They came for the 4th Amendment, but it was necessary for the war on drugs. They came for the 5th Amendment, but due process had to be sacrificed for the war on terror. They came for the 6th Amendment, but confrontation had to succumb to classification and secrecy. They came for the War Powers Act because Libya was “required to be protected”. Now they are coming for one of the most fundamental of Constitutional checks and balances, the Congressional prerogative of the purse.
Who are “they”? They are, of course, the ubiquitous Article II Executive Branch. And they have a never ending thirst for usurping power, all in the name of efficacy. It is always necessary, it is always an emergency, there is always a reason, for them to take the power. They are the Daddy Branch, and it is always best to trust them. So they say.
Back when “they” were the Bush/Cheney regime, liberals, progressives, and Democrats in general, had a seriously dim view of accumulation and usurpation of power in a unitary Executive. When Dick Cheney, David Addington and John Yoo contorted existing law, gave it application never intended, and manufactured legal and governmental gimmickry to accomplish stunningly naked Executive power grabs, those on the left, especially the blogosphere, screamed bloody murder. Well, that is precisely what is afoot here with the Mint the Coin! push.
Where is that principled set of voices on the left now? Things are different when it is your guy in office I guess. Because the active liberal/progressive left I see out there is currently screaming to “Mint the Coin!” doesn’t seem to realize they are calling for the same type of sham rule of law that John Yoo engaged in.. This is most curious, because “Minting the Coin!” contemplates a naked power grab by the Executive Branch of historic proportions. It is a wholesale taking of the Congressional purse prerogative under the Constitution. But, hey, its an “emergency”. Of course. It always is when the Article II Executive Branch comes to feed in the name of efficacy.
What is the value of Separation of Powers, and constriction of Constitutionally assigned powers to the branch to which they were assigned, and what is the value in insuring that an imperial Executive Branch does not usurp too many powers? Let James Madison, in Federalist No. 47 explain:
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.
The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. ” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department (Publius, Federalist 47).
What is the import of the Congressional “Power of the Purse”? As James Madison said in →']);" class="more-link">Continue reading
The event we have all been waiting for is here in time for the Christmas Holidays! Yes, it is the long awaited news on the DOJ “prosecution” of the former Office of Special Counsel head under the Bush/Cheney regime, Scott Bloch.
As you may recall, when we last heard tangible news on the Blochhead front, it was June 20 of this year when his release restrictions were voided. The court voided Bloch’s release conditions because the DOJ had inexplicably left the case hanging in limbo after the previous guilty plea had been set aside, thus allowing Bloch to withdraw from it, all the way back in August of 2011.
So, between August 2, 2011 and December 21, 2012, a period of nearly a year and a half’s time, the DOJ has done nothing whatsoever in furtherance of prosecuting Scott Bloch. Until today. And the vaunted Department of Justice has, on the Friday before the Christmas holiday…..filed a Motion to Dismiss. However, that is not the end of the story, as clause 5 of the Motion to Dismiss contains this language:
Concurrent with this Motion to Dismiss, the government is filing a new information.
Well, not quite concurrent, as the Motion to Dismiss was filed mid to late morning, and the new information was just now made public. The new charge, a misdemeanor, is pursuant to 18 USC 1361 Depredation of Government Property or Contracts. The factual basis is made out from the “seven level wiping” Bloch caused to be done. Here is the new information just filed.
Well, at least that is what the information is SUPPOSED to charge. That is the crime noted in the caption, and clearly the crime contemplated by the framing, but in the key statute recitation paragraph, the controlling body of the document mistakenly charges 18 USC 1362 instead. A year and a half the DOJ has had to conjure up this smoking pile of whitewashing garbage, and they still →']);" class="more-link">Continue reading
There is only one substantive case left in litigation with the ability to bring tangible accountability for the illegal and unconstitutional acts of the Bush/Cheney Administration’s warrantless wiretapping and surveillance program. That case is Al-Haramain v. Bush/Obama. Yes, there is still Clapper v. Amnesty International, but that is a prospective case of a different nature, and was never designed to attack the substantive crimes of the previous Administration.
A little over a couple of hours ago, late morning here in the 9th, the vaunted “most liberal of all Circuit Courts of Appeal”, the Ninth Circuit, drove what may be the final stake in the heart of Al-Haramain by declining to conduct an en banc review of its August 7, 2012 opinion. The notice from the court today is brief:
The opinion filed on August 7, 2012, and appearing at 690 F.3d 1089, is hereby amended. An amended opinion is filed concurrently with this order.
