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R.I.P. Senator Specter, You Will Be Missed

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The Snarlin has ceased; via CBS News:

US Senator Arlen Specter, whose political career took him from Philadelphia City Hall to the US Congress, died Sunday morning at his home in Philadelphia at the age of 82 from complications of non-Hodgkins Lymphoma. He was born February 12, 1930.

His career was marked by what the pundits and Specter himself called “fierce independence.” But long before Specter ever stepped onto the Senate floor in Washington DC, he made it into national prominence by serving as assistant counsel for the Warren Commission, which investigated the 1963 assassination of Pres. John F. Kennedy.

Specter postulated the controversial “single-bullet theory” that was eventually embraced by the panel and still stands to this day, despite the cry of conspiracy theorists who say there was more than one gunman in Dallas that November day.

“Admittedly a strange path for a bullet to take, but sometimes truth is stranger than fiction,” Specter said.

We have had a complicated relationship with Arlen Specter here at Emptywheel, sometimes castigating him, sometimes praising him, sometimes laughing at him, sometimes laughing with him. Specter engendered all those things. But I always sensed a very decent heart beating underneath Specter’s surface, even if it was all too often masked by his votes for, and often vociferous support of, ever more destructive policies of the right.

For this, Specter earned the nickname “Scottish Haggis” here in the annals of Emptywheel. The term had its root in Mr. Specter’s predilection for Scottish Law, and goes all the way back to the original incarnation at The Next Hurrah. For a number of reasons, offal and otherwise, it was a nickname that stuck and seemed appropos and seemed to reflect the complicated nature of Senator Specter.

On a personal note, I did not have an abundance of interaction with Sen. Specter and his office, but in that which I did have, I found him and his office to be beyond both kind and professional. One instance stands head and shoulders above the others, and surrounded the Obama scuttled nomination of Dawn Johnsen to be head of the Office of Legal Counsel (OLC). It was my contention from the outset that the whip count votes were there to confirm Professor Johnsen for the job she was perfect for. And, in the roiling aftermath of the Bush/Cheney unitary executive excesses, the country desperately needed Johnsen’s intellectual sense of honesty and Constitutional integrity.

The only reason Dawn Johnsen did not get confirmed as OLC head was Barack Obama used her as false bait and cat nip for the more noisy progressive liberals. It was a glaring sign of depressing things to come from the not nearly as Constitution minded Barack Obama as had been pitched in his election run. Not only could Johnsen have been confirmed, as I pointed out before, she could also have been recess appointed by Obama. Despite all the ridicule I took at the time, that point has been proved conclusively by the later recess appointment of Richard Cordray to be head of the CFPB (another instance of Obama using a supremely qualified progressive, Elizabeth Warren, as bait and then hanging her out to dry).

The point was never that Dawn Johnsen couldn’t be confirmed, it was that Barack Obama and the insiders of his White House did not want her confirmed into leadership of the OLC. I knew that from talking to several inside the DOJ and Senate Judiciary Committee, but that was all off the record. When I found an obscure old comment from Arlen Specter indicating he was willing to support a cloture vote for Johnsen as far back as his second meeting with Dawn Johnsen on or about May 12, 2009, it was by then an old, and quite obscure comment. Specter could have walked it back or dissembled on the subject.

Arlen Specter didn’t walk it back or dissemble, instead he personally confirmed it to me. With the already in the bag vote of Sen. Richard Lugar, that was the 60 votes for Dawn Johnsen at OLC. Specter knew it would infuriate both the GOP and the Obama White House, and he knew exactly what story I was writing. He stood up. Oh, and, yes, he knew about “Scottish Haggis” too. The man had a sense of humor.

For the above vignette, and several others, I will always have a soft spot in my heart for Snarlin Arlen Specter. His life and work in government spanned over five decades, he has got my salute today.

Sen. Specter repeatedly had to fight off serious cancer, and he did so with aplomb, courage and his good humor. He also was a tireless champion for the NIH and funding of cancer and stem cell research. When confronted with the last battle, the one which finally took him, Specter was upbeat, defiant and determined to get back to his part time hobby of stand up comedy. May the Scottish Haggis have many laughs wherever he may travel.

