Stunning al-Haramain Filing Shames Obama; Shows Duplicity Of Officials

In early June, a critical hearing was held in front of Judge Vaughn Walker in the al-Haramain warrantless wiretapping case. As a result of that hearing, Judge Walker entered an order commanding the attorney for plaintiffs al-Haramain et. al to file a motion for summary judgement. Hot off the press, the motion was filed minutes ago, and it is a stunning demonstration of just how disingenuous and two faced President Obama and his administration have been on the seminal issues of warrantless wiretapping, protection of Constitutional rights, transparency and accountability.

The first words in the main body of the motion are a stark reminder to President Obama and Attorney General Eric Holder of the very words and promises they have spoken in the past on the issue of illegal wiretapping:

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
President Barack Obama, December 20, 2007

“We owe the American people a reckoning.”
Attorney General Eric Holder, June 13, 2008

Apparently those words only were operative during the election, because that sure is not what Obama and Holder are saying and doing now. Instead, in pretty much as big of a Constitutional about face as is imaginable, Obama has decided to turn his back on his words and promises and throw his lot in with Bush and Cheney by asserting state secrets to protect the government from inquiry and accountability on its illegal and unconstitutional acts. It is not radical left wing bloggers saying that, it is distinguished US Senator Russell Feingold:

Of State Secrets, he said the Administration’s repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program

Senator Feingold is exactly right in his quote. The Ninth Circuit Court of Appeals has also slapped Obama hard on his continuation of the Bush/Cheney policy. And lest there be any illusion that Bush wiretapping program was legal, the following uncontroverted facts from the motion for summary judgment dispatch that notion:

On May 15, 2007, in testimony before the Senate Judiciary Committee, and on May 22, 2007, in written answers to follow-up questions by Senator Patrick Leahy, former Deputy Attorney General James B. Comey made the following statements demonstrating that defendants knew the warrantless surveillance program was unlawful yet continued it for several weeks in 2004 without the DOJ’s approval:

• As of early March of 2004, Comey and Attorney General John Ashcroft had
determined that the program was unlawful.

• During a meeting at the White House on March 9, 2004, two days before the DOJ’s periodic written certification of the program was due, Comey told Vice-President Dick Cheney and members of his and President Bush’s staffs that the DOJ had concluded that the program was unlawful and that the DOJ would not re-certify it.

• On March 10, 2004, while Ashcroft was hospitalized, two White House officials went to Ashcroft’s bedside and attempted to obtain the written certification from Ashcroft, but he refused.

• Despite the advice that the program as then constituted was unlawful, President Bush did not direct Comey or the FBI to discontinue or suspend any portion of the program.
(citations omitted)

The program was illegal from the start, and by all accounts remains so to this date under President Obama. But the most critical, and definitively illegal, period during the existence of the warrantless wiretapping program was following the infamous Ashcroft "Hospital Incident". As the "Statement of Relevant Facts" in the al-Haramain Motion for Summary Judgment lays out, this was precisely the period the al-Haramian attorneys were under illegal surveillance.

The foregoing is not just troubling because of the illegal acts committed upon plaintiff al-Haramain and its licensed attorneys, it is a damning comment on the credibility and honesty of President Barack Obama, Attorney General Eric Holder and the people they have brought on board to serve in our name.

The Bush Cheney surveillance program was legally defended in a "White Paper" issued by the Bush Department of Justice on January 29, 2006. It was a scurrilous and convoluted argument typical of the cravenly politicized Bush DOJ. Take a look at what some of the other officials serving in the Obama Administration used to say about the illegal Bush/Cheney surveillance program on page 21 of the motion for summary judgment. The really damning section, however, is contained in pages 26-28 of the motion:

Again, not even President Obama or members of his administration agree with the White Paper’s radically expansive theory of inherent presidential power. Principal Deputy Solicitor General Neal Katyal has said: “Claims of ‘inherent’ power . . . fall flat given the fact that FISA has been enacted.” Katyal & Caplan, supra at 1034. Solicitor General Elena Kagan has called the Bush administration’s legal opinions justifying the TSP “expedient and unsupported,” written by “lawyers who failed to respect the rule of law” and who do not understand that “the law and its precepts reign supreme, no matter how high and mighty the actor and no matter how urgent the problem.” Elena Kagan, Address to Cadets at the United States Military Academy at West Point (Oct. 17, 2007), available at 1.pdf. President Obama’s nominee for Assistant Attorney General for the DOJ’s Office of Legal Counsel, Dawn E. Johnsen, has written that the White Paper’s inherent power theory is “extreme and implausible.” Dawn E. Johnsen, What’s a President To Do? The Constitution In the Wake of Bush Administration Abuses, 88 Boston U. L. Rev. 395, 405 (2008). Johnsen adds: “The Bush administration’s ‘unitary executive’ and Commander-in-Chief theories, in my view, are clearly wrong and threaten both the constitutionally prescribed balance of powers and individual rights.”

In an amicus curiae brief filed in another TSP lawsuit, Associate Deputy Attorney General Donald B. Verrilli, Jr. (then co-chair of Jenner & Block’s appellate and Supreme Court practice) compellingly debunked the Bush administration’s inherent power theory, calling it “particularly dangerous because it comes at the expense of both Congress’s and the judiciary’s powers to defend the individual liberties of Americans.” Brief for Amici Curiae Center for National Security Studies and the Constitution Project, ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007), 2006 WL 4055623, Verrilli said that in the Steel Seizure Case “the Supreme Court established that Congress can, even during time of war, regulate the ‘inherent power’ of the President through duly enacted legislation. That is precisely what FISA does. In authorizing warrantless electronic surveillance in direct violation of FISA, the President is acting not only with power that is at its ‘lowest ebb,’ he is acting in violation of his constitutional duty to enforce the law as enacted by Congress,” Id. “Our Constitution was established to end – not enshrine – this kind of executive overreaching. . . . The NSA surveillance program upends the balance among the three
branches of government, and thereby threatens bedrock liberties the constitution and the Bill of Rights are designed to protect.” Id. at *14-15.

President Obama himself has acknowledged: “The Supreme Court has never held that the president has such [inherent] powers.” Charlie Savage, Barack Obama’s Q&A, BOSTON GLOBE, Dec. 20, 2007. President Obama expressly rejected the inherent power theory when he stated: “Warrantless surveillance unconstitutional.” Id. (some citations omitted)

The amicus brief filed by now Assistant Attorney General Donald Verrilli (who is a driving force behind Obama’s legal positions on wiretapping in general and the consolidated cases in front of Judge Vaughn Walker in particular) is extremely telling. It was filed in the Sixth Circuit appeal from the famous ACLU v. NSA case where Judge Anna Diggs Taylor found the Bush/Cheney program illegal and unconstitutional.

All in all, the motion for summary judgment filed by plaintiffs al-Haramain et. al is one fantastic read, a concise set of proof of the case for entry of judgment against the government, and a damning blow to the credibility and honesty of Barack Obama, Eric Holder and other key members of the Obama Administration. Their actions are directly contrary to what they promised the nation when seeking office, and are not the standard of conduct the United States was founded upon nor deserves.

  1. BoxTurtle says:

    Does the government get to respond to this or are just waiting for Walker to read it and rule?

    Boxturtle (The government is just waiting for an appealable order)

    • bmaz says:

      No, the government will respond in early August and then al-Haramain will reply to that response probably mid to late August. The hearing is set for 10:00 am Tuesday September 1st in NDCA.

  2. bmaz says:

    Oh, and by the way for the Emptywheel regulars, there will be a second post delving into some of the weedier legal issues from the motion for summary judgment sometime in the near future.

