed thousands of documents on a number of high-value detainees, and will review the cases of all such detainees.

The Committee’s study will continue until we complete our work, regardless of any decision by Attorney General Holder on whether to proceed to a criminal investigation. I Read more →

Troy Davis Gets A New Hearing

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A few days ago I wrote about how bad legislation in the form of the Antiterrorism and Effective Death Penalty Act of 1996 has turned federal juries and appellate courts into "death panels" by limiting and accelerating the appeal process, and thus the execution, of defendants in capital cases. The upshot of that post is Federal judges are starting to speak out vociferously in dissent to the law.

One of the matters with notoriety in the media that has been impacted by the evisceration of Habeas occasioned by the Antiterrorism and Effective Death Penalty Act of 1996 is the death penalty case of Troy Davis. Today, the Supreme Court took the somewhat unexpected and extremely rare step of ordering a new hearing in a District trial level court into new evidence and the guilt or innocence of Davis:

The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing. Simply put, the case is sufficiently “exceptional” to warrant utilization of this Court’s Rule 20.4(a), 28 U. S. C. §2241(b), and our original habeas jurisdiction. See Byrnes v. Walker, 371 U. S. 937 (1962); Chaapel v. Cochran, 369 U. S. 869 (1962).
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The District Court may conclude that §2254(d)(1) does not apply, or does not apply with the same rigidity, to an original habeas petition such as this. See Felker v. Turpin, 518 U. S. 651, 663 (1996) (expressly leaving open the question whether and to what extent the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to original petitions). The court may also find it relevant to the AEDPA analysis that Davis is bringing an “actual innocence” claim.
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JUSTICE SCALIA would pretermit all of these unresolved legal questions on the theory that we must treat even the most robust showing of actual innocence identically on habeas review to an accusation of minor procedural error. Without briefing or argument, he concludes that Congress chose to foreclose relief and that the Constitution permits this. But imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning.

In a short, by SCOTUS standards ruling (3 pages), the majority not only granted Davis a rehearing Read more →

The Cost Of Obama’s Beer Fest Failure Is More Tasered Moms

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I wrote a series of posts about the incident surrounding Harvard Professor Henry Louis Gates. First, it was an illegal and unconstitutional arrest because of the abuse of police power and discretion. Second, irrespective of whether it was a racially motivated moment, it was one from which serious discussion could, and should, ensue. Third, that it was a teaching moment being given short shrift by the clumsy way Barack Obama inserted himself into it and then tried to extricate himself through the bogus "beer summit".

The thing that got me up in arms, from the start, is the undeniable fact that Gates’ arrest was illegal and an abuse of police power. As I described, take Gates’ conduct at its worst as described by the Cambridge police report, and the conduct simply does not meet the elements of disorderly conduct as arrested and charged on under the Massachusetts statute. There was no probable cause or legal basis for the arrest; it was simply a case of contempt of cop, and Sergeant Crowley decided to use the time honored police way of dealing with citizens in such situations, he abused his authority and badge by arresting the citizen.

The only thing unique about the Gates case is that it ended without serious harm to the citizen and it pierced the national conscience. The same base conduct plays out every minute of every day somewhere in the US. But the Gates/Crowley moment appears to have been lost without any intelligent discussion of the rampant abuse of police power and authority. Save for the opinions of Jonathan Turley and Jeff Toobin, which were minimized by MSNBC and CNN television coverage, there was precious little recognition by major media outlets of the root point of police power abuse.

Well, the scene in the video attached hereto is what happens in a society that refuses to address overreaching authoritarianism and unrestrained police projection. Moms with kids in minivans get Tasered and roughed up. In front of their children. Why? Because the cops can with relative impunity. The "Blue Line" circles the wagons around their fellow officers, prosecutors need their cooperation for prosecution and trials in actual major cases, and politicians are too cravenly worried about their next election to care. As Digby says:

If this is what they do when they have a video camera rolling Read more →

Death Panels From Bad Legislation

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[Marcy is tending bar for Glenn Greenwald today over at Salon and has a wonderful piece on John Brennan and resultant bad policy in the Obama Administration. Please give her a visit – bmaz]

Australia, Belgium, Canada, Denmark, France, Germany, Ireland, Italy, Mexico, New Zealand, Norway, Poland, Spain, Sweden, Switzerland, Turkey, the United Kingdom (England), and even Venezuela. What do all these developed first order modern countries have in common?

