The Clarion Call Of Gideon’s Trumpet

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images5thumbnail1.thumbnail.jpegA few days ago, on March 18, fell the 46th anniversary of a momentous day in American jurisprudence, the day the decision in Gideon v. Wainright was rendered. Prior to Gideon, criminal defendants in the United States had a right to be represented by counsel, but not the right to have counsel appointed if they could not afford their own attorney. It was a watershed moment of enlightenment that is worthy of a fresh look.

Clarence Gideon was wrongly charged with breaking and entering a pool hall that had been burglarized, all based on a false accusation. Gideon was a poor man who lived in a rooming house and literally had but $25 to his name. From Wiki:

He appeared in court and was too poor to afford counsel, whereupon the following conversation took place:

The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

GIDEON: The United States Supreme Court says I am entitled to be represented by Counsel.

Gideon was forced, therefore, to act as his own counsel and conduct a defense of himself in court, emphasizing his innocence in the case. Nevertheless, the jury returned a guilty verdict, sentencing him to serve five years in the state penitentiary.

From his prison cell at Florida State Prison, making use of the prison library and writing in pencil on prison stationery, Gideon appealed to the U.S. Supreme Court in a suit against the Secretary to the Florida Department of Corrections, Louie L. Wainwright. He argued that he had been denied counsel and, therefore, his Sixth Amendment rights, as applied to the states by the Fourteenth Amendment, had been violated.

But what the Supreme Court gave in Gideon is under an attack that is destroying one of the tenets of the modern due process guarantee in the American criminal system. In a chilling opinion piece in the March 10, 2009 Washington Post, former Vice-President Walter F. Mondale, who as Minnesota Attorney General participated along with AGs from 21 other states in amici support of Gideon’s demand for appointed counsel, details just how far the nation has regressed:

Yet states across the country routinely fail to appoint Read more →

Greg Craig Won’t Tell You How Obama Disappeared the Whistleblowers

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Charlie Savage has an article chronicling Chuck Grassley’s objection to something I objected to last week–Obama’s signing statement undermining whistleblowers.

But that’s not the really creepy part of the article. The creepy part is the way some Obama Administration official, who happens to have the same legal credential and sophist argumentative technique as Greg Craig, provided input for the article.

The White House press office referred questions to an administration official, imposing the condition that he not be identified by name or title.

The official, a lawyer, said Mr. Obama was “committed to whistle-blower protections.” He declined to define every kind of instance in which the president’s power to keep a matter confidential would trump a whistle-blower protection statute, but he did say the administration had no intention of going further than did Presidents Bill Clinton and George W. Bush in signing statements concerning similar provisions.

“I don’t think President Obama’s signing statement injects a new level of uncertainty into the law,” he said.

[snip]

The administration official pointed to a memorandum Mr. Obama issued on March 9 laying out a signing statements policy. The document, which does not mention legislative intent, says he will employ only “legitimate” interpretations of statutes. Mr. Obama’s challenge in this case, the official said, is consistent with that principle.

So, let’s review here: They’ve got Charlie Savage talking to a mysterious lawyer on the condition that the lawyer not be named. Said lawyer refuses to explain what the signing statement means for whistleblowers, but claims this doesn’t create any new uncertainty. And then said lawyer asserts that the signing statement from last week was–by definition–a "legitimate" interpretation of statute, legislative intent be damned.

Yup. This is the way we bring transparency to the White House alright.

Chuck Grassley’s ire at Obama’s childish games with whistleblowers will remain a story, so I’m happy Savage covered it. But at some point, Obama’s just as ridiculous approach to discussing legal issues with the press needs to become the story. I realize Greg Craig just recently came fromWilliam & Connolly, where the off-the-record manipulation of the press may be second nature, but he’s working for the American people now, and these things he’s talking about are actually supposed to be laws. It’d be really nice if Greg Craig had the decency to tell us what the laws in this country are.

Lawyers Revolt Against Haynes And Yoo; Where’s The OPR Report?

