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Jim Comey Describes the Dangerous Chilling Effect of Surveillance (But Only for Cops)

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For at least the second time, Jim Comey has presented himself as a Ferguson Effect believer, someone who accepts data that has been cherry picked to suggest a related rise in violent crime in cities across the country (I believe that in Ferguson itself, violent crime dropped last month, but whatever).

I have spoken of 2014 in this speech because something has changed in 2015. Far more people are being killed in America’s cities this year than in many years. And let’s be clear: far more people of color are being killed in America’s cities this year.

And it’s not the cops doing the killing.

We are right to focus on violent encounters between law enforcement and civilians. Those incidents can teach all of us to be better.

But something much bigger is happening.

Most of America’s 50 largest cities have seen an increase in homicides and shootings this year, and many of them have seen a huge increase. These are cities with little in common except being American cities—places like Chicago, Tampa, Minneapolis, Sacramento, Orlando, Cleveland, and Dallas.

In Washington, D.C., we’ve seen an increase in homicides of more than 20 percent in neighborhoods across the city. Baltimore, a city of 600,000 souls, is averaging more than one homicide a day—a rate higher than that of New York City, which has 13 times the people. Milwaukee’s murder rate has nearly doubled over the past year.

Yesterday, Comey flew to Chicago and repeated something its embattled Mayor recently floated (even while Bill Bratton, who is a lot more experienced at policing than Rahm Emanuel, has publicly disputed it): that cops are not doing their job because people have started taking videos of police interactions.

I’ve also heard another explanation, in conversations all over the country. Nobody says it on the record, nobody says it in public, but police and elected officials are quietly saying it to themselves. And they’re saying it to me, and I’m going to say it to you. And it is the one explanation that does explain the calendar and the map and that makes the most sense to me.

Maybe something in policing has changed.

In today’s YouTube world, are officers reluctant to get out of their cars and do the work that controls violent crime? Are officers answering 911 calls but avoiding the informal contact that keeps bad guys from standing around, especially with guns?

I spoke to officers privately in one big city precinct who described being surrounded by young people with mobile phone cameras held high, taunting them the moment they get out of their cars. They told me, “We feel like we’re under siege and we don’t feel much like getting out of our cars.”

I’ve been told about a senior police leader who urged his force to remember that their political leadership has no tolerance for a viral video.

So the suggestion, the question that has been asked of me, is whether these kinds of things are changing police behavior all over the country.

And the answer is, I don’t know. I don’t know whether this explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind blowing through American law enforcement over the last year. And that wind is surely changing behavior.

Let’s, for the moment, assume Comey’s anecdote-driven impression, both of the Ferguson Effect and of the role of cameras, is correct (to his credit, in this speech he called for more data; he would do well to heed his own call on that front). Let’s assume that all these cops (and mayors, given that Comey decided to make this claim in Rahm’s own city) are correct, and cops have stopped doing the job we’re all paying them to do because they’re under rather imperfect but nevertheless increased surveillance.

We’ll take you at your word, Director Comey.

If Comey’s right, what he’s describing is the chilling effect of surveillance, the way in which people change their behavior because they know they will be seen by a camera. That Comey is making such a claim is all the more striking given that the surveillance cops are undergoing is targeted surveillance, not the kind of dragnet surveillance (such as the use of planes to surveil the Baltimore and Ferguson protests, which he acknowledged this week) his agency and the NSA subject Americans to.

Sorry, sir! Judge after judge has ruled such claims to be speculative and therefore invalid in a court of law, most recently when T.S. Ellis threw out the ACLU’s latest challenge to the dragnet yesterday!

I actually do think there’s something to the chilling effect of surveillance (though, again, what’s happening to cops is targeted, not dragnet). But if Comey has a problem with that, he can’t have it both ways, he needs to consider the way in which the surveillance of young Muslim and African-American men leads them to do things they might not otherwise do, the way in which it makes targets of surveillance feel under siege, he needs to consider how the surveillance his Agents undertake actually makes it less likely people will engage in the things they’re supposed to do, like enjoy free speech, a robust criminal defense unrestricted by spying on lawyers, like enjoy privacy.

Comey adheres to a lot of theories, including the Ferguson Effect.

But as of yesterday, he is also on the record as claiming that surveillance has a chilling effect. Maybe he should consider the implications of what he is saying for the surveillance his own agency has us under? If the targeted surveillance of cops is a problem, isn’t the far less targeted surveillance he authorizes a bigger problem?

