In thoroughly unsurprising news, the defense attorneys for the five 9/11 High Value Detainees (including Khalid Sheikh Mohammed and Ramzi bin al-Shibh) have moved to either have the charges against their clients dismissed or, at least, have General Hartmann disqualified as Legal Advisor to the Show Trials. Here’s Carol Rosenberg on that story–as well as the news that Judge Allred will delay the start of Salim Hamdan’s trial until after SCOTUS rules in Boumedienne.

This motion obviously piggy-backs on Judge Allred’s decision from last week to have Hartmann disqualified in the Hamdan trial. The 9/11 defendants largely replicate the Hamdan complaint in their own motion–with one significant addition. They also argue that Hartmann illegally tried to coerce defense counsel, in addition to Colonel Morris Davis, the Chief Prosecutor. As they describe:

On January 25, 2008, a member of the Convening Authority’s staff, Colonel Wendy Kelly, inadvertently emailed a draft copy of the charges against Khaleed Sheikh Mohammed and five other detainees to Mr. Michael Berrigan, the Deputy Chief Defense Counsel. The draft charges were being circulated within the Office of the Convening Authority. Mr. Berrigan immediately notified Colonel Kelly of the disclosure and ascertained it was inadvertent, but after seeking counsel from his state bar, refused to return the draft charges.

On February 1, 2008, the Legal Advisor to the Convening Authority wrote a memorandum to the Chief Defense Counsel, Colonel Steven David. General Hartmann stated that he had contacted the professional responsibility offices for the Army, Navy, and Marine Corps and they had opined that Mr. Berrigan must return the draft charges in this case; charges which approximately two weeks later General Hartmann claimed to have just received.

[snip]

The fact that the Legal Advisor, rather than the Chief Prosecutor, sent the Memorandum to the Chief Defense Counsel illustrates the point that the Legal Advisor failed to retain the required independence from the prosecution function and maintain his ability to provide independent, neutral, and impartial advice to the Convening Authority.

The [Military Commissions Act] prohibits attempting to coerce or unlawfully influence the professional judgment of trial or defense counsel. While the Secretary of Defense has attempted to circumvent the statutory prohibition against unlawful influence of trial counsel by regulation, he has not done so for defense counsel. When unlawful influence is directed against a defense counsel, it "affects adversely on accused’s right to effective assistance of counsel." [citations removed]

Now, Hartmann would argue (as he did in his memo to Colonel David) that Berrigan,

…serves in a supervisory attorney capacity and does not represent clients. To my knowledge he does not have an attorney-client relationship with any of the individuals represented in the privileged materials. Therefore, returning the privileged materials presents no conflict with any duty to protect a client.

I’ll let the lawyers present assess that argument (I would note, though, that when Hartmann made that argument, none of the six detainees in question had attorneys). Obviously, though, since Berrigan did keep the email proving that Hartmann and the Convening Authority generally were included in drafts of the charges, it utterly undercuts Hartmann’s claim to independence when–in his press conference announcing the charges–he suggested he had yet to evaluate the charges.

I will evaluate the charges and all of the supporting evidence, along with the chief prosecutor’s recommendation, and I will forward them with my independent recommendation to Mrs. Susan Crawford, the convening authority for the Military Commissions.

Like I said, this was a thoroughly unsurprising move–when Allred disqualified Hartmann in Hamdan, whose charges Hartmann had little influence over, it particularly threatened those charges that Hartmann was closely involved in.

It makes you wonder how long Hartmann will still be involved in the Show Trials.

Tommy K has now joined Duke Cunningham in prison, with Tommy K being sentenced
to more than eight years and more than a million dollar fine. That leaves Dusty Foggo–presently due to be tried for bribery and then some in the fall in Virginia and currently squabbling over discovery with the government. And Brent Wilkes, who is trying to negotiate bail while he prepares to appeal his conviction.