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h/t Leeofland

h/t Leeofland

As a card carrying member of the bar, I have to say it is about time that American lawyers learned something from their feisty compatriots in Pakistan. Sure enough, they have done exactly that. From the LA Times:

In an attempt to win sanctions against a former top Bush administration official over brutal interrogations of prisoners at Guantanamo and Abu Ghraib, a lawyers group deployed a strategy Monday that worked against Presidents Nixon and Clinton.

Former Defense Department General Counsel William J. Haynes II is the first of several former policymakers the National Lawyers Guild wants reprimanded, suspended or disbarred for their roles in detainee abuse, said Carlos Villarreal, executive director of the San Francisco Bay Area guild chapter that filed a complaint against Haynes with the State Bar of California.
…
A similar complaint is being prepared in Pennsylvania against former Justice Department lawyer John C. Yoo, the UC Berkeley law professor who is currently a visiting professor at Chapman University School of Law in Orange, for his role in drafting the legal guidelines that approved enhanced interrogation techniques including waterboarding.

Would the National Lawyers Guild have only been so aggressive earlier, but, hey, better late than never. And it may have some effect as it is coming just before the DOJ Office of Professional Responsibility (OPR) is on the verge of releasing what looks to be a scathing report on just this conduct from the Bush/Cheney Administration.

It has now been exactly a month since the Washington Post related the following:

Senate Majority Whip Richard J. Durbin (Ill.) and Sheldon Whitehouse (R.I.) are demanding an update on the probe by the department’s Office of Professional Responsibility, which for more than a year has been examining whether the lawyers who prepared the memos followed professional standards.
…
Two sources briefed on a draft of the report said there is a strong likelihood that its findings will be shared with state legal disciplinary authorities, who could launch their own investigation into whether the lawyers who prepared the memos abided by their professional responsibilities.
…
Matthew Miller, a spokesman for new Attorney General Eric H. Holder Jr., said that "the matter is under review" but declined to comment further yesterday about whether Holder would endorse the investigators’ conclusions.

So, Attorney General Holder, let’s have the report and let’s have it now.

Obama Becomes Bush As We Wait For Walker’s Ruling

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graphic by politicalbase

graphic by politicalbase

As you may recall, since February 27, we have been waiting for a decision, of some sort, from Vaughn Walker in the al-Haramain and Consolidated Cases litigation in NDCA. The decision is not in yet; however, there is a new filing in the Consolidated Cases further ingraining the oneness of Obama with Bush in the litigation.

There really wasn’t much doubt about the oneness with the exception of the nuance Marcy noted as to Obama shifting slightly away from privilege in favor of the merits. Slightly is the key word there; the overall tenor of the Obama position in the consolidated wiretapping cases is disgustingly identical to the duplicitous and wrongheaded state secrets policy of Bush/Cheney.

The new filing is by the government, by and through the Obama DOJ, and is a motion to dismiss in a recently consolidated case, McMurray v. Verizon Communications. Interestingly, McMurray was already a plaintiff from the start in the Consolidated Cases, but attempted to file a separate action in July of 2008 in the Southern District of New York challenging the application of Section 802 to their original action that had already been consolidated. Section 802 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C.§ 1885a(a) provides that a civil action “may not lie or be maintained” against electronic communication services providers alleged to have provided assistance to an element of the intelligence community, and “shall be promptly dismissed” if the Attorney General of the United States certifies that one of several circumstances exist with respect to the alleged assistance.

Now you may ask yourself why did McMurray file this challenge in SDNY instead of in Vaughn Walker’s court where his case, and all the others, already was lodged? Excellent question, and one I have no answer for since it was bound to be transferred out to Walker’s court with the rest of the Consolidated Cases including, notably, McMurray’s. Of course, the better question is how did all the cases ever get consolidated in the 9th to start with, and I will get back to that later.

