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 →

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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 →

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President Obama Officially Halts GITMO Show Trials

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h/t Amnesty International

President Obama has ordered an abrupt halt in the Gitmo Show Trials. From Peter Finn at the Washington Post:

In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba — a clear break with the approach of the outgoing Bush administration.

The instruction came in a motion filed late Tuesday with a military court handling the case of five defendants accused of organizing the Sept. 11, 2001, attacks on the United States. The motion called for "a continuance of the proceedings" until May 20 so that "the newly inaugurated president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

In the legal field, this is known as an act taken "in the interests of justice". An incredibly welcome move by an administration literally only hours into its initial term. You have to hand it to President Obama, Guantanamo is a sensitive topic, especially with the neocon screechers, yet he proved the courage of his convictions and acted immediately upon being sworn in.

It appears that the action was foreshadowed at Camp Delta, as Carol Rosenberg of McClatchy already had reported, even before Obama was sworn in, that the trial of Omar Khadr had been put on hold:

A military judge on Tuesday postponed next week’s trial of Canadian captive Omar Khadr, easing pressure on the new occupant of the White House to make a swift decision on military commissions.
…
Until Tuesday, the Khadr case was shaping up to be an early test of Obama’s pledge to close the prison camps.
…
But Parrish’s indefinite delay — he set no new trial date — also derailed Pentagon plans to airlift a jury panel of U.S. military officers to this remote base this weekend.

The stay of all proceedings at Guantanamo for at least 120 days is, as stated, wonderful news; however, the better question is what it portends for the future disposition of the legal cases of the detainees including Khalid Sheik Mohammed and his co-defendants accused of organizing the 9/11 attacks.

Notably, the defense teams do not appear quite as thrilled as one might would expect by the move, citing fears that the government is simply trying to clean up the tribunal process minimally in order to continue on. Lt. Cmdr. William Kuebler, who represents Read more →

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Marty Lederman Takes over John Yoo's Former Position

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If you needed any further proof that things are different–very different–today, there’s this: Balkinization blogger Marty Lederman will take John Yoo’s former position, Deputy Assistant Attorney General for OLC.

As of today, the commencement of the Obama Administration, he begins work as Deputy Assistant Attorney General in the Office of Legal Counsel. There he will be joined by two of his former OLC colleagues, Dawn Johnsen, nominated to be head of the office; and David Barron, who will serve as the Principal Deputy (and as the Acting AAG while the Senate considers Dawn’s nomination).

We’ve replaced the guy who did Bush and Cheney’s evil bidding with a blogger-prof and Constitutional champion, Marty Lederman.

Welcome to a new day, America.

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Coach Bush is 3-23 In Real Courts On Gitmo Show Trials; Katyal, The Hero Of Hamdan, To Join Obama Administration

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If your local football coach was 3 wins and 23 losses for the season, you could rest assured of two things; one, you are a Detroit Lions fan and, two, the coach is getting fired. Well, there was an interesting little article that was published in today’s New York Times, and the upshot is that 3 and 23 is exactly what the Bush/Cheney regime’s record is when their Guantanamo Detainee cases see the sunshine of a real court. Clearly we have pretty much been endlessly detaining a lot of innocuous people on unsubstantiated evidence.

Describing the release last weekend of Haji Bismullah, an Afghan detainee held at Guantánamo Bay for nearly six years, the Times notes:

The decision was part of a pattern that has emerged in the closing chapter of the administration. In the last three months, at least 24 detainees have been declared improperly held by courts or a tribunal — or nearly 10 percent of the population at the detention camp in Guantánamo Bay, Cuba, where about 245 men remain.
…
While Mr. Bismullah’s case was decided by a military panel, the rulings for the other 23 detainees occurred in habeas corpus hearings in federal court. Since a Supreme Court decision in June gave detainees the right to have their detentions reviewed by federal judges in habeas cases, the government has won only three of them.

Get that?? 3 and 23. Not. Real. Good. Certainly puts the lie to Cheney and Bush’s promises that they were holding only the "worst of the worst" after all these years doesn’t it?

The cases provide a snapshot of the intelligence collected by the government on the suspects and suggest that there was little credible evidence behind the decision to declare some of the men enemy combatants and to hold them indefinitely.
…
“The government’s failure in case after case after case to be able to prove its case calls into question everybody who is there,” said Susan Baker Manning, a lawyer for 17 Uighur detainees from western China who were ordered released by a federal judge in October. The Justice Department has appealed that order from a federal district judge, Ricardo M. Urbina, and the men are still at Guantánamo.