These guys were all indicted for the gaming of our defense and intelligence contracts using bribes. But the housing crisis has added a nice touch of irony to the equation. Brent Wilkes has had trouble making bail because his southern California real estate has declined in value so much it’s no longer enough to back the $2 million he originally posted for bail.

Burns reinstated the $2 million bail, but wanted current appraisals of any real estate Wilkes would put up to secure $1.4 million of that amount.

Wilkes was short about $600,000 at first. The crash in the real estate market had devalued property previously used to secure the bail.

And Judge Larry Burns was none too happy that–after Tommy K signed a plea deal with the government–he continued to engage in massive mortgage fraud.

Burns also took into account that Kontogiannis continued breaking the law after he pleaded guilty.

“Here you are with your rear end on fire over this Cunningham thing, and you’re out there making bad loans?” Burns said. “I think that’s just brazen.”

So two and a half years after this little bribery ring first became public, its perpetrators are beginning to go to jail.

Howie’s got a good post on the secrecy surrounding Tommy K’s sweet plea deal. Like Howie, I hope that we begin to learn why the government almost gave Tommy K a pass on bribing a Congressman because–they claim–he was cooperating on some counter-terrorism investigation. We saw how Chiquita Bananas similarly got a pass on their crimes, courtesy of Michael Chertoff. I just wonder how many of the folks ripping off middle class home owners in the last several years will, like Tommy K almost did, similarly get a pass.

Dear George Bush:

Thank you for giving this son of immigrants the opportunity to deprive brown people of their right to vote. I’m just sorry I won’t have the opportunity to do so during the 2008 election.

Love,

Hans

I’m sorry. That’s not exactly what Han von Spakovsky said in his letter withdrawing from consideration for FEC. He did mention being the son of immigrants:

The day that I was sworn in as a Commissioner in January of 2006 was almost exactly 55 years to the day from the date that my parents arrived in the United States as penniless war refugees. It says a great deal about what a wonderful country we live in that a first-generation son of immigrants could be appointed by the President to such a post of public service.

And he did boast about his service in the Civil Rights Division of DOJ.

I am very proud of the work that I did as a career lawyer at the Department of Justice, which has been validated by numerous federal courts, including the U.S. Supreme Court.

Spakovsky must have forgotten the "sometimes" in that last sentence, as he was also reversed by those same courts.

Mostly, though, this letter is all about victimization–his victimization, not those whose votes or civil rights he ignored. He explains as his reason for withdrawing that his family does "not have the financial resources to continue to wait until this matter is resolved" (which I’m frankly fairly sympathetic to). No mention of Mitch McConnell’s refusal to let Spakovsky get an upperdown vote of his very own, without yoking him to other, more palatable nominees. To hear Spakovsky tell it, he was due this nomination, and unfair mean opposition ruined it for him.

That’s a stance that Harry Reid does not agree with, to say the least.

I welcome the President’s decision to withdraw the controversial nomination of Mr. von Spakovsky. It is an action I have repeatedly urged the President to take for more than six months. Democrats stood united in their opposition to von Spakovsky because of his long and well-documented history of working to suppress the rights of minorities and the elderly to vote. He was not qualified to hold any position of trust in our government.

As I understand it, the Senate has a Rules Committee hearing scheduled for Wednesday, at which they will be prepared to discuss the three other nominees. I’m trying to clarify whether that means Commissioner Mason–the guy who said McCain was breaking his own damn campaign finance law–will be ousted, but it seems to be. (In fact, I think one of the people they’ve nominated is Donald McGahn, a former DeLay lawyer also involved on the edges of the NRCC scandal–so we may be trading racially biased policies for outright corruption.) I will update you when I figure out more.

After losing a slew of dictator-connected advisors in the last week, the McCain campaign has finally decided it might be a good idea to vet the people hanging out with John McCain.