They abolished the death penalty. Conspicuously absent of course is the United States. We are the only country in the Americas, whether North or South, that utilizes the death penalty in anything other than declared war exceptional circumstances. The conspicuousness of the US on the world death penalty map is chilling in terms of who we are aligned with in our beliefs; and it isn’t what might be referred to as the enlightened group of nations.

What is the purpose of the death penalty in a modern society at this point? Sure isn’t deterrence. In an article in the Ohio State Journal of Criminal Law, Dr. Jeffrey Fagan of Columbia University writes,

There is no reliable, scientifically sound evidence that [shows that executions] can exert a deterrent effect…. These flaws and omissions in a body of scientific evidence render it unreliable as a basis for law or policy that generate life-and-death decisions. To accept it uncritically invites errors that have the most severe human costs.

In accord are John Donnohue and Justin Wolfers in an article entitled "The Death Penalty: No Evidence for Deterrence", where the authors conclude claims that the death penalty saves lives and acts as a deterrent "are simply not credible." Are there studies to the contrary? Yes, and they are debunked in the above studies and evaluations, as well as in any number of others.

It is not for purposes of financial efficiency either; the death penalty is hideously expensive for the states and nation. When I first began my legal career, the data consistently showed that litigating and executing death penalty cases, as opposed to non-capital punishment treatment (including life imprisonment), was severely more expensive. That is still the case. From the CSM:

This year, state budgetary crises have given death penalty opponents their most successful argument yet – money.
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Administering the death penalty is breathtakingly expensive. Contrary to popular opinion, it costs substantially more to execute people than to send them to prison for the rest of their lives.

In California, which houses the nation’s largest death row, it costs about $137 million annually to maintain the state’s death penalty system. The state has conducted only Read more →

Extension And Delay In al-Haramain

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As covered here and here, a Motion For Summary Judgment is pending in al-Haramain v. Obama, set in front of Judge Vaughn Walker in NDCA. Just to keep you apprised of the status, there has been a stipulation and order entered to extend certain time limits previously set in the matter.

Counsel for the Government Defendants has conferred with counsel for plaintiffs and sought agreement on a short two-week extension of the briefing schedule and a modification of the hearing date due to the press of business and other scheduling conflicts arising after the plaintiffs filed their motion. To facilitate this agreement, counsel for Government Defendants advised plaintiffs’ counsel that the Government does not presently anticipate submitting classified information in support of the Government’s position in response to plaintiffs’ motion or with any cross motion.

The one useful tidbit here is the government’s avowal that they do not intend to submit or rely on any classified information in their pleading. Certainly not shocking, in fact it is predictable. It is however important because neither we nor the plaintiffs want to delay things even further. There is no reason to give the government another month of delay on top of the delay that would be caused by classified filings, which would of course require proceedings to arrange for plaintiffs to review them under secure conditions per Judge Walker’s previous putative protective order.

One further reason why Coppolino likely isn’t going to do any further classified filing is because Judge Walker has indicated that if the plaintiffs review anything classified, they will probably get to review everything classified, both past and present. That would be crucial because it would mean the plaintiffs get to see the February 2009 filings correcting the so-called "inaccuracy," which you can be sure the government does not want them to see. Obama, Holder and Coppolino will probably do just about anything to avoid plaintiffs seeing those "corrections".

Assuming the government, through lead attorney Tony Coppolino, actually keeps his word and relies on information solely within the public domain, however, it increases the likelihood they will merely restate the same tired old defense that they are entitled to dismissal on state secrets grounds. Yes, I know, how shocking they could once again spew the same old junk. They cannot, however, materially contest the facts proffered by the plaintiff in the motion for summary judgment, because under the rules governing handling and disposition of such motions, specifically Rule Read more →

Obama’s First Rendition Looks Very Questionable

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If his first publicly known rendition case is any indication, there may well be a legitimate question as to whether Obama’s rendition program is even more repulsive than that of George Bush. More evidence will be required for an informed answer, but Obama is off to a very inauspicious beginning. From Scott Horton in an exclusive for Huffington Post:

[I]n a federal court in suburban Washington, a case is unfolding that gives us a practical sense of what an Obama-era rendition looks like.

Raymond Azar, a 45-year-old Lebanese construction manager with a grade school education, is employed by Sima International, a Lebanon-based contractor that does work for the U.S. military in Iraq and Afghanistan. He also has the unlikely distinction of being the first target of a rendition carried out on the Obama watch.