    • Mary says:


      I have to give kudos – that is a really well crafted brief. Not just all the hoisting on their own petards, but the string of public revelations and info vis a vis standing and support for what is needed to shift the burden to Gov to prove there was no surveillance or that there was a warrant is really well done.

      My fave, the Keith case, isn’t central and I kind of think it could be, but they do a super job. I like the fact that they mention Judge Diggs-Taylor (and the appellate dissenter) and the merits rulings that already exist on the program. In a reply later they might even want to drop a footnote to the stories on Lamberth and Kollar-Kotelly that they both reportedly also thought the program was illegal to the point of instituting special procedures to bar its fruits from FISCt.

      They also make the, to me huge, point that:

      If the Executive Branch were free to ignore FISA in the name of national security, then the Executive Branch would also be free, at its unfettered discretion, to ignore a judgment by this Court of defendants’ liability for violating FISA.

      To my mind, that is a big chunk of what was going on in the hospital showdown – that if the program were to go on at that point without modification there was no way to operate it that wouldn’t put DOJ in violation of the firewall orders from the FISCt Chief Judges. Maybe that is or is not the case, but the arguments proposed by Yoo and by the DOJ in general in every instance where they are arguing that the President’s powers exceed Congressional statutory bounds or Constitutional bounds of the Fourth Amendment — the net of that argument is the same as to say, “as lawyers we are telling the court that *our* client is above and beyond this court’s powers and rulings as well” If you are above statutory law, you are above … law.

      Also, since Kris in in the prior post, I’m going to pull this in addition to what you pulled:

      See Hearing Before Senate Select Intelligence Comm. on Nomination of David Kris to be Assistant Attorney General in Justice Department’s National Security Division, 110th Cong. (2009), CQ CongressionalTranscripts, Congressional Hearings (March 10, 2009) at 17 (“yes” answer to question whether “any violation of FISA would be clearly in the third category of the Jackson test”). Kris adds: “I cannot think of any facts that would make the TSP constitutional in 2005 when it was revealed.” Id.

      He can’t think of ANY facts taht would make the TSP constitutional in 2005 when it was revealed. That was AFTER the “Comey fix”

      Also, I’ve mentioned that I haven’t followed these cases super closely, but this surprised even cynical me – that Coppolino would have made this representation to the 9th:

      Mr. Coppolino has said that “attorneys who would represent terrorist clients . . . come closer to being in the ballpark with the terrorist surveillance program.” See supra at 8-9.

      And who decides they are terrorist clients?

      Anyway – great brief, great post here, and I’m looking forward to one or two more great posts from you and EW on it.

    • jdpriestly says:

      Is a copy of the separate statement of undisputed facts available?

      Argument is fine, but how clearly is the evidence supporting the facts set forth in the Separate Statement? The success of a summary judgment depends on the separate statement. Generally, in my experience, attorneys reviewing summary judgments to prepare recommendations for judges read and summarize the separate statement first. The motion itself is important, but . . . .

      • ART45 says:

        If facts X, y, and Z — all by themselves — support legal conclusion A, and neither x, y, or z is in dispute, is it not appropriate for the court to issue an opinion via summary judgment holding legal conclusion A?

      • bmaz says:

        Yes I have all that, but it is a lot of material. I will probably attach it to the next post, which should be sometime in the next day or so; Saturday at the latest I think.

    • floundericiousMI says:

      well, this is all grand theater until september…remember the government’s plan will be to admit no wrongdoing, no overreaching, claim every right and power is theirs, etc.

      Hopefully Judge Walker keeps the pressure on them.

      To me, the bigger concern is what will happen if Judge Walker rules against the government. With the way DOJ et al have handled the judiciary, they trumpet court cases that affirm or sidestep their assertions and either downplay or FLAT OUT IGNORE decisions they don’t like.

  3. SanderO says:

    Like many I have been disappointed in Obama and his change we can believe in BS and looking more and more like Bush.

    My question is: Was that all campaign BS to appeal to the disenfranchised in the US (everyone but the rich and ultra right and religious whack jobs)?

    Who IS Barack Obama?

    • whyknot says:

      Was that you at the Palin rallies last fall? The real Barack Obama is working his ass off, with the left attacking him nearly as often as the right. Nothing better to do?

      • bmaz says:

        And with all the efforts Obama has made on issues like the one in this post, what is not to love?

        Oh, yeah, bad example. Maybe you were talking about something with which I am not aware he “is working his ass off” on….

  4. STTPinOhio says:

    Jane just laid a smackdown on some Townhall twit that amazingly said the 50 million uninsured figure was wrong — more like 10-20 million.

    How do these people muster the brain power to remember the way home at night?

  5. Broadstreetbuddy says:

    I am not a legal expert so my question is if this is a summary ruling, what is the best outcome for that we can expect to see? If the judge rules in favor of the motion what will happen after that?

    • bmaz says:

      Well, the best that can be hoped for, and what seems semi-likely at this point (Judge has NOT been impressed with the government’s actions) is that standing is established, and judgment entered on the merits in favor of the plaintiffs and against the government. That would leave only the issue on damages (money to be assessed) at issue) appeal would follow likely before the damages are assessed.

      • perris says:

        I believe we spoke about this, that the government wants a judgement so they can file appeal and have this heard by someone other then walker

  6. perris says:

    I keep using the term;

    “obama has a terrible learning curve”

    it seems this “learning curve” is far worse then even I believed, he will be a one term president and it will be the democrats that defeat him

    he is running his presidency like a republican

      • perris says:

        the fact that he’s running his presidency with republican agenda has nothing to do with the idiots in the republican party

        they vote against the democrat even though he tries to give them their own agenda

        they are following the script from rove/limbaugh, they must make certain obama gets nothing done and they believe that is their ticket to their own re election

  7. wavpeac says:

    The part that sucks is that neo cons are saying: Obama is a foreigner who is trying to destroy our constitution and our country.

    This is really problematic from my point of view. We know that he is furthering the illegal behaviors of Bush…and that these same people don’t see Bush’s behavior as illegal. But many of them ARE picking up on Obama’s behavior and using it against him. (they don’t care what the negative is as long as it’s a negative and it fits their narrative).

    If he keeps this up, I think he risks re-election…the potential exists that this “idea” could stick because there is a kernal of truth to the notion that he is not upholding the constitution. (we might differ significantly between parties about what that means, but the sentence holds true regardless of party affiliation, perhaps for different reasons.)

    • wavpeac says:

      I lied. The part that sucks is that our current president is looking for ways to get around our laws, and is doing nothing to hold high level officials accountable. This means that the laws of this land are completely “situational” depending on who is in charge.

      wow. just wow.

    • DLoerke says:

      President Bush’s policies WERE legal. Obama needs those powers as well. The fact is, that the Court can order anything, but the Executive can simply say, “the court has made its decision. Let it enforce it”. This is a matter of National Security solely in the hands of the Executive.

      • wavpeac says:

        no…I couldn’t disagree with you more. Bush violated many laws regardless of his use of executive privilege.

      • perris says:

        simply incorrect, the only thing that kept bush from being removed and charged was congress’s total indifferance for protecting their status as superior to the president

        I say superior and mean it too, they are far more then “co-equal” since all power eminates from congress and congress can remove the president, the president cannot remove congress

        • earlofhuntingdon says:

          Thanks. My response would have fed the trolls too much. America needs this sort of executive power like it needs a Congress full of Dick Cheneys.

          The comment accurately describes the BushCheney attitude toward law: they hate it for limiting power by giving rights to their competitors or the powerless. It does not describe the American political or legal system, only their aspirations for it.

    • james says:

      That’s part of the game plan. Make noise like you disagree vehemently with everything the Democrat is doing so that ill-informed people on the left think he’s really doing a good job to counter whatever the Republican who used to have the job did when in reality he is following the same path just not on the blacktop.

