Here Comes The Judge; Gitmo Military Commissions Redux

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It has now been a little over a month since we learned just how far over the due process rule of law cliff the Obama Administration has gone with regard to politicization of the DOJ prosecutorial function in relation to terrorist trials. That striking realization came courtesy of Jane Mayer’s and Josh Gerstein’s respective reports on the Rahm/Obama negotiations with Lindsay Graham to go strictly with military commissions and Eric Holder’s seeming resignation that such may indeed be the case.

There are two new developments that would seem to indicate the Obama Administration is indeed moving toward capitulation to the neocon howlers on the issue of military tribunals over civilian trials. First, from Main Justice comes word that the Graham/Emanuel deal is looking like it is on and Graham has finalized his proposal on terrorist detentions and trials band and he and the administration are circulating it on the hill:

Graham’s proposal comes after weeks of discussion between the South Carolina senator and White House Chief of Staff Rahm Emanuel. In January, Emanuel and Graham began talks on a deal: Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, terrorist attacks, would be tried in a military tribunal, in exchange for Graham’s support for a new U.S. detention center to replace Guantanamo Bay. (Graham has warned that his support for closing Gitmo would be affected by a civilian trial for KSM, which he adamantly opposes.) According to an unnamed administration official cited by The Post, those discussions have broadened and Graham now hopes to reach a “grand bargain” that would resolve many outstanding questions concerning terrorist detention.

The White House opposes some of the ideas in Graham’s proposal, such as a separate national security court to try alleged terrorist detainees, according to The Post. But other provisions — including one that would create a standard process for dealing with habeas petitions, where alleged terrorists challenge their status as “unlawful enemy combatants” in U.S. courts — are likely to find support, The Post said.

It is all disquieting enough, but the last part signals a abject willingness by the Obama Administration to have Congress restrict habeas access to courts; I guess they are noticing that real courts keep thinking there is no justification for detention of the people they have salted away for years at Gitmo.

The second piece of news comes vis Mike Isikoff and the Declassified Blog:

The White House may yet be several weeks away from announcing whether it plans to overrule Attorney General Eric Holder and order that the 9/11 conspirators be tried before military commissions rather than in civilian courts. But it’s not hard to figure out which way the wind is blowing.

The Pentagon is set to announce that Secretary of Defense Bob Gates has appointed a new chief judicial officer for the Office of Military Commissions, according to three Defense Department sources familiar with the decision. The appointment, which could come as early as Wednesday, paves the way for the Pentagon to begin convening a series of high-profile terror trials before military commissions at the U.S. detention facility at Guantanamo Bay–the very same Read more →

Bob Lutz Hangs Up On Ed Whitacre’s GM

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The inevitable has been announced; Bob Lutz is leaving Ed Whitacre’s new General Motors. From the New York Times:

Vice Chairman Bob Lutz will retire from the automaker effective May 1, people briefed on the plans said on Wednesday.

Lutz, 78, had been serving as a senior adviser to GM Chairman and Chief Executive Ed Whitacre after shelving retirement plans to take charge of the automaker’s marketing after it emerged from bankruptcy in July 2009.
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The announcement comes a day after GM shook up its sales and marketing operations in its home market for the third time in five months.

Lutz was charged with overhauling GM’s marketing efforts under former CEO Fritz Henderson, but he appeared to have been sidelined by Whitacre, a former AT&T executive brought in by the Obama administration.

In late February, Whitacre named Stephen Girsky, a former investment banker, as special adviser and vice chairman in charge of corporate strategy, a move that raised questions about the tenure and role of Lutz.

And it really was inevitable. Last December when Fritz Henderson was unceremoniously dumped in a midnight putsch by Ed Whitacre, the former corporate phone boy from AT&T, we had some things to say here. Marcy, noting Whitacre’s professed desire to ram products to market quicker – to do everything quicker – observed:

Now maybe it would be possible to bring out new products more quickly. Maybe there is merit to disrupting the very complex model year and product cycle schedules that every car company relies on to manage new product introductions.

But I worry that this push to introduce products more quickly will come at a price–the price of doing it right, both from an engineering perspective (you don’t want the Cruze to come out with all sorts of recalls, after all) and from a marketing perspective (if you introduce a product but don’t have the marketing budget to support it, it’s not going to do much good).

And I commented that the Whitacre putsch had other consequences too:

There is one other consideration. With Fritz gone, the only marketable face GM has left to the actual auto people is Bob Lutz, and he will bolt in a heartbeat if he thinks the wrong car decisions are being made. Lutz is very comfortable with the big money wheeler dealers, but he is, first and foremost, a car guy all the way. And he does not need the money or grief. If they were to lose Lutz in any short order in addition to Henderson, they will have a potential real mess.

