What Pelosi, Rockefeller & Harman Could Have Done

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There has been an ongoing discussion for the last two weeks or so about the briefings that congressional leaders were allegedly given regarding the Bush/Cheney torture program (See for instance here, here, here, here and here) and what Congressmembers like Pelosi, Rockefeller, Harman and Graham could have done to fight the malfeasance of Bush and Cheney. This post will explain what they could have done.

I promised a discussion on the speech and debate clause and what was possible, at least theoretically, for Nancy Pelosi, Jane Harman, Jay Rockefeller, Bob Graham, or any Congressmember that had knowledge, to have done about the wrongs of the Bush Cheney Administration, even in relation to national security level topics.

The speech and debate clause is found in Article I, section 6 of the Constitution and reads as follows:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The key wording is the last part "…and for any Speech or Debate in either House, they shall not be questioned in any other Place." The down and dirty is that congressmembers (and in certain cases key staff) cannot be questioned or held to answer in any forum, civil, criminal or otherwise, for speech and/or discussion regarding legitimate interests and business of Congress; such conduct occurring on the floor or in committee is absolutely privileged.

Let’s have a look at the history of the Speech and Debate Clause. In United States v. Gillock, 445 U.S. 360 (1980), the Supreme Court stated, "The Framers viewed the speech or debate privilege as fundamental to the system of checks and balances." Indeed, it was framed by the founders as one of the seminal checks and balances against the power and greed of the Executive Branch. You know, exactly what Congress was staring at, and cowering from, with the Bush/Cheney crew. The Congressional privilege has been discussed and upheld in a Read more →

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Wood v. Kagan on Executive Power

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In his book, Takeover, Charlie Savage argued that the true unifying theme behind Bush’s SCOTUS picks (including Harriet Miers, had she survived) was strong support for executive power. So not only did Bush expand executive power with his signing statements, he did so even more by packing SCOTUS with Justices who would vote to support this expansive view of executive power.

Appropriately, then, Savage has a review of Obama’s top contenders to replace Justice Souter in those same terms: what have the candidates said about executive power?

While he suggests there is little to indicate how Sonia Sotomayor, Jennifer Granholm, and Janet Napolitano would rule on executive power (aside from the fact that the latter two have themselves been executives), he does map out a clear difference between Diane Wood and Elena Kagan:

But in a 2003 essay, [Wood] warned that steps proposed in the fight against terrorism, like diminishing privacy to facilitate executive surveillance, posed a threat to the rule of law.

“In a democracy, those responsible for national security (principally, of course, the executive branch) must do more than say ‘trust us, we know best’ when they are proposing significant intrusions on liberties protected by the Constitution,” she wrote.

And in a lecture about legal issues related to natural disasters, published in 2008, Judge Wood suggested that she would view trying terrorism suspects in military commissions, as Mr. Obama has proposed, with suspicion.

[snip]

Ms. Kagan’s history, by contrast, suggests a greater sympathy for executive interests.

[snip]

Later, in her solicitor general confirmation hearing, Ms. Kagan said the president had the authority to indefinitely detain, without a trial, someone suspected of helping to finance Al Qaeda.

She also said that she, like any solicitor general, would not defend a statute that “infringes directly on the powers of the president,” because “there are occasional times where presidential power still exists, even if Congress says otherwise.” But, she added, that category was “exceedingly narrow.”

There’s more there, so click through to read the whole thing. This is one of the most useful articles I’ve read on the whole SCOTUS search, because it really does point to an area where even moderate Democrats like Kagan could have a devastating effect on our Constitution going forward. Obama has already proven a little too fond of executive power for my taste. Let’s hope he doesn’t institutionalize that with his choice for SCOTUS.

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Pelosi’s Advisory On Abu Zubaydah And Torture

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As Marcy noted back on April 29th, the issue of Nancy Pelosi’s briefing back in 2002 on the Bush/Cheney torture program, whether or not it was being applied to Abu Zubaydah and, if so, to what extent, has really turned into a he said-she said game. (See also here regarding the Porter Goss offensive against Pelosi and Harman).

So, it should not come as any surprise that yet another missive has been launched in this little passion play. Today’s strike comes courtesy of Rick Klein at ABC News:

ABC News’ Rick Klein reports: House Speaker Nancy Pelosi was briefed on the use of “enhanced interrogation techniques” on terrorist suspect Abu Zubaydah in September 2002, according to a report prepared by the Director of National Intelligence’s office and obtained by ABC News.

