There has already been a lot of very good commentary across the internets and media on the notable decision in the 9th Circuit this week in the case of Jose Padilla v. John Yoo. Although many, if not most, commenters seem outraged, the decision is, sadly, both predictable and expected. I also think Marcy had about the right, and appropriately snarky, take on the decision embodied in her post title “Jay Bybee’s Colleagues Say OLC Lawyers Couldn’t Know that Torture Was Torture in 2001-2003“. Yep, that is just about right.

As to the merits, Jonathan Hafetz, in a very tight post at Balkinization, hits every note I would urge is appropriate, and does so better than I probably could hope to. Go read Jonathan. Above and beyond that, I think Steve Vladeck’s analysis is spot on:

In other words, (1) it wasn’t clear from 2001-03 that CIDT “shocks the conscience”; (2) Padilla’s mistreatment was not as severe as prior cases in which courts had recognized a torture claim; (3) it therefore wasn’t clear whether Padilla’s mistreatment was torture or CIDT; (4) it therefore wasn’t clear that Padilla’s mistreatment “shocks the conscience.”

Thus, the panel’s approach is basically that the mistreatment here falls between conduct that prior courts (including the Ninth Circuit) had held to be torture and conduct that prior courts had held to be merely CIDT. Because Padilla’s mistreatment was less severe than prior examples of torture, and more severe than prior examples of CIDT, it’s just not “clear” on which side of the torture/CIDT line Padilla’s mistreatment falls… Of course, the fact that A > B > C proves nothing about where B is. And under Hope v. Pelzer, the question in qualified immunity cases is not whether the plaintiff can prove that the defendant’s conduct was at least as bad as something already acknowledged to be unlawful. As Justice Stevens explained, it isn’t the case that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Instead, “in the light of pre-existing law[,] the unlawfulness must be apparent.”

Perhaps the panel would have reached the same result had they not skipped these steps. But to my mind, these are fairly significant omissions…

Wheeler, Hafetz and Vladeck are all correct about the infirmities in the 9th Circuit’s version of Padilla (without even getting to the 4th Circuit’s version of Padilla, contained in Padilla/Lebron v. Rumsfeld).

At this point, arguing over key governmental personnel accountability, or lack thereof, is pretty much a bit of Walter Mitty fantasy; I am much more interested in the way the various Bush/Cheney war on terror cases have cemented an already present trend in American jurisprudence to restrict, if not outright block, access of litigants to courts. Jon Hafetz thinks the rule of law caught a break when the 9th didn’t reach the merits and weight of “special factors” preclusion of Bivens liability. And, sadly, that may be about right. There are two real issues that, while perhaps trending before the national security state set in after 911, jumped to warp speed after. Access preclusion and Bivens narrowing.

The first area, access preclusion, is demonstrated perfectly by the insidious effects of the twin opinions in Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal. Then House Judiciary Chairman Nadler said of the evil twin cases in a 2009 hearing:

In the past the rule had been, as the Supreme Court stated in Conley v. Gibson 50 years ago, that the pleading rules exist to ‘‘give the defendant fair notice of what the claim is and the grounds upon which it rests,’’ assuming provable facts. Now the Court has required that prior to discovery, courts must somehow assess the plausibility of the claim.

This rule will reward any defendant who succeeds in concealing evidence of wrongdoing, whether it is government officials who vio- late people’s rights, polluters who poison the drinking water, employers who engage in blatant discrimination, or anyone else who violates the law. Often evidence of wrongdoing is in the hands of the defendants, of the wrongdoers, and the facts necessary to prove a valid claim can only be ascertained through discovery.

The Iqbal decision will effectively slam shut the courthouse door on legitimate plaintiffs based on the judge’s take on the plausibility of a claim rather than on the actual evidence, which has not been put into court yet, or even discovered yet. This is another wholly inventive new rule overturning 50 years of precedent designed to close the courthouse doors. This, combined with tightened standing rules and cramped readings of existing remedies, implement this conservative Court’s apparent agenda to deny access to the courts to people victimized by corporate or government misconduct.
….
Rights without remedies are no rights at all. There is an ancient maxim of the law that says there is no right without a remedy. Americans must have access to the courts to vindicate their rights, and the concerted attempt by this Supreme Court to narrow the ability of plaintiffs to go into courts to vindicate their rights is something that must be reversed.