Well it turns out the thoughts may have been prescient. And make no mistake, Lutz is in fine health and as active and ornery as ever; he is leaving because Read more →

More Obama Administration Civil Liberties Neglect

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In New York, the cops are getting frisky with minorities (suspect classes under the equal protection clause):

From 2004 through 2009, in a policy that has gotten completely out of control, New York City police officers stopped people on the street and checked them out nearly three million times, frisking and otherwise humiliating many of them.

Upward of 90 percent of the people stopped are completely innocent of any wrongdoing. And yet the New York Police Department is compounding this intolerable indignity by compiling an enormous and permanent computerized database of these encounters between innocent New Yorkers and the police.

Not only are most of the people innocent, but a vast majority are either black or Hispanic. There is no defense for this policy. It’s a gruesome, racist practice that should offend all New Yorkers, and it should cease.

Police Department statistics show that 2,798,461 stops were made in that six-year period. In 2,467,150 of those instances, the people stopped had done nothing wrong. That’s 88.2 percent of all stops over six years. Black people were stopped during that period a staggering 1,444,559 times. Hispanics accounted for 843,817 of the stops and whites 287,218.
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“They have been collecting the names and all sorts of other information about everybody who is stopped and frisked on the streets,” said Donna Lieberman, the executive director of the New York Civil Liberties Union, which is fighting the department’s stop-and-frisk policy and its compiling of data on people who are innocent. “This is a massive database of innocent, overwhelmingly black and Latino people,” she said.

Bob Herbert is right, it is “a gruesome, racist practice”. Thank god we have a Constitutional law scholar President, expert in civil rights and dedicated to protecting the liberties afforded by them. This is a perfect situation for the President’s Privacy and Civil Liberties Oversight Board!

Oh, wait……..

When President Bush two years ago failed to name members to a federal board to monitor the protection of civil liberties, Democrats and activist groups were duly outraged, seeing it as one more example of his administration’s indifference to the subject.

But more than a year into a new presidency, the Privacy and Civil Liberties Oversight Board—created by Congress in 2007—remains as much a cipher under Barack Obama as it was under George W. Bush. The White House has yet to Read more →

Nixon The Obama Campaign Goes to China

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One of the most telling anecdotes in this must-read Edward Luce skewer of the way a small circle of Obama advisors (Rahm, David Axelrod, Valerie Jarrett, and Robert Gibbs) dominates his Administration is this story about his trip to China.

On Mr Obama’s November trip to China, members of the cabinet such as the Nobel prizewinning Stephen Chu, energy secretary, were left cooling their heels while Mr Gibbs, Mr Axelrod and Ms Jarrett were constantly at the president’s side.

The White House complained bitterly about what it saw as unfairly negative media coverage of a trip dubbed Mr Obama’s “G2” visit to China. But, as journalists were keenly aware, none of Mr Obama’s inner circle had any background in China. “We were about 40 vans down in the motorcade and got barely any time with the president,” says a senior official with extensive knowledge of the region. “It was like the Obama campaign was visiting China.”

Coming as it does in an article that compares Obama’s Administration to Nixon’s…

And barring Richard Nixon’s White House, few can think of an administration that has been so dominated by such a small inner circle.

The story really highlights the dangers of such a close-knit group dominating Administration policy: on a visit to China, our relationship with which is one of the most challenging policy issues we face, we’ve got tourists dominating the policy, not experts.

As much as I’m thrilled the story repeats calls to replace Rahm, I think the real story is the suggestion that Obama’s cabinet members are growing tired of being treated as “minions” by Rahm. The story names four by name: Kathleen Sebelius, Ken Salazar, Janet Napolitano, and (above) Steven Chu.

Perhaps the biggest losers are the cabinet members. Kathleen Sebelius, Mr Obama’s health secretary and formerly governor of Kansas, almost never appears on television and has been largely excluded both from devising and selling the healthcare bill. Others such as Ken Salazar, the interior secretary who is a former senator for Colorado, and Janet Napolitano, head of the Department for Homeland Security and former governor of Arizona, have virtually disappeared from view.

Administration insiders say the famously irascible Mr Emanuel treats cabinet principals like minions. “I am not sure the president realises how much he is humiliating some of the big figures he spent so much trouble recruiting into his cabinet,” says the head of a presidential advisory board who visits the Oval Office frequently.