      Same thing with Sotomayor. We could get better, we could get a more progressive voice, someone who believes in prison reform and treatment for addicts instead of incarceration. The GOP and the right paint her as a bomb throwing anarchist like the guys at Haymarket were depicted in the 1887 “trial” and the left unites behind a woman who, on law and order ussues, votes with her Republican colleagues.

      It’s all a game. Look at how they excoriated Clinton, Bubba who was nothing more than a Rockefeller Republican dressed like a Democratic Populist. Everyone was so sick and tired of the crimes and lies of the Reagan/Bush years that they believed he was the Great White Hope. What did he do? GATT, NAFTA, erosion of the Fourth Amendment and extension of the death penalty for select federal crimes, evisceration of welfare, consolidation of telecommunications industry thereby enabling Murdoch to found FOX News to Clinton’s own detriment, repeal of Glass-Steagall, war crimes through NATO proxy in the former Yugoslavia, failure to stop genocide in Rwanda, war crimes against Iraqi people by aggressively carrying out bombing resulting in more than 500,000 deaths of Iraqis, etc., etc., etc.

      Once you’ve looked behind the curtain and realize that there is just one common thing that motivates the political animal (money) and realize we will never have enough of it to warrant even a nod in the direction of our needs, then it’s pretty easy to not be disappointed or surprised when another “savior” screws you in the rectum without lube.

  8. GrievanceProject says:

    • On March 10, 2004, while Ashcroft was hospitalized, two White House
    officials went to Ashcroft’s bedside and attempted to obtain the written certification from Ashcroft,
    but he refused.

    These officials were Alberto Gonzales and Andy Card. This event alone is reason enough for Gonzales to be disbarred:

    On March 4, 2004, then-Attorney General John Ashcroft was stricken with pancreatitis for which he underwent gall bladder surgery. Prior to being admitted to the hospital, Ashcroft executed a formal document transferring the powers and responsibilities of the office of Attorney General to his Deputy Attorney General James Comey. This transfer of power was communicated to the White House. Knowing specifically that Ashcroft had both transferred power to Comey and had also not reclaimed his position, Alberto Gonzales, then-White House Counsel, visited the hospital intensive care bedside of Ashcroft on March 10, 2004 in an attempt to pressure Ashcroft to execute a legal document as the Attorney General. Ashcroft, who was barely conscious at the time, refused.

    Unfortunately, the bar complaint filed against Gonzales with the Texas Bar Association by VotersForPeace doesn’t even mention this and many other instances of unethical conduct.

    • bobash says:

      while I too pine for disbarment, having to take a teaching job at Texas Tech is more than just a little humiliation…

      • GrievanceProject says:

        to take a teaching job at Texas Tech is more than just a little humiliation…

        I’m assuming that you mean that it’s a humiliating for him to accept that particular job and not that it’s humiliating to work for Texas Tech. Either way, I think it’s beyond humiliating. To paraphrase a comment I made yesterday, the fact that he took the job at all conclusively proves why noone will hire him as an attorney: he’s an incompetent boob.

        $100,000.00 is a lot of money to teach one – just ONE – poli-sci class, recruit/retain/develop first generation and underrepresented students and occasionally guest lecture. But for someone who knows all about what really happened in the Bush White House (just think about all the dimes he could drop), this is a sucker’s job at sucker’s pay. If he had any skills, he would have turned a tidy profit. Instead, considering his previous jobs and salaries, he ended up with little more than subsistence-level wages.

        • earlofhuntingdon says:

          It’s a joke. Not because it’s Texas Tech, but because ‘Fredo is a former Attorney General of the United States who performed so poorly and criminally that no law firm will touch him, not even a big oil company like Chevron, which hired the even less salubrious William Haynes. It’s absurd because it’s Wingnut welfare to hire him to teach freshmen and sophomores about “special topics” in citizenship and government.

          As you suggest, were he not a soon-to-be wanted criminal, he would be making $1.5 million lobbying or litigating for a Gooper law firm in LA or DC. He wouldn’t be worth it any more than Dick Gephardt and Clones is worth it, but it’s the going rate.

          Something else it illustrates is what George Bush means when he says he’ll take care of you.

          • GrievanceProject says:

            Something else it illustrates is what George Bush means when he says he’ll take care of you.

            Jay Bybee (Federal judge), William Haynes (Chief Corporate Counsel, Chevron) and John Ashcroft (awarded a $50+ million no-bid contract by then-AUSA Chris Christie who is currently the Republican candidate for Governor of New Jersey) were well taken care of.

            But then again, Jesselyn Radack, the fired U.S. Attorneys (i.e., Paul Charlton, David Iglesias, John McKay, et. al), Thomas Tamm, Don Siegelman, Wes Teel, etc., were also taken care of.

            You have to be careful to clarify intent with those clowns if/when they do offer to take care of you.

            • earlofhuntingdon says:

              Fredo did more to keep Cheney and Bush out of jail than all those clowns who received far greater rewards. Almost certainly he perjured himself and obstructed justice and so incompetently “ran” the DoJ, under Addington and others’ guidance, that its competence and credibility across the board has declined to record low levels.

              Since those acts protected Bush and his top lieutenants, logically, they deserve a greater “reward”. Except that those other rewards were given when Shrub still had power and needed something yet in return. Now that he’s officially no longer required to work and out of power, he doesn’t give a shit.

              If Fredo hadn’t been so gullibly pliant and willing to bend the law, he’d have known that all along. But then, he wouldn’t have been Fredo.

              • bmaz says:

                Earl that is a very good point. The funny thing is that Gonzales actually had some protection and leverage at one point when he had his briefcase full of blues er secret docs and opinions, yet the wuss never had the balls to play anything to his advantage. He is so fucking pathetic I almost feel sorry for him.

                Eh, strike that, no I don’t.

              • GrievanceProject says:

                Put another way yesterday by acquarius74:

                Those “underrepresented” students in TX means Latinos. (names not so nice for them in the Midland/San Angelo area…some time ago it was still the Patron system, and definitely was when W was growing up there. I’m sure Gonzo grew up treating W as the Patron’s son…properly submissive. Now, Gonzo was desperate and the old Patron is still alive…

                [Emphasis mine.]

          • Loo Hoo. says:

            Something else it illustrates is what George Bush means when he says he’ll take care of you.

            Which obviously means nothing for Gonzales. Guy is so stupid that he allowed Bush to take him for a ride.

  9. Blub says:

    I’m now entertaining the possibility, however remote, that no president can protect the rule of law anymore. Reform of an institutionally and structurally corrupt bureaucracy may no longer be possible. The term “Failure of Writ of State” comes to mind. The term is used in South Asian countries like Pakistan to refer to constitutional violations so severe and irreversible that they indicate that the state itself (and not merely just a particular elected or appointed official or group of officials) has failed and no longer functions as chartered.

      • Blub says:

        probably not, but it bears some thinking about . I think that the term may have been intended to refer a condition where it has become simply impossible for citizens to count on due process of law because their government either no longer has the means or the political will to follow its own laws. …for example, if torture is illegal but, simultaneously, its use is legally upheld or sustained, or if the constitution guarantees rights of habeas corpus, the government suspends it and its courts uphold the suspension… all without changing the constitution or repealing the law being violated. in a word, chaos… I’m not sure if a case where a government has laws, the same government violates those laws with impunity, and its courts stay silent on those violations counts. It probably should.

