Clemons on the Leaks that Did Craig In

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Since we’ve chatted so much about the Greg Craig ouster, I thought I’d link to Steve Clemons’ piece on it (which uses a Nina Totenberg quote to suggest my reading–that this came from Rahm–is correct). The most interesting news in Steve’s piece is this tidbit.

Gregory Craig, White House counsel to President Obama and national security advisor to Obama during the presidential campaign, resigned his post this past Friday. But when rumors broke Thursday of his imminent departure, Craig had not written his farewell note and may not have planned to leave – yet.

I guess that’s a polite way of saying–in a piece about White House leaks–that whoever was spreading that news on Thursday night knew of Craig’s ouster before Craig himself did.

The rest of Steve’s piece serves as a nice object lesson for President Obama about what happens when No Drama Obama is replaced by Rahmpant leaking.

But the sustained nature of the leaks and—and the fact that they ultimately proved to be true—indicates something quite disappointing for anyone who had hoped that the Obama White House would operate more transparently and honestly than the Bush team had.

In fact, leaks are becoming standard fare by key players in the Obama administration. Someone, most likely on the military/intel side of the president’s national security bureaucracy, leaked Afghanistan Commanding General Stanley McChrystal’s report to Bob Woodward. Recently, other political players infuriated U.S. Ambassador to Afghanistan Karl Eikenberry by leaking his eleventh-hour contrarian view on a U.S. force surge to the press.

But it’s quite hard to maintain the kind of Obama-esque upbeat tone of transparency and forthrightness and punish staff for leaking when the president himself is standing by and doing nothing as his closest advisors undermine one of their own.

[snip]

Now that the White House has opened the door to the political tradecraft of leaks, others on the Obama team may feel empowered to deploy these indirect assaults in their own battles against internal foes. Given the “team of rivals” Obama has assembled in nearly every policy arena, the coming policy wars in and around the White House will be fascinating to watch.

Now, Steve is, as always, exceedingly polite here, so he doesn’t connect these events as closely as he might have.

But he’s clearly suggesting that once you let Rahm and his leaky mouth run rampant, then you can’t very well complain when General McChrystal uses leaks to force Obama’s hand on Afghanistan–or when Eikenberry (whom the White House seems to accuse of leaking his own statements) of returning the fire.

And that deal with the Devil does more than just make the White House an unpleasant place to work. It also makes Obama more vulnerable. No matter what Obama thinks of him, Rahm is far from the most adept player at beltway leaks. So by tolerating this practice, Obama puts himself at risk.

DOJ Circumvents Judge Walker; Attempts To Further Correct Previous Falsities

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In what can only be described as a curious filing, the US Government, through the DOJ has submitted a pleading to the 9th Circuit Court of Appeals in the previously terminated al-Haramain appeal originally filed in 2006. In this appeal, on November 16, 2007, the 9th generally upheld the government’s state secrets assertion, but remanded the case to Judge Walker “to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” (Walker has so ruled and those proceedings are indeed ongoing and awaiting the Court’s decision of Plaintiffs’ Motion For Summary Judgment). The 9th Circuit’s mandate issued on January 16, 2008.

The new submission filed in the 9th Circuit is nothing short of a brazen attempt to subvert Judge Walker’s trial court authority and jurisdiction by an end run, and is entitled “NOTICE OF LODGING OF IN CAMERA, EX PARTE DECLARATION OF DIRECTOR OF NATIONAL INTELLIGENCE”

The Government hereby respectfully notifies the Court and counsel that it is lodging today with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of the Director of National Intelligence, Dennis C. Blair.

We are making the lodging because an issue arose regarding an inaccuracy in an earlier Government submission in the district court that was part of the record before this Court in an interlocutory appeal in this matter bearing the above caption. The case has been remanded to the district court and an appeal is no longer pending before this Court. The lodging does not call for any action by this Court but is intended to ensure that this Court is informed of the earlier inaccuracy and has available to it classified details with respect to the issue. The Government has informed the district court of the issue, has offered to make available to that court additional classified details in camera, ex parte, and is informing that court that the Government is making the lodging in this Court.

