Obama Administration Follows Bush/Cheney On Politicization Of DOJ

Remember the plaintive cries of Democrats and progressives about the wrongful politicization of the Department of Justice by the Bush/Cheney Administration? Remember the stunning chart Sheldon Whitehouse whipped out at a Senate judiciary hearing on Alberto Gonzales’ tenure as AG showing how politicized the hallowed independent prosecutorial discretion of the DOJ had become under Bush, Cheney and Gonzales? The one that Pat Leahy called “the most astounding thing I have seen in 32 years”?

That was in late April of 2007, little more than three years ago. Despite the most fervent hope of a Democratic and progressive base that they were voting to change the wholesale invasion of the prosecutorial discretion by the White House political shop (along with so, so many other things), it appears little has changed. In fact, the invasion of province appears to be being writ larger and more profound. From Jerry Markon in the Washington Post:

Now, the decision on where to hold the high-profile trials of Mohammed and four others accused of being Sept. 11 conspirators has been put on hold and probably will not be made until after November’s midterm elections, according to law enforcement, administration and congressional sources. In an unusual twist, the matter has been taken out of the hands of the Justice Department officials who usually make prosecutorial decisions and rests entirely with the White House, the sources said.

“It’s a White House call,” said one law enforcement official, who spoke on condition of anonymity to discuss internal deliberations. “We’re all in the dark.”

The delays are tied to the administration’s broader difficulties in closing the U.S. military prison at Guantanamo Bay, Cuba — where Mohammed and the other detainees are held — and are unlikely to affect the outcome of a trial that officials vow will be held at some point. But people on all sides of the debate over whether Mohammed should be tried in federal court or before a military commission expressed frustration that nearly nine years after Sept. 11, justice for the attacks seems so elusive.

“It’s important that these trials actually take place, and soon,” said Jameel Jaffer, director of the national security project at the American Civil Liberties Union, which has long pushed for the trials to be held in federal court. “It’s not just that people held for long periods of time in government custody deserve to contest the evidence against them. It’s also that these trials are important to the country.”

For all the hope and change, nothing has changed. Toying with the root charging and prosecutorial functions and discretion of the Department of Justice as a way to respond to the prevailing political winds is a craven path for the Obama Administration to take. And hanging Attorney General Eric Holder and his Department out to dry in those winds is despicable political and executive cowardice.

So, on this fine Fourth of July, as we celebrate America’s independence and reflect on our founding principles, it would be wise to remember, and refresh the recollection of the Obama Administration, that this is a nation of law, not men. Both the government and court system of the United States are open and operating unfettered by either war, hostility or rebellion. There is no justification, legal or moral, for indefinite detention, failure to charge and try criminals openly and fairly, without tortured evidence, and the other string of hideous denials of due process being occasioned in our name.

It is instructive to reflect back on the wisdom of ancestors past, also confronted with novel legal challenges, and at a time (unlike today) when the literal existence of the United States had been in question from the Civil War, as expressed by the Supreme Court in Ex Parte Milligan:

Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

……

All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, there is no difficulty of preserving the safeguards of liberty, for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion — if the passions of men are aroused and the restraints of law weakened, if not disregarded — these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.

The courts and government of the United States of America are open and unfettered. It is time for the Obama Administration to quit frittering away the American foundation of law to the whims and winds of personal electoral desire and perceived political necessity. There can be no greater show of strength and character than to demonstrate to the world that we live and die with the principles we were founded with. Put the September 11th defendants on trial where they belong, as criminals in the Article III Federal court of jurisdiction.

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  1. fatster says:

    Sure am glad you grabbed onto and highlighted this topic, bmaz. “For all the hope and change, nothing has changed”–except the degree of acceleration toward absolute power.

  2. Loo Hoo. says:

    Wow, bmaz. Can we hold on?

    Happy 4th to you. Just want you to know how much I appreciate the patriotism of you, Jane, EW, and the whole FDL crew.

  3. Mary says:

    Not to fear, Elena and Lindsey were just discussing how, in the forever war detentions without trial, they might get Jack Goldsmith to cook up some pefunctory non-review every few decades to see if the detainees were still a danger. Or sane. Or alive.

    Then they went off for a Monte Cristo sandwhich and celebrate the inactive Sup Ct’s lack of activity on Arar.

    Why close GITMO when you can just rename it Chateau D’Iforever. See – I got around to reading the book salon! (Thanks Jeff – for hosting and for including my queston)

    EW & Froomkin? I’m so out of the loop ;)

      • Mary says:

        Loved it – toasted you with my Mike’s Hard Lemonade ;)

        Going out to settle the horses – the kewl thing about the 4th is you can see two different sets of fireworks far off from my place – the bad thing about the 4th is my horses have two sets of major fireworks to agitate over.

        Hope you have all the fun, none of the agitation.

