Sometimes you just have to focus on what is important. And despite the concern over the Jack Tatum like tendencies of those out of control thugs in Pittsburgh, the most important story this week is Dallas. And it is hard to figure which Dallas is having a crappier week, Cowboys or Clark. You see, the Dallas Cowboys, well, they suck. And Dallas Clark suffered a severe wrist injury, apparently during the fourth quarter of last Sunday’s win over the Redskins, that will require season ending surgery. This is a huge injury as Dallas Clark is Peyton Manning’s safety blanket, with a 100 catch year last season and well on the way to another one this year. Not just any catches either, Clark is clutch. Comes at a horrible time for the Peytons too, as wide receiver Austin Collie is out and running back Joseph Addai is nursing a shoulder with nerve issues. The Colts have a bye and it looks like they need it.

NFL: It is not really an appealing slate of games this week. By far really the best one looks to be the Vikes visiting the Geezer’s old stomping grounds at Lambeau. They still do not resemble the team they were last year, but the Vikings seem to be coming together a bit finally. The Packers were pegged by many as Super Bowl bound, but have been literally decimated by injuries and are a disappointing 3-3 after six games. Help may be on its way for Green Bay though, with Al Harris, Atari Bigby and Clay Matthews all expected to return to the field. That is a lot of help, so it should be a fair fight. What could be better than a Sunday night game in the late fall in Lambeau with the Geezer playing the foil? No clue who will win, but it ought to be a hell of a game.

The Giants at the Boys doesn’t exactly carry the weight it usually does, but Dallas is desperate, and NY can really make a step toward the top of the NFC with a win; for a team that was said to be in turmoil just a couple of weeks ago, the Giants are suddenly looking pretty solid. Pats visit the curiously flailing Bolts. Heck, the Chargers are such a wreck even their former stars are off the road. Pats are plugging along; the offense will always be there and you just know Bill Bel will have the defense gelling as the season progresses. Tough week for the Bolts to rebound, even though they are at home; I’ll take the Pats. Raiders at Broncos could be interesting – maybe – but it is at Mile High, so edge to the Donkos. Eagles at Titans and Skins at Bears are the only other games even worth mentioning. Both are hard to read. If I had to bet, I would ride with the two home teams, but my gut says both visitors may pull off wins.

MLB: In the National Pastime, the Texas Rangers just polished off the Evil Empire in the American League Championship Series. Down go the Yankees, Down go the Yankees! The Rangers just flat outplayed the big payroll Yanks in every phase of the game and deserved to win. And Mr. May, Alex Rodriquez, returned to the postseason form he has always been known for. It is the first trip in the history of the Rangers, coming after the first playoff series they had ever won, when they took out the Devil Rays last week. It has got to be pretty exciting for the Texas fans, and that is a cool thing. Yet to be determined is their opponent for the World Series, with the NLCS returning to Philadelphia for game six and, if necessary, game seven. The Phillies have Roy Oswalt going Saturday and Cole Hamels Sunday if they can hold off the Giants in game six. The Giants will counter with Sanchez and Matt Cain slotted for game seven. Roy Oswalt in Philly is going to be tough; decent chance it comes down to an exciting game seven and Cain versus Hamels would be a great matchup if it does.

F1 Korean Grand Prix: Well the football slate may be mostly a dud, but there is big excitement in Formula One. We have a brand new race in the Circus and a brand spanking new track where it will be run. And the circuit appears to be pretty good to, which is a relief after the disappointment of the two most recent additions to the series, the hideous Singapore course and the opulent, but almost garish Abu Dhabi facility. The Korean GP will make its home at the Korean International Circuit, a 5.62 km (3.49 mile) course located in Yeongam, South Jeolla, South Korea, which is 400 kilometres south of Seoul and near the port city of Mokpo. The facility is so new, they are literally still putting a few finishing touches on during race week and there was legitimate concern as to whether the joint would really be finished in time for the race to be run.

But the Korean International Circuit passed the tech inspection and received its FIA license a week ago and the race is on! And, surprisingly, the reviews are very good so far. Brad Spurgeon is an old hand at the Circus and was prepared to complain, but is really upbeat now that he is there. That is good news indeed. The race surface is quite slippery due to the newness, but should settle in nicely as the sheen is scrubbed off and some rubber is laid down on it from practice and qualifying. In fact, qualifying is going on as I write this and all looks good. Vettel and Webber have put their Red Bulls in the front row in P1 and P2 with Alonso, Hamilton, Rosberg and Massa filling out P3-6 respectively. Hard to see how Vettel (or Alonso for that matter) is going to catch up Mark Webber for the drivers crown with a 14 point gap and only three races, and only two after Korea, remaining; but it is clear that Vettel is going to push to the end and we know the German youngster is not afraid to race his teammate hard. Should make for a great run in Korea and an exciting close down the final stretch of the 2010 season.

The race is on Speed TV, with coverage starting at 1:30am EST Sunday morning and 10:30 pm Saturday night for those like me on Pacific/FDL time.

Last night (Tuesday October 19), Central District of California Judge Virginia Phillips entered her order denying the Obama DOJ motion for stay of her surprisingly broad worldwide injunction against enforcement by US Military of the DADT policy. Here is a report from Josh Gerstein at Politico on Phillips’ decision.

As expected, the DOJ has appealed Phillips’ denial of stay to the 9th Circuit, and did so already this morning. Here is the full main brief submitted in support of the motion for stay.

Having read the brief, I will say that it is much better constructed than previous filings by the DOJ regarding the injunction, maybe they are starting to take the matter seriously. By the same token, it is also striking that the filing is much more forceful in its assertion that the policy of President Obama and his Administration is for elimination and repeal of DADT. That message is conveyed by language such as this from footnote one in the brief:

The Administration does not support § 654 as a matter of policy and strongly believes that Congress should repeal it. The Department of Justice in this case has followed its longstanding practice of defending the constitutionality of federal statutes as long as reasonable arguments can be made in support of their constitutionality.

That is positive. What is very troubling, however, is that the Administration, by and through the DOJ never – never – indicates that it considers DADT to be unconstitutional on its face. Every objection by team Obama is in favor simply of study and legislative repeal; and, in fact, they doggedly protect the constitutionality of DADT. There is a HUGE difference between the two concepts of saying it is simply something that should be fixed by Congress (increasingly unlikely, it should be added, in light of the massive gains conservative Republicans are poised to make) and saying the Administration fully believes the policy unconstitutional and invidiously discriminatory (the position Obama blatantly refuses to make).

It should also be noted that a refusal to acknowledge the fundamental constitutionally discriminatory nature of DADT is also entirely consistent with the recent history of Obama Administration conduct and statements on the issue. Whether it be Obama himself, official spokesman Robert Gibbs or Valerie Jarrett, every time the direct question on constitutionality of DADT is raised, it is deflected with a flimsy response framed in terms of Congressional repeal. At this point, you have to wonder if Barack Obama and his Administration even consider the blatant discrimination of DADT to be of a Constitutional level at all; the evidence certainly is lacking of any such commitment.

