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Greg Craig Won’t Tell You How Obama Disappeared the Whistleblowers

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Charlie Savage has an article chronicling Chuck Grassley’s objection to something I objected to last week–Obama’s signing statement undermining whistleblowers.

But that’s not the really creepy part of the article. The creepy part is the way some Obama Administration official, who happens to have the same legal credential and sophist argumentative technique as Greg Craig, provided input for the article.

The White House press office referred questions to an administration official, imposing the condition that he not be identified by name or title.

The official, a lawyer, said Mr. Obama was “committed to whistle-blower protections.” He declined to define every kind of instance in which the president’s power to keep a matter confidential would trump a whistle-blower protection statute, but he did say the administration had no intention of going further than did Presidents Bill Clinton and George W. Bush in signing statements concerning similar provisions.

“I don’t think President Obama’s signing statement injects a new level of uncertainty into the law,” he said.

[snip]

The administration official pointed to a memorandum Mr. Obama issued on March 9 laying out a signing statements policy. The document, which does not mention legislative intent, says he will employ only “legitimate” interpretations of statutes. Mr. Obama’s challenge in this case, the official said, is consistent with that principle.

So, let’s review here: They’ve got Charlie Savage talking to a mysterious lawyer on the condition that the lawyer not be named. Said lawyer refuses to explain what the signing statement means for whistleblowers, but claims this doesn’t create any new uncertainty. And then said lawyer asserts that the signing statement from last week was–by definition–a "legitimate" interpretation of statute, legislative intent be damned.

Yup. This is the way we bring transparency to the White House alright.

Chuck Grassley’s ire at Obama’s childish games with whistleblowers will remain a story, so I’m happy Savage covered it. But at some point, Obama’s just as ridiculous approach to discussing legal issues with the press needs to become the story. I realize Greg Craig just recently came fromWilliam & Connolly, where the off-the-record manipulation of the press may be second nature, but he’s working for the American people now, and these things he’s talking about are actually supposed to be laws. It’d be really nice if Greg Craig had the decency to tell us what the laws in this country are.

Obama to Geithner: Get That Bonus Money Back

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It sounds like Obama has told Tim Geithner to go back to Edward Liddy and explain that $100 million bonuses are unacceptable.

I’m glad that Obama did this (after seeing the outrage in Congress no doubt). I’m still astounded that Geithner needed to be told. And I’m still suspicious that Geithner was responding to threats from AIG that no one is much talking about. 

Obama’s statement here has a hint of something I’d like to see more of: he suggests that the appropriate response to AIG’s audacious demand for its bonuses is the same kind of regulation over big finance schemes like AIG that FDIC has over banks.

Still, it was only a suggestion.

It seems that this AIG demand ought to elicit the kind of response that drives reform over all the weasels in Congress trying to prevent it. "Well, that’s the last straw," I wish Obama had said, "If that’s how you respond to hundreds of billions in help from the federal government, we’re going to regulate you so heavily you’ll be begging to give your bonuses away in a matter of months."

There are still a lot of obstructionists in Congress who don’t want their gravy train to get clipped. This is the moment when Obama should be mobilizing the outrage of such events to roll over those obstructionists.

Of course, that’s not going to happen so long as there are so many obstructionists in Obama’s inner circle. 

The IP Treaty Is Secret Too?!?!?

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A reader sent this link, reporting that the Obama Administration refuses to release under FOIA a number of documents pertaining to an intellectual property treaty negotiated under Bush.

Last September, the Bush administration defended the unusual secrecy over an anti-counterfeiting treaty being negotiated by the U.S. government, which some liberal groups worry could criminalize some peer-to-peer file sharing that infringes copyrights.

Now President Obama’s White House has tightened the cloak of government secrecy still further, saying in a letter this week that a discussion draft of the Anti-Counterfeiting Trade Agreement and related materials are "classified in the interest of national security pursuant to Executive Order 12958."