According to court papers, on April 7, 2009, Azar and a Lebanese-American colleague, Dinorah Cobos, were seized by "at least eight" heavily armed FBI agents in Kabul, Afghanistan, where they had traveled for a meeting to discuss the status of one of his company’s U.S. government contracts. The trip ended with Azar alighting in manacles from a Gulfstream V executive jet in Manassas, Virginia, where he was formally arrested and charged in a federal antitrust probe.

This rendition involved no black sites and was clearly driven by a desire to get the target quickly before a court. Also unlike renditions of the Bush-era, the target wasn’t even a terror suspect; rather, he was suspected of fraud. But in a troubling intimation of the last administration, accusations of torture hover menacingly over the case. According to papers filed by his lawyers, Azar was threatened, subjected to coercive interrogation techniques and induced to sign a confession. Azar claims he was hooded, stripped naked (while being photographed) and subjected to a "body cavity search."

I would say that the evidence of torture is an allegation at this point; but the optics of forced rendition for simple contracting fraud are disturbing. No terrorism, no deaths, and it does not even appear that Azar is a principal in the company, Sima International.

But in all three previous administrations, renditions have been considered a rare technique reserved for dangerous terrorists and violent drug kingpins. Azar is at worst a secondary figure in a small-time contract fraud case and is not accused in any way of terrorism. Why such aggressive and dramatic techniques were used in Read more →

Citizens United v. Federal Elections Commission

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images5thumbnail1.thumbnail.jpegAdam Cohen of the New York Times is a fairly astute writer on legal issues, and he has a new article up on the interesting case of Citizens United v. Federal Election Commission. The case involves the ability of corporations to further pollute elections in the United States with unregulated big money. From Cohen’s NYT article:

The founders were wary of corporate influence on politics — and their rhetoric sometimes got pretty heated. In an 1816 letter, Thomas Jefferson declared his hope to “crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”

This skepticism was enshrined in law in the early 20th century when the nation adopted strict rules banning corporations from contributing to political campaigns. Today that ban is in danger from the Supreme Court, which hears arguments next month in a little-noticed case that could open the floodgates to corporate money in politics.

The court has gone to extraordinary lengths to hear the case. And there are worrying signs that there may well be five votes to rule that the ban on corporate contributions violates the First Amendment.
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If the ban is struck down, corporations may soon be writing large checks to the same elected officials whom they are asking to give them bailouts or to remove health-and-safety regulations from their factories or to insert customized loopholes into the tax code.

The entire article is not that long and well worth a read for the history and set up for the case at bar. Cohen is right that the ban is in jeopardy; and the Roberts court does seem to have a hard on for this issue, having taken extraordinary steps to wade into this case, which is not that well set up for a Supreme Court determination on such a critical and far reaching issue.

The Court did indeed take a case in which the ban on corporate political contributions was not a central issue and instructed the parties to brief on the ban’s constitutionality. The Court then accelerated oral argument on its calendar to a September date before the new SCOTUS term even starts. This sure looks to be the handiwork of Chief Justice John Roberts; anybody who says Roberts is not an "activist judge", and has no agenda, is nuttier than a fruitcake. Read more →

This Bud Is For You Mental Midgets Of The Media

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obama-beerThere are three irreducible minimums emanating from the arrest of Henry Louis Gates at his home in Cambridge Massachusetts. First, it was an illegal and unconstitutional arrest because of the abuse of police power and discretion. Second, it may or may not (my inclination is not, at least at the outset) have been a racially motivated moment; either way it is one from which serious discussion could, and should, ensue. Third, it is an event that has become embedded in the national consciousness from which the nation could learn and grow as one.

Despite the above, the trained Skinner rats in the national media have glommed onto the most trivial and inane aspects to convey to the public audience. To half wit USA Today:

We guess this qualifies as breaking news.

President Obama will drink Bud Light at the Thursday meeting with the African-American professor and white police officer who got in a dust-up earlier this month. Press secretary Robert Gibbs just made the announcement to the press pool on Air Force One.

The full menu looks set. Sgt. James Crowley, whose arrest of professor Henry Louis Gates at his home, touched off the incident, has indicated a preference for Blue Moon. Gates has said he likes Red Stripe.

"So we’ll have the gamut covered tomorrow afternoon," Gibbs said.

Walter Cronkite is barely in his grave and already he is rolling over. And ABC News doubles down on the boys’ brews. Here is the AP with the same basic drivel. And Bloomberg. The Pulitzer Prize material is front and center at every news source imaginable as well as the cable and broadcast outlets.

The only teachable moment we are going to be treated to out of the lofty potential available from the moment is to learn once again what lowest common denominator dregs we have in the American media and what little they think of the American national intelligence and conscience. Quite frankly, President Obama has not acquitted himself well in leading here either.

