Posts

Hedges NDAA Indefinite Detention Decision Stayed By 2nd Circuit

/11 Comments/in , , , , , /by

As much as I, and most who care about Constitutional protections and Article III courts still having a function in balance of power determinations, the recent 112 page ruling by Judge Katherine Forrest in SDNY (see here and, more importantly, here) had fundamental issues that made review certain, and reversal all but so.

The first step was to seek a stay in the SDNY trial court, which Judge Forrest predictably refused; but then the matter would go to the Second Circuit, and the stay application was formally filed today.

Well, that didn’t take long. From Josh Gerstein at Politico, just filed:

A single federal appeals court judge put a temporary hold Monday night on a district court judge’s ruling blocking enforcement of indefinite detention provisions in a defense bill passed by Congress and signed into law last year by President Barack Obama.

U.S. Court of Appeals for the 2nd Circuit Judge Raymond Lohier issued a one-page order staying the district court judge’s injunction until a three-judge panel of the court can take up the issue on September 28.

Lohier offered no explanation or rationale for the temporary stay.

Here is the actual order both granting the temporary stay and scheduling the September 28 motions panel consideration.

This is effectively an administrative stay until the full three judge motions panel can consider the matter properly on September 28th. But I would be shocked if the full panel does anything but continue the stay for the pendency of the appeal.

DOJ Files Appeal: Further Thoughts On Hedges and The Lawfare/Wittes Analysis

/8 Comments/in , , , , , , /by

Last night (well for me, early morning by the blog clock) I did a post on the decision in the SDNY case of Hedges et. al v. Obama. It was, save for some extended quotations, a relatively short post that touched perhaps too much on the positive and not enough on the inherent problems that lead me to conclude at the end of the post that the decision’s odds on appeal are dire.

I also noted that it was certain the DOJ would appeal Judge Forrest’s decision. Well, that didn’t take long, it has already occurred. This afternoon, the DOJ filed their Notice of Appeal.

As nearly all initial notices of appeal are, it is a perfunctory two page document. But the intent and resolve of DOJ is crystal clear. Let’s talk about why the DOJ is being so immediately aggressive and what their chances are.

I woke up this morning and saw the, albeit it not specifically targeted, counterpoint to my initial rosy take offered by Ben Wittes at Lawfare, and I realized there was a duty to do a better job of discussing the problems with Forrest’s decision as well. Wittes’ post is worth a read so that the flip side of the joy those of us on the left currently feel is tempered a bit by the stark realities of where Katherine Forrest’s handiwork is truly headed.

Wittes makes three main critiques. The first:

So put simply, Judge Forrest’s entire opinion hinges on the idea that the NDAA expanded the AUMF detention authority, yet she never once states honestly the D.C. Circuit law extant at the time of its passage—law which unambiguously supports the government’s contention that the NDAA affected little or no substantive change in the AUMF detention power.

Secondly:

Second, Judge Forrest is also deeply confused about the applicability of the laws of war to detention authority under U.S. domestic law. She does actually does spend a great deal of time talking about Al-Bihani, just not about the part of it that really matters to the NDAA. She fixates instead on the panel majority’s determination that the laws of war do not govern detentions because they are not part of U.S. domestic law. Why exactly she thinks this point is relevant I’m not quite sure. She seems to think that the laws of war are vaguer and more permissive than the AUMF—precisely the opposite of the Al-Bihani panel’s assumption that the laws of war would impose additional constraints. But never mind. Someone needs to tell Judge Forrest that the D.C. Circuit, in its famous non-en-banc en-banc repudiated that aspect of the panel decision denying the applicability of the laws of war and has since assumed that the laws of war do inform detention authority under the AUMF. In other words, Judge Forrest ignores—indeed misrepresents—Al-Bihani on the key matter to which it is surpassingly relevant, and she fixates on an aspect of the opinion that is far less relevant and that, in any case, is no longer good law.

Lastly, Ben feels the scope of the permanent injunction prescribed by Forrest is overbroad:

Judge Forrest is surely not the first district court judge to try to enjoin the government with respect to those not party to a litigation and engaged in conduct not resembling the conduct the parties allege in their complaint. But her decision represents an extreme kind of case of this behavior. After all, “in any manner and as to any person” would seem by its terms to cover U.S. detention operations in Afghanistan.