How Dare the President Protect Consumers!?!?!

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We’ll have to come back to the issue of why President Obama decided to use his recess authority to appoint Richard Cordray to head the Consumer Financial Protection Board but not Dawn Johnsen or Elizabeth Warren. But for now, I’d like to collect the wails of Republican outrage.

Shorter John Boehner: Protecting consumers from rapacious banks is an extraordinary and entirely unprecedented power grab! Protecting consumers is bad for the economy!

Shorter Mitch McConnell: Obama has arrogantly circumvented the American people by protecting the American people!

Shorter Orrin Hatch: It is a very grave decision by this heavy-handed, autocratic White House to appoint someone to protect consumers. The American people deserve to be treated with more respect than this White House is affording them by protecting them from the banks!

Shorter Spencer Bachus: Appointing a director to the CFPB will cripple it for years. The greatest threat to our economy right now is uncertainty, and by protecting consumers the President just guaranteed there will be even more uncertainty.

 

No Wonder the Administration Didn’t Want Buck McKeon’s New AUMF; Marty Lederman Already Gave Them One

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Glenn Greenwald has a typically provocative post on the news that Marty Lederman and David Barron wrote the authorization to kill Anwar al-Awlaki. He uses Dawn Johnsen’s comments on the way secret OLC memos create secret law that undermine democracy.

Obama’s original choice to head the OLC, Dawn Johnsen, repeatedly railed against this Bush practice of concealing OLC memos as “secret law,” writing that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.”  In her April, 2008 testimony before the Senate Judiciary Committee, she was nothing short of scathing on the practice of concealing OLC memos. [Glenn’s emphasis]

From there, he notes that Lederman and Barron used the same justification–the AUMF–that John Yoo used to justify the detention without due process of Jose Padilla.

So the AUMF allowed the President to designate Awlaki an “enemy combatant” without a shred of due process, and then to act against him using the powers of war, because we are at war with an entity for which Awlaki had become a combatant.

There are many problems with that reasoning, but one in particular that deserves attention now is this: that was exactly the theory repeatedly offered by the Bush DOJ for far less draconian acts than assassinating a U.S. citizen, and it was one that the very same Marty Lederman categorically rejected.  As I’ve noted many times, one of the most controversial Bush/Cheney acts was its claimed power to detain U.S. citizen Jose Padilla without charges or due process — not to kill him, but merely detain him — on the theory that the AUMF authorized the President to designate him as an “enemy combatant” and treat him accordingly. [Glenn’s emphasis]

I’m not sure I buy this comparison. There are times when the US might legally wage war against one of its citizens, but because of its own secrecy, the Administration has simply not made the case that that is true in this case.

One of the big problems with Lederman and Barron’s interpretation of the AUMF, though–one Glenn doesn’t treat closely but which perfectly exemplifies Johnsen’s point–is the extension of the AUMF to apply to AQAP, an entity that simply didn’t exist when the AUMF authorized war against groups that had launched 9/11.

Other assertions about Mr. Awlaki included that he was a leader of [AQAP], which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

One area where Lederman’s reported memo is particularly dangerous, IMO, is in the extension of the AUMF to groups clearly not included in the congressional authorization.

All the more so given events that have transpired since the memo was written in June 2010. One of the first things the new Chair of the House Armed Services Committee, Buck McKeon, did after last year’s election was to call for a new AUMF. Notably, he wanted to include Yemen (and AQAP) in the new AUMF. The Administration was disinterested in that new AUMF, stating they believed already had the authority to do what they need to.

They claim to have that authority, of course, because Marty Lederman said they have it.

No wonder they discouraged a new AUMF! An open debate over the new terms of the AUMF might interpret AQAP more restrictively than Lederman did in secret, which might have challenged the OLC memo authorizing the Awlaki killing (yeah, I know, the chances of that are almost nonexistent).

Furthermore, I wonder whether the Administration told Congress they had already effectively legally expanded the AUMF? McKeon counterpart Carl Levin’s call for the Administration to release the memo makes me wonder whether he has seen it, and if not whether he knows the Administration legally expanded the AUMF by secret fiat.