McCain campaign manager Rick Davis moved to avoid a recurrence of the situation with his conflict-of-interest policy, released late yesterday. It also sought to stem the impression that McCain’s campaign is run by lobbyists — a characterization Democrats have tried to make since it was reported that a senior adviser, Charlie Black, made lobbying calls from McCain’s signature bus, the Straight Talk Express. Davis himself is currently on leave from his lobbying and consulting firm, and the campaign removed two other officials this week for work they’d done on behalf of Burmese junta.

[snip]

The memo establishes a new vetting process, requiring campaign aides to fill out a questionnaire on their status and to provide proof to the campaign legal department that they’ve terminated outside contracts.

In an show of civic responsibility, Progressive Media USA has filled out the forms for five of McCain’s top advisors. Here, for example, is part of Charlie Black’s now-completed survey:

McCain Staff Lobbyist Survey

NAME: Charlie Black

CAMPAIGN ROLE: Senior Political Adviser

Have you ever registered as a federal lobbyist?
Yes

Have you ever been a registered foreign agent?
Yes

Please list all of the foreign governments, political and other interests you lobbied for:
Jonas Savimbi (leader of UNITA rebels in Angola)

[snip]

Government of Zaire

Please list any clients you think could potentially cause a conflict of interest for the McCain Campaign:
Yukos Oil
Philip Morris
JP Morgan
Johnson & Johnson
G-Tech
United Technologies
Washington Mutual Bank
U.S. Smokeless Tobacco
Occidental Petroleum Group
Accenture
Fluor
AT&T
Lincoln Group
Lockheed Martin
National Association of Mortgage Brokers
Ocean Duke Corp.
SAP America

Please list the times you have lobbied Senator McCain or his office:
NOT DISCLOSED

See how helpful that is? Transparency is a wonderful thing.

Only, McCain’s campaign forgot to ask for disclosure from one additional source of conflicts of interest. So, out of my own sense of civic responsibility, I’ve started to fill out the very special survey the campaign forgot:

McCain Staff Lobbyist Survey

NAME: Cindy McCain

CAMPAIGN ROLE: Sugar Momma

List Total Net Worth
$100,000,000

Please list all campaign donations provided that have not been fully reimbursed:

Six months of flights on the Sugar Momma Express
One large barbecue at my Sedona "ranch"

(More to come as "the base" requires it)

Please list all past or present investments that directly undermine a stated McCain campaign promise:
American Funds Europacific Growth fund
American Funds Capital World Growth and Income

(others to be filled in after the AP discovers them)

Please list all business partnerships with corrupt owners of savings &loans, mortgage banking firms, or other financial institutions for which Senator McCain has done legislative favors:

Charles Keating

(others to be filled in after the AP discovers them)

Please list all business partnerships with business owners that have or will be bailed out at taxpayer expense:

Charles Keating

(others to be filled in after the AP discovers them)

Please list any products you sell that offend the cultural sensitivies of a significant portion of the Republican base:

Alcohol

Wait. This isn’t working. There are just too many potential conflicts to fit into one simple survey. There must be an easier way of vetting the Sugar Momma‘s improper conflicts.

Thankfully there is, though it’s an invention of evil big government. For easy vetting and disclosure, the McCain camp might want to try this.

No no, not the bomb. Strictly a peaceful civil program, you understand, just like the Iranians say they’re developing.

As Bush flew into Riyadh, the White House said the United States, the world’s largest energy consumer, had agreed to help protect the resources of the world’s top oil exporter and help it in developing peaceful nuclear energy.

"The United States and Saudi Arabia have agreed to cooperate in safeguarding the kingdom’s energy resources by protecting key infrastructure, enhancing Saudi border security, and meeting (its) expanding energy needs," a White House statement said.

"The U.S. and Saudi Arabia will sign a memorandum of understanding in the area of peaceful civil nuclear energy cooperation."

The announcement came as Bush ended a three-day trip to Israel where he vowed to oppose Iran’s nuclear ambitions. Tehran says its program is peaceful but Bush said it would be "unforgivable" if Iran were allowed to get the bomb.