First off, although I did not quote that portion of Ben’s analysis, but I think we both agree that Judge Forrest pens overly long and loosely constructed opinions, if the two in Hedges are any Read more →

Chris Hedges et. al Win Another Round On the NDAA

/12 Comments/in , , , , , , , , , /by

You may remember back in mid May Chris Hedges, Dan Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, Kai Wargalla, Birgetta Jonsdottir and the US Day of Rage won a surprising, nee stunning, ruling from Judge Katherine Forrest in the Southern District of New York. Many of us who litigate felt the plaintiffs would never even be given standing, much less prevail on the merits. But, in a ruling dated May 16, 2012, Forrest gave the plaintiffs not only standing, but the affirmative win by issuing a preliminary injunction.

Late yesterday came even better news for Hedges and friends, the issuance of a permanent injunction. I will say this about Judge Forrest, she is not brief as the first ruling was 68 pages, and todays consumes a whopping 112 pages. Here is the setup, as laid out by Forrest (p. 3-4):

Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).

At the March hearing, the Government was unable to provide this Court with any assurance that plaintiffs’ activities (about which the Government had known–and indeed about which the Government had previously deposed those individuals) would not in fact subject plaintiffs to military detention pursuant to § 1021(b)(2). Following the March hearing (and the Court’s May 16 Opinion on the preliminary injunction), the Government fundamentally changed its position.

In its May 25, 2012, motion for reconsideration, the Government put forth the qualified position that plaintiffs’ particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would not subject plaintiffs to military detention under § 1021. The Government did not–and does not–generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the Read more →

DOJ Ethics: PIN Heads, Bloch Heads & The Rocket

/19 Comments/in , , , /by

Whoooosh! And, like that, the complete acquittal in USA v. William Roger Clemens came and went. The five year long, over $10 million Clemens prosecution was a joke on the tax paying American public.

And so it goes for one defendant accused by the Department of Justice. What about other defendants who have come within the purview of the DOJ for false statements, perjury and obstruction of Congress? Say, for instance, our old friend Scott Bloch.

A friend of mine asked if the following order entered yesterday in Bloch’s case by DC District Court Magistrate Judge Deborah Robinson meant Scott Bloch must report immediately to Jail?

By a petition filed on June 19, 2012, the United States Probation Office advised that Defendant requests permission to travel internationally in August, 2012. U.S. Probation Office Petition (Document No. [74]) at 1. In the petition, the Probation Office notes that on April 27, 2010, Defendant was released by this court pending sentencing, subject to the condition, inter alia, that he report his travel plans to the Probation Office. Id.; see also Release Order (Document No. 5). The release order was entered after Defendant appeared before the undersigned and entered a plea of guilty to a one-count information by which he was charged with criminal contempt of Congress. 04/27/2010 Minute Entry. However, by an order filed on August 2, 2011, Defendant was permitted to withdraw his plea. Memorandum Opinion and Order (Document No. 73) at 1, 13. In the interim, no other charge has been filed, and no further proceedings have been scheduled; accordingly, Defendant is not on release pending sentencing, and has not been since August 2, 2011, the date on which he was permitted to withdraw his plea. It is, therefore, ORDERED that the release order (Document No. 5) is hereby VACATED nunc pro tunc to August 2, 2011. (lcdar3)

No, my friend was joking; but, still, the laugh is superbly taken. Looks to me like Bloch is scott free (some pun intended) OR (Own Recognizance) pending any other charges. Where are the new charges and/or plea?

When, if ever, will the DOJ Public Integrity Section (PIN) get around to pursuing the blatant in your face, egregious, actual crime against Congress committed by a critical federal investigative and prosecutorial attorney appointed to protect federal employees and whistleblowers instead of the silly corporate and in-bred Congressional protection racket charges inherent in the Roger Clemens, Barry Bonds and John Edwards prosecutions?

Okay, if I was Bloch’s defense attorney, William Sullivan of Pillsbury, I would absolutely say this is bunk, put my client on OR or cut him loose considering the dilly dallying, thumbs in ass, conduct of the DOJ. Since I am not him, I would like to know what the heck is going on. It has been nearly a year since Royce Lamberth, somewhat surprisingly, allowed Bloch to withdraw from his plea.