    • Leen says:

      “Why close GITMO when you can just rename it Chateau D’Iforever”

      Flipping international laws by defining prisoners of war as “enemy combatants” torture as “enhanced interrogation techniques” Death and destruction in Iraq to “reconstruction”

      Ouright lies about WMD’s. Endlessly repeating inflammatory and unproven claims about Iran. “Chateau D’Iforever” would not be a surprise!

  4. b2020 says:

    “And hanging Attorney General Eric Holder and his Department out to dry in those winds is despicable political and executive cowardice.”

    The BeHolder is a perp, not a victim. Every single one of those “hung out to dry” can resign at any time, quite possibly improving their material circumstances in the process, or alternatively, speak out loudly and still be far better off than most in this country, let alone the victims of this DOJ. If they do not, that is their choice, and makes them accessories, not bystanders or second tier victims.

    • earlofhuntingdon says:

      AG Holder is both perp and victim. He’s a perp for not having resigned.

      He is a victim for allowing the office of AG and the Department of Justice to be pawned, for allowing the politicization of the Bush years to become permanent, for not challenging burrowed Bushies, for not voiding wrongful prosecutions, for not following Robert Jackson’s admonition that the DoJ be an apolitical enforcer of the law rather than chief defense counsel for the White House.

  5. spanishinquisition says:

    Remember the plaintive cries of Democrats and progressives about the wrongful politicization of the Department of Justice by the Bush/Cheney Administration? Remember the stunning chart Sheldon Whitehouse whipped out at a Senate judiciary hearing on Alberto Gonzales’ tenure as AG showing how politicized the hallowed independent prosecutorial discretion of the DOJ had become under Bush, Cheney and Gonzales? The one that Pat Leahy called “the most astounding thing I have seen in 32 years”?

    That was in late April of 2007, little more than three years ago. Despite the most fervent hope of a Democratic and progressive base that they were voting to change the wholesale invasion of the prosecutorial discretion by the White House political shop (along with so, so many other things), it appears little has changed. In fact, the invasion of province appears to be being writ larger and more profound.

    The Democrats have done so much to increase my already cynical self. Both the Ds and the Rs seem to act more or less the same, just the Rs say they’re corporatist warmongers while the Ds say they’re populist peace-lovers, yet they end up both acting the same. I miss the days where there were two actual parties who disagreed over idealogy instead of two parties pretending to disagree on idealogy while putting on a show.

  6. Nell says:

    Thanks for this patriotic, principled post, bmaz. And thanks to you and EW and all the other contributors and commenters for helping keep our eyes open.

    Firecrackers subsiding, dogs calming down… Happy Fourth!

  7. earlofhuntingdon says:

    Let’s say that again:

    The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.

    And again:

    No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism…the theory of necessity on which it is based is false

    Resolving inevitable societal conflicts requires confronting them, seeking common ground while not giving up one’s own, and persuading another that his and your interests are sufficiently mutual so as to invoke reasonable compromise.

    Conflict, however, seems to make Mr. Obama extraordinarily uncomfortable. He accommodates it rather than seeks to change positions that underlie it. He advocates continuity, under whatever guise will persuade the gullible that softer words and kinder smiles are sufficient substitutes for promised and necessary change.

    He buys accommodation, his own comfort, at the price of giving up the interests of those for whom he claims to be an advocate. What does that say about his respect for those wanting and expecting the change he promised? What does it say of them that they do not reject his advocacy and choose another?

      • earlofhuntingdon says:

        It really is. Much mid-Victorian legal argument would seem stuffy, obscure, inapplicable to today’s mind, today’s problems. This language would seem out of place on John Roberts’ court only because it would be so inconsistent with his court’s conservative politics. That’s a remarkable literary, legal and philosophical achievement.

      • mattcarmody says:

        I just noticed something in reading this here that I hadn’t previously paid attention to probably because I never considered that people would make the argument that if you aren’t a citizen you aren’t deserving of the protections under our constitution and system of law.

        “All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury.”

        Could this be construed to support the argument that only citizens are entitled to trial by jury?

  8. Mauimom says:

    Thank you, bmaz.

    As a lapsed lawyer, it’s striking to read the Court’s words in Ex Parte Milligan. A reminder of the day when we had a court that cared deeply about the rule of law, not this band of activist, political, religious pranksters currently sitting on the bench. [Well, not all of them, but you know to whom I’m referring.]

    I remember sitting through three years of reading Court opinions and learning about the legal basis for our rights. How long ago and far away that seems now.

    Thank you for this reminder. Would that those in the Administration would/could hear it.

  9. RevDeb says:

    bmaz,
    Can you give us any indication of what/when, etc. the DoJ is going to respond to SB 1070? The ministers in our AZ churches are begging us to come out the last week of July and organize, witness, register voters, stand up to Arpaio, and I don’t know what else. I’m tempted but with many mixed feelings. I’m rather annoyed that the feds haven’t stepped up to the plate though not surprised considering Obama has wimped out (or sold out) on just about everything so far. Any insight?

