I wrote a series of posts about the incident surrounding Harvard Professor Henry Louis Gates. First, it was an illegal and unconstitutional arrest because of the abuse of police power and discretion. Second, irrespective of whether it was a racially motivated moment, it was one from which serious discussion could, and should, ensue. Third, that it was a teaching moment being given short shrift by the clumsy way Barack Obama inserted himself into it and then tried to extricate himself through the bogus "beer summit".

The thing that got me up in arms, from the start, is the undeniable fact that Gates’ arrest was illegal and an abuse of police power. As I described, take Gates’ conduct at its worst as described by the Cambridge police report, and the conduct simply does not meet the elements of disorderly conduct as arrested and charged on under the Massachusetts statute. There was no probable cause or legal basis for the arrest; it was simply a case of contempt of cop, and Sergeant Crowley decided to use the time honored police way of dealing with citizens in such situations, he abused his authority and badge by arresting the citizen.

The only thing unique about the Gates case is that it ended without serious harm to the citizen and it pierced the national conscience. The same base conduct plays out every minute of every day somewhere in the US. But the Gates/Crowley moment appears to have been lost without any intelligent discussion of the rampant abuse of police power and authority. Save for the opinions of Jonathan Turley and Jeff Toobin, which were minimized by MSNBC and CNN television coverage, there was precious little recognition by major media outlets of the root point of police power abuse.

Well, the scene in the video attached hereto is what happens in a society that refuses to address overreaching authoritarianism and unrestrained police projection. Moms with kids in minivans get Tasered and roughed up. In front of their children. Why? Because the cops can with relative impunity. The "Blue Line" circles the wagons around their fellow officers, prosecutors need their cooperation for prosecution and trials in actual major cases, and politicians are too cravenly worried about their next election to care. As Digby says:

If this is what they do when they have a video camera rolling in their own car, what do you suppose happens when one isn’t?

I guess the taser saved the officer the physical effort of hitting her over the head with his baton or shooting her to gain compliance, so that’s good.

No kidding. By the way, Digby writes relentlessly on the misuse and abuse of Taser devices by police around the country and every post is chilling and worth reading.

Jeffe Kaye gave a wonderful quote in the last post that touches on the broader phenomenon:

I think it’s something worse, a continuing creeping totalitarianism. One one side it’s state-sponsored, in the sense of violations of civil liberties, the solidification of the surveillance state, further intrusiveness into private lives and behaviors. On this score, one can find common ground with right-wing libertarians. On the other side, it’s a failure by the civil establishment, who have sided with fear: fear to speak out, fear of the truth, fear of loss of comfort, fear of what will happen to our children, fear of isolation, fear that life will end too soon and we will have missed out, fear of living fully and fear of dying.

And this is the greater discussion we were kept from having by Obama’s personal insertion and extrication of himself in the Gates incident. Abuse of police power and authority is a huge problem in this country and we need to have that discussion. Craven Republicans croon the fraudulent meme about pulling the plug on Grandma; what about the real electrical plugs being fired into Mom?

Well, I came upon a child of God
He was walking along the road
And I asked him, Tell me, where are you going?
This he told me

Said, I’m going down to Yasgur’s Farm,
Gonna join in a rock and roll band.
Got to get back to the land and set my soul free.

As you may have heard, we are on the precipice of the 40th anniversary of Woodstock. The famous, and infamous, cultural milestone took place down on Max Yasgur’s dairy farm outside of Bethel New York between August 15 and August 18, 1969. Thirty-two acts performed, during a sometimes rainy weekend, in front of nearly half a million concertgoers. The history and lore of Woodstock began immediately, it was clear to both those who loved it, and those who hated it, that it was a uniquely seminal moment.

Well, then can I roam beside you?
I have come to lose the smog,
And I feel myself a cog in somethin’ turning.
And maybe it’s the time of year,
Yes and maybe it’s the time of man.
And I don’t know who I am,
But life is for learning.

We are stardust, we are golden,
We are billion year old carbon,
And we got to get ourselves back to the garden.

