Obama DOJ Continues To FlimFlam Judge Lamberth On State Secrets

The state secrets doctrine was born on the wings of fraud and lies by the US government in the case of US v. Reynolds in 1953. As Congress struggles to rein in the unbridled use of the doctrine to cover up illegality by the Executive Branch (see here, here and here), it is a good idea to keep focus on just how addicted the Executive Branch has become to this unitary ability to quash inquiry into their malfeasance.

It took over four decades for the outright lie in Reynolds to surface and be exposed. The government was well on their way to covering up their similar dishonesty in Horn v. Huddle for decades, if not eternity, when a relentless plaintiff was finally able to demonstrate to Judge Royce Lamberth the fraud being perpetrated upon the court, nearly a decade after the original state secrets assertion. After giving the government multiple opportunities to come clean, Judge Lamberth blistered the DOJ with an opinion literally finding their acts a fraud upon the court.

After being exposed on the record by Judge Lamberth, the government suddenly decided to settle with the plaintiff, with a non-disclosure and no admission of wrongdoing agreement of course, and then moved the court to vacate its rulings against them. The DOJ literally wants to erase the record of their fraud.

But not everybody is quite so excited about the thought of the DOJ wiping the record of their time worn proclivity to dishonesty in state secrets assertions. It important for there to be such a record, with written opinions of the court behind it, because the government is still out there seeking to shirk accountability for illegality and Constitutional malfeasance in critically important cases such as al-Haramain and Jeppesen.

In this regard, the attorney for al-Haramain, Jon Eisenberg, has just taken the extraordinary step of seeking leave to file an amicus brief to Judge Lamberth in the Horn v. Huddle case objecting to the government’s attempt to vacate the court’s opinions. The amicus filing by Eisenberg is brief, but a thing of beauty. And he nails the government for continuing dishonesty with the court by pointing out how the DOJ unethically failed to cite to the court directly adverse authority to their arguments in seeking to vacate the previous opinions.

The purpose of this brief is to apprise the Court of legal authorities – as to which the United States’s vacatur motion is silent – that are directly adverse to the United States’s position and support this Court’s denial of the motion.
The United States contends there is “minimal” value in leaving this Court’s opinions “extant,” because they are interlocutory and thus are “non-precedential.” See United States’s Motion, Dkt. #508, at 6. But a district court’s interlocutory opinions, while lacking precedential value, are hardly valueless. In Fraser, 98 F. Supp. 2d at 791, the court refused vacatur of opinions concerning interlocutory issues because “there can be little doubt that, like the appeals court opinion in Bancorp, opinions on such matters are a valuable resource for litigants and courts,” especially where the opinions address “questions of first impression.”

That is the situation here. The opinions that the United States wants vacated concern questions of first impression – whether a district court may decline to give a high degree of deference to an assertion of the state secrets privilege where the government has previously made misrepresentations to the court regarding the privilege (the opinion of July 16, 2009), and whether a district court may decide whether counsel who have been favorably adjudicated for access to classified information have a “need to know” the information within the context of pending litigation (the opinion of August 26, 2009). The opinions will be a valuable resource for litigants and courts as these issues arise in other cases. In fact, the opinions have already proved to be a valuable resource in Al-Haramain Islamic Foundation, Inc. v. Obama, where the plaintiffs (amici curiae in the present case) have cited them in briefing on a pending motion for partial summary judgment. See Al-Haramain Islamic Foundation, Inc. v. Obama, MDL Docket No. 06-1701 VRW (N.D. Cal.), Plaintiffs’ Reply to Government Defs.’ Opp. to Pls.’ Motion for
Partial Summ. Judg., Dkt. #104, at 13 n. 2 & 17 n. 3.

Get that? After perpetrating a fraud on Judge Lamberth’s court, and being caught redhanded, the Obama DOJ files a brief that fails to disclose directly adverse authority, which is fundamentally unethical. It never stops on the pernicious dishonesty and outright fraud when the government is involved in state secret assertions; that was the case in the outset with US v. Reynolds, and that is the case now.

And you have to wonder why, at this point, Judge Lamberth would possibly be interested in granting the government’s wish to wash their hands here. It was Judge Lamberth, and his court, the fraud was directly perpetrated on, and that is the very conduct seeking to be escaped from by the settlement and motion to vacate. If not for having been caught, the fraud would still be ongoing. Justice, and the sanctity of the court, require Judge Lamberth to leave those opinions in place (not to mention the authority Eisenberg cites in the amicus filing); it would not be right to give the government the ability to wash away the opinion record of such outrageous perfidy when other litigants across the country are facing potentially similar circumstances.

Judge Lamberth should leave his opinions in place and let them have whatever value they may for other litigants, as a message to Congress, and, most of all, support for other judges, like Judge Vaughn Walker, trying to wrangle with an obstreperous and obstructionistic Department of Justice and US government. Quite frankly, after all the disingenuous conduct perpetrated by the DOJ in covering up the violations of the executive branch, the court should still impose stiff sanctions on the government as was being contemplated by the court in Horn v. Huddle before settlement; but, at a minimum, the court should send a message that such conduct will not be tolerated by leaving its opinions in place and in force.

73 replies
  1. Peterr says:

    After reading the amicus brief, one question kept going through my head: How sure are we that John Yoo isn’t still working at the DOJ?

    The brief alleges DOJ’s failure to cite relevant precedents as well as misrepresentation of citations (citing old cases subsequently overturned, or district court cases that could only follow from appellate rulings).

    Sure sounds like Yoo’s handiwork to me.