With the suggestion that Sebelius, for example, has been “excluded both from devising and selling the healthcare bill,” are we to understand that all of these cabinet officials are not intimately involved in setting policy? We’ve got Steven Chu, one of the best cabinet picks in the Administration, cooling his heels rather than the climate? And what are Sebelius, Salazar, and Napolitano advising that is not being heard? Is Sebelius growing tired of Rahm fucking up what should be her portfolio (after which, as happened last week, she has to go to Congress and get grilled on it)?

And then, of course, there’s an even more notable cabinet member that goes unmentioned: Hillary Clinton. She showed up prominently in the pictures from China, but she is not mentioned in this story as either one of those (like Joe Biden) who regularly gives Obama counsel but is not part of this inner circle, or one of those prominent cabinet members that Rahm treats like a minion. But the story does note how Arab-Israeli peace took a back seat to Rahm’s failed attempt to pass health care reform. Whether or not Hillary (or, more likely, her inner circle; John Podesta is one of the few named sources for it) is a source for this article, I can imagine how seeing a failed attempt to pass healthcare stall attempts to bring peace to Palestine would rankle Secretary Clinton.

So, yes, this is another story pointing to growing dissatisfaction with Rahm from allies both inside and outside the Administration. But note clearly, it appears to be very high level dissastisfaction.

Hopey Changey Bipartisany Bush!

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I’ve been puzzling all week since this happened last Saturday (January 30, from the pool report).

President Bush 41, with former Fla. Gov. Jeb Bush rolled up to the White House at 9:35 for a meeting with POTUS. At 10:09, the two emerged to fat, driving snow flakes. Responding to a called question, 41 said only, “Good meeting. Good meeting.”

But it does intrigue–nay, concern–me that Jeb! started preaching the gospel of bipartisanship shortly thereafter.

The capper came Thursday when, at the top of the 7 o’clock hour, right after Vice President Joe Biden, Bush made a rare network television appearance on NBC’s Today Show. The intensely private Bush’s interview with the overly familiar Matt Lauer rattled Florida political circles.

[snip]Bush’s comments about Crist’s support for President Barack Obama’s economic stimulus plan got the most attention, but his call for Democrats and Republicans to work together was the biggest clue to his national ambitions.

“I think that leaders on both sides of the aisle need to figure out where there is common ground and at least focus on that,” he said. “It’s one thing to give a good speech. The other thing is to invite people that don’t agree exactly with your point of view to build consensus.”

Obama Had 60 Votes For Dawn Johnsen's Confirmation Last Year; Johnsen Stalled Again This Year

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3855The Obama Administration’s confounding unwillingness and/or inability to move the nomination of Dawn Johnsen as head of OLC has manifested itself yet again. The renomination of Johnsen was set to be voted out of the Senate Judiciary Committee Thursday, but somehow they just “ran out of time” before they could get to it, even though they found time to muse about a couple of far less significant district court judges and other lesser nominees.* It is a continuing and puzzling pattern of delay and diversion that has kept Dawn Johnsen’s nomination in limbo for better than a year.

I previously wrote about the failure of the Obama Administration to support the Dawn Johnsen nomination, a far less than good faith effort that finally resulted in Johnsen’s nomination being killed by operation of Senate Rule XXXI when they adjourned on Christmas Eve, December 24, 2009. It turns out what I wrote has been borne out and, as lawyers are wont to say, proved up pretty well.

As I will detail below, there is now crystal clear evidence that Barack Obama and Harry Reid had the sixty (60) votes for cloture on the confirmation of Dawn Johnsen all along last year, at least subsequent to July 7, the day Senator Al Franken was sworn in, and despite that fact refused to call a vote and get Johnsen installed in her critical post at OLC. Here is what I wrote immediately following the Christmas Eve death of her nomination:

Moreover, the bleating by Harry Reid and the Obama Administration that it is all the fault of mean old Republican obstructionism simply does not hold water. The Democrats hold a 60 seat caucus block, sufficient to overcome Republican obstruction. Of those, the Main Justice article is quite clear there were only two Democratic problem children, former Republican Arlen Specter and the ever whiny Ben Nelson, who never passes up an opportunity to betray his party. That means there were potentially only 58 Democratic votes for Johnsen’s nomination. But Republican Richard Lugar firmly supported Dawn Johnsen, so that makes 59 votes, only one shy of confirmation.

In addition to Lugar, both Republican Senators from Maine, Susan Collins and Olympia Snowe, have refused to rule out voting for Johnsen and were being lobbied hard by extremely influential women’s groups and liberal constituents. Both Collins and Snowe have a history of agreeing, when pressured, to allow up or down votes on Presidential nominees, even from Democrats.

