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.

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Sheldon Whitehouse Destroys David Rivkin’s “Gallery of Horribles”

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As I liveblogged here, the Republican response to Pat Leahy’s proposal to have a Truth Commission on Bush era crimes is to establish a set of straw men and then shoot them down, without ever addressing the problem that a number of high level Administration officials broke the law.

This exchange between Sheldon Whitehouse and designated Republican shill David Rivkin gets to the key aspects of tactic. Rivkin repeatedly introduced his own assumptions into what the Commission would do, all so he point to the constitutional challenges that only his imagined committee would have. And repeatedly during the hearing, Rivkin claimed the whole point of the commission was to select 12 to 13 high level officials and lay out the evidence of their criminal culpability.

I’m curious, though. If Rivkin has such an exact number of Bush Administration officials who broke the law, why hasn’t he called them out himself as prosecution targets? Or has he simply put his Republican affiliation before our Constitution? 

And isn’t it charming that Rivkin is so concerned about the civil liberties of those who in 37 pages claimed to eliminate both the First and Fourth Amendment?

Here’s my liveblogged transcript (with all the errors that implies):

Whitehouse: Rivkin. You raise the gallery of horribles that might go wrong. If you assume that the purpose is advisory in policy only. If you assume that criminal law enforcement is properly cabined in Exec as it should be. If you assume coordination on issues like immunity. And if it is set up not as private entity but as delegated Congressional oversight authority. Still oppose, even in the absence of parade of horribles.

Rivkin: This assumes too much. To me law enforcement function has variety of aspects. Ultimate decision to proceed with prosecution. 

Whitehouse: no one is suggesting otherwise. 

Rivkin: Deciding as threshold determination whom to investigate.

Whitehouse: We do that in COngress every moment.

Rivkin: RIght in Congress.

Whitehouse: Right to delegate.

Rivkin: I do not beleve it is readily delegable.

Whitehouse: Now you use another hedge word. Properly appointed commission.

Rivkin: Appointments clause? If you could configure commission that makes it an extension of Article I branch. I don’t see how you can delegate oversight responsibility. If it walks like a duck and talks like a duck. WE’ve heard today about criminal investigation, PIN does, on 12 or 14 people, then passes the buck to PIN in public spotlight. If this were contemplated in different context, every law professor would be screaming about it.

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Senate Judiciary Hearing on Truth Commission Liveblog

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Will be on CSPAN3 and the Committee stream.

Meteor Blades has a great roundup of today’s witnesses (actually, his entire post is worth a read, as always with him).

They are:

Thomas-Pickering-140_23908t.jpgThomas Pickering is a career diplomat who served as U.S. ambassador to Jordan (1974–1978), Nigeria (1981–1983), El Salvador (1983–1985), Israel (1985–1988), the United Nations (1989-1992), India (1992–1993) and Russia (1993–1996). He is now vice chairman of Hills & Company, and is co-chair of the 14-year-old International Crisis Group. Three weeks ago Pickering signed a letter  to President Obama seeking a commission to look into the detention, treatment, and transfer of captives after September 11.

gunn.jpgVice Admiral Lee Gunn (Ret.), who served in the final three years of his 35-year military career as Inspector General of the Department of the Navy, is now president of the Institute of Public Research at the CNA Corporation, and president of the 2-year-old American Security Project, which sees its mission as "promoting debate about the appropriate use of American power, and cultivating strategic responses to 21st century challenges."

Farmer.jpgJohn J. Farmer Jr., the former attorney general of New Jersey was Senior Counsel to the 9/11 Commission. He is a partner at Arsenault, Whipple, Farmer, Fasset and Azzarello, L.L.P. and an adjunct professor at Rutgers School of Law-Newark. He wrote "The Rule of Law in an Age of Terror" for the Rutgers University Law Review (2005).

schwarz.jpgFrederick A. O. Schwarz, Jr. Chief Counsel at the Brennan Center for Justice and chief counsel for  Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activity (1975-1976), widely known as the Church Committee for its chairman, Idaho Senator Frank Church. His latest book, written with Aziz Z. Huq, is Unchecked and Unbalanced: Presidential Power in a Time of Terror