Here is the document. Now the government had just submitted an unclassified declaration of ODNI Blair to the trial court in September, and references said declaration in their new little filing, but does not seem to attach it. Instead, they submit a new classified ex parte declaration from Blair.

Because the inaccuracy was in an earlier Government submission that was part of the record when the case came before this Court on interlocutory appeal, we are today lodging with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of Director of National Intelligence Blair. That declaration provides additional classified information regarding the matter. As noted, the lodging ensures that this Court is informed of the issue and has available to it classified details concerning the issue.

Well now, it would seem that Jon Eisenberg has struck a raw nerve with his putative entry into the Horn v. Huddle case as an amicicus urging Royce Lamberth to leave his opinions in place and in force. After having been blistered by Read more →

Torture Tape Destruction Accountability: How It Is Done

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images5thumbnail1.thumbnail1When the government possesses videotape evidence of the torture of subjects under its dominion and control, there is only one reason to destroy the tapes. That reason is not because they possess no evidentiary value; in fact it is the direct opposite, it is because they are smoking guns. Videotapes are definitive for one of the two sides; they either prove the subject was tortured, or they prove that he was not.

Either way, videotapes of detainee treatment are of paramount evidentiary value where there are allegations of torture. It would be insane to argue that such tapes have “no possible evidentiary value”; yet that is exactly what the United States government has officially claimed as their rationale with respect to the infamous destruction of the “torture tapes” depicting the treatment of detainees Abu Zubaydah and Abd al-Rahim al-Nashiri. The tapes were wantonly destroyed by the CIA in 2005, news of the destruction became public via a December 6, 2007 article in the New York Times and the DOJ specially assigned a prosecutor, John Durham, at the end of December 2007.

In the nearly two years that have elapsed since the appointment of Durham, he and the crack US Department of Justice have apparently not been able to find anything wrong with the destruction of the torture tapes. But, once again, US Federal courts have demonstrated the dithering perfidy of the Executive Branch, whether it be that of George W. Bush or, in many key Constitutional respects, his clone, Barack Obama.

From the Kansas City Star:

A Missouri prison inmate claims he was restrained for 17 hours without breaks to get a drink of water or use the bathroom.

But videotape that could prove or disprove Darrin Scott Walker’s allegations of abuse cannot be found.

And a federal judge this week concluded that prison officials intentionally destroyed the tape “in a manner indicating a desire to suppress the truth.”

U.S. District Judge Richard Dorr made the ruling in a lawsuit Walker filed alleging that he was subjected to cruel and unusual punishment.

The case is Darrin Scott Walker v. Michael Bowersox, and is filed in the Western District of Missouri (WDMO) in Case No. 05-3001-CV-S-RED. Here is a copy of Judge Dorr’s Order.

First off, it should be noted that as bad as the alleged torture of Walker is, it is nowhere near the the sadistic and egregious conduct performed upon Zubayduh and al-Nashiri. Secondly, in Walker, the court was confronted with a tape that was “lost”, maybe taped over. In the cases of Zubayduh and al-Nashiri, the US government, with malice aforethought, wantonly and intentionally physically destroyed the evidence; light years worse conduct than that in Walker. Yet Judge Dorr blistered the state for its acts in destruction of evidence:

For all of the following reasons, this Court agrees with Walker that the videotape was intentionally destroyed in a manner indicating a desire to suppress the truth. The prison had adopted a policy that required episodes on the restraint bench be videotaped. The Defendants offered no explanation of what happened to the tape, other than the fact the tape could have been taped over, which indicates intentional destruction. The videotape was delivered to a responsible person for safekeeping by people who believed the videotape should have been kept in case of litigation. The Defendants were on notice to keep the videotape because prison officials knew Walker was considering a lawsuit the night of the incident. Lastly, the loss or taping over of the videotape was not a first time incident.

