CREW: Obama and Greg Craig Stand with the Dead-Enders

This morning, I noted that the January 21 filing supporting Bush’s crazy notions about email might well be the work of Dead-Enders. We know Dead-Enders submitted a brief in another suit naming the President as defendant during the week of the inauguration. And DOJ has added a new lawyer to the team, suggesting it intends to continue the litigation. 

From CREW, one of the plaintiffs in the email suit, we’ve got confirmation that the Obama White House intends to continue the litigation. 

Recognizing the incoming Obama administration may not have had an opportunity to fully evaluate the merits of the motion to dismiss, even though it was filed on behalf of the Executive Office of the President, one of the named defendants, on January 21, we waited several weeks before reaching out to the White House to suggest they consider withdrawing their motion. The response from the White House, on the afternoon of February 20 (the day our brief was due) was that we should go ahead and file. Thus, at least at this point, the new administration has indicated quite clearly it plans to continue litigating this issue.  

The lack of confirmed appointees at the Justice Department does not suggest this is an interim position, given that the White House is the defendant here with a fully-staffed White House Counsel’s Office. As for the change in DOJ counsel, it is simply the result of the trial attorney previously assigned to the case departing DOJ for a detail (in the White House Counsel’s Office). 

The CREW argument that this is not an interim position doesn’t hold much weight, given the al-Haramain example (the President is also the defendant in that suit and their stance has changed since the January 22 filing). 

But, for the moment, it does say that Greg Craig is not only continuing Bush’s legislation, but he’s hiring one of the DOJ Dead-Enders that got us to this point. We’re not going to get very far if Greg Craig sees fit to hire the Dead-Enders into the White House.

26 replies
  1. jdmckay says:

    (…) it does say that Greg Craig is not only continuing Bush’s legislation, but he’s hiring one of the DOJ Dead-Enders that got us to this point.

    Seems to me we’re seeing a lot of uncertain & undeveloped policy for Obama & co. in these early days. I was struck by Chu’s very uncertain comments over the weekend regarding upcoming OPEC meeting, and direction his boss is going to take in general.

    Hard to know if they’re just overwhelmed (especially w/banking/econ issues), unprepared, or rudderless. Sure seems to me though, on some of these things (like topic of this post), clearer direction is a no brainer. Can’t understand why, if indeed they’re following W’s lead on this, there is any principled reason to do so.

    Amusing or not, Obama’s already had several WH email crashes. I guess Miss Payton was too bizzy w/other things to actually leave a basic MS Exchange email system in working order.

    We’re not going to get very far if Greg Craig sees fit to hire the Dead-Enders into the White House.

    Very difficult to understand. Aside from “change” disappointments, seems more like continuity is order of the day.

  2. klynn says:

    So here’s my question,

    Does not “continuity” slapped upside the face by the courts actually result in change?

    • skdadl says:

      You mean Craig could be the new Fred Fucking Fielding?

      Given his statement about Obama’s not wanting to “weaken the presidency,” I’ve been wondering whether Craig wasn’t more the new Sara Taylor.

  3. chetnolian says:

    OT Binyam Mohamed is back in Britain. Watch this unravel now. Lots of people here, some of them quite important, (ex AG Lord Goldsmith for instance) aren’t going to let the whole question of torture and rendition and who knew what go away, and once you start joining the dots……

  4. Loo Hoo. says:

    OT from Think Progress:

    Pursuant to a subpoena issued earlier this month, Karl Rove was due to appear for a hearing before the House Judiciary Committee today. But as CongressMatters reports, despite being “expected” to appear this time, Rove was a no show. Contacted by ThinkProgress, the House Judiciary Committee confirmed the report of Rove’s absence. Days before leaving office, “Bush’s White House counsel, Fred Fielding, sent letters to Rove, Miers, and Bolten, instructing them to continue to ignore congressional demands for information about anything they did while at the While House.”

  5. bmaz says:

    Lots of people here, some of them quite important, (ex AG Lord Goldsmith for instance) aren’t going to let the whole question of torture and rendition and who knew what go away

    Lord Goldsmith? You mean Ex-Bush AG Michael Mukasey’s new law partner?? Shirley you jest.

      • Leen says:

        So will Goldsmith allow the question of torture and rendition to “go away”

        Go the same way that the investigations into false pre-war intelligence went? So much focus on the undermining of the DOJ, Torture, illegal wiretapping. But most seem to accept that the “pack of lies” that the Bush administration used to convince the majority of American people and congress to support an unnecessary war have just been swept under the filthy congressional rug?