    • BoxTurtle says:

      They cynic in me suggests they will be waiting until after the November elections.

      Were it me, I’d assume that DoJ will be no help. It will likely be a half hearted attempt at best, and you can be sure ObamaLLP will back off even that if the political winds dictate.

      I think our best hope is with the civil courts. One expensive judgement may make the GOPers rethink their position. Especially if there are more in the pipeline.

      Work on the sports leagues. Moving home games out of state is an excellent goal, especially since I recall at least one of the pro teams owners is a strong supporter of the law.

      Boxturtle (Their wallets are much larger targets then their hearts)

      • RevDeb says:

        Bud Selig has more power to turn this around than anyone—but he won’t. The All Star game is supposed to be in Phoenix next summer and there are about a dozen teams who do their spring training in AZ. If you look at baseball rosters all EXCEPT the Phoenix team have an average of 25-30% of their players of some kind of Hispanic origin. Yes, the owner of the Diamondbacks is one of the wingers who loves racial profiling. Selig is an owner too so he won’t do anything unless the players rise up and say they won’t go to AZ because it is dangerous to themselves and their families. Therein lies the most potent weapon against it.

        In the mean time why do we bother with a DoJ if they aren’t doing their jobs? Oh, yea, we’ve got to keep those pot smokers in jail, right?

        • BoxTurtle says:

          In the mean time why do we bother with a DoJ if they aren’t doing their jobs?

          High paying patronage jobs. And they sometimes write useful opinions, like Bybee and Yoo.

          And it not just the pot smokers, we need them to keep those darn Canadian reporters, who keep reminding us that Omar Khadr interrogator#1 Joshua Claus has already been convicted of abusing detainees, in line.

          Boxturtle (You’re right. Better to work the players than the leagues)

    • bobschacht says:

      RevDeb,
      Here’s my take, as another Arizonan. This issue is part and parcel of a larger issue having to do with the whole process of becoming a citizen of the US. The slogan to “secure our borders” sounds reasonable, but like the “war” on “terror,” it is an unending situation. The truth is that our borders are probably more secure now than during the Bush II administration.

      The Tea Party folks don’t actually want any new citizens, because they’re likely to be scary brown people or people who don’t speak English. The present process for becoming a citizen is clogged, screwed up, and broken, and the Tea Partiers like that just fine. But there are a lot of businesses that are based on using undocumented laborers, who can be paid less than the minimum wage. To solve the problem of “illegals,” you have to deal with this gray-zone economy. To deal with the gray-zone economy, you have to make it easier for law-abiding workers to become citizens. As it is, legal immigrants come into the country legally, but then their visas expire before they can become citizens.

      What I’d suggest that your church friends focus on is the plight of the workers who are here on temporary visas who are trying to become citizens but are having trouble navigating the process of becoming citizens. Investigate the bureaucratic maze they have to go through, and publicize the long waits they must face, and the impossible situation that occurs when their visas expire before they can become citizens (legally, they are supposed to go back to their country of origin and wait patiently for their papers to come through– but even then there are problems). You could do some really good work in that area, IMHO, that could have direct benefit on the lives of specific families.

      Bob in AZ

  10. justbetty says:

    How ironic that those of us who supported his candidacy believed that a former professor of constitutional law would move decisively to correct the past violations. We had two warnings if we had heeded them though. His students noted that he always argued that there were two sides to every question, and his advisors spoke of his pragmatic approach. I now understand better that “pragmatic” means that no principle is sacred. Best question in the comments is, “What do we do now?”

    • Hugh says:

      It was clear that Obama had no great attachment to principle or the rule of law back in July 2008 when he reneged on his pledge and backed the FISA Amendments Act which granted retroactive immunity to the telecoms which participated in Bush’s illegal wiretap programs over a period of 5-6 years.

      This episode is interesting for several reasons. It shows Obama’s willingness to walk back a political position and betray progressives, his contempt for the rule of law, and corporatism.

      • Kathryn in MA says:

        You are right, i was so dismayed, yet clung still to a hope and belief that there was a secret backdoor reach-around to be revealed, “Ta Da!” after the elections and all the bad guys rolled up like all the mafia families at once, in dramatic fashion.
        Hmmmm.
        ***as my GPS says, “Recalculating.”***
        Time to learn how to raise chickens.

    • knowbuddhau says:

      A) Stop using the war metaphors, as Scarecrow suggests here and I highlighted in a diary here. (Some of this comment was posted yesterday to Swanson’s post, Democrats Forced to Cheat to Fund War.)

      So, does any of this survive if we declare “there is no war on terror”? Declare al Qaeda or X to be international criminals to be pursued under criminal law and stop using the war metaphors. All the “war law” stuff become irrelevant, doesn’t it?