The report, submitted to the Senate Intelligence Committee and other Capitol Hill officials Wednesday, appears to contradict Pelosi’s statement last month that she was never told about the use of waterboarding or other special interrogation tactics. Instead, she has said, she was told only that the Bush administration had legal opinions that would have supported the use of such techniques.

MadDog has slithered into the depths of Human Events.com to find what they claim is "the report". He has also given us a hand glossary for the abbreviations. The Washington Post seems to think it is "the report" as well, for what it is worth:

In a 10-page memo outlining an almost seven-year history of classified briefings, intelligence officials said that Pelosi and then-Rep. Porter J. Goss (R-Fla.) were the first two members of Congress briefed on the tactics. Then the ranking member and chairman of the House intelligence committee, respectively, Pelosi and Goss were briefed Sept. 4, 2002, one week before the anniversary of the terrorist attacks of Sept. 11, 2001.

Pelosi has already, of course, issued a denial through a spokesman. More he said-she said. Quite frankly, without more, today’s play should be taken with a grain of salt. Multiple major news organizations have this hot off the press info right after Congress receives it and right wing hit rag Human Events (Jed Babbin) is pitching it as a slam on Pelosi. How very convenient. As further evidence of the need for grains Read more →

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Jay Bybee Speaks Quavers

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NYT has what might be billed as a blockbuster article: JAY BYBEE REVEALS ALL!!!

Except that the article appears to be nothing more than a legalistic CYA statement which I’m sure his hotshot lawyer Maureen Mahoney had a hand in:

Judge Bybee, who issued the memorandums as the head of the Office of Legal Counsel and was later nominated to the federal appeals court by President George W. Bush, said in a statement in response to questions from The New York Times that he continued to believe that the memorandums represented “a good-faith analysis of the law” that properly defined the thin line between harsh treatment and torture. 

[snip]

“The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said.

“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

The article even reveals why Maureen Mahoney might have encouraged Judge Bybee to issue a statement–to retract comments made by his friends that he regretted the memos.

Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect.

Of course, Bybee has to claim a "good faith analysis of the law"–that’s his only defense.

But if he’s invoking the other lawyers in the Administration who agreed with the memo–undoubtedly including David Addington, John Yoo, Alberto Gonzales, Jim Haynes, and John Rizzo–that’s not much of a defense. He’s arguing, basically, that a set of lawyers called the "War Council" for the way they collaborated in private on institutionalizing torture, believe his (Yoo’s) memos authorizing torture in spite of the the law and the bogus facts used in the memo was "legally correct." Most children, if you ask them if they like candy, will enthusiastically say they do, too.

And to suggest the stakes of this are important "no matter our opinion" is pretty disgusting, since it suggests Bybee still believes that issuing an opinion that forced the Read more →

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9th Circuit Rejects Obama/Bush State Secrets Argument In Mohammed

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Marcy must have ESP or something, she was just talking about heinous state secrets claims earlier this morning. A three judge panel of the Ninth Circuit Court of Appeals, Chief Judge Mary Schroeder, William Canby and Michael Hawkins, has firmly rejected the vile cover up attempted against several detainees/former detainees led by Binyam Mohamed.

The full decision is here.

I would like to note two things quickly; first off this is a wonderful panel (they are all from Arizona and I have known all of them) and I really expected no less from them. Secondly, it appears from a skimming of the decision that they did not dismiss the ability of the government to assert state secrets, rather indicated the time was not ripe for it. Do not be mistaken, however, this is a big blow to the government and a win for the rule of law.

Here is the operative paragraph of the decision:

On remand, the government must assert the privilege with respect to secret evidence (not classified information), and the district court must determine what evidence is privileged and whether any such evidence is indispensable either to plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.

The key language here is "Only if privileged evidence is indispensable". I think in light of the process that Vaughn Walker is adopting in al-Haramain, and that has been already utilized in the DC Circuit in detainee cases, this is going to be an increasingly hard burden for the government to make. Very good news indeed.

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Bush DOJ Reunion Tour

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I’m posting this just to make sure I don’t forget about it.

John Ashcroft, the U.S. attorney general during President Bush’s first term — and noted singer of “Let the Eagle Soar” (YouTube clip here) — is spreading his wings. Today Ashcroft (pictured, right) announced that his law and consulting firm, The Ashcroft Group, is opening four new offices across the country, each to be led by Bush-appointed U.S. attorneys leaving office to make way for appointees by President Obama. They are:

*Michael Sullivan (pictured, left), U.S. attorney in Boston and former acting director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives in Washington. Click here for a recent LB post on Sullivan.