So we’re giving Saudi Arabia nukes while still refusing to allow Iran nukes.

And for all that, Saudi Arabia isn’t even willing (though I question whether, at this point, they are able) to lower gas prices?

While Bush is likely to find common ground on Iran when he meets King Abdullah, the Saudi monarch is expected to rebuff for the second time this year Bush’s face-to-face call to get OPEC pumping more oil to world markets.

Wasn’t it just yesterday that Bush was decrying negotiations with evil dictators? Does giving them nuclear technology while getting nothing in exchange count as "appeasement"?

I joked to some folks yesterday that Will Rogers is probably rolling over in his grave about now. Between Obama’s insistence on running one, unified message and party and Obama’s masterful implementation of the Edwards endorsement yesterday, we Democrats may no longer be able to quip–at least for the next several months–that we "belong to no organized party."

That sentiment was widely shared among a bunch of local political types in MI with whom I just had beers. It wasn’t just that Obama (and David Bonior, surely) had managed to headline Obama’s first MI event with the guy in the race who spoke most about the crappy economy. It wasn’t just that it was MI where he chose to get the endorsement–making up for a lot of the bad things some Michiganders have been told about Obama. It wasn’t even just the nice touch of keeping the Edwards endorsement a secret from the thousands who showed up in Van Andel arena to see Obama until Obama got to announce it himself on stage–magnifiying the specialness of the Edwards endorsement. It was, obviously, also the way Obama managed to pre-empt Hillary’s biggest win since Arkansas with the news that both of them have been chasing since February.

But the more I think about it, Obama’s management of the Edwards endorsement was even more brilliant than that.

Consider, for a moment, Robert Reich’s explanation of why Hillary remains in the race (h/t Jane).

She wants the best possible deal she can strike with Obama. She wants Obama to agree to pay her campaign debts, to seat the Michigan and Florida delegations (so she can claim a moral victory), and – the quietest deal of all – a personal commitment from him to appoint her to the Supreme Court when the next vacancy occurs.

Just as a picky point, the Edwards endorsement simplifies any resolution of MI. If the MI compromise proposal goes forward, it’ll make it a lot easier to award Obama 59 delegates now that the other major candidate who took uncommitted votes has endorsed Obama–Edwards isn’t going to complain that "his" votes from uncommitted are awarded to Obama. And even if Obama does feel generous and gives Hillary her MI "win" (which will piss me off, but I’m willing to be used once again for the sake of party unity)–having the Edwards endorsement will make it more likely that the roughly 5 elected delegates who support Edwards and the At Large delegates yet to be assigned to uncommitted will support Obama. (Obviously, that’s true of FL as well.)

But that’s a picky point. What I’m really interested in, with regards to the timing and implementation of the Edwards endorsement, is that it happened just as Hillary’s team had intensified its lobbying to secure the VP nomination for Hillary. A few days ago, everyone was talking about the dream ticket Obama-Clinton. Now, after last night’s endorsement, everyone is talking about the dream ticket of Obama-Edwards; talk of a Obama-Clinton ticket now seems dated, flat.

Consider the pressure that puts Hillary under. Whether she wants SCOTUS or VP or some other prize for a concession, everything she might be a good candidate for, Edwards would also be an excellent pick for. VP? AG? SCOTUS? Yup.

Yet Edwards, of course, jumped in when the concession prizes were all available–and jumped in in a way that made Hillary’s concession less necessary (though still pretty important) even as it isolated Hillary further in her opposition to Obama. If Hillary holds out much longer, it’ll be easy for Obama to give Edwards whatever prize Hillary might have wanted as a reward for Edwards endorsing to bring the party together.

By bringing in Edwards when he did (and mind you, I don’t imagine that Edwards is missing this significance either), Obama takes away much of Hillary’s bargaining position. That’s not very nice, mind you. But it is effective politics.

Will Rogers. I’m sorry, but you may have to take a pass this year.