In their collusive attempt to get Bloch’s plea withdrawn, the DOJ and Bloch avowed they had already been discussing alternative paths for either charging or plea. That was before Lamberth allowed the withdrawal, i.e. well over a year ago. What in the world is stopping the DOJ from prosecuting this Criminal? In that same time period, they tried Roger Clemens twice, the second one lasting over two months, but apparently they just can’t find the time to prosecute a real criminal like Scott Bloch, doing real damage to government and Congress

Here is the thing, the date of the “Geek Squad wipe” Bloch obstructively did to his government computers was 12/18/2006 – the statute has now presumptively run on that. House Oversight requested their depo/interview on 12/6/2007 and actually took it on 3/4/2008. So, probably, there are still offenses within the SOL but it is wasting away. This just is NOT that complicated of a gig IF you are not completely pulling punches.

Seriously, please, tell me why we are still hanging where we are? A misdemeanor level rookie municipal prosecutor could have convicted Bloch in about a day and a half, maybe two day, long trial. The crack team at DOJ lead by the heads of PIN just can’t get er done? Scott Bloch should be heading to prison, not off on an Independence Day holiday vacation.

The real question here is not when will Bloch be dealt with, but why has he not been standardly, and appropriately – yet – still, even as of this quite late date within the statute of limitations? This course of conduct by the DOJ of colluding with Bloch to have him avoid accountability is a mocking joke on both the Article I Congress and the Article III Court. Yet, no questions are asked, no explanations given by DOJ, and few, if any, answers demanded by the press or Congress. The Obama DOJ, from their first moment, unequivocally, and inexplicably, aligned and sided with the criminal defendant Bloch, and diametrically opposite the interest of the public and rule of law.

Why do you think that is? Take a look at this in contrast to the way Roger Clemens was treated by the United States Department of Justice. And the way the Banksters have NOT been treated to the “niceties” of the US Criminal Justice system.

Golly, I wonder why that is? If Barack Obama and Eric Holder’s DOJ cannot answer for the lack of viable Wall Street/Financial Products Industry prosecutions, and have such little to say after the catastrophically worthless persecution of Roger Clemens, maybe the DOJ could at least tell the people it represents what the hell it is doing with Mr. Scott Bloch.

Naw, that is probably just too much to ask from America’s finest.

Rocket Pitches A No Hitter; DOJ Whiffs A Golden Sombrero+2

/13 Comments/in , , , , /by

Six up, and six down for William Roger Clemens. From Jim Bambach at Newsday:

Former Yankees pitcher Roger Clemens was acquitted Monday on all six counts in his trial on charges he lied to Congress when he denied using performance-enhancing drugs, ending a 41/2-year battle to clear his name.

The jury deliberated for less than 12 hours before reaching a verdict, capping a two-month trial at which 46 witnesses appeared, including the wives of Clemens and accuser Brian McNamee.

Yep, six counts alleged, six counts acquitted on. Not a hit on any of them. And if the jury deliberations had not have been broken up by a weekend, the verdict may well not have taken even the nine plus hours it did. From the clear call of the unanimous verdicts, I would also hazard a guess that the jury may not even have been out the short time it was but for the fact lead Clemens defense attorney Rusty Hardin opened a wee door in cross-examining the tainted prosecution star witness Brian McNamee, allowing for, eventually superfluous, rebuttal evidence to come in by the DOJ to try to bolster their flawed criminal witness McNamee. Even that was clearly nowhere enough for the wise jury.

The entire substantive DOJ case flowed through two discredited and sham witnesses, Brian McNamee and the always questionable Fed Investigator Jeff Novitsky. If they were not discredited before, let the record reflect they are now.

More from Bambach:

Clemens’ attorney Rusty Hardin called his client “a helluva man.”

“This is a celebration for us,” Hardin said. “Let me tell you something. Justice won out.”

The loss was a blow to the Justice Department and the prosecution, which last year caused a mistrial on the second day of the trial.

Prosecutors declined to comment on their way out of the courthouse.

Yes, the Brave Sir Robin like crack prosecutors at DOJ so ethically turned their heads and fled like Sir Robin. Brave Sir Robin.