You have to wonder what Judge Dorr would think of the acts of Jose Rodriquez, the CIA and the highest levels of authority in the Executive Branch in destroying the “torture tapes” if this was his opinion in Walker. Dorr went on to hold that there should be a presumption that the destroyed tape was negative to the interests of the government in Walker and cited strong authority for said holding.

The Walker v, Bowersox case, and the strong foundation it is based on, just adds to the curiosity of the lack of ability of John Durham to find addressable conduct in the case of the torture tapes. Granted, one is a civil rights lawsuit, and one is a criminal investigation for obstruction, but the theory of culpability is the same.

Hey John Durham, where are you and what say you? Or are we just going to be peddled a bunch of Bull by Durham?

Biden To Announce Fisker Auto Plant In Wilmington Delaware

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imagesVice President Joe Biden is set to make an appearance in his home state of Delaware today to make an announcement that Fisker Automotive will be purchasing, retooling and opening up operations in a shuttered former General Motors facility in Wilmington. From the Washington Post:

Vice President Biden will make the announcement that Fisker Automotive of Irvine, Calif., is expected to invest $175 million to retool the plant.

Fisker, which will pay the old GM $18 million for the facility and equipment, is getting tax incentives from the state of Delaware, although officials there declined Monday to say how much.

Fisker plans to make a car in Delaware that is being developed under the name “Project Nina” after the ship belonging to explorer Christopher Columbus. Russell Datz, a Fisker spokesman, said that the project’s name is meant to be “symbolic of the transfer from the old world to the new in terms of auto technology.” The car is expected to cost about $39,900 after tax incentives.

The Fisker facility is expected to create 2,000 jobs and will likely be operational by 2011. Administration officials said the deal will indirectly create another 3,000 jobs once the plant is fully operational, expected in 2014. Administration officials say that Fisker expects many of the jobs will go to former GM or Chrysler auto workers.

Time will tell, but on the front end this looks like a wonderful deal in a lot of ways. Fisker is a company that has been putting the pieces together behind the scenes for a couple of years for a major production move, and their initial prototype, and soon to be production model, the Karma, is absolutely stunning and, from all reports, technologically sound. Wilmington is an area that, while not as hard hit as Detroit, is certainly depressed and has been further decimated by the recent closing of the large GM plant there as well as a separate Chrysler plant. When fully up and running, the Fisker Nina plant in Wilmington may Read more →

Rahm’s Greg Craig Campaign

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How many stories–transparently sourced to Rahm Emanuel and predicting Greg Craig’s demise–have to appear before people start asking why Rahm is so persistently targeting Craig? Today’s NYT story follows on at least three other stories of the same genre (one, two, three). And it hides Rahm’s tracks even less than the earlier examples from the genre. There’s the on the record quote from Rahm.

“The president believes he has done a very good job and continues to do a very good job,” Mr. Emanuel said. “The notion that you’re going to blame him is ridiculous. He didn’t create Guantánamo. He is trying to work within the system to meet the president’s goal.”

There’s the blame on Rahm for trimming Craig’s portfolio on high profile issues.

At moments, it has looked as if Mr. Craig’s authority has been trimmed back. Rahm Emanuel, the White House chief of staff, assigned Pete Rouse, a senior adviser with deep ties to Capitol Hill, to oversee Guantánamo issues.

Similarly, after Mr. Craig started the search that produced the Supreme Court nomination of Justice Sonia Sotomayor, Mr. Emanuel assigned the confirmation fight to Ronald A. Klain and Cynthia Hogan, aides to Vice President Joseph R. Biden Jr. with long experience handling judicial appointments.

In both instances, White House officials said that Mr. Craig remained involved but that it made sense to tap people with political backgrounds to manage political issues, particularly since Mr. Craig had so many other duties, like scrutinizing legislation, vetting appointees and selecting judges.