        Did I miss it…was someone held accountable for the Niger documents?

  6. chetnolian says:

    OK OK BMAZ. It’s fun to laugh at Brits. I don’t know why but he’s making a heck of a fuss. I only tell you what is happening.

  7. JohnLopresti says:

    Until the rosters are full and the offices functioning, at both whitehouse counsel and department of justice, I reserve final assessment on these continuity of action processes. In Haramain there was a morphing to a more nuanced separation of state secrets from mundane variety fourth amendment due process, the latter a shore upon which rocks the tide of current burgeoned minority Scotus opinion has sought to create erosion several times since seating of the Chief and the perhaps beginning to mellow Alito. I think if Conners was as astute a techie as bruited, it remains likely RNC might be shown to have been inextricably intertwined in the likely as yet incomplete search for and reconstitution of the reroutered emails. Crew is plenty astute in the tech domain, apparently having made a governmentwide research project whose teleology was depiction of the condition of the governmental paperless office, with a mind to standardize individual department procedures in such a way as to distance governance from politics more wholesomely, Crew’s investigation of those other departments having occurred over the years since the fictitious server and lost ecomms issue first appeared in the public mediasphere. I am reading the MTD, but I think it only a dirty trick from holdovers, so far. Crew can sustain the pressure in that forum, where it has a record of measurable successes. I think that in the millions of WH emails disappearances there is ample room for separating best practices from political skullduggery, that it may be as time consuming and costly as OCIO’s then leader depicted, and that the court likely is eager to see some separation of these issues in oncoming filings by the administration in the email matter, just as in the wiretap profiling dispute, as both are areas which elicited quantifiably impactful public interest.

  8. Mary says:

    You know, short timing notwithstanding on the late Jan filings, “people” in place or not, those filings were very unlikely to have happened if Obama hadn’t been on board and if they had happened without him on board, there would have been some immediate reponse and recourse from the WH.

    Lawyers face too many issues if they make filings in contradiction to client directives, unless those client directives are to engage in illegal activity. If you look at Obama’s position on all the civil liberties issues, they have never been anything “hopeful.” He has always been taking with the left hand while propounding with the right one. Even his early speeches on something like GITMO would couple a demand to close it, with a reassurance that he wasn’t going to give Constitutional safeguards to terrorists.

    He has never been a voice on any kind of civil liberties issues under the Bush regime other than voting protections.

  9. Mary says:

    8 – it doesn’t hurt to remember that White is who Scheuer went to for legal thumbs up to do the Clinton renditions to torture.

    I thought the real gold on the Mukasey annoucements, though, were his insights into what he would be doing. Apparently his particular skill set has generated interest in corporations who are being required to have an “independent monitor” – Mukasey sees himself as ready to:

    work on behalf of corporate boards and oversee companies that have run afoul of the law as an independent monitor

  10. Mary says:

    9 – I’m sure his insight isn’t based on a perception that anything that replaces BAE bribes in the headlines would be beneficial

  11. bobschacht says:

    What I hope is happening (yes, I’m being audacious) is that Craig is being all smiles to Bushies for the time being, making them feel safe and retaining all records that haven’t already been destroyed, so that once the full Obama team is in place, they can gain possession of documents that a more hostile takeover would be unavailable to them for one reason or another.

    In other words, my hope is that Craig is taking the long view, and is playing chess.

    Bob in HI

    • lllphd says:

      i can’t help but agree with you.

      another way around to your position is to ask how smart it would be to go in all gangbusters on these cases and insist that “justice be done,” but justice obama-style, exposing both intent and probably too much strategy in the process. not smart.

      i mean, look at how fitz operates. you don’t even know he exists till he strikes, pretty much. that is precisely how this sort of case needs to be handled. finesse. keeping eyes on the ball, the ultimate goal, at all times. better to win the war than a bunch of battles.

      • Nell says:

        Those are interesting analogies, but I fail to see their application. Obama is neither teaching nor prosecuting. He’s governing.

        And in the course of doing so, he’s indicating, so far, that on a good number of executive power issues, his administration takes the same view as the Bush administration or, for that matter, as most admininstrations at the time they’re in office: resist any reduction in current powers or flexibility of action.

        • lllphd says:

          hm. you might be right that the analogies don’t apply, but this case is a prosecutorial matter (and more rightly in the hands of holder than obama).

          as for the teaching story, that was not meant as an analogy, but just a description of obama’s style. more information for finding consistencies in approach.