Something had happened. Something big and transformational. But what? The prevailing view seems to be that it was a symbol of the discord and unrest of the 60’s, the antiwar movement and the counterculture generation. It is also viewed as the ultimate example of the peace and love motif of "the hippies". I wonder about all that; in fact, I am more inclined to the view expressed by Jon Pareles in a great article in the New York Times:

Yet for all the benign memories, Woodstock also set in motion other, more crass impulses. While its immediate aftermath was amazement and relief, the festival’s full legacy had as much to do with excess as with idealism. As the decades roll by, the festival seems more than ever like a fluke: a moment of muddy, disheveled, incredulous grace. It was as much an endpoint as a beginning, a holiday of naïveté and dumb luck before the realities of capitalism resumed. Woodstock’s young, left-of-center crowd — nice kids, including students, artists, workers and politicos, as well as full-fledged L.S.D.-popping hippies — was quickly recognized as a potential army of consumers that mainstream merchants would not underestimate again. There was more to sell them than rolling papers and LPs.

With the 40th anniversary of Woodstock looming — so soon? — the commemorative machinery is clanking into place, and the nostalgia is strong.

Woodstock is, like so many larger than life things, what each individual makes of it. As Woodstock performer Sly Stone would say, it has different strokes for different folks. But, mostly, I think Pareles may have this about right. For all the sturm and drang over its impact, Woodstock was not a big antiwar protest; in fact, the promoters, performers and masters of ceremonies made a conscious decision to stay away from that. As an example, when Abbie Hoffman tried to take the stage to gin up mass emotion against war and oppression, Pete Townsend of the Who literally batted him off the stage with his guitar. Peace and love yes; conscious and overt war protest, not.

But if Woodstock itself was not the epitome of social protest and activism, the times surrounding it were. There was an immoral and unjustified US war and occupation a half a world away, there was a culture of government spying on its citizens and invasion of their privacy and there was a growing dichotomy in society. In short, eerily similar to what seems to be the case today. And there were people protesting. Loud and large. Out in the streets, on college campuses, in the public square. There was a lot of juice to the dissent and it was led by the youth, college students and academics.

By the time we got to Woodstock,
We were half a million strong
And everywhere was a song and a celebration.
And I dreamed I saw the bomber death planes
Riding shotgun in the sky,
Turning into butterflies
Above our nation.

Where are they all today? Where has the soul and conscience of our society gone? Where is the dissent; where is the beef? It is curiously and conspicuously absent from our analogous circumstance. There is so much wrong, on so many fronts; and yet there is so much talent and ability. People are sick and tired of the state of the nation; and yet the ability and gumption to mobilize and make a stand seems lost. Why?

Maybe Jon Pareles is right and Woodstock, for all the notoriety, really was "as much an endpoint as a beginning". It wasn’t peace, love and activism on the march so much as automatonic consumerism and self concern setting in for the duration in America’s youth. We need to reverse that and get ourselves back to the garden of moral and legal certainty.

Oh, and by the way, and I know not everybody has the connection speed to do so, but if you can, check out the videos, at a minimum the first and last ones, although all are very good. If you have memories of, or related to, Woodstock, the time period etc. please feel free to relate and discuss them. Let’s have some fun this fine Friday afternoon!

We are stardust, we are golden,
We are caught in the devils bargain,
And we got to get ourselves back to the garden.

[Marcy is tending bar for Glenn Greenwald today over at Salon and has a wonderful piece on John Brennan and resultant bad policy in the Obama Administration. Please give her a visit – bmaz]

Australia, Belgium, Canada, Denmark, France, Germany, Ireland, Italy, Mexico, New Zealand, Norway, Poland, Spain, Sweden, Switzerland, Turkey, the United Kingdom (England), and even Venezuela. What do all these developed first order modern countries have in common?

They abolished the death penalty. Conspicuously absent of course is the United States. We are the only country in the Americas, whether North or South, that utilizes the death penalty in anything other than declared war exceptional circumstances. The conspicuousness of the US on the world death penalty map is chilling in terms of who we are aligned with in our beliefs; and it isn’t what might be referred to as the enlightened group of nations.

What is the purpose of the death penalty in a modern society at this point? Sure isn’t deterrence. In an article in the Ohio State Journal of Criminal Law, Dr. Jeffrey Fagan of Columbia University writes,

There is no reliable, scientifically sound evidence that [shows that executions] can exert a deterrent effect…. These flaws and omissions in a body of scientific evidence render it unreliable as a basis for law or policy that generate life-and-death decisions. To accept it uncritically invites errors that have the most severe human costs.