  2. Peterr says:

    One more thing. From p. 2 of the brief:

    In telephone calls made by the undersigned Jon B. Eisenberg on November 5, 2009, the United States’s counsel Paul G. Freeborne advised that the United States opposes this Motion; defendant Brown’s counsel Robert A. Salerno advised that Mr. Brown does not consent to this Motion; defendant Huddle’s counsel Donald M. Remy advised that Mr. Huddle does not oppose this Motion; and plaintiff’s counsel Brian C. Leighton advised that plaintiff does not oppose this Motion.

    IOW, the plaintiff in the case (Horn) and one of the defendants (Huddle) do not oppose the filing of this brief, while the DOJ and the other defendant (Brown) do oppose it.

    Also, the language used with regard to Brown is “does not consent” rather than “opposes” which was used to describe the DOJ position. The description of Huddle and Horn’s position, like the DOJ, used “does not oppose”. Is there a reason why “does not consent” was used instead of “opposes”? That is, is there a separate legal meaning to these phrases, and if so, what’s the difference?

    • LabDancer says:

      If it was manifest from any reply that Brown was opposing — for example, by actually using the word — then it would be unprofessional, and borderline unethical really [although that doesn’t seem to cut as much mustard these days, IMO as a consequence of the courts having become increasingly enured to a standard from government attorneys that’s so markedly different from even a generation ago, it’s categorical].

      So it probably means that, whereas the government in Brown used the word or otherwise made it unmistakable that the government opposes, with defendant Brown it could be his attorney didn’t respond at all to notice of the intention to apply to file the amicus, or wrote something I’ve seen quite a number of instances of attorneys in the position of Brown’s act in a manner that’s almost if not actually oblivious to such applications, and almost invariably, at least whenever the reason for acting so was either patent at the time or later clarified to me, it’s been for tactical reasons, or pursuant to some strategy, astute or otherwise. It’s also not uncommon for this to get conveyed in writing at the time, such as by the attorney in the Brown position writing something ‘We take no position, for or against’, or ‘We’re not registering our opposition at this time, but we reserve our client’s right to change positions should it appear his interests might be adversely affected’.

      The biggest practical benefit to the distinction is that the court is being told Brown’s attorney doesn’t see any need or advantage to Brown in opposing, such as to preserve a possibly pending deal. These days, getting back to that low regard courts generally have for government attorneys, as pretty much nothing more than messengers and reciters, depending on the circumstances even knowing no such deal is pending can be possibly useful.

      • bmaz says:

        Yeah, my read is that Brown’s attorney inarticulately “took no position”. Same difference; on something perfunctory like this, you either object or you don’t.

  3. readerOfTeaLeaves says:

    So judges should be irritated with the government for claiming that:
    (a) relevant information does not exist,
    (b) relevant information said not to exist cannot, therefore, conceivably be material to a case,
    (c) deceits by the government in lying to judges about legal matters are completely acceptable, according to the DoJ?

    Okay, what bits am I missing here…?

    Is Judge Lamberth objecting to some kind of Judiciary Derivative Swaps View of truthiness?

  4. JTMinIA says:

    Hey, those are my tax dollars that are going to Horn and I want them to do something for me, as well as Horn. And I want them to be used to wash the record clean so I can continue to believe that America=good and everyone-else = bad. So please drop this issue, you commie f*g junkie* and hater of all things good. /snark

    * with apologies to George Carlin

    • earlofhuntingdon says:

      Good reminder. The settlements in this and similar cases are coming from very scarce tax dollars. It’s not like the money is coming from the DoJ’s budget. As with lobbying, it’s a small investment to hide greater wrongs, and to create more tools (or to remove them from the reach of others) with which to hide those wrongs.

      I dearly hope Judge Lamberth leaves his orders in place and imposes sanctions on the government defendant’s lawyers. Otherwise, he helps create the rule that if you have enough money – or can use enough of someone else’s – you can buy your way out of any criminality.

      • LabDancer says:

        We’ve done this before, but it’s difficult to bear in mind, so:

        Assume the federal government has illegally tapped the phones or emails of on average one million US residents per day since September 11, 2001–that is, over 2,978 days; in other words, for 2.978 billion “US resident days”. At $1,000 per day, what’s the total? $2.978 trillion.

        What are the chances that the government has limited its 4th amendment non-compliant surveillance of the phone calls and emails alone to an average of a mere one million US residents since 9/11? Is the real number closer to 10 million? Assume an average of 10 million per day. That’s almost $30 trillion–or 30,000,000,000,000.00 dollars–more than twice the average yearly GDP over the last decade, and probably closer to 3 times the current and foreseeable rate for through the second decade of this century.

        Or is the average daily rate higher? Does anyone in the government know what the rate is, or has been? Is it even possible to calculate that with any practical degree of accuracy?

        But just go back to the modest–i.e. ridiculously underestimated–rate of average daily arguably-4th-Amendment-non-compliant US government surveillance of 1 million: who pays that?

        • LabDancer says:


          And they’d start making payments immediately after the partners voted to establish a shell corporation to assume any even theoretical remaining liability of the partners to the already-limited liability partnership vehicle, disperse the remainder of its entire asset base in bonuses, submit their resignations en masse and agree to meet in a couple of weeks time in Qatar or Belize to form a brand spanking new partnership.