The focus, though, is easy to peg on Brian McNamee, and does he deserve it. But, remember, the single person who pushed this puppet theater, in addition to George Mitchell and corporate interest, Bud Selig, was Jeff Novitsky. One still wonders if the story of the MLB, IRS, DEA, HOS/GRC(Waxman/Congress) and Novitsky “workgroup” will ever be fully disclosed; but the Read more →

Why The DOJ Can’t Prosecute Banksters: Map of Clemens Investigation

/22 Comments/in , , , , /by

At a time when there are still no significant prosecutions of major players, banks and investment shops responsible for the financial fraud that nearly toppled the world economy and is still choking the US economy, we get an explanation why from an unlikely source – the Roger Clemens trial in Judge Reggie Walton’s courtroom in the DC District. During defense examination of FBI special agent John Longmire today, a map of the FBI/DOJ investigation of Roger Clemens, who was accused of lying about getting a few steroid shots in the late 90s and early 2000s, was displayed. We are now two full months into the second trial of Roger Clemens stemming from this investigation.

Any more questions on why DOJ cannot get around to prosecuting banksters??

The Ted Stevens OPR Report: The Return of the DOJ Roach Motel

/7 Comments/in , , /by

The long awaited, and much anticipated, DOJ Office of Professional Responsibility (OPR) Report on the misconduct in the Ted Stevens Prosecution has just been delivered to Congress, and thereafter immediately released to the public by the Senate Judiciary Committee. I know this will shock one and all but, at least as to real results, it is fairly weak tea.

Legal Times reports:

A Justice Department internal investigation of the botched prosecution of Ted Stevens concluded two prosecutors committed reckless professional misconduct and should be sanctioned through forced time off without pay.

DOJ officials recommended Joseph Bottini be suspended without pay for 40 days and James Goeke be suspended for 15 days without pay. DOJ did not find that either prosecutor acted intentionally to violate ethics rules, a finding that is contrary to a parallel criminal investigation. Bottini and Goeke have the option to appeal the misconduct finding to the Merit System Protection Board.
….
Department officials said Bottini and Goeke failed to disclose information a chief government witness, Bill Allen, provided to investigators and prosecutors at a meeting in 2008, before Stevens was charged. Allen’s credibility was central to the prosecution case that Stevens concealed gifts and other items on U.S. Senate financial disclosure forms.

OPR did not make any professional misconduct findings against any of the other Stevens prosecutors, including William Welch II, Brenda Morris and Edward Sullivan. OPR, however, concluded that Morris, then a supervisor in the Public Integrity Section, exercised poor judgment by failing to supervise “certain aspects of the disclosure process.”

A special counsel who conducted a parallel probe of the Stevens team, after the case was dismissed in April 2009, did not recommend criminal charges against any of the Stevens prosecution team.

However, the lawyer, Henry “Hank” Schuelke III, concluded that Goeke and Bottini committed intentional misconduct in concealing exculpatory information. The two prosecutors dispute that finding.

Yeah, that about sums it up.

Cover letter to the Senate Judiciary Committee

Here are all the relevant documents (note: the pdf on the report itself is huge – 672 pages):

Office of Professional Responsibility Report

Bottini Decision

Bottini Disciplinary Proposal

Bottini Response

Goeke Decision

Goeke Disciplinary Proposal

Goeke Response

Goeke Response Appendix

A little more than two years ago I wrote about the inherent worthlessness of the OPR at DOJ:

Most governmental agencies have independent Inspectors General which operate independently of the agency leadership, have jurisdiction of the entire agency including legal counsel, and thus have credibility as somewhat neutral and detached evaluators and voices. Not so the DOJ, who has arrogated upon themselves the sole right to sit in judgment of themselves. This action to grab the exclusive authority for themselves and exclude the independent IG was first accomplished by Attorney General Order 1931-94 dated November 8, 1994 subsequently codified into the Code of Federal Regulations and reinforced through section 308 of the 2002 Department of Justice Reauthorization Act. Just in time for the war on terror legal shenanigans!

Go back and read that post again, I am too tired to write it again and nothing has changed. What a load of bunk the Stevens OPR Report is. Some harsh words for sure, but, as to actual accountability – a rap on the knuckles with a foam ruler.