But it is not just Iqbal/Twombly barring the courthouse doors for plaintiffs seeking redress against the federal government, it is the concurrent narrowing of accessibility of claim under Bivens, more properly known as Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Against state level actors, there are claims available under 42 USC 1983, commonly known as Section 1983 litigation. But Section 1983 is only for claims against state actors under the color of law, and does not extend to claims against the federal government.

Since the federal government is “the sovereign” and the sovereign has immunity, the federal government cannot, generally, be sued without its permission. This is why the decision by Judge Vaughn Walker in al-Haramain that there was a cause of action available under FISA was so important; if the decision was otherwise, there would have been no other available avenue open for the plaintiff therein to sue and obtain relief. Walker ruled Congress had, indeed, granted “the permission” of the federal sovereign to be sued.

But, what if the most fundamental and sacred Constitutional rights are violated in a heinous manner, and there is no specific provision like Judge Walker found under FISA? This is where the implied right to sue under Bivens comes to bear (for a variety of reasons, and some very much to do with the narrowing of the Bivens remedy, the al-Haramain plaintiffs would not have been able to proceed under Bivens). And is exactly why the disdain for, and narrowing of, Bivens over the years by the ever more conservative Supreme Court is so troubling – and it is exactly what you see in the various Padilla opinions.

In spite of the fact he disagrees somewhat on what should be done as a solution, the scope of the problem is summed up very well by Professor Steve Vladeck:

…the consensus view has been that Iqbal is an unremarkable addition to a long line of Supreme Court decisions over the past quarter-century in which the Court has effectively limited Bivens to its facts—just another nail in a coffin long-since sealed.11 From that perspective, Iqbal is a small part of a much larger problem, the only real solution to which (other than a massive doctrinal shift) appears to be the creation of a statutory cause of action that would provide a rough equivalent to § 1983 relief13 for claims against federal officers.

Although Steve has different thoughts, I suggest that is precisely what is needed – Congress needs to specifically provide a designated avenue of access to courts so that plaintiffs, including ones in so called “national security” situations (think Jose Padilla, the AT&T/Hepting wiretapping plaintiffs and a host of others) can address their concerns and obtain redress for them. In short, accountability! It may be time to stop lamenting the failure of accountability for the wrongs occasioned by the Bush/Cheney regime and use them as leverage to an expanded path for court access and accountability in the future. The Roberts Court will never open this area up as was initially done by Justice Brennan during the Burger Court; the Roberts Court will only continue to narrow and eliminate access. In an election year, this is something that ought to be being specifically demanded of candidates for Congress, whether incumbent or otherwise.

All of which leads to the teaser I put in the post title, the hot off the presses case of Daniel Chong. From CBS News:

The Drug Enforcement Administration issued an apology Wednesday to a California student who was picked up during a drug raid and left in a holding cell for four days without food, water or access to a toilet.

DEA San Diego Acting Special Agent-In-Charge William R. Sherman said in a statement that he was troubled by the treatment of Daniel Chong and extended his “deepest apologies” to him.

The agency is investigating how its agents forgot about Chong.

Chong, 23, was never arrested, was not going to be charged with a crime and should have been released, said a law enforcement official who was briefed on the DEA case and spoke on the condition of anonymity.

The engineering student at the University of California, San Diego, told U-T San Diego that he drank his own urine to survive and that he bit into his glasses to break them and tried to use a shard to scratch “Sorry Mom” into his arm.

There is some evidence Chong was also handcuffed for the five days he was abandoned in the crypt of a holding cell he was in. Pretty darn close to what the US did to detainees under the “enhanced interrogation techniques”, more commonly known to rational humans as torture. In fact, if the concrete floor of Chong’s crypt of a holding cell at the DEA facility had been frozen, he would have effectively been Gul Rahman of the Salt Pit frozen infamy. Or, you know, Jose Padilla.

The similarity to the detainee torture was clearly not lost on Daniel Chong’s attorney, Eugene Iredale, who, in the already filed Statutory Notice of Claim, makes reference to The Detainee Treatment Act of 2005, The Military Commissions Act of 2006, and the Conventions Against Torture.

That is going to leave a serious mark.

But could Daniel Chong be cheeched out of court access like Jose Padilla and so many others have been? Could the dreaded Iqbal/Twombly and Bivens narrowing block his action? No, probably not.