        • LabDancer says:

          And even assuming the practical exposure at just a measley half a trill–chump change, really–the administration, regardless of it being headed by Obama, Democratic president or no–is facing it’s own messager from Samara, in the specter of the Reverend Grover Nordquist & his substantial flock. This Congress won’t even allow the administration to bring probable innocents & crippled suspects off the GTMO rock & into the multi-layers of steel, concrete, armory & non-stop surveillance equipment that comprises the escape-proof high-risk US federal prison system; I don’t foresee Congress voting to set any meaningful contingent liability fund for citizens & other legal residents to send lawyers in after.

  5. Professor Foland says:

    Since I’ve not read many such things–is the last page an indicator that the judge has actually made a decision, or is that something the authors drafted and included to make it real easy for the judge to simply sign his name?

    • bmaz says:

      That is simply a form of Order for Lamberth to sign to allow the amicus brief to be accepted for consideration in the case. Since Eisenberg and al-Haramain are not parties to the Horn case, they do not have an automatic right to address the court and must ask permission. I assume Lamberth will permit it though.

  6. rmadelson says:

    Truly a despicable motion by the DOJ to attempt to wipe away evidence of their misdeeds, and more importantly, the persuasive effect of those orders in other cases.

    And it perfectly demonstrates that Obama, through the DOJ, isn’t purposely losing cases to make good case law. Not that anyone with a functioning brain actually makes that argument but I’ve read it some places and this is the nail in that coffin.

    Thanks for the update and analysis.


  7. Mary says:

    The al-Haramain lawyers have done awfully nice work, pretty much across the board. Wasn’t there a newish crew of lawyers on this settlement part (vs the crew who proferred Tenet’s false affidavit?) I’m not sure why I think so, but for some reason I do – and if so, then you have successive crews, set one engaging in fraud on the court; set two misleading the court by failure to cite directly contradictory authority (in a motion attempting to expunge from the record any judicial consequences that attach to the first crew’s fraud).

    Isn’t that nice?

    OK – I’m starting to be a little swayed from my former “he’ll probably do it” position. And if he doesn’t, then Gov has a nifty pickle. Lamberth is not the name you want attached to any authority on an item of first impression on national security issues if it goes against you. Precedential or not, for a real judge without a personal agenda that kind of name and experience attached to that situation is going to be very formative in your process.

    [Completely unrelated, and I’m not sure I didn’t know this before and forgot it just that fast, but Charles Swift isn’t with Perkins anymore – I know that will make you happy bmaz, and he’s one of the lawyer Pakistan has hired for Aafia Siddiqui]

    Because I love this post so much, I’m going to do something I never do what with my own typing/editing issues for my comments – “important for their to be” there.

    • Mary says:

      One place I like to hit and spend some time browsing at is The Talking Dog site, here:
      It has a lot of interviews archived and they are usually great. I have no idea who the blogger is, but during the primaries and after he/she has mentioned being a classmate of Obama’s and there has certainly been a lot of disenchantment as Obama has raced to reinvent himself in the likeness of Bush. Recent post with a pretty bitter rant on Obama and his con law teaching a case in point.

  8. Arbusto says:

    bmaz & Mary are using very strong adjectives such as fraud, “outrageous perfidy” (is there any other kind) and a DoJ tag team of fraud and misdirection (misleading). INAL, but DoJ actions of this kind seem endemic on national security civil suits, yet no repercussions for the wayward attorneys or supervisors. I’m turning into an Old Testament guy with an out of control Executive (and Congress). Is this just an old boys club, or will some action come down from on high to get mid-evil on these putzes ass?

    • Mary says:

      DoJ actions of this kind seem endemic on national security civil suits, yet no repercussions for the wayward attorneys or supervisors

      This is why I have pushed the concept of ‘to heck with the investigations into whether or not Yoo had a black, blacker, or blackest of hearts and motives when he wrote his torture opinions'(which is supposedly what the likely – valueless OPR review will highlight) and instead there should be an investigation of all these DOJ responses and tactics in their torture and states secrets and unconstitutional wiretapping etc. suits. There are some pretty black and whites on those fronts and many of the consequences could be tied to judicial action that might evade SOL issues by resulting in investigation/court joint referrals for bar actions – – and which would, with such a huge and concrete set of misconducts just waiting for someone to pursue, also shake loose some info and witnesses on the obstruction and liability issues involving the deaths, where the SOL had not run.

      But Congress isn’t interested, nor is Holder, nor is Obama. Remind me again why I bothered to vote for Dems?

      • Arbusto says:

        I’ve broached Private Prosecution before, though it’s basically untried in the US. Too bad we don’t have a Koch of bottomless pockets to explore the idea of a civilian prosecution team.

      • WilliamOckham says:

        Remind me again why I bothered to vote for Dems?

        Um… because McCain was crazy and Palin crazier? Because as lousy as the Dems are, the Republicans are even worse?

        No, I know. Dick Cheney!

        • bmaz says:

          Listen, trust me, you DO NOT want John McCain as President. By the time he was done, Bush may actually have been preferable to McCain. Seriously.

        • earlofhuntingdon says:

          Yup. Gotta agree with you there. He makes Bush’s mean-spiritedness seem dainty. He has more axes to grind than Bush and is more inclined to bury them in his opponents’ scalps than in the ground. Both are pampered brats, one from Navy aristocracy, one a trust fund baby; neither grew up or out of that beginning.

          McCan’t has more sins and bones, too, which he’s buried in the closets of his wife’s many mansions. He’s hotter tempered, quicker on the draw, and has a worse aim than Shrub or Big Dick.

          Above all, McCan’t was one temper-tantrum-induced stroke or heart attack away from giving us the Divine Ms. Palin as president. Think about that before wondering whether Obama was the lesser of two evils. But as you’ve said since before the election, Obama is not liberal, he’s not progressive. He’s an anti-revolutionary, status quo corporatist, who seems to agree with Jim Lehrer that being a gentleman is a function of how one does things, not what one does.