      To which ew replies, “That’s one of the reasons Kagan should have called Lindsey on his use of “hostilities.” Becuse if it’s just hostilities and not war, then the legal basis for indefinite detention collapses, as it should.”

      That right there is the power of myth. Since it’s the power of perverted narratives that has jacked us into this hellscape, just so, by taking Scarecrow’s advice, we can define their atavistic world of pain right out from around us.

      B) Stop using reductive, dehumanizing machine metaphors for us organic human beings, as suggested in an unprecedented NYT op-ed on the death of reductionism for complex biological systems, by the late Stephen Jay Gould way back in February of 2001:

      The implications of this finding cascade across several realms. …

      But the deepest ramifications will be scientific or philosophical in the largest sense. From its late 17th century inception in modern form, science has strongly privileged the reductionist mode of thought that breaks overt complexity into constituent parts and then tries to explain the totality by the properties of these parts and simple interactions fully predictable from the parts. (“Analysis” literally means to dissolve into basic parts). The reductionist method works triumphantly for simple systems — predicting eclipses or the motion of planets (but not the histories of their complex surfaces), for example. But once again — and when will we ever learn? — we fell victim to hubris, as we imagined that, in discovering how to unlock some systems, we had found the key for the conquest of all natural phenomena. Will Parsifal ever learn that only humility (and a plurality of strategies for explanation) can locate the Holy Grail?

      The collapse of the doctrine of one gene for one protein, and one direction of causal flow from basic codes to elaborate totality, marks the failure of reductionism for the complex system that we call biology — and for two major reasons.

      First, the key to complexity is not more genes, but more combinations and interactions generated by fewer units of code — and many of these interactions (as emergent properties, to use the technical jargon) must be explained at the level of their appearance, for they cannot be predicted from the separate underlying parts alone. So organisms must be explained as organisms, and not as a summation of genes.

      Second, the unique contingencies of history, not the laws of physics, set many properties of complex biological systems. …

      The deflation of hubris is blessedly positive, not cynically disabling. The failure of reductionism doesn’t mark the failure of science, but only the replacement of an ultimately unworkable set of assumptions by more appropriate styles of explanation that study complexity at its own level and respect the influences of unique histories. Yes, the task will be much harder than reductionistic science imagined. But our 30,000 genes — in the glorious ramifications of their irreducible interactions — have made us sufficiently complex and at least potentially adequate for the task ahead.

      Shorter Gould: We have to reclaim our inalienable humanity, denied us by our own social sciences in their efforts to predict and control our behavior, in order to humanize our societies.

      What ails us today? The belief, that a war god made the cosmos all by his holy self, by the power of his holy word and his holy force, making all of creation and us, his creatures, his private property, turns war into the cosmogenetic force itself. It’s either that, or the same mechanism operates without a literal MOTU, obeying the laws of our style of science.

      It’s accomplished by deliberately conflating politicians with god almighty. Our Father, who art in Washington, whatever be His name, is made to appear to be the functional equivalent of the creator of the universe: The most powerful man in the world, leader of the free world, etc. To oppose the presidency, keeper of the Bully Pulpit, is made to seem equivalent to challenging the throne of heaven itself.

      Scarecrow came up with a superb suggestion: stop using the war metaphors for everything under the sun, sea, and earth. Those are the terms in which dicking with Mother Earth becomes the epitome of the Good Life.

      Too many people think war is the way the world was made to work. That’s the mindset the late great Howard Zinn said in May of 2009, speaking specifically of Obama’s devotion to war, we must change. It’s a centuries-, even millenia-long Crusade, updated and upgraded for the nuclear age, but it’s the same old idea of a political master of a mechanical universe. The fight is over who’s going to be king of the world, seated at the right hand of god. The weapon of choice is fear. The method: torture by isolation, to the point of collapsing our psyches into quantum singularities of egocentric pain.

      As I like to put it: we are organic beings, selves cellf-imprisoned in cellves of our own mistaken making.

      Western Science and Christendom are two branches of the same myth: the cosmos as construct, as an artifact, the creation, and therefore private property, of a political master who rules by fiat and kinetic force. When science supposedly gave up the idea of a creator, it nevertheless kept the idea of the cosmos as a machine. We’re either owned by god, or owned by the laws of our science; either way, we’re getting owned.

      Nowadays, we think that our science, economy, and military are the acme of human achievement. The phrase, Masters of the Universe, MOTU, is perfectly apt. Everyday, in almost every speech, our politicians invoke that god’s blessing, and assert the need for us to “reclaim” our role as first among equals. We act like we’re that god’s gift to the planet, but it’s not based on merit, it’s based on the age-old “fear of god,” as operationalized by our military and now, financial terrorism.

      We mistake our Christianist and Scientist ways of being in the world: as the private property of the great cosmic engineer-tyrant, or just god-forsaken dirt, with which we may do as we please, it’s all just a machine anyway; as the only possible ways of being human in the world. I’m here to tell you there are plenty of other ways, other, much older ways, that experience life as a dance between Father and Mother Nature, not a war.