Ted Stevens lost his Senate seat these twits get an unpaid vacation.

The OPR is STILL The Roach Motel.

William Welch Leaving DOJ; Main Justice Circles The Ethical Wagons

/10 Comments/in , , , , , /by

Apparently the thrill is finally gone, or at least soon to be gone. Carrie Johnson at NPR has just reported:

A federal prosecutor who led the elite public integrity unit when the case against the late Alaska Sen. Ted Stevens collapsed has told associates he will leave the Justice Department.
….
A spokeswoman for the Justice Department and a representative for Welch had no comment on his departure, which one source said he characterized as a “retirement.”

Welch had been scheduled to lead a controversial prosecution later this year of former CIA official Jeffrey Sterling, who is accused of leaking secrets to New York Times reporter James Risen. That case has drawn widespread media attention because it could set important precedent on the issue of whether reporters enjoy some sort of legal privilege that could help them protect their sources.

This is interesting, actually fascinating news. As Carrie notes the Sterling matter is hanging in the lurch. In fact, it is waiting on an interlocutory appeal decision from the 4th Circuit over claims that the DOJ, once again led by Welch, played fast and loose with critical evidence disclosure. I do not, however, think that the impetus behind this somewhat surprising announcement. The 4th case appears to have completed briefing with the government’s filing of a redacted reply about six weeks ago; however, I don’t think a decision is likely coming that fast and federal appellate courts are not that leaky. Although, to be fair, District and Circuit courts do, occasionally in media intensive cases, give the parties a heads up a decision is coming.

More likely, this is more fallout from the Ted Stevens case and the Schuelke report. In fairness to Welch, he was not one of the hardest hit DOJ attorneys in Schuelke’s report, but he was blistered by Schuelke at Schuelke’s testimony in front of the Senate Judiciary Committee in late March:

Schuelke said tight deadlines before the lawmaker’s October 2008 trial and a series of missteps within the Justice Department’s public integrity unit where leaders William Welch and Brenda Morris “abdicated supervisory responsibility” contributed to the evidence sharing lapses. The failings prompted new Attorney General Eric Holder to abandon the case in 2009; Stevens died a year later in a plane crash after he had lost his Senate seat.

The odds are fairly good that the DOJ is putting the finishing touches on its long awaited OPR report on the Stevens fiasco and, after Schuelke, needs a sacrificial lamb. And Welch is a prime candidate to be sacrificed. But that would beg the question of what will they do about Brenda Morris, whose conduct in Stevens was much more egregious and central, as a supervisor, that even that of Welch. And it should not be forgotten that Brenda Morris was also smack dab in the middle of another catastrophic black eye for the DOJ, the Alabama bingo cases. So, there are some real questions for DOJ there.

As to William Welch though, with both the OPR report nearing completion, and the prospect of a House Judiciary inquiry looming later this week, it would seem that Welch’s newfound desire for “retirement” has a bit of a forced edge to it.

One last thing should be kept in mind: the legislation proposed by Lisa Murkowski and having key bi-partisan backing after Stevens and the Schuelke Report, to reform federal evidence disclosure rules for the DOJ. The DOJ is literally, and cravenly, apoplectic about the proposed reform and has promised they have “learned their lesson” and that everybody should just “trust us”.

DOJ had been fighting disclosure reform hard for quite a long time; but there will never be better momentum than is present now, and they know it. Any seasoned criminal defense attorney will confirm that the far more open and reciprocal discovery rules found at the state level in several more enlightened jurisdictions (I can vouch for this in Arizona, which is one of them) work far better than the archaic disclosure rules extant in federal court. It would be a huge benefit to fairness in the criminal justice process, and it IS an attainable goal. And that, too, may be why we are seeing the sacrifice of William Welch.

New Anthrax Scare: This Time Leahy’s Letter Tests Negative

/19 Comments/in /by

With the war drums on Iran beating loudly, homeland security theater is ratcheting up yet another level as a wave of letters containing a powdery substance have been mailed again to media and political figures. This time, unlike the October-November 2001 episode, all letters tested so far have been negative for anthrax or other harmful substances, but the mailer has threatened that ten percent of the large number of letters mailed will be deadly. Most notable in this current series is that a letter was received at the Burlington, Vermont office of Senator Patrick Leahy. Recall that Senator Leahy was one of those targeted with the most deadly version of the anthrax mailed in 2001.