Congress should repeal DADT as Obama suggests, but the basis and harm is much deeper and more profound than simply that. The constitutionality of invidious discrimination based on sexual orientation should be argued with the government taking the lead on saying it is NOT constitutional, has no place in our society or government and that the court should so declare any such conduct invidiously discriminatory against a protected class under equal protection, due process and first amendment grounds. The Obama Administration and DOJ should should have the courage and principle to come out and say just that.

And in the meantime, Obama should help the effort along, and set a positive example, by issuing an executive order under his crystal clear stop loss authority pursuant to 10 USC 12305 stopping all discharges from the United States Military under the pernicious DADT policy. The President has that power and should have the courage to use it.

Obama is doing none of the above and, instead, is paying cheap political lip service only by hiding and trying to frame everything in terms of Congressional repeal. When asked about the court rulings by Phillips in the LCR DADT case, by Tauro in the DOMA case, or by Walker in Perry, the response is always in terms of legislation repealing things in place. legislation affirmatively protecting something in the future, studies to see what is appropriate or some other mealy mouthed baloney.

On the other hand, not a lick of the above described baloney matters if the discrimination at issue is flat out unconstitutional. If it is unconstitutional, and DADT absolutely is, then studies are irrelevant. What generals and servicemembers wives think and respond to in answers to ginned up surveys is irrelevant. Legislation by Congress is irrelevant. Public opinion, for that matter, is irrelevant. None of that matters because it is a fundamental right for such citizens to be treated equally under the United States Constitution and not be discriminated against. End of story. Seriously, it either is or it is not.

However, the filing by the Obama DOJ speaks for itself as to where we stand today. (And here is a just posted article by Gerstein on the stay attempt in the 9th). As an attorney, I am inclined to agree with their position that the injunctive order by Judge Phillips is of questionable validity in its extension worldwide against the US military. As the government’s brief argues, the standing granted in the Log Cabin Republican case was limited and restricted; it is hard to see how it serves as a proper foundation for the extraordinarily broad injunction she issued.

That said, Judge Phillips’ decision on the root unconstitutionality of DADT is spot on valid and correct and, as cited above, there is nothing to stop the government from voluntarily complying with the spirit of that finding or, indeed, President Obama from mandating evisceration of DADT pursuant to his stop loss authority under 10 USC 12305. What is needed is a profile in courage instead of another example of rank political triangulation.

Was discussing the state of the NFL last night with Marcy, and the prevailing opinion was an unusual lack of particularly exciting or compelling story lines. A strange parity and blaah seems to have set in to the league that hardly ever suffers from that. So, guess what, screw it I’m going with baseball as the lead.

The rookies on the LCS big stage Texas Rangers had the mighty Yankees on the ropes last night and forgot to step on the beast’s throat. Can’t do that with the Yanks, and the Rangers paid the price by giving up five runs in the eighth and losing game one 6-5. The young Rangers needed to close out the opening win at home and failing to do so has got to be deflating and forfeits home field advantage. Not a good sign; the Evil Empire looks to be on the road to yet another World Series.

However, the biggest and most compelling sports story of the weekend by far is the battle of aces in game one of the NLCS. Halladay of the Phillies versus Lincicum and the Giants. Dayn Perry at Fox Sports is wondering if it is the best pitching matchup in postseason history. I dunno about that (and Perry seemed to forget about the Bob Gibson showdowns with Denny McClain and Mickey Lolich in the 1968 World Series and the Gibson-Jim Lonborg game seven matchup in the 1967 Series), but tonight’s Doc v. Freak show is right on up there. Both are former Cy Young winners, Lincicum has two and Halladay will almost certainly win his second this year. All Roy Halladay has done is throw the second no-hitter in MLB playoff history (after throwing a perfect game during the regular season). And Lincicum, well some folks think his two hitter against the Braves the night after Halladay’s no no was an even better pitching performance than Halladay’s no hitter. This is going to be some must see baseball teevee.

On the college gridiron, there are a couple of important games that will separate wheat from chaff. The Arkansas Hogs at the Auburn Tigers is one of those games. The Hogs damn near beat Alabama and would be undefeated if they had; Auburn is undefeated at 6-0 but has not had to play a team like Bama or Arkansas yet. Auburn at home is the safe pick, but the Tigers’ pass defense is weak and Ryan Mallett is very good; Hogs may pull off the road upset. Texas is not up to snuff this year, but should pose a solid test for the supposedly rejuvenated Nebraska Cornfuskers. Nebraska always looks “back” and then starts running into real teams in the late season conference schedule and gets exposed. Maybe not this time though, Taylor Martinez has the Huskers as solid as they have been in a very long time. Still, I dunno, this is a tossup. The Sweater Vests are at Camp Randall and the Badgers. If there is a football god out there, please let Wisconsin knock off OSU and spare the country another one of their poor showings in the BCS Championship game. Lastly, Ricki Stanzi and the Iowa Hawks visit Denard Robinson and the Wolverweenies in teh Big Haus. Both teams come in with only one loss; one will leave that way and in good shape, the other will fall to also ran status. Robinson is so exciting he may be able to overcome the Rich Rod fail factor. Maybe, but I don’t think so. Ricki can play too and Kirk Ferentz can coach circles around Rich Rod; Hawks leave with a win.

As I said in the opening, the NFL just seems in the doldrums right now. Cowboys should be good but suck, they are so lame it is hardly even worth the while to root against them anymore. Rest of the NFC East is playing okay, but not great. Saints are just muddling along; they really lost some spark when Reggie Bush went out, although their problems were already apparent even before that. The Bears look like the class of the league so far, but they sure don’t feel that good to me in the gut. The Packers have just been decimated by injuries; even though Rodgers looks to play after getting a mild concussion last week, Green Bay has real problems. And the NFC West? Jeebus, the Cardinals are leading the division and have given up 50 more points than they have scored this year.

Doldrums in the AFC too. Pats seem okay on offense although not well balanced; defense is, um, spotty. Chargers have been an enigma so far; guess Norval must still be their coach. Chiefs have been a pleasant surprise, but they don’t have the goods yet to keep it up. KC is building and sure looks to have a bright future in a year or two. The whole AFC South is 3-2, but none of them seem dominant. That leaves the Ravens, Stillers and Jets as, really, the class of the NFL at this point. All three have knock down and lock down defenses and more than competent offenses. You would have had to say the Ravens and Jets had the edge with Big Ben out, but now that he is back, that is not so clear. Gonna be a slugfest down the stretch among those three it looks like.