Photo_06c45eaa5e2d481dbf2a4cf3513a6.jpgDavid B. Rivkin, Jr. is a partner with Baker & Hostetler, L.L.P. He was chief counsel of the President’s Council on Competitiveness at the White House under George H.W. Bush, where he was in charge of a review of government regulations. He later coordinated the development and implementation of the first Bush’s deregulation efforts. He has argued that the United States has not violated the Geneva Conventions with its captured prisoner policy and that it was a few "bad apples" and not policy that was responsible for what happened at Abu Ghraib and elsewhere, and opposed appointment of a special prosecutor in the Lewis "Scooter" Libby affair.

rabkin.jpgJeremy Rabkin, a renowned scholar of internationalaw, is a professor at George Mason University School of Law in Arlington, Va. A member of the board of directors of the United States Institute of Peace and author, most recently, of the Law without Nations?: Why Constitutional Government Requires Sovereign States. He has argued that all Presidents stretch the law in times of war, but that the U.S. always regains its balance afterward.

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Senator Lieberman Wants to Pay My PACER Bill

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You know all those court documents bmaz and I love to wallow in? They cost $.08 a page to print out which adds up to a couple of hundred dollars each quarter (not counting what bmaz beats me to).

But Senator Lieberman (yes, I am that floored) wants to change all that and make PACER documents (which would, ultimately, include Court transcripts) available for free. (h/t Ryan Singel)

I am writing to inquire if the Court is complying with two key provisions of the E-Government Act of 2002 (P.L. 107-347) which were designed to increase public access to court records and protect the privacy of individuals’ personal information contained in those records.

As you know, court documents are electronically released through the Public Access to Court Electronic Records (PACER) system, which currently charges $.08 a page for access. While charging for access was previously required, Section 205(e) of the E-Government Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913 note) so that courts “may, to the extent necessary” instead of “shall” charge fees “for access to information available through automatic data processing equipment.”

The goal of this provision, as was clearly stated in the Committee report that accompanied the Senate version of the E-Government Act, was to increase free public access to these records. As the report stated: “[t]he Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible. … Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information.”

Seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available – with PACER charging a higher rate than 2002. Furthermore, the funds generated by these fees are still well higher than the cost of dissemination, as the Judiciary Information Technology Fund had a surplus of approximately $150 million in FY2006. Please explain whether the Judicial Conference is complying with Section 205(e) of the E-Government Act, how PACER fees are determined, and whether the Judicial Conference is only charging “to the extent necessary” for records using the PACER system.

No snark here–thanks to Senator Lieberman for fighting for citizen access.  

The AIPAC Prosecution Suffers A Crippling Blow

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images5.thumbnail.jpegMost of you know about the AIPAC criminal case that has been simmering below the main media radar since it was filed in May, 2005. In a nutshell, the indictment alleges that Lawrence Franklin, a DOD/Pentagon official working in Defense Secretary Rumsfeld’s office (with everyone’s favorite public servants Doug Feith and Paul Wolfowitz), passed top-secret information relating to Iran and Iraq to Steve Rosen, AIPAC’s then-policy director, and Keith Weissman, a senior Iran analyst with AIPAC. Franklin pled guilty and was sentenced in January, 2006.

In the three, count em three, years since Franklin’s plea, the government has pressed on with the prosecution of Franklin’s co-defendants Rosen and Weissman. That may be nearing an end though with a critical decision issued by the trial judge in the case, Judge Thomas Ellis of the Eastern District of Virginia (EDVA) on February 17. The opinion is not only important for the AIPAC case, but for many, if not all, of the secrecy cases that are currently in play in Federal courts across the country.

A little background is in order. The defendants, Rosen and Weissman, sought to introduce the expert testimony of Bill Leonard, a retired United States government official with substantial experience and expertise in the field of information classification, as part of their defense at trial. Leonard, who retired last year, was formerly the director of the government’s Information Security Office responsible for oversight of the entire U.S. classification system.

Leonard, from all appearances, was willing to testify, however, fearing prosecution himself, he insisted on a subpoena and then personally moved to quash the subpoena on the ground that his testimony might be barred by 18 USC 207, which restricts the activities of former executive branch officers and employees. The government, not wanting to be crucified by their own former guy, through the Department of Justice joined in Leonard’s motion to quash. Defendants Rosen and Weissman’s attorneys, obviously, opposed the motion to quash and argued that section 207 did not preclude Leonard’s testimony, and asserted that the court should enter an order directing Leonard to give said testimony at trial. Effectively, Leonard was seeking cover from the court so he could not get jerked around by the government for being wiling to testify. Very smart move by a very smart man, especially since the Bush/Cheney DOJ prosecutors were threatening that he might be liable for up to a year in jail if he testified.