  10. Mauimom says:

    Gee, I wish this had been up a little while ago. I was busy responding to an e-mail from the Obama campaign inviting me to “organize in Hawaii.” I told them

    At the moment I am SO disappointed in Barack Obama that I have not a WHIT of interest in organizing on his behalf. He has deserted progressive principles on so many fronts: FISA, civil rights for detainees, ending “Don’t Ask, Don’t Tell” and the “Defense of Marriage Act,” drafting Goldman Sachs alumni to run our economy, continuing the secrecy fetishes of the Bush Administration — and that’s in only six months.

    Most disappointing, however, is obama’s failure to stand up for a strong “public option” in health care. Hell, he ought to be out there pushing for single payer. Instead, he seems to value getting “some” [crappy] bill passed over bringing real reform in a way that a majority of Americans want.

    So no, despite having worked for Obama’s election for over 18 months, given the maximum to him, recruited others to donate and work, I’m NOT doing another damn thing for him until he changes. That YOU can believe in.

    This item would have allowed me to footnote my response [which I know will be rushed straight to Obama].

    Thanks for your work.

  11. TarheelDem says:

    Now that Franken is there, can we possibly get the rest of Obama’s nominees confirmed? Harry? Harry? Are you there?

    Well, plaintiffs said that they could support their case in a motion for summary judgment without referencing “state secrets”. Oh, why does that sound so much like Great Britain? Who and when was the “state secrets” doctrine introduced?

  12. Grape says:

    Obama’s true colors were exposed last June after he had secured the nomination, when he pulled a 180 and supported the FISA legislation. It cost him my vote. I’m prepared to turn my back on any number of transgressions by a politician (or political party), but not when those transgressions entail issues of war or assaults on constitutional liberties.

    • rhfactor says:

      Obama’s true colors were exposed last June after he had secured the nomination, when he pulled a 180 and supported the FISA legislation. It cost him my vote. I’m prepared to turn my back on any number of transgressions by a politician (or political party), but not when those transgressions entail issues of war or assaults on constitutional liberties.

      The even sadder truth is that his true colors showed long before that, but the Dems were too busy getting swept up by Obama fever to see the absolutely plain-as-day writing on the wall:

      This one USA Today article predicted everything you needed to know about Obama. Two years ago, July 2nd, 2007, in a short piece from USA Today:…..ment_N.htm

      The issue here is not whether or not Obama was reading political tea leaves correctly, regarding what mainstream Americans would and would not tolerate at the close of the Bush-Cheney crime era. “Reasonable people can differ on that issue” … and by now the real “Dean Progressives” are all spent on the past issue of whether or not Bush-Cheney should have been impeached.

      No. The issue here which jumped out at me immediately upon reading this was: here you have a Constitutional Scholar, a professor of Constitutional law, saying

      … impeachment should not be used as a standard political tool.

      “I think you reserve impeachment for grave, grave breaches, and intentional breaches of the president’s authority,”
      he said.

      I asked myself: “So he’s characterizing the Bush-Cheney lawlessness as not very desireable, but nowhere near the standard for what Impeachment was designed for as a Constitutional check and balance.” … I further thought “If THAT wasn’t even WORTHY of considering impeachment, then what WOULD it take for Obama to have considered their transgressions against the Constitution to hit the threshhold of impeachable offenses?

      He was free to make a POLITICAL strategic decision — one I didn’t agree with — but when he was speaking as an expert on Constitutional law? That told me everything I needed to know about Obama. That he was slicker than slick Willy, though craftier, more eloquent, I think much smarter, and certainly more likeable. I think he’s the most narcissistic President or leader of any org I have seen in my lifetime — other than some of the asshole megahit Film Producers at the various Hollywood Studios.

      To the people who keep saying give him a chance, and he’s got so much on his plate — well all the more reason to create allies amongst the Progressives who got him to the Senate and then to the Presidency. No way he would have ascended within that perfect timing window of 2008. But he has seemingly gone out of his way to betray every single quasi-progressive policy he lulled us with during the marketing period of his rise to Presidency. I don’t trust him. Because I know how smart he is.

      • sporkovat says:

        another sad truth is that seemingly none of this will diminish progressives unrequited crush on the Democratic Party.

        this kind of enabling in a relationship just encourages the dominant partner to see how much more they can get away with.

        • Hmmm says:

          So… if the President is merely mistaken… or poorly advised… and colors outside the lines, no harm / no foul?

          That’s frickin’ weird logic.

          • prostratedragon says:

            [Way, way later]

            Actually, “breach” as like the overtopping of a defense by an attacker, so the thing breached is the thing violated.

            Then, that phrase reads to me as though the impeachable offense would be something that goes against “presidential authority” —that breaches it— and not breaches of the consitututional or other laws that circumscribe it.

            So sensibly, only non-presidents could impeachably breach presidential authority. Now, it’s possible that I’m construing incorrectly or if not, that our president, speaking on the fly, just made a little goof. I won’t hold him to it. But it was said.

      • bobschacht says:

        “I think you reserve impeachment for grave, grave breaches, and intentional breaches of the president’s authority,” he said.

        I asked myself: “So he’s characterizing the Bush-Cheney lawlessness as not very desireable, but nowhere near the standard for what Impeachment was designed for as a Constitutional check and balance.” … I further thought “If THAT wasn’t even WORTHY of considering impeachment, then what WOULD it take for Obama to have considered their transgressions against the Constitution to hit the threshhold of impeachable offenses?

        I think we see here the typical Democratic over-reaction to the Clinton impeachment. Ironically, it represents the culmination of the Republican Triumph over Impeachment. Yes, they failed in their trivial impeachment of Clinton, but in so doing, they inoculated Congress against impeaching Bush or Cheney. As a tactic, the Republican impeachment of Clinton was a total failure. As a strategy, however, in retrospect, it was brilliantly successful.

        If the Clinton impeachment had never happened, Bush probably would have been impeached. The other side of that coin is that because the Clinton impeachment failed, Cheney knew that Congress would hesitate to impeach himself or Bush, which emboldened them to be more brazen in their assault on human rights and the Constitution than they would otherwise have been.

        IMHO, YMMV, etc.

        Bob in HI

        • rhfactor says:

          I think we see here the typical Democratic over-reaction to the Clinton impeachment. Ironically, it represents the culmination of the Republican Triumph over Impeachment. Yes, they failed in their trivial impeachment of Clinton, but in so doing, they inoculated Congress against impeaching Bush or Cheney. As a tactic, the Republican impeachment of Clinton was a total failure. As a strategy, however, in retrospect, it was brilliantly successful.

          If the Clinton impeachment had never happened, Bush probably would have been impeached. The other side of that coin is that because the Clinton impeachment failed, Cheney knew that Congress would hesitate to impeach himself or Bush, which emboldened them to be more brazen in their assault on human rights and the Constitution than they would otherwise have been.

          IMHO, YMMV, etc.

          Bob in HI

          My mileage is the exact same as yours.

      • greenharper says:

        “No. The issue here which jumped out at me immediately upon reading this was: here you have a Constitutional Scholar, a professor of Constitutional law, saying

        … impeachment should not be used as a standard political tool.

        “I think you reserve impeachment for grave, grave breaches, and intentional breaches of the president’s authority,” [Obama] said.

        Odd. I’d never noticed that the Constitution made ‘breach of the president’s authority,’ whatever that may mean, a high crime or misdemeanor.

  13. WarOnWarOff says:

    Apparently those words only were operative during the election

    Well, yes, yes they were.

  14. earlofhuntingdon says:

    Thanks, bmaz, for keeping this case from sliding under the now renamed, Obama Legal Rocks. Mr. Obama has turned into the David Brooks of presidents, all genteel and soft-spoken, but with a fundamentally radical agenda that masquerades as conservative. He is seeming more and more like a morally rudderless ship, tossing in the puddle of the Potomac.

    When the status quo is illegal and unlawful, it’s time to change the status quo.