Dirty Birds at Iggles looks like a good game; would look like a really good game if Mike Vick were healthy and starting, but he is not. Kevin Kolb no match for Matty Ice. Ravens at Pats also looks interesting, but Ray Lewis and the boys can stop Brady and, well other than Welker it is not clear, a lot better than the Patsies can stop Ray Rice, Quan Boldin and Joe Flacco. Boldin does not make a ton of noise like the standard prima donna wide receivers in the league these days, but man is that guy a team leader in the clubhouse and on the field. He is what Ray Lewis is to a defense and that is the difference for the Ravens. Peytons at the Skins Sunday night could be a decent game. Or Manning may chew up the not quite Shanahan rebuilt Skins; I think that is a fair bet actually. And last, and despite the hype, maybe least is the Boys at the Vikes. Whoever loses this game is done and gets the fork them. They both suck, but it is in the Metrodome and that is tough, so the edge go to the Vikes. Oh yeah, some guy named Favre may actually start at QB for Minnesota. The increasingly cackling and tabloid like sporting press seems to think this is news. It is not. He may be hurting and over the hill, but the dude always straps em on, laces em up and takes the field. He will again.

Honestly, I can’t wait for Zenyatta and the Breeder’s Cup; football is getting boring.

As David Dayen is reporting at FDL News, Judge Virginia Phillips of the Central District of California United States Federal Court has issued her injunctive order in the Log Cabin Republicans’ (LCR) Don’t Ask, Don’t Tell (DADT) case, formally known as Log Cabin Republicans v. United States of America and Robert M. Gates:

(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.

Judge Phillips’ order is being hailed far and wide as the greatest thing since sliced bread – at least on LGBT rights as they relate to DADT. I am quite decidedly not so sure about that.

I simply do not see how this judge, Virginia Phillips, has either the authority or jurisdiction to enter the sweeping injunctive mandates she has done in sections 2 and 3. The scope of those sections appear well beyond her actual authority and, quite frankly, have the patina of such an overreach that they should be appealed based upon protection of Executive Branch power and authority concerns. It is hard to see how the federal government in DC can allow a single remote District Court judge to have that type of reach over the conduct of the entire United States military across the globe.

There is little question but that the CACD had the jurisdiction to hear the case itself and to grant relief to the specific individuals within the established umbrella of the designated plaintiff “Log Cabin Republicans” within the territorial jurisdiction of the CACD. Further, there is no question Phillips has the authority to rule the DADT policy unconstitutional on a facial challenge to its constitutionality, which the government strongly argued this case was (they probably regret that now I suppose).

But the complaint in this case was brought as to a group – LCR – that claimed locus in, and harm occurring within, the CACD. And, in fact, there was indeed much pretrial litigation of standing and scope and, before the case was allowed to proceed, the LCRs had to put up specific individuals claiming identifiable and quantifiable harm. Plaintiff LCRs eventually did that on the back of one originally identified and specified individual, to which a second specified and joined individual was later included for a grand total of two individuals the group “LCR” was allowed to proceed on as the nominal representative plaintiff.

There is, however, a distinction between having the authority to declare the DADT policy unconstitutional on its face, which Judge Phillips has done, and the further power to immediately force the entire US military worldwide to stop enforcing the policy, which Judge Phillips has now also done.

Having every district court judge in the country with that kind of injunctive authority over military function is likely unacceptable to any administration, and will be for the Obama Administration. It has only grown to this absurd point through the fantastical overreaching of the LCRs and, now, Judge Phillips. They have gone a bridge too far.

And that is the problem here, by wildly overreaching, Judge Phillips has given the White House/Executive Branch legitimate and compelling grounds to appeal that are separate from the critical merits issue of the constitutionality and propriety of DADT, which is a discriminatory and loathsome policy and should be terminated immediately.

In this regard, a grave disservice has been done by Phillips to the cause of elimination of DADT. I think the DOJ has to appeal and seek stay, and will unfortunately do just that. Phillips root determination of unconstitutionality combined with a compelling injunctive order limited to her jurisdiction would have been a very powerful stick in the eye of a recalcitrant White House and would have forced them to act, or not act, on the merits and expose themselves as either true to their word on elimination of DADT or craven impostors. But now there are powerful side issues injected, and even I have issue with the posture the case is now in. And I am livid that it gives the duplicitous on DADT Obama White House something to hide behind when they deserve to be exposed.

Todd Purdum has a pretty extensive and in depth article on John Sidney McCain III just up at Vanity Fair. Here are the take away quotes and ethos of the article:

The prevailing question about John McCain this year is: What happened? What happened to that other John McCain, the refreshingly unpredictable figure who stood apart from his colleagues and seemed to promise something better than politics as usual? The question may miss the point. It’s quite possible that nothing at all has changed about John McCain, a ruthless and self-centered survivor who endured five and a half years in captivity in North Vietnam, and who once told Torie Clarke that his favorite animal was the rat, because it is cunning and eats well. It’s possible to see McCain’s entire career as the story of a man who has lived in the moment, who has never stood for any overriding philosophy in any consistent way, and who has been willing to do all that it takes to get whatever it is he wants. He himself said, in the thick of his battle with Hayworth, “I’ve always done whatever’s necessary to win.” Maybe the rest of us just misunderstood.

Yes, no kidding, you certainly did misunderstand. Or were willfully blind because the bloated national media depiction of McCain has always been as fraudulent as he has always been.

There is a difference between facing a changed and shrunken external reality (which McCain surely now does) and changing one’s essential nature (which McCain almost certainly has not). He has always had a reckless streak, and he has repeatedly skated by after conduct that would have doomed others less resourceful, resilient, or privileged. As a navy pilot, he crashed three planes before being shot down by a surface-to-air missile over Hanoi. He spent harrowing years in captivity in North Vietnam, and parlayed that fame into a high-profile job as the navy’s liaison to the Senate, and then parlayed that—with the help of his second wife’s family fortune—into a political career in his adopted state of Arizona, first winning a seat in the House of Representatives in 1982, and then taking Barry Goldwater’s Senate seat upon his retirement, in 1986.

Yes, indeed. Put more simply, McCain is a dilettante who has always relied on his blue blood and family history, and then his POW status and wife and family’s largesse, to get everywhere he has gone; he has never been a man of accomplishment of his own accord. Nice of you to finally catch on.

After surviving his brush with shame during the Keating Five influence-peddling scandal in 1989, McCain embraced the cause of campaign-finance reform, which endeared him to good-government types and the press but to almost no one else in either party. Like other senators, McCain had taken campaign contributions and favors from savings-and-loan entrepreneur Charles Keating, and had then intervened with government regulators on Keating’s behalf. McCain’s zeal for campaign reform was an act of public atonement—ballsy, yes, but driven as much by Realpolitik as by principle.

“[D]riven as much by Realpolitik as by principle”?? What Todd, couldn’t you think of a softer sell? Jeebus, it was a freaking hollow fraud by McCain; have the guts to call it what it was, and still is.