        • knowbuddhau says:

          Thanks for the tip, Synoia. Rather than a sterile admonishment, how ’bout a spoonful of sugar with that medicine? Like I believe we all do, I really respond much better to even the slightest genuinely human touch.

          Is there a word limit on comments here at the Lake? I thought that was for places like HuffPo. Or is that an unofficial, unwritten FDL rule of writing comments? “No lengthy discussion, take your big ideas and put them in a diary, where they’ll disappear in hours.” As you can see from my links, dear fellow Laker, I’ve done just that.

          And, as of course you know, The Seminal list scrolls intolerably fast. I’m sure I’ve missed out on a lot of great stuff for that technological reason alone. So I myself like it, when people reiterate what they’ve written as diaries.

          By writing at length, I’m doing two things, both purposefully: contributing, in real-time, as full an account of my thoughts on my experience of the closest verifiable account of the truth I can muster, into this shared narrative we’re creating; and working on compressing my diffuse thoughts into a coherent diary post.

          Sorry if reading whole paragraphs, or scrolling past them, has put you out. If you don’t happen to like the lengths to which I go, to make myself clear, and can’t bother to read or reply to the body of my argument, I can save you some time and frustration: Save your breath, pal, I’m already in the process of doing what you suggest.

          I leave editorial control to the authors and beloved Lurking Mods. Sorry if my approach is too senatorial for you.

          Also: Does this mean you’re pledging to read what you suggest I write? If so, how kind of you, looking forward to seeing you there. If not, then thanks for the brush off, but no thanks.

          • bobschacht says:

            Is there a word limit on comments here at the Lake?

            Not that I know of.

            …Or is that an unofficial, unwritten FDL rule of writing comments?…

            Be a student and review the typical length of comments here at Emptywheel.
            Also, note how comments or replies typically relate to the original diary or to the comment at which the reply is directed. The unwritten rules are a matter of “list culture”. Generally speaking, comments are meant to be related to the top post or one of the comments. If you want to use something in the diary or one of the comments as a launching pad to develop another idea, that’s a good sign that you should write your own diary.

            And, as of course you know, The Seminal list scrolls intolerably fast. I’m sure I’ve missed out on a lot of great stuff for that technological reason alone.

            But comments scroll by even faster. The advantage of a Seminal diary are several:
            * the title of your diary gets listed on the sidebar to catch the attention of casual passers-by, which won’t happen in the comments
            * Commenters will be focused on your diary, rather than someone else’s diary.
            * Your diary will remain in the archives as a separate entity.
            * Your diaries on the seminal are accessible together in the format http://seminal.firedoglake.com/diary/author/yourIDhere so that you can tell people where to find your deathless prose. You can’t do that with your comments.

            My experience has been that when I write a diary on The Seminal, I usually get more response than I do when I write a comment.

            Bob in AZ

  11. Hugh says:

    It is time for the Obama Administration to quit frittering away the American foundation of law

    Sorry, it’s a feature not a bug.

  12. perrylogan says:

    By failing to perform his duties, Obama has insured that the next Republican President–probably Jeb Bush in 2012–will have dictatorial powers.

    • mattcarmody says:

      He’s always been there just to destroy Social Security and to keep the seat warm for whomever is going to enact all those nice dictatorial executive orders the Bush administration put in place.

  13. oldgold says:

    When is it that the justice department was not politicized? It always has been and it always will be.

    • BoxTurtle says:

      The Atty General has always been politicized. But until BushCo, the civil servents generally were permitted to do their jobs. And USA’s were (again generally) picked with as much regard to qualifications as to political party.

      BushCo changed that. ObamaLLP has improved upon BushCo’s setup. BushCo’s DOJ looked corrupt. ObamaLLP’s DOJ simply looks slow, stupid and inept. If somebody figures out it’s strategic incompetence, Obama fires someone in a show of anger and decisiveness and ObamaLLP selects a like-minded replacement.

      Boxturtle (Shades of Ed Meese!)

    • bmaz says:

      That is a wrong statement as to specific charging decisions, and absolutely a flat out lie as to venue decisions.

      • oldgold says:

        When being attacked, I prefer being attacked for what I actually said as opposed to what you imagine I said.

        • bmaz says:

          You were responded to on what you said; if you cannot figure that out, you might need some additional continuing legal education.

          • oldgold says:

            You are correct. I do need continuing legal education.

            But that has nothing to do with the fact that you attacked me for things I never said or implied.

  14. lefttown says:

    The utter gall, the hypocrisy of Obama can be found in this excerpt from his eulogy of Robert Byrd:
    “…a recognition of a basic truth about this country that we are not a nation of men, we are a nation of laws. Our way of life rests on our democratic institutions. Precisely because we are fallible, it falls to each of us to safeguard these institutions, even when it’s inconvenient, and pass on our republic more perfect than before.”
    How can he even utter those words with a straight face? The man is conscienceless.