…In our discussion of Tim Shorrock’s Spies for Hire, it seems appropriate to post on the Senate Armed Services Committee’s report on the Cyber-Security Initiative.

As you’ll recall, the Bush Administration has been struggling for their entire term to address the fact that our cyber-infrastructure is woefully exposed to cyber-attacks. After a series of cyber-czars who either wouldn’t or couldn’t address this problem, back in January the Administration began to make some progress–not least, by taking the project out of Michael Chertoff’s hands. The SASC’s report notes that the Administration has made some progress, though it has three substantive complaints.

The committee applauds the administration for developing a serious, major initiative to begin to close the vulnerabilities in the government’s information networks and the nation’s critical infrastructure. The committee believes that the administration’s actions provide a foundation on which the next president can build.

However, the committee has multiple, significant issues with the administration’s specific proposals and with the overall approach to gaining congressional support for the initiative.

First, the SASC objects to the way the Administration has shielded what is supposed to be at least partly a deterrent program in so much secrecy that the program has lost its deterrence ability.

A chief concern is that virtually everything about the initiative is highly classified, and most of the information that is not classified is categorized as `For Official Use Only.’ These restrictions preclude public education, awareness, and debate about the policy and legal issues, real or imagined, that the initiative poses in the areas of privacy and civil liberties. Without such debate and awareness in such important and sensitive areas, it is likely that the initiative will make slow or modest progress. The committee strongly urges the administration to reconsider the necessity and wisdom of the blanket, indiscriminate classification levels established for the initiative.

The administration itself is starting a serious effort as part of the initiative to develop an information warfare deterrence strategy and declaratory doctrine, much as the superpowers did during the Cold War for nuclear conflict. It is difficult to conceive how the United States could promulgate a meaningful deterrence doctrine if every aspect of our capabilities and operational concepts is classified. In the era of superpower nuclear competition, while neither side disclosed weapons designs, everyone understood the effects of nuclear weapons, how they would be delivered, and the circumstances under which they would be used. Indeed, deterrence was not possible without letting friends and adversaries alike know what capabilities we possessed and the price that adversaries would pay in a real conflict. Some analogous level of disclosure is necessary in the cyber domain.

Not only can’t citizens debate aspects of the program with so much secrecy, but we also can’t tell the Chinese hackers who would like to shut our systems down what will happen if they try to do so. (Hmm, I wonder if the worry is that the Chinese hackers wouldn’t be too concerned?) For more on this complaint, see Steven Aftergood.

To add to the concerns that secrecy prevents any meaningful debate, SASC notes, the initiative is moving far ahead of standard requirements for acquisitions: the Administration is trying to get Congress to pay for stuff that just isn’t ready yet.

The committee also shares the view of the Senate Select Committee on Intelligence that major elements of the cyber initiative request should be scaled back because policy and legal reviews are not complete, and because the technology is not mature. Indeed, the administration is asking for substantial funds under the cyber initiative for fielding capabilities based on ongoing programs that remain in the prototype, or concept development, phase of the acquisition process. These elements of the cyber initiative, in other words, could not gain approval within the executive branch if held to standards enforced on normal acquisition programs. The committee’s view is that disciplined acquisition processes and practices must be applied to the government-wide cyber initiative as much as to the ongoing development programs upon which the initiative is based.

Hmm. The Committee seems right to be worried that the Administration wants us taxpayers to pay for "concepts" in secret.

And then, there’s the issue that Ryan Singel hits on–the Administration is trying to get us to pay for stuff, in the name of Cyber-Security, that is really just more spying.

The committee also concludes that some major elements of the cyber initiative are not solely or even primarily intended to support the cyber security mission. Instead, it would be more accurate to say that some of the projects support foreign intelligence collection and analysis generally rather than the cyber security mission particularly. If these elements were properly defined, the President’s cyber security initiative would be seen as substantially more modest than it now appears. That is not to say that the proposed projects are not worthwhile, but rather that what will be achieved for the more than $17.0 billion planned by the administration to secure the government’s networks is less than what might be expected.