In accord are John Donnohue and Justin Wolfers in an article entitled "The Death Penalty: No Evidence for Deterrence", where the authors conclude claims that the death penalty saves lives and acts as a deterrent "are simply not credible." Are there studies to the contrary? Yes, and they are debunked in the above studies and evaluations, as well as in any number of others.

It is not for purposes of financial efficiency either; the death penalty is hideously expensive for the states and nation. When I first began my legal career, the data consistently showed that litigating and executing death penalty cases, as opposed to non-capital punishment treatment (including life imprisonment), was severely more expensive. That is still the case. From the CSM:

This year, state budgetary crises have given death penalty opponents their most successful argument yet – money.
…
Administering the death penalty is breathtakingly expensive. Contrary to popular opinion, it costs substantially more to execute people than to send them to prison for the rest of their lives.

In California, which houses the nation’s largest death row, it costs about $137 million annually to maintain the state’s death penalty system. The state has conducted only 11 executions since reinstating the death penalty in 1978, bringing the average cost per execution to $250 million. That’s right – a quarter of a billion dollars per execution.

California’s estimated cost of administering a system without capital punishment (imposing instead a maximum sentence of life without the possibility of parole) is $11 million annually, which means the state could save $126 million per year if it rescinded a penalty that it almost never uses. That’s big money – money that could be allocated to healthcare and to education, money that could put more police officers on the streets and take more killers off them.
…
Two years ago, New Jersey calculated that the death penalty had cost over $250 million since its reinstatement in 1983 – and for all the money invested, the state had not a single execution to show for it. Little wonder New Jersey decided to cut its losses and close death row.

The CSM article is a good, short and informative read.

As anyone who is a student of the American socio-political scene (and if you read here you almost certainly are) can attest, the death penalty is like a holy grail third rail for the conservative right wing. Even the right to lifers are death penalty aficionados. The Democrats are not a whole lot better.

Why is the death penalty still prevalent in the United States? Primitive bloodlust is about the only rational answer.

So, who will rid us of this meddlesome death penalty? We have certainly established it will not be the politicos inhabiting the Congress and Executive Branch. That leaves, as it always seems to these days, the Federal Judiciary, and the wave is building. From a great article by John Schwartz in today’s New York Times:

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.
…
The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.

In April, Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the murder trial of Troy Davis, a death row inmate in Georgia, had recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.

Judge Stephen Reinhardt of the Ninth Circuit, a critic of capital punishment, took on the constitutionality of the 1996 death penalty act itself in a dissent in the case of Andrew C. Crater, who had been convicted of taking part in a robbery and shooting spree that killed a Sacramento musician, James Pantages. Judge Reinhardt, appointed by President Jimmy Carter, wrote in 2007 that the act made “a mockery of the careful boundaries between Congress and the courts that our Constitution’s framers believed so essential to the prevention of tyranny.”

And here, at long last, we come to the purpose of the title to this post. The judges are right, the pertinent portions of the Antiterrorism and Effective Death Penalty Act of 1996 are egregious in the way they attempt to choke off appeal rights of those we seek to murder. And make no mistake about it, the death penalty is, both legally and morally, nothing but state sanctioned murder.

The reason the Federal judges are so up in arms about the AEDA of 1996 is that it is literally a chokehold on fair and equitable application of the Constitutional right to Habeas Corpus. Title I of the Act substantially amends federal habeas corpus law as it applies to both state and federal prisoners, whether on death row or imprisoned for a term of years, by providing a bar on federal habeas reconsideration of legal and factual issues ruled upon by state courts in most instances, creation of a general 1 year statute of limitations, creation of a 6 month statute of limitation in death penalty cases, encouragement for states to appoint counsel for indigent state death row inmates during state habeas or unitary appellate proceedings, and a requirement of appellate court approval for repetitious habeas petitions which are often a condemned man’s only hope of redress before his life is taken.