Harold Koh Relitigates the Argument He Already Lost

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The NYT thinks the takeaway “news” of Harold Koh’s speech on Forever War is his call for more transparency on drone killing. Yet that Koh supports more transparency on drones is not news. Daniel Klaidman has been reporting that since January 2012.

What’s newsworthy about this call for transparency, though, is how shrill it is.

But since then, to be candid, this Administration has not done enough to be transparent about legal standards and the decisionmaking process that it has been applying. It had not been sufficiently transparent to the media, to Congress, and to our allies. Because the Administration has been so opaque, a left-right coalition running from Code Pink to Rand Paul has now spoken out against the drone program, fostering a growing perception that the program is not lawful and necessary, but illegal, unnecessary and out of control. The Administration must take responsibility for this failure, because its persistent and counterproductive lack of transparency has led to the release of necessary pieces of its public legal defense too little and too late.

As a result, the public has increasingly lost track of the real issue, which is not drone technology per se, but the need for transparent, agreedupon domestic and international legal process and standards.

Perhaps this shrillness is why Koh ends the speech with a grandiose invocation of our “better angels.”

Because I am an American who loves his country, I have served it for ten years of my professional career. My former professor and former Legal Adviser Abram Chayes once said, after he had sued the United States government from the academy, “I have always thought there is nothing wrong with an American lawyer holding the United States to its own best standards.” It is in that spirit that tonight, from this important podium, I call my country to its own best values and principles. As President Lincoln famously said, there is still time–indeed, it is high time– for Americans once again to answer to the “better angels” of our national nature.

Though it should be noted that Attorney Abe Lincoln appealed for us to answer to our better angels at the beginning of his service in the Executive Branch, not after he had left that position of influence (something John Wilkes Booth prevented in any case). Why is Harold Koh saying this now?

After all, this battle, the battles for transparency, for “discipline” in the drone program, and for closing Gitmo, are all battles he fought and lost while he was still in government.

It’s how Koh relitigates the last of those battles, closing Gitmo, I find most interesting. He calls for the appointment of a Greg Craig type to implement the plan Craig tried to implement himself in the first year of the Obama Administration.

First, and foremost, he must appoint a senior White House official with the clout and commitment to actually make Guantanamo closure happen. There has not been such a person at the White House since Greg Craig left as White House Counsel in early 2010. There must be someone close to the President, with a broad enough mandate and directly answerable to him, who wakes up each morning thinking about how to shrink the Guantanamo population and close the camp.

Second, this White House Envoy need not develop a new paradigm for closing Guantanamo. He or she merely needs to implement the National Archives framework that the President announced three years ago. The White House Envoy should lead the Administration’s efforts to implement the three-part framework for closure of the Guantanamo detention facility specified in the President’s 2010 speech at the National Archives. That speech described a framework for how this closure could happen: through diplomatic transfers of those individuals who could be safely transferred, prosecution of those who can be tried before civilian courts when possible and military commissions where that is the only option, and third, by commencing the long-overdue legally mandated periodic review of so-called Law of War Detainees to see if any can be released, because of changes either in their attitude or in the conditions of the country to which they could be transferred.

Now, I’m all in favor of closing Gitmo and this might be one way to do it. Koh actually improves on the prior plan by admitting the indefinite detainees will have to be released as the war is over, which is legally correct but misapprehends why they’re not being released and why we have to have a Forever War to justify keeping them silent and imprisoned forever.

But Koh’s map for closing Gitmo also misrepresents why appointing Greg Craig himself to carry out the Gitmo task didn’t work. Read more →

After Talking about Restoring Trust in CIA, Panetta Lies about the Young Woman’s Drone Death that Led to Khost

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“Every drone strike,” [Baitullah Mehsud] would say, “brings me three or four new suicide bombers.” –Joby Warrick, The Triple Agent

Leon Panetta is doing something of a media swan song this weekend, showing up on the Sunday shows and doing this interview with NPR.

Leon Panetta lies about the drone strike that killed Baitullah Mehsud and his wife

In it, he explains that President Obama picked him to run the CIA because he thought Panetta could restore trust in the CIA (around 4:00).

He said the reason I’m talking to you is because I think you have the credibility and integrity to be able to restore trust in the CIA.

Yet even while talking about restoring trust, as Justin Elliott notes, NPR actually captures Panetta in a significant lie. In response to a question about civilian casualties from drone strikes, Panetta claims the CIA would not carry out a drone strike if there were women present (around 6:00).

