This weekend does not bring the excitement of last did with the Women’s World Cup, but there are three notable events, two of which are even sports related.

First up is the German Grand Prix from the famed Nurburgring in the Eifel Mountains. Nurburgring was also the site of the 1961 German Grand Prix. Continuing with this year’s homage to the 50th anniversary of the Championship season for my late friend Phil Hill, let’s go back for a minute to the sounds and smell of The Ring in 1961.

Nurburgring was a far different circuit in the 60s than it is today. Phil Hill took pole position in qualifying by shattering the lap record, becoming the first person to lap in under 9 minutes, with a stunning lap of 8 minutes 55.2 seconds (153.4 km/h or 95.3 mph) in the famed Ferrari 156 “Sharknose”. In the race though, Phil could not match Stirling Moss in his Lotus-Climax. Here is the Wiki description:

The race was won by British driver Stirling Moss driving a Lotus 18/21 for privateer outfit the Rob Walker Racing Team. Moss started from the second row of the grid and lead every lap of the race. It was the first German Grand Prix victory for a rear-engined car since Bernd Rosemeyer’s Auto Union Type C took victory in 1936. Moss finished just over 20 seconds ahead of Ferrari 156 drivers Wolfgang von Trips and Phil Hill, breaking a four-race consecutive run of Ferrari victories. The result pushed Moss into third place in the championship points race, becoming the only driver outside of Ferrari’s trio of von Trips, Hill and Richie Ginther still in contention to become the 1961 World Champion with two races remaining.

It was the last home country appearance for points leader von Trips before his death at the Italian Grand Prix five weeks later. His second place finish saw Ferrari secure the constructors’ championship. The remaining championship points scorers were all from British racing teams. Scottish driver Jim Clark (Lotus 21) was fourth for Team Lotus; former motorcycle World Champion John Surtees (Cooper T53) was fifth for Yeoman Credit Racing and young New Zealander Bruce McLaren was sixth in his factory-run Cooper T58.

The Nurburgring of today is a far different, more sterile and safer track, and much shorter, with a length of just under 3 miles as opposed to the former 14 miles plus. Mark Webber of Red Bull was fast in practice Friday and took pole today with a surprising P2 for Lewis Hamilton of McLaren. Sebastian Vettel in the other Red Bull is in P3, the first time he will not start from the front row this year. The Ferraris of Alonso and Massa will start in P4 and P5 respectively. The race day weather forecast is for cool temperatures, clouds and some rain, which should make for a very interesting race. Again, the assholes at Rupert Murdoch’s Fox TV will make US F1 fans watch the race on a tape delay, starting at 12 EST and 9 am PST.

In other sporting news, it looks like the great NFL Football lockout is in its last throes. From Marke Maske at the Washington Post:

NFL player leaders are scheduled to meet Monday in Washington, where they are likely to recommend approval of the lockout-ending collective bargaining agreement already ratified by the league’s franchise owners, several people familiar with the deliberations said Saturday.

The lockout could officially end next Saturday with the opening of the free agent market and teams beginning training camps, those people said, cautioning that those plans were subject to change. The 10-year labor agreement first would have to be ratified by a majority of the nearly 2,000 NFL players.

But if free agency begins and training camps open Saturday, the preseason would be likely to be played as scheduled beginning Aug. 11, said those people familiar with the situation.

graphic by Lance Bass http://twitpic.com/5uxcd2

Lastly, and quite charmingly, we have the first vows in New York resulting from the recent passage of marriage equality in the state. As soon as the clock strikes midnight, Kitty Lambert and Cheryle Rudd are going to be the first married under the new law at a rainbow-lit Niagara Falls. From The HuffPo:

Two Buffalo women plan to be the first to legally wed under the state’s new same-sex marriage law, which goes into effect on Sunday, one month after Gov. Andrew Cuomo signed it into law. The pair, Kitty Lambert and Cheryle Rudd, are to be married the minute after midnight as the Niagara Falls are lit up with the colors of a rainbow.

Sounding much like any other nervous newlywed-to-be, Buffalo resident Lambert told HuffPost they were “really excited, a little overwhelmed, a whole lot frightened.” After 11 years together, she said, “I don’t know why I’m frightened by this commitment.”

Jitters or not, the couple has a big ceremony planned. Lambert, 54, and Rudd, 53, have five adult children and 12 grandchildren. The umbrella advocacy group New Yorkers United for Marriage is promoting the marriage as the first of its kind in New York State. Local politicians will be in attendance along with an estimated hundreds of friends and gay rights advocates for a meal, speeches, and a candlelight procession on Goat Island that will lead across Bridal Veil Falls and then to Luna Island. And the falls, of course, will be illuminated to look like a rainbow, a symbol of the gay rights movement.