The Administration is waving a $17 billion price tag around, which won’t get us the Cyber-Security the project is intended to, but will get us a bunch of other spying programs that really aren’t about Cyber-Security. No word, then, on what the real price tag would end up being to actually implement a Cyber-Security program that, you know, is something more than a concept. $17 billion is an awful lot for a concept with some more spying added in just for kicks.

Finally, the SASC attaches a laundry list of other major problems with the program–which basically make it sound like this isn’t a "program" yet at all.

Finally, the committee concludes that, for all its ambitions, the cyber initiative sidesteps some of the most important issues that must be addressed to develop the means to defend the country. These tough issues include the establishment of clear command chains, definition of roles and missions for the various agencies and departments, and engagement of the private sector.

Though, given the discussion we had earlier today, it sure seems like the Intelligence Community really hasn’t yet figured out the chain of command, defined the roles and missions, and figured out how to integrate the private sector effectively anyway.

All in all, this report looks like the kind of report you’d get from a very positive elementary school teacher. "Very nice try, Johnny. It’s so nice to see you trying to finish the homework you’ve been working on for eight years. Now let’s talk about the bare minimum you’re going to need to do in order to actually complete this homework. And no, you can’t have $17 billion dollars for what thus far is still C minus work."

Boy, George Bush must not have liked his Granddaddy Prescott very much. Here’s what he just said to Israel’s Knesset:

Some seem to believe we should negotiate with terrorists and radicals, as if some ingenious argument will persuade them they have been wrong all along. We have heard this foolish delusion before. As Nazi tanks crossed into Poland in 1939, an American senator declared: "Lord, if only I could have talked to Hitler, all of this might have been avoided." We have an obligation to call this what it is – the false comfort of appeasement, which has been repeatedly discredited by history.

Or maybe it’s just negotiating with Nazis that’s the problem–making tons of dough by serving as their banker? The Bush family doesn’t appear to have any problem with that.

George Bush’s grandfather, the late US senator Prescott Bush, was a director and shareholder of companies that profited from their involvement with the financial backers of Nazi Germany.

The Guardian has obtained confirmation from newly discovered files in the US National Archives that a firm of which Prescott Bush was a director was involved with the financial architects of Nazism.

His business dealings, which continued until his company’s assets were seized in 1942 under the Trading with the Enemy Act, has led more than 60 years later to a civil action for damages being brought in Germany against the Bush family by two former slave labourers at Auschwitz and to a hum of pre-election controversy.

If we had a press corps with any historical memory, I guess, such a statement might get Bush in trouble (not to mention make it difficult for his hosts who invited a lame duck grandson of a banker to the Nazis to speak to the Knesset). But instead they’re likely to focus on the false claim that Obama wants to appease Hamas.

I wanted to give you all a heads up to a mid-week book salon I’ll be hosting today at 3PM ET over at the mother ship: Tim Shorrock’s Spies for Hire: The Secret World of Intelligence Outsourcing. I pushed to include Shorrock on the schedule because (as you’ll see in my post at 3) his book offers some key insights on FISA–and we seem to be gearing up for another FISA fight.

But there’s more than FISA that might interest you about the book (and about chatting with Shorrock). He gives the corporate back-story to:

• Rick Renzi’s corruption
• The domestic spying Counterintelligence Field Activity (CIFA)
• CACI, the company whose contractors directed the torture at Abu Ghraib
• Total Information Awareness
• The domestic satellite surveillance Chertoff wants to use with DHS

Shorrock wraps that background story in a discussion both of the ideology behind the privatization of our intelligence function:

…as we’ve seen, money and profits are not the sole motivators for the corporations and executives who populate the Intelligence Industrial Complex. Because so many top executives are former intelligence officers themselves, many of their companies are motivated by politics as well. For CACI’s CEO, Jack London, that translates into a desire to "disseminate vital intelligence" for the fight against "Islamofascists." For ManTech CEO George Pederson, it’s a yearning for his company to be "on the battlefield," whether in Iraq, South Korea, or the Philippines. For the senior vice presidents of the big prime contractors, Booz Allen Hamilton and Science Applications International Corporation, it involves power, either as a way to influence future policy or make changes in the way the Intelligence Community is organized.