With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc.
The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall be permitted.
Before going further with analysis, a word about the “amendments” to the opinion. The “Amended Opinion” is here. You can compare for yourself to the August 7 original opinion linked above, but the difference is pretty slight.
It appears all the court did is delete a few sentences here and there about 18 USC 2712(b). The court did not address, nor change, their erroneous assertion that plaintiffs’ Al-Haramain could have sued under 1806(a), or restore the misleadingly-omitted (by elipsis) language from 1806(a). Nor did the →']);" class="more-link">Continue reading
There has already been a lot of very good commentary across the internets and media on the notable decision in the 9th Circuit this week in the case of Jose Padilla v. John Yoo. Although many, if not most, commenters seem outraged, the decision is, sadly, both predictable and expected. I also think Marcy had about the right, and appropriately snarky, take on the decision embodied in her post title “Jay Bybee’s Colleagues Say OLC Lawyers Couldn’t Know that Torture Was Torture in 2001-2003“. Yep, that is just about right.
As to the merits, Jonathan Hafetz, in a very tight post at Balkinization, hits every note I would urge is appropriate, and does so better than I probably could hope to. Go read Jonathan. Above and beyond that, I think Steve Vladeck’s analysis is spot on:
In other words, (1) it wasn’t clear from 2001-03 that CIDT “shocks the conscience”; (2) Padilla’s mistreatment was not as severe as prior cases in which courts had recognized a torture claim; (3) it therefore wasn’t clear whether Padilla’s mistreatment was torture or CIDT; (4) it therefore wasn’t clear that Padilla’s mistreatment “shocks the conscience.”
Thus, the panel’s approach is basically that the mistreatment here falls between conduct that prior courts (including the Ninth Circuit) had held to be torture and conduct that prior courts had held to be merely CIDT. Because Padilla’s mistreatment was less severe than prior examples of torture, and more severe than prior examples of CIDT, it’s just not “clear” on which side of the torture/CIDT line Padilla’s mistreatment falls… Of course, the fact that A > B > C proves nothing about where B is. And under Hope v. Pelzer, the question in qualified immunity cases is not whether the plaintiff can prove that the defendant’s conduct was at least as bad as something already acknowledged to be unlawful. As Justice Stevens explained, it isn’t the case that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Instead, “in the light of pre-existing law[,] the unlawfulness must be apparent.”
Perhaps the panel would have reached the same result had they not skipped these steps. But to my mind, these are fairly significant omissions…
Wheeler, Hafetz and Vladeck are all correct about the infirmities in the 9th Circuit’s version of Padilla (without even getting to the 4th Circuit’s version of Padilla, contained in Padilla/Lebron v. Rumsfeld).
At this point, arguing over key governmental personnel accountability, or lack thereof, is pretty →']);" class="more-link">Continue reading
The internet is a strange and wonderful thing. Just about everyone and everything in the world is on it, even though it is nothing but data in the form of binary computer code traversing by random electrons. Yet thought is crystalized, and friendships born and nurtured, through commonality of interest and purpose. And so it is here at Emptywheel, where many of us have been together since the days at The Next Hurrah, through years at Firedoglake, and now at our new home. Just because it germinates via the net does nothing to detract from the sense of community, friendship and admiration for each other gained over time.
With profound sadness, I report we have lost a true friend, and one of our longest tenured contributors, Mary. Mary Beth Perdue left us on Christmas Eve, December 24, 2011.
Mary Beth Perdue, 52, of Robards, KY, formally of Newburgh, passed away at her home.
She graduated Order of Coif from University of Kentucky Law School and from University of Evansville with an accounting degree. She was a member of the Indiana Bar Association. She was in house counsel at Mid-Central Land Services, Inc. and served as an attorney for firms in Indiana and Kentucky. She owned and operated the Horse and Hound (a pet supply store) in Newburgh. Mary was a lover of all animals with a special place in her heart for horses, dogs and cats. She was involved in numerous equestrian sports and organizations.
Here at Emptywheel, she was just Mary; and she was so much more than a simple obituary can convey. She was funny, kind, and, most of all, razor sharp in analysis of extremely complex issues surrounding torture, indefinite detention, international human rights, illegal wiretapping and executive branch overreach. Mary had a steel trap index in her mind for even obscure torture and rendition cases and facts. To the day she died, Mary was one of the very few people commenting in America that remembered, and would never miss a chance to point out, how the children and extended families of Khalid Sheikh Mohammed and Aafia Siddiqui were used and/or disappeared by the US as pawns in our immoral torture in the name of the so called “war on terror”. Mary’s dissection of Jack Goldsmith terrorist detention policy, complete with with a comparison to the Ox Bow Incident, was a thing of passion and beauty.