McCain and his wife, Cindy, have been living essentially separate lives for years. She has spent most of her time in Arizona while he has spent the workweek in a Virginia condominium where, he once told me, he sometimes went months at a time without ever entering the living room, simply coming home to the kitchen and bedroom late at night and leaving again early the next morning. In 2008, McCain was deeply stung by a long New York Times article about his working relationship with a lobbyist, Vicki Iseman, and its assertion that certain McCain aides feared the relationship had some years earlier morphed into an affair. To this day, McCain declines to give interviews to the paper, which was once one of his favorite outlets. While associates say the McCains are companionable, one former aide allows, “I’m not going to tell you that they have a conventionally close marriage, but I’m just not going to get into it.”

Again, a pretty soft sell of the bitter truth. But, no complaints here on this part, Cindy is actually a very decent human and very good mother and, if you were her, would you want to live anywhere near John McCain on much more than a show basis? No.

All in all, considering the mainline media hacktacular vein Todd Purdum travels, this is a pretty brutal and pleasingly mainstream takedown of the horse’s ass John Sidney McCain III is and, more importantly ALWAYS has been. This may be shocking news to a lot of people who will read Vanity Fair and Purdum’s article in it. But it is not news to me, or the readers of Emptywheel and Firedoglake; because you have all, over the years, seen the following articles that make every single point Purdum does; well, with the exception that the work found here at Emptywheel and Firedoglake is much more forthright, and far better supported by links and foundational support for its conclusions. So, there is a bit of a difference I guess:

Tired McCain a Foundering Gluehorse Without Weaver

McCain Is A Clunker, Can I Trade Him In?

The Iseman Cometh, The Iseman Goeth

McCain Was The Most Reprehensible Of The Keating Five And He Hasn’t Changed

Ronald Reagan Endorses Obama, McCain Still Fraudulently Glomming Off Of Goldwater

John McCain The Narcissistic Carpetbagger

John McCain Still Living The Keating Five Lush Highlife

McCain Proves Cactus Is Not The Biggest Prick In The Desert

McCain: Is He Addled And Confused Or A Dishonorable Man?

For anybody that read those posts right here, there would not be a single word that would be either new or shocking in Purdum’s article on McCain. Especially the five core posts during the heat of the election: McCain Was The Most Reprehensible Of The Keating Five And He Hasn’t Changed, Ronald Reagan Endorses Obama, McCain Still Fraudulently Glomming Off Of Goldwater, John McCain The Narcissistic Carpetbagger, John McCain Still Living The Keating Five Lush Highlife and McCain Proves Cactus Is Not The Biggest Prick In The Desert.

In fact, the entire tenor of Purdum’s article seems eerily familiar; I wonder why that is? Since Purdum and Vanity Fair did not have the courtesy or journalistic chivalry to provide links, footnotes and attributions, I guess we will never know where Purdum formed his thoughts for the McCain article.

Whatever; my hat is actually off to Todd Purdum and Vanity Fair for getting the truth about The Old Gluehorse, John Sidney McCain III, out. Now, if only the rest of the national media would cop to the fact they have been played by this carpetbagging fraud from the outset, the record would finally be straight. The press owes the public that truth, and its explanation of how the malignant cancer that is Sarah Palin was planted in the mainline of the American body politic. Narcissism, fraud and Palin; that is the legacy of John Sidney McCain III.

Last Friday, I reminded the clueless media, and thus mostly uninformed public, there was a critical terror trial going on right in their midst in New York City, and doing so quietly and competently as was claimed was impossible by howlers such as Liz and Dick Cheney, Guiliani, Lindsey Graham and the right wing noise machine. The case is US v. Ahmed Khalfan Ghailani, and as I explained, although jury selection was well under way, there was a brief delay imposed by the trial judge, SDNY Judge Lewis Kaplan, until today so he could contemplate a motion to exclude a critical prosecution witness argued by the defense on the grounds the putative testimony was the product of torture and coercion.

The decision by Judge Kaplan was just issued and, in somewhat of a shock, he has ordered the witness, Hussein Abebe, excluded. From Bloomberg News:

A judge barred the U.S. from calling as a witness a Tanzanian miner who admits supplying explosives to Ahmed Ghailani, an alleged al-Qaeda terrorist charged with the 1998 bombing of the U.S. embassies in Africa.

U.S. District Judge Lewis Kaplan, in New York, denied a request by federal prosecutors to allow Hussein Abebe to testify that he sold five crates of dynamite to Ghailani before the blast. Abebe, whom prosecutors called a “giant” witness in their case, would provide a first-hand account of Ghailani’s role in the attacks, the government said.

Kaplan ruled that Abebe’s testimony is too closely tied to coerced statements made by Ghailani while he was in CIA custody and must be excluded from the trial. The ruling, made public today, will delay the trial’s start until Oct. 12 to give the government time to decide whether to appeal.

“The court has not reached this conclusion lightly,” Kaplan wrote. “It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction.”

This is a critical ruling and, while it should not be this way, a refreshingly positive one for the health and sanctity of the Constitution and federal Article III courts. Hats off to Judge Kaplan, for while the legal basis seems quite clear on its face, the blowback pressure from the government and boogity boogity terrorism howlers described above (not to mention the Old Gluehorse McCain) will be intense. Here is the critical language from Kaplan’s order:

Abebe was identified and located as a close and direct result of statements made by Ghailani while he was held by the CIA. The government has elected not to litigate the details of Ghailani’s treatment while in CIA custody. It has sought to make this unnecessary by asking the Court to assume in deciding this motion that everything Ghailani said while in CIA custody was coerced.) In these circumstances, the Constitution does not permit Abebe to testify in this criminal trial unless the government has sustained its burden of proving that (l) the connection between Ghailani’s coerced statements and Abebe’s testimony is sufficiently remote or attenuated, or (2) there is another basis upon which that testimony properly may be received.

The Court has had the benefit of extensive evidentiary submissions, a three-day

hearing at which Abebe and representatives of the Federal Bureau of Investigation, the CIA, the Tanzanian National Police testified, legal briefs, and skilled argument. On the basis of that record – including importantly its assessment of the credibility of the only witnesses called to testify who actually were present when Abebe was persuaded to confess his role, to implicate Ghailani, and to cooperate with authorities – it now finds and concludes that the government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’s coerced statements to permit its receipt in evidence. In a previous decision, it rejected the other bases advanced by the government for allowing Abebe to testify. United States v. Ghailani, _ F. Supp.2d _, 2010 WL 3430514 (S.D.N.Y. Aug. 17,2010). Accordingly, the motion to preclude Abebe’s testimony is granted.

The Court has not reached this conclusion lightly. It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.