  15. MaryCh says:

    I’m really tired of my savior acting like a politician.

    He may be able to play n-dimensional chess, but can’t manage to pucker up for a Democratic dogwhistle or two. I think I’m drifting toward Mauimom – must be post-9/4/08 plate tectonics.

  16. JThomason says:

    Utterly thought provoking post. Thanks bmaz. To refine the inquiry even further what temptation or leverage could lead Obama to such duplicity in his rhetoric? On the one hand we have the series of idealistic speeches in Prague, Cairo and Moscow and on the other hand we see this turn to policies of domestic repression. Do these facts lead to questions of the CIA in fact filling a latent power vacuum with the collapse of the Soviet Union in a way that threatens fundamental domestic autonomy. My intuition tells me this is all about the CIA case book with regard to manipulation of economic behavior. And so the more I think about it this is about fundamental power issues arising of the New World Order including those forces that Marcy refered to this morning that led Clinton to pass on checking any excesses arising of Iran-Contra.

    The realpolitik of the Kennedy model has always been something of natural check on Democratic presidents which is characterized most brazenly by the patterns of gun-running in Texas and Louisiana and arms shipments out of New Orleans in support of adventurism in South and Central America.

    So Obama closes the Iraqi front and escalates in Afghanistan and coincidentally we see conflagrations is Western China and Iran. I am not saying these are tactically related but in terms of a grand economic strategy for Central Asia they are interesting markers. Perhaps the cases that confront Obama are studies of threats of domestic instability arising in the 60’s and the covert strategies for minimizing these. Still I regret that I have found it necessary to be so far ranging in a thread considering fundamental domestic principles but the emergent paradigm of modernity is way down the road from even a post-post-modernism. And of course are Constitutional principles are essentially post-colonial. When PBS is running normative features regarding the history of money lending the niches of freedom are difficult to understand in the context of models where real estate and agriculture even plantation concerns were the dominant feature.

    Post-imperial industrialism certainly had its salient features of tyranny from the treatment of the war pensioners to the emergence of the National Labor Relations Act. Finally we may see the capstone of the modern dilemma though in the jailing of Wilhelm Reich, prophet of psycho-somatic liberation and the great post Freudian critic of totalitarian economics and degradational ceremonialism. It is not really clear where the domains of free unobserved action may exist in a world of intertwined cybernetic niches.

    Well in any event this is where this thread mixing politics and law has led me. I suppose I should now return to the massive decluttering project which at this point seems necessary, “clearing the decks” being what it is.

  17. Jeff Kaye says:

    It’s clear now (and much thanks, bmaz, for keeping abreast of all this) that the National Security establishment has total control over policy made in the arenas that concern it. Obama shows nary a bit of courage nor inclination to change that state of affairs. Whatever the NS establishment has granted, by way of concessions or “reforms”, has been forced upon it by the court or “public opinion.” But the concessions have been grudging and mostly cosmetic.

    We have an out of control situation in the executive, and it will take a major, major effort by other portions of the political establishment and civil society to change it. Lacking the will to do so means the U.S. is headed for ultimate collapse, though not necessarily before there is a hypertrophy of National Security hysteria bringing us ever closer to totalitarianism. The latter is not an inevitability, but the struggle will challenge us a society.

    In the end, either U.S. society renounces its claim to be the preeminent empire on the planet, or like those pretenders to same in the past (the Stalinist Soviet Union, for one), it will collapse under the economic and political realities that stand in the way of such grandiosity.

    • Blub says:

      that’s my fear.. that Eisenhower’s warning has finally come true and the M-I/state security complex has become so powerful that its un-reformable, that it can behave with impunity.. because no president or court or legislature can stand up to it and when they true to protest, they can just be ignored or suppressed… as is the case with the Pakistani ISI, for example (governments come and go, the secret police remains as a force on its own right.. the generals waiting in the wings, if you will).

      If we’ve gotten to that point, well.. I don’t want to think about it. The implications are horrific. A government can be repressive or authoritarian, but it still retains legitimacy so long as the organs of the state obey the de jure heads of that state. For instance, Putin or Hu might have the authority to order their security forces to do nasty things to their own people… that merely makes them authoritarian and mean. It just means they preside over repressive states. If, however, they give their military an order and the military ignores that order and does something completely different – and is allowed to get away with it.. well, that would mean the state has failed.

      • robspierre says:

        I don’t think it is as hopeless as you seem to suggest.

        If we have learned anything from history–especially recent history–secrecy breeds inefficiency, parochialism, and factionalism. It shields incompetence. Look how poorly the Bushista’s secrets have been kept and how many of the players have worked against each other (CIA vs. DoD, NSA vs. Pentagon, Joint Chiefs vs. DoD civilians, etc.). Could a Dusty Foggo survive in a more open environment, even in an investment bank? I doubt it. The personalities involved have more in common with petty criminals than civil servants, and will all be ready to deal when they get into trouble.

        I am fairly confident that the house of cards that is the
        security/intelligence establishment will collapse on its own. The worry is how long the process will take and how much damage will be done in the interim. Obama’s dismal performance makes me fear it will take long and do a lot of harm that he could have prevented.

  18. MrCleaveland says:

    Yep, you betcha. Obama is risking being a one-and-done. The Right can’t stand him, and he’s selling out the Left. That’s no way to treat your constituency, son.

  19. bgrothus says:


    One edit here: The really daming section, however, is contained in pages 26-28 of the motion:

  20. Diane says:

    I didn’t have faith that Obama would operate any differently from Bush on wiretapping, CIA ops, etc. The power grabbed by Bush will not be relinquished by Obama.

    • MrCleaveland says:

      That’s right. Democrat or Republican, in the end they’re all grubby politicians and brothers in arms.

  21. MsAnnaNOLA says:

    So are we going to impeach Obama since we missed out on impeaching Bush for these crimes? We need justice and we need this illegal government behavior to stop.

    • wavpeac says:

      We can hardly hold Obama accountable without first establishing that Bush/Cheney violated our constitution. Once this is established it is certainly possible that Obama could suffer consequences for not holding bushco accountable. (at least in regard to torture and maybe even fisa)

  22. Aeon says:

    Thanks bmaz for posting the motion.

    It is fine to see how the lawyers for AH use open source materials to construct an unclassified synopsis of their complaint in order to frustrate the purposeful derailment of their case by government secrecy claims. In fact, the way that they use these materials reminds me quite a lot of the method used by EW and the regulars here to probe deeper than anyone else into the hidden truth behind much of recent history.

    The AH lawyers establish a compelling inference under the law that something clearly happened between the “preliminary designation” order against AH on Feb. 19, 2004, and the “formal designation” as a Specially Designated Global Terrorist (SDGT) org on Sept. 9, 2004.

    That would be the govt’s aquisition of what could be interpreted as evidence of “direct links” between AH and OBL — through the surveillance of communications between counsel and AH officials. The content of these calls (including mentions of al-Qaeda linked clients being represented by one of the attorneys in another case) AFAIK hasn’t previously been revealed — even by Belew in any of his comments on this blog.

    The timing of Belew’s and Ghafoor’s 2004 telephone conversations with al-Buthi, in which they discussed persons linked with Osama-bin Laden during the period between Al-Haramain’s preliminary assets-blocking order and the formal SDGT designation, along with Pistole’s admission that the FBI surveilled Al-Haramain during this period, raise a compelling inference that defendants conducted electronic surveillance of those telephone conversations and then relied on that surveillance to declare links between Al-Haramain and Osama bin-Laden and issue the formal SDGT designation.


    Moreover, the surveillance of Belew’s and Ghafoor’s international telecommunications with al-Buthi occurred in March and April of 2004, which was during the several-week period when the DOJ refused to “certify” the TSP as lawful and defendant Mueller worried that the TSP was unlawful.