Details on this latest episode were first reported by Reuters on Wednesday:

Several members of the Congress received mail threatening a biological attack and containing a suspicious powder later found to be harmless as law enforcement officials warned on Wednesday that more letters could be on their way.

A number of media organizations and TV shows, including the New York Times and The Daily Show with Jon Stewart, received mail postmarked Oregon warning that letters had been sent to the Washington or local offices of all 100 U.S. senators and that 10 contained a deadly pathogen, a law enforcement source said.

House of Representatives Speaker John Boehner, the top Republican in Congress, received a letter containing a powdery substance at one of his offices in his home state of Ohio, a Republican aide said, adding that the powder was harmless.

/snip/

In a notice to Senate staffers titled “Urgent: Suspicious Mail Alert,” [Senate Sergeant at Arms Terrance] Gainer warned that the sender of the letters had “indicated that additional letters containing a powdery substance will be arriving at more Senate offices and that some of these letters may contain actual harmful material.”

More details have since come out:

The letters make vague complaints about too much money in politics and had a Portland, Oregon return address from an organization listed as “The MIB, LLC,” a law enforcement official told CBS News.

In addition to the letters to the lawmakers, officials said television comedians Jon Stewart and Stephen Colbert received letters mentioning the letters to senators.

The author told the comedians he would send letters to all 100 senators and ten percent of them would contain “lethal pathogens,” an official told CBS News.

The author wanted an end to corporate money and lobbying, an end to “corporate personhood,” and called for a new constitutional convention to rewrite the constitution.

The author also told the comedians he would tell the senators they are “working for the wrong side” and there is a ten percent chance they have been exposed to a lethal pathogen. The author also said he “randomized” which letters would contain the pathogen and even he did not know who would get which letter.

Because of the advance notice, the letter received at Leahy’s office was spotted and the authorities were called: Read more →

Update On The Signing Of The NDAA

/20 Comments/in , , , , , /by

Many people have been wondering what happened regarding the signing of the 2012 NDAA containing the critical, and much criticized, detention provisions. The House of Representatives passed the conference report of the bill on December 14th, with the Senate approving it by a 86 to 13 margin the following day, December 15th. Interest then turned to whether the President would veto it (he won’t) and when he will sign the legislation.

Most seemed to think that meant the bill must be signed by yesterday, which would have been the tenth day, excluding Sundays, after passage pursuant to Article I, Section 7 of the Constitution, which provides:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

But Obama has not yet signed the NDAA, so what gives? Presentment. A bill coming out of Congress must be formally presented to the President for signature. Sometimes, if the subject matter is deemed urgent, the presentment process is accelerated remarkably and happens on an emergency basis quite quickly. But, normally, it is a time honored deliberate process also governed by statute. 1 USC 106 and 107 require an enrolled bill passed by both chambers of Congress be printed on parchment or paper “of suitable quality” and “sent” to the President; this is the “presentment” process. 1 USC 106 does allow for alternate accelerated means for a bill emanating during the last six days of a session, and the OLC, in a little known opinion from May 2011, has decreed that electronic transmission is even acceptable (basically, the thing can be emailed).

In the case of the critical 2012 NDAA, however, Congress (one would assume with the blessing of the White House) apparently made no attempt to accelerate the schedule as often occurs for end of session matters, and the NDAA was not formally presented to President Obama until December 21st. So, excluding intervening Sundays, the tenth day is, in fact, Monday January 2, 2012.

Why, then, is the White House and President stringing out the signing of the NDAA? Well, we know AG Eric Holder has indicated Obama would be attaching a signing statement to the executed NDAA. Although unconfirmed officially, the word I am hearing from DOJ, who was working with the White House on the signing statement, was that they were done late last week.

So, it is not clear why Obama has still not yet signed the NDAA. Maybe he and the White House optics shop realized what a sour pill it would be to sign such a perceived toxic hit on civil liberties right before Christmas? The better question might be whether they are planning on slipping this little gem in the end of the week pre New Years trash dump.