        • Mary says:

          I don’t really buy it anymore. At some point you have to just vote third party and be done with it. As long as no one will, we are basically a 1A and 1B party system, both the kind of reverse socialist versions of corporations owning and running government vs. the opposite.

        • readerOfTeaLeaves says:

          As weird as this may sound, I’m of the same mind as MSNBC’s Dylan Ratigan at this point: ‘the Money Party’ has captured the Dems and the Republicans.

          As long as they can keep us leetle peepul (and yes, I’m thinking ‘Tweety’!) arguing about partisanship and tea baggers and suchlike, they create endless distractions while siphoning off the remaining, clinking change of the US population.

          s/ alert!
          And FWIW, after reading this thread, I have decided to open a Bank Holding Company so that I, too, can join Goldman Sachs at the Fed’s Discount Window for cashola, pretending to be a bankster.

          And since I’m going to be a megabank (gotta tap a little megalamania while I’m at it), I’ll be offering Credit Default Swaps: for a $1 bet, anyone can buy ‘bets’ that the US government will pay up on all those 30,000,000,000,000 surveilled phone taps and emails that LabDancer mentioned.

          For a $1 bet, you can buy a ‘future option’ to collect $30 if and when the US actually pays on all those surveillance transgressions and privacy violations. Therefore, I have a powerful financial interest in assuring that the government will never, ever settle. Nor will it ever pay out; if it did, I could end up ‘owing’ $29 per bet on all those ‘swaps’ that you folks kindly buy.

          It’ll be fun for me — I plan to win.
          To win, all I need is to keep the existing system in place: lock, stock, and lobbyists.
          And if I lose, I’ll just have all of you bail my ass out.
          I’m sure you’ll all be pleased.

          I’d like to personally thank LabDancer for this fun idea; heads I win, tails y’all lose!


        • WilliamOckham says:

          I gave a flip answer to a serious question. My personal approach is to vote for the presidential candidate who I believe will do the least harm to the world. As disappointed as I am in Obama, he is a danger to fewer people than McCain/Palin would have been. That’s cold comfort to the innocent folks in Gitmo, Bagram or being killed by drone strikes in Pakistan.

          I dearly wish someone would start building a viable third party in this country because I’m convinced that the Republican party is in a long slow death spiral. If anybody wants to take on this task, here’s the platform that would work. These are issues that neither of the current parties can afford to own, either because the issues don’t yet have strong public support or they are anathema to the elites:

          1. Immigration reform that legalizes most undocumented workers.
          2. Strong support for LGBT issues including marriage.
          3. Drug law reform including legalizing pot.
          4. Serious financial system regulation.
          5. Repeal of the national security state.
          6. Prosecution of the rich and powerful (Bushco, corporate bigwigs, etc.)

        • readerOfTeaLeaves says:

          Agree that the Republican party is in a slow death spiral, and given the fact that it sanctified nutty ideas like ‘a rational market’ and the absence of a social safety net, I don’t weep a tear.

          I agree with most of your list, but would reorder it:

          1, 2, and 3. Serious financial system regulation.
          4. Prosecution of the rich and powerful (Bushco, corporate bigwigs, etc.)
          5. Repeal of the national security state would probably be a side-effect of 1, 2, and 3. And also of 4.
          6. Drug law reform including legalizing pot if for no other reason than to get more revenues in city and state budgets; however, I’d want policies to be a lot more research-based than what we have now.
          7. Strong support for LGBT issues including marriage; whenever people help each other through life’s tumults (aging parents, sick kids, career hurdles), those personal sacrifices are at the core of civil society.

          Not sure about this one:
          8. Immigration reform that legalizes most undocumented workers, because I’ve not thought through the ramifications. But there has to be some solution that eases the pressures on small businesses, that’s certain.

          William O, you might appreciate a little incident that I experienced last week, talking with a friend who is a school principal. (We grew up hearing some of the same sermons and taking mass together, and so I’m not one bit surprised when I know he’s running late because he’s dropping off groceries on some doorstep anonymously – bought with his own money, and for a family that he heard about through one of his teachers.) Anyway, this year his school has some kids whose documentation looks a bit sketchy. But if they’re kids, they have a permanent address, and they show up at school then by law they must be educated.

          So he was telling me (with a huge, shit-eating grin on his face) that he has a new school counselor who is making an impact with some of the parents — in the past, parent-teacher conferences have been hellish due to parents too distrustful of ‘government’ to show up and hear what their kids are doing in school.

          Yet every solid bit of educational research that we know about shows that one of the most powerful ways to enhance student learning is to strengthen home-school linkages.

          So from an educational perspective, you want to build trust and build communication with the parents (and grandparents), but the laws they fear make this sometimes extremely difficult.

          If the whole immigration issue were viewed through the lens of education, we’d have a whole different system, and pronto. I don’t know what it would look like, but the priorities would be different and the timescales would collapse; for learning, you really want kids as stable as possible.

          Long digression, but if we thought about the cognitive impacts of dumb laws, we’d do some things much smarter and more efficiently. I suspect that in the Senate, only the new Senator from Colorado (Bennet) would truly understand the point of this comment. And the GOP is clueless, which is why it’s just as well they spiral to oblivion. (And take Dick Cheney with them.)

          A third party focused on sound, manageable financial reforms and anti-corruption might have a very solid chance. Although that’s what I thought FDL and EW were about…?