And a discussion of the subservience of public to private interest in such an Intelligence-Industrial Complex.

In the past, [former NSA Director Kenneth] Minihan said, contractors "used to support military operations; now we participate [in them]. We’re inextricably tied to the success of their operations." This new situation, he argued, presents corporations with "interesting opportunities" to create technologies that governments can take advantage of, "with all the complexities that exist in merging the interests of the private and public sector in the intelligence apparatus."

Merging the interests of the private and public sector. That astonishing phrase, which is now the mantra of the intelligence contracting industry, suggests the creation of a new mode of capitalism that specifically serves theneeds of government and its "intelligence apparatus." The implications are staggering: once private and public interests are merged, then the need for oversight disappears, along with regulation and other institutions designed to act as a brake on unbridled capitalist development or as watchdogs against corruption. Indeed, with 70 percent of the U.S. intelligence budget now going to private sector contractors, we may have already reached the point of no return. [emphasis and second brackets original; first brackets mine]

Under the leadership of Director of National Intelligence Mike McConnell, the Bush Administration has handed over the keys to our privacy to these companies that believe in profit and the fight against Islamofascists.

Want to find out more? Join Tim Shorrock and me at 3PM ET.

As some of you pointed out before I got distracted with the aura of actually having Democratic Presidential candidate(s) in my state, Paul Clement is done. He’s not going to stick around and lend his purportedly considerable skills defending the Bush Administration before SCOTUS anymore.

Today, the Department of Justice announced that Solicitor General Paul D. Clement will end his current service to the Department on June 2, 2008.

[snip]

Clement’s tenure of over seven years in the Office of the Solicitor General is the longest period of continuous service in that office by an individual who served as Solicitor General since Samuel Phillips, who served from 1872-1885.

[snip]

During his time in the Office of the Solicitor General, Clement argued 49 cases before the Supreme Court, prevailing in the vast majority of them. Landmark cases argued by Clement include Tennessee v. Lane, McConnell v. FEC, Rumsfeld v. Padilla, Gonzales v. Raich, and Gonzales v. Carhart. He also argued many other significant cases in both the Supreme Court and the lower courts involving novel and important legal issues concerning the conduct of the War on Terror.

The Office of the Solicitor General is responsible for conducting all litigation on behalf of the United States in the Supreme Court, and for supervising litigation in the federal appellate courts. Oral arguments for the 2007 Supreme Court term were completed in April 2008. The Department will submit all of its briefs for action during this term by the end of May 2008.

Prior to today’s announcement, Clement informed the President and the Attorney General of his plans to resign.

Let me just note several things. First, I still very strongly believe that Paul Clement is the guy about whom Sidney Blumenthal wrote last year,

Yet another Bush legal official, even now at the commanding heights of power, admits that the administration’s policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we’ve done has been illegal." He adds, "Not everything has been ultra vires" — a legal term referring to actions beyond the law.

That is, as early as last June (I suspect) Paul Clement recognized he was on sinking ship–and recognized that a good many things the Bush Administration had done were illegal.

The release–by noting that SCOTUS is all done for the year, save waiting for final briefs, which are all due before Clement leaves on June 2–suggests Clement simply picked his departure based on the SCOTUS season. Though it’s not that different from the timing of Ted Olson, and he reportedly left because he was miffed that the Administration hadn’t shared some of the OLC opinions (given the timing, probably relating to torture) that Olson got stuck defending.