That is pretty darn cool. Hats off to the happy couple, and let’s hope they find happiness on the other side of their rainbow.

As you probably heard, two weeks ago, a guy named Rodrick Dantzler went on a killing spree here in Grand Rapids, shooting his wife and her family, and an ex-girlfriend and her family. He was reportedly bipolar and had a history of violence; four women–none of them among his victims–had gotten protection orders against him. He might fit the profile of a “family annihilator.” But even in spite of his criminal record, no one intervened to prevent the murders.

He terrorized this city. But he was not a terrorist.

I raise Dantzler not because the murders he committed–reportedly the worst attack ever in this city–equate with those committed in Norway, but because of the crazy talk about terrorism in response to the Norway attack–first, the rush to label the attack Islamic terrorism, and now the escalating ignorance in an effort to excuse such bigotry (this beaut is from Erick Erickson)…

First, those of us on the right who point out the now fairly common ties between terrorists and Islam do so largely because the secular left has become willfully naive. The fact of the matter is violence and Islam may not be very common among American muslims, but internationally it is extremely common and can fairly well be considered mainstream within much of Islam. Read Andy McCarthy if you suffer on the delusion that it is not mainstream.

With Christians, it is rather rare to see a self-described Christian engage in heinous terrorist acts. In fact, in as much as there is an Arab Street filled with muslims more often than not cheering on the latest terrorist act of radical Islamists, you will be very hard pressed to find a Christian who does not condemn the act regardless of the faith of the person doing the killing.

But then why is the left so gleeful that the Norwegian is a “conservative Christian” and why do they feel it so necessary to rub it in when they’re downright apathetic and hostile to the notion of radical Islam being rather mainstream within Islam when terrorist Christianity is largely nonexistent except among a few crazies?

Not to put too fine a point on it, but the Bible is quite on point about this.

Secular leftists and Islamists are both of this world. Christians may be traveling through, but we are most definitely not of the world. In fact, Christ commands us to throw off our ties to this world. But the things of this world love this world and hate the things of God. That’s why secular leftism can embrace both activist homosexuals and activist muslims when the latter would, when true to their faith, be happy to kill the former.

And frankly, the urge to dig up analysis of a rising right wing terrorist threat–particularly analysis that sees terrorism as a big process of action and reaction–in Europe is not much better.

A report by European police agency Europol on security in 2010 said that there was no right-wing terrorism on the continent in that period.

But it added the far right was becoming very professional at producing online propaganda of an anti-Semitic and xenophobic nature and was increasingly active in online social networking.

“Although the overall threat from right-wing extremism appears to be on the wane and the numbers of right-wing extremist criminal offences are relatively low, the professionalism in their propaganda and organization shows that right-wing extremist groups have the will to enlarge and spread their ideology and still pose a threat in EU member states,” it said.

If the unrest in the Arab world, especially in North Africa, leads to a major influx of immigrants into Europe, “right-wing extremism and terrorism might gain a new lease of life by articulating more widespread public apprehension about immigration from Muslim countries into Europe,” it added.

Public manifestations of right-wing extremism can often provoke counter-activity by extreme left-wing groups. Such confrontations invariably result in physical violence.

That’s not to say we should ignore the networks of people organizing to commit violence, whether they’re Muslim, Christian, or something else (though we’re less likely to be surprised if we don’t always try to classify it according to the ideology feeding it). It’s to say that you don’t need terrorism per se to kill a lot of people. You need a gun, or some fertilizer, or some beauty products.

When our first reaction after a person commits such atrocity is to try to label the ideology of it, we seem to miss the underlying commonality that people often respond to threats to their own dignity with violence, and that in this world, it’s fairly easy for that violence to turn massive.

I was away during the dueling banjos press conferences of Barack Obama and John Boehner this afternoon. Apparently it was quite the show. Despite stating repeatedly how he was “left at the altar” by his Orange Glo golfing chum Boehner, President Obama seemed to get surprisingly effusive praise from pundits on the left for his speech.

Indicative of the praise is this tweet from Keith Olbermann:

You know my criticisms of this POTUS. In this news conference he has been absolutely effing kickass, and properly pissed off.

David Corn of Mother Jones tweeted:

O was as passionate and as close to angry as he gets. #debtageddon

And Corn is now on Lawrence O’Donnell’s show on MSNBC, where Lawrence the “Eleventy Dimensional Chess Scold” himself just said of Obama’s presser:

“It was a brilliantly effective appearance for his reelection.”

And there is the problem isn’t it? Obama really was, and is, worried more about his reelection than he is the welfare of the country and the entirety of its citizens who are not members of his cherished moneyed elite and financial sector magnates.

