John Yoo: “It Sucks to Have Judges Protecting the Constitution”

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John Yoo complains that the Supreme Court’s strong rulings last term are an "unprecedented" grab for power.

Slowly but surely, the justices have expanded their power to make many of our society’s fundamental political and moral decisions. Only the court now decides whether schools or the government can resort to race-based preferences when it admits students or doles out contracts. States and the federal government must live by the court’s dictates on the regulation of abortion. Whether religious groups can help educate inner-city children or provide welfare services is up to the justices. Use of the death penalty, indeed whether each individual execution will go forward, is ultimately controlled by our unelected judges.

[snip]

Some might prefer that judges still make these decisions because they hear cases in a formal, rational setting and issue long opinions explaining their reasons. Nonetheless, the courts are far from ideal as policymakers: They have great difficulty trading off competing values in these sensitive areas; they are insulated from the political process; and their only access to information comes to them through the narrow lens of a lawsuit.

When the federal judiciary decides national policy on these issues, under the guise of interpreting the Constitution, it prevents the people from making the decisions for themselves.

Not surprisingly, Yoo’s argument gets particularly laughable when he complains about Boumediene.

The decisions announced this summer only reaffirm the court’s power. In Boumediene v. Bush, five justices – the wandering Justice Anthony Kennedy joined by a liberal bloc of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer – took the unprecedented step of striking down a wartime law enacted by Congress and the president.

U.S. history has never seen what the Boumediene majority now demands: Alien enemy prisoners at war with U.S. forces and detained outside the United States have the same right as criminal suspects to challenge their capture in civilian courts. Hundreds of years of practice, and the decided views of the political branches, to which the Constitution gives all of the powers over war, were tossed overboard.

After all, this was a guy who routinely ignored laws passed by Congress–including laws passed during the Vietnam war–to rationalize things like domestic surveillance and torture. But he has found one law–the Military Commissions Act–that he believes should be protected above all else.

Regardless of whether it violates the Constitution or not.

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Kill Game: The Path Of Destruction From The Amerithrax Investigation

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"Have you no sense of decency, … at long last? Have you left no sense of decency?" These prophetic words were spoken on June 9, 1954 by Joseph Welch, attorney for the United States Army, at the nadir of the shameful McCarthy hearings. It was a time of scurrilous persecution of all numbers and types of fellow humans, based mostly on sheer rumor, innuendo and manufactured evidence. The acts of a United States Government drenched in it’s own fears, drunk of it’s own hubris and looking for political scapegoats.

The result was an everlasting shame carried by a generation of Americans. To this day, the methods and tactics of the red baiting McCarthy investigators, and the hell they wrought on the ostracized and disavantaged targets, not to mention the devastation to their families, is taught to our children as a seminal lesson of the dark, malignant growth that can consume the American ethos when fear, ambition, unitary power and political malevolence intersect unchecked and unbalanced in the halls of power in Washington DC. It is a tragic intersection that seeks a target of convenience and finds it.

And so we advance fifty years to find our dark history repeating itself in the Amerithrax case. Once again we find a unified and unchecked power in the government fueled by, and fueling, fear and trolling for a target of convenience to scapegoat. This is now incontrovertible.

Sunday’s New York Times has an extended article, by William Broad and Scott Shane, on the hell that our Government hath wrought upon it’s citizenry in the Amerithrax investigation. It is chilling.

But along the way, scores of [individuals] — terrorists, foreigners, academic researchers, biowarfare specialists and an elite group of Army scientists working behind high fences and barbed wire — drew the interest of the investigators. For some of them the cost was high: lost jobs, canceled visas, broken marriages, frayed friendships.
…
The bureau began looking at biodefense insiders like Mr. Mikesell, an anthrax specialist who had worked in the 1980s and 1990s with Dr. Ivins at the Army Medical Research Institute of Infectious Diseases at Fort Detrick, in Frederick. He had then joined Battelle, a military contractor in Columbus, Ohio, that became deeply involved in secret federal research on biological weapons.

In 2002, Mr. Mikesell came under F.B.I. scrutiny, officials familiar with the case said. He began drinking heavily — a fifth of hard liquor a day toward the end, a family member said.

“It was a shock that all of a sudden he’s a raging alcoholic,” recalled the relative, who spoke on the condition of anonymity because of family sensitivities.