Now, with respect to the motion to dismiss filed Friday the 13th, there is one new wrinkle regarding a takings clause claim, mostly, however, it is notable for the fact that it continues the same crappy and duplicitous pleading style that was so prevalent under Bush. It is yet one more (as if more was needed at this point) indication that Barack Obama has completely morphed into George Bush and Dick Cheney in terms of craven support for government intrusion into the privacy of the citizenry, and the ability to conceal the Constitutionally infirm activity through the unitary and unreviewable imposition of state secrets doctrine.

These counts largely repeat claims plaintiffs, including the McMurray plaintiffs, made in response to the Government’s prior dispositive motion, and fail for the reasons set forth at length in the Government’s brief, which are incorporated in full by reference herein.

Same old song, same old dance. Barack Obama avowed he was a man that believed in the sanctity of the Constitution, the rights of citizens and in transparency of the Executive. Obama would be the agent of change from Bush/Cheney. Except, now that he has taken office, that is all no longer operative. As Glenn Geenwald has noted, the Obama Administration has proven itself just as cravenly addicted to secrecy, imperial executive power and willingness to strip its citizens of their rights under the Constitution, and its Bill of Rights, as Bush and Cheney.

As to the Takings Clause violation allegation that the government claims is newfangled, I believe that is new only to McMurray, other plaintiffs in the Consolidated Cases have at least noticed the claim in their pleadings to the best of my knowledge, but this is a decent opportunity to discuss it a little. I first mentioned the theory well over a year ago in the indemnification post:

In addition to the foregoing, there is an extremely good case to be made that the granting of retroactive immunity to the telcos would comprise an improper and unjust taking of the existing plaintiffs’ right to compensation under the Fifth Amendment and would, therefore, be in direct violation of the Constitution. I don’t want to belabor this thought; just put it out there so that it is considered in the mix. Hey, "Teh Google" is a most marvelous thing; here is an absolutely outstanding discussion of this issue by Professor Anthony J. Sebok of the Cardozo School of Law.

In a nutshell, the takings clause is contained in the Fifth Amendment

…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

and is what protects citizens from having their property interests seized by the government without due process and just compensation. It is what lies at the root of eminent domain cases like the notorious Kelo v. City of New London decision. There is some intellectual merit to the Takings Clause argument, but not a lot of practical hope for success on it. There are far too many ways around the Constitutional provision, several of which the government picked up on in their motion to dismiss. If you are interested in a general primer in how the Takings Clause could theoretically apply to the FISA situation, see the Sebok article referenced in the quote above.

What I find interesting (with a little prodding by Marcy) is that John Yoo and the Bush/Cheney regime planned on being confronted with Takings Clause complaints by citizens when they declared war on the Constitution. Yoo blithely dispensed with the applicability of the takings clause, indeed the entire Bill of Rights effectively, to the President’s military program (and remember the wiretapping was run militarily through the NSA) via a footnote in his infamous March 2003 Torture Memo. As Greenwald described Yoo’s execrable arguments:

The President’s power to use military force domestically in violation of the Bill of Rights applies equally even if the actions are ordered against American citizens on U.S. soil ….. The President, when using military force against American citizens on U.S. soil, is "free from the constraints" not only of the Fourth Amendment, but also of other core guarantees of the Bill of Rights — including First Amendment liberties, Due Process rights, and the takings clause ….. If this isn’t the unadorned face of warped authoritarian extremism, what is?

No kidding. The galling part is to compare and contrast what Yoo tried to do in his sweeping blithe evisceration of the Constitution and Bill of Rights, substantially via a freaking footnote, with a detailed lawyerly dissertation on specific case precedence and statutory history; the merits if you will. See, the Takings Clause can be worked around through proper legal argument, or at least a proper argument therefore made; that is proved by the government’s response in the March 13, 2009 motion to dismiss. But Yoo, Bush and Cheney wanted none of the legal niceties, they wanted to seize supreme unadulterated power and went about doing so in blanket fashion. Now they are using the bludgeon of state secrets to cover the power grab, even under the supposedly enlightened Obama. Different name, but the same totalitarian bludgeon for the same unitary executive power grab.