  15. JohnLopresti says:

    e.p.Milligan serves as a worthwhile vignette of the knot of problems which at the time of the protagonist*s incarceration in 1864, and at the timeof the then Scotus* slip opinion in 1866, reflect a sufficiently mainstream course of liberal jurisprudence to guide the US national government toward reconstruction. It was a time long before women*s suffrage passed, and a century prior to enactment of a series of modernized civil rights legislation.

    Possibly relevant was a May 2010 2-judge ruling authored by Sentelle in the Maqaleh habeas case, which explores the neocon inspired proscription against habeas for detainees at a centralized prison in Asia. Prof Pearlstein provides a multifaceted analysis of that US Court of Appeals DC Circuit 2010 opinion there; prof Vladeck in May 2010 set the Maqaleh ruling in comparison with some of Scotus* Kennedy*s prior writing there.

    I think one of the germinating aspects of the O-Co administration is the nature of its mandate, which I contextualized at the time as a rebuke of numerous profligacies of BushCo, but especially some of the specious quasilegalizations which BushCo sought to foist upon folks, the Abu Ghraib and Gtmo debacles being signal among the many elisions which were BushCo style, and the economic watchdog soporification policies of BushCo running a close second in the motivational wave which swept voters into the ballot stations 2 years ago. The next few elections may provide O-Co opportunity for redirection, or refinement of their initial mandate after they develop their own record of their time in office. One might hope, Senator Whitehouse*s graphic demonstration of a compromised DoJ would not have a furthering under O-Co, and that the secret energy taskforce would not be a prototype for ongoing Presidential Records Act non-recording of meeting attendance, e.g. in 2010 there.

    Yet another bizarre remnant of BushCo funnybusiness at DoJ fallout, evidently, recrudesced this past spring quarter at Cal, where for the first time the university refused to publish the classroom number for prof Yoo*s constitutional law lectures publicly. The campus newspaper reports the ban on publication of the classroom number, however, in **politically correct** terms there in a January 14 2010 article which refuses to call torture torture.

    One of the sensational factors in the cancelation of the early plan for a Gotham venue for trial was the public*s sticker shock concerning fees for concomitant gendarmes in that city. In Toronto last week the economic summits cost a similar amount for **security**, pencilled in various media outlets as exceeding $1BBN.

  16. tanbark says:

    Bmaz; good on you, for not trying to cover Obama’s ass on this…as some “progressive” bloggers have turned into a cottage industry, for doing.

  17. Ronbo says:

    I was told by an individual in the DLC that the President has no power to change individuals inside the DOJ. I was concerned that Religious Bigots were pursuing their own agenda (attacking teh Gays) instead of supporting our Constitution and Bill of Rights. When I asked if Scott Simpson could be taken off GLBT-related cases, I was told that in the DOJ, Obama can not do that – can’t change, remove, interfere or politicize the Department.

    Poor President Obama, unable to lift a finger. It will take a miracle. Let’s all contribute so that he can have his spine replaced. You know, God is in the mix.

  18. Mary says:

    A little OT, but not all that much in light of the Arar denial of cert.

    China has just sentenced a US geologist for violating state secrets.

    http://www.huffingtonpost.com/2010/07/05/china-sentences-xue-feng_n_635540.html

    He did something that is extremely common in the O & G industry – compiled info on the location of existing wells and seismic activity. Since Petro China is a state owned company, China decided (at that point there were no written regs – they just issued some this April) to declare that business info (like the location of wells – seriously) of state owned businesses is a state secret and that the geologist trying to compile and distribute that info violated national security.

    The AP has no problem saying he was “tortured” (with cigarette burns) although John Yoo would beg to differ. They also leave hanging any discussion of whether or not the geologist should actually have been treated as an non-uniformed illegal enemy combatant, passing on info to, and providing material support to, other non-state actors who have an ideology of worldwide domination of O&G resources. An ideology that has generated death and destruction around the world. The real question isn’t why AP says he was tortured, when there is obviously such a “political dispute” on that issue, but why they didn’t explain how dangerously China was acting, given an illegal enemy combatant a trial instead of just disappearing him into torture detention until the worldwide competition for natural resources is over. /s

    • JohnLopresti says:

      re, your ¶4, re Yoo re administration of unanesthetized cautery, as torture; cf. Lederman January 18 2005 compendium of 100pp. judgeGonzalez written responses to interrogatories for record from Senate judiciary committee +senLevin @ ¶1d.**authority of [redact] agency to engage in cruel, inhuman, and degrading [redact].