One of Mary’s favorite, and most important, hobby horses was the seminal case of Ex Parte Milligan, on which she beat the drum loudly long before the critical 2008 decision in Boumediene v. Bush and the 2009 release of the torture memos. She was, as usual, right. Here she is taking John Yoo apart at the seams over his intellectual duplicity regarding Ex Parte Milligan. And then there was Mary’s three part opus on the history and meaning of Ex Parte Milligan (Parts One, Two and Three), which is one of the best primers anywhere on the case that has finally come back into renewed significance in the critical issues of the war on terror. Mary played a part in keeping that significance alive, and in the discussion mix, until it took hold again.
Mary did not talk much about her real life family and work, and as another still practicing attorney, I can fully understand the maintenance of that separation. It is quite likely, like me, that her friends and family had little idea of the true depth and importance of her knowledge and dedication to the interests she expressed here, both in front page posts authored, and in her consistent critical contribution in the discussion comments. But, make no mistake, Mary was not just an invaluable contributor, and affected not just me and Marcy, but key players in the larger discussion. I know for a fact, because I talk to the different people and discussed it with them; Mary’s posts and comments were seen and known by actors from the ACLU, to EFF, to other think tanks and attorneys in the field. She left a mark.
As I said at the start of this post, the internet is a curious, if compelling and wonderful place; in all the furiously teeming milieu of people and issues, it is easy for one voice to not be missed for a brief time. All of us take time away every now and then, and Mary was no exception; often being scarce for a period due to pressing duties with work and her beloved horses and land.
I had not talked to Mary since a few days before Christmas. With the rush of the holidays, and a busy work schedule for me in January I have been a tad scarce myself and I had not particularly noticed Mary’s absence. A little over a week ago, I emailed her some irresistibly cute pictures of the one of a kind racehorse Rachel Alexandra and her new foal. Mary loved Rachel Alexandra. Realizing she had not responded to that catnip, I checked yesterday and found the terrible news. There are a lot of things Mary might be too busy with real life to respond to, but not that. And so life became a little less full and enjoyable. Mary’s family has indicated:
In lieu of flowers, memorial contributions may be made to a local humane society or other animal rescue.
And that would indeed be Mary, and fit her, to a tee. Here is a secure link to do so for the national Humane Society; but by all means, if so inclined, give to your local chapter and let them know it is for Mary.
Emptywheel will not be the same without Mary Beth Perdue, but her work and memory will live in our hearts, minds and archives as a testament to who and what she was and stood for. We shall close with the picture Mary never got the opportunity to see, but would have been the epitome of the horses, animals and children which she truly loved, Rachel Alexandra and foal.
Vaya con dios Mary, you will be missed.
Adam Goldman and Matt Apuzzo have a nice and fascinating article out today telling the story of a single CIA career analyst who was the critical cog in collating the information that led to Osama bin Laden’s capture and death:
He examined and re-examined every aspect of bin Laden’s life. How did he live while hiding in Sudan? With whom did he surround himself while living in Kandahar, Afghanistan? What would a bin Laden hideout look like today?
The CIA had a list of potential leads, associates and family members who might have access to bin Laden.
“Just keep working that list bit by bit,” one senior intelligence official recalls John telling his team. “He’s there somewhere. We’ll get there.”
Goldman and Apuzzo have done good work here; it is a great story, please read it in its entirety. But I want to play off their work to take it the step further that they did not. This is not just a feel good story about what worked and went right to capture bin Laden, it is an instructive primer on what didn’t work, to wit: torture.
So, while we congratulate CIA analyst “John”, let us also remember that years of effort, centuries of founding principles and an eternity of American morality was lost to the Bush/Cheney torture brigade. Ever since Osama bin Laden’s take down, the torture apologists have come out of their caves bleating at full voice in a vain attempt to justify their war crimes and save their face. Even yesterday, as the nation celebrated its founding, one of the most craven torture toadies of all, Marc Theissen, was back at it, saying the country owed the torture freaks an apology.
But torture is not what caught Osama bin Laden, good solid human intelligence and analysis were what did the trick.