Barack Obama and Rahm Emanuel had 59 votes in favor of Dawn Johnsen’s nomination, a distinct possibility of picking up Collins, Snowe or both, and are more than aware Arlen Specter needs big help in his reelection campaign in Pennsylvania and that Ben Nelson can always be bought. And despite all of the above, the Obama White House did not ever request Harry Reid to call a vote. The only rational conclusion from this is the Obama White House did not want Dawn Johnsen, their own nominee, to be confirmed.

My calculations on the 60 votes being available were confirmed upon Obama re-nominating Johnsen when it was immediately announced to much ballyhoo that Arlen Specter would be the 60th vote for cloture on the re-nomination; albeit apparently only after Johnsen has been again dragged through the committee process and other vagaries of prolonged confirmation procedure. The TPM report of Specter’s intention to support Johnsen’s confirmation confirms exactly what I stated, Specter was the 60th vote (there were always 58 Dems plus Richard Lugar) and was there all along; all Obama and Harry Reid had to do was call the vote. Read more →

What Glenn Greenwald Said On American Terrorism Cowardice

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Just go read it. Because every word Glenn Greenwald wrote in his post today, entitled Nostalgia for Bush/Cheney Radicalism, is the gospel truth. It is rare that you will see a post here just pointing you somewhere else because the other source says it all. This is one of those times. Here is a taste:

How much clearer evidence can there be of how warped and extremist we’ve become on these matters? The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe. Merely advocating what Reagan explicitly adopted as his policy — “to use democracy’s most potent tool, the rule of law against” Terrorists — is now the exclusive province of civil liberties extremists. In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike. And the mere notion that we should prosecute torturers (as Reagan bound the U.S. to do) — or even hold them accountable in ways short of criminal proceedings — is now the hallmark of a Far Leftist Purist. That’s how far we’ve fallen, how extremist our political consensus has become.

Now go read the rest and weep for your country.

OPR Report Altered To Cover Bush DOJ Malfeasance

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dbamericasafeMike Isikoff and Dan Klaidman put up a post about an hour ago letting the first blood for the Obama Administration’s intentional tanking of the OPR (Office of Professional Responsibility) Report. In light of Obama’s focused determination to sweep the acts of the Bush Administration, no matter how malevolent, under the rug and “move forward” the report is not unexpected. However, digesting the first leak in what would appear to be a staged rollout is painful:

…an upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the “torture” memos of professional-misconduct allegations.

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

The news broken in the Newsweek Declassified post is huge, assuming it is accurate, and the sense is that it is. In spite of the weight of the report, the report tucks the substantive content behind the deceptively benign title “Holder Under Fire”. The subject matter is far too significant though for it to have been casually thrown out. Consider this description of the OPR finding on the nature and quality of the critical August 1, 2002 Torture Memo:

The report, which is still going through declassification, will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process, say two sources who have read the report but asked for anonymity to describe a sensitive document. Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

Hard to figure how this finding and conclusion could be determined by David Margolis to warrant the “softening” of the original finding of direct misconduct. Margolis is nearly 70 years old and has a long career at DOJ and is fairly well though of. Margolis was tasked by Jim Comey to shepherd Pat Fitzgerald’s Libby investigation. In short, the man has some bona fides.

Margolis is, however, also tied to the DOJ and its culture for over forty years, not to mention his service in upper management as Associate Attorney General during the Bush Administration when the overt acts of torture and justification by Margolis’ contemporaries and friends were committed. For one such filter to redraw the findings and conclusions of such a critical investigation in order to exculpate his colleagues is unimaginable.

One thing is for sure, with a leak like this being floated out on a late Friday night, the release of the full OPR Report, at least that which the Obama Administration will deem fit for the common public to see, is at hand. Mike Isikoff and Dan Klaidman have made sure the torturers and their enablers can have a comfortable weekend though. So we got that going for us.

Supreme Court Unleashes Corporate Campaign Cash In Citizen's United Decision

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images5thumbnail1.thumbnail11The stunning and decisive loss by Martha Coakley to Scott Brown in the Massachusetts Senate special election has already caused a tsunami of fear among Democrats, and corresponding joy among Republicans, heading toward next fall’s midterm elections. If you think this is cause for concern for Democrats looking forward to the 2010 midterm elections, picture the scene if the Republican party were also able to benefit from removal of restrictions on corporate and financial industry cash infused into their electoral coffers heading into the midterms and 2012 Presidential election.

As I wrote back last August, the Supreme Court took very unusual steps in a case by the name of Citizens United v. FEC to craft a case – originally argued on separate grounds – into a vehicle to make a Supreme Court declaration on the constitutionality of campaign finance restrictions and regulations. As Adam Cohen of the New York Times put it:

If the ban is struck down, corporations may soon be writing large checks to the same elected officials whom they are asking to give them bailouts or to remove health-and-safety regulations from their factories or to insert customized loopholes into the tax code.