How did the civilian deaths and the risks of civilian deaths weigh on your decision making process?

Frankly, we made very clear that if there were any women or children we would not take the shot. I mean, that became a rule that we abided by.

That, if there women or children on site, the strike was called off?

That’s right.

Yet NPR follows up to note that in at least one strike, Panetta did know a woman was involved.

There is at least one case where US officials, including Panetta, knew that a woman was present at a possible strike site, and the attack was ordered anyway.

Kudos to NPR for fact-checking Panetta thus far.

But it’s worth examining the strike in question — the targeting of Baitullah Mehsud — in more detail (see my earlier posts on Mehsud’s targeting here, here, and here). Because it illustrates how one particular drone strike led to an escalation of the war on terror.

The killing has been described at least three different times: in Joby Warrick’s The Triple Agent (for which he pretty obviously relied on sources in the very immediate vicinity of Panetta; I include excerpts of Warrick’s description of the killing here), Daniel Klaidman’s Kill or Capture, and the NYT Drone Assassination Czar story. Given that Panetta is lying about it on his way out of government, it’s worth drawing the several implications of the killing together in one place.

The killing of the young girl in the Pakistani tribal lands led directly to an escalation both of our drone war, but also of extremists’ retaliation against us.

Read more →

Rahm Sues Teachers Because They Want to Read, Engage in Democracy

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The Chicago teacher’s strike is getting closer to agreement: while the draft agreement limits the test-driven evaluation to the levels required by the state and provides means for some means to provide support staff (counselors, for example) in needy schools, But it still permits Rahm to shut schools so he can open unproven charters to enrich his friends.

And so the union wants to spend 2 days so teachers can actually read the agreement, discuss it, and vote democratically.

After a civil and frank discussion, the House of Delegates voted NOT to suspend the strike, but to allow two more days for delegates to take the information back to the picket lines and hold discussions with the union’s more than 26,000 members throughout Chicago. Teachers and school staff will return to the picket lines of the schools at which they teach at 7:30 a.m. Monday and, after picketing together, will meet to share and discuss the proposal. Citywide members will picket at the Chicago Public Schools Headquarters, 125 South Clark, at 7:30 a.m. and will meet thereafter at a downtown location.

“This union is a democratic institution, which values the opportunity for all members to make decisions together. The officers of this union follow the lead of our members,” President Lewis said. She continued, “the issues raised in this contract were too important, had consequences too profound for the future of our public education system and for educational fairness for our students, parents and members for us to simply take a quick vote based on a short discussion. Therefore, a clear majority voted to take this time and we are unified in this decision.”

Reading and democracy!

In response, Rahm has said he will sue, arguing that the teachers are striking over something other than wages, as they have been prohibited from doing.

Emanuel called the strike “illegal” and said he would go to court to seek an injunction to block the labor action.

“I will not stand by while the children of Chicago are played as pawns in an internal dispute within a union,” Emanuel said, adding that the union walked out over issues that are not subject to a strike under Illinois state law.

Because the last thing we want to teach American school children is about reading and democracy.

“The Yemeni situation and … the Iranian cyber situation”

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As MadDog noted yesterday, Dianne Feinstein seemed to answer a question I’ve written about here and here regarding the scope of the leak investigations.

She said the U.S. attorneys would not face political pressures from the Obama administration and would “call the shots as they see them.”

“We can move ahead much more rapidly,” Feinstein said. “Instead of one special prosecutor, you essentially have two here, one is the Yemeni situation and the other is the Iranian cyber situation. I think you’re going to get there much quicker.”

I’m not sure I agree with MD, though, that “the UndieBomb 2.0 and the Stuxnet leaks are the ones being investigated,” meaning implicitly that just those two “leaks” are being investigated.

DiFi’s quote seems to confirm that there is a distinct investigation into the source of the detail (one of the only new parts of David Sanger’s StuxNet reporting) that Israel let StuxNet free, possibly deliberately. Since Eric Holder suggested there was a jurisdictional component to his choice of US Attorneys on these investigations, we can assume that Rod Rosenstein, US Attorney for the National Security Agency, will investigate that alleged leak.

But what does DiFi include when she says, “the Yemeni situation”? Does it include only the leaks about UndieBomb 2.0? And if so, why isn’t it being investigated out of Eastern District of VA, the CIA’s US Attorney district, which purportedly had a lead on that operation in the US?