By late October 2002, Mr. Mikesell, 54, was dead, his short obituary in The Columbus Dispatch making no mention of his work with anthrax or the investigation.
…
Another casualty was Kenneth M. Berry, an emergency room physician with a strong interest in bioterrorism threats. In August 2004, agents raided his colonial-style home and his former apartment in Wellsville, a village in western New York, as well as his parents’ beach house on the Jersey Shore.

In scenes replayed for days on local television stations, the authorities cordoned off streets as agents in protective suits emerged from the dwellings with computers and bags of papers, mail and books.

“He was devastated,” Dr. Berry’s lawyer at the time, Clifford E. Lazzaro, said in an interview. “They destroyed his marriage and destroyed him professionally for a time.”

The government has unequivocally admitted that it wrongfully targeted an individual, Steven Hatfill, for a period of six years with little to no basis in fact or evidence to do so. The result of that "most complex criminal case in bureau [FBI] history", and dedicated certainty by the Bush Department of Justice for six years, has been a lawsuit brought by Hatfill, a settlement with Hatfill, humiliation of the DOJ and, finally, a complete exoneration of Hatfill.

It is pretty clear that Hatfill would, in spite of all the evidence, still be the target of this persecution had he not fought back doggedly with every ounce of his being. The government relentlessly tried to get his civil case dismissed and to hide the ball. As with another infamous case of Bush Administration subterfuge, if not for the honesty and spine for justice on the part of Judge Reggie Walton, Hatfill would still be Read more →

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Native Tears

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Via the Washington Post, the verdict has been rendered at long last in the Cobell litigation

A federal judge ruled Thursday that American Indian plaintiffs are entitled to $455 million in a long-running trust case, a fraction of the $47 billion they wanted.
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Robertson’s final number is close to government estimates and far from the billions sought by plaintiffs in the 12-year trial. The lawsuit _ filed on behalf of a half-million American Indians and their heirs _ claims they were swindled out of billions of dollars in oil, gas, grazing, timber and other royalties overseen by the Interior Department since 1887.
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At issue was how much of the royalty money was withheld from the Indian plaintiffs over the years, and whether it was held in the U.S. treasury at a benefit to the government.
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Because many of the records have been lost or destroyed, it has been up to the court to decide how to best estimate how much the individual Indians, many of whom are nearing the end of their lives, should be paid.
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The government proposed paying $7 billion partly to settle the Cobell lawsuit in March 2007, but that was rejected by the plaintiffs.

In a January decision, Robertson said the Interior Department had "unreasonably delayed" its accounting of the money owed to landholders and that the task was ultimately impossible. He called the June trial to consider whether money was owed, and, if so, how much was owed.

The class-action suit deals with individual Indians’ lands and covers about 500,000 Indians and their heirs.

This is a giant, landmark case that has been screwed up and slanted against the Native plaintiffs from the start. The US government has been dishonest, dismissive and disingenuous every inch of the way. In fact, this is so true that the original judge assigned to the case, Royce Lamberth, not necessarily a bleeding heart understand you, not only had the following to say, he literally made it part of a formal interlocutory opinion in the case. Lamberth stated that the United States Government, and it’s Department of the Interior was

…a dinosaur — the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the pathetic outpost of the indifference and anglocentrism we thought we had left behind.

For this singular demonstration of honesty and perspective, the Bush Department of Justice had Lamberth removed from the case. Read more →

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No Consequences for the Wholesale Politicization of Justice

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Glenn Fine, DOJ’s Inspector General, showed up before the Senate Judiciary Committee today to talk about the two reports showing pervasive politicization of the Department of Justice.

The big take-away from the hearing–which reinforced what was already evident from the reports–is that those who politicized DOJ have basically gotten away with it: Monica Goodling, Kyle Sampson, Mike Elston, and others will not be held accountable for their actions.

For example, when Chuck Schumer asks Fine about consequences, Fine says the lawyers involved (and not all of them were lawyers) may–possibly–face sanctions from their Bar.

Schumer: On of the most shocking conclusions in your report is that someone like Monica Goodling, who politicized the appointment of Assistant US Attorneys, Immigration Judges, and even Counter-Terrorism positions may not face any consequences for her actions. So let me ask you this, Mr. Fine. Should such blatant politicization and illegal activity be subject to some criminal punishment so there would be some ultimate accountability.

Fine: I’m not sure it’s true to say she escaped any accountability and punishment. As I discussed with Senator Whitehouse earlier, she–people did leave the Department, so they can’t be disciplined by the Department, but we’ve recommended that they never get a job with the Department again and hopefully with the federal government again and that hopefully they consider this report if they ever do reapply. They have been exposed. Their conduct has been exposed in a transparent way for all to see. And then, there may be–I’m not saying there is but there may be appropriate Bar sanctions for–possibly–for attorneys who have committed misconduct and may have violated a Bar rule and so the Bar may look into that.