And there’s the description of Rahm’s juvenile taunts going back to the Lewinsky days.

He studied law at Yale with Bill and Hillary Rodham Clinton and joined the Clinton White House in 1998 to fight impeachment. Longtime aides resented the newcomer. When the announcement of his appointment described Mr. Craig as the “quarterback” of the impeachment defense, some Clinton aides, including Mr. Emanuel, derisively referred to him as “QB.” (All these years later, Mr. Emanuel said he liked and respected Mr. Craig.)

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CNN Helps Mike Hayden Uncork A Fine Whine

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Michael Hayden is at it again. This time it is CNN that has donated the bandwidth to his continued petty whining about the release of the OLC Torture Memos. After acknowledging that the matter is over and now simply a matter of history, Hayden, in a “Special to CNN Comment” bearing today’s date, says:

I know that the story has moved on, that the outline of the journalistic narrative has been set, and that the “first draft” of history has been just about finalized. Before the ink dries though, I would like to offer at least a footnote.

And this footnote has to do with President Obama’s decision in April to release opinions drafted by the Department of Justice that detailed the CIA’s interrogation program for high-value al Qaeda detainees.
…
Make no mistake. The decision to release those memos in April was a political one, not a legal one — a question of choice rather than necessity.

This was a deliberate decision and, if it is to be defended, history (and journalism) should demand that it be defended on those grounds and not on some hapless “the judge was going to make me do it” argument.

As I said, this is all now a footnote, and Hellerstein’s September decision was barely remarked in the public discourse.

But the good people of CIA follow this more closely than most and, like the good operators and analysts that they are, they know what they see and they know what it means.

“Make no mistake”, just as the decision to release the torture Memos is old news, so is Hayden’s objection. He made it abundantly clear, on many records, before, during and after the Memos’ release. Why did CNN decide that giving Hayden a prime “special” opportunity to continue the same relentless petulance was a good idea? Where is the CNN “Special Comment” on the decision of the British High Court that heroically proclaimed:

It cannot be suggested that information as to how officials of the U.S. government admitted treating (Binyam Mohamed) during his interrogation is information that can in any democratic society governed by the rule of law be characterized as ’secret’ or as ‘intelligence’…

Where was the CNN “Special Comment” on US Federal Judge Jeffrey White who trumpeted the public’s “right to know” what their government has done in their name in a very similar FOIA case?

Why is it that CNN has special space available for Michael Hayden, a man centrally involved in the alleged Bush war criminal misconduct, to rehash his same old self serving petty whining from months ago, but not for the current news that actually supports the rule of law in a democracy?

DOJ Set To Shuck And Jive Judge White In EFF FOIA Case

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Just two days ago we were discussing the status of EFF v. ODNI, the FOIA case in NDCA where disclosure is being sought of documents evidencing the telecom lobbying on immunity for corporate participation in Bush’s surveillance program. As you will recall, Judge White had denied the various stay attempts put forth by the government (and one they had not even made yet) and ordered disclosure on or before 4 pm PST today, October 16.

Josh Gerstein at Politico, who has done an excellent job following this case, has some news of what the government plans to do:

The Obama administration may be on the verge of a major concession in a long-running legal battle over records about so-called telecom immunity.

An email obtained by POLITICO shows that the Obama Administration is preparing for the possible release of some details of the Bush Administration’s lobbying for legislation giving telecommunications companies immunity from lawsuits over their involvement in warrantless domestic wiretapping.

But even if they do release those details, the administration may press on with a legal battle to keep secret the identities of the companies involved in the program.

And what will the government be oh so graciously disclosing? A lot of stuff that, while responsive to the FOIA request, is certainly not responsive to the core of the request.

“The Executive Branch will be providing to the Electronic Frontier Foundation in its FOIA suit a large number of e-mail communications between House staffers and Executive branch employees regarding the legislation involving immunity to telecommunications companies enacted as part of the [revised Foreign Intelligence Surveillance Act] legislation last year,” Nathan wrote.