Mr. Chong Has pled under the Federal Tort Claims Act in 28 USC 2671 et. seq, as well as Bivens, and his claims appear to be square in the wheelhouse of the provisions. While, like Jose Padilla, Chong is a citizen, unlike Padilla, Chong’s status cannot be impaired by craven designation as an enemy combatant terrorist. Recall, the 9th Circuit framed Padilla in this manner:

As we explain below, we reach this conclusion for two reasons. First, although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not “beyond debate” at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

Those concerns are simply not going to apply to Daniel Chong. It is hard to see how he will not either get an acceptable settlement, or his day in court. And, while punitive damages are not available under a straight Federal Tort Claims Act claim under 28 USC 2674, they are available under a Bivens Claim (see: Carlson v. Green, 446 U.S. 14 (1980)). In short, Mr. Chong has a heck of a claim and some decent legal leverage. For once.

For the foregoing reasons, Daniel Chong may have the most important and compelling tort case against the United States government in recent memory. He cannot be glibly chiseled out of court access like the terrorist torture plaintiffs but, yet, he otherwise stands in nearly identical damage shoes, both factually and in terms of his legal damage pleading. The government and DOJ cannot avoid this one, and it is going to set a stark contrast to exactly what they have been cravenly avoiding with “terrorist” and “national security” detainees.

The internet is a strange and wonderful thing. Just about everyone and everything in the world is on it, even though it is nothing but data in the form of binary computer code traversing by random electrons. Yet thought is crystalized, and friendships born and nurtured, through commonality of interest and purpose. And so it is here at Emptywheel, where many of us have been together since the days at The Next Hurrah, through years at Firedoglake, and now at our new home. Just because it germinates via the net does nothing to detract from the sense of community, friendship and admiration for each other gained over time.

With profound sadness, I report we have lost a true friend, and one of our longest tenured contributors, Mary. Mary Beth Perdue left us on Christmas Eve, December 24, 2011.

Mary Beth Perdue, 52, of Robards, KY, formally of Newburgh, passed away at her home.

She graduated Order of Coif from University of Kentucky Law School and from University of Evansville with an accounting degree. She was a member of the Indiana Bar Association. She was in house counsel at Mid-Central Land Services, Inc. and served as an attorney for firms in Indiana and Kentucky. She owned and operated the Horse and Hound (a pet supply store) in Newburgh. Mary was a lover of all animals with a special place in her heart for horses, dogs and cats. She was involved in numerous equestrian sports and organizations.

Here at Emptywheel, she was just Mary; and she was so much more than a simple obituary can convey. She was funny, kind, and, most of all, razor sharp in analysis of extremely complex issues surrounding torture, indefinite detention, international human rights, illegal wiretapping and executive branch overreach. Mary had a steel trap index in her mind for even obscure torture and rendition cases and facts. To the day she died, Mary was one of the very few people commenting in America that remembered, and would never miss a chance to point out, how the children and extended families of Khalid Sheikh Mohammed and Aafia Siddiqui were used and/or disappeared by the US as pawns in our immoral torture in the name of the so called “war on terror”. Mary’s dissection of Jack Goldsmith terrorist detention policy, complete with with a comparison to the Ox Bow Incident, was a thing of passion and beauty.

One of Mary’s favorite, and most important, hobby horses was the seminal case of Ex Parte Milligan, on which she beat the drum loudly long before the critical 2008 decision in Boumediene v. Bush and the 2009 release of the torture memos. She was, as usual, right. Here she is taking John Yoo apart at the seams over his intellectual duplicity regarding Ex Parte Milligan. And then there was Mary’s three part opus on the history and meaning of Ex Parte Milligan (Parts One, Two and Three), which is one of the best primers anywhere on the case that has finally come back into renewed significance in the critical issues of the war on terror. Mary played a part in keeping that significance alive, and in the discussion mix, until it took hold again.

Mary did not talk much about her real life family and work, and as another still practicing attorney, I can fully understand the maintenance of that separation. It is quite likely, like me, that her friends and family had little idea of the true depth and importance of her knowledge and dedication to the interests she expressed here, both in front page posts authored, and in her consistent critical contribution in the discussion comments. But, make no mistake, Mary was not just an invaluable contributor, and affected not just me and Marcy, but key players in the larger discussion. I know for a fact, because I talk to the different people and discussed it with them; Mary’s posts and comments were seen and known by actors from the ACLU, to EFF, to other think tanks and attorneys in the field. She left a mark.