Which is why Glenn’s point that the Administration avoided not just Article III oversight, during the ACLU/CCR suit, on this killing, but also Congressional oversight is so important. I don’t support McKeon’s effort to write a new AUMF. But it is undeniable that Congress proposed changing the law in such a way that would have given the Awlaki killing more–though probably not adequate–sanction. Rather than embracing the opportunity by working with Congress to formally extend the war to Yemen and AQAP, the Administration instead operated with the secret self-sanction Lederman had already given it.

The Administration chose not to avail itself of the opportunity to explain in the context of an Article III court why it had the authority to kill Awlaki. So, too, it chose not to avail itself of the opportunity to negotiate with Congress to give the Awlaki killing more (though not adequate) legal sanction. Instead, it used its own secret law-making power to do what the other two branches of government could have done with transparency and legitimacy.

Update: Meanwhile, McKeon is holding the Defense Authorization hostage to his bigotry.

“As I plan to inform the White House”

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DDay already noted Peter Diamond’s op-ed withdrawing his nomination as a Fed Governor. But I wanted to emphasize one thing:

It is time for me to withdraw, as I plan to inform the White House.

It appears that this very public complaint was how Diamond informed the White House he was withdrawing–not a discrete phone call.

That’s not the normal way nominees handle communications with the White House.

To be fair, Diamond focuses all of his criticism in the op-ed on the Republicans who believe a Nobel prize winner is unqualified to serve on the Fed. The op-ed itself does not criticize the White House’s handing of the nomination.

But if it’s true that this was Diamond’s way of informing the White House, then it suggests he’s pretty damned pissed at the White House as well. As well he should be–he got the same treatment Dawn Johnsen and Goodwin Liu did, with repeated renominations but no public fight (or recess appointment).

That club of good nominees hung out to dry by this White House is growing longer.

Elizabeth Warren Drops Harvard Course at Last Minute

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Following closely on the reporting that Wall Street has resigned itself to having Elizabeth Warren recess appointed to head the Consumer Finance Protection Board, the WaPo reports that she has backed out of teaching a Harvard class at the last minute.

“I’m writing to let you know that Professor Jerry Frug will be teaching your Contracts class this term instead of Professor Elizabeth Warren,” law school dean Martha Minow wrote to students on Tuesday, according to an e-mail obtained by The Washington Post. “Professor Warren regrets that she will not be able to teach you this fall and we regret the last minute change.”

Of course, Dawn Johnsen canceled over a year of law school classes before she got hung out to dry by the Administration. So while this is an intriguing development, don’t count any consumer protection chickens yet.

Obama’s Relentless Abandonment of Progressive Nominees

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Barack Obama was never a hard liberal nor progressive, whatever the supposed difference between the two really is. Those blinded by hope and change who thought otherwise were imprinting their own desires and beliefs on what was a relatively blank slate, which was probably easy enough to do in the despair resultant from the eight years of George Bush. By the same token, however, Mr. Obama cultivated and encouraged such beliefs; this he worked hard at, and it was critical to him being elected president.

Now if you listened to, and read Obama, and paid attention, you knew he was a centrist who worked by increment, compromise and seeking consensus as opposed to a liberal beacon that would take the country in a new and markedly different direction. Again, that said, the liberals and progressives who served as the ground force, heart and soul of Obama’s candidacy and election had every right to believe he would would at least include them at his table and utilize their talents in his Administration and appointments. There was an implicit deal made in this regard, and Obama purchased on it to his wild success. Now he has defaulted.

I first wrote significantly on the betrayal of the Obama White House toward liberal nominees in relation to the nomination of Dawn Johnsen to the critical post of head of the Department of Justice’s Office of Legal Counsel. The scorn for, and abandonment of, the Johnsen nomination still stands out because of the fact it is clearly established that there were 60 votes cloture on a Senate floor vote for Johnsen’s nomination. It wasn’t that Johnsen could not be confirmed, she absolutely could have been and would have been; it was that Obama did not want her and would not call for a vote.