Sheldon Whitehouse follows up on Schumer’s questions to ask for specifics, looking for some means to hold these guys accountable. Whitehouse seems to be pointing to something bmaz has talked about (update: see this comment)–the difficulty in identifying the Bar rule that such misconduct might have violated.

Whitehouse: Um, with respect to the consequences for the violation of federal law. Can you identify what Bar rules might have been broken. … I did not see OPR making any referrals to the Disciplinary Council as a result, so I’m a little confused about what disciplinary consequences lawyers might face?

Fine: My understanding is, and I’ve had discussions with OPR about this, that OPR intends to, and we will participate in a notification to the Bars of individuals who are found to have committed misconduct, for them to review the conduct. Read more →

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HJC Testimony: Michael Mukasey, Three

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Decided to make a new thread to keep this clean.

First order of business: did you notice that Darrell Issa said the Republicans had gotten answers from Rove himself, so he wouldn’t have to show before Congress? Well, Issa entered those answers into the Congressional Record and here they are. I’ll put up a post on them later–but the short version is the Republicans are now actively conspiring with Rove to allow him to evade responsibility for his actions.

Here’s the live stream for the hearing.

And, as a reminder, Governor Siegelman will be joining us at FDL tomorrow at 12ET/9PT. I’m sure we’ll talk about contempt for Rove’s dodgy answers and about the fact that Michael Mukasey seems to think Bush’s invocation of Absolute Immunity was proper.

Gohmert: Raid of Congressman Jefferson’s office–to cleanse of protected or privileged documents. Do you have a firewall capacity?

MM: Yes.

Gohmert: Scalia thinks the Courts know nothing about security concerns. blah blah blah SCOTUS micro-managing the trials.

MM: Decision is the law of the land, and I am moving forward to treat it as the law of the land.

Artur Davis: Sanchez raised and I raised in phone call yesterday. Siegelman prosecution. Possible political influence. Not been raised publicly. As you perhaps know, emails that surfaced that suggested that various jurors engaged in misconduct, they had consulted the internet and other conduct that I think you would agree was improper. Motions filed urging new trial. Protracted dispute. Series of hearings back and forth. Govt took position that evidentiary hearing had to be very limited. In July of this year, Chief of Appellate division notified Defense Counsel that while District Judge Fuller was considering these motions, that District Judge had ex parte communication with US Marshall Service, had been instructed by USA office to conduct its own investigation. US Marshall service reached conclusion that emails were not valid. You were a district judge. Would there have been any circumstance where you would have allowed yourself to have ex parte conversation while you were considering motions.

MM: Facts somewhat differently. Jurist co-workers got copies before judge, turned them to Marshall, Marshall to USA, gave them to US Postal Service. Turned over to someone else. Postal service reached conclusions.

Davis: While the investigation was ongoing in April 2007, after the first evidentiary hearing, Representatives apprised Chief Judge Fuller and concluded that purported emails not authentic. Read more →

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HJC Testimony: Michael Mukasey, Two

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Back to the Mukasey hearing. As a reminder, Governor Siegelman will join us tomorrow at FDL at 12ET/9PT. I’m sure we’ll talk about Mukasey’s statements regarding Rove’s non-appearance.

Darrel Issa: Executive privilege. Karl Rove’s failure to appear. What useful purpose would it serve if he came here if the items were likely to be related to subjects he’s prohibited from speaking about.

MM: Don’t want to get into controversy. Immediate advisors, if they’re told not to get into matters, they can’t. Various ways of gathering information.

Issa: I didn’t plan on asking these questions. I’d like to enter a letter from ranking member Lamar Smith asking Luskin whether he would answer specific questions related to Siegelman and then accompanying answers from Patton Boggs. Dispensed with Q&As that do not assert EP.

Issa: Media leaks and how they affect national security. In your opinion, both before and after you were AG, effect of NYT leaking the most sensitive information. You’re saying, show me a bill we would sign.

MM: Without criticizing individual newspapers.

Issa: I’m not restrained from saying Eric Lichtblau and the others who leak national secrets.

MM: They eventually write your obituary.

Issa: I’m from a family of long livers.

MM: When someone is obliged to tell a reporter that he or she has been picked up on a wiretap…

[Huh??? Did that make sense to anyone??]