        • WilliamOckham says:


          I chose those issues by long-term political salience rather than policy priority (which is how one needs to think about it in the context of starting a third party). My personal priority is to stop torture and then prosecute the torture decision-makers.

          Here’s the short version of why immigration reform is the key issue. The biggest issue that the Republican party has is bigotry. Stoking fear of the ‘other’ has been their key to electoral success since Nixon stole the idea from Wallace. This strategy has allowed them to pick up voters who traditionally self-identify as Democrats but vote based on their fears. But that strategy has alienated the majority of voters born since 1978 (and it is your generational cohort that matters, not your age per se).

          [Now it gets complicated] The Reagan-era immigration reform (coupled with the Clinton-era economic boom) really did cause a surge in undocumented workers. The vast majority of those folks are still here and still undocumented, but they have children who are citizens just beginning to reach voting age. The best the two major parties are offering these new voters is that we’ll send your Mom or Dad back to the old country and maybe they’ll get back in some day. If you want to start a third party, you can’t do better than earning the undying gratitude of the fastest growing bloc of voters in the country.

          The rest of the issues on my list are there to help create a coalition that can win elections.

        • readerOfTeaLeaves says:

          Thanks, WmO — on all counts!
          My experiences with ‘immigrants’ tend to fall into two radically, hard-to-conflate groups:
          1. agricultural laborers (low skill, remarkable work ethic, doing mostly ‘unskilled’ labor)
          2. high tech, highly skilled laborers who have multiple degrees and extensive work experience.

          Consequently, the whole ‘immigration conversation’ is more complicated for me to think through. As you are no doubt aware, the term ‘multicultural‘ in my section of the US is met with a shrug and a yawn. Big, international companies need employees from all over the globe, even if only to do ‘localization’ versions, and that tends to make for ‘international’ neighborhoods. On the upside, as you also point out the generational cohort is post-partisan, in the sense that these people tend to have very little patience for political parties, per se. They mostly care about results and what works, as near as I can fathom.

          Your logic is, as ever, impeccable and easy to follow.
          Sincere thanks for the explanation; all points make a ton of sense.

          And I’m with you on that ‘third party’ concept – passionately so when it comes to the whole financial-political corruption theme.

          I think that I’m probably for the ‘Usability Party’: can you explain to me how this actually works, what it costs, who is going to maintain it, and how it will dynamically track and adjust to real-world problems?
          That’d sure get my measley vote.

  9. Mary says:

    OT, but related, and filed under, “the brain, she esplode”

    SCOTUS is currently hearing the case of Pottawattamie County v. McGhee which involves prosecutorial misconduct in a criminal case and the victim’s rights, if any, for recourse.


    In 1978, Curtis McGhee and Terry Harrington were convicted of murdering a retired police officer in Pottawattamie County, Iowa and sentenced to life in prison. Twenty-five years later, the release of new files in the cases revealed that prosecutors had fabricated the testimony of a lead witness at their trials and failed to disclose evidence about an alternative suspect to the defense.

    OK – so a case where everyone agrees that the evidence is that prosecutor’s fabricated testimony and suppressed evidence, with the result that men served 25 years in jail.

    Victims file suit. There is a very difficult case for them to deal with, Imbler v. Pachtman, which held that prosecutors have absolute immunity from liability for their official actions during trial. But they are going forward on the basis of pursing claims for the prosecutorial malfeasance during investigation.

    OK-for the serendipity front, on the same day I process the info that Charles Swift is representing Aafia Siddiqui, I process the fact that his former co-counsel, Katyal, is arguing on behalf of Obama’s DOJ – for the prosecutors in this case. The actual lawyers for the prosecutors have argued:

    …the prosecutors characterize the substantive due process claim raised by McGhee and Harrington as a “right not to be framed” – a right, they emphasize, that the Court has never recognized.

    Oh yeah, the illusary “right not to be framed” Heaven knows due process couldn’t begin to require something so liberal, lefty, moonbatty as a right not to be framed. Oh well – so hoping on board with the prosecutors’ lawyers at oral argument is Katyal on behalf of Obama’s DOJ:


    Justice Stevens depicted the [prosecutors’] view of immunity as “a strange proposition” – and Deputy Solicitor General Neal Katyal, arguing for the United States and the [prosecutors], agreed it “seems a little odd.” The idea everyone found so strange was that the closer an officer is to a wrongful conviction, the more immune she is for it.

    IOW – Obamaco is arguing that if a police officer fabricates evidence in an investigation, or if a lawyer not prosecuting the case does the same, then they can get in trouble. But since a lawyer prosecuting the case can always decide to take the evidence they prosecuted during the investigation and get “Imbler” immunity by just using that fabricated evidence at trial (IOW, a theory that basically encourages a prosecutor who fabricates evidence to actually use that evidence), then they should have immunity for pre-trial fabrications.

    OK – so the head explodes a little here. Obamaco arguing in favor of state level (and by extension USAs) having immunity for participating in fabrications of evidence (it’s not like that was a civil rights era problem thank God /snark) , and someone like Katyal, after his Hamdan role, being the point man on this one. But then you get to the real kicker. The really big big kicker.

    Arguing on behalf of the wrongfully convicted men – jailed for 25 years as a result of the fabricated evidence – – who would be arguing for them? Remember a guy who a few years back proferred to the Sup Ct the fabricated statement that (despite extensive programs for torture on all of the military, MI, non-Military intell, blacksite, and hand off to foreign countries fronts) the Court shouldn’t worry it’s pretty little head about “detainees” being held by a CIC without having been taken on a battle field and without any trial, bc after all, the US doesn’t torture?