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Down On The Border: State Of War In Mexico

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Via Laura Rozen comes reference to a chilling piece by Sam Quinones in Foreign Policy on the drug smuggling violence that has escalated to a total state of war rivaling levels in Iraq.

There are so many hot spots for attention these days – Iraq, Afghanistan, Pakistan, Gitmo, not to mention the ops that are being run on US citizens by their own government as a result of the Bush/Cheney decision to gin up a military rationale for surveillance domestically – that it is easy to forget what is going on just across the border. Easy, at least, until you take in Sam Quinones’ tale:

That week in Monterrey, newspapers reported, Mexico clocked 167 drug-related murders. When I lived there, they didn’t have to measure murder by the week. There were only about a thousand drug-related killings annually. The Mexico I returned to in 2008 would end that year with a body count of more than 5,300 dead. That’s almost double the death toll from the year before—and more than all the U.S. troops killed in Iraq since that war began.

But it wasn’t just the amount of killing that shocked me. When I lived in Mexico, the occasional gang member would turn up executed, maybe with duct-taped hands, rolled in a carpet, and dropped in an alley. But Mexico’s newspapers itemized a different kind of slaughter last August: Twenty-four of the week’s 167 dead were cops, 21 were decapitated, and 30 showed signs of torture. Campesinos found a pile of 12 more headless bodies in the Yucatán. Four more decapitated corpses were found in Tijuana, the same city where barrels of acid containing human remains were later placed in front of a seafood restaurant. A couple of weeks later, someone threw two hand grenades into an Independence Day celebration in Morelia, killing eight and injuring dozens more. And at any time, you could find YouTube videos of Mexican gangs executing their rivals—an eerie reminder of, and possibly a lesson learned from, al Qaeda in Iraq.

This is neither new nor isolated. When I was younger, I used to go down to Tijuana, it was a great time. It really was easy and fun; what Chinatown was to LA, Tijuana was to San Diego. No longer is even the formerly relatively civil Tijuana docile and appropriate for casual strolling about. Long ago, back in the sixties, on our way back to Read more →

The Iseman Cometh, The Iseman Goeth

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BartCop/Political Humor

BartCop/Political Humor

At the end of December last year, Emptywheel reported that noted high powered Washington lobbyist Miss Vicki Iseman had filed a defamation suit against the New York Times. At issue was a February 21, 2008 Times article that Iseman contended lead people to believe that she played hanky blankie with McCain; but, as EW noted at the time:

What was at issue in the article was the appearance of an affair, not an affair itself, and the beliefs of McCain staffers about that appearance of an affair.

That was exactly right then, and it is still right now and ought to be kept in mind in light of the news yesterday that Iseman’s lawsuit was dismissed:

A lobbyist’s lawsuit against The New York Times over the newspaper’s account of her ties to Senator John McCain has been settled, both sides announced on Thursday.

The suit, filed by Vicki L. Iseman, the Washington lobbyist, was settled without payment and The Times did not retract the article. In an unusual agreement, however, The Times is letting Ms. Iseman’s lawyers give their views on the suit on the paper’s Web site.

Their opinion is accompanied by a joint statement from both sides and a note to readers, which is also appearing in Friday’s edition of the newspaper.

Let me boil down to the bone what has been accomplished legally as a result of Iseman’s complaint. Not a damn thing; both parties are sticking to the same exact public positions they maintained before the meritless suit was filed, it is just that for the sake of their pocketbooks they have agreed to take the pissing match back out of the costly court litigation system. And, now that they are back into an ink fight as opposed to boxing with attorneys, let’s take a look at how Times Editor Bill Keller describes the matter in a published statement today:

What the article set out to do, and did, was to establish that Senator McCain — a man whose career was ensnared by scandal and then rebuilt on a reputation for avoiding even the appearance of impropriety — was sometimes careless of that reputation. The story reported that a senator who cast himself as the scourge of lobbyists rode on the private jets of business executives with interests before his committee, and that a senator who disdained the influence of corporate money accepted corporate money to support that very cause.