But consider these other events that, by leaving at the beginning of June, Clement will avoid any association with:

June 23: Hearing before Judge John Bates on Contempt for Harriet Miers and Josh Bolten

SCHEDULING ORDER: Plaintiff’s motion for partial summary judgment due by 4/10/2008. Defendants’ opposition thereto, along with any dispositive cross-motions, due by not later than 5/9/2008. Plaintiff’s reply in support of partial summary judgment, along with any opposition to the dispositive cross-motions, due by not later than 5/29/2008. Defendants’ reply in support of any dispositive cross-motions due by not later than 6/12/2008. Motion Hearing set for 6/23/2008 10:00 AM in Courtroom 8 before Judge John D. Bates. SEE TEXT OF THE ORDER FOR MORE DETAILS. SO ORDERED. Signed by Judge John D. Bates on 3/21/08. (lcjdb1) (Entered: 03/21/2008)

Normally, I wouldn’t think this hearing would be resignation-worthy. After all, John Bates tends to bend the law in favor of this Administration. He just told the Democrats to hold off (until June 24) on suits against McCain for breaking his own damn campaign finance laws. He’s the guy who dismissed the suit against Cheney’s Energy Task Force. And he’s the guy who dismissed the Wilsons’ suit against all the Administration officials who deliberately outed Valerie. So it’s not like Clement has to worry about a tough hearing (and he probably wouldn’t argue this one anyway).

But the Administration’s case for invoking privilege was based on a particularly specious Clement opinion.

Paul Clement, in his explanation of why BushCo could invoke executive privilege in the USA scandal, claimed that the President has "nondelegable Presidential power" "to nominate or to remove U.S. Attorneys." It’s a claim repeated (though in more humble form) by Fred Fielding in his invocation of executive privilege.

In the present setting, where the President’s authority to appoint and remove U.S. Attorneys is at stake, the institutional interest of the Executive Branch is very strong.

[snip]

Your letter does not dispute these principles.

[snip]

The letter does not challenge the exclusive character of the President’s appointment and removal power, nor does the letter attempt to establish a constitutional basis for the Committees’ inquiry into this matter.

Now, IANAL. But, particularly given Fielding’s retreat on this issue, I believe BushCo is on shaky ground on this issue and the Democrats really need to start pointing that out. After all, the Constitution itself disputes Clement’s and Fielding’s claims that Bush’s appointment power is non-delegable and exclusive.

but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

But don’t take my word for it. This whole scandal started when BushCo had Brett Tolman sneak a provision into the PATRIOT Act to take appointment power away from judges and give it to the AG. In other words, the history of this scandal itself proves Clement and Fielding’s claim to be false, because it proves Congress does have the authority to dictate how appointments are made (and BushCO didn’t make a squeak of complaint when Congress rearranged the appointment powers last year).

This kind of puts Clement in the realm of John Yoo-type hackery–arguments so bad that my sorry old NAL arse can poke big holes through them. This is probably not why Clement wants out before June–but you never know. It was a pretty crappy argument.

June 5: Khalid Sheikh Mohammed Shows Up for His First Show Trial Appearance

This date I find much much more likely to have caused Clement’s departure.

The chief judge of the Guantánamo Bay war court has set June 5 for the first court appearances of reputed 9/11 mastermind Khalid Sheik Mohammed and four alleged co-conspirators.

The judge, Marine Col. Ralph Kohlmann, notified military defense attorneys by email Wednesday afternoon that he would preside over the case himself. He scheduled arraignment of the five men at the U.S. Navy base in southeast Cuba.

That date is likely to precede a U.S. Supreme Court ruling on whether Guantánamo detainees are entitled to challenge their detention in civilian courts, expected in late June before the high court ends this year’s term.

Mind you, it’s not like Clement would have to go before the Show Trial to represent the government in this hearing, either. But if I were the kind of lawyer particularly attuned to how many things the President I worked for did that were illegal, I might want to have nothing to do with the Gitmo show trials.

Of course, I could be totally wrong. Perhaps Clement just wants to spend time with his family (though the press release thankfully spared us that sorry excuse).