As I said at the start of this post, the internet is a curious, if compelling and wonderful place; in all the furiously teeming milieu of people and issues, it is easy for one voice to not be missed for a brief time. All of us take time away every now and then, and Mary was no exception; often being scarce for a period due to pressing duties with work and her beloved horses and land.

I had not talked to Mary since a few days before Christmas. With the rush of the holidays, and a busy work schedule for me in January I have been a tad scarce myself and I had not particularly noticed Mary’s absence. A little over a week ago, I emailed her some irresistibly cute pictures of the one of a kind racehorse Rachel Alexandra and her new foal. Mary loved Rachel Alexandra. Realizing she had not responded to that catnip, I checked yesterday and found the terrible news. There are a lot of things Mary might be too busy with real life to respond to, but not that. And so life became a little less full and enjoyable. Mary’s family has indicated:

In lieu of flowers, memorial contributions may be made to a local humane society or other animal rescue.

And that would indeed be Mary, and fit her, to a tee. Here is a secure link to do so for the national Humane Society; but by all means, if so inclined, give to your local chapter and let them know it is for Mary.

Emptywheel will not be the same without Mary Beth Perdue, but her work and memory will live in our hearts, minds and archives as a testament to who and what she was and stood for. We shall close with the picture Mary never got the opportunity to see, but would have been the epitome of the horses, animals and children which she truly loved, Rachel Alexandra and foal.

Vaya con dios Mary, you will be missed.

Adam Goldman and Matt Apuzzo have a nice and fascinating article out today telling the story of a single CIA career analyst who was the critical cog in collating the information that led to Osama bin Laden’s capture and death:

He examined and re-examined every aspect of bin Laden’s life. How did he live while hiding in Sudan? With whom did he surround himself while living in Kandahar, Afghanistan? What would a bin Laden hideout look like today?

The CIA had a list of potential leads, associates and family members who might have access to bin Laden.

“Just keep working that list bit by bit,” one senior intelligence official recalls John telling his team. “He’s there somewhere. We’ll get there.”

Goldman and Apuzzo have done good work here; it is a great story, please read it in its entirety. But I want to play off their work to take it the step further that they did not. This is not just a feel good story about what worked and went right to capture bin Laden, it is an instructive primer on what didn’t work, to wit: torture.

So, while we congratulate CIA analyst “John”, let us also remember that years of effort, centuries of founding principles and an eternity of American morality was lost to the Bush/Cheney torture brigade. Ever since Osama bin Laden’s take down, the torture apologists have come out of their caves bleating at full voice in a vain attempt to justify their war crimes and save their face. Even yesterday, as the nation celebrated its founding, one of the most craven torture toadies of all, Marc Theissen, was back at it, saying the country owed the torture freaks an apology.

But torture is not what caught Osama bin Laden, good solid human intelligence and analysis were what did the trick.

That ability to spot the importance of seemingly insignificant details, to weave disparate strands of information into a meaningful story, gave him a particular knack for hunting terrorists.

Yes. Around here, we call that digging and trolling in the weeds. It is what works; not torture.

As most know by now, Charlie Savage at the New York Times let loose a stunning blockbuster of an expose of the conduct of Barack Obama and his inner circle in relation to the Libyan war vis a vis the War Powers Resolution:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Let’s be crystal clear as to what happened here: The Attorney General, Head of the Office of Legal Counsel and the General Counsel for the Pentagon/DOD all listened to Obama’s plan to flat out ignore the War Powers Resolution (50 U.S.C. 1541-1548), and the Article I power it represents, and they unanimously said it was untenable and illegal in the face of the War Powers Resolution.

Mr. Obama knows the War Powers Resolution exists, does not challenge its viability or Constitutionality and, against the direct opinion and advice of the three most germane attorneys in the United States Government, has just blithely and unilaterally blown it off. There are nine fairly short provisions in the statutory delineation of the “War Power Resolution” and, despite the yammering from the Administration and dithering by the press, they are actually remarkably clear in their intent and letter.