Citizens United v. FEC was originally argued on March 24, 2009; but subsequently noticed for re-argument on the new grounds involving the opening of corporate campaign contributions on September 9, 2009. The general consensus among the cognoscenti is that the Justices were leaning heavily toward blowing up the regulations and restrictions on corporate campaign contributions. For a complete blow by blow procedural and substantive history leading up to the decision, see Lyle Denniston’s SCOTUSWiki on this case.

Well, the decision in Citizens United v. Federal Elections Commission is in and attached hereto. As you can see, it is a 5-4 split decision with Justice Kennedy writing the majority opinion. The decision below is reversed in part and affirmed in part, and the seminal case of Austin v, Michigan is hereby overruled as is that part of McConnell v. FEC which upheld the resitrictions on independent corporate expenditures. In dissent, and/or partial dissent is Justice Stevens, joined by Ginsburg, Sotomayor, and Breyer. Justice Thomas also filed an opinion concurring in part and dissenting in part.

Today’s decision in Citizens United v. FEC abolishes the previously settled distinction between corporate and individual expenditures in American elections and would appear to apply to state and local elections as well as Federal ones given that the Court recognizes such a First Amendment right. This is literally an earth shattering change in the lay of the land in campaign finance, and it will have ramifications in every way imaginable for the foreseeable future.

Quoting a very interested observer, Senator Russ Feingold, he of McCain-Feingold fame, John Nichols had this to say in The Nation:

But U.S. Senator Russ Feingold, the Wisconsin Democrat who has been in the forefront of campaign-finance reform efforts for the better part of two decades, is worried.

“This would be in my view, a lawless decision from the Supreme Court,” says the senator who gave his name to the McCain-Feingold law. “Part of me says I can’t believe they’ll do it, but there’s some indication they might, and that means the whole idea of respecting the previous decisions of the Supreme Court won’t mean anything anymore.”

A lawyer who chairs the Constitution Subcommittee of the Senate Judiciary Committee, Feingold notes with regard to controls on corporate campaigning: “These things were argued in 1907, when they passed the ban on corporate treasuries. It was argued in 1947, Taft-Hartley did this. The Supreme Court has affirmed over and over again that it’s not part of free speech that corporations and unions can use their treasuries (to buy elections).”

If the court does overturn both law and precedent to advance a corporate Read more →

NY Times Admits Gruber Problem, Fails To Mention Krugman Problem

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imagesIn a full throated mea culpa by the New York Times Public Editor, Clark Hoyt, appearing in the Sunday edition, the Times officially describes the critical and material implications that arise when readers are misled by undisclosed interests of sources and authors in their paper of record.

These examples have resulted in five embarrassing editors’ notes in the last two months — two of them last week — each of them saying readers should have been informed of the undisclosed interest. And on Thursday, the standards editor sent Times journalists a memo urging them to be “constantly alert” to the outside interests of expert sources. The cases raised timeless issues for journalists and sources about what readers have a right to know and whose responsibility it is to find it out or disclose it.

That is exactly right. One of the prime examples the Times’ Public Editor bases his proper conclusion on is that of Jonathan Gruber:

Jonathan Gruber, a prominent M.I.T. health economist, wrote an Op-Ed column and was quoted frequently in other Times columns, news articles and blogs on health care reform before it came to light that he had a contract worth nearly $400,000 to analyze health proposals for the Obama administration.

….

Gruber, the health care economist, wrote an Op-Ed column in July supporting an excise tax on so-called Cadillac health plans. Not long before, he had signed a contract with the Department of Health and Human Services to analyze the economic impact of various health care proposals in Congress. He did not tell Op-Ed editors, nor was the contract mentioned on at least 12 other occasions when he was quoted in The Times after he was consulting for the administration. After a blogger reported on Gruber’s government contract on the Daily Kos Web site, Gruber did volunteer it to Steven Greenhouse, a Times reporter interviewing him for an article on the excise tax. Greenhouse said he included the fact in a draft but struck it because the article was too long. Greenhouse said that Gruber’s views on the tax were so well-known that he did not think they would be influenced by a consulting contract. But had he realized how large the contract was, Greenhouse said, “I would have stood up and paid lots more attention.”

While it is nice the Times has admitted its problem with Gruber, and his wantonly serial failure to disclose material facts and appearances of conflict, it is extremely curious and convenient they dodge the most recent, and in many regards most glaring, example of their damage from Gruber’s Read more →