Three cheers for Judge Lewis Kaplan, who made the tough, but required, decision. You would expect that of any Federal judge but, alas, that is not always the case in a Federal judiciary increasingly controlled by right wing ideologues. There is one note of caution on the celebration, and that is the concluding language from Kaplan in his order:

Moreover, it is appropriate to emphasize that Ghailani remains subject to trial on the pending indictment, that he faces the possibility of life imprisonment if convicted, and that his status as an “enemy combatant” probably would permit his detention as something akin to a prisoner ofwar until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

This brief order will be supplemented by an opinion containing the Court’s findings of fact and conclusions of law. In view of the classified nature of much of the evidence and in accordance with the Classified Information Procedures Act, that opinion will be filed with the Court Security Officer. A redacted version will be filed publicly as soon as possible.

As always, there may be no relief for those caught in the terrorism clutches of the United States government even when they are acquitted or ordered released. But, that is for another day, for today Judge Lewis Kaplan’s order should be cheered by those who believe the principles embodied in the Constitution – the rule of law – are more important than one man or one case, whether it involves terrorism or not. The trial is now on hold until at least Oct. 12 to give the government time to decide whether to appeal the exclusion ruling by Kaplan.

Via Digby comes this unsettling article by David Wood in Politics Daily about the growing militant contempt among military leadership for civilian authority and control.

The military officer corps is rumbling with dissatisfaction and dissent, and there are suggestions from some that if officers disagree with policy decisions by Congress and the White House, they should vigorously resist.

Officers have a moral responsibility, some argue, to sway a policy debate by going public with their objections or leaking information to the media, and even to sabotage policy decisions by deliberate foot-dragging.

This could spell trouble ahead as Washington grapples with at least two highly contentious issues: changing the policy on gays and lesbians in the military, and extricating U.S. forces from Afghanistan. In both cases, senior officers already have disagreed sharply and publicly with Defense Secretary Robert Gates and President Barack Obama, and in some cases officers have leaked documents to bolster their case.

…..

“The military officer belongs to a profession upon whose members are conferred great responsibility, a code of ethics, and an oath of office. These grant him moral autonomy and obligate him to disobey an order he deems immoral,” writes Marine Lt. Col. Andrew R. Milburn in Joint Forces Quarterly, an official journal published by the National Defense University under the aegis of the chairman of the Joint Chiefs of Staff.

That is especially true if his civilian leaders are incompetent, writes Milburn, who currently is assigned to the U.S. Special Operations Command in Stuttgart, Germany.

….

“When the results of bad decision-making are wasted lives and damage to the Nation; when the customary checks laid down in the Constitution — the electoral voice of the people, Congress, or the Supreme Court — are powerless to act in time; and when the military professional alone is in a position to prevent calamity, it makes little sense to argue that he should not exercise his discretion,” Milburn writes.

Read the entire article; please.

Now, there is no sense of any direct coup type of trend afoot in all this so much as an accelerating trend to the militarization of government and resigned acceptance by the proletariat. Digby touched on this:

This coincides with our new fetish for everything military, including the president of the United States announcing over and over again that he would “listen to the commanders on the ground” which likely gave more than a few of them the idea that they were the ones in charge. When you add that to the canonizing of the The Man Called Petraeus during the Bush years, this seems like a logical outcome. (I would also add that more than a few of them may be part of the religious “crusade” that some of the evangelical military brass are involved with.)

But the paradigm goes much deeper than the relative autonomy granted Petraeus in Afghanistan and the lionization of the US military. That is now; the question is where the trend heads in the future, and that is the even more troublesome thought. The concern is not so much one man such as David Petraeus (although I remain convinced he is the strongest and most worrisome politician the political right could coalesce around, not Sarah Palin). To me, the bigger problem is the militarization of the civilian government itself; the merging of military thought with command and control of civilian modalities.

One of the movies and books that has always stuck deep with me since my days as a child in the 60s was Fletcher Knebel’s Seven Days In May. The story takes place in a deeply divided country, after a stalemated war in Iran that has left the country depleted financially and devastated economically, causing despair, frustration, sense of powerlessness and unrest in the citizenry. The President is seen as weak and increasingly feckless. Into this dynamic steps a military establishment that surreptitiously built up the ability to exercise complete command and control of the communications and electronic media distribution capabilities via a program known as ECOMCON. And a larger than life narcissistic hero General named James Mattoon Scott decides he is the one to lead.

Hey, wait a minute, actually there is at least some similarity between Petraeus and Gen. James Mattoon Scott. The only difference is in reality, the civilian government has authorized the communications and surveillance capability that makes ECOMCON look quaint. And a disillusioned public may be close to being ripe for a daddy figure like The Man Called Petraeus. Leave it to a Brit paper, the Telegraph, to point out the obvious while the craven Yank press twiddles with Palin and O’Donnell:

In this toxic climate, perhaps the only public institution that has increased in prestige in recent years is the American military. Its officers are looked upon, as General George Patton once noted, as “the modern representatives of the demi-gods and heroes of antiquity”.

Where better to look for Obama’s successor, therefore, than in the uniformed ranks? Not since 1952, when a certain Dwight Eisenhower, Supreme Commander of Allied Forces in Europe during the Second World War, was elected President, have the chances of a military man winning the White House been more propitious.

Within those ranks, no one stands out like General David Petraeus, head of United States Central Command, leader of 230,000 troops and commander of United States forces in two wars. Having masterminded the Iraq surge, the stunning military gambit that seized victory from the jaws of defeat, he is now directing an equally daunting undertaking in Afghanistan.

Petraeus, 57, has survived the collapse of his parachute 60 feet above the ground. After he was shot in the chest during a training exercise and endured five hours surgery, the then battalion commander refused to lie in hospital recuperating. Demanding that the tubes be removed from his arm, he declared: “I am not the norm.”

The Constitution has been systematically hollowed out by the unitary executive power grab geared up in full by the Republican Bush/Cheney regime and ingrained and, in many regards not just ratified, but accelerated by the supposedly more enlightened Democratic Administration of Barack Obama. There is economic desperation in the streets with more and more homeless and unemployed citizens. It all adds to a toxic, stewing unease and detachment from governance, preached by the noisy Tea Partiers and long bought by the ill educated rural “real Americans”. The conditions are ripe for a military hero daddy to “save us”.

Think corporations and the capitalists on Wall Street will object to a military savior? Heck no, not so long as they are left free by the new paradigm to run free and pillage as they have grown accustomed to. And that is not in the least inconsistent with a more militarized rule. Not at all. In fact, the military and corporations are aligned and both worried about the populists, egalitarians and environmentalists, so they are a natural fit.

If the public malaise from tepid and ineffectual governance is not remedied by the Democratic leaders in charge, the electoral upshot may not be the cackling ineptness of Sarah Palin, but the polished narcissism of Gen. James Mattoon Scott Gen. David Petraeus.

