On Gate-Keepers and Pragmatists

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At the beginning of Obama’s term, when he talked about governing as a pragmatist, I perhaps foolishly believed he meant not pragmatism as DC understands it–as a principle-less squishy middle–but as the Pragmatist school of philosophers would mean it–as someone fundamentally open to and respectful of the ideas and viewpoints of all. Mind you, it was clear that his top advisors–especially David Axelrod–used the word pragmatist in the tired old DC way. But out of whatever idealism or naivete, I believed a smart guy from Hyde Park like Obama, who fancied himself an education reformer, couldn’t help but to have internalized the tradition of Dewey.

Thus far in Obama’s term, it hasn’t worked out that way.

That’s because, regardless of what Obama believes or has internalized, Big-P Pragmatism requires a certain kind of process–an openness to multiple viewpoints–and such process has not existed because of the gate-keepers at Obama’s White House thus far.

Now, to Obama’s credit, every single account of Obama’s decision-making includes some description of what a good listener he is. There’s always the scene where Obama listens intently to the disparate viewpoints on a subject, makes those people believe he has heard them with respect, and then makes his decision.

There are the multiple stories that relate events that take place before such sessions, wherein someone–most often Larry Summars but also Rahm–instructs a person in no uncertain terms that they will not be able to present their viewpoint to the President. There are even stories about minor progressive successes–such as Elizabeth Warren getting Obama’s support for the Consumer Finance Protection Board–that include a person finding a clever way around Summers or Rahm.

Now there’s always the very real possibility that for all that Obama fancies himself a Pragmatist, his unacknowledged very real ideological stances won the day. It may well be that Obama will never succeed in behaving as a Pragmatist because he’s just a lot more ideologically centrist than he thinks he is.

But a significant part of the problem is that for most of his term (I suspect, but don’t know, that Pete Rouse was much better on this point), he has had gate-keepers who either are fundamentally ideological beings (Summers) or are the squishy DC kind of pragmatist (Rahm), who prevented him from pursuing a process that allows real pragmatism.

Which brings us to Bill Daley.

I oppose Bill Daley because he has been, ideologically, on the wrong side of just about every issue. I oppose him because the last thing Obama needs is another bankster in the White House. I oppose him because the optics are horrible. I oppose him because when the next JPMorgan scandal hits–there are a number brewing–it will taint the White House by association.

But given my understanding of Obama’s failed pragmatism, I do take Howard Dean’s comments on Daley seriously.

The core issue is the contempt that not just the progressives were treated by–a lot of people were treated by–a bunch of senior advisors around the President who’ve been here for 20 years and thought they knew everything and we knew nothing.

[snip]

It was more than just Gibbs or Rahm, it was the whole mindset that was going on there. That will change dramatically especially if Bill Daley comes in, who I don’t agree with a lot of stuff politically but I do think a) he’s a grown-up and b) he gets that you don’t treat people like you know everything and they don’t.

Now, Dean is a pragmatist (though with none of the intellectual conceit about being one that Obama has). And so while I disagree with Dean’s characterization that Daley qualifies as someone from outside of Washington, I am very struck by Dean’s description of contempt being the key issue here.

The Chief of Staff’s job is to serve as a gate-keeper. Any Chief of Staff (or Economic Advisor in Summers’ case or Vice President in Cheney’s) can use that position to ensure that only their ideologically-favored choices are presented to the President. Or he (always he, it seems) can make an effort to serve the President’s claim to real pragmatism.

I’m not all that optimistic about Daley. All the myth-making about Obama’s bad relationship with the business community and the seeming certainty that hiring a bankster like Daley will fix that suggests that the whole point of this is about even further narrowing the ideological gate through which ideas and people get presented to the President.

But it is true that Obama’s real skill at listening isn’t worth a damn thing if Rahm or Summers are guarding his door. Let’s hope Daley will change that.

Robert Gibbs to Leave White House, Will Join “Professional Left”

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Robert Gibbs has made it official: he’s leaving the White House. (Applause!!!)

Robert Gibbs, the White House press secretary and close confidante to President Obama, said Wednesday that he will step down and become an outside political adviser to the president and his re-election campaign.