Well, I guess, as shocking as it is, this is not exactly breaking news anymore. The brittle patina of legitimacy and credibility, to the extent there ever was any, began to crack with the first major Read more →

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Turley Speaks Out On The Bush "Policy Of Crime"

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Barack Obama and his new administration need to prosecute the malefactors in the outgoing Bush Administration for the crimes and crimes against humanity they perpetrated while in office. The law is not just to punish, although it is for that; more importantly, it is to set an example for society to see and know, to exhibit what is wrong and not to be tolerated.

Tonight on Keith Olbermann’s Countdown on MSNBC, Professor Jonathan Turley made a passionate plea to Mr. Obama, his Attorney General to be Eric Holder and the incoming administration to do just that: prosecute the malefactors for the egregious conduct and set an example.

There is a difference between criminalizing policy and a policy of crimes, and that is what we have here. We just had three Attorney Generals that couldn’t tell the difference, and the question is whether he will prosecute confirmed crimes.

Indeed, that is the question. Watch the clip, it is must see teevee.

Paul Krugman said much the same in today’s New York Times:

I’m sorry, but if we don’t have an inquest into what happened during the Bush years — and nearly everyone has taken Mr. Obama’s remarks to mean that we won’t — this means that those who hold power are indeed above the law because they don’t face any consequences if they abuse their power.

These two luminaries are speaking the gospel. Spread the word.

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Holder Nomination Hearing, Part Three

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Up now on the Committee Webcast.

Grassley: Quinn called you and recorded that you had no personal problem. [places notes in record] Do you remember a comment about the Southern District?

Holder: I don’t remember it. But it suggests I knew they were aware of it.

Grassley: Don’t you think this is more reliable than your memory.

Holder: I agree in general, but I’d want to note the circumstances of this note.

DiFi spoke, but I missed a lot of it.

Kyl: Internet gambling [I was waiting for this!!] You indicated that under your leadership DOJ would enforce laws prohibiting some kinds of internet gambling.

Kyl: You also said you’d shut off cash flow to internet gambling.

Kyl: "Liability protection" for FISA law. You said you would honor the certification put forth by Mukasey unless there were compelling circumstances. That certification based on investigation of previous conduct prior to the law in order to determine whether entitled to get retroactive immunity. Law provides immunity for conduct prosepctively. What circumstances could you conceive of that would relate to this previous investigation?

Holder: I’m not sure I can come up with those circumstances. I don’t know.

Kyl: YOu are aware that DOJ has taken a position in lawsuit in support of liability protection with respect to AT&T.

Holder: It wouldn’t happen with change in Admin, that would not be compelling. 

Kyl: I hope you won’t consider this out of bounds. You were DAG under Clinton when DOJ authorized warrantless search of Ames. Were you involved in that?

Holder: I don’t remember. As I understand what my staff relayed to me, national security exception not covered by FISA that would have made that legal. 

Feingold: Guidelines on investigation. Will you take a close look at these guidelines.

Holder: FBI changing its mission. I think need to see how they work in practice. I’ll commit to doing that.

Feingold: FBI document hundreds pages long, I asked if it would be made public. As AG will you support efforts to make those public?

Holder: helps to be as transparent as we can.

Feingold: Will you support legislation to end racial profiling in America?

Holder: we need to end it.

Feingold: Do you agree there’s a need for legislation?

Holder: It’s not an issue I’ve dealt with recently. 

Feingold: Bush Admin trying to preempt state law on law suits. Do you think this needs to be changed to restore common law for citizens.

Holder: Need to approach from a pro-consumer perspective.

Cardin: When you are confirmed one of your principle Read more →

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Holder Nomination Hearing, Part Two

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picture-72.thumbnail.pngTo follow along, see CSPAN3 or the Committee Webcast (though the latter seems to be having the RealPlayer problem it was having earlier). 

Sorry. Started a little late. I think Lindsey Graham is beating up on Holder because he once worked for Blago, but that’s just a guess. [actually, not sure I got that right]

Graham: Is it fair to say that we’re at war?

Holder: No question that we are at war.

Still asking questions about whether our "war"–whether someone in the Philippines financing terrorism was part of the battlefield. 

Graham: What about someone who may not be subject to an Article III trial. Have you thought about that group?

Holder: I’ve struggled with that.

Leahy: Graham has discussed these issues with me, I’ve relied on his experience from JAG, we’ve also had some military people risking their own careers saying what should be done. They have been most instructive to members of this committee on how the UCMJ works. I would suggest that you may want to spend some time in informal discussions with people like Graham, we’ll at least let you know what our views are.

Holder: That’s a good idea. Didn’t want to talk about the substance of my conversation with Graham thinking he had thought about our military judgment a lot. 

Leahy (who keeps putting in letters of support at key times) is now putting in letters of support from Generals and whatnot. 

Cardin: I want to talk about Civil Rights Division. Resources reduced. Schloz. I want to give you an opportunity to tell me your own personal commitment, and how you will direct that division head what you expect to see during the Obama division.