  19. darms says:

    bmaz,
    I thought Whitehouse’s chart refereed to the incredible number of contacts between DoJ & the BushII administration, contacts that were used to persecute Dems and shield Reps. I’ll grant your point that Obama’s DoJ is also politically driven but the targets these days appear to be perceived ‘terrorists’ instead of domestic political opponents. Plus given the hue & cry raised whenever anyone talks about closing Guantanamo or moving prisoners to the US, is it any wonder no decision will be made on these ‘trials’ until after the mid-terms? Personally I completely disagree but in today’s insane environment where 25% of Reps can be described as ‘birthers’ it’s just political reality. The only ‘principles’ one can publicly defend these days are the ‘principles’ of what was once called the far, far right, or in other words, today’s mainstream Republican party.

    • bmaz says:

      The point of Whitehouse’s chart was to show the gross level of influence the White House had come to have on the DOJ. The purpose of this post is to show gross influence by the White house on the DOJ. Just because the pressures you describe may be a “political reality” does not mean they should be allowed to influence the charging discretion of prosecutors. That has never been tolerated.

  20. spanishinquisition says:

    “Plus given the hue & cry raised whenever anyone talks about closing Guantanamo or moving prisoners to the US, is it any wonder no decision will be made on these ‘trials’ until after the mid-terms?”

    It’s bad enough that we have indefinite detentions happening on foreign soil, it would be worse if indefinite detentions were established within the US. We shouldn’t become the United States of Gulag. Obama isn’t closing Gitmo, but rather he’s moving it to establish precident that we can’ throw people in jail permanently without trial on top of his administration show that it can unilaterally assassinate people far away from any battlefield. Let’s hope that the hue and cry continues so that these things don’t become established as the way the US is supposed to operate.

  21. Kathryn in MA says:

    There is only one political entity, and it has Rs and Ds as a side show. It’s the military/corporate/oil/banking entity and they probably kneecapped Obama right after the inauguration.

    **scene opens as the Obamas enter white house after the parade, etc.**
    “Hello, Mr. President, and congratulations. We’re down in the War Room, there’s a meeting in progress, won’t you join us?”

    • darms says:

      My “joke” here in Austin, TX was that whenever we’d elect a progressive to city office then find them doing the bidding of developers & Chamber of Commerce instead, it was something in the water at City Hall that made them change. Yet I wonder, unfortunately your suggestion that Obama was “kneecapped” after the inaugural does seem plausible. I knew beforehand that neither he nor Hillary were liberals or even progressives but I am dismayed at his performance on civil rights, rule of law or holding the banks & corporations accountable… It’s not that he hasn’t made progress on these issues, it’s that the “progress” he has made has been in the wrong direction, the direction of diminished rights for individuals and less accountability for authorities.

    • mplo says:

      If this:

      There is only one political entity, and it has Rs and Ds as a side show. It’s the military/corporate/oil/banking entity and they probably kneecapped Obama right after the inauguration

      really and truly is the case, it’s because Obama allowed himself to be taken in, hoodwinked and kneecapped by all the above-mentioned corporations. Inotherwords, as many people have correctly pointed out, Obama’s a shill for these corporations, and right in their back pockets. Much of the situation that he’s in is of his own making, imho.

  22. Teddy Partridge says:

    Holder hung out to dry?

    Hardly.

    Holder was chosen, and continues in place, as an enabler of Executive Overreach. Unitary Forever!

    • bmaz says:

      Yeah, maybe; but Holder has pretty clearly tried to put the 9/11 suspects on trial, and they are the ones being fought over here. I will give him credit on that, and I do believe he has been hung out to dry because Obama signed off on it completely …. and then stabbed him in the back.

  23. darms says:

    bmaz,
    There’s no question that politicization of DoJ is wrong. The sole motivation of any prosecution should be “did this guy break the law”, and by “this guy” I mean any guy, be they citizen, immigrant, corporation or agent of government, from a guy in public works to the president. But there should not be worldwide assassination orders from any government, either, especially not the US government. Yet there are. The “charging discretion of prosecutors” has been politically motivated since 2001 at the least and those responsible have not & will not face any adverse consequences whatsoever. Yes, that is wrong, totally. But it is our reality. And there is no politician or legislative body who is going to change it. Nobody.

    spanishinquisition,
    If “we the people” have to tolerate indefinite detentions then “we the people” should at least have the decency to do it on our own soil. The sham of pretending we can do this sh*t overseas doesn’t fool anyone at all. The way to stop these damned wars is to reinstate the draft only this time with no deferments. Possibly the way to stop these indefinite detentions is to bring them home and make the American public face these things each & every day. Even better post a copy of the Constitution and the Bill of Rights on the outside of each & every cage for everyone to see.

  24. macaquerman says:

    There can be no greater show of strength and character than to demonstrate to the world that we live and die with the principles we were founded with. Put the September 11th defendants on trial where they belong, as criminals in the Article III Federal court of jurisdiction.

    Well and truly said.

    Bring them here to NYC and try them openly.