[snip]

Mr. Gibbs will remain part of the president’s inner circle of political advisers, along with David Axelrod, a senior adviser and Jim Messina, a deputy chief of staff, who also are leaving the White House to focus on the president’s re-election effort. Mr. Gibbs will defend Mr. Obama on television – and will expand his presence on Twitter and other Internet platforms – as well as beginning to define the field of 2012 Republican presidential candidates.

“Stepping back will take some adjusting,” Mr. Gibbs said in an interview Wednesday morning. “But at the same time, I have a feeling that I will keep myself quite busy, not just with speaking, but continuing to help the president.”

He said he has no intention of establishing a political consulting or lobbying business, but he intends to work from the same downtown Washington office where David Plouffe has spent the last two years. Mr. Plouffe, who was Mr. Obama’s campaign manager, will move to the White House and work as a senior adviser to the president.

Mr. Gibbs, who has worked in political campaigns, on Capitol Hill or at the White House for his entire career, said he also plans to try out the speaking circuit this year. [my emphasis]

Back when Gibbs was attacking the Professional Left, he made a distinction between the Progressives outside of DC and those inside DC squawking on the cable programs.

But if Gibbs is going to stay in DC, hanging out on Twitter, and appearing on the speaking circuit, doesn’t that make him a card-carrying member of the Professional Left?

Except the bit about him being so conservative, of course.

9th Circuit Punts On Perry Prop 8; Certifies Standing To California

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Liberty & Justice by Mirko Ilic

We have unexpectedly quick news out of the 9th Circuit Court of Appeals on the Perry v. Schwarzenegger Proposition 8 marriage equality appeal. As you will recall, the case is in the 9th on appeal from the three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The current appeal had oral argument less than a month ago, on Monday December 6th.

Now we have the surprisingly fast first decision, if you can call it a “decision”. It is really a disguised punt. The main opinion is in docket No. 10-16696, where the effective docket order reads:

Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text).

….

The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED.

Now, as you will also recall, there were two cause numbers consolidated for oral argument and that, really, comprise the same effective case. In the second one, Docket No. 10-16751, the part of the action initiated by Imperial County attempting to intervene and provide governmental cover for standing on appeal, the effective corollary docket order reads:

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT.

In the second cause number, 10-16751, the court issued a 21 page per curiam (by the whole panel collectively) opinion addressing the Imperial county attempt at intervention. the court held:

None of the Imperial County movants has demonstrated a “significant protectable interest” at stake in this action, as it was brought by Plaintiffs, and we affirm on that basis alone.

The court effectively laughed at the attempt to use Deputy County clerk Isabel Vargas as a mule for intervention, wondering why the hell a minion would be used instead of, you know, the actual County Clerk. A real valid question, and the court found no good answer. The court similarly found that the Imperial County Board of Supervisors was not a proper vehicle, stating “…the Board plays no role with regard to marriage, which is “a matter of ‘statewide concern’ rather than a ‘municipal affair'”. The court rounded out the fisking as follows:

Moreover, the duties of the Supervisors themselves are not directly affected by this litigation, so they lack a significant protectable interest.

Second, the County itself has failed to demonstrate any interest of its own, apart from those claimed by Vargas or the Board of Supervisors.

So, in a nutshell, the argument by Imperial County that they were entitled to intervene as a matter of right was denied in full. Oh, and the 9th also found that Vaughn Walker was correct in finding no necessary basis for permissive intervention by Imperial County as well, and affirmed that denial. So Imperial County, unless they get some appellate relief, which is unlikely, is toast.

And, so that completes the fun today, right? Oh no! We have more! The estimable Judge Stephen Reinhardt lodged a concurring opinion that is a little, shall we say, more interesting. I will excerpt a few key quotes, but this one is only ten pages long and is well worth the read. I think you will quickly understand why I have said Reinhardt is such a wonderful treasure as a judge.

Today’s two orders involve a procedural question known as “standing.” The public may wonder why that issue is of such great importance, and what the significance of our standing decisions is. For that reason, while I agree entirely with our two dispositions, both of which are filed in the names of all three of us who are considering the appeals and both of which represent our unanimous views, I believe it desirable to set forth a few explanatory remarks of my own.