    Paul Clement.

    Arguing – apparently with no sense of conflicting interests – on behalf of victim recompense for prosecutorial misconduct.

    I guess petty men make for a small world.

    • bmaz says:

      Yeah, Clement; go figure. For what it is worth, I have faced the issue of bad prosecutors in several cases, a couple of them very big. The short form rule of thumb that maintained in all was that if the conduct of the prosecutors (any prosecutor on the team) bled into “the investigatory function”, you made it past a 12b6 (dismissal before answer) and likely to the jury; but if there was no identifiable overt conduct that was “investigatory”, you did not. No matter how exacerbated the conduct.

    • Hmmm says:

      They’re just going to have to narrow Imbler down, aren’t they? How can they seriously come down on the side of framing defendants? Without inviting pitchtorches in the streets, I mean.

  10. freepatriot says:

    watch Markos mollywhopp tom tancredo on the replay of hardball, and ya might get your democratic mojo back

    jes sayin

    it really cheered me up …

    that’s fer WilliamOckham btw

  11. x174 says:

    bmaz–really like how you (& MT) stick to these critical Bush-Cheney corruption-related issues like flies on shit. doing due diligence on such odoriferous and obfuscating legal matters, while the MSM descends at breakneck speed into trajectories of idiocy unparalleled.


  12. lawordisorder says:

    Is im new to this blog and from overseas i hope you guys don.t fall all over me like animals when i fumble with the language……

    I guess you guys (and girls) have strange bedfellows…or should i say friends and fans in places you wouldn’t dream off

    Here’s the official response


    And the one that us in uniform here in the “old world”, were still bigtime ROTFL …. OFFICIALY a bigtime WHOOOOOOOPS as for the rest of us were just giving each other the the thumbs up as the brass comes to tirm with the message


    C guys thats how the intel game suppose to be played…who the fuck needs guns, torture or nukes when they have brains no? Keep up the good work marcy.. We/I do not always agree but thats how democracy works

    • readerOfTeaLeaves says:

      No clue who you are, but this bit brought to mind a recent flap regarding a ‘private firm’ buying a prison in Montana:

      The 22-seat plane is registered to L-3 Integrated Systems, a Montana-based subsidiary of a US defence corporation. It made numerous flights between Ireland and Egypt in 2003 and was involved in an accident at Bucharest airport in Romania in 2004 after a flight from Bagram airbase in Afghanistan.

      Should you have further details, feel free to dish.

      • lawordisorder says:

        Just the guy making coffee in uniform

        I guess the message from the brits to the yanks is as follows:
        “we don’t intend to keep showel your papadick shit while all the workerbees get hit all over the world..remember italian and britishs courts recently… DOJ HOLDEN stop doodling get your shit together papadick and the b team is a security risk and the sooner we get them behind bars, the sooner we can get back to doing this as its suppose to be done” but then again who really knows ay? That if i my so bold is the clever bit of the tactic….

        All I know is that people in heresford don’t go near that kind of transportation becourse its “tainted” as would I
        They would prefer to walk from Bagram to birmingham, thats called operational security witch workerbies (whith a few yank exceptions in mind)tend to take very very seriusly, if not they find there ass in jail or worse thats why…. so you se when they supposedly go near it they know spotters and the press will pick up on it QED they are there on purpose (unofficialy) BTW marcy don’t go looking for a paper trail here this is the brits they are notorious for doing this on the “old boys network”

        So if highlevel or Langley should ask MI5/6 the answer would be “haven’t the foggiest…..” witch is probably true…then again i woulden’t count them out totally…they also got a workerbee with the police at the moment

        One thing i do know is i know my own tactics when i see them…and since i have no knowledge what so ever other than what i reed in the news im free to share

        BTW on another matter just partly related Lithuanian parliament just announced its own Black site investigation… so i guees all you guys deserve a weekend watching NFL knowing that some good comes out off all the hard work

        • readerOfTeaLeaves says:

          That’s some coffee you got going there ;-))
          Double shot latte with an extra shot of pragmatism?

        • lawordisorder says:

          Nope i take mine “unleaded” to keep in line with the trash talk…:-) and a shit load of smokes to go

          To get down to biznes


          I like to dedicate this one to all you guys…not exatly sure if they came up with it theme selves or the pushing we did…fact of the matter is that we became aware of some problems with the system or should i say the way we do biznes becource of you guys….. So we did what we do best….

          We teach lessons all perfectly legal and everything to an extend were the brass started putting an ear to the ground and ladies and Gents that could be the understatement of the year…let just say it would come to no surprise to me if some of the involved brass was on heartmedication at one point.
          C small soldiers tend to learn from everything they see or do If they don’t i kick their tiny behinds around the moon) That ability stripped naked tend to keeps us alive when faced with overwelming odds and nothing to rely on than our minds..

          Boiled down
          the formula is the following:
          Problem=solution=powerfull weapon….Mixed in with New sit,New plan, execute, evaluate having fun doing it…all done in 10 min. intervals ussing there nigthmaresX100 spiced up with a shit load of smoke, flashbangs
          Lets just say we turned the idea of papadick and his b team dirty secrets spilled open into an weapon in the heads of the brass…while all we were doing was in fact transmitting bocus at the same time we diskretly pointed to the fact that this could be papa dick or a third party doing the “brainwash” or more to the point…. system overload

          Then we pointed to the…also by you guys sometimes overlooked fact that the holder thing has two limitations time(pre june 2002) and parameters (did they use exesive force) and then we pointed to a what at the time considered “problem” of judicial overviev and simply turned it into a weapon against papadick and yes im talking an upcomming trial in the old world.