The details seemed to ebb and flow over the last few days, but this from Bloomberg sums up the basics of what Obama was willing to pull the trigger on:

Two congressional officials said the White House told Democratic leaders it was pursuing a deal to cut spending, including on Social Security and Medicare, and a tax overhaul that could raise $1 trillion. That provoked an angry reaction yesterday from Senate Democrats, who said they feared they might be asked to swallow steep reductions in programs and trims to entitlement benefits with no assurance of higher tax revenue.

Right. What Obama was caterwauling about being “left at the altar” was his willingness, nee burning desire, to make huge cuts in spending and social safety net programs, in return for the possibility of a tax reform later.

And, make no mistake, Mr. Obama is absolutely desperate to make that deal in order to get the debt ceiling issue off the table until sometime after his reelection campaign. His “Grand Bargain” is shit for the economy, shit for almost all Americans safety net now and in the future; it is only good for the howling idiots in the Tea Party sphere and, of course, the reelection campaign of Barack Obama.

So THAT is what was “left at the altar”, and why Barack Obama was suddenly so apoplectically passionate about it. And, yes, it must be stated Boehner, Cantor and the Tea GOP are even more craven and lame than Obama here, but that is pretty weak tea to hang your hat on if you are a sentient being. And that, folks, was the way it was on the day the debt ceiling fell to the floor.

But, fear not trepidatious Americans, Mr. Obama is going to try to save your future and his “grand bargain” again tomorrow! Gee, what dedication.

UPDATE: Paul Krugman understands the ugly truth here, having issued an article today entitled “What Obama Was Willing To Give Away”. Exactly.

[The wonderful and appropos graphic is by the one and only @TWolf10]

Your Daily Murdoch

Tony Blair’s Attorney General–the guy who provided specious legal justification for the UK to go to war with us in Iraq–is catching some heat for not investigating the Murdoch hacking allegations more thoroughy.

The Telegraph hired one of the big private intelligence companies, Kroll, to figure out who leaked details of a recording they had of Britain’s Business secretary Vince Cable “declaring war” on News International (and its bid to acquire BSkyB). Kroll can’t be sure, but they think it was a former Telegraph exec who moved to News Corp.

The WSJ reports that DOJ is preparing subpoenas in an investigation of News Corp. Now, why woudl WSJ be the newspaper to report that, do yo suppose?

Some of the lawyers hacked by NotW–including Julian Assange’s, though the hack was almost certainly before he represented Assange–are just learning of that fact. This scandal resembles the illegal wiretap scandal here in the US in so many ways.

Someone just wrote a Firefox add-on to alert you if your browser is about to open a Murdoch-owned site.

Justice and Injustice

After firing the two women who did some of the most important early work on foreclosure fraud, FL AG Pam Bondi has now started trashing them publicly. I’m guessing Bondi figured out, after the fact, that firing two fairly low-level employees without cause could cause a whole lot of legal problems.

Remember the case against Joseph Adekeye I wrote about here? Ars Technica has a good profile on it.

There’s something very fishy about the custody discussions of Ali Mussa Daqduq–none of the stated excuses for the problem–the debate over whether to try terrorists in civilian or military courts–makes sense. Not least bc Daqduq is a member of Hezbollah, not al Qaeda, and we’re not at war against Hezbollah. So if we want to try him, it seems, it’s got to be in civilian courts. Which suggests the real problem is that we’re unwilling (I wonder whether we’re trying to hide ties between Hezbollah and Nuri-al-Maliki’s government) or unable (because we only have tainted evidence) to try him in civilian court. Or maybe we did something like waterboard him.

The War on Terror and Our Collapsing Empire

A bomb took out the Norwegian Prime Minister’s office today (though he was safe), followed by a shooting at a summer camp tied to the PM’s party. Norwegian police report that the attack was probably domestic–not Islamic–terrorism. In other news, bmaz’ compatriots would rather be slammed by dust storms than haboobs. See also Glenzilla on the degree to which Americans are stumped by an attack on “peaceful” Norway.

Spencer reports that the State Department refuses to allow the Inspector General for Iraq, Stuart Bowen, to have any oversight into the 5000-person mercenary army that will protect “diplomats” after our troops leave. The State Department says Bowen’s mandate only covers reconstruction. Of course, State doesn’t have a normal Inspector General–haven gotten rid of Howard “Cookie” Krongard (brother of Blackwater and CIA figure, “Buzzy”) back in 2007 in the aftermath of the Nissour Square incident.

The Saudis are considering a law that would make ordinary dissent–such as questioning the integrity of King Abdullah–a terrorist crime.