In short, they are not going to disclose the identities of the telecom companies and their employees which sought immunity. And, predictably, the government relies on the well worn claptrap that:

Disclosure of such information would assist our adversaries in drawing inferences about whether certain telecommunications companies may or may not have assisted the government in intelligence-gathering activities,

But the court has already expressed its position on this argument: Read more →

Stare Indecisis: Obama’s Inaction On Judicial Nominations

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Michael Fletcher has an article in Friday’s Washington Post entitled “Obama Criticized as Too Cautious, Slow on Judicial Posts“.

President Obama has not made significant progress in his plan to infuse federal courts with a new cadre of judges, and liberal activists are beginning to blame his administration for moving too tentatively on what they considered a key priority.

During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.

But some Democrats attribute that GOP success partly to the administration’s reluctance to fight, arguing that Obama’s emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans.

Well, yeah, that is about right. In fairness, and Fletcher, despite the gist of his title, does point this out in the body of his article, the GOP is acting in bad faith with the obstructionistic filibustering and holds. So, it isn’t all Obama. But there sure is a problem here.

Three out of 23, with a popular President possessing a real electoral mandate and the supposed holy grail of a 60 seat caucus majority in the Senate, is a batting average that screams lame. But the real eye opener painting the full color of the context is that George W. Bush sent 95 nominees to the Senate for confirmation by this point in his first term. Whatever happened to the big push Greg Craig (he of two first names) was spearheading on this? And make no mistake, it is not as if there are not plenty of judicial seats to fill – there are currently at least 90 waiting to be filled – and it is having a deleterious impact on the ability of Federal courts across the country to function.

The delays are having a ripple effect in federal courts, where caseloads continue to back up, said Senate Judiciary Chairman Patrick J. Leahy (D-Vt.). Currently, about 90 judicial seats — about 10 percent of the total — remain vacant in appeals and district courts.

The part of Fletcher’s article that is most distressing, however, is the description of the namby pamby attitude and philosophy Obama has on his judicial nomination policy.

Eric Posner, a professor at the University of Chicago Law School, said that Republicans consider the federal courts crucial to furthering their policy aims by overturning current law, but that Obama is among Democrats who view court appointments mainly as a means of defending the legal status quo.

Obama has said he wants to appoint empathetic judges, but “beyond that, he hasn’t said much. So it is hard to know exactly what he has in mind,” Posner said.

Empathy. Hate to agree with the Republican talking points; but they are right, empathy is a bogus and impertinent concept to frame a Presidential judicial nomination policy around. Posner is absolutely right though, non-controversial empathetic centrists is about the sum total of the game plan for the Obama Administration. And he is not even making headway on that weak agenda.

Obama’s first nominee was David Hamilton, a centrist milquetoast from Indiana. Hamilton has a (despite the nitpicking claims of the GOP) bland and clean record, is Lee Hamilton’s nephew and has the ardent backing of home state GOP Senator Richard Lugar. Yet Hamilton languishes without a vote. Just like the other forgotten nominee from Indiana, Dawn Johnsen. And that is the way it is going to be with the current Republican minority; and it isn’t going to get any better after healthcare has been passed against their will.

Time is wasting, there is no reason not to put up big blocks of nominees. Get on with it, make the Republicans vote in good faith or expose them as unprincipled obstructionists. Fight for your nominees and use the 60 seat majority. You can bet your family farm that is exactly what the Republicans would do; it is what they do when in the Presidency.

Obama DOJ Declines To Support Legality Of Bush Surveillance Program

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Hot on the heels of the Telephone Immunity Secrecy Blob, today the 2nd Circuit Court of Appeals heard oral argument on Wilner v. NSA and DOJ, a FOIA case wherein the Center for Constitutional Rights is seeking disclosure of evidence of clandestine surveillance of attorney-client conversations between detainees and their counsel. The CCR issued this press release today:

The Court of Appeals heard arguments today in the Center for Constitutional Rights (CCR) warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argued that the executive branch must disclose whether or not it has records related to wiretapping of privileged attorney-client conversations without a warrant.