The standing problem arises out of a trend in our judicial system over the past few decades. It is a trend that emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves.

Reinhardt’s disdain for the avoidance of meritorious claims on technical standing issues just drips off the pages. Indeed he cites his own previous tomes on just this subject in a prominent footnote (See footnote 3 for the cites). But as to the instant case, Reinhardt acidly remarks:

All I can say now is that the issues concerning standing were wholly avoidable in this case.

He goes on to take a crystal clear shot directly at the broadside of Ted Olson and David Boies for filing their action, and obtaining their relief, against one two of the 58 counties in California:

Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.

Ouch. Reinhardt then goes on to blast Schwarzenegger and Jerry Brown, the Governor and Attorney General at the time respectively, for not giving the intervenors appellate cover (as I have consistently carped about as well) and Imperial County for the incredibly lame effort of trying to appear through a common deputy clerk. Reinhardt is spot on in each of these regards.

The last paragraph from Steve Reinhardt’s concurring opinion summarizes where the case stands, and is likely to do so better than I could, so I am going to let him speak:

None of this means that ultimately there is no standing in this case. Because of a United States Supreme Court ruling regarding the availability of standing to proponents of initiatives, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), we have certified to the Supreme Court of California the question of an initiative proponent’s authority and interests under California law. Although that matter must be decided by the Supreme Court of California, Proponents advance a strong argument on this point. Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court – ours, the Supreme Court, or both – and may apply to California as a whole, instead of by being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state. In the meantime, while we await further word from the Supreme Court of California, I hope that the American public will have a better understanding of where we stand today in this case, if not why.

The one last parting thought I have is that this California Supreme Court certification process is likely to take some time. Six months would be a miracle, a year is far more likely. First off, the California Supreme Court does not have to accept consideration, and there will be a briefing process on whether they even should do that. Assuming they then accept consideration on the merits, and I do think it extremely likely they will, there will then be a full briefing schedule on the merits before any decision.

It would have been expected that the Court under Chief Justice Ron George (very nice article here) would take this up, but he just left and the new Chief Justice, Tani Cantil-Sakauye, literally was just sworn in yesterday. She is known as being cautious and moderately conservative, but fair and open minded. Which, really, is probably a fair description of Ron George, so there may not be that much of a change at the top of the California Supremes.

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

UPDATE: Here is Judge Reinhardt’s collateral final order on the earlier motion to disqualify him that he previously denied long before oral argument.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Obama/Bush DOJ Update to OLC Christmas Carol

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Earlier I linked to and posted the oh so hilarious (if you appreciate the humor in the supposed creme de la creme of government attorneys laughing about breaking the law and violating citizens’ rights) Christmas carol drafted by the DOJ’s Office of Legal Counsel (OLC) all the way back during the Carter Administration. It seems to be making a comeback through a post at Volokh Conspiracy.

Well, through what can only be described as a Christmas miracle, our very own Mary has “discovered” the new version, as updated by the Obama/Bush OLC:

You’d better watch out,
look up in the sky,
You’d better not doubt;
Better say your good bye.
Santa Claus is droning
Your home.

He’s paying out bounties,
For kids he pays five,
He’s razoring genitals
And burying alive.
Santa Claus is beating
the prone

He hears you in your cages,
Videotapes your screams and moans,
After sharing with Senate pages,
Then he’ll freeze you all alone

So–you mustn’t believe
In Justice tonight.
On Christmas Eve
She’s lost more than her sight
The OLC will help with hiding
Your bones.

As Mary noted, “Those jokers at OLC. At least they enjoy their work”. Indeed. With “wise men” like John Yoo, Jay Bybee and Steve Bradbury, what could go wrong?

State Secrets Santa and SCOTUS

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Amid all the holiday hustle, bustle and, on at least some of the lame duck session accomplishments, success of Barack Obama, it is good to keep in mind what a lump of coal his administration has been on civil liberties and privacy. Nothing has been more emblematic of the cancer they have been in this regard than the posture they have relentlessly fought for on unfettered and unilateral ability of the Executive Branch to impose the state secrets doctrine to shield the government from litigation, even when it is concealing blatant and wholesale government criminality.