This is not the day to discuss this (I hope to return to it), but the Bulletin of Nuclear Scientists compares our response to terrorism, WMD, and banksters to our response to climate change. (h/t Grist) Even acknowledging that terrorism remains a big threat, climate change now rivals if not surpasses it in terms of death and destruction. The animation above, btw, comes from this NOAA discussion on the current heat wave.

Abd al Rahim al-Nashiri’s lawyers end their letter to Navy Vice Admiral Bruce MacDonald–who will decide whether al-Nashiri will face the death penalty–with an appeal to his role in deciding what we as a nation will condone:

One pivotal and constant question has been–what shall we condone? Shall we condone a trial that allows evidence obtained from torture? Shall we condone a trial for a detainee who has been tortured?

Indeed, one of their most surprising arguments was a reminder that his predecessor, Judge Susan Crawford, refused to refer charges against Mohammed al-Qahtani because he had been tortured.

Your predecessor, Judge Susan Crawford, did not refer charges against Mohammed Al-Qahtani for his direct role in the September 11th Attacks because he was tortured. Judge Crawford stated, “His treatment met the legal definition of torture. And that’s why I did not refer the case[.]” Here, the government’s treatment of Mr. Al-Nashiri undoubtedly meets the legal definition of torture and cruel, inhuman and degrading treatment. Judge Crawford was able to review the interrogation records and other documents of Mr. Al-Qahtani’s abuse before making her decision. In this case, we assume the CIA has not provided those records to you. Even without the cooperation of the CIA, sufficient evidence has been publicly released to prove that Mr. Al-Nashiri was tortured.

[snip]

In essence, the United States has lost its moral authority to seek the death penalty. Accordingly, you should not refer charges–or authorize the detah penalty–against Mr. Al-Nashiri.

I find a few things surprising. First, the suggestion that MacDonald has probably not officially been informed of al-Nashiri’s treatment. While I suppose that’s possible (it’s clear, for example, that the CIA limited how much Gitmo personnel learned of former CIA detainees), that would still be surprising.Though of course, at the very least, MacDonald has not seen the video tapes that were destroyed.

Also note that in this passage, at least, al-Nashiri’s lawyers are calling on the government to drop charges entirely against al-Nashiri, based on the Crawford precedent. Not that the appeal will work (because, particularly given that KSM is now slotted for a Gitmo Military Commission, it would take charges and the death penalty for him off the table, too). But it is notable that they asked.

Much of the rest of the letter lays out reasons I expected: al-Nashiri’s torture itself, the CIA’s destruction of exonerating evidence, the dicey appellate record for MCs, the length of time since the alleged crimes and the delay in charging, and the safety restrictions on travel to Yemen now.

And then there’s the predictable objection on legal grounds: al-Nashiri’s lawyers argue that since we weren’t at war when most of his alleged crimes occurred, an MC is an improper venue to try him. Powerfully, they cite Presidents Clinton and Bush to prove we were not at war.

When convened outside areas under martial law or military occupation, military commissions are strictly limited to the punishment of enemy forces for violations of the laws of war committed in the context of and associated with hostilities.

The limitation was affirmatively recognized and enacted by Congress into the Military Commissions Act, when it mandated that “An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.

Mind you, the government will cite Osama bin Laden’s declaration of war against the US in 1996, but it’s hard to see how that refutes President Clinton’s assertion that “America is not at war” delivered in his eulogy to those lost on the USS Cole.

If that’s not enough, though, al-Nashiri’s lawyers now have the legal opinion of Harold Koh’s conditions that define hostilities for Libya.

The question this letter asks–whether we as a country ought to impose the death penalty on someone we tortured–is a key question. But the legal argument may well be just as compelling.

Joe Subday has a post focusing on Bill Daley’s role in the serial capitulation Obama is making to the debt hostage-takers.

Politico’s David Rogers and Carrie Budoff Brown report on the $3 trillion deal under discussion between Obama and Boehner. And, despite denials, it appears that Obama and Boehner are negotiating and the number is $3 trillion, mostly in spending cuts. Towards the end of the article is this nugget:

At the same time, the White House’s tactics in this situation most infuriate Senate Democrats, who complain that the president’s chief of staff, Bill Daley, is too quick to make concessions to Boehner, even at the party’s expense.

Yes, they are quick to make concessions at the White House. Like everyone, I’ve been trying to figure out what’s really going on. One trusted source told me that one problem is definitely Daley:

Bill Daley is behind the White House’s capitulation. He’s the Democrat’s Neville Chamberlain. It’s dominoes of caving — one cave leads to another. They are so desperate for a deal that they’ll take anything at any price. They won’t fight for anything.

Now, of course, Daley works for Obama. He hired Daley, who used to be on the Board of Third Way, the group always willing to sell out on Democratic principle. And, that’s what Daley is doing on Obama’s behalf.