[snip]

Jamie Love, director of the nonprofit group Knowledge Ecology International, filed the Freedom of Information Act request that resulted in this week’s denial from the White House. The denial letter (PDF) was sent to Love on Tuesday by Carmen Suro-Bredie, chief FOIA officer in the White House’s Office of the U.S. Trade Representative.

Love had written in his original request on January 31–submitted soon after Obama’s inauguration–that the documents "are being widely circulated to corporate lobbyists in Europe, Japan, and the U.S. There is no reason for them to be secret from the American public."

[snip]

Love’s group believes that the U.S. and Japan want the treaty to say that willful trademark and copyright infringement on a commercial scale must be subject to criminal sanctions, including infringement that has "no direct or indirect motivation of financial gain." 

Frankly, I don’t know why Obama is keeping this secret. He doesn’t want Americans to realize that our largest export–Intellectual Property–is as vulnerable in some ways as the housing market? He doesn’t wants us to know that he’s maintaining, on an international level, policies which violate his claim to be net friendly on the national level? He doesn’t want us to know the technology they’re advocating for pursuing peer-to-peer software? Maybe the discussions the parties to the treaty had touched on some or all of this…

Or maybe he just want us to know what tunes Osama bin Laden has on his iPod? 

Update, from WO in comments:

I found the leaked draft on wikileaks. I suspect the reason for the secrecy is this line that I don’t think anybody has noticed:

Civil enforcement:
— Authority to order ex parte searches and other preliminary measures;

Ex parte searches? For digital materials? Sounds like the NSA’s dream come Read more →

Obama’s Signing Statement Disappears Whistleblowers

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When I suggested the other day that Obama’s memo on signing statements was actually very troublesome–in that there’s no transparency for which of Bush’s signing statements Obama plans to keep and in that we never learn which of those Bush relied on to break the law–a few people suggested I was being cynical. Really, the most common interpretation of the memo went, the memo was a sign of change we can believe in, a new willingness to be bound by law.

As it turns out, the memo appears to have been released (almost two months into Obama’s term, after all) to lay the groundwork for Obama’s first signing statement.

Charlie Savage (who wrote the book on this stuff) lays out the contents–mostly statements saying Obama refuses to spend money with the oversight from Congress they’ve demanded.  

One of the budget bill’s provisions that Mr. Obama said he could circumvent concerns United Nations peacekeeping missions. It says money may not be spent on any such mission if it entails putting United States troops under a foreign commander, unless Mr. Obama’s military advisers so recommend.

“This provision,” Mr. Obama wrote, “raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as commander in chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority.”

[snip]

But a majority of the challenged provisions are those allowing money to be reallocated to a different program only with the approval of a Congressional committee. Mr. Obama called the provisions “impermissible forms of legislative aggrandizement” and declared that while executive-branch officials would notify lawmakers of any reallocation, “spending decisions shall not be treated as dependent on the approval of Congressional committees.”

So much for power of the purse.

The provision I’m most worried about, however, is one on whistleblowers. You see, the President who has promised transparency, apparently doesn’t want transparency to Congress when an executive agency fucks up.

He also raised concerns about a section that establishes whistle-blower protections for federal employees who give information to Congress.

“I do not interpret this provision,” he wrote, “to detract from my authority to direct the heads of executive departments to supervise, control and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

Read more →

The al-Haramain Stall Timeline

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With the news that Bush’s DOJ submitted "inaccurate" information to Judge Vaughn Walker, I wanted to look at the recent timeline on the al-Haramain suit to identify the ways Bush and Obama/Dead-Enders postponed alerting Walker to this fact up until the moment it became clear he would get to review the wiretap log from al-Haramain. I’m guessing Obama discovered at least several weeks ago (February 11?) that the information provided to Walker was "inaccurate" and much of the actions since have been an attempt to avoid having to admit to Walker that he had received "inaccurate" information. (Though Bush no doubt knew this fact–and was trying to hide it–much longer.)