What the death penalty and rights restrictive legislation like this does is turn capital juries and Federal appellate panels into "death panels". Not the ginned up fraudulent baloney from Sarah Palin and the rightwing healthcare haters, but real, live, death panels that are choked off from the ability to do justice and equity. Serious people trying to do the most serious work imaginable, determining life or death of a fellow human being. This is an absolute moral, and arguably legal, invasion of the separation of powers and province of the judicial branch. If you want to really get a taste of what a pissed off Federal judge has to say about this, in a flagrant case where a potentially innocent man is up for execution, read the dissenting opinion from Judge Fletcher described in the NYT article. It is long, but eye opening, fascinating and worthwhile reading.

As Edward Bennett Williams eloquently stated of our founding principles:

Our philosophy of criminal jurisprudence is that the government of the state must prove the guilt or the defendant beyond a reasonable doubt. If they fail to do this, then we leave the defendant to the majestic vengeance of God if he be guilty because of the basis philosophy of our criminal jurisprudence is that it’s far far better than ten guilty men go free that that one innocent man go to the penitentiary convicted of a crime of which he’s not guilty.

The Founding Fathers were wise. If the United States cannot muster the gumption to join the rest of the civilized world and abolish the death penalty, we darn sure need to roll back the egregious provisions in Antiterrorism and Effective Death Penalty Act of 1996 and return the scales of justice to the neutral and detached judiciary.

(Hot photo credit to Spencer Ackerman)

Ari Melber starts by asking Scrapple who is he and why he is here.

Scrapple starts by raising choice.

Apparently now if you vote for saving the American economy it makes you a "de facto Democrat."

Specter is filibustering. Ari just broke in: "We’re not in the Senate, we’re not going to filibuster."

You should trust me because I have a record of being a boy scout. Okay. He didn’t say that.

Shorter Scrapple: You should trust me because the elite of your party asked me to flip-flop.

Susie rocks the house: You whine and then vote for things.

Scrapple now trying to justify his military commisison vote. Time for Ari to break in to prevent the filibuster again.

Last question, Scrapple tried to argue he didn’t quaver on bills. Now, he’s not answering the question but he’s demonstrating the certified quaver perfectly.

Scrapple doesn’t know from Nate Silver.

Scrapple’s one campaign slogan: I voted for stimulus.

Scrapple pitches stimulus again.

Scrapple says he’s comfortable looking over his right shoulder. Um, Scrapple? That’s your left shoulder.

Scrapple: Data = generalization.

Scrapple: No one in the Democratic caucus has done four town halls.

Um, Scrapple? You’re in the Democratic caucus, remember.

Come on Susie, now’s the time for the Clarence Thomas smack-down.

Scrapple: I think Grassley’s wrong on his granny comments. I’ll call him and tell him.

Call him now, we say.

Specter tried Grassley, but did not get him on the phone. Says he’ll call back in half and hour.

I was noodling around the intertoobz tonight, and was struck by the thought that the concept of "American Exceptionalism" may refer to our ability to bring teh stupid.

First up to bat are the down with brown anti-immigrant numbskulls. From the Los Angeles Times:

Walt Staton wanted to help people, and his tool was a water jug. On the morning of Dec. 4, he and three others drove southwest from Tucson, to the Buenos Aires National Wildlife Refuge, which tens of thousands of illegal immigrants traverse each year.

But the U.S. Fish and Wildlife Service said the plastic jugs he left for the immigrants endanger wildlife, and this week Staton was sentenced in federal court in Tucson on a charge of littering. He was given one year of unsupervised probation and ordered to spend 300 hours picking up trash.

The sentence, however, does not quite capture the emotions surrounding the case — yet another testament to the volatility of the illegal immigration debate in Arizona. Prosecutors had asked for a $5,000 fine and five years’ probation. Staton, for his part, had insisted on a trial, rather than pay a $175 fine.

In recent months, as the legal proceedings progressed, each side has essentially accused the other of staging a show trial to bolster its view of U.S. border policy.

Staton, a 27-year-old Web designer and soup kitchen volunteer, viewed his actions as humanitarian. As he had done for five years with the faith-based aid group No More Deaths, Staton in December lugged water up hills and through scrub to remote, migrant-carved trails. Only this time, when he and his comrades returned from leaving eight jugs at their last stop, authorities were waiting, and he was cited by a Fish and Wildlife Service officer.