Johnsen was not only the best person for a critical job, she was a symbol to a critical part of Obama’s and the Democratic constituency. It is far more than Dawn Johnsen however it is a pattern of abuse and scorn the Obama White House relentlessly exhibits to a major portion of the base. Currently the focus of progressives is on the potential nomination of Elizabeth Warren as head of the newly enacted Consumer Financial Protection Bureau. Despite some public platitudes, it is quite clear the Obama Administration does not want a competent crusader for citizens like Warren and, apparently, is working through the cut out of Chris Dodd to see Warren doesn’t get the nod.

Maybe the pressure will get to the Obama White House and Warren will get the post she deserves and would be perfect for; but don’t count on it because Obama, Geithner, Summers, Rahm and the boys on the Obama bus just do not want her. And they didn’t want Christine Romer either, so they let the misogynistic, consistently wrong about everything he touches, Larry Summers push her out. It is becoming a broken record with this White House.

Most distressing to me, because I practice law in the 9th Circuit, is the complete abandonment of two critical liberal judicial nominees, Goodwin Liu and Edward Chen; you may not be aware of because Read more →

Another Obama Recess Appointment For Someone Not Named Johnsen

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President Obama has announced yet another recess appointment; the courtesy and propriety that he would not give to Dawn Johnsen:

President Barack Obama, frustrated by Republican obstruction of key administration staffing appointments, will use his power to appoint his pick to run Medicare and Medicaid while the U.S. Congress is in recess, the White House said on Tuesday.

Obama will make the appointment on Wednesday of Dr. Donald Berwick, a healthcare expert he nominated in April to run the vast federal medical programs for poor and elderly Americans, according to White House Communications Director Dan Pfeiffer.

Obama has found the inner spine to recess appoint NLRB member Craig Becker along with 14 other people to a variety of positions from the DOJ to Treasury Department, has stated he will do so for militarized spook James Clapper (who neither side seems to like), and now Donald Berwick.

Obama seems to consider Berwick critical:

Berwick’s appointment as administrator of the Centers for Medicare and Medicaid Services (CMS) place him at the heart of Obama’s historic healthcare reform, and the role was too vital to leave unfilled, Pfeiffer said.

“CMS has been without a permanent administrator since 2006, and even many Republicans have called on the Administration to move to quickly to name a permanent head,” he said.

Dan Pfeiffer and the White House are full of dung. If “many Republicans” were clamoring for his nominee, even a couple in the Senate, he would not need to recess appoint. What is truly stunning though is that Obama considers this position critical, but not the head of the Office of Legal Counsel, the body that is supposed to be the legal conscience of an administration. Equally galling is the fact the White House trots out the excuse that “CMS has been without a permanent administrator since 2006”. Four years is too long for CMS, but six years is no problem for the critical Office of Legal Counsel? Really?

As I have repeatedly explained and demonstrated with facts and evidence, Barack Obama had 60 votes for confirmation of Dawn Johnsen to head OLC for the entire second half of last year and sat on her nomination, refusing to even call a vote. The fact that Obama flat out refused to even consider a recess nomination for Dawn Johnsen to an office dying for real leadership, and that he will use the recess appointment power anywhere and everywhere else, ought to be proof to any doubters that the sole reason Dawn Johnsen is not leading the OLC is because Barack Obama did not want her there.

For a President intent on granting retroactive FISA immunity to criminally complicit telecoms, asserting endless claims of “state secrecy” to cover up crimes of the Bush/Cheney Administration, suppressing torture photos, tapes and evidence, ordering the indefinite detentions without trial or due process and ordering the extra-judicial assassination of remote targets (including American citizens), well I guess a person of Dawn Johnsen’s morals and ethics indeed might not be convenient. Even given that, why did the White House engage in such crass duplicity with the country and hang Dawn Johnsen out to dry for so long? Why won’t anybody ask that question of them and demand a legitimate answer?

The Use of False Passports Does Not Make Someone an Al Qaeda Member

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Happy Fourth of July.

This week, the DC Circuit Court had to tell the government that using false passports does not make someone an al Qaeda member.