In March of this year, Marcy reported about a Center for Constitutional Rights (CCR) petition to the Supreme Court on behalf of Guantanamo Lawyer Thomas Wilner and cited the CCR press release:

Last night, the Center for Constitutional Rights (CCR) asked the Supreme Court to take up its warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argue that the Executive Branch must disclose whether or not it has records related to the wiretapping of privileged attorney-client conversations without a warrant. Lawyers for the Guantánamo detainees fit the officially acknowledged profile of those subject to surveillance under the former administration’s program, and the Executive Branch has argued in the past that it has a right to target them.

Yesterday, the petition for cert on behalf of Tom Wilner was denied on the Court’s traditional First Monday announcements.

But the story will not end there for Tom Wilner in this nascent Supreme Court term, in a move that will prove ultimately much more significant than the somewhat weak FOIA case CCR was pursuing, Wilner has petitioned for cert on the Habeas case of his client Fawzi al-Odah. This will be a critical test to see how the Supremes are going to deal with the progeny of their decision in Boumediene v. Bush.

From Andy Worthington:

Last week, two years and three months after the US Supreme Court granted the prisoners held at Guantánamo constitutionally guaranteed habeas corpus rights in Boumediene v. Bush, Fawzi al-Odah, a Kuwaiti prisoner held for nearly nine years, became the first prisoner to appeal to the Supreme Court “to protest federal court interpretations of detainees’ right to contest their detention,” as AFP described it.

Over the last two years, the prisoners have won 38 out of the 55 cases in which the District Court judges in Washington D.C. have made a ruling, but al-Odah is one of the 17 whose appeals have been denied. As I reported when he lost his petition in August 2009:

….

Although the burden of proof is on the government in the habeas cases, the “preponderance of evidence” standard is considerably lower than in criminal cases, for example, where a case must be established beyond reasonable doubt. However, the Circuit Court dismissed al-Odah’s complaint “under binding precedent in this circuit,” and also dismissed his complaint about the use of hearsay evidence, pointing out that the use of hearsay evidence had been approved by the Supreme Court in Hamdi v. Rumsfeld, the 2004 case that approved the detention of prisoners under the Authorization for Use of Military Force, the legislation passed by Congress the week after the 9/11 attacks, which authorized (and still authorizes) the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (or those who harbored them).

….

In his petition to the Supreme Court, al-Odah argues that the courts have “applied a burden of proof lower than any ever approved by this Court in a case involving prolonged imprisonment, allowing the government to justify indefinite detention by a mere preponderance of the evidence, rather than by clear and convincing evidence.” He also argues that “both the District Court and the Court of Appeals have … allowed the indiscriminate admission of hearsay, denying the detainees any meaningful opportunity to test the reliability of statements made against them.”

Here is the official Petition for Certiorari in al-Odah. al-Odah will be an important bellwether to see if the Court accepts cert and, if so, what they do with the case.

The DOJ has just announced significant arrests in the long simmering Alabama Bingo case. This is huge news that will shake Alabama politics to the bone like nothing has since the Governor Don Siegelman persecution. From the official DOJ Press Release:

Eleven individuals, including four current Alabama state legislators, three lobbyists, two business owners and one of their employees, and an employee of the Alabama legislature have been charged for their roles in a conspiracy to offer to and to bribe legislators for their votes and influence on proposed legislation, announced Assistant Attorney General Lanny A. Breuer of the Criminal Division and Assistant Director Kevin Perkins of the FBI’s Criminal Investigative Division.

The defendants are charged in an indictment returned by a grand jury on Oct. 1, 2010, in Montgomery, Ala., which was unsealed today. Various defendants are charged with a variety of criminal offenses, including conspiracy, federal program bribery, extortion, money laundering, honest services mail and wire fraud, obstruction of justice and making a false statement. They will make initial appearances today in U.S. District Court for the Middle District of Alabama before U.S. Magistrate Judge Terry F. Moorer.

“Today, charges were unsealed against 11 legislators, businessmen, lobbyists and associates who, together, are alleged to have formed a corrupt network whose aim was to buy and sell votes in the Alabama legislature in order to directly benefit the business interests of two defendants, Milton McGregor and Ronald Gilley,” said Assistant Attorney General Lanny A. Breuer of the Criminal Division. “The people of Alabama, like all our citizens, deserve to have representatives who act in the public’s interest, not for their own personal financial gain. Vote-buying, like the kind alleged in this indictment, corrodes the public’s faith in our democratic institutions and cannot go unpunished.”

So, this is pretty interesting timing for this big prosecutorial move, no? It sure is. From today’s report from the excellent Roger Shuler at Legal Schnauzer, who practices in the area and has covered this case from the outset:

The U.S. Justice Department is spinning today’s actions as a legitimate probe focused on corruption connected to gambling legislation. But our sources have been saying for weeks that it is designed to affect the November elections. Polls show Republican Robert Bentley already leading Democrat Ron Sparks in the race for governor, and the arrests could help the GOP take over one or both houses of the Alabama Legislature, a long-stated goal of outgoing governor Bob Riley.

….

Means and Ross are Democrats, Pruett is a Republican, and Smith is an Independent. That appears to be a relatively bipartisan target list. But there is little doubt that Canary and her prosecutors went after Democrats and others who oppose Gov. Riley and his efforts to shut down gaming in Alabama.

….

So far, there is no word of an indictment on Sparks. But what does all of this say about the Obama administration? It already had a dreadful record on justice issues. And yet it backs a process where neither Gov. Riley nor any of his conservative backers who opposed gambling were apparently even investigated. We’ve seen no sign of a probe into the $13 million in Mississippi gaming money that reportedly was spent to help get Riley elected in 2002. Canary seems to have focused only on pro-gambling individuals, who tend to be Democrats or Riley critics.

….

What is this “investigation” all about? It looks like a thinly veiled effort to pay back Riley’s Mississippi gaming supporters–who reportedly laundered money through Jack Abramoff, Michael Scanlon, and Ralph Reed–by shutting down competition in Alabama.

Yes, very interesting timing indeed. It was not enough that DOJ, Canary and Morris used the specter of investigation to influence an earlier legislative vote on the bingo issue (see here and here), there is now every appearance they are materially affecting a general election in Alabama. More importantly, the move flies in the face of the DOJ Public Integrity Section (PIN) rule against announcing major prosecutions just before elections if it can be avoided. Yet, by every appearance, that is exactly what was intentionally done here. Why? What were the exigent circumstances? The rumors of this action have been around for months; the DOJ could not have done it earlier or waited?

This prosecution is also very interesting because, you see, the Middle District of Alabama is where the right wing Karl Rove ally Leura Canary holds forth as the United States Attorney. Another spot the Obama White House has just not seen fit (here may be why, and if so it is deplorable) to even find a nominee for, in spite of the hell she caused for Don Siegelman with ethically questionable tactics.