This is just sick. The Federal government, through the Arizona US Attorney’s Office, egged on by the anti-immigration movement, which is very vocal in Tucson and Southern Arizona, got a burr up its butt and spent over $50,000 to prosecute this heinous criminal who took time away from his volunteer work at a soup kitchen to try to keep some human beings from dehydrating to death in the desert. Littering. The brown hating Lou Dobbs crowd makes a lot of noise and bring a lot of pressure in Tucson and parts due south. I guess they got a trophy Dobbs can crow about now. In the immortal words of Vince Lombardi, what the hell is going on here?

Next, from my local rag, the Arizona Republic, comes the nay on gay ganglion for brains bunch up in Utah:

A southern Utah newspaper has rejected a gay California couple’s wedding announcement, saying its policy is to publish announcements only for marriages legal under Utah law.

The Spectrum in St. George initially accepted a paid wedding announcement for Tyler Barrick and Spencer Jones last week, but then changed course, Jones said. The San Francisco couple were legally married June 17, 2008. They wanted the announcement printed in Jones’ hometown paper ahead of a family party next week.

Yep, can’t have anybody knowing that teh gay get hitched. I guess they figure if they don’t print it, no one will ever know. Good grief, can’t we just move on? Please?

Well, at least the fine authorities up there in Utah decided to drop the charges against the gay couple that had the audacity to kiss each other:

The Salt Lake City prosecutor’s office says it will not pursue charges against two men who were cited for trespassing on a Mormon church-owned downtown plaza earlier this month after sharing a kiss.

The United States may have elected a black man president, but you look out there every day and have to wonder just how far we really have come. It is not nearly as far as a great many people in this country think or give themselves credit for. Imagine if that energy was channeled to a productive, instead of destructive, end.

I know I’m going to have a blast visiting with people here at Netroots Nation. But I’ve already done what will likely be the coolest thing I do: a tour of a local steel plant. There were about 30 of us who took a bus out into the Monongahela Valley and all dolled up in hard hats, Nomex suits, and safety glasses to see how they make steel (Jane will be posting a photo of us, but I’m sure it won’t give you the proper sense of just how gorgeous Jane looks in an industrial suit). 

The video doesn’t give you a full sense of the size and heat of the process. The ladle that appears in the early part of the video is maybe a story and a half high, all moved around on a giant pulley system.

There were a number of us who left saying, "next time I hear someone complaining about their job, I will tell them to shut up unless they’re a steelworker." It is hot, there are tons of steps everywhere. But the whole trip was a fascinating way to understand something about Pittsburgh–and about where our cars and stuff comes from. 

As covered here and here, a Motion For Summary Judgment is pending in al-Haramain v. Obama, set in front of Judge Vaughn Walker in NDCA. Just to keep you apprised of the status, there has been a stipulation and order entered to extend certain time limits previously set in the matter.

Counsel for the Government Defendants has conferred with counsel for plaintiffs and sought agreement on a short two-week extension of the briefing schedule and a modification of the hearing date due to the press of business and other scheduling conflicts arising after the plaintiffs filed their motion. To facilitate this agreement, counsel for Government Defendants advised plaintiffs’ counsel that the Government does not presently anticipate submitting classified information in support of the Government’s position in response to plaintiffs’ motion or with any cross motion.

The one useful tidbit here is the government’s avowal that they do not intend to submit or rely on any classified information in their pleading. Certainly not shocking, in fact it is predictable. It is however important because neither we nor the plaintiffs want to delay things even further. There is no reason to give the government another month of delay on top of the delay that would be caused by classified filings, which would of course require proceedings to arrange for plaintiffs to review them under secure conditions per Judge Walker’s previous putative protective order.

One further reason why Coppolino likely isn’t going to do any further classified filing is because Judge Walker has indicated that if the plaintiffs review anything classified, they will probably get to review everything classified, both past and present. That would be crucial because it would mean the plaintiffs get to see the February 2009 filings correcting the so-called "inaccuracy," which you can be sure the government does not want them to see. Obama, Holder and Coppolino will probably do just about anything to avoid plaintiffs seeing those "corrections".

Assuming the government, through lead attorney Tony Coppolino, actually keeps his word and relies on information solely within the public domain, however, it increases the likelihood they will merely restate the same tired old defense that they are entitled to dismissal on state secrets grounds. Yes, I know, how shocking they could once again spew the same old junk. They cannot, however, materially contest the facts proffered by the plaintiff in the motion for summary judgment, because under the rules governing handling and disposition of such motions, specifically Rule 56, that would create a disputed fact set that then gets set for trial to resolve, and the government wants no part of that.