Said Kathryn Sabbeth, Assistant Professor of Law at the University of North Carolina at Chapel Hill School of Law, who argued the case, “No argument could be made that targeting American lawyers on American soil to obtain information about their clients was legal, and indeed when counsel for the government was pressed for an explanation he offered none.”

The rights attorneys appealed the government’s Glomar assertions, meaning its refusal to either confirm or deny the existence of records sought in Freedom of Information Act (FOIA) litigation relating to the NSA warrantless wiretapping program and surveillance of attorneys representing detainees at Guantánamo.

“Our work with our clients may have been deeply compromised by illegal surveillance carried out by the last administration,” said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative. “The new administration has no legal basis for refusing to come clean about any violations of attorney-client privilege by the NSA.”

During arguments, the government’s counsel stated, “We take no position on the legality of the TSP,” referring to the Bush administration’s Terror Surveillance Program.

The case is a FOIA lawsuit on behalf of 23 attorneys, including CCR staff attorneys Gitanjali S. Gutierrez and Wells Dixon, law professors, and partners at prominent international law firms, who believe they may have been the subjects of the NSA’s warrantless wiretapping program authorized by the prior administration shortly after September 11, 2001. CCR, the Institute of Public Representation at Georgetown University Law Center and the Chicago law firm Butler Rubin Saltarelli & Boyd filed the case in the U.S. District Court for the Southern District of New York on May 17, 2007. The district court ruled the NSA could refuse to say anything either confirming or denying the existence of any related materials because to do so “would reveal information about the NSA’s capabilities and activities.”

Plaintiffs argued Read more →

The Not-Bush Prize

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Spencer’s take on Obama’s selection as the Nobel Peace Prize winner is one of the most reasonable. As Peterr has noted, the committee has emphasized the direction Obama intends to take (particularly on nukes), and there is a history of giving the prize to encourage particular initiatives. So let’s hope that with this recognition, Obama achieves some of his more laudable goals, starting with peace in the Middle East, and including a drawdown of nuclear weapons.

That said, I wanted to emphasize the degree to which this is the not-Bush prize. Gore invoked his de-selection in 2000 in his own Nobel acceptance speech in 2007. Observers sure read Krugman’s Nobel prize in economics as a rebuke of Bush. But more importantly, remember that Mohammed el-Baradei–who tried to prevent war in Iraq, and who has been central to preventing war against Iran–won in 2005. Baradei’s win, even more than the other two, was a critique of Bush’s (and Cheney’s) aggression and violence.

Until Obama, of course.

Yes, the Committee focused on Obama’s work with nukes, one of his few legislative accomplishments as a Senator. Yes, we have seen initial steps on the Middle East, Iran, and (to the extent Obama intends to close Gitmo) the worst–but not all–of our human rights abuses. But this is really a reward and encouragement for Obama’s efforts to engage where Bush refused to engage. This is, as much as anything else, a carrot designed to keep the US on its more constructive path internationally.

All of which makes me more amused by Jeb Bush’s complaint yesterday, in which he called on the country to stop picking on his brother.

KILMEADE: It’s been 10 months. Should Leader Hoyer be looking backwards, and is he accurate?

BUSH: I was on the plane coming up to Washington yesterday, and I heard someone complaining that their child’s acne was because of George Bush. Of course, last week the Olympics didn’t come to Chicago — that was my brother’s fault. And at some point, people are going to have to put on their big-boy pants and assume responsibility for the great challenges and opportunities our country has. I don’t know how much longer leaders — responsible leaders in Congress — can continue to say these things.

The day after Jebbie’s complaint, the Nobel Committee effectively awarded the third Nobel Peace prize for being Not-Bush.

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