What is really fascinating is that the DOJ press release does not even mention Leura Canary. Not even once in passing; yet this is most assuredly her doing in conjunction with Governor Bob Riley. Here is a report from Legal Schnauzer this April on Canary’s involvement:

According to press reports, representatives from the Office of the U.S. Attorney for the Middle District of Alabama played a key role in Thursday’s meeting. Bush appointee Leura Canary, who oversaw the prosecution of former Democratic governor and Bob Riley opponent Don Siegelman, remains in the charge of that office. Alabama’s two Republican U.S. Senators, Richard Shelby and Jeff Sessions, have scuttled various Obama nominees for the position, and the White House, so far, has chosen not to fight for the two candidates (Michel Nicrosi and Joseph Van Heest) favored by Democrats.

Canary’s lingering presence in office almost certainly is driving the bingo investigation. Angela Tobon, an FBI special agent in Mobile, Alabama, told The Birmingham News that the Public Integrity Section (PIN) of the Justice Department is leading the inquiry. Tobon refused to elaborate when contacted by a reporter from the Montgomery Advertiser.

….

Does that mean Leura Canary was able to take advantage of a leaderless organization, contacting “loyal Bushies” still embedded in the Justice Department to help get PIN involved in a bogus Alabama operation?

It sure looks that way.

Why would the Obama/Holder DOJ be masking the central involvement of right wing Rove ally Leura Canary?

But wait, it gets even better! Who else is working this case that is the pet wet dream of right wing Alabama Governor Bob Riley, attached to the hip of Alabama gaming bigwigs that do NOT want the bingo competition? Why none other than Brenda Morris the disgraced former DOJ “Public Integrity” official who’s butt was on the chopping block for all of the egregious prosecutorial misconduct in the Ted Stevens case that led to dismissal of the charges and a criminal investigation to be opened by the court. Here is what I wrote last April about Morris’ involvement:

Morris has promptly inserted herself into another high charged political mess, and done so with questionable ethics and curious basis for involvement. From Joe Palazzolo at Main Justice:

Brenda Morris, a veteran trial lawyer in the Criminal Division’s Public Integrity Section, was among a group of federal law enforcement officials who met with Alabama legislators on April 1 to inform them of the probe, which is related to a proposed amendment to the state constitution that would legalize electronic bingo.

The investigation has inflamed tensions between state Democrats and Republican-appointed U.S. Attorney Leura Canary, who prosecuted former Gov. Don Siegelman (D) and whose husband has close ties to Republican Gov. Bob Riley, who strongly opposes the amendment. Canary’s office and the Public Integrity Section are jointly investigating bingo proponents’ quest for votes in support of the amendment, which the Senate passed on March 30.

The state House of Representatives has yet to vote. Alabama Democrats sent a letter to the Lanny Breuer, the head of the Justice Department’s Criminal Division, charging that the “unprecedented” disclosure of the investigation was meant to have a “chilling effect” on state legislators who otherwise might have voted for the amendment.

Here, from the Alabama Press Register, are a few quotes from local Alabama legal experts familiar with the facts and history:

Doug Jones, a former U.S. attorney now in private practice in Birmingham, called the private meeting a “virtually unprecedented” break from standard FBI procedures.

“I can’t think of a legitimate law enforcement purpose to do something like this,” said Jones, who represents members of the Alabama Democratic Caucus.

“I have never, in all my years of practicing law, heard of an event like what happened (on Thursday)” said Mobile County District Attorney John Tyson Jr. “It was stunning to me.”

Former U.S. Attorney William Kimbrough of Mobile said he’d seen nothing like it in a legal career that spans nearly five decades.

So what in the world was Brenda Morris doing smack dab in the middle of such a contentious political mess and how could the Obama/Holder DOJ think it appropriate? The answer is hard to fathom. Morris was supposed to have been tasked to the Atlanta US Attorney’s office as a litigation attorney while she is being investigated by the court for criminal contempt from her last case. You really have to wonder who is running the asylum at DOJ Main to think that there could ever be positive optics from Morris being involved in anything politically contentious.

The bottom line is, the DOJ and Leura Canary have hatched open an ugly can of worms, at the most prejudicial moment possible, with far ranging effects on local politics. Just what should be avoided at all cost. And they have done so in a flammable tinderbox situation and location through as tainted and ethically questionable prosecutors as can be imagined under the circumstances. One would have hoped that this type of prejudicial timing of prosecutions ended with the Bush/Cheney Administration; clearly it did not.

UPDATE: The DOJ has now made the statement that Leura Canary and the rest of her office, save for two individuals, are recused from the bingo case:

Breuer said Assistant U.S. Attorneys Louis V. Franklin and Steve P. Feaga from the Middle District of Alabama are assisting in the prosecution. But the Assistant Attorney General said the U.S. Attorney’s office is otherwise recused from the case. He declined to comment on the reason for the recusal.

Of course, Leura Canary saying she has recused herself in favor of Louis Franklin has a proven history of questionable veracity. Not to mention, of course, Canary’s involvement in the critical workup including the first wrongful impingement on the Alabama legislative function described above.

A lot of hope was placed on the back of Elizabeth Warren and the financial reform act passed by Congress at the behest of the Administration formally known as the Dodd-Frank Wall Street Reform and Consumer Protection Act. Concurrent with belittling the liberal Democratic activist base as ungrateful whiners, the Administration and Democratic leadership has touted Liz Warren and Dodd-Frank as prime examples of accomplishments that should thrill and satisfy the base. But are those “accomplishments” really all that and should they mollify Democrats, at least on financial reform issues? The initial returns indicate no.

First, the ability of Dodd-Frank to do the job intended as to rapacious financial institutions is highly debatable at best, and that is being generous. It is already established the bill did not clamp down sufficiently on the reckless casino style trading in derivatives and synthetic financial products, and may even have opened a new portal for abuse by the Wall Street Masters of the Universe high frequency traders.

Gretchen Morgenson in today’s New York Times lays out beautifully the bigger picture on the lack of reform in the “reform”:

THE government is pulling a sheet over TARP, the Troubled Asset Relief Program created during the panic of 2008 to bail out the nation’s financial institutions. With the program’s expiration on Sunday, we can expect to hear lots of claims from the folks at the Treasury that it was a great success.

Such assertions would be no surprise from a political class justifiably concerned about possible taxpayer unhappiness, the continuing economic turmoil and the midterm elections. But if we have learned anything during this crisis, it is that the proclamations emanating from the Washington spin machine must be taken with an extra-hefty grain of salt.

Consider the claims made last summer that the Dodd-Frank financial reform act reduces the threats that large, interconnected banks pose to taxpayers and the economy when the banks are deemed too big to fail. Indeed, as regulators hammer out the rules governing derivatives transactions, it’s evident that the law has created a new set of institutions that will almost certainly be deemed too important to fail if they ever get into trouble. And that means there won’t really be an effective way to keep those firms from taking big, profitable, short-term risks that are dumped on the taxpayers when the bets fail.