The functional nuts and bolts of the Order are as follows:

1. The Government Defendants’ response to plaintiffs’ partial motion for summary judgment (and any cross motion) is due on August 20, 2009.

2. Plaintiffs’ reply in support of their motion (and opposition to any cross motion) is due on September 8, 2009.

3. If the Government Defendants file a cross motion, any reply in support thereof would be due on September 14, 2009.

4. The matter will be heard on Friday, September 25, 2009 at 10:00 a.m.

So that is the new briefing schedule and the hearing/oral argument will be held on September 23rd (not the 25th as was originally asked for by the government) at 10:00 am Pacific time. Also note the mention that the government may "file a cross motion" for summary judgement. The government is undoubtedly saying this is simply to set up the case for dismissal should Judge Walker deny plaintiffs’ summary judgment motion. I figure this means they are trying to finagle a way to set up a better path for immediate appeal.

As they say in show biz, stay tuned.

If his first publicly known rendition case is any indication, there may well be a legitimate question as to whether Obama’s rendition program is even more repulsive than that of George Bush. More evidence will be required for an informed answer, but Obama is off to a very inauspicious beginning. From Scott Horton in an exclusive for Huffington Post:

[I]n a federal court in suburban Washington, a case is unfolding that gives us a practical sense of what an Obama-era rendition looks like.

Raymond Azar, a 45-year-old Lebanese construction manager with a grade school education, is employed by Sima International, a Lebanon-based contractor that does work for the U.S. military in Iraq and Afghanistan. He also has the unlikely distinction of being the first target of a rendition carried out on the Obama watch.

According to court papers, on April 7, 2009, Azar and a Lebanese-American colleague, Dinorah Cobos, were seized by "at least eight" heavily armed FBI agents in Kabul, Afghanistan, where they had traveled for a meeting to discuss the status of one of his company’s U.S. government contracts. The trip ended with Azar alighting in manacles from a Gulfstream V executive jet in Manassas, Virginia, where he was formally arrested and charged in a federal antitrust probe.

This rendition involved no black sites and was clearly driven by a desire to get the target quickly before a court. Also unlike renditions of the Bush-era, the target wasn’t even a terror suspect; rather, he was suspected of fraud. But in a troubling intimation of the last administration, accusations of torture hover menacingly over the case. According to papers filed by his lawyers, Azar was threatened, subjected to coercive interrogation techniques and induced to sign a confession. Azar claims he was hooded, stripped naked (while being photographed) and subjected to a "body cavity search."

I would say that the evidence of torture is an allegation at this point; but the optics of forced rendition for simple contracting fraud are disturbing. No terrorism, no deaths, and it does not even appear that Azar is a principal in the company, Sima International.

But in all three previous administrations, renditions have been considered a rare technique reserved for dangerous terrorists and violent drug kingpins. Azar is at worst a secondary figure in a small-time contract fraud case and is not accused in any way of terrorism. Why such aggressive and dramatic techniques were used in connection with the apprehension of a man suspected of a small-scale white collar crime remains entirely unclear.

Afghanistan is a sovereign country that, by all accounts, Azar was in legally and properly. The Afghan government further appears to have no knowledge of nor participation in, at least that it will admit, the forced removal of Azar at gunpoint by US agents. There are international extradition norms and, although there will certainly be a lot of facts being added to the picture as the case goes forward, the US actions do not seem to comport with them. While the government under Barack Obama seems to remain up to its old (and some new) egregious tricks, the one check and balance left in this country, the Federal Judiciary, seems to be on the ball already:

Azar’s allegations will now go before United States District Court Judge Gerald Bruce Lee, who must test Azar’s claims to have been tortured and act on his motion to dismiss the charges and suppress his confession. Motions of this sort are generally reckoned a long shot, as most judges prefer to have everything fully developed at trial. But at a 90-minute hearing held on July 17, Judge Lee indicated his discomfort with the prosecutors’ conduct, and specifically with their failure to supply the defendants with background information about the capture and interrogation of Azar and Cobos in Afghanistan. He asked three government prosecutors who were present if they were familiar with the Stevens case before Federal Judge Emmet G. Sullivan, in which a special prosecutor has been appointed to investigate potential criminal misconduct by the prosecutors. He insisted that the prosecutors immediately turn over to the defendants their records, including interview notes and any exculpatory materials.