Further, MD suggested (though did not say explicitly) this means they’re not investigating the drone targeting leaks.

Now, as I’ve noted, one possible reason they wouldn’t investigate the drone targeting “leaks” would be if the stories reported falsehoods or–more charitably–a drone targeting process that was no longer in place, as the AP has reported to be the case and the White House, in their response to the AP story, seemed to confirm. That is, one possible reason why they wouldn’t investigate the “leaks” about drone targeting would be because those stories did not report accurate classified information (and I’ll remind here that the Klaidman story differs in some notable ways from the Joby Warrick story, which we now know came in part from Rahm Emanuel’s effort to publicize Baitullah Mehsud’s killing).

But there’s another possibility. I’m struck by DiFi’s description of “the Yemeni situation” rather than–as most people refer to it–the “thwarted” bomb “plot.” It’s possible that in DiFi’s mind–the mind of a Gang of Four member who has presumably been briefed on our ongoing operations in Yemen–that the leak of the bomb sting, the leak of the Saudi role in it, and the stories that made it clear that John Brennan is running a secret war against Yemeni insurgents using signature strikes out of the NSC largely at the behest of the Saudis all constitute for her “the Yemeni situation.” UndieBomb 2.0 is a part of that secret war–perhaps the legal justification for US involvement in it (and also a useful way to remove an asset and a key handler before the drones start wreaking havoc). But if this speculation is right, it may well be the other details–the report that this war is being run out of NSC, the details that make it clear we’re targeting insurgents, not just AQAP, the fact that we’re clearly in an undeclared war–that DiFi worries about most.

Mind you, this is all supposition. It may be that DiFi was just using shorthand for the UndieBomb 2.0 plot. But to a great degree, all the stories about drone targeting were efforts to expose–and then cover up–the war we’re engaging in Yemen. And that does seem like a secret the Administration is trying to prevent the American public from learning about.

The Baitullah Mehsud Propaganda

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I have twice before noted some curious details about Joby Warrick’s telling of the events leading up to Baitullah Mehsud’s death. I noted that it is another example–like the Iraq War–of an attack justified by nukes in which the nukes were ultimately never found. And I noted there are some significant differences between the NYT’s version of the story and Joby Warrick’s. Daniel Klaidman apparently tells his own version in his book, which I hope to read next week.

Mind you, I’m not saying that any of these journalists is telling the complete story or even that any one journalist presents a story that is entirely true, I’m just noting that different Administration sources are feeding different stories.

Last week Ben Wittes transcribed the complete passage from Klaidman’s book that describes how Rahm Emanuel decided to publicize Baitullah’s killing for political benefit.

When they finally took Mehsud out in August 2009, [White House Chief of Staff Rahm] Emanuel celebrated. He had a hawkish side to him, having volunteered with the Israeli Defense Forces as a civilian during the 1991 Gulf War. But above all, Emanuel recognized that the muscular attacks could have a huge political upside for Obama, insulating him against charges that he was weak on terror. “Rahm was transactional about these operational issues,” recalled a senior Pentagon official. “He always wanted to know ‘how’s this going to help my guy,’ the president.”

Though the program was covert, Emanuel pushed the CIA to publicize its covert successes.  When Mehsud was killed, agency public affairs officers anonymously trumpeted their triumph, leaking colorful tidbits to trusted reporters on the intelligence beat. Newspapers described the hit in cinematic detail, including the fact that Mehsud was blown up on the roof of his father-in-law’s compound while his wife was massaging his legs. [italics Wittes’, bold mine]

Here’s how Warrick describes the killing in his book.

It was now 1:00 A.M. in the Paksitani village. Baitullah Mehsud, leader of the Pakistani Taliban and chief protector of the Jordanian physician Humam al-Balawi, now lay on his back, resting as the IV machine dripped fluid into his veins. At his feet, a pair of young hands, belonging not to a doctor, as the CIA supposed, but to his new wife, were massaging his swollen legs. Barely aware of the buzzing distance drone, oblivious of the faint hissing of the missile as it cleaved the night air, he took a deep breath and looked up at the stars.

The rocket struck Mehsud where he lay, penetrating just below the chest and cutting him in two. A small charge of high explosives detonated, hurling his wife backward and gouging a small crater in the bricks and plaster at the spot where she had knelt. The small blast reverberated against the nearby hills, and then silence.