Just three days ago, the final judgment in al-Haramain was entered by Judge Vaughn Walker, and it was a good one. But, lest it be forgotten, the government basically refused to defend in that case, belligerently asserting that they were entitled to dismissal on the states secrets doctrine. That will be the government’s hard nosed basis for appeal to the 9th Circuit and, eventually, presumably the Supreme Court. Recently in the 9th Circuit the horrid en banc decision in Mohamed v. Jeppesen was entered granting nearly unfettered state secrets powers to the Executive and which the ACLU filed a petition for certiorari earlier this month. Both of these cases will likely hit the Supreme Court in 2011, with Jeppesen obviously further ahead in the process.

So, 2011 is going to be a busy and critical year for state secrets litigation in the Supreme Court, but those are just the two cases you likely know about; there is another case, actually two related cases combined, already racked and ready in the queue when the Supremes return to work in January. The cases are General Dynamics v. US and Boeing Company v. US, and they are not classic state secrets cases, but may well be used as a back door by the government to advance their unrestrained use of the Read more →

Today’s Lesson from the White House: Take Hostages

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As we celebrate President Obama signing into law the repeal of Don’t Ask Don’t Tell, I’d like to congratulate the activists who made it happen. This is the progressive high point of Obama’s presidency so far, and it came because of the hard work of a lot of people who relentlessly fought to win civil rights.

May this civil rights victory lead to full equality for gay men and women.

But I wanted to also note what this moment says about Obama’s system of governance: that the only thing he responds to is hostage-taking.

FDL has written a lot about Obama’s serial capitulation to those — whether the Republican caucus or people like Joe Lieberman and Max Baucus — who hold legislation hostage.

But this victory, the biggest progressive victory under Obama, is largely due to the fact that a number of men and women chained themselves — took themselves hostages, effectively — to the gates of the White House.

And while I doubt the optics of environmentalists or housing activists chaining themselves to the White House (with their consequent arrest) will be so toxic to the White House, the lesson does seem to be that the only thing Obama (who bills himself a pragmatist and loves to claim he listens to all sides) listens to is hostage-taking.

Vaughn Walker Issues Final al-Haramain Opinion on Damages and Attorney Fees

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As you may recall, Chief Judge Vaughn Walker of the Northern District of California (NDCA), who has handled two of the most critical and transcendent litigations of the last decade, Perry v. Schwarzenegger and al-Haramain v. Bush/Obama, is retiring. Today, he has issued his last big opinion left on his table pre-retirement, the ruling on damages to be awarded Plaintiff in al-Haramain, assignment of attorney fees to Plaintiffs, and whether or not to impose punitive damages against the government for their offending illegal conduct.

The government, in its brief objecting to the Plaintiffs’ proposed form of judgment, basically poked the court in the eye with a stick by continuing their obstreperous refusal to accept the court’s jurisdiction over their assertion of state secrets, continued to argue there were no facts competently of record despite Walker’s crystal clear determinations to the contrary, and denied that Plaintiffs were entitled to attorney fees or punitive damages. They just say NO. The Plaintiffs went on to properly lodge their calculation of damages, detailed request for attorney fees and affidavit in support thereof. Plaintiffs al-Haramain, separately, filed a very compelling brief on why the court should award them punitive damages against the government. The government, of course, objected some more.

As lead Plaintiffs counsel Jon Eisenberg stated in the punitive damages brief:

Defendants abused the extraordinary power of the Executive Branch by committing unlawful electronic surveillance of the plaintiffs with full knowledge of, and in flagrant disregard for, determinations by top officials in the Department of Justice (DOJ) that the surveillance lacked constitutional or other legal support. Defendants sought to put themselves above the law, in the manner of a monarch. That is a profound abuse of America’s trust. It calls for strong medicine.

And thus it all comes down to today’s decision by Judge Walker, and here is the full text of his 47 page order.

In short, Walker has ordered that Plaintiffs Wendell Belew and Asim Ghafoor (a-Haramain’s attorneys wrongfully surveilled) receive $20,400.00 each in liquidated damages. Walker denied damages to al-Haramain itself. In regards to punitive damages, Judge Walker has denied in full Plaintiffs’ request. As to attorney fees, the court grants the motion as to Plaintiffs Ghafoor and Belew only (again, not as to al-Haramain itself, and awards attorney fees and expenses in the amount of $2,537,399.45.