January 5, 2009: Walker announces he’ll review the wiretap log to see if al-Haramain was wiretapped illegally. He sets the following deadlines:

  • January 19 (14 days): "defendants shall arrange for the court security officer/security specialist assigned to this case in the Litigation Security Section of the United States Department of Justice to make the Sealed Document available for the court’s in camera review. If the Sealed Document has been included in any previous classified filing in this matter, defendants shall so indicate in a letter to the court."
  • February 13: Clearance for al-Haramain’s lawyers.
  • February 19 (45 days):"Defendants shall review the Sealed Document and their classified submissions to date in this litigation and determine whether the Sealed Document and/or any of defendants’ classified submissions may be declassified, take all necessary steps to declassify those that they have determined may be declassified and, no later than forty-five (45) days from the date of this order, serve and file a report of the outcome of that review."

January 9, 2009: al-Haramain’s attorney, Jon Eisenberg emails DOJ’s lead attorney, Anthony Coppolino, to confer on joint statement on how to proceed with case.

January 12, 2009:  Coppolino asks Eisenberg for a proposal.

January 13, 2009: Eisenberg emails Coppolino a plan.

January 15, 2009: Coppolino emails he hopes to respond the following day, first raises possibility of separate statements. 

January 16, 2009, 8:21 PM: Bush appeals Walker’s January 5 order.

January 17, 2009: Eisenberg leaves email and voicemail about appeal. 

January 19, 2009, 10:56 PM: DOJ files for a stay. 

In separate filing, Bush DOJ tells Walker he already has the Sealed Document.

The Sealed Document at issue in this case has been lodged previously in this action with the appropriate court security officers.

January 20, 2009: Obama inaugurated President.

February 2, 2009: Eric Holder confirmed as Attorney General; as of this moment, he had not been read into the illegal wiretap program.

February 11, 2009: DOJ argues its case for a stay, and requests an interim stay before al-Haramain’s lawyers get their clearance and the government submits its classification review.

The Government also requests that at least an interim stay be entered by February 13, 2009—the date after which further proceedings may commence under the January 5 Order.

Read more →

Obama’s Response to the al-Haramain Smack-Down? Cheneyesque Reasoning

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The Executive Branch’s Cheneyesque claim that it has a stranglehold on classified information is crumbling around Cheney’s rancid flesh.

Courts Get to Determine Classified Information for Their Trials

First there was the ruling, earlier this week, in the AIPAC case, which imagined mere jurors–as distinct from elites like Cheney–could determine what counted as classified information.

Now the interesting thing here is that the court is accepting that classified information, whether or not it ought to be classified, and whether or not it will necessarily harm the United States if made public, is not the exclusive domain of the Executive, but may be intruded upon by the court.

Or, as the al-Haramain lawyers described it in their brief to the 9th Circuit, Courts get some say over what is classified.

A new decision further confirms 1 Judge Walker’s authority to allow plaintiffs’ counsel to use a redacted version of the Sealed Document to demonstrate standing. In United States v. Rosen, No. 08-4358, 2009 WL 446097, at *6 (4th Cir. Feb. 24, 2009), the Fourth Circuit held that, in proceedings under the Classified Information Procedures Act to determine whether classified evidence was relevant and admissible, the district court did not abuse its discretion in determining the extent to which the evidence should be redacted. Similarly here, Judge Walker has discretion to make that determination.

(Someone’s been reading their bmaz.)

Lawyers Get to See Classified Information Their Clients Need for Their Defense

Then, in a ruling that came out earlier this week, Judge Gladys Kessler held that a person with active concerns (not just a legal case, but also an OIG investigation) must be able to share classified information with his lawyer, even if the executive branch tries to prevent that. 

So the whole principal, cherished by Dick Cheney and David Addington as if it were their own children, that the Executive gets ultimate say over what is and what is not classified is crumbling.