*Catherine Hanaway (pictured, right), U.S. attorney, St. Louis

*Johnny Sutton, U.S. attorney in El Paso, Texas, who prosecuted two former border patrol agents for shooting a Mexican drug smuggler in 2005. (On his last day in office, President Bush commuted the agents’ prison sentences.)

*John Ratcliffe, U.S. attorney in Dallas.

Of course, I don’t know how they’ll make a living, given that DOJ is cutting back on sweetheart monitoring deals associated with Deferred Prosecution Agreements. 

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The al-Haramain Case Stays On Track

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graphic by BobsViews

graphic by BobsViews

It was late and welcome news Friday afternoon when Judge Vaughn Walker’s decision came in. Marcy already gave some cogent analysis on where the punches were pulled in the decision and where they landed. I actually think (yes, yes, I know I am usually the voice of pessimism) that the punches landing will prove to far outweigh those pulled.

First, and foremost, Judge Walker has kept the suit alive in the face of all the adversity thrown in his path by both the Bush/Cheney Administration and, now, that of Obama. This fact alone entitles Judge Walker to a king’s ransom of gratitude from anybody that gives a tinker’s damn about the rule of law and the Fourth Amendment, because Obama has been following Bush in pulling every stunt in the bag out to defeat the right of citizens to hold their government accountable for the illegal and unconstitutional acts it perpetrates on them. Take the recent unconscionable assertion of sovereign immunity for instance. Please.

The seminal importance of Walker’s decision to proceed simply cannot be overstated. It is, quite simply, a ruling by a Federal court, albeit it a preliminary one, that the "Bush Program" was illegal. And keep in mind that it is not just the al-Haramain case that hangs in the balance of this determination, but potentially all the consolidated cases, including Jewell, too. As Marcy has explained, the ability of the of the plaintiffs in the remaining consolidated cases to establish the existence of illegal surveillance, separate and distinct from al-Haramain, may be effectively non-existent due to the state secrets assertion (even discounting the heinously bogus sovereign immunity assertion) made by Bush/Cheney and now Obama. In the face of the state secrets claim there is no way for the plaintiffs to establish standing as plaintiffs having been illegally surveilled. Because of "the sealed document", in the form of a surveillance log that was inappropriately forwarded to al-Haramain’s attorneys, the plaintiffs in al-Haramain have the ability to establish directly illegal surveillance.

So there is that, but there is also the process that Judge Walker has laid out in order to carry the action forward down the tracks. Having reviewed the sealed document, and the other filings made under seal (including those detailing the notorious "inaccurate information" previously lodged by the Bush administration), and determined that the case will proceed, there has to be a path crafted to allow the case to proceed and still protect the secrecy of information that is legitimately national security protected. As Marcy said:

In other words, Walker has Read more →

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Convertino Gets His Source

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On Wednesday, TPMM reported that the team under investigation for botching the Stevens prosecution has itself investigated a DOJ lawyer.

As we’ve reported, six federal prosecutors from the Stevens case — members of DOJ’s Public Integrity unit, including its head, William Welch — are now being investigated for knowingly withholding evidence, a potential criminal act.

Prosecutions for this offense — known as a Brady violation — are exceedingly rare. But it turns out that in 2006, an Assistant US Attorney was tried on the charge — and acquitted amid allegations that his prosecution was over-zealous.

[snip]

The ironies here begin to mount:

First, Convertino was being tried for an overly aggressive approach to prosecution. But his trial raised questions as to whether the Public Integrity unit was itself overly aggressive in going after him. One former federal prosecutor told the Detroit News after Convertino was acquitted: "The claim was overzealousness by Convertino, but was the government itself overzealous in prosecuting Convertino?"

Then, of course, it’s surprising, to say the least, that having tried this high-profile case focused on a prosecutor withholding evidence, the Public Integrity unit would allow itself to be accused of the very same crime in prosecuting another case. Especially given that Welch, who took over the unit in 2006, was involved in both efforts.

[snip]

There’s also this. Convertino’s lawyers argued that he was overworked and given inadequate resources during the terrorism prosecution. That line echoes this paragraph from a recent New York Times story on the Stevens Six:

One specific issue is whether the department was at fault for failing to pick up on the struggles of a trial team of five principal lawyers that may have been overwhelmed, struggling in the face of tight deadlines and an aggressive defense team from Williams & Connolly, a law firm known for its combativeness, according to current and former Justice Department officials.