          But all that said it would have landed yours truly a life in prison if that op at the time went belly up…but that’s OK all over and done

          If applied correctly it should be biggest MF wet dream of a cristmas present to you guys
          what you look for (when the time comes)is testimony in a court(the old wold) timeframe spring 2002 so high up itl make all of you have a seksual orgasm on the spot as off now i surgest that u keep up the pressure on the culprits

          As for now i have the following agendas:
          Northkorea (mintoring some kolleges on that one)
          Nukes ( i guess i just landed a get out of jail and get stabbed in the back kinda passports)
          Middleeast (the one they say cant be done)
          climate change (my brass pet projekt)
          Helth care ( i need us health care so my brass can land there pet projekt)
          right now im thinking
          Pirates, gas,

          So marcy you just got your sorry ass drafted to serve the greater good am i looking at credible intel? or are they rattling my chain


        • readerOfTeaLeaves says:

          Well, that was one hell of a smoko break you took there @61.
          I went to Marcy’s Ghorbanifar Meetings Timeline to see whether I could spot relevant ‘tea leaves’ for early spring 2002, and I rather suspect that there is now updated info on that timeline since I last checked it.

          Also worth noting is how the new Timeline info lends added gravity to some rather intriguing predictions at the end of the previous thread about the future of Richard Bruce Cheney and his various CheneyBots.

          And a check for updates at Marcy’s Torture Timeline also turns up new info since last I checked. Looks like there are a growing number of ‘high level’ candidates who might potentially be qualified to testify against Dick Cheney, given the new timeline items:

          February 2, 2002: William Taft argues for the application of Geneva Conventions.

          February 7, 2002: Bush memo on Geneva Conventions.

          February 12, 2002: Jessen sends paper on al Qaeda resistance capabilities to JPRA commander Randy Moulton.

          Before February 22, 2002: After the interrogation team declares al-Libi compliant, Cheney orders him to be waterboarded again.

          February 22, 2002: DIA voices doubts about al-Libi’s claims of Iraq-al Qaeda ties.

          March 28, 2002: Abu Zubaydah taken into custody.

          March 29, 2002: James Mitchell closes consulting company, Knowledge Works, in NC.

          March 31, 2002: Abu Zubaydah flown to Thailand.

          April 2002: CIA OGC lawyers begin conversations with John Bellinger and John Yoo/Jay Bybee on proposed interrogation plan for Abu Zubaydah. Bellinger briefed Condi, Hadley, and Gonzales, as well as Ashcroft and Chertoff.


        • readerOfTeaLeaves says:

          Hey, why ask me?
          I’m the one waiting for a Black Swan.

          (Although I can attest that I have personally seen black swans, and they are elegant.)

          But charged for… hmmmmm….
          Obstruction of justice.
          RICO, due to the fact that he had a network covering multiple agencies.

          Yeah, you can sneer and snort at my ignorance and my idealism; but someone’s sure to turn on Cheney.

          You think Janice Karpinski and some of the people that she worked with couldn’t come up with a few charges? I do.

          I’m convinced that somewhere, some videos of Cheney online ordering someone to be waterboarded despite the lack of information they produced is going to turn up. And I say that solely because humans are odd critters; it was in someone’s interest to screw Cheney, if only to keep their own asses out of a prison-for-life scenario.

          And we’ve still never gotten to the bottom of that weird flight with 6 live nuclear warheads heading out of North Dakota. Who knows what happened with that weirdness, but given Cheney’s determined , ruthless conduct it would not surprise me one bit if one day he were implicated. I’m **not** saying that he is; however, that kind of thing is consistent with his underhandedness. If life were a movie, that’d be Act III in the unraveling of Richard Bruce Cheney.

        • bmaz says:

          You are running out of crimes for which the statute of limitations have not run out on. Even the lying in his interview with Fitzgerald can no longer be charged because the statute has expired. No, I do not think Karpinsky could come up with anything that can be charged. As to the waterboarding, you have eight years from the date it was done; time is running out as i believe the last known instance was in 2003 at the latest.

        • readerOfTeaLeaves says:

          I just hate it when you lawyer types disabuse me of my cherished hopes.

          Nevertheless, I retain my faith in ‘human nature’; sooner or later, the proverbial shitfest will start hitting the fan. What form it might take, I am unqualified to predict.

          Are there statutes of limitations on RICO?

        • lawordisorder says:

          There are ways around limitations ( dare i mention rendition…kinda gentleman like)ROTFL well that as the say is by all acounts not my desk…but somebody high up do not whant my sorry ass washing his dirty nikers… so do some fancy lawyer swahili thing …dance a little… think out of the box me boy thats what we do…what crimes do we need him to be guilty off so we work around those lemitations?

          Torture is not under statue of limitations is it?

        • bmaz says:

          Yes it is subject to an 8 year statute unless it murder, and no there are very few “clever” ways around statutes of limitations, that just does not happen. They are jurisdictional and finite.

        • lawordisorder says:

          Bugger that means “old world” law then…i kinda had my hopes for the “system” to work for a change

          Does that mean were left with the truth commission option? thats gonna be a hard sell on this side of the big river, to us its not about justice in itself its about the order of things went belly up and we need to fix it..its hard to explain but its about when left on you own doing what we do, you kinda tend to be a sucker for – we do this for the right reason thing- and as for now u guys are the checks and balances for us…. basic psyops when u think about it.