Oh yes, back to the interesting point about why the cases may have been consolidated in the 9th Circuit in the first place. It always has perplexed me as to how, and why, in the world the government ever allowed all these critical FISA/Fourth Amendment cases to be consolidated in the 9th, the most liberal and rebel appellate circuit of all. If there is any circuit you would think the government would not want to be stuck in, it is the 9th. Yet there they all are, consolidated in Vaughn Walker’s San Francisco courtroom and subject to appeals to panels of the notorious Ninth.

Marcy previously discussed the September Read more →

Call for the Senate to Vote for Process at OLC–and Dawn Johnsen

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Update: Predictably, Arlen "Scottish Haggis" Specter put a one-week hold on Dawn Johnsen. Call Specter at (202) 224-4254 and tell him to stop obstructing Obama’s nominees. It’s time we cleaned up OLC and Specter’s just ensuring the Cheneyesque abuse of power will continue for a few more weeks.

In short time, the Office of Professional Responsibility will release a report on the abuses of John Yoo at OLC. The report will describe a process which Yoo used to "analyze" law that looks something like this:

  1. David Addington calls Yoo and tells him what program Cheney wants to do–or has already started doing
  2. An official request for a memo comes from Alberto Gonzales or Jim Haynes, presenting that desired program as a hypothetical–"what if we wanted to do X"–rather than the fait accompli Addington presented it as over phone or email
  3. Yoo drafts a memo authorizing that program
  4. Yoo eliminates or otherwise frivolously dismisses references to key precedents like Youngstown or Milligan
  5. Yoo scours obscure documents–like insurance legislation or TV series–to find standards for torture and domestic surveillance that allows him to stretch the limits of legality well beyond belief
  6. Yoo finalizes draft and sends it to Addington
  7. Addington corrects it with a big red pen
  8. Yoo makes Addington’s final changes and distributes memo to about 3 people
  9. All 3 people receiving the memo put it into a drawer, a briefcase, or a man-sized safe, to make sure those implementing this program will never see it
  10. When Congress or the ACLU or some other do-gooder asks for a copy, tell them it’s unclassified, but they still can’t have it "so there"

Today, the Senate Judiciary Committee will finally consider Dawn Johnsen’s nomination to head up OLC (it should be on the committee stream at 10–though she’s the last thing on the agenda). You’ll hear a lot of Republicans–Arlen "Scottish Haggis" Specter and Tom Coburn, among others–claiming that Dawn Johnsen is a radical who eats babies and loves terrorists.

But compare how Dawn Johnsen–that soon to be accused-baby eater–has promised to craft OLC memos to how we know Yoo did (what Johnsen calls the advocacy model).

1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

2. OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government—the courts and Congress—and constitutional limits on the exercise of governmental power.

Read more →

They Picked a Bad Week to Stop Sniffing Glue

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The Obama Administration got stuck with a bad court date to have to try to convince a Judge the Jose Padilla suit against John Yoo should be dismissed. After all, we knew Yoo’s memos were legally indefensible. But with the release of nine new OLC memos–including the memo eviscerating the Fourth Amendment, the two withdrawing that one and others, and, significantly, one of the memos pertaining to Padilla specifically ("authorizing" his military detention), the sheer cravenness of Yoo’s legal work is in sharp relief this week.

Nevertheless, they did argue Judge White should dismiss the suit. Though it sounds like he wasn’t impressed with their argument. 

The judge, Jeffrey S. White of Federal District Court, explored the arguments of Mr. Padilla’s lawyers thoroughly, but he appeared to be skeptical of elements of the government’s argument.

And he referred to the 4th Amendment Evisceration memo specifically.

In fact, Judge White, who was appointed by President George W. Bush, even told the government’s lawyers that Mr. Yoo’s 2001 memorandum stating that the constitutional protections against unreasonable searches and seizures can be overridden was “a pretty scary position.”