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Obama Hates The Truth On Binyan Mohamed

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Graphic by Darkblack

Graphic by Darkblack

The news last week that President Obama had bought into and signed off on the full boat of shameful state secrets assertion in the case of Binyan Mohamed v Jeppesen Dataplan set off a wave of criticism. Obama came to the criticism the old fashioned way, he earned it by breaking his campaign promise and continuing the wretched excess of unitary secrecy. Obama’s about face, and turn to the dark side of Bush/Cheney secrecy shocked even Ninth Circuit Chief Judge Mary Schroeder when confronted with it at the Mohamed v. Jeppesen Dataplan hearing.

That is the part of Obama’s war on Binyam Mohamed through Bush style secrecy that has been widely reported, but there is much more that is not as well known. It ought to be. From this morning’s Guardian:

A policy governing the interrogation of terrorism suspects in Pakistan that led to British citizens and residents being tortured was devised by MI5 lawyers and figures in government, according to evidence heard in court.
…
The existence of an official interrogation policy emerged during cross-examination in the high court in London of an MI5 officer who had questioned one of the detainees, Binyam Mohamed, the British resident currently held in Guantánamo Bay. The officer, who can be identified only as Witness B, admitted that although Mohamed had been in Pakistani custody for five weeks, and he knew the country to have a poor human rights record, he did not ask whether he had been tortured or mistreated, did not inquire why he had lost weight, and did not consider whether his detention without trial was illegal.
…
Mohamed was eventually able to tell lawyers that before being questioned by MI5 he had been hung from leather straps, beaten and threatened with a firearm by Pakistani intelligence officers. After the meeting with MI5 he was "rendered" to Morocco where he endured 18 months of even more brutal torture, including having his genitals slashed with a scalpel. Some of the questions put to him under torture in Morocco were based on information passed by MI5 to the US.

The Guardian has learned from other sources that the interrogation policy was directed at a high level within Whitehall and that it has been further developed since Mohamed’s detention in Pakistan. Evidence of this might emerge from 42 undisclosed US documents seen by the high court and sent to the MPs and peers on the intelligence and security Read more →

BREAKING: Burris Fesses Up

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rolandburris-1thumbnail.thumbnail.jpgChicago tenor Roland Burris is singing a new tune:

U.S. Sen. Roland Burris has acknowledged he sought to raise campaign funds for then-Gov. Rod Blagojevich at the request of the governor’s brother at the same time he was making a pitch to be appointed to the Senate seat previously held by President Barack Obama.

Burris’ latest comments in Peoria Monday night were the first time he has publicly said he was actively trying to raise money for Blagojevich. Previously Burris has left the impression that he always balked at the issue of raising money for the governor because of his interest in the Senate appointment.

In comments to reporters after appearing at a Democratic dinner, the senator several times contradicted his latest under-oath affidavit that he quietly filed with the Illinois House impeachment panel earlier this month. That affidavit was itself an attempt to clean up his live, sworn testimony to the panel Jan. 8, when he omitted his contacts with several Blagojevich insiders.

Now this is something that Marcy (see: here and here) predicted, as did many of you. So, it is not exactly a shocking Captain Renault moment. That said, it is still extremely damning and is going to lead to a justified uproar. Already Illinois Attorney General Lisa Madigan is calling for a deeper investigation, although she has held short of claiming perjury by Burris.

It is just the bundling efforts that Marcy predicted may be in play that appear to be in issue:

Burris said Robert Blagojevich told him, “‘We need to raise some funds. We hope that you could probably get some of your friends together.’ I said, ‘What type of money we looking for?’ He says, ‘Can you raise us 10-or-15 thousand dollars?’

Here are the new details Burris has copped to as of last night:

“So some time shortly after Obama was elected, the brother called,” Burris said last night of Robert Blagojevich. “And now in the meantime, I’d talked to some people about trying to see if we could put a fund-raiser on. Nobody was—they said we aren’t giving money to the governor. And I said, ‘OK, you know, I can’t tell them what to do with their money.’”

“So when the (governor’s) brother called me back, I said, ‘Well, look Rob…I can’t raise any money from my friends. I said, maybe my partner and I, you can talk this over and see, could we go to some Read more →