    EW, bmaz and commenters here have over the past year or two identified many of the facts and issues raised in this motion for summary judgment. It is good to see them all in one place — especially in the venue at hand.

    • 4jkb4ia says:

      That timing issue was good. The confusion of “surveillance” and “surveillance under an intelligence-gathering program” I expect the government to be very thankful for.

    • belewlaw says:

      Kudos to bmaz for the great job here!

      One point that you may want to consider with regard to Aeon’s posting is brought out in the OTHER Al Haramain case AHIF v. Department of Treasury (which challenges the AHIF designation). Case 3:07-cv-01155-KI

      In that case it has become apparent that Treasury has dropped the allegation of “direct links” to Al Qaeda. Apparently, the only remaining basis for the designation is the fact that one current (al Buthi) and one former board member are designated. Both are contesting their designation.

      I’m not sure how it fits into the case under discussion, but it does suggest that there has been some sloppy work done by the government.

      Wendell Belew

      • Petrocelli says:

        I’m sure the others would have joined me in saying thank you for coming by, we really like having you and your colleagues comment over here.

        • Funnydiva2002 says:

          What Petro said.
          Huge thank you to all the incredible legal minds that contribute here.
          And to all the incredible non-legal minds that contribute here.
          Funny Wheelie Diva

  23. 4jkb4ia says:


    “For several weeks starting on March 11, 2004, defendants conducted the
    program without DOJ certification and despite the Attorney General’s advice that it was unlawful
    as then constituted.”

    (This has been evidence that I am doing actual work)

  24. manys says:

    I’m thinking there’s collusion between Bush/Rove and the Obama Administration to engineer a Presidential power grab. You’d need both parties to do it in order for it to stick.

  25. jaango says:

    As a Chicano from here in the Sonoran Desert, Obama and Holder are adding a tad of stupid to my existing burden. Therefore, if Obama doesn’t create “his turf” and yet, firmly believes in defending “bush’s turf” there is not much hope for him. Consequently, his Legacy will be ascribed as a “second-rate” Leadership Model.

    And if that is “his” desire, then, my desire is that he not burden me further with his ’stupid’ and therefore, at some indefinite date in the future, I will call for his impeachment. As such, my vote is not ’second-rate’ and is not to be wasted.


  26. ART45 says:


    Maybe you’ve covered this, but…

    Is it not true that summary judgment is appropriate when there is no dispute as to the facts, and the court can rule just on the law applicable to those facts?

    • bmaz says:

      That is basically correct; however, it is going to be hard for the government to dispute the assertions put forth by plaintiff al-Haramain. The other point of note is that if the government does dispute and create material issues of fact, the summary judgment is vitiated and the case goes onto a trial track. that means discovery and all the related niceties of a case going to trial; they most certainly do not want that.

        • bmaz says:

          Both. We are currently at so far undisputed facts that should allow a judgment of law to be entered. The weedy post yet to come (or posts if Marcy jumps in too) will, I think answer a lot of your questions. I also think a careful reading of the motion for summary judgment will answer some of them.

  27. 4jkb4ia says:

    Given that bmaz had to phrase the post like this to get KO to pay attention and stuff, the mentioning of Obama and Co.’s prior statements is part of a good strategy by plaintiffs. Plaintiffs say that every legal argument for the TSP so far is so full of holes that we can debunk it simply and clearly and even defendants realized in their previous lives it was bunk. So we are challenging defendants to provide some affirmative position to either a) produce a warrant for what was done to our clients or b) produce an argument for warrantless surveillance they can believe in that is not rewarmed Bush “legal” arguments, and we are challenging Judge Walker to rule on the legality of the program instead of going away and taking damages. I look forward to bmaz’s further lawyerly insights on this matter.

    (”Affirmative position” means something other than the lack of response shown by the government heretofore behind the veil of state secrets. The government is challenged to take a public position)

  28. earlofhuntingdon says:

    This will, of course, be pursued to the Sup. Ct., so thank goodness for the consistently excellent work on the plaintiff’s side.

  29. sporkovat says:

    seems like its time for Progressives who supported Obama to walk back to ‘no one could have predicted he would break all the promises in his campaign rhetoric’.

    that’ll work for a little while.

  30. MadDog says:

    OT – To keep us all current on how the CIA lies misleads informs Congress, this from Newsweek’s Isikoff and Hosenball:

    Watch Who You’re Calling a Liar

    CIA Director Leon Panetta has ordered an internal inquiry into the agency’s handling of a contentious and still highly classified intelligence program that has caused a heated dispute between the CIA and Democrats on the House intelligence committee. The move by Panetta appears to be an implicit acknowledgment by the agency that it should have disclosed information about the post-9/11 secret program to Congress much earlier than it did.

    The internal CIA probe was described by an official with first-hand knowledge as a review by a senior agency officer–rather than a formal investigation by the inspector general’s office. The senior officer is not connected with the National Clandestine Service, the CIA branch whose actions are under scrutiny, according to the official who is familiar with the inquiry.

    CIA and congressional officials have refused to describe the nature of the covert program, but insisted it is not connected to the CIA’s use of controversial “enhanced” interrogation techniques…

    …One question Congressional Democrats still want answered: was the program an idea CIA officials had just talked about as a possibility, or had they actually put it into operation? If it was just talk, as some in the intelligence community insist, the argument could be made that there was no requirement to notify Congress. “This program came in post-9/11, and it was indeed on-again, off-again,” the official said. “You could argue that it never really took shape.” The implication is that whatever the details of the program, it carried risks that some officials at the agency strongly felt might not be worth taking…

    And this from Palo Alto Online:

    Eshoo calls for probe of covert CIA program

    U.S. Rep. Anna Eshoo, D-Atherton, Thursday called for an investigation of a covert CIA program that she said ran from 2001 to June 2009 without Congressional knowledge.

    CIA Director Leon Panetta informed the House Intelligence Committee June 24 that he had just learned of the eight-year-old secret program, which had never been disclosed to Congress, Eshoo said. Panetta told the committee that he ordered an end to the program as soon as he heard about it, she said.

    Eshoo, who sits on the Intelligence Committee, said the program is “highly classified” and declined to disclose any details about it.

    “The committee was actually stunned,” Eshoo told Joe Scarborough, host of the “Morning Joe” program on MSNBC…

    …”Who set up the program? How can it be that one CIA director after another, that are now retired, and others, never informed the Congress? The full committee was absolutely stunned when we were informed a program was in place from 2001 to 2009,” she said, adding the Republican committee members expressed similar concerns.

    Michigan Republican Mike Rogers, also a committee member, told MSNBC he did not share Eshoo’s impression of the Panetta briefing.

    “I don’t know we can come to the conclusion that (we) were lied to and misled,” Rogers said. “These are very serious allegations. I didn’t walk away and thought that had happened.”

    The covert program “was not a program that was continuously operated. It was ‘off again, on again…’

    • MadDog says:

      And via the Houston Chronicle, Rep. Darrell Issa, R-Calif says this (???):

      …In a related move, Rep. Darrell Issa, R-Calif., asked the FBI to investigate possible criminal wrongdoing by CIA employees.

      “Only after this matter has received a full and thorough investigation can members of Congress be confident that they are receiving honest and complete information in their intelligence briefs from the CIA,” Issa wrote in a letter…

      Looking for his letter, but no luck thusfar.

      • MadDog says:

        And per CNN:

        …The source said it was “something initiated years ago” that had “nothing to do” with the CIA’s controversial interrogation and detention program, but was “related” to the Bush administration’s war on terror…

        …Hoekstra told CNN that he is unconcerned that Congress had not been informed earlier because “the bottom line” is that “the Bush administration never made a decision to move forward with [the] program.”