As it happens, Convertino was back in the news this week. You see, he’s suing DOJ for privacy violations going back before the PIN investigation case against him. He alleges that DOJ leaked both news of an Office of Public Responsibility investigation into him and the identity of a confidential informant to the Detroit Free Press as part of a campaign of retaliation against him for perceived cooperation with Senate inquiries into DOJ mismanagement of financial investigations. A judge has ordered the reporter in that story to answer questions about who leaked that information to him. And on Thursday, the Appeals Court refused the Free Press’ attempt to halt the reporter’s deposition. 

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BREAKING NEWS: Judge Vaughn Walker Keeps Al-Haramain Alive!

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graphic by politicalbase

graphic by politicalbase

The decision just came to me hot from a source involved in the case. Judge Walker has entered his order on al-Haramain. [pdf]

The court has, in keeping with its orders dated January 5 (Doc #537/57), February 13 (Doc #562/71) and February 19 (Doc #566/75), reviewed the Sealed Document and the parties’ various submissions on the subject of appropriate measures to prevent disclosure of classified information while allowing “both parties [] access to the material upon which the court makes a decision.” RT, Hearing held January 23, 2009 (Doc #532/67) at 34 and Doc #562/71 at 2,3.

The United States, in response to the court’s directive to “inform the court how it intends to comply with the January 5 order” (Doc #562/71 at 3) has offered up three similar-sounding alternatives all of which appear geared toward obtaining a stay of this court’s proceedings and review by the court of appeals, even though its simultaneous attempts to obtain review as of right and by means of an interlocutory appeal of the January 5 order failed in February (Doc #562/71 and Al-Haramain Islamic Foundation, Inc v Obama, No 09-15266 (9th Cir February 27, 2009)). As both this court and the court of appeals have determined that this matter is properly before the court, the United States should now comply with the court’s orders.

Accordingly, the parties are hereby ordered to meet and confer regarding the entry of an appropriate protective order which shall be entered herein before the court rules on the merits. The United States District Court for the District of Columbia has successfully employed protective orders in the In Re Guantánamo Bay Detainee Litigation, D DC No Misc 08-0442 TFH, even providing for the use of top secret/sensitive compartmented information (TS/SCI). See, for example, the documents at docket numbers 409 and 1481 in that matter. The United States has advanced no argument that would suggest a reason why the court’s use of a protective order in instant matter modeled on those in use in the Guantánamo Bay would not adequately protect the classified information at issue here.

The parties shall submit to the court a stipulated protective order on or before May 8, 2009. If the parties are unable to agree on all terms, they shall jointly submit a document containing all agreed terms together with a document setting forth the terms about which they are unable Read more →

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Credit Where Due: Keith Olbermann Edition

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I watch Keith Olbermann, and his Countdown show on MSNBC, pretty much daily, but I have been critical of him in the past, most notably in his unflinching willingness to blindly support Barack Obama’s adoption of Bush/Cheney policies on civil liberties/surveillance and torture/detention. A prime example of this was my response to Olbermann and John Dean when they conjured up a ridiculous explanation to cover for Obama’s about face on FISA retroactive immunity last summer prior to the election. In The Obama & Olbermann Master Plan For Criminal FISA Prosecutions, I said:

Okay, the words "Master Plan" in the title are a joke. So is the idea of criminal prosecutions, by a future Obama Administration, for Bush era FISA violations that has been hawked, to the point of near belligerence, by Keith Olbermann both on his show and in a running flame war with Glen Greenwald. The instant article will attempt to relate some of the glaring reasons, from a practical criminal justice perspective, that the Obama/Olbermann master plan is naive, almost to the point of being comical. Comical that is if we were not literally discussing the life and spirit of the Fourth Amendment and the health and well being of the Constitutional rule of law in this country.

Well that was then, this is now. That was the right thing to say then, but now it is time to give Keith Olbermann some very deserved credit. The last two nights, Countdown has dedicated substantial time to the depressing and maddening adoption by the Obama Administration of the tricks and artifices of the Bush/Cheney regime. For a review of Keith’s work in this regard Monday night with guest Jonathan Turley, see Glenn Greenwald at Salon who, in writing this, I have discovered had the same urge to give credit where due that I feel here.

Tonight, Keith had on Kevin Bankston of the EFF, who has been on the front line of the consolidated suits pending in front of Judge Vaughn Walker from the outset, and is lead on the new hot button case of Jewel v. NSA described here by Marcy. As the EFF press release states about Jewel:

The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and Read more →

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