Holder: Civil Rights is conscience of DOJ. 

Cardin: Bush Administration took zero cases supporting African Americans, but they were there to defend the draconian Georgia law that has been called the new poll tax. I’d like to find a way to prevent campaign tactics to be used to suppress turnout. 

Cardin: One other area shows a racial disparity in our country. Crack cocaine. African Americans now serve as much time for drug offenses as whites do for violent crimes.  We know we have disparities in our laws. It’s very clear that’s true wrt crack cocaine. I’d like a tough but fair system.

Holder: Our criminal justice system has to be fair, it has to be viewed as fair. I saw that in USA DC. I heard jurors talk about inadequacies in Read more →

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Eric Holder Hearing Open Thread

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This should be the only really contentious one. Go to CSPAN3 or the Committee Webcast to see it.

Note, in a bit of timing jujitsu, Biden and Hillary are giving their farewell speeches on the floor of the Senate at 10 and 11, meaning CSPAN2 will be covering those speeches and not this hearing, meaning (in turn) that this hearing won’t be available to most Americans watching on teevee.

Leahy’s opening statement is a bit of a scold directed at Arlen "Scottish Haggis" Specter for his kabuki opposition to Holder.

Ah Jeebus. Specter is bitching about minority rights–complaining that, after having agreed to the schedule he originally agreed to, he then wanted to change the schedule. 

Huh. Did Specter just say that Mary Jo White refused to testify? [I may have gotten that wrong–I’m having technical difficulties with the RealPlayer streams]

John Warner: "bipartisan approach in helping President-elect face the most complicated issues that ever faced a President."

Warner: People in every corner of the country are following this hearing. [Well, they would be if two top incoming officials weren’t giving their swan-song speech on the floor of the Senate and therefore hogging the CSPAN2 time]

Note: there appears to be a RealPlayer difficulty on the feed–if you’re having problems–getting sound but not picture–try CSPAN’s Microsoft feed, which has picture for me.]

Holder’s goals:

Protect American people from terrorism. Use every available tactic, do so within the letter and the spirit of the law. America must remain a beacon to the world. 

Restore credibility of department.  DOJ will serve justice, not fleeting interests of any political party. Filip and Mukasey deserve gratitude of American people for doing much. (?)

Embrace historic role in fighting crime, protecting civil right, protecting environment, ending fraud. [Talks about accountability in finance.]

Leahy starts with waterboarding. "Two most recent nominees to serve as AG hedged on waterboarding. Do you agree with me that waterboarding is illegal?"

Holder: If you look at the history, I agree with you that waterboarding is torture.

Holder: no one above law. President has obligation to faithfully execute laws of US. Obligations from treaties and Constitution. The President acts most forcefully when he acts in manner consistent with Congressional intents and directions. It’s my belief that President does not have power to authorize torture.

Leahy: 2nd Amendment? [Leahy sets up Holder to answer one of the questions GOP will throw at him.]

Holder: My amicus brief was with respect to decisions signed before Heller. 

Read more →

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The US Torture Regime – Where Is The Swift Justice?

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Earlier, Marcy and Spencer wrote about the somewhat startling admission today by Susan Crawford that the United States tortured Mohammed al-Qahtani. From Woodward and the Washington Post:

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that’s why I did not refer the case" for prosecution.

The entire article is worth a read just so that the bare facts of what the United States does in your name can set in. But the real thing that strikes me about Crawford’s admission is the unequivocal starkness of it. "We tortured". "Met the legal definition of torture".

Well okay then. What more could we ask for? Maybe that the statement was made by a Bush Administration official, in a position of authority, someone that actually speaks for and might could bind the government to the admission. Well, as convening authority for the military commissions, Susan Crawford darn well ought to suffice for that.

Sounds like what we have here is what the legal profession, and specifically the criminal justice portion thereof, calls an "admission against interest".

An admission against interest is an exception to the hearsay rule which allows a person to testify to a stament of another that reveals something incriminating, embarassing, or otherwise damaging to the maker of the statement. It is allowed into evidence on the theory that the lack of incentive to make a damaging statement is an indication of the statement’s reliability.

In criminal law, it is a statement by the defendant which acknowledges the existence or truth of some fact necessary to be proven to establish the guilt of the defendant or which tends to show guilt of the defendant or is evidence of some material fact, but not amounting to a confession.

Tonight, on MSNBC’s Countdown, former Navy JAG attorney Charles Swift laid out the background and implications of what our country has done and become (Attached are both the portion with Charlie Swift as well as a followup portion). What we have done is not good. It is not right. And it is not justified. It is a war crime under 18 USC § 2441.

For her next trick, perhaps Susan Crawford can tell us when the war crime prosecutions will be starting.

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