Now, Joe’s right: Daley ostensibly works for Obama, and so Obama is ultimately responsible for those capitulations.

But is Obama the only one Daley’s working for?

Daley was hired, after all, because the banksters had convinced Obama that seemingly endless supplies of free money wasn’t enough for them; they also needed a bankster in the White House.

And so here we have an unelected bankster in a key role at a moment of crisis. And every time Boehner asks, Daley reportedly offers up yet more austerity in the hopes that he can prevent uncertainty in Jamie Dimon’s world.

It’s funny. Unlike Obama, Daley men aren’t exactly known for their poor negotiating skills. But this one sure seems to be acting helpless in the face of a bunch of demands for more. And ultimately, it won’t be the TeaPartiers who benefit from that process. It will be Jamie Dimon.

Our Crashing Economy

Obama is going to delay his push for Congress to approve 3 job-killing trade deals until after the August recess in the hopes he can get Trade Adjustment Assistance included. I guess he hopes to continue to pretend these have anything to do with job creation?

GAO’s audit of the Fed is out. As Bernie Sanders reports, it shows the Fed gave $16 trillion in loans to banks, including foreign banks.

Matt Taibbi is horrified that Democrats are treating the idea of a tax holiday as a serious proposal.As he describes, “leading members of the Senate are seriously considering giving the most profitable companies in the world a total tax holiday as a reward for their last seven years of systematic tax avoidance.”

Your Daily Murdoch

News Corp has lifted their gag on lawyers Harbottle and Lewis. So we may find out why they sat on damning emails for years.

It took only a few days for James Murdoch to be caught in a lie mistake. Parliament is going to bring James back to see if his memory improves.

Scotland Yard appears to have the goods on Andy Coulson: evidence he knew of illegal payments to the police.

The closest known analogy between News Corp’s UK hacking and actions here in the US has to do with a supermarket advertising company that alleged News Corp’s competitive subsidiary had hacked it. The company sued, only to be bought out by News Corp, ending the suit. And why weren’t criminal charges filed? Because Chris Christie, as US Attorney, didn’t bring charges.

Justice and Injustice

In OH, agencies only have to pay $10,000 if they improperly destroy public records. Golly. I wonder what effect that law will have?

At Netroots Nation, at a meeting on immigration, Luis Gutierrez revealed that the number of undocumented immigrants deported–400,000 a year–is set by Congressional statute that, in turn, feeds a whole deportation industry. Now, Republicans are trying to eliminate all executive branch discretion on deportation. I wonder which deportation industry donors are pushing that?

Nicholas Shaxson reports that a researcher has won an appeal to get key parts–names of key people, companies, and one country–of an old report on the BCCI scandal via FOIA. Of particular interest, the judges overrode the British desire to keep the country redacted because, “there is considerable public interest in the public seeing the whole of the Sandstorm Report so that it can be seen, not just what happened, but what role was played by the governments, institutions and individuals who were involved with an organisation guilty of what the authors of the Sandstorm Report (paragraph 10.1) described as ‘an enormous and complex web of fictitious transactions in what is probably one of the most complex deceptions in banking history.’”

Yesterday, I noted that judges had thrown out convictions against a bunch of environmental activists because the informant who had built the case against them was an agent provocateur. Craig Murray voices something I thought of too when I read about this: Muslims (I’d say in the UK and here in the US) are not afforded the same ability to make such a case about informants.

Surveillance Nation

Faced with an inability to master the human knowledge about Afghanistan, DOD has once against thrown computers at the problem–this time in the form of a DARPA program called Nexus 7. The logic is, “If you get transparency, you don’t need boots on the ground.” I’m sure they think they’ve achieved transparency. Uh huh.

WA has canceled the driver’s license of Jose Antonio Vargas, who revealed publicly last month he is undocumented.

The Aussies are going to take the proceeds that former Gitmo detainee David Hicks makes off his book.

Our Dying Empire

Amidst the more generalized craziness surrounding the debt limit, the House Foreign Affairs Committee has been hosting its own little marathon of crazy as it debates the appropriations for next year. It has already voted to cut the Organization of American States, reinstate the global gag rule on abortion, and now they’re talking about declaring the Muslim Brotherhood a terrorist organization (a vote on this will be delayed pending a classified hearing). But don’t worry–we’ll still fund Pakistan (which I do think we should do, but it does demonstrate the priorities here).

Back in February, Obama’s DOJ stopped defending Donald Rumsfeld and others in Jose Padilla’s Bivens suit against them (though we’re still footing the bill for their pricey lawyers). At the time, it seemed DOJ might have concerns about the claims Rummy’s crew wanted to make about the torture Padilla was suing for.