And there’s a further problem with the Administration’s position. They’re arguing that it is not the place for the Courts to take recourse against a government lawyer gone bad–it’s the role of the Executive.

But any recourse against a government lawyer "is for the executive to decide, in the first instance, and for Congress to decide," not the courts, she said. 

Which suggests that the Administration thinks its puny OPR investigation against Yoo is an appropriate response.

The Obama Administration has already signalled that it doesn’t plan real legal consequences for its lawyer for torture. And yet based on that, they want the Courts to butt out.

One more point. It appears that the Administration has not yet turned all the memos used to justfy Padilla’s treatment over (or at least not made them public). 

Earlier last week, the Obama administration released nine "war on terror" memos — some written by Yoo, others by 9th U.S. Circuit Court of Appeals Judge Jay Bybee — shortly after White ordered the DOJ to clarify whether it wanted to submit them under seal in the Padilla case. However, the administration didn’t release all of the memos referenced in Padilla’s complaint, Read more →

Justice Ginsburg to Senator Bunning: “Screw You”

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Mind you, Ruth Bader Ginsburg is much too polite to say it in those terms. But this story makes quite clear: one of the things that motivated Ginsburg to return to the Court so quickly and attend Obama’s address to Congress was Jim Bunning’s prediction of her imminent demise.

One month after her surgery for pancreatic cancer, Justice Ruth Bader Ginsburg said Thursday that she expects to be on the Supreme Court for several more years. In an interview, she also vividly recalled why, on her second day back on the bench, she attended President Obama’s televised speech to a joint session of Congress.

"First, I wanted people to see that the Supreme Court isn’t all male," the lone female justice said of the evening event Feb. 24. "I also wanted them to see I was alive and well, contrary to that senator who said I’d be dead within nine months."

You know, I had already sort of been rooting for Bunning (in that crafty sabotage kind of way), given that his continued presence in the Senate–and especially his determination to run again in 2010–is driving Mitch McConnell crazy.  And of course, having Bunning as a Republican opponent in 2010 might make that seat a pick-up opportunity.

But if Bunning’s continued idiocy is going to keep a solid liberal like Justice Ginsburg going strong on the Court, more power to the asshole. 

The Secret State Continues to Crumble

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In yet another sign that the counter-terrorist state built on executive secrets continues to crumble, the DC Circuit Court just ruled that judges–and not the government–will get to determine whether classified information would be helpful to detainee habeas corpus petitions. (h/t scribe) And if that information is helpful, then the detainee lawyers will get that information.

In a ruling that may give lawyers for Guantanamo Bay detainees expanded opportunities to challenge the government’s reasons for keeping them confined, the D.C. Circuit Court on Friday spelled out new rules on when the prisoners’ lawyers get to see secret information in government files.   The ruling in Al Odah v. U.S. (05-5117) and consolidated cases can be found here.

Of particular importance, the Circuit Court said that merely because the government contends that secret data will not bolster the detainees’ challenges does not control when a federal judge must provide access to that information for the detainees’ lawyers.  Those lawyers, the Court indicated, may be allowed by a judge to get the withheld information itself — or a substitute that reveals the substance without showing how the government collected it — if the judge finds it would be helpful to the detainees’ challenge.  That is the judge’s job, not the government’s, the panel ruled.

While the Court has given the Administration an opportunity to ask for a review from the full Court, this is yet another example of an Article III Court telling Article II that the Executive cannot deprive litigants access to the Courts simply by saying the material at issue is too secret for the Courts.

As scribe pointed out in email, this ruling is no doubt going to be of interest to Judge Walker, if he does end up ruling that al-Haramain is an aggrieved party. As I reported last week, the Obama Administration has threatened to take its secrets and go home if Walker rules that al-Haramain’s lawyers get to see some of the material in the case. 

Because, for the moment at least, the DC Appeals Court says the Obama Administration can’t take its secrets and go home.