Back to al-Haramain: Obama Argues against Article III Review

And in that environment, just hours after the Appeals Court ruled that Judge Walker can review the wiretap log that says al-Haramain was illegally wiretapped to affirm that is the case, the Obama/Dead-Enders are back, trying to prevent Judge Walker from deciding how to deal with classified information going forward.

Read the whole thing. Read more →

Obama’s FISA Headache

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As I reported, the 9th Circuit has rejected the Obama/Dead-Ender appeal on the al-Haramain case. 

We’re not out of the woods yet (apparently Judge Walker is out of his office until Monday, and Obama and his DOJ presumably are not). But here’s some context on why the 9th Circuit’s rejection of Obama’s appeal is so significant.

Barring some last minute stay from SCOTUS, Walker can come back Monday morning, look at a wiretap log of US persons not approved by FISA, and rule that that wiretap was illegal. I will, quite literally, be holding my breath on Monday, but Walker may well beat any games from Obama.

But there are at least three other reasons why this is important.

Al-Haramain’s Dates

I pointed out in this post that al-Haramain has reason to believe (and remember–they’ve read the wiretap log) that they were wiretapped on, among other dates, March 11 and March 25.

I’m guessing, then, it is not a mistake that the lawyers are honing in on these dates. That is, I’m guessing that these specific conversations were among those described in the document that al-Haramain once had in hand. Which means that when Walker reviews the document, it’ll be affirmation of precisely the argument al-Haramain makes here.

It’s easier writing these things, I guess, when you’ve seen the answers to the test.

But that’s not the really delectable part of the description of these calls. Look at this sentence.

Soon after the blocking of plaintiff Al-Haramain Oregon’s assets on February 19, 2004, plaintiff Belew spoke by telephone with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s directors) on the following dates: March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004.[my emphasis]

Hahahahahahaha!!!

On March 11, 2004, remember, the warrantless wiretap program was operating without the approval of the Acting Attorney General. After Jim Comey refused to recertify the program on March 9, after Andy Card and Alberto Gonzales tried to get John Ashcroft to overrule Comey from his ICU bed on March 10, Bush reauthorized the program using only the legal sanction of then-White House Counsel Alberto Gonzales on March 11.

This means that any review arising out of this proceeding will not just focus on the larger illegal wiretap program, but on Bush’s actions on March 11, 2004, to override the advice of DOJ and allow the program to go forward only with the approval of his then-White House counsel, Alberto Gonzales.

Read more →

Monday, 9AM, Roland Burris Is Still Senator

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I’ve lost my touch.

It used to be I’d go away for a week and Karl Rove or Alberto Gonzales would resign. Here we are, Monday morning after I’ve been gone a week (thanks to bmaz for really superb work last week!), and Roland Burris is still Senator.

Maybe if I do a recap of Burris’ week, though, and point out the looming holes in his story, then it’ll hasten his departure.

Fitz Joins the Fun

Remember how, in his press conference trying to explain how he forgot to mention his talks with RobBlago and John Harris, Burris couldn’t decide whether he had or had not been contacted by Fitz’ people regarding his negotiations on buying a Senate seat?

That question has now been solved, as Burris spent some time with federal investigators on Saturday.

U.S. Sen. Roland Burris was interviewed by federal authorities for several hours Saturday as part of the ongoing corruption investigation into charges that former Gov. Rod Blagojevich tried to sell a Senate seat for personal or political profit, sources familiar with the talks said.

Burris’ interview, which had been delayed for weeks, took place at his attorney’s offices in downtown Chicago. He has been informed he is not a target of the probe, the sources said.