A criminal can nuance, excuse and rationalize himself around pretty much every statutory criminal provision, but society as a whole has no problem looking at the statute and seeing that there is offending conduct. And so it is here; Obama has thrown up sophistry, excuse and self indulgent rationalization. But any honest review of the WPR yields the unmistakable conclusion Obama is in direct violation, and has been from the outset. Congress has been crystal clear that they have NOT authorized the Libyan war participation.

Make no mistake, this is simply a stunning act of the most basic type of executive branch usurpation of power and illegal act that the Founders contemplated when they included the impeachment power and provision into the Constitution. As Alexander Hamilton stated in Federalist Paper Number 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

Whether or not there should be an impeachment investigation, or what the scope of such would be, is a discussion for another day and not the subject of the instant post. The point here is simply that the conduct we are discussing here is precisely the nature and type of which the Founders contemplated when adopting the separation of powers and impeachment provisions. Not to mention placing war making authority within the Article I scope of Congress.

The point here is that failure to at least have that discussion, and take a sober look at the facts at issue, and ourselves in the mirror, is to fail the Constitutional form of representative democracy we profess to love. It is to fail our basic duties as participatory citizens; it is to fail the nation.

Professor Jack Balkin gave an even handed, but truly damning at heart, analogy to the recent ills occasioned by the Bush/Cheney Administration:

It is instructive to compare President Obama’s actions with those of his predecessor, George W. Bush, who sought legal justification for his decision to engage in waterboarding and other “enhanced interrogation techniques,” which constituted torture. Bush wanted above all to be able to deny that he was violating the anti-torture statute and other laws and treaties. So he found a small group of lawyers in the OLC, headed by John Yoo, and asked for their opinions. This short-circuited the usual process through which the OLC collected views from various agencies and then used them to develop legal opinions for the executive branch. That is, Bush (assisted by his Vice-President, Dick Cheney) arranged matters so that decisions about waterboarding and enhanced interrogation techniques would be in the hands of lawyers he knew would tell him yes; the normal process of collating opinions was short-circuited and other lawyers were effectively frozen out.

Obama’s practice is different, but it has disturbing similarities. Normally, Obama would have asked the OLC for its opinion, and as noted above, the OLC would have polled legal expertise in various agencies, consulted its precedents, had long discussions, and then come up with a scholarly opinion that is normally binding on the executive branch. Instead, Obama routed around the OLC, asking for opinions from various lawyers, including the White House Counsel and the Attorney-Advisor for the State Department. It is difficult to escape the conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC.

Obama’s strategy, like Bush’s, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC’s function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC’s. If one is disturbed by Bush’s misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures

Ouch, that may leave a mark, as does the spot on discussion of OLC manipulation by Jack Goldsmith at Lawfare. And Glenn Greenwald at Salon makes a similarly compelling analogy of the Obama WPR conduct with the Constitutional crisis presented by the unconstitutional and illegal surveillance program of Bush Administration that blew up in the night of near legal mutiny of the “Ashcroft Hospital Incident”.

Balkin, Goldsmith and Greenwald are all correct to analogize and discuss the Obama WPR treachery in terms of the Bush/Cheney precedent. But, as much as I respect them and their discussion on this issue, I think all three sell the situation short. In a critical way. The Bush/Cheney precedent, whether as to the torture component or the surveillance component, involved an administration that twisted the law to suit their ends; but give the Bushies their due, at least they made the surface attempt at having the patina of a legal imprimatur. Obama has, on quite a different and much worse hand, arrogantly and belligerently, in your face and finger in your eye, violated an important existing law that he does not challenge the Constitutionality of. Obama thus admits the validity of the War Power law and in the same breath says with impunity that he is above it and not subject to it.

The War Power Resolution treachery on Obama’s part is actually materially worse than what the Bush brigade did. As Glenn said:

All that aside, what is undeniable is that Obama could have easily obtained Congressional approval for this war — just as Bush could have for his warrantless eavesdropping program — but consciously chose not to, even to the point of acting contrary to his own lawyers’ conclusions about what is illegal.

Other than the same hubris — and a desire to establish his power to act without constraints — it’s very hard to see what motivated this behavior. Whatever the motives are, it’s clear that he’s waging an illegal war, as his own Attorney General, OLC Chief and DoD General Counsel have told him.