At issue is the appeal of Belkacem Bensayah, an Algerian who had been living in Bosnia alleged to have arranged travel for five others (the rest of the detainees set free after the Boumediene decision gave them habeas rights) to go to Afghanistan to fight the Americans. In the past, the government has claimed the phone number of a “senior al Qaeda member”–reported to be Abu Zubaydah–was found in his possession (PDF 19); in addition, a senior al Qaeda member (presumably also a reference to Abu Zubaydah) “reported he has known the detainee since 1993 when the detainee went to Afghanistan from the war in Tajikistan.”

But the evidence presented in his factual return consists of the following:

  • An intelligence report, labeled, “INFORMATION REPORT, NOT FINALLY EVALUATED INTELLIGENCE,” which the District Court determined could not be relied upon by itself because of “uncertainty about the source of the document and how the information therein was gathered”
  • Claims that Bensayah had ties to Abu Zubaydah–though the Appeals ruling notes that the government provided no evidence of any contact between the two
  • Proof that Bensayah had traveled on false passports in the past (Bensayah said he did so to avoid being sent back to Algeria where he feared prosecution)
  • Questions about his whereabouts in the 1990s, none of which alleges a tie to al Qaeda

The Appeals Court bounced this case back to the District Court to see if the government could come up with any more evidence.

So at one level, this is another of the many cases where the government has detained someone for years based on what Courts say is a too-tenuous connection to al Qaeda.

But this case is all the more interesting because of the way it relates to questions I raised the other day about Kagan’s comments about indefinite detention. As Charlie Savage reported in detail in March, once the Obama Administration backed off Bush’s justification for detaining alleged terrorists under Article II, it set off a debate within the Administration over whether they could detain people who had just supported–but were not a part of–al Qaeda. Harold Koh said they could not, Jeh Johnson said they could, and David Barron, acting head of OLC, basically just punted. Read more →

A Recess Appointment for Militarized Spooks But Not for Rule of Law

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Remember how Dawn Johnsen’s nomination to head OLC languished and then died as Obama claimed–falsely–not to have the votes? Obama pointedly didn’t use a recess appointment to put his incredibly qualified candidate in the post.

Not so for James Clapper, whom Obama is preparing to recess appoint to head Director of National Intelligence rather than make concessions on intelligence oversight to Congress. As Marc Ambinder reports, DiFi won’t hold hearings for James Clapper until an intelligence authorization is passed, but Nancy Pelosi wants to use that intelligence authorization to force the Administration to expand notice on covert programs. And since that’s all going to take a lot of time (and Obama doesn’t want to be forced by Congress to expand notification), Obama’s likely to recess Clapper.

So not just is Obama appointing someone who wants to dismantle DNI even while Congress thinks it should be strengthened, but he’s doing so in such a way that deliberately avoids reestablishing the balance of power between the branches of government.

Hey, Obama? All that crazy covert stuff that will expand in DOD under Clapper? All the problems that’s going to cause? You own that.

Dawn Johnsen: Finish the Job of Fixing Office of Legal Counsel

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Dawn Johnsen has a must-read op-ed today describing how the Bybee memo damaged the Office of Legal Counsel.

In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department’s Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination — withdrawn this spring — to head this office. While attention understandably is focused on confirming the president’s Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.

It is long past time to halt the damage caused by the “torture memo” by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding.

There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo — and my profoundly negative reaction to it — was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.

While I agree with everything Johnsen says (go figure), I’m wondering, why now? Is she worried that Obama’s preparing to nominate someone who does think the Bybee memo is reasonable? There’s also this bit, at the end, which suggests she’s pushing for more transparency in OLC than there is now.

The example of the torture memo argues heavily for greater transparency so that lawmakers and the American people may better understand and respond to the actions of their government. Of course, public explanations must safeguard national security, including sources and methods. But the memo’s conclusion that the president’s constitutional authorities entitled him to override the federal torture law is a clear example of legal analysis the government should make public. That’s how democracies work.

[snip]

The OLC can be the last word on legal issues that may never get to court. In such cases, public scrutiny and debate provide the most effective check against unduly expansive theories of presidential power. The stability of the rule of law must not depend on leaks.

Granted, the torture memo did come out via a leak, so her comment is not totally out of context. But we have had a recent leak about OLC’s involvement in efforts to make our stance on Gitmo trials coincide with our stance on drones.

Is there something specific Johnsen is responding to?