That ability to spot the importance of seemingly insignificant details, to weave disparate strands of information into a meaningful story, gave him a particular knack for hunting terrorists.
Yes. Around here, we call that digging and trolling in the weeds. It is what works; not torture.
As most know by now, Charlie Savage at the New York Times let loose a stunning blockbuster of an expose of the conduct of Barack Obama and his inner circle in relation to the Libyan war vis a vis the War Powers Resolution:
President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.
Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.
But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.
Let’s be crystal clear as to what happened here: The Attorney General, Head of the Office of Legal Counsel and the General Counsel for the Pentagon/DOD all listened to Obama’s plan to flat out ignore the War Powers Resolution (50 U.S.C. 1541-1548), and the Article I power it represents, and they unanimously said it was untenable and illegal in the face of the War Powers Resolution.
Mr. Obama knows the War Powers Resolution exists, does not challenge its viability or Constitutionality and, against the direct opinion and advice of the three most germane attorneys in the United States Government, has just blithely and unilaterally blown it off. There are nine fairly short provisions in the statutory delineation of the “War Power Resolution” and, despite the yammering from the Administration and dithering by the press, they are actually remarkably clear in their intent and letter.
A criminal can nuance, excuse and rationalize himself around pretty much every statutory criminal provision, but society as a whole has no problem looking at the statute and seeing that there is offending conduct. And so it is here; Obama has thrown up sophistry, excuse and self indulgent rationalization. But any honest review of the WPR yields the unmistakable conclusion Obama is in direct violation, and has been from the outset. Congress has been crystal clear that they have NOT authorized →']);" class="more-link">Continue reading
James Risen reports that Glen Carle, a former CIA officer, says the Bush Administration was looking for dirt on Juan Cole in 2005. In one incident, Carle’s supervisor asked whether the CIA had anything on Cole.
Mr. Carle said that sometime that year, he was approached by his supervisor, David Low, about Professor Cole. Mr. Low and Mr. Carle have starkly different recollections of what happened. According to Mr. Carle, Mr. Low returned from a White House meeting one day and inquired who Juan Cole was, making clear that he wanted Mr. Carle to gather information on him. Mr. Carle recalled his boss saying, “The White House wants to get him.”
“ ‘What do you think we might know about him, or could find out that could discredit him?’ ” Mr. Low continued, according to Mr. Carle.
Mr. Carle said that he warned that it would be illegal to spy on Americans and refused to get involved, but that Mr. Low seemed to ignore him.
“But what might we know about him?” he said Mr. Low asked. “Does he drink? What are his views? Is he married?”
Then, several months later, a CIA analyst sought information about Cole again.
Several months after the initial incident, Mr. Carle said, a colleague on the National Intelligence Council asked him to look at an e-mail he had just received from a C.I.A. analyst. The analyst was seeking advice about an assignment from the executive assistant to the spy agency’s deputy director for intelligence, John A. Kringen, directing the analyst to collect information on Professor Cole.
Now, Risen connects these two incidents with successful right wing attempts to persuade Yale not to offer Cole a prestigious position.
Cole’s critics — in The New York Sun, National Review, The Wall Street Journal and elsewhere, several of whom are now praising Yale for not hiring him — have maintained that they aren’t using political tests, but object to Cole’s career on a variety of grounds. They point to numerous quotes he has made (generally in his blog) that they say show a willingness to blame the United States and Israel inappropriately (Cole has said that some of the quotes are taken out of context and that others represent legitimate opinion). Several have also criticized his scholarship, saying that he is spending too much time on blogging and questioning his output of serious scholarship. (His supporters point to a long publication list.) Campus Watch, a pro-Israel group, maintains a long list of articles about Cole, most of which it endorses for their criticism of him.
But the timing also happens to coincide with Juan Cole’s correct predictions that Ahmed Chalabi would not win the 2005 Iraqi elections. We know from AJ Rossmiller that the intelligence community made great efforts to ignore Cole’s predictions.
Chalabi won just .5% of the vote. Iyad Allawi, in whom the Administration also invested their hopes, won just 8% of the vote. And the Shiite coalition dominated by SCIRI and the Sadrists got 41% of the votes. In his book, Still Broken, AJ describes that he saw this coming.
After Iraq’s winter elections, the results validated the predictions contained in the paper I’d written in the fall. It created something of a stir because the paper turned out to be remarkably accurate, far more so than the forecasts of other agencies and departments. Before the election occurred, a high-ranking official requested a follow-up evaluation of our assessments, and I wrote a memo that described our precision. The memo made its way up through the chain, and a few days later the office got a note from Stephen Cambone, the Undersecretary of Defense for Intelligence, praising both the prediction and the self-evaluation.