Our roster of bailout candidates includes the clearinghouses, created under Dodd-Frank, that are meant to increase the oversight of derivatives trading. Because most derivatives transactions are expected to go through these clearinghouses, they will be “systemically important” under the law. As such, Dodd-Frank specifically provides that “in unusual or exigent circumstances,” the Federal Reserve may provide such entities with a financial backstop, including borrowing privileges.

Remember this: Financial backstop is just another term for a taxpayer bailout. And the major banks and brokerage firms are the members of the clearinghouses, so a backstop would essentially be for them.

According to the Bank for International Settlements, the entire derivatives market had a gross credit exposure of $3.5 trillion at the end of 2009. Obviously, even a small fraction of that amount could represent a sizable call on the taxpayers if a clearinghouse hit the skids.

So much for eradicating too-big-to-fail.

So much for ending “Too Big To Fail” indeed. Like upwardly spiraling health care costs from “healthcare reform”, it appears all that has been done is to institutionalize the very problems in need of eradication.

Well, how about Elizabeth Warren, surely her placement in the Obama Administration is a giant positive the Democratic activist base can hang their hat on and take to the bank, right? In a word, no. Now, before we go further, I want to make perfectly clear that I admire and respect Warren greatly and probably as much or more than anybody in the public sector today. For that reason, writing the following pains me greatly, but I believe the facts and circumstances warrant honesty about the situation surrounding Liz Warren.

Here is what I said back on September 17th:

I spent a good chunk of the night a couple past reading the bill and the enabling provisions for formation of the CFPB. Done properly, the contemplation is for sucking in huge swaths of power, almost like a smaller version of the reorganization that formed the DHS, but is a good way. I think Warren will be interested in consolidating this power in an agency that might actually help people; I do not think any of the others involved, whether Geithner, Summers, Obama, Banksters, MOTUs and the agencies the power would be carved out from, will be interested in this at to any real degree at all. As is, Geithner and his Treasury team will have the last word on this, not Warren.

But the thing is, the power Geithner has is vested in the head of CFPB once confirmed or installed by recess appointment, which could have been Warren. That is a HUGE difference that Obama has intentionally and actively worked his ass off to prevent occurring. Today is the first big date, the date Geithner specifies the operative date for transfer of powers from other areas and agencies, which is the date the whole formation will then be calendared off of. It is a huge date. That is one of the main reasons why they strung Warren out till today, so she had no input on that. So Obama Could have named Warren immediately and pushed hard for fast confirmation or recess appointed her so that she had the power to do this right. Instead, he intentionally strung her out and insured that Geithner had all the real authority to not make the CFPB what it ought to be and has, further, insured that Warren never is confirmable in the future (the logistics after the mid-terms will make it impossible). Heckuva job.

For any so inclined, go read the actual CFPB enabling provisions in the the Dodd-Frank Bill. I think you will begin to understand what I am describing as to the awesome power that could be in CFPB if it was taken and done right. That power, and the ability to NOT exercise it, however, because of the Obama White House path, stays vested solely in Geithner/Treasury hands, and subject to the incredibly relentless influence of MOTU Banksters until a CFPB head is confirmed or recess appointed. And that, folks, is exactly why the Obama Administration refused to nominate or appoint Elizabeth Warren to be the actual head of CFPB. There was never a chance.

But there is a lot of good Warren can accomplish in her weird hybrid post Obama crafted for her, right? Not really, especially in relation to the awesome power she could have wielded, and should be wielding as head of CFPB. Yves Smith at Naked Capitalism sums it up very well:

It is now official that Warren is at best a placeholder; she cannot have much impact. She can’t make much in the way of policy or personnel choices; that would encroach on the authority of an incoming director. And even her ability to influence the choice of a nominee is questionable. Her taking the advisory role now assures that the nomination of the permanent director will come after the midterm Congressional elections. Given the virtual certainty of Democratic losses, the odds are high that Team Obama will settle on a “conservative” meaning “won’t ruffle the banking industry” choice, and argue its hands were tied.

So the Obama camp has played this extremely well. They get to avail themselves of the Warren brand, give her a Potemkin role, and use it to push the timetable for nomination of the permanent director out, which give them cover for installing a more compliant choice.

That is exactly right. And, as I stated above, what the Warren co-option by Obama and Geithner has done is not just to score political points from gullible Democrats desperate for a hint of intelligent financial policy from a moribund Administration, but more importantly to provide cover for the hollowing out of what could have been, and should have been, awesome power of a CFPB in competent and motivated hands of somebody actually interested in real consumer and citizen protection. Someone like Elizabeth Warren. It is a craven bait and switch and you, the consumer and citizen, are on the losing end.

Want more evidence? From Sewell Chan in Thursday’s New York Times:

The Obama administration is starting to set up the new Consumer Financial Protection Bureau, but relief for consumers befuddled by the complex disclosures that accompany credit cards, auto loans and mortgages will not come about right away.

Under questioning from senators on Thursday, the deputy Treasury secretary, Neal S. Wolin, acknowledged that regulators would not have substantive power to write rules governing a vast array of consumer loans until a permanent director of the bureau is in place and until July 21, 2011, when responsibilities from seven other federal agencies are transferred to the new bureau.

…..

At the hearing, Senator Richard C. Shelby of Alabama, the top Republican on the Banking Committee, said that the Treasury Department had emphasized the need to move quickly on writing new rules governing consumer loans, and questioned whether the department could do that “without a confirmed director.”

Mr. Wolin replied that “there is limited rule-writing authority, but it is constrained until such time as there is a confirmed director.

….

Finally, Mr. Wolin acknowledged to the senators that “the authority to actually issue a rule that would bind private parties, for example, in the mortgage area is a tough one until such time as there is a confirmed director.”

Therein lies the truth the Obama Administration has carefully obscured. They not only denied Elizabeth Warren the post she deserved and the power the country needed in her hands, they co-opted her as cover for frustrating the very purpose of the CFPA. There is no real power for the CFPA, and the true “rule writing” cannot occur, until there is a formal head and because of the bait and switch, Obama and Geithner have indefinitely strung out the time when there will be such a formal head of CFPB.

Elizabeth Warren is completely marginalized and, whatever little authority she does currently have disappears the second a real head of CFPA is confirmed. And do not kid yourself, while confirmation of Warren to head the CFPA would have been possible, even granted it would have been a very tough fight, in the current Congress, it will be impossible with the reduced Senate majority in the coming Congress. Thanks to the conduct of the Administration, there is now no chance whatsoever of Warren ever being confirmed and instead a conservative hack vetted and to the liking of conservative Republicans and Wall Street banksters will be the choice. Mission accomplished.

The ever more arrogant and belligerent to the progressive base Obama White House can call it “whiny” all they want, the truth is they are selling the base, and the rest of the country and mostly gullible press, a bill of goods. Admitting the truth isn’t being whiny, it’s being honest.