Overhead, the drones continued to hover for several minutes, camera still whirring. A report was hastily prepared and relayed to Panetta at the White House.

Two confirmed dead, no other deaths or serious injuries. Building still stands. [italics original, bold mine]

That is, while Klaidman is too polite to say it, this account is the one that derives from Rahm’s decision to publicize Mehsud’s killing. (Warrick sources these details to “three U.S. intelligence officials involved in the planning or oversight of the operation.”)

Now, the NYT reveals that some sources say there were other civilian casualties.

Mr. Obama, through Mr. Brennan, told the C.I.A. to take the shot, and Mr. Mehsud was killed, along with his wife and, by some reports, other family members as well, said a senior intelligence official.

This doesn’t mean Warrick’s version of the drones originally reporting there were no other casualties is incorrect on that front–after all, drones don’t provide perfect intelligence, contrary to what their boosters say, and it’s possible that reports of other casualties came later from HUMINT. But if there were other casualties, it probably means many of these cinematic details about the pinpoint nature of the strike–Meshud being cut in two and his wife being blown back but the strike leaving only a small crater–are not entirely true.

Again, I’m not saying any of these journalists are fully capturing the truth; what they’re telling is what Administration sources have told them, and I doubt NYT and Klaidman’s sources have any less of an agenda than Warrick’s did. And note all the details about Mehsud’s death distract from the way we tried to get to him by first killing one of his clan-members, then targeting that man’s funeral, which Warrick does include; Warrick was reporting on our funeral targeting tactic before TBIJ did, to great controversy.

But I am noting that this cinematic picture of very controlled killing (even the killing of a young woman who was probably pushed into this marriage as a teenager) comes from a decision from Rahm to push such picture for political advantage.

One more thing. The killing of Mehsud’s commander and then Mehsud and his young wife and maybe her family, reportedly justified by intelligence on nukes that never materialized? Mehsud claimed direct credit for Faisal Shahzad’s attempted attack on Times Square, and al-Balawi killed 7 CIA officers at Khost in direct revenge for the killing of Mehsud. These are some of the most serious attacks on us or attempts in recent years, both stemming from this attack on someone whose aspirations to attack us may never have been real beforehand.

The National Security Council Was Briefed on Anna Chapman before Her Arrest

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I frankly wasn’t all that interested in the news that Russian spy Anna Chapman was setting a honey trap for an Obama cabinet official…

In a documentary broadcast last night, FBI counter-intelligence chief Frank Figliuzzi claimed the glamorous Russian agent got close enough to ‘disturb’ U.S. spy catchers.

He said the fear that Miss Chapman was close to seducing a sitting member of the Obama administration spurred agents to swoop on the 10-strong spy ring of which she was a part.

Mr Figliuzzi told the Channel 4 documentary the auburn-haired spy got ‘closer and closer to higher and higher ranking leadership… she got close enough to disturb us.’

‘We were becoming very concerned,’ he said. ‘They were getting close enough to a sitting US cabinet member that we thought we could no longer allow this to continue.’

Until Laura Rozen noted that Peter Orszag left the White House in July 2010. Since most of the cabinet level officials with some base in NY, where Chapman lived and socialized–like Hillary Clinton and Susan Rice–are female, I simply hadn’t thought that much about who her target could have been. Though Orszag presents an interesting possibility (not least because he was personally involved in our cybersecurity efforts at the time). And an even more interesting date, to me, is the day the White House announced his departure: June 22, just 3 days before they started rolling up the Russian spy network.

Now, whether or not Orszag was the target (I’ve got some other suspicions, and if he was, Chapman would have been targeting Orszag during the period after he got engaged but before he got married), her comment was enough to get me to refer back to my coverage on Chapman’s arrest.

And there are a few interesting details about it. Here’s a timeline I put together:

June 9: Chapman’s laptop chats with Russian Official #1 surveilled

June 11: Obama briefed about Russian spy swap

June 16: Chapman’s laptop chats with Russian Official #1 surveilled

June 18: Obama chairs NSC meeting on Russian spy swap

June 24: Obama and Dmitri Medvedev go to Ray’s Hell Burger

June 25: Complaint against 9 spies dated

June 26: FBI collects evidence against last two remaining spies; FBI agent says to Chapman, “I know you are going back to Moscow in two weeks.”