Unfortunately, the bulk of the last half of AJ’s book describes how such accurate predictions are generally weeded out by higher-ranking analysts worried that their office’s work product might piss off the Administration.
When AJ was asked how he got the 2005 election right, one of the things he pointed to, half-seriously, was the open source work of Juan Cole.
I began to write the explanation of our methodology, and I tried to resist the temptation to criticize other agencies while explaining how and why we did things differently. State, in particular, was very sensitive about their screwup, and I didn’t want to piss anybody off.
“Sir, can’t I just say that I copied and pasted Juan Cole?”
Now, I’m not suggesting that the White House was digging dirt on Juan Cole because he correctly predicted Ahmed Chalabi would get smoked in a democratic election.
But it’s probably worth noting what opinions Cole expressed that generated this attention in the first place.
This is what bmaz and hcgorman @ 12 are referencing:
Two Guantanamo detainees, Fahmi Al-Assani and Suleiman Al-Nahdi, have moved the D.C. Circuit to dismiss their habeas appeals (Al-Assani’s motion is here, Al-Nahdi’s is here). Both men lost their district court habeas cases in decisions by Judge Gladys Kessler; the Al Assani decision is here, the Al-Nahdi decision is here. Both men appealed, and today, both men have given up their appeals as lost causes.
Their lawyer, Richard Murphy, explained in an email,
Judge Kessler denied our clients’ habeas petitions and we appealed to the D.C. Circuit, but then stayed the appeals pending the outcome of several [other Guantanamo habeas] cases in which [Supreme Court] cert petitions had been filed. Once cert [review] was denied [by the Supreme Court] in all of the relevant cases coming out of the D.C. Circuit it became clear that the appeals were futile. Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantanamo.
This development strikes me as a big deal–albeit a quiet one that won’t get a lot of press attention. [...] - Benjamin Wittes, June 2, 2011
That grim assessment of the current posture of Guantanamo habeas petitions, which, for years, have been pending before federal judges serving in the Judicial Branch of the United States Government, was further illuminated and reinforced by this June 8, 2011 Benjamin Wittes post:
Habeas lawyer David Remes sent in the following comments on recent developments in D.C. Circuit case law. He emphasizes that he has been counsel in several of the cases discussed below and that the following represents his own opinion only:
I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.
Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.
The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court →']);" class="more-link">Continue reading
[UPDATE: Bloch was sentenced to one month prison, one year probation and 200 hours of community service. His attorney indicated they will appeal, which could be interesting since the plea appears to, on its face, disallow appeal. And the saga of Scott the Blochhead rambles on.....]
Since mid-February an important, but little noticed, criminal case has been playing out in DC District court in which former Bush/Cheney administration Special Counsel Scott Bloch is charged with criminal contempt of Congress pursuant to 2 USC 192. As I summarized in an earlier post:
As you will recall, former former Bush/Cheney Administration Special Counsel Scott Bloch destroyed evidence by wiping government computers clean, lied to Congress about it and conspired with the DOJ to minimize the conduct and slough it off with a sweetheart plea deal. Then, outrageously, when the court indicated it was inclined to impose the mandatory minimum month in jail, which was mandated by the statute Bloch pled guilty to, Bloch and the DOJ conspired to get the plea, which had already been accepted and entered by the court, withdrawn.
When Bloch and DOJ both worked together to get the plea withdrawn, and frustrate justice, the egregious nature of the attempt was documented here in a fully argued and supported post published on Tuesday March 1, 2011. Subsequent to that post, the court also found questions with the attempt to withdraw the plea and ordered Bloch to file a reply supporting the attempt.
At the previous date set for sentencing, on March 14, the court gave Bloch one last shot to brief his way out of the hole he dug for himself and ordered a tight briefing schedule therefore. Bloch filed his Motion for Reconsideration on March 14, The government filed their response, again colluding with Bloch, on March 17, and Bloch filed his reply on March 23.
Late yesterday afternoon, Judge Deborah Robinson ruled on Bloch’s latest attempt to get out of the mandatory incarceration sentence he pled guilty to, and entered her order denying his motion. The court fairly well blasted Bloch’s whining attempt to withdraw and, by extension, the continued →']);" class="more-link">Continue reading