  25. knowbuddhau says:

    Frankly, what really astonishes me is, the absence to my many challenges to fundamental assumptions I’m sure many of us hold. So many calls for fundamental, radical, change, so little commensurate discourse.

    Are we organisms, or mechanisms? The favorite nation of the creator of the known universe? Just the flukey product of a mechanical process? Or kin, baby, kin?

    And what influence do those assumptions have on our political economy?

    Nah, it’s way more fun, to argue about the placement of the feet of the angels on our pinhead, to argue about who should reign over what fiefdom and how, than ask, what do we believe we are, and how does that influence how we organize ourselves thus and so?

    It’s the mythology! Our myths shape the cosmos in which we then go out and act. But you wouldn’t know that from most discussions, even here at my most favorite virtual place in the cosmos.

  26. victortruex says:

    Anybody have any thoughts on how, or if, a Constitutional amendment to elect Attorney Generals might affect the office and how it functions? With Citizens United in effect it might not make any difference, but wonder if having to campaign on enforcing the law, and using one’s record as AG as a stepping stone to the Presidency, might influence an elected AG to act.

    • macaquerman says:

      Anybody have any thoughts on how, or if, a Constitutional amendment to elect Attorney Generals might affect the office and how it functions?

      you envision AGs and Presidents from different parties?

  27. skdadl says:

    OT, Khadr case: Hey! One of our judges just got his back up! Well, actually, our judges have been quite good at this if the case can ever get to them.

    To make a long story shortish, the SCC ruled in January that Khadr’s Charter rights had been breached and Harper was indeed required to seek a remedy. Now, to most of us, a remedy would have meant a strong and serious attempt to get Khadr out of GTMO and back to Canada. All it meant to Harper was a request that the military commission not use information that the U.S. got from Canadian agents, which info actually was helpful to Omar (the infamous video among other data) and which request the U.S. ignored anyway.

    So today a Federal Court judge has said, gosh, that’s, like, not good enough, and the government has seven days to figure out better remedies … and if they don’t, he may impose one. Go, Judge Zinn!

    The guy has a sense of humour too. He spanked the PM’s little spokesperson real good. (Kady O’Malley, btw, the reporter here, is the CBC’s parliamentary liveblogger, a talented and saucy person — people here are very fond of her. Everyone just calls her Kady.)

    • fatster says:

      Good news! Hope Judge Zinn has started a trend that will trickle-down here (not likely, but I’m still tryin’ to hang on).

      • earlofhuntingdon says:

        I especially liked that Judge Zinn took the administration’s spokespeople at their word and their job. That is, he characterized statements by a top ministry official and the PM’s deputy public communications official as representing the views of the government – and as responses to the SCC’s decision – not as offhand trial balloons that couldn’t possibly have repercussions.

        Who could imagine assuming that a top ministry official and the PM’s chief PR flunky actually spoke for the administration? Who could have predicted that those intentionally, meticulously planned public comments, which politely raised a middle finger to the SCC, would be taken for an official response to court, and that the court would have the audacity to conclude those comments reflected a government decision that was not responsive to the court’s order?

        My God, this will shake Canadian spinmeister industry to the bone. Their words, designed strongly to influence public debate on high matters of state, might actually have consequences for their clients. Good onya, Judge Zinn.

  28. Leen says:

    Bmaz “That was in late April of 2007, little more than three years ago. Despite the most fervent hope of a Democratic and progressive base that they were voting to change the wholesale invasion of the prosecutorial discretion by the White House political shop (along with so, so many other things), it appears little has changed”

    Thanks so much for reminding us to look backwards, examine the past, demand accountability for very serious crimes. How in the hell can this country really move forward in a way that is truly an example of all we could potentially stand for? Acknowledge that very serious and often purposeful mistakes were made during the Bush administration. Hold those responsible for those very serious mistakes ACCOUNTABLE.

    All American peasants know down deep the crimes committed during the Bush administration, many around the world clearly know.

    I watched Obama during his years as a Senator and he was continually playing it too safe to warrant any hope for real change. Although I got on his bus in a substantive way. I have never been sure why people were so excited? What other real choices did we have? A great PR campaign.

    It’s pathetic that after Obama and many others said that the “where” of the trial was Holder’s decision and then Schumer, Feinstein, Bloomberg, Rahm and many other undermined his decision. Pathetic and oh so telling.

  29. bobschacht says:

    O/T?

    World News
    Government loses appeal in Guantanamo habeas case
    By Michael Doyle
    McClatchy News
    Tuesday, Jul 6, 2010

    Editor’s Questions: Does this decision represent a significant victory for human rights in the imperial court or … is does it represent more obfuscation, manipulation, pretensions and ‘too little, too late’? In Belkacem Bensayah’s case, why has it taken 8 years for them to arrive at this decision? – LMB

    Has this been discussed here?

    Bob in AZ