Judge G. Bruce Lee. Sounds like a guy not to be messed with. Good.

Amazing isn’t it that the US government can snatch Azar at gunpoint, bag him, tag him and fly him to Virginia for minor contracting fraud by his employer, yet they cannot seem to do so much as stop giving bonuses to KBR who kills American soldiers through their reckless disregard. Nor have they bagged and sensory deprived anybody from DynCorp, who has engaged in major fraud on defense contracts in Afghanistan and Iraq. Go figure.

Eric Lichtblau and Eric Lipton have an article on the Purgegate document release in today’s New York Times. There were a few paragraphs by the two Erics that stood out to me:

Aides to former President George W. Bush have asserted that the Justice Department took the lead in the dismissals, which set off a political firestorm that lasted months. Mr. Rove played down his role in the firings in a recent interview and in closed testimony last month before Congressional investigators.

Well that was clearly a pack of lies; let’s call it what it is fellas.

“The amount of backstabbing and treachery involved is just breathtaking,” Mr. Iglesias said of the White House e-mail, in an interview on Tuesday. “It’s astounding that without reviewing the evidence or talking to the F.B.I. or anything, the White House would assume that these were provable cases and that I needed to file them for the political benefit of the party. That’s not what U.S. attorneys do.”

Hey Dave, they didn’t give a damn if the charges were provable, they just wanted them filed to prejudice Democrats before the election. Iglesias was wronged here, but he keeps consistently soft pedaling what occurred so as to remain a good Republican, and the distinction is a critical and clear one. It wansn’t that they "assumed provable cases"; they just didn’t care about the sufficiency of the charges. I really like Iglesias in a way, but this isn’t the first time he has treaded too lightly, he was all mushy over Scott Bloch too. Enough.

Robert Luskin, a lawyer for Mr. Rove, said the material released Tuesday demonstrated that there was “absolutely no evidence” the White House had used inappropriate political motivations to punish federal prosecutors. Mr. Luskin said Mr. Rove and other White House aides were legitimately concerned about voter fraud and were debating “completely reasonable and legitimate policy questions.”

Gold Bars is such a total tool. And man does he get around with the media outlets. Does he rent space at all of them or something?

Bush administration officials have publicly suggested that Mr. Iglesias was dismissed because of a subpar performance and absences from the office — he was a Navy reservist.

Those issues do not surface in the newly released e-mail. Rather, the dissatisfaction of New Mexico Republicans over the investigations was the focus in 2005 and 2006. Nonetheless, one message shows that the White House was told that the Justice Department planned to say the New Mexico investigations played no role in the dismissal.

In that exchange, in February 2007, William K. Kelly, of the White House Counsel’s Office, wrote an e-mail message to several senior officials, including Fred Fielding, the White House counsel, and Tony Snow, the press secretary. Referring to the Justice Department, Mr. Kelly wrote, “They are planning to deny that the investigation in question played any role in DOJ’s decision, and to deny that any Member contacted main Justice to complain about the conduct (or not) of any particular investigation.”

Hard evidence of a predetermined plan to deceive the public and obstruct any investigation that could occur (presumably by Congress). And The DOJ was front and center with the WH in complicity. Anybody else see a conflict of interest here in a DOJ investigation by say, I dunno, Nora Dannehy? By the way, when can we expect the charges on all these facts and implications Nora? There are certainly grounds, on several fronts, against several individuals, first and foremost Gonzales, but others as well. Anybody taking odds on whether any charges are filed at all?

As the first Purgegate document thread is getting long in the tooth, do not hesitate to continue here using this as another working thread.

Adam Cohen of the New York Times is a fairly astute writer on legal issues, and he has a new article up on the interesting case of Citizens United v. Federal Election Commission. The case involves the ability of corporations to further pollute elections in the United States with unregulated big money. From Cohen’s NYT article:

The founders were wary of corporate influence on politics — and their rhetoric sometimes got pretty heated. In an 1816 letter, Thomas Jefferson declared his hope to “crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”

This skepticism was enshrined in law in the early 20th century when the nation adopted strict rules banning corporations from contributing to political campaigns. Today that ban is in danger from the Supreme Court, which hears arguments next month in a little-noticed case that could open the floodgates to corporate money in politics.

