Judge Walker Busts A Move: The Legal Foundation For It

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Immediately below, Marcy described Judge Vaughn Walker’s new homework assignment to the parties in the consolidated litigation in the Northern District of California (effectively all cases except al-Haramain and a few others to which "section 802 of the FISA Amendments Act of 2008" are not germane). If you have not read Marcy’s post, and wish to proceed into the legal weeds of this one, I heartily suggest you go back there first.

Okay, as I suggested in comments in Marcy’s post, Judge Walker is looking at the Attorney General option to certify a matter for dismissal pursuant to section 802 of the FISA Amendments Act, and as to said provision:

It is the hyper-equivalent of vagueness. The provisions that are supposed to provide the guidelines, provide … none.

Mary went to the same point but, as usual, with a lot more flesh on the bone in her comment:

… the drafting is bad. It doesn’t say that if x,y and z are met, the AG SHALL give a certification and with that certification, the telcoms walk. It says that the AG MAY give a certification that x,y and z existed and if the AG gives that certification, it’s an out. So it makes the certification discretionary to the AG, but then gives no standards on the exercise of the discretion. So the AG could, under the statute give the certifications to some and withhold it from others under the same factual settings.

So how is a court to know of the AG is complying with Congressional will vis a vis the certifications – if there are no standards specified for the exercise of discretion.

Precisely. So, let’s look at what Walker is legally up to here. It is my contention that he has pretty much determined that he is not down with the government’s program in the least, is going to take the bold move of declaring it unconstitutional and, from all appearances, do so on multiple grounds. The one at issue here is the unfettered and infinite nature and scope of the AG certification process under section 802.

First off Judge Walker posits this: Read more →

BREAKING: Obama Continues Bush Policy On State Secrets

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Earlier this morning, Looseheadprop wrote about the case of Binyam Mohamed, the British subject tortured at the hands of the United States at Gitmo, including having his genitals carved selectively with a scalpel. The Mohamed case is of critical significance for a variety of reasons, not the least of which is the fact that there was an oral argument in the Ninth Circuit Court of Appeals in San Francisco this morning that was to provide a crucial test of the new Obama Administration’s willingness to continue the Bush policy of concealing torture, wiretapping and other crimes by the assertion of the state secrets privilege.

From an excellent article by Daphne Eviatar at the Washington Independent at the end of January:

President Obama’s sweeping reversals of torture and state secret policies are about to face an early test.
…
The test of those commitments will come soon in key court cases involving CIA “black sites” and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used whatʼs known as the “state secrets privilege” – created originally as a narrow evidentiary privilege for sensitive national security information — as a broad shield to protect the government from exposure of its own misconduct.

One such case, dealing with the gruesome realities of the CIAʼs so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.

Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as itʼs also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that
knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.

Well, the news being reported out of Courtroom One in San Francisco is not good and indicates that the Obama Administration has continued the walk of the oppressive shoes of the Bush/Cheney regime and has formally continued the assertion of state secrets.

The best hope for transparency on Read more →

Conyers Invokes the CIA Inspector General Report on Torture

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In a HuffPo column arguing for a Commission to look into Bush era crimes, John Conyers mentions something people on the Hill rarely talk about: the 2004 CIA Inspector General report on torture.

Nor do I agree that the relevant facts are already known. While disparate investigations by Committees of congress, private organizations, and the press have uncovered many important facts, no single investigation has had access to the full range of information regarding the Bush administration’s interrelated programs on surveillance, detention, interrogation, and rendition. The existence of a substantially developed factual record will simplify the work to come, but cannot replace it. Furthermore, much of this information, such as the Central Intelligence Agency’s 2004 Inspector General report on interrogation, remains highly classified and hidden from the American people. An independent review is needed to determine the maximum information that can be publicly released.

Conyers links to this Jane Mayer interview about the report by way of explaining the significance of the report.

One of the lingering mysteries in Washington has been what happened to the CIA internal probe into homicides involving the program. You note that CIA Inspector General (IG) John Helgerson undertook a study and initially concluded, just as the Red Cross and most legal authorities in the United States and around the world, that the program was illegal and raised serious war crimes issues. Helgerson was summoned repeatedly to meet privately with Vice President Cheney, the man who provided the impetus for the program, and it appears as a result of these meetings the IG’s report was simply shut down. Would those probes have brought into question the Justice Department’s specific approval of torture techniques used by the CIA–approval that involved not just John Yoo, but much more specifically Michael Chertoff and Alice Fisher, the two figures who ran the criminal division?