June 27: Spies arrested

June 29: Russian Foreign Minister Sergey Lavrov complains about timing of arrest; Obama reported to be miffed about timing of arrest; DOJ attributes timing to pending travel–presumably Chapman’s

Week of July 5: White House almost cancels spy swap because names of proposed spies in Russia leaked

July 10: Two weeks after FBI Agent said Chapman would be traveling to Russian in two weeks

Of particular note is the June 18 NSC meeting. Most key cabinet members that would make interesting targets for Russian spies are members of the NSC. Director of OMB attends NSC meetings that pertain to its area of responsibility. They all learned–at least in the abstract–of the looming spy trade on June 18, 2010, a week before the FBI started rolling up the spies.

Read more →

The Chief of Staff Who Might Have Been

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There are a number of details from Ron Suskind’s new book revealed by an AP and a NYT preview of it, the most alarming (but not surprising) that TurboTax Timmeh Geithner managed to save Citibank by basically ignoring Obama’s order to break it up.

The book, by Ron Suskind, a former Wall Street Journal reporter, quotes White House documents that say Mr. Obama’s decisions were routinely “re-litigated” by the chairman of the National Economic Council, Lawrence H. Summers. Some decisions, including one to overhaul the debt-ridden Citibank, were carried out sluggishly or not at all by a resistant Treasury secretary, Timothy F. Geithner, according to the book.

[snip]

In the book, Mr. Geithner denies that he obstructed any presidential directive. A senior Treasury official said a government restructuring of Citibank would have occurred only if the Treasury had been left with a significant ownership stake in the bank after it emerged from a financial stress test.

A pity Obama didn’t fire Timmeh long before it came time to panic over the fact the Administration had gone so easy on the banks. A pity, too, Obama just begged his insubordinate Treasury Secretary to stick around.

But I’m just as interested in Suskind’s revelation that Obama didn’t want Rahm at first.

The book says one of Obama’s top advisers, former chief of staff Rahm Emanuel, was not the president’s first choice for the position. According to Suskind, Emanuel’s name was not even on the initial short list, which included White House aide Pete Rouse.

Folks on the Hill are now bitching about Bill Daley. Though I think they’re crazy to miss Rahm, who may have been nicer to the Hill but was also ineffective. Me, I thought Rouse was the best of the three and wonder what it was that led Obama to pass up that choice and–in what was one of his first announcements–pick Rahm instead. It’s not like Rouse wasn’t available; he has been with the Administration throughout the Administration.

There was still a lot wrong with the execution of this Administration, such as the insubordinate Treasury Secretary that Obama didn’t fire. But a decent Chief of Staff might have at least made it more effective.

Illinois Supreme Court Rules For Rahm Emanuel Ballot Inclusion

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Monday’s decision by the Illinois Court of Appeals to strike Rahm Emanuel from the ballot for the Chicago Mayoral election set for February 22 caused quite an alarm. The Court of Appeals decision appeared on its face to be quite well reasoned and well taken in light of the wording of the statute at issue. Mr. Emanuel immediately (by Monday night) filed an emergency Motion for Stay and Petition for Leave to Appeal to the Illinois Supreme Court.

The Illinois Supreme Court has just issued its opinion on the Emanuel emergency appeal and, in a decision authored by Justice Thomas, has reversed the Court of Appeals and fully reinstated Rahm’s eligibility for the ballot and office of Mayor of Chicago:

Thus, from April 1867 through January 24 of this year, the principles governing the question before us were settled. Things changed, however, when the appellate court below issued its decision and announced that it was no longer bound by any of the law cited above, including this court’s decision in Smith, but was instead free to craft its own originalstandard for determining acandidate’sresidency. See No. 1–11–0033, slip op. at 6-8 (dismissing the foregoing authority in its entirety). Thus, our review of the appellate court’s decision in this case begins not where it should, with an assessment of whether the court accurately applied established Illinois law to the particular facts, but with an assessment of whether the appellate court was justified in tossing out 150 years of settled residency law in favor of its own preferred standard. We emphatically hold that it was not.

….

All of that said, and putting aside the appellate court’s conclusion that Smith is not binding in this case, the appellate court’s residency analysis remains fundamentally flawed. This is because, even under traditional principles of statutory analysis, the inevitable conclusion is that the residency analysis conducted by the hearing officer, the Board, and the circuit court was proper.

….

Second, this court has twice stated explicitly that related provisions of the Election Code and of the Illinois Municipal Code are to be considered in pari materia for purposes of statutory construction. See Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 218 (2008); United Citizens of Chicago and Illinois v. Coalition to Let the People Decide in 1989, 125 Ill. 2d 332, 338-39 (1988).