Several details of this are interesting: what was responsible for the "weeks" delay in Burris’ testimony? Did he have to straighten out his story to the legislature first (though he did not do that with the State Supreme Court), so as to attempt to prevent perjury charges? Or did Fitz just want to make sure they had a complete catalog of the times Burris spoke to Blago’s people–including the multiple phone calls to John Harris that Burris still hasn’t ‘fessed to? Perhaps, too, Fitz wanted to wait until after the FBI started collecting information on Patti Blago’s tenure at the Chicago Christian Industrial League, since that was one way (through Burris’ partner Fred Lebed, who is on the board of the charity) that Burris could have influenced Blago in ways other than fundraising directly. Or, maybe, Burris was negotiating the terms on which he would be very forthcoming to Fitz?

Note that Burris’ secret sources (otherwise known as his attorney, I’m guessing) have gone to the Robert Luskin school of prosecutor-talk. Burris "has been informed he is not a target" of the probe. But did anyone mention anything about him being a subject?

Read more →

And Now the Appeals Court Jumps in the Fray

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This is weird. The DC Appeals Court apparently doesn’t want to give Obama time to make a deal between Bush’s minions and the House Judiciary Committee.

After specifically invoking the benefit of "permitting the new President"… "to express [his] views on the merits of the lawsuit" between the House Judiciary Committee and Harriet Miers and John Bolten last fall when it stayed Judge Bates’ ruling knocking down Absolute Immunity, and in spite of the fact that said new President asked for two additional weeks to submit his brief on the debate over Harriet Miers’ testimony, and in spite of the fact that HJC agreed to that two week delay, the DC Appeals panel has ordered DOJ to submit its brief by February 25, half the time the Obama Administration requested. 

That’s weird for several reasons. Normally, when the legislature and the executive get into a squabble, the courts like to have them try to resolve the squabble on their own. One of the reasons Obama had wanted two weeks was to try to broker a deal himself. Given reports that such a deal is taking some time, the order to submit briefs this Wednesday makes it much less likely that HJC and Bush’s minions will make a deal before the Appeals Court gets involved again.

The one-week extension also guarantees that Obama will submit his brief before Dawn Johnsen takes over at OLC; her confirmation hearing is scheduled for the same day as the new deadline for the brief. One way Obama could have responded to this suit would be to simply withdraw Steven Bradbury’s audacious memo expanding Absolute Immunity, but that won’t happen before Johnsen takes over.

Now, I have no idea why the Appeals Court is so antsy to get involved here, but there are several possibilities.

It’s possible that they’ve seen Greg Craig’s statement explaining that Obama will not "do anything that would undermine or weaken the institution of the presidency" and they worry that Obama will craft a deal that preserves Absolute Immunity, and they want to prevent that from happening (though why they think John Conyers would agree to such a deal, I have no clue).

Read more →

Wanted: An Ask for Phone Calls

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I just got this email:

Marcy —

President Obama recorded a video to speak directly to you about his economic recovery plan.

America is facing an urgent and unprecedented challenge. The economic crisis requires bold and immediate action.

Watch President Obama’s video and share it with your friends and family:http://my.barackobama.com/recoveryvideo

And I’ve also gotten friends inviting me in the last week to watch some other Obama videos together–that is, I’ve been invited to House Parties to discuss this. That means people are doing just as Obama (or David Plouffe) asks in their email alerts.

But I still haven’t been invited to call my Senators or Congressman (all of whom, granted, have voted for stimulus, but Debbie Stabenow voted for a stupid Tom Coburn amendment forbidding any stimulus money being used for musems and parks–I do plan on chatting with her about that and if you’re a Michigander, you should too!). Nor have I been invited by Barack Obama to call Sanctimonious Joe’s latest gang–Joe, Haggis, the Bad Nelson, and Susan Collins–to ask why they’re opposed to funds that will help states avoid cutting back necessary services, or why they’re opposed to constructing schools.

Mobilizing the millions of people on Obama’s email list is great. But isn’t it better to mobilize them to do the same thing the wingnuts are mobilizing their people to do–talk to members of Congress? Wouldn’t it be better to use that list to press for a more progressive (and effective) stimulus package?