But DOJ just filed an amicus brief in Padilla’s appeal. In it, they basically double down on the claim the President can deprive a citizen already detained in the US of all due process simply by engaging in some specious word games (in this case, by unilaterally labeling someone an enemy combatant).

Critically, the government is dodging the question of what happens in detention; as I’ll show below, rather than addressing that torture, they simply engage in circular logic.

Remember why Padilla is suing: he’s arguing that Rummy’s crowd violated his constitutional rights by seizing him from a civilian jail, designating him an enemy combatant, using that designation to deprive him of due process, and while he was detained on those terms, torturing him. He’s arguing the government violated his constitutional rights both by depriving him of due process and then torturing him. Illegal detention to enable illegal torture. The government wants to pretend they can separate those issues and argue just the basis for detention.

The government argues that allowing Padilla to sue for that treatment would infringe on national security.

Where, as here, the claims principally implicate national security and war powers, courts have recognized that it is not appropriate to create a common-law damage remedy.

Once again, they’re arguing that if the President says he did something–no matter how clearly unconstitutional–for national security reasons, citizens have no recourse against the President or his top aides.

After arguing “national security” as a threshold matter, the government then makes a threefold argument: Padilla should not have access to Bivens because Congress gave him another means of recourse–a habeas corpus petition (that doesn’t address torture, but the government claims UMCJ addresses torture, even though the defendants here are civilians).

Padilla had a congressionally-authorized mechanism for challenging the lawfulness of his detention. In the wartime context presented, the habeas process should preclude the creation of a Bivens remedy.

Then the government argues that since this very court–the Fourth Circuit–okayed Padilla’s detention in 2005, it’s clear Rummy must have qualified immunity because it was reasonable to think military detention of a citizen was cool.

The issue here, for the purposes of qualified immunity, is not whether this Court’s decision was correct, whether the Supreme Court would have agreed had it reviewed the decision, or whether the detention of Padilla was ultimately constitutional or appropriate as a matter of policy. The issue, rather, is whether the conclusion by three Judges of this Court upholding the detention rebuts any claim that the contrary view was clearly established at the time. It does.

The government’s brief makes no mention of the Michael Luttig opinion cited in Padilla’s appeal that suggested the government’s legal treatment of Padilla was all about expediency, not justice, nor does it here mention the torture allegations.

Finally, it says Rummy shouldn’t be held liable for Padilla’s torture because Iqbal requires Padilla show further proof of personal involvement in his treatment.

But ultimately, all that is based on the notion that no one could have known detaining a US citizen with no due process was unconstitutional.

Now, as I said, the government tries to sever the relationship between Padilla’s illegal detention and his treatment while in detention. Given my earlier speculation that the government withdrew from defending Rummy because Padilla is suing, in part, for the death threats he was subjected to in prison–treatment John Yoo found to be (and communicated to Jim Haynes, another defendant in this suit, to be) torture–I find the government’s circular logic to be particularly telling.

To explain their failure to treat torture in their filing, they say 1) that the other defendants are addressing it and 2) they don’t have to deal with it anyway because the President has said the US does not engage in torture (which is precisely what Bush said when torture was official policy):

In this brief, we do not address the details of Padilla’s specific treatment allegations, which have already been thoroughly briefed by the individual defendants.1

1 Notwithstanding the nature of Padilla’s allegations, this case does not require the court to consider the definition of torture. Torture is flatly illegal and the government has repudiated it in the strongest terms. Federal law makes it a criminal offense to engage in torture, to attempt to commit torture, or to conspire to commit torture outside the United States. See 18 U.S.C. § 2340A. Moreover, consistent with treaty obligations, the President has stated unequivocally that the United States does not engage in torture, see May 21, 2009 Remarks by the President on National Security.

Note that bit, though, where the government acknowledges that torture is illegal?

That’s important, because they base their objections to the Bivens complaint in part on the possibility that a court could review Padilla’s treatment–treatment he alleges amounts to torture, which the government accepts is illegal–and determine whether it was in fact torture and therefore illegal.

Padilla also seeks damages in regard to the lawfulness of his treatment while in military detention. Thus, a court would have to inquire into, and rule on the lawfulness of, the conditions of Padilla’s military confinement and the interrogation techniques employed against him. Congress has not provided any such cause of action, and, as the district court concluded (JA 1522), a court should not create a remedy in these circumstances given the national security and war powers implications.

And they’re arguing Congress–which passed laws making torture illegal (to say nothing of the Constitution prohibiting cruel and unusual punishment)–didn’t provide for a cause of action.

All this implicates the government’s discussion of Padilla’s lack of access to lawyers, too. They claim he can’t complain about not having access to the courts because he can’t point to any claim he was prevented from making while deprived of his lawyers and access to law.