Elena Kagan Confirms Her Vacuity and Farce

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Yesterday’s Judiciary Committee consideration of Obama Solicitor General nominee Elena Kagan proved that confirmation hearings are not totally useless. We knew that the selection to be the nation’s lead advocate to the Supreme Court had never in fact appeared before the Supreme Court, had shockingly little experience in front of significant courts of any kind, thought Bush apologist and cover artist Jack Goldsmith was a boffo hire to make at Harvard Law, thought the same of the Constitutionally malleable shill Cass Sunstein, and thinks it is just fine to detain people indefinitely without due process as "enemy combatants".

That is what we knew; yesterday we learned something new about Kagan before the SJC. She was for honest and open answers to Senator’s questions at confirmation hearings before she was against it. This oh so shocking revelation is documented courtesy of the Washington Post:

She once wrote that nominees should answer questions from senators.

And in no uncertain terms, either. Reviewing Stephen Carter’s book "The Confirmation Mess" for the University of Chicago Law Review in 1995, Kagan opined that "when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."

She thought that executive branch nominees, "for whom ‘independence’ is no virtue," really deserved to be grilled.

Those statements apparently are no longer operative.
…
Kagan, the dean of the Harvard Law School, told the lawmakers she had endeavored to answer their questions but acknowledged: "I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I [previously] suggested."

Isn’t that convenient. And a good thing to know about a woman roundly considered to be at the very top of Obama’s list of choices for future appointment to the Supreme Court. Now Kagan ducked and dodged on the ground that, as a nominee to be the Administration’s advocate, her opinions were not germane:

"I do not think it comports with the responsibilities and role of the solicitor general for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions," she repeatedly said.

There is some merit to that position on the surface, but the problem I have is we have no ability whatsoever to gauge Kagan’s ability to dissect and understand difficult Read more →

Spanking Spak and Spec

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Arlen "Scottish Haggis" Specter–whose political obituary was written yesterday in the form of a dismal poll result and a renewed threat from Pat Toomey—says we don’t need a truth commission because all the details on Bush era crimes are contained in some file cabinets that we need only waltz up to and empty out.

And in case you were wondering, Lee Harvey Oswald acted alone.

Presumably because he believes we need only waltz up to those file cabinets and take out the Cheney indictment, the sole contribution Scottish Haggis made in today’s Truth Commission Hearing was to enter this Hans von Spakovsky column into the record. Given that Hans von Spak accused Leahy of pitching a House Un-American Activities Commission, I can only interpret Haggis’ action as a profoundly cowardly attempt to get back in the good graces of the Club for Growth. 

The column itself shows the depths to which the Heritage Foundation has stooped in these, the declining years of the Conservative Movement. Even setting aside the horrible optics of having someone under investigation for abridging minority civil rights for political gain squawking about "political prosecutions," the column is just of pathetically bad quality.

Hans von Spak begins by exactly repeating (the Heritage Foundation, defender of private property, apparently doesn’t even require original work anymore) an error the WSJ made in January, claiming that nothing resulted from Carl Levin’s 18 month investigation into torture in DOD.

Moreover, Sen. Carl Levin (D-Mich.) held hearings, under oath, over a 2½- year period looking into many of the same issues. His report, though predictably partisan, found no criminal violations.

Aside from this apparent inability to even count (18? 30? no difference to today’s conservative), Hans von Spak apparently believes that the Committee’s findings–that Bush’s dismissal of Article Three and Rummy’s approval of aggressive technique were the "direct cause of detainee abuse" in Gitmo–doesn’t amount to a criminal violation.

And of course, Hans von Spak, like the WSJ, basically endorsed Levin’s approach while ignoring his call for "an outside commission appointed to take this out of politics, that … would have the clear subpoena authority to get to the parts of this which are not yet clear, and that is the role of the CIA." Hans von Spak and WSJ try to fight the idea of a Truth Commission by pointing to the good work of someone effectively supporting a Truth Commission.

Read more →