There is a lot to chew on in this order, and both Marcy and I will be coming back to do just that after chewing and digesting it further. But so far, it is clear that the court sided completely with the plaintiffs on compensatory/liquidated damages, giving Belew and Ghafoor every penny they asked for and finding the government’s opposition meritless. This passage by the court is telling: Read more →

Obama Formalizes His Indefinite Detention Black Hole

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Hot on the heels of the big DADT victory in Congress, which pretty much got passed in spite of Obama instead of because of him, comes this giant lump of coal for the Christmas stockings all those who believe in human rights, due process, the Constitution, and moral and legal obligations under international treaties and norms. From the Washington Post:

The Obama administration is preparing an executive order that would formalize indefinite detention without trial for some detainees at the U.S. military prison at Guantanamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration, U.S. officials said.

The administration has long signaled that the use of prolonged detention, preferably at a facility in the United States, was one element of its plan to close Guantanamo. An interagency task force found that 48 of the 174 detainees remaining at the facility would have to be held in what the administration calls prolonged detention.

This is certainly not shocking, as the Obama Administration long ago indicated there were at least 48 or so detainees they felt too dangerous to release and their cases unable to be tried in any forum, Article III or military commission. This is, of course, because the evidence they have on said cases is so tainted by torture, misconduct and lack of veracity that it is simply not amenable to any legal process. Even one of their kangaroo courts would castigate the evidence and the US government proffering it. That is what happens when a country becomes that which it once stood against.

Pro Publica fills in some of the details:

But the order establishes indefinite detention as a long-term Obama administration policy and makes clear that the White House alone will manage a review process for those it chooses to hold without charge or trial.

Nearly two years after Obama’s pledge to close the prison at Guantanamo, more inmates there are formally facing the prospect of lifelong detention and fewer are facing charges than the day Obama was elected.

That is in part because Congress has made it difficult to move detainees to the United States for trial. But it also stems from the president’s embrace of indefinite detention and his assertion that the congressional authorization for military force, passed after the 2001 terrorist attacks, allows for such detention.
….
“It’s been clear for a while that the government would need to put in place some sort of periodic review, and that it would want it to improve on the annual review procedures used during the previous administration,” said Matthew Waxman, a professor at Columbia Law School who worked on detainee issues during the Bush administration.

Unfortunately, it does not appear as if this ballyhooed “review” amounts to anthing meaningful to the detainee. Although the detainee would have access to an attorney, it would obviously not be unfettered access, completely on the government’s self serving terms, there would be only limited access to evidence, and, most critically, the “review” would only weigh the necessity of the detention, not its lawfulness. In short, it is a joke.

So, the next time you hear Mr. Obama, or some spokesperson for his Administrations decrying the horrible Congress for placing a provision in legislation prohibiting the transfer of detainees to the US for civilian trial, keep in mind how quickly Mr. Obama rose up to take advantage of it – before the measure was even signed – and also keep in mind how Obama stood mute when he could have threatened a veto of such an inappropriate invasion of Executive Branch power by the Legislative Branch. Keep in mind that this is likely exactly what the Obama Administration wants to cover feckless and cowardly indecision and so they do not have to make the difficult political choice of actually protecting the Constitution and due process of law.

The Misplaced US Determination To Indict Assange

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I have stayed out of the WikiLeaks scrum to date, mainly because the relatively few cables published to date (only 1,269 of the more than 250,000 cables they possess have been released so far) did not provide that much new on the subjects I normally write on as opposed to just confirming or further supporting previous knowledge and/or suppositions. This is certainly not to say they have not been interesting reading or useful to many others, the WikiLeaks material has been all that.

But now comes the bellicose fixation of the United States government on criminally prosecuting WikiLeak’s editor-in-chief Julian Assange. What started out as the usual idiotic yammering of Rep. Peter King and Sen. Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange. As the following discussion will demonstrate, it will require dicey and novel extrapolation of legal theories and statutes to even charge Assange, much less actually convict him.