Padilla’s access to the courts claim (Br. 36) likewise fails. To properly allege such a claim, one must identify a legal claim that could not be brought because of the actions of the defendants. See Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). Here, the only such claim was Padilla’s habeas action, which he was able to litigate.

This, in spite of the fact that the Appeal notes the limits on his access to lawyers presented specific barriers for him to complain about his treatment.

Padilla was told not to trust his lawyers and warned against revealing his mistreatment.

Now, frankly, I suspect this effort is all part of a strategy the government devised back in February, when they dumped Rummy.

Rummy needs them to make the threshold argument–that this is a national security issue, meaning the courts should butt out.

But the government seems to have clear awareness that Padilla alleges–with some basis in fact–to have been tortured and that it can’t defend against the torture complaint because they know it was torture and know at least some of the named defendants knew it was torture (and note, the judge in Padilla’s criminal case, as well as judges in other cases where the accused was tortured, always say the torture victim can make a Bivens complaint.)

But that’s not stopping them from saying that, by applying an arbitrary label with no review, they should be able to ignore very clear constitutional principles. And if it was okay for the government to use an arbitrary label in the past to completely ignore the Constitution, then it would be okay going forward to do the same.

Shane Harris has a long profile of William Welch, the thuggish prosecutor in charge of Obama’s persecution of whistleblowers. One of the things he did for the profile is review all of Welch’s cases as an AUSA; he found three of them that, while not major, exhibit the same kind of abuses he has committed on the national stage.

The Washingtonian reviewed every case that Welch worked on when he was an assistant US Attorney in Springfield, from 1995 until 2006. It was during those years that Welch earned his chops as a prosecutor. His biggest victories were in a string of city corruption cases that became his steppingstone to the Public Integrity Section at Justice.

Most of Welch’s cases in Springfield appear routine. But some raise questions. In three cases, defense attorneys filed motions claiming Welch hadn’t turned over exculpatory evidence, sometimes after a judge had directed him to do so. One attorney accused Welch of mounting a vindictive prosecution against a woman who had refused to cooperate with one of his investigations. One suspected Welch of trying to prevent a witness favorable to the defense from testifying—an allegation that would surface against the prosecution years later in the Stevens case. (None of these complaints resulted in a case’s being overturned.)

Perhaps the most telling part of the profile, though, is DOJ Criminal Division head Lanny Breuer’s effusive praise for the out-of-control prosecutor he put in charge of leak investigations.

Breuer, a prominent Washington attorney who once defended former national-security adviser Sandy Berger against charges that he’d stolen classified documents, looks to be Welch’s biggest fan. “Bill is absolutely tenacious,” Breuer says. “He’ll follow every fact and research every legal issue, and he will be absolutely dispassionate in his conclusions.”

Breuer sees Welch’s doggedness as an asset in the Obama administration’s efforts to stop national-security leaks, which rests on a complicated—some say dubious—interpretation of the Espionage Act. The administration has used the law to prosecute five people in leak-related cases, more than all previous administrations combined.

Breuer doesn’t seem bothered that his lead prosecutor is under investigation. “The fact there’s an allegation in and of itself is insufficient” to keep him from prosecuting, Breuer says. “In my mind, it would be absolutely unjust and crazy at this stage not to continue to let Bill Welch be the great prosecutor he is.” Breuer adds, “I’ve grown to very much rely on his judgment, his acumen, his intellect, and his sense of justice, which I think is terrific.”

What Harris doesn’t mention in his article–I’m sure the publication schedule made it impossible–is the speech Breuer made yesterday to a bunch of prosecutors in Sun Valley. (h/t BLT) Breuer, you see, is miffed that defense attorneys are calling prosecutorial abuse what it is.

As I and others have detailed elsewhere, the Justice Department has taken a series of far-reaching steps in the past two years to ensure that all federal prosecutors consistently meet their disclosure obligations.   These measures – such as providing guidance to federal prosecutors on gathering and reviewing discoverable information and making timely disclosure to defendants, or instituting a requirement that all federal prosecutors take annual discovery training – are important steps forward.   And I think it’s fair to say that, as a Department, we are in a better place today than we were two-and-a-half years ago.   And I suspect that is true for many DA’s offices across the country as well.

Certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct.   This kind of gamesmanship is unfortunate.   The steps we have taken go further than what the Supreme Court requires.  And they go well beyond what any prior Administration has done.   That’s a fact.   Do we need to remain vigilant?   Absolutely.   At the same time, together, we cannot – and I know we will not – shy away from taking hard cases, or otherwise shrink from our obligation to investigate and prosecute criminal activity without fear or favor, because of the possibility that an opportunistic defense lawyer will try and make hay out of an honest mistake.