The court has gone to extraordinary lengths to hear the case. And there are worrying signs that there may well be five votes to rule that the ban on corporate contributions violates the First Amendment.
…
If the ban is struck down, corporations may soon be writing large checks to the same elected officials whom they are asking to give them bailouts or to remove health-and-safety regulations from their factories or to insert customized loopholes into the tax code.

The entire article is not that long and well worth a read for the history and set up for the case at bar. Cohen is right that the ban is in jeopardy; and the Roberts court does seem to have a hard on for this issue, having taken extraordinary steps to wade into this case, which is not that well set up for a Supreme Court determination on such a critical and far reaching issue.

The Court did indeed take a case in which the ban on corporate political contributions was not a central issue and instructed the parties to brief on the ban’s constitutionality. The Court then accelerated oral argument on its calendar to a September date before the new SCOTUS term even starts. This sure looks to be the handiwork of Chief Justice John Roberts; anybody who says Roberts is not an "activist judge", and has no agenda, is nuttier than a fruitcake.

I do wish, however, that Cohen had written a longer piece and gone into some of the other fascinating aspects of this very important case. First off, Cohen did not even mention that this is the infamous "Hillary: The Movie" case from the 2008 primary election campaign. Citizens United is a right wing political hatchet group run by David Bossie, one of the key front men for the Congressional Republicans pressing the Whitewater investigations. There is a lot of wingnut skulduggery rooting around in the background here.

Secondly, Cohen (nor I) isn’t kidding when he says the Court is reaching wildly to frame the issues as it has demanded on corporate campaign donations. The issues on appeal were originally: (1) did the 2003 decision in McConnell v. FEC resolve the constitutionality of as-applied challenges to the disclosure and disclaimer rules; (2) do said rules impose an unconstitutional burden when applied to ”political speech” protected by the FEC v. Wisconsin Right to Life decision; (3) did the FEC v. Wisconsin Right To Life decision require, for regulation, a definite call for a vote for or against a candidate; and (4) whether a feature-length documentary can be treated as if it were an “ad” of the kind at issue in the McConnell v. FEC decision. With, really, a fair amount of emphasis on "4", whether the movie was a political ad. This is a far cry from where the Roberts Court is now heading.

Third, Cohen doesn’t mention the bizarre procedural history behind where the case sits now. SCOTUSWiki has an absolutely great history and explanation, written by Lyle Denniston, of the issues and process of Citizens v. Federal Elections Commission. Suffice it, for here, to say that the case has already been argued to the Court once and ought to be decided by now. Problem seems to be that Chief Justice Roberts was put off by the more liberal members questioning of Ted Olson after some passionate, but mostly tangential, First Amendment arguments he made at the first oral argument. Remember that horse manure that John Roberts pitched at his confirmation hearing about his "job being to call balls and strikes"? He lied through his teeth.

Lastly, there is the advance of the femme fatales Cohen forgot to mention. First, and foremost, is the newly sworn in Justice Sonia Sotomayor. It will be, of course, her very first case heard as the new junior member (Alito must be relieved to be off coffee and donuts duty) of the Court. Here is Russ Feingold questioning Sotomayor about Citizens United v. FEC at her confirmation hearing (as with all questioners, he didn’t get much out of her).

And then, of course, we have Obama’s crack Solicitor General Elena Kagan. At least Sonia Sotomayor has a long and deep history of work in trial and appellate courtrooms, both as an attorney and a jurist, under her belt. Not so Elena Kagan. The Justice Department has confirmed Kagan will indeed personally argue the case on September 9. By all accounts, and all I have been able to discern, Kagan’s first words on September 9 will be the first words she has ever uttered in battle in any kind of courtroom, anywhere, at any time, ever. That, in and of itself, is both fascinating and stupefying.

With all this time, and a whole Solicitor General’s office of more experienced attorneys, not to mention the DOJ, to help her with the training wheels, she should at least not embarrass herself you would think. But, then again, she will be up against Ted Olson, as seasoned a SCOTUS pro as exists on the face of the earth (and a distinguished former Solicitor General himself). We shall see; ought to be worth paying attention to I think.