What is really on tap for tomorrow’s "teachable moment"? The Washington Post (probably piqued they cannot turn the event into a "Salon") sets the social table:

Gates and Crowley will gather for a beer and chat with President Obama at a picnic table outside the Oval Office as the sun sets Thursday. The president has called the incident a "teachable moment," but the trio is not expected to Read more →

Dodd and Conrad: The Appearance Of Impropriety

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Both Connecticut’s Chris Dodd and North Dakota’s Kent Conrad steadfastly deny any knowledge or fact of preferential treatment in their real estate loans from Countrywide Mortgage, but the fact the story keeps hanging around is disquieting. And apparently it has been doing quite a bit more than hanging around, there have been hearings and testimony. From MSNBC:

Despite their denials, influential Democratic Sens. Kent Conrad and Chris Dodd were told from the start they were getting VIP mortgage discounts from one of the nation’s largest lenders, the official who handled their loans has told Congress in secret testimony.
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The next day, Feinberg testified before the Senate Ethics Committee, an indication the panel is actively investigating two of the chamber’s more powerful members
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Both senators were VIP borrowers in the program known as "friends" of Angelo. Angelo Mozilo was chief executive of Countrywide, which played a big part in the foreclosure crisis triggered by defaults on subprime loans. The Calabasas, Calif.-based company was bought last July by Bank of America Corp. for about $2.5 billion.
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Countrywide VIPs, Feinberg told the committees, received discounts on rates, fees and points. Dodd received a break when Countrywide counted both his Connecticut and Washington homes as primary owner-occupied residences — a fiction, according to Feinberg. Conrad received a type of commercial loan that he was told Countrywide didn’t offer.
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Two internal Countrywide documents in Dodd’s case and one in Conrad’s appear to contradict their statements about what they knew about their VIP loans.

First off, let’s be clear, there has been no finding of wrongdoing as to either Dodd or Conrad. Secondly, even if it were to be all true, it does not look like the benefits were particularly valuable monetarily. Still, it is tiring seeing the constant privileged status our elected officials in Washington claim for themselves.

These are two critical Senators for the Democratic majority, and here we are in the biggest legislative struggle perhaps in decades over healthcare reform talking about their ethical propriety. It is not helpful. I don’t care if the two Senators’ gain was penny ante in the long run, it is the fact they were brazen enough to think it okay to take a little cut. Because as members of Read more →

The Yoo Tumor

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John Yoo is a cancer on the Constitutional body politic of the United States, and he won’t go away. For some inexplicable reason, Carrie Johnson, and her editors at the Washington Post, have decided to fluff the one man self rationalization and obfuscation tour Yoo has been on as of late:

Some public figures, if their judgment and ethics come under fire, retreat into solitude. Then there is John C. Yoo.

The former Justice Department official, whose memos blessed the waterboarding of terrorism suspects and wiretapping of American citizens, has come out fighting, even as negative assessments of his government service pile up.

Last month, a federal judge in California refused to dismiss a lawsuit that accuses Yoo of violating a detainee’s constitutional rights. This month, the Justice Department’s inspector general described Yoo’s legal analysis of the Bush surveillance program as "insufficient" and sometimes inaccurate. Also expected in coming weeks is a department ethics report that sources have said could renounce Yoo’s approval of harsh CIA interrogation practices and recommend that he and Jay S. Bybee, a former colleague, be referred to their state bar associations for discipline.

While former colleagues have avoided attention in the face of such scrutiny, Yoo has been traveling across the country to give speeches and counter critics who dispute his bold view of the president’s authority. Now a law professor at the University of California at Berkeley, he engages in polite but firm exchanges with legal scholars over conclusions in their academic work. This month, he wrote an opinion piece in the Wall Street Journal defending his actions and labeling critics’ arguments as "absurd" and "foolhardy" responses to "the media-stoked politics of recrimination."

There is nothing whatsoever new in the story, save perhaps for the information that even if the long delayed OPR Report recommends bar discipline against Yoo, he is unlikely to suffer any consequences because the only state he is licensed in, Pennsylvania, has a five year statute of limitations on ethics infractions. Johnson and the Post, of course, do not discuss whether the Pennsylvania statute may have been tolled because the information was not publicly available for a good deal of the time.

The Post article is beyond disingenuous with the way it blithely equates the pros and cons of Yoo and his work. It even points out the recent decision in Federal court in NDCA by Judge Jeffrey White without noting in any detail that Read more →