Indeed, that is exactly where we are, and the most troubling aspect is there is no question whatsoever that Congress would have pliantly given Obama the requisite authorization sufficient to give at least nominal legal cover for the American participation in the Libyan hostilities. But, instead, Mr. Obama chose to arrogantly and belligerently usurp Article I power on what is likely the most fundamental and germane aspect underlying the separation of powers in the Constitution – how the nation goes to war and inflicts death on another nation’s citizens.

That is where we are today. I am sure laying it out in these terms will unleash the dogs of whine from fawning Obama acolytes and partisan hacks who blindly think only of partisan interest in the upcoming election. But those trifling concerns shrink in the face of the Congressional oath to protect and defend the Constitution and the corresponding duty and obligation on American citizens to demand and insure they do just that.

Without saying Obama should be impeached, failure to at least have the discussion made in those terms is dereliction of constitutional duty by people, pundits and Congress. This critical issue is not yet getting that kind of play, but it should as it is absolutely why the founders placed the provision in the Constitution to start with.

If our society and political discourse cannot seriously discuss impeachment for the type of executive perfidy demonstrated by Barack Obama in relation to Libya and the War Powers Resolution, and could not discuss it during the Bush/Cheney crimes, then the impeachment provision of the Constitution has no meaning and should be stricken.

Seriously, those are the stakes. A discussion, even an investigation, does not mean there has to be an impeachment conviction, or even that articles of impeachment should even be filed. But the discussion must be had if there is to continue to be integrity to the most fundamental terms and conditions of the United States Constitution.

James Risen reports that Glen Carle, a former CIA officer, says the Bush Administration was looking for dirt on Juan Cole in 2005. In one incident, Carle’s supervisor asked whether the CIA had anything on Cole.

Mr. Carle said that sometime that year, he was approached by his supervisor, David Low, about Professor Cole. Mr. Low and Mr. Carle have starkly different recollections of what happened. According to Mr. Carle, Mr. Low returned from a White House meeting one day and inquired who Juan Cole was, making clear that he wanted Mr. Carle to gather information on him. Mr. Carle recalled his boss saying, “The White House wants to get him.”

“ ‘What do you think we might know about him, or could find out that could discredit him?’ ” Mr. Low continued, according to Mr. Carle.

Mr. Carle said that he warned that it would be illegal to spy on Americans and refused to get involved, but that Mr. Low seemed to ignore him.

“But what might we know about him?” he said Mr. Low asked. “Does he drink? What are his views? Is he married?”

Then, several months later, a CIA analyst sought information about Cole again.

Several months after the initial incident, Mr. Carle said, a colleague on the National Intelligence Council asked him to look at an e-mail he had just received from a C.I.A. analyst. The analyst was seeking advice about an assignment from the executive assistant to the spy agency’s deputy director for intelligence, John A. Kringen, directing the analyst to collect information on Professor Cole.

Now, Risen connects these two incidents with successful right wing attempts to persuade Yale not to offer Cole a prestigious position.

Cole’s critics — in The New York Sun, National Review, The Wall Street Journal and elsewhere, several of whom are now praising Yale for not hiring him — have maintained that they aren’t using political tests, but object to Cole’s career on a variety of grounds. They point to numerous quotes he has made (generally in his blog) that they say show a willingness to blame the United States and Israel inappropriately (Cole has said that some of the quotes are taken out of context and that others represent legitimate opinion). Several have also criticized his scholarship, saying that he is spending too much time on blogging and questioning his output of serious scholarship. (His supporters point to a long publication list.) Campus Watch, a pro-Israel group, maintains a long list of articles about Cole, most of which it endorses for their criticism of him.

But the timing also happens to coincide with Juan Cole’s correct predictions that Ahmed Chalabi would not win the 2005 Iraqi elections. We know from AJ Rossmiller that the intelligence community made great efforts to ignore Cole’s predictions.

Chalabi won just .5% of the vote. Iyad Allawi, in whom the Administration also invested their hopes, won just 8% of the vote. And the Shiite coalition dominated by SCIRI and the Sadrists got 41% of the votes. In his book, Still Broken, AJ describes that he saw this coming.

After Iraq’s winter elections, the results validated the predictions contained in the paper I’d written in the fall. It created something of a stir because the paper turned out to be remarkably accurate, far more so than the forecasts