          Anyway cheer up…. saddle the old warhorse people like me are not meant to live forever..all that we can hope for is that we make a little difference in yhe name of the greater good as in people are more safe and the system gets its dirtbags..just had two cops in mind in texas, if i ever run in to these guys im buying the beer

          This is the fun part New sit, new plan..thingy

          What does the iranians whant so bad there willing to give up there nukes? Have or not is the wrong ? here, im still thinking the old jerusalem two step as in a saying at the big table peace powwow, plus rock solide ensurance policy from some one that we are not going to mendle with the priests or the way they do biznes? that leave by my qick count chinese and india…and i think chinese is the better option here.. That also give the chinese some mojo i know….back to the vodka drinking folks are we looking for a rouge scientist? god knows there a lot of those wandering around and a couple of old intelmobsters but that goes to the filling cabinet for now.

          as for the the POW wow thingy i figured out how to deal with the settlements but thats a peacefull overnight out of the blue thing so i need syria and the saudies onboard as well as the iranians…as for jerusalem itself that is going to be a masterpiece if pulled of

          And if done so should be without any blood spilled at all (im a sucker for that bit)

          Did I just hang the election demonstrators out to dry? Lets just say i left it up to the iranian people..to decide in the future rumbling the streets int helping the big picture her when faced with a 25000 plus dead in tel aviv and a all out war in persia, afghanistan and were it might lead thats definete a no go for now…thats a downright fookin abyse scenario Im thinking somebody way high up the food chain should take a plain and go visit the iranian president and his boss. Tell him anythings on the table but the nukes Maybee mr. jintao…damn i’ve been handing him som bigtime mojo over the last month or two

          The noble art of loosing face may one day save the human race…yahhh i stole that.

    • bmaz says:

      Greetings lawordisorder, and welcome to Emptywheel. Please contribute often. and you know, one of the unappreciated treasures of the effort at accountability for torture and the renditions performed by the “coalition of the willing” is the efforts of the intrepid tail number spotters across the globe that have allowed the pieces to be put together on the offending air flights. We all owe them a debt of gratitude.

      • readerOfTeaLeaves says:

        Indeed. Perhaps Dick Cheney, paranoid leader of the Coalition of the Shilling, is less charmed by the Innertubz than some of us.

  13. orionATL says:

    thanks bmaz,for a fine post.

    commenters might wish to read scott horton’s post here:http://harpers.org/archive/2009/11/hbc-90006039

    the issues in this fdl post and the one at horton’s are different.

    but i want to make the point that the united states executive/presidency is no longer in complete control of its illegal actions – whether renditions, state’s secrets arguments, or invasions and occupations.

    delightfully, the reason for this sate of affairs is that ideas the u.s, espoused against a major enemy in 1945 ff,

    have been loosed on the world

    and are proving difficult top “call back” for american presidents or american legal decisions.

    the barack obama dept of justice, under attorney general eric holder (he of the weak-looking face)

    may not be as completely in control of hiding america’s shameful, and often illegal, anti-terrorism past as they might think.

    a british court has already rebuked the british government regarding efforts to hide misconduct.

    and now an italian court renders a judgment against 22, count’em, 22 american cia agents.

    i seem to recall a spanish court was also exercised by american conduct.

    i interpret these legal events in europe to mean that the u.s. cannot ever again keep its covert misconduct buried under american judicial order – as i believe judges lambeth and royce will ultimately agree to do.

    american ideals of proper government conduct,

    they’re politically convincing in other cultures,

    even when american political culture itself fails to acknowledge or support them.

    • lawordisorder says:

      Damn right

      BTW spannish court is of again

      Picture this: all kind of weird stuff can happen when workerbees don’t trust there brass or the “system” as in “rule of law”…Admirals get the pinkslip(europe)… Layers on the side of “dignety” finds them selves in fairyland of information, almost before the other guy gets it, the other guy…. AHHHHHHHH well lets just say his having a hell of a bad day…cars brake down, power gets turned off, kiddyporn turn up on his computer, wife whants a divorce… Creditcards gets rebuked and the caseload on his desk just got a mile high all in a matter of minutes designed to fuck with his brain to keep his eye of the ball

    • lawordisorder says:

      Just read the post….LOL Prosecutor Spataro is right one one thing a workerbee whose counting one his passport to get him out of anything else than a trafficcop incident is a fool and deserve to spend his ass in jail also the point about these guys cant travel but you need to also look at the fact that this is all: “se mr. eagle get your shit together or we’ll do it for you…and that to me is a much worse scenario …..that as they say is the ultimate intel ok corral

      Langley and NSA on one side and the rest on the other Witch BTW is also the side of marcy and the rule of law and all belivers in the decent stuff like constitution vill leak like a dutch dike, in my book i don’t picture Langley to master what the KGB did i don’t se the chessplayers but that’s ok with me …if thats what the US policy makers and courts whant
      se threats about intellegence sharing works both ways as im confident mr. jones is all but well aware off by now…Lord thomas Justice damn smart man

  14. klynn says:

    bmaz, great post. Great comments folks.

    A little OT. If you have not read Swopa’s piece on Cheney,go.

    Marcy, quite curious what you think about the piece. I am looking forward to the next post too.

    Welcome lawordisorder.

  15. readerOfTeaLeaves says:

    I forgot to note that I’m convinced the parallels between black budgets and torture regimes go right to the roots.

    Unless we have fiscal reform, we’re going to continue problems like torture, which I’m convinced was paid for with black money. To clean up torture, the books have to be clean.

    Hence, part of my emphasis on fiscal and financial reform, which I see as the ‘money side’ of the coin of utter, fetid corruption.

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