The fact that John Helgerson—the inspector general at the CIA who is supposed to act as an independent watchdog—was called in by Cheney to discuss his tough report in 2004 is definitely surprising news. Asked for comment, Helgerson through the CIA spokesman denied he felt pressured in any way by Cheney. But others I interviewed have described the IG’s office to me as extremely politicized. They have also suggested it was very unusual that the Vice President interjected himself into the work of the IG. Fred Hitz, who had the same post in previous administrations, told me that no vice president had ever met with him. Read more →

Some Obama Folks Miffed about al-Haramain

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In an article about the anticipated headaches Eric Holder will have once he’s confirmed as Attorney General today, some anonymous Obama figures reveal their thoughts about the last minute al-Haramain filings by Bush dead-enders.

The case dealing with the state secrets doctrine, which allows the government to rebuff lawsuits by invoking national security concerns, involves al-Haramain Islamic Foundation. A federal trial judge in San Francisco ruled that the government could not invoke the doctrine to block a lawsuit by al-Haramain, which has asserted that the government illegally listened in on its conversations.

The Bush administration used the doctrine to block more than two dozen lawsuits. In timing that was a bit of a surprise, the Justice Department lawyers who have handled the lawsuit filed a motion with the court an hour before Inauguration Day that held to the same position.

Some Obama administration figures regarded the filing before midnight on Jan. 19 as a rear-guard action to make it more difficult to reverse course.

The Justice Department has to file a new brief by Feb. 13. Jon B. Eisenberg, who represents al-Haramain, said the schedule meant that “Holder and company have to decide pretty quickly if they want to keep opposing this case with the state secrets doctrine.”

The case also provides an opportunity to have a court assess the Bush administration’s domestic wiretapping program. [my emphasis]

None of that, of course, explains what Obama will do once Holder and the rest of his department gets in place. None of it explains why Obama didn’t take a stronger stand when the dead-enders were filing documents in his name. 

But at least some folks in the Obama Administration are watching the dead-enders closely.

Whitehouse and Leahy Scold Cornyn and Specter for Asking for No Prosecution Guarantee

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The vote on Holder is already done, but in the dregs section as Senators explain why they supported Holder, Whitehouse and Leahy took the opportunity to scold Cornyn and Specter for trying to make Holder commit to no prosecutions for torture. 

Whitehouse said (this was a liveblog approximation):

We came perilously close to seeking a prosecutive commitment from an AG candidate on an issue he would have to make a decision on.  We don’t ask judicial candidates their position on a case, the notion that a person who is a candidate for AG should have to make a prosecutative decision before he has even read the file or before he has even been read into the program at question.

And Leahy said they were thinking "Alice in Wonderland" if they thought any prosecutor would make such a commitment before reviewing the facts of a case. 

Holder Vote in SJC Now

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There won’t be any news in today’s vote. Specter has cast his yes vote, Hatch is babbling on while making it clear he votes yes, too. And Leahy is just laughing about it, saying, "babble on, I know I’m going to win." (Okay, he didn’t use the word, "babble."

But in case you’re interested here’s the committee stream. 

17-2 vote in favor of confirmation. One of the no votes was Cornyn. Not sure of the other–I think maybe Coburn?

Obama's Executive Privilege Order and the House Judiciary Committee Lawsuit

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I’ve seen a lot of celebratory posts about the effect of Obama’s Executive Order on Presidential Documents, but I fear it distracts attention from an equally important focus: the House Judiciary Committee lawsuit.

The posts all focus on Obama’s order that Executive Privilege claims must be reviewed by the incumbent President, not the former President.

(a)  Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.  Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.

(b)  In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.  The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations.  Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel).  The copy of the notice for the former President shall be delivered to the former President or his designated representative.

So, commentators say, this means we’ll be able to get a bunch of documents–the US Attorney scandal documents and the Plame documents are the most frequently mentioned–that Bush has been withholding.

But of course, particularly with respect to those documents, there’s already a pending case–the HJC case that was reinstated under the House rules (and now includes Turdblossom for the USA purge documents and Mukasey for Siegelman documents and Plame documents).