MM: Numerous crimes, not subject to exception, such as child abuse. There is no way to compel a reporter even when a balance has been struck, put before someone who has no other standard. No way to compel disclosure. A reporter is free to take contempt.

Bill Delahunt: 45 detainees DOD has cleared for release who are still being detained at Gitmo. Number from Judge Hogan.

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HJC Testimony: Michael Mukasey

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Today’s hearing should be contentious. I expect Dems will want to talk about why Karl Rove feels he can blow of Congress, why Michael Mukasey begged Bush to invoke Executive Privilege to protect Cheney’s FBI interview reports, torture, and voting rights. Mukasey, undoubtedly, is going to want to talk about how HJC should drop all of those issues and instead focus on his call for Congress to redeclare war against Al Qaeda and to legalize keeping detainees indefinitely even if their habeas petitions say there’s no reason to hold them. I’m sure the Republicans on the Committee will alternate between supporting Mukasey’s call to redeclare war and interfering with the hearing generally, as they did with the Dougie Feith hearing last week.

As scheduled, the only place to watch the hearing live is the HJC feed. CSPAN will be showing it on tape delay later in the day.

One more relevant announcement: Governor Don Siegelman will be joining us at FDL tomorrow at 12 ET/9 PT for a live chat–we expect to talk about contempt for Karl Rove, as well as anything that comes up in today’s HJC hearing.

Conyers: Not seen enough cooperation on voting rights. Regular meetings on voting rights have not happened and have not been effective. Probably 100 days before the election, we don’t know specifically how govt will respond to practices that made elections of 2000 and 2004 so controversial. Highest order of responsible, because we’re going to be held responsible. In addition to serious problems in 2000 and 2004, numerous other problems, troubling redistricting plans. Hearing tomorrow and DOJ to this moment doesn’t have anybody committed to coming to that hearing. Head of voting section hasn’t agreed to come before us.

Conyers: Trying to get key members of Bush Administration before us: Miers and Bolten refused to cooperate in contempt proceedings bc DOJ has said they’re not going to enforce this subpoena. This Department continues to validate unprecedented concept of total immunity for high ranking officials. Last week, they oddly argued that non-grand jury statements somehow privileged. Waiting months and months for critical documents relating to obstruction of justice, secret OLC opinions, strike at core of Constitutional freedom. With less than 100 days remaining before election, this delay is unacceptable. AG has continued unfortunate tradition of refusing to appoint special prosecutor for evidence of misconduct that would require DOJ to bring in outside counsel. Read more →

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Caretaker for the Regime

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Carrie Johnson’s got an interestingly-timed profile of Michael Mukasey today. She accurately describes Mukasey as trying to, above all, just get to the end of the term with no big new scandals erupting.

From a book-lined den on the fifth floor of the Justice Department, the attorney general is watching the clock.

Tenure, after all, is short for Michael B. Mukasey, a retired federal judge who has just six more months to restore confidence in a department battered by allegations of improper political meddling before time runs out on the Bush administration.

Mukasey is one of several elder statesman who accepted the president’s request to rejoin government late in the second term, only to confront increasingly intense political battles and the detritus left by their predecessors. Yet, unlike Michael Hayden at the CIA and Robert M. Gates at the Defense Department, Mukasey has complicated his task with his steadfast refusal to reopen old wounds and purge the ranks of his roiled department.

Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) recently appraised Mukasey as "content to serve as a caretaker for the regime of excessive executive power established by the Bush administration."

As Democratic lawmakers and White House officials tangle over how actively investigators should explore the past, the attorney general generally has sided with the administration and declined to open criminal probes on matters that predate him.

In the past month, Mukasey has rejected requests to name a special prosecutor to examine whether Cabinet officials committed war crimes when they approved harsh interrogation tactics for terrorism suspects. He refused to take a second look at a public corruption case that 52 bipartisan state attorneys general say smacks of selective prosecution. He refrained from characterizing the department he joined last November as torn apart by partisan discord even though more than a dozen officials, including his forerunner, Alberto R. Gonzales, departed amid a politically charged firing scandal.

I say this is interestingly-timed because most of the stonewalling she lists are the same things Democratic Senate Judiciary Members listed a few weeks back when Mukasey testified before the Committee: torture, Siegelman, the politicization of DOJ (she missed John Yoo’s OLC opinions). But that was then, this is now, and in the interim two weeks, two conflicts have arisen, which both threaten to make Mukasey the point of controversy, rather than the guy trying to tamp it down.