The interesting thing is this type of prosecution flies directly in the face of the written charging guidelines of the DOJ which prescribe a prosecution should be brought only where the admissible facts and evidence are “sufficient to obtain and sustain a conviction”. As we have seen in so many instances over the last few years, the DOJ uses this requirement to decline prosecution on a whole host of matters they simply do not want to touch, even where the evidence for conviction of serious crimes is crystal clear and unequivocal. Take for instance the case on the blatant destruction of the abu-Zubaydah and al-Nashiri torture tapes for instance (see here and here), where the DOJ and John Durham used just this basis to decline prosecution because the DOJ just does not, you know, go out on limbs.

So, why would the Obama Administration be so aggressive against Assange when doing so flies in the face of their written guidelines and standard glib protocol? Is it really all about prosecuting Assange? That would be hard to believe; more likely it is not just to monkeywrench Assange and WikiLeaks, but to send a hard and clear prior restraint message to the American press. This is almost surely confirmed by the rhetoric of Joe Lieberman, who is rarely more than a short ride away from his disciple and friend Barack Obama on such matters, and who is making noises about also prosecuting the New York Times.

Never before has the Espionage Act, nor other provisions of the criminal code, been applied to First Amendment protected American press in the manner being blithely tossed around by US officials in the WikiLeak wake. Avoidance of First Amendment press and publication has been not just the general position of the DOJ historically, it has been borne out by significant caselaw over the years. If you need a primer on the hands off attitude that has been the hallmark of treatment of press entities, you need look no further than New York Times v. United States, aka the “Pentagon Papers Case”. In NYT v. US, the government could not even use the Espionage Act in a civil context against the press, much less a criminal one as they propose for Assange, without being forcefully shot down. Daniel Ellsberg is right when he says that “Every attack now made on WikiLeaks and Julian Assange was made against me”.

The Barack Obama Administration, who rode into office on a platform and promise of less secrecy, more transparency and a respect for Constitutional principles, has proved itself time and again to be anything but what it advertised. And to the uninformed populous as a whole, ill served by the American press that is being pinched in this process, Julian Assange presents an attractive vehicle for this prior restraint demagoguery by the US government. The public, especially without strong pushback and fight from the press, will surely bite off on this craven scheme. Read more →

ACLU Appeals 9th Circuit Jeppesen Decision to SCOTUS

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When the original three member panel opinion in Mohamed v. Jeppesen Dataplan, Inc. was issued by the 9th Circuit in late April of 2009, it was a breath of fresh air. Judge Michael Hawkins authored a thoughtful, well reasoned and heartening opinion placing appropriate curbs on the ability of the Executive Branch to silence wronged plaintiffs via the interjection of state secrets. Civil liberties scholars stood up and cheered. Unfortunately, it did not last and thanks to a very unfortunate panel assignment for the en banc review in the 9th, Hawkins was reversed and an erratic and contorted decision put in its stead by Judge Raymond Fisher handing the President and Executive Branch carte blanche to assert state secrets at will, effectively even to hide government illegality and misconduct. Civil liberties adherents jeered.

Now the ACLU, who represents the plaintiffs in Mohamed v. Jeppesen, has appealed from the 9th Circuit en banc decision by petitioning the Supreme Court for certiorari. The ACLU’s full petition is here. The ACLU press release reads, in pertinent part:

The American Civil Liberties Union late last night asked the U.S. Supreme Court to review a lower court decision dismissing its lawsuit against a Boeing subsidiary, Jeppesen DataPlan, Inc., for the company’s role in the Bush administration’s extraordinary rendition program. The ACLU and the ACLU of Northern California filed the lawsuit in May 2007 on behalf of five men who were kidnapped by the CIA, forcibly disappeared to U.S.-run prisons overseas and tortured. Although the federal government was not initially named in the lawsuit, it intervened for the sole purpose of arguing that the case should be dismissed based on the “state secrets” privilege.

“To date, not a single victim of the Bush administration’s torture program has had his day in a U.S. court,” said Ben Wizner, Litigation Director of the ACLU National Security Project. “The government has misused the ‘state secrets’ privilege to deny justice to torture victims and to shield their torturers from liability. The Supreme Court should reaffirm our nation’s historic commitment to human rights and the rule of law by allowing this case to go forward.”

In April 2009, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the government could not invoke the state secrets privilege over the Read more →