The time frame Breuer mentions–the two years during which DOJ has supposedly cleaned up its act–maps to the Ted Stevens case. So it’s pretty likely he had poor maligned Welch in mind when he made these comments (though ethics was a focus of the conference).

Fine. Breuer thinks William Welch is the shit. Maybe then Breuer will also take responsibility the next time Welch puts aside all prosecutorial judgment to pursue a minor case?

Our Dying Economy

This is a terrible story on Obama’s apparent decision that he is helpless in the face of the continued crappy housing market. The story seems designed to support the false claim that the only hope of improvement is a settlement, both by ignoring unused TARP funds, and suggestions like Right to Rent.

David Leonhardt writes a similar (though not terrible) story on how the Administration, rather than doing anything on the jobs crisis, is trying to spin his debt negotiations as an economic win. Emphasis on spin, I guess.

China’s long made a killing of its counterfeits. Now they’ve got counterfeit Apple Stores.

Herb Kohl, the Chair of the Senate Antitrust Subcommittee, has come out against the AT&T T-Mobile merger. It’s amazing what not running for re-election can do for a politician’s judgment. (A bunch of progressives like John Conyers, Anna Eshoo, and Ed Markey also submitted a letter in opposition.)

Oh, and the big piece of news on the dying economy? Congressional Republicans are going to crash it to make a point in the debt limit debate.

Your Daily Murdoch

David Cameron was asked at least nine times during question time whether he had talks about Murdoch’s BSkyB bid; the closest to a denial he got was in saying all his conversations were appropriate.

After yesterday’s hearing, News International has suddenly decided to stop paying the legal bills of Glenn Mulcaire, the guy who did a bunch of their hacking for them. Let see if Mulcaire suddenly gets chattier (or discovers some unexpected gifts in his mailbox).

One of the reasons the Murdochs gave for shutting News of the World at their testimony yesterday is that they had lost the trust of readers. But if they spend all their time trying to convince their US readers to trust them still, won’t that lead readers to distrust them?

LulzSec says that, in addition to defacing the Sun in their hack of News International, they got some interesting employee emails. As with DOJ indicting a bunch of hackers on the PayPal DDoS attack, this seems like it just sets off an ongoing path of mutual destruction, hackers hacking hackers.

Justice and Injustice

The government claims all the cables leaked by WikiLeaks may not really exist. Or something like that, just so they don’t have to declassify a bunch of cables that show they’re trying to cover-up torture.

The Fed just signed a consent decree fining Wells Fargo $85 million for channeling prime borrowers into sup-prime loans, and also for lying about people’s incomes on liar loans. I guess the Fed thinks $85 million is a reasonable fine for all the fraud Wells Fargo did that contributed to the crash. Speaking of slaps on the wrist, a year after settling with the FTC on overcharging people whose mortgages Countrywide was servicing, Bank of American has finally identified all the people it needs to pay.

Three judges in the UK has overturned the convictions of 20 climate activists based on their finding that an undercover cop was acting as an agent provocateur.

A Scottish court issued an injunction against Greenpeace, preventing it from spreading pictures it took during a protest against Cairn Energy. But a bunch of crazy bloggers and tweeps have passed on the photos, effectively breaking the injunction.

Judge Royce Lamberth refused to give a new trial to two DC cops who falsely arrested a woman for criticizing them. If the city doesn’t appeal, the woman in question will get $97,500.

The American Empire

For some reason that is not entirely clear, Hezbollah leader Ali Mussa Daqduq may have to be transferred to Iraqi custody. Which, given the ties between Iraq and Iran and Hezbollah, probably will mean Daqduq ill go free.

Spencer interviews Daveed Gartenstein-Ross about his forthcoming book, Bin Laden’s Legacy: Why We’re Still Losing the War on Terror; Gartenstein-Ross describes the many ways our poor response to 9/11 has played right into al Qaeda’s hands, notably on budgetary issues.

Republican Stupidity

Republicans–and some hackish Democrats–are trying to prevent Obama from increasing contractor disclosure using an Executive Order. Some of the Democrats opposed to the disclosure get upwards of 80% of their support from corporations.

House Republicans are trying to defund the OAS, basically trying to get the US to stop engaging in a multilateral way in our own hemisphere. Whoever said John Birch was dead?

Republicans are going to shut down the FAA to make it harder for FAA and railroad employees to unionize. As part of their “negotiating” tactics, they’re also trying to make flights to Harry Reid’s home town more expensive.

And how could I discuss Republican stupidity without noting that Dougie Feith is giving Rick Perry lessons on foreign policy.

Pre-Trash

75 retired football players are suing the NFL for suppressing the results of a study showing the problems that result from brain injuries.