Now, I’ve asked some folks on the committee and they’re sure Obama’s EO won’t moot their suit. And, presuming AG Holder approves it, Obama’s administration can presumably release the documents right to the Committees Read more →

Obama Gitmo Draft Executive Order Working Thread

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h/t Amnesty International

As I indicated in comments, I have a copy of the supposed final draft of Obama’s Executive order on Guantanamo. Perhaps I will append the main post later, but i want to get it up now. Especially since William Ockham reports that the ACLU has beat me to the punch. That is what I get for actually driving home and opening a bottle of wine for my wife I guess. Go figure.

Here it is. See you in comments to dissect it. Hey, you know, this change stuff is a lot of fun eh?

President Obama's New Presidential Records Order

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[Lot of things going on this afternoon. I know this has been the buzz of many of you, well here it is. Note "Sec. 6. Revocation. Executive Order 13233 of November 1, 2001, is revoked".

You all are bloggers on the issue, take this sucker apart and report your conclusions for one and all in comments. Citizen journalism! Hooray! – bmaz]

For Immediate Release January 21, 2009

EXECUTIVE ORDER

– – – – – – –

……………………………………….PRESIDENTIAL RECORDS……………………………………………………………

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish policies and procedures governing the assertion of executive privilege by incumbent and former Presidents in connection with the release of Presidential records by the National Archives and Records Administration (NARA) pursuant to the Presidential Records Act of 1978, it is hereby ordered as follows:

Section 1. Definitions. For purposes of this order:

(a) "Archivist" refers to the Archivist of the United States or his designee.

(b) "NARA" refers to the National Archives and Records Administration.

(c) "Presidential Records Act" refers to the Presidential Records Act, 44 U.S.C. 2201-2207.

(d) "NARA regulations" refers to the NARA regulations implementing the Presidential Records Act, 36 C.F.R. Part 1270.

(e) "Presidential records" refers to those documentary materials maintained by NARA pursuant to the Presidential Records Act, including Vice Presidential records.

(f) "Former President" refers to the former President during whose term or terms of office particular Presidential records were created.

(g) A "substantial question of executive privilege" exists if NARA’s disclosure of Presidential records might impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch.

(h) A "final court order" is a court order from which no appeal may be taken.

Sec. 2. Notice of Intent to Disclose Presidential Records. (a) When the Archivist provides notice to the incumbent and former Presidents of his intent to disclose Presidential records pursuant to section 1270.46 of Read more →

Obama Drafts Order To Close Gitmo; Suspends Habeas Cases In DC Circuit

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First off, President Obama has already drafted the order to close Gitmo, as he had promised. The AOL News is reporting:

The Obama administration is circulating a draft executive order that calls for closing the detention center at Guantanamo Bay within a year.

The draft order also would declare a halt to all trials currently under way at the facility, where roughly 800 detainees in the war on terror are held.
…
Word of the draft order comes on the same day that a judge granted Obama’s request to suspend the war crimes trial of a young Canadian in what may be the beginning of the end for the Bush administration’s system of trying alleged terrorists.
The judge, Army Col. Patrick Parrish, issued a written order for the 120-day continuance, without even holding a hearing on the question. Another judge was expected to rule later Wednesday on a similar motion to suspend the trial of five men charged in the Sept. 11 attacks.

Secondly, as I explained in the last post, President Obama has moved to suspend tribunal proceedings at Gitmo, and the military panels have started entering the orders. As further evidence of the determination to immediately address, and bring a new sense of enlightened justice to, the detainees in Guantanamo, the Administration has imposed analogous continuance motions in pending Habeas cases in United States District Court for the District of Columbia.

Specifically via a motion in Bostan v. Bush et. al, (DC Dist. 05-CV-00883), and a similar motion filed in Mohammon v. Bush et. al (DC Dist. 05-CV-02386), the Administration has moved to continue two hearings scheduled for this afternoon in respective Habeas Corpus cases.

The gist of the motions in both cases can be gleaned from the operative language in the Bostan case motion:

1. The Court previously scheduled a hearing on petitioners’ motions for expedited
judgment on the record for Wednesday, January 21, 2009, at 2:00 p.m. See, e.g., Bostan v.
Obama, No. 05-cv-0883, Order (Jan. 12, 2009, dkt. no. 109). The argument will involve issues
such as the appropriate nature and scope of the Executive’s detention authority during wartime.

2. Earlier today, Barack Obama assumed the office of the President of the United
States.

3. The Government is now assessing how it will proceed in the above-captioned
Guantanamo Bay detainee habeas corpus cases. Time is needed to make that assessment and
determination. Accordingly, the Government Read more →