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Did Bush Claim Executive Privilege for Rove Last Year?

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Another day, another post on Turdblossom–love ya, Karl!! "C’mon, walk out with me, walk out with me."

Today, I wanted to observe something about Rove’s failure to respond to a Congressional subpoena from last year–in that case, from the Senate Judiciary Committe; they were looking for testimony explicitly related to the USA purge.

As I sort of alluded yesterday (and MadDog had some interesting points to raise) it’s not entirely clear what basis Rove used to blow of the Senate last year. Here’s the timeline:

June 27, 2007: Paul Clement writes a memo supporting the invocation of executive privilege for Harriet Miers and Sara Taylor–but referring generically to "current or former White House officials"–regarding the hiring and firing of US Attorneys

July 10, 2007: Steven Bradbury writes a memo arguing Harriet Miers–and Presidential aides more generally–do not need to appear in response to Congressional subpoena

July 26, 2007: Senate Judiciary subpoenas Rove

August 1, 2007: Steven Bradbury writes a memo finding that, based on the earlier Miers memo, Rove "is immune from compelled congressional testimony about matters (such as the U.S. Attorney resignations) that arose during his tenure as an immediate presidential adviser and that relate to his official duties in that capacity"

August 2, 2007: Deadline on Rove’s subpoena

August 13, 2007: Rove’s "resignation"

August 27, 2007: Gonzales "resignation"

December 13, 2007: SJC votes to hold Rove (and Bolten) in contempt

As I pointed out yesterday, the June 27 Clement opinion did not name Rove (indeed, the opinion was written before he was subpoenaed), but it was written generally, so as to apply to the process of hiring and firing USAs generally, as well as applying to Miers and Bolten, who are named in the opinion. In his letter to Rove, Leahy mentions Bush’s "blanket claim of executive privilege," suggesting he understood the Clement memo and the executive privilege claims made subsequent to that claim to apply to everyone (recall that Sara Taylor and Scott Jennings were also subpoenaed to appear during this period and both invoked privilege).

Thus, the only documents that actually have Rove’s name on them are the July 10 claim of absolute immunity and the August 1 application of that to Rove. Again, as I pointed out yesterday, neither of these documents use the phrase "executive privilege."

Everything points to last year’s non-appearance, unlike Thursday’s, to have included a Bush executive privilege claim, though. Read more →

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DOJ Apparently Doesn’t Know Whether It Told Fielding that Rove’s “Official Duties” Include Witch Hunts

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That’s not exactly correct. Apparently they’re still thinking about whether or not they told Fred Fielding that Rove’s "official duties" include obstruction of justice and channeling oppo research from Alabama Republicans to the DOJ. I called DOJ at the following times today:

8:30

12:30

3:00

4:45

Each time asking them whether Fred Fielding’s claim that,

We have been further advised that because Mr. Rove was an immediate presidential adviser and because the Committee seeks to question him regarding matters that arose during his tenure and relate to his official duties in that capacity, Mr. Rove is not required to appear in response to the Committee’s subpoena. Accordingly, the President has directed him not to do so.

…Means that DOJ told the White House that the subpoena requiring Rove to testify about his actions in the Siegelman prosecution "relate[d] to his official duties" in his capacity as Presidential Advisor.

Did DOJ, I asked, tell the White House they believed Karl Rove’s alleged actions in the Siegelman prosecution were part of his "official duties" as Senior Advisor to the President? Because that is the implication of Fielding’s representation to the House Judiciary Committee. If the matters the Committee seeks to question Rove about–the Siegelman prosecution, primarily–fall within his "official duties," then–at least according to an opinion from Steven Bradbury never validated by any court–Rove may choose not to appear in response to the subpoena. And Fielding strongly implies that DOJ has advised the White House as much–though to support that claim, he only provides documentation from a different subpoena seeking testimony about the hiring and firing of US Attorneys. I wanted to know–was Fred Fielding making that representation to Congress based on an eleven-month old memo dealing with a different subpoena entirely, or was the White House really advised–as Fielding asserts–that the matters the Committee subpoenaed Rove to testify about this time fall under his "official duties"?

Easy enough to figure that out, I thought! I’ll call DOJ and see if they have any record of advising the White House that Karl Rove’s alleged actions in the Siegelman prosecution pertained to his "official duties" while he was at the White House. It’s an easy, yes or no question. I’m sure they’ll be able to answer that question right away, I thought.

So I called. And I called. And I called. And I called.

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