  12. lllphd says:

    oh, eternally and forever, ianal, but…

    it occurs to me, and others here have pointed out, that it is inappropriate for obama to be pushing a position on these cases as if to decree by fiat that his opinion on the matter is the correct one. it imposes a dictatorial attitude and invites reactionary defensiveness on the part of many out there, including the bushies and those who would protect him.

    mary penned a most convincing (as ever) argument that the courts have become a dumping ground for all these issues which just should be settled between congress and the executive (or else, i would add, they should all know better since they can all read the constitution, after all), and the courts have had enough of it.

    however, i wonder if that is precisely where obama would prefer this decision be made, instead of his oval office. i mean, for him to withdraw this case and essentially take a position on it only puts off the inevitable court decision, does it not? would it not beg for someone out there – one of these many bush players in the crosshairs – to contest his position and take it to court? would it not be better for obama to let the court make this decision without his showing his hand for the mediarazzi to shoot off?

    during the campaign i read an interesting piece on obama’s teaching career at u of c law school. what struck me was how the students emphasized that they never knew where obama stood on any of the issues. instead, he encouraged all of them to submit arguments on all sides of a legal problem, and then would push each of them beyond where they went. it described a most excellent teaching style, and of obama’s capacity to avoid preaching, a great demonstration of his confidence.

    i can’t help but wonder if he’s operating from something like that position here. i mean, what does he have to lose this way? if the courts rule for executive secrecy, then we can hope CREW and the others will appeal and wiser minds will prevail in the end. and even if they don’t, he can operate his own white house well within the boundaries that the courts set, then encourage legislation to impose those greater limits.

    and if the executive “loses,” well then, we’ve all won, have we not? and obama has not risked another opportunity to be labeled a dictator, especially a dictator with no sense of how badly we need all these state secrets, etc., to protect the american peeps.

    i dunno. it actually makes sense to me, but then, ianal.

    • Hmmm says:

      If what you’re suggesting is that the Obama administration may be, in continuing the Bush administration’s seriously dodgy arguments for the indefensible in court, seeking to prevent those rationalizations from ever being attempted again — as in, they expect to lose — then that is an intriguing idea. Since IANAL I am not qualified to opine on whether that would be a practical strategy or not. But I can see that the flip side of your logic would be that if the cases were simply dropped now, then those arguments would remain untested, and therefore might conceivably rise like vampires to threaten us again at some future date.

  13. PJEvans says:

    Well, given that most of the important people around Obama are Blue Dogs in spirit if not actual affiliation, I’m not surprised.

    Wish he’d wise up to his base being well to the left of the people who talk to him, though.

  14. Mary says:

    With the release of Binyam Mohamed, Murdoch’s Times is recirculating this earlier (and just as “truthy” then as now) Pentagon statement…..ttr=797093

    More than one in ten of the Guantánamo detainees sent back to their countries of origin have subsequently become involved in terrorist activities, according to the Pentagon.
    Geoff Morrell, the Pentagon spokesman, said that an estimated 62 former inmates had been linked to terrorism again. “That’s an 11 per cent recidivist rate,” he told The Times.

    Wow – with math skills like that, you have to wonder how the Pentagon manages to lose so many hundreds of thousands of weapons and billions of dollars. And Murdoch’s crew also dredges up Cheney again (I’m pretty sure EW did a post on this statement from Cheney, but I don’t know how to site search)

    Dick Cheney, the former US Vice-President, said recently: “If you release the hard-core al-Qaeda terrorists that are held at Guantánamo, I think they go back into the business of trying to kill more Americans and mount further mass-casualty attacks.
    “If you turn them loose and they go kill more Americans, who’s responsible for that?”

    Apparently, the answer to that would be Bush and Cheney, if it actually happened. But as Hilzoy noted in his takedown way back in January, they aren’t releasing any information on who and what they are treating as “returning” combatants, and in an earlier situation where the number was put at 30, research by the Seton Hall kids (who don’t get nearly enough press) showed that there might have been – 1.

    In any event, from notices given to lawyers and similar information, it appears that Britain’s “Tipton Three” have been treated as returning to the battlefield, bc they have said bad things and even filed a lawsuit; and one of Sabin Willett’s Uighur client’s was treated as returning to the battlefield because he penned an opinion piece for the NYT.

    They really must be sweating things a bit.

    • Hmmm says:

      I should think that the UK — the world’s heaviest surveillance state, we’re told — will have him under nonstop observation (to see who seeks him out after the convalescence, then trace them back, looking for contacts and cells) from now ’til the day he dies. And if that eventually comes in some Predator drone-fired missile strike inside England, well, it wouldn’t surprise me much.

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