        He argued that what he’s “really concerned about is when [our intelligence agencies] take an action against a foreign country.” Congress should then be briefed and “have an opportunity to stop [the] program if we think it’s inappropriate to move forward…”

        • Mary says:

          That almost sounds like Hoekstra is saying the on again, off again program didn’t involve the CIA taking “action against a foreign country” So that kinda narrows things down to individual foreigners, Americans and this country. I wish I found Crazy Pete reassuring, but notsomuch.

          • MadDog says:

            The fact that Darrel Issa asked the FBI to investigate, leads one to think that once again, the CIA may be violating our laws.

            • MadDog says:

              Of course, knowing Darrel Issa (a battle with Pete Hoekstra as to who is crazier), one had to expect this (via The Hill):

              Issa wants lie detector tests

              A leading Republican on Thursday said lawmakers should be forced to take lie detector tests before receiving classified briefings, as debate intensified over lying between the intelligence community and Congress…

              …Hoekstra quickly shot down the idea of forcing members to submit to polygraph tests, arguing that constitutional separation-of-powers protections would prevent the FBI or the CIA from administering the test to federal lawmakers…

              Polygraph Congresscritters? And before they get intel briefings?

              And we have a winner by a nose. Issa, crazy and muy estúpido too!

        • bmaz says:

          Renditions and/or rendition for torture?

          Of course, that unidentified source may be blowing smoke out of his rear too….

          • MadDog says:

            Renditions and/or rendition for torture?

            Except that was not unknown to Congress though likely not notified in all its explicit detail.

            Rep. Holt on KO now, so perhaps we’ll get more glimmers.

            • bmaz says:

              Hey there, quite a brief, I hope this gets around. Yeah, assassination squads are a decent possibility. Such as the fact that much of what was being done having been said it wasn’t happening when, in fact, it was just being done by JSOC instead of the CIA. Still, it seems somewhat off kilter that this is what was recently released by CIA and why they would be so on the hook for it.

            • MsAnnaNOLA says:

              That was my guess. The rumored Cheney assassination squads. And why would congress be “so shocked” maybe it is the depth and breadth of the targets both here and abroad. Maybe they found out after the fact that many a suspicious death over the last nine years were on thier heads and they didn’t even know it, and it pissed them off.

              Maybe it even scared them, they could be next. After all no one is keeping an eye on the clandestine service. That is Congress’ job and as usual they are not doing it. Not that they really could if Dick was keeping it under wraps.

      • MarkH says:

        Somehow it doesn’t completely surprise me that the Bushies could have gone behind the Republicans back as easily as the Dems. This ought to be an interesting story to follow.

  31. KayInMaine says:

    Ummmm…..why is this a damning blow to President Obama & Holder? As I read down through the post, I saw that it was Bush & Cheney who were getting the damning! And then I remembered….President Obama said he will always do what the courts order or find. If you all believe that President Obama is going to ignore this decision, then you have a case. But if he’s followed/used FISA and ignored the Bush Laws and will continue on this path despite what the court ruled, then what is really your beef? Does anyone have a clear case or proof that Obama is going behind the backs of FISA to continue on the path of George Bush? Huh?

    • bmaz says:

      If you really believe that, it is hard to know exactly where to start because there is so much. Did you read the motion for summary judgment? Have you read any of the posts here about the perfidy of Obama, not Bush, but Obama, on the continued assertion of states secret happy horsemanure? Did you read the links on Feingold or on the Binyam Mohamed v. Jeppesen case that are in the post you just claim to have read? If you actually read all of that and can still ask that question, that would simply be amazing.

      • earlofhuntingdon says:

        Mr. Obama indicates he will comply with court orders about as promptly and willingly as George Bush. His DoJ may be more articulate than Fredo’s or Mukasey’s, but it is not indicating any greater willingness to be bound by the rule of law.

        I take that as the principal reason Mr. Obama has cynically left Dawn Johnsen’s nomination to head the OLC hanging in the tree like an empty pinata – all promise and no reward.

        • Funnydiva2002 says:

          like an empty pinata – all promise and no reward.

          Well..the promises have been so prettily wrapped that Obama was rewarded handsomely in goodwill and benefit-of-the-doubt by many for a long time.
          Unfortunately, you’re right. This has not translated into much “reward” for We The People.

          As if re-instating the Constitution and Rule of Law could reasonably be considered some sort of gift…rather than our RIGHT as citizens.


  32. KayInMaine says:

    Has there ever been a president who did not invoke the state-secret privilege? Doubt it. George Bush abused this privilege. Do we have proof that President Obama has done it tri-fold compared to George Bush?

      • KayInMaine says:

        I highly doubt JFK never ever ever ever invoked state-secret ever in his time in office. Any proof that President Obama is throwing out whole cases before they hit the courts like George Bush did? Any proof that Obama is going around the FISA court to spy on Americans illegally?

        • bmaz says:

          From Greenwald:

          Before 2001, the state secrets privilege was mostly used to object to specific pieces of evidence being introduced in court, something that nearly everyone agrees is at least occasionally necessary. But the Bush administration changed all that. In their typical expansive way, they decided to apply the privilege not just to individual pieces of evidence, but to get entire cases thrown out of court. What’s more, they did this not merely when a state secret was incidental to some unrelated complaint, but when the government itself was the target of the suit.
          Now Barack Obama is president, and unfortunately he’s decided to continue the Bush administration’s expansive reading of the privilege.

          Quite frankly, Greenwald is being kind. Oh, and by the way, from John Dean:

          …a recent study reports that the “Bush administration has invoked the state secrets privilege in 23 cases since 2001.” By way of comparison, “between 1953 and 1976, the government invoked the privilege in only four cases.”

          Obama and his lackey Holder are belligerently supporting every single state secret assertion, save one, that Bush made. Your attempt to shuck off Obama’s bullshit by equating it with anybody but George Bush is patently false.

        • Nell says:

          Any proof that President Obama is throwing out whole cases before they hit the courts like George Bush did?

          A request like this seems to imply that you have not been reading Emptywheel for the last six months, or following these issues at all.

          If you had, it would have been hard to miss the harsh reaction by civil liberties/human rights lawyers, blogs concerned with these issues, and even in the media to the Obama administration’s unexpected abusive invocation of the state secrets doctrine to attempt to dismiss Mohamed v. Jeppesen Dataplan on February 9, a case in which four victims of rendition to torture are suing a Boeing subsidiary which provided the logistics making their secret abductions possible. This was a direct violation of the campaign’s explicit pledge to support legislation that would outlaw this kind of invocation of the privilege (as opposed to reserving the right to invoke it on a piece-by-piece basis in response to the attempted introduction of specific evidence).

          Days after the Mohamed filing, AG Holder announced that the DoJ would be reviewing its approach to state secrets doctrine. In early April he said in a national television interview that the DoJ would be invoking state secrets privilege to dismiss cases (i.e., abusively) in all but one of the cases under review.

          Coming as early as they did in the new administration’s term, these actions generated sharp debate about whether they truly reflected a reversal of the Obama campaign pledges or not. In the intervening months, the administration has so often and so consistently taken other positions upholding the Bush administration approach to secrecy and executive power that many people who rationalized or defended the Mohamed filing at the time have reluctantly conceded that there is an enormous contrast between explicit expectations set by the candidate and his senior legal appointees and their actual performance in this area. So much so that the burden of proof has now shifted onto those arguing that Obama is significantly different and better than the previous administration on state secrets, executive power, and related issues.

          Holder’s review of the invocation of state secrets privilege is itself apparently secret. EW just last month criticized that approach in a post devoted to the subject:

          I guess this is how we’re going to find out the results of his review, case filing by case filing?