….

So where does all of this leave us? It leaves us convinced that, when determining whether a candidate for public office has “resided in” the municipality at least one year next preceding the election or appointment, the principles that govern are identical to those embodied in Smith and consistently applied in the context of determining whether a voter has “resided in” this state and in the election district 30 days next preceding any election. Thus, in assessing whether the candidate has established residency, the two required elements are: (1) physical presence, and (2) an intent to remain in that place as a permanent home. Once residency is established, the test is no longer physical presence but rather abandonment, the presumption is that residency continues, and the burden of proof is on the contesting party to show that residency has been abandoned. Both the establishment and abandonment of a residence is largely a question of intent, and while intent is shown primarily from a candidate’s acts, a candidate is absolutely competent to testify as to his intention, though such testimony is not necessarily conclusive.

….

Given the record before us, it is simply not possible to find clearly erroneous the Board’s determination that the objectors failed to prove that the candidate had abandoned his Chicago residence. We therefore reverse the decision of the appellate court and affirm the decision of the circuit court, which confirmed the Board’s decision.

So there will be no mistake, let us be entirely clear. This court’s decision is based on the following and only on the following: (1) what it means to be a resident for election purposes was clearly established long ago, and Illinois law has been consistent on the matter since at least the 19th Century; (2) the novel standard adopted by the appellate court majority is without any foundation in Illinois law; (3) the Board’s factual findings were not against the manifest weight of the evidence; and (4) the Board’s decision was not clearly erroneous.

Appellate court judgment reversed; circuit court judgment affirmed.

Well, although I found the Court of Appeals decision persuasive, the Illinois Supreme Court certainly did not. And they ruled unanimously in Mr. Emanuel’s favor (although two, Justices Freeman and Burke, concurred on distinguished grounds). That will end this debate once and for all. Welcome Mayor Emanuel.

Rahm’s Ballot Eligibility Case Appeal and White House Interference

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right[Updated Below]

The decision Monday by the Illinois Court of Appeals to disallow the candidacy for Mayor by Rahm Emanuel as well as his name on the official election ballot stunned many people, and left Emanuel, his political supporters and Wall Street and Hollywood financial bag men scrambling with the ballots set for printing today and the election on the near horizon on February 22. By late Monday night, the Emanuel campaign had already filed an Emergency Motion For Stay Pending Appeal and Expedite Consideration of Petition For Leave To Appeal with the Illinois Supreme Court. A copy of the filing is here.

Within less than eight hours of Emanuel’s late night filing, at the crack of dawn on ABC’s Good Morning America, Valerie Jarrett, Barack Obama’s most senior and trusted advisor, was delivering a direct message on behalf of the White House commenting on the case and declaring they viewed Emanuel legally eligible:

I think that he believes that [Rahm is] eligible and I believe that he believes that Rahm will pursue his appeal in the courts.

I do not know about you, but I cannot think of any instance in which a White House and President, especially one so intimately related to one side of the issue, has so directly stepped into a state and local court proceeding at such a critical moment with its opinion on the ultimate legal determination.

Perhaps, under different circumstances, this would not be a notable event. However, when the President’s closest advisor weighs in with such a statement as to what the law should be, right as the sensitive matter is being presented on an emergency basis to a state supreme court, it is of highly questionable discretion and ethics. The impingement on the local situation is only exacerbated by the close ties Obama has to Emanuel, Chicago, the Daley political machine behind Emanuel (A Daley now serving as Obama’s Chief of Staff) and Illinois. It was an unnecessary and completely inappropriate meddling in a state and local judicial matter that the Obama White House had no business engaging in.

Jarrett’s imposition of the White House thumb of comment here is even more telling when juxtaposed with the consistent position she and Obama insisted on taking, and still maintain, with relation to the court process in the legal challenges to the discriminatory Don’t Ask Don’t Tell policy. Obama, Valerie Jarrett and the White House have consistently refused to take a position on how the DADT constitutional litigation should be decided in public statements and appearances and, in fact, are STILL officially supporting the disgraceful policy in courts under the guise that law must be supported and courts left undisturbed to decide the matter unfettered. Apparently such ethical and moral restraint does not apply when it comes to their friend and political crony’s local election litigation.

Which brings us to the law Mr. Obama and Ms. Jarrett are so positive stands for the eligibility of Read more →