          Mind you, the results–that the Obama DOJ continues to support Bush’s sweeping invocations of state secrets to hide Bush-era crimes–are no surprise. We’ve been getting evidence of that in piecemeal fashion since Holder was confirmed in February.

          I just think maybe Holder could do us the favor of releasing the results of his review, under his own name rather than the imperious “highest levels of the Department of Justice.” Holder’s DOJ (and President Obama) is about to make this a separation of power issue–but they’re doing so in ways that minimize the political pressure to break with Bush’s practices. This Holder review is being waved around like some gold standard in court filings, but hidden from the general public.

  33. earlofhuntingdon says:

    And heaven forbid that the Solicitor General or anyone else in the DoJ has to ask the OLC for an opinion on federal laws and executive powers, because Prof. Dawn Johnsen in on the record opposing Bush’s entire train of argument….

    Ooops, she isn’t employed at the DoJ, yet, notwithstanding that she was optimistic enough to leave Bloomington and relocate to the Beltway. Will she ever, or will they shunt her into one of those gigs at Georgetown Law that Marty Lederman and Neal Katyal left behind before they joined the DoJ?

  34. fatster says:

    House overwhelmingly rejects signing statement

    “We do this not just on behalf of this institution, but on behalf of this democracy,” said Rep. Barney Frank (D-Mass.). “There’s kind of a unilateralism, an undemocratic, unreachable way about these signing statements.”…..07-09.html

  35. cougar says:

    We WERE warned. One year ago we were appalled by this headline:

    “Obama joins Senate vote to legitimize Bush’s domestic spying operation”…..-j10.shtml

    The article points out that Obama was among the 19 Democrats who “joined every Senate Republican present in assuring the legislation a wide margin and sending Bush a state surveillance package that included everything his administration had asked for.” Further, Obama’s “action on the floor of the Senate represented a direct repudiation of a position repeatedly stated last year that he would vote against and even filibuster any legislation granting immunity to the telecoms.” (My emphasis)

    Any comments on if/how this “FISA Amendments Act of 2008″ might effect the al-Haramain case?

  36. theresa43 says:

    Way back when in the primary fight for nomination, I stated here that BHO was a politician like any other and all others. He will say the things that was needed to win support from various groups to win the democratic candidancy and then presidency. But when he becomes President you may see a whole new Barack Obama. Yes, I said it back then. BTW, I did vote for Obama and still have hope that he will accomplish important things for Americans. Consider that when you are behind that Oval desk, you have info that is highly classified and we don’t have the full picture on everything.

  37. milly says:

    If Hillary Clinton had been our president instead of Obama. The difference would be in the Sec of State job and that is about it. Of course Hillary would never put up with the insufferable Rahm Emmanuel. Leaving Howard Dean out of the administration was a tell.

    I still think Hillary Clinton thinks she could win in 2012…her people are not pulling for Obama or any other democrat who could be competitive.Our man is a figure head. And of course the DLC…..

    • MsAnnaNOLA says:

      If BHO keeps this crap up she will get my vote. Hell Ron Paul may even get my vote it he keeps this crap up.

  38. worldwidehappiness says:

    wavpeac wrote:

    The part that sucks is that our current president is looking for ways to get around our laws, and is doing nothing to hold high level officials accountable. This means that the laws of this land are completely “situational” depending on who is in charge.

    wow. just wow.

    That is a great comment! Sums it up perfectly. What I find astonishing is that so many people in power are supporting this downward spiral. There is no real long term benefit in it for anyone, except those few who could go to jail or be fined if Obama stood up for the law.

    Why do so many people support this downward spiral?

  39. fatster says:

    Ex-CIA agent: ‘What is it that they know and when did they know it?’

    “If they actually, purposefully lied here, the next piece of this investigation — I’m thinking about this as a former prosecutor, now — I want to know, was it one briefer who just screwed up?” Rice [former CIA agent] incredulously asked. “Was it the CIA who drove them to screw up? Or was it the White House who drove the CIA to tell the briefer to screw up? … That’s the real question now.”


  40. Hmmm says:

    Also deeply weird: Issa using the situation to try to gin up an FBI-on-CIA in-fight. Shiny object much, Daryl?

    • MsAnnaNOLA says:

      Interesting speculation. Might this tie-in possibly with the incredible spike in drug gang assassinations I have seen on tv and read about?

        • bmaz says:

          Heh, it is no secret in the criminal justice ranks. Here they even get fairly creative. Call up fugitives and tell them they have won a prize or another time had been chosen to appear on Wheel of Fortune when it came to town. Amazing how many dumbshit criminals actually show up for that stuff.

          • Hmmm says:

            Ah, thx. One might imagine word would get passed around to look gift horses in the mouth every June…

          • GrievanceProject says:

            Amazing how many dumbshit criminals actually show up for that stuff.

            If stupidity was a valid defense, we wouldn’t have jail overcrowding. (On the other hand, we wouldn’t have jail overcrowding if we just ended this ridiculous ‘War on Drugs.’)

  41. bobschacht says:

    OK– its after hours, so time to remind y’all about the Marcy Wheeler Pixie Dust Brigade over on Facebook, for fans and supporters of journalist and author Marcy Wheeler, a.k.a. “Emptywheel”.

    Membership requirement is the donation of at least $15 to the Wheeler Support Campaign. Purchase of Disney “Pixie Dust Hits the Spot” lunch tote optional. “Pixie Dust” theme was originally created by klynn, who defined pixie dust in EW’s honor, as a metaphor for VP Dick Cheney’s ability to instantly declassify secret information on any whim. This group was formed yesterday.

    Seven illustrious members so far, including Herself.

    Bob in HI

    • fatster says:

      Bob, may I join since I already made my donation (a couple or three days ago, I believe), or do I have to make another one in order to join (tight month, unanticipated dental expenses and blahblahblah)? Thnx.

  42. Nell says:


    I’ve viewed you as a near-troll since I first began spending time here. But because at any given moment new readers may be beginning to explore these issues — people who genuinely don’t know about the Obama DoJ’s positions so far — I took the trouble to respond substantively to your “question”, with links, as did bmaz. As it’s clear you have no intention of making use of them, I hope that there are at least one or two such readers who might.

  43. Nell says:

    Returning to substance: A few days after EW’s post, Atty. Gen. Holder testified to the Senate Judiciary Committee that the Obama DoJ’s policy on state secrets would be made public “in a matter of days.” Before filing this in the ‘Emptywheel Gets Results!’ folder, note the real reason he was addressing the subject:

    Responding to the outcry that the administration is abusing the privilege, the Senate is set to take up legislation, the State Secrets Protection Act of 2009, that would limit the executive’s ability to dismiss cases based on the privilege. Holder suggested that the Obama administration’s view of the matter will be different than the Senate’s, and will eliminate the need for the legislation altogether.

    The linked article notes that Obama’s DoJ has abused the state secrets privilege to attempt to dismiss entirely three cases, and has invoked the privilege to a significant degree in another 20 pending cases.

    A more recent report from just three days ago gives the clear impression that, unless the legislation picks up steam, Holder will stall indefinitely:

    A Justice Department spokesman says that the Attorney General’s office review of the State Secrets Privilege doctrine will be released within a few weeks.

    Currently, the House and Senate versions of the bills are before the respective Judiciary Committees. Conyers and Leahy are being chumps if they’re waiting for Obama administration signals rather than doing what they know is the right thing — what the Obama campaign itself ran on.

  44. perris says:

    for [email protected];

    kay in main is no troll, she is a strong supporter of obama and is disturbed we are not giving him a chance

    I understand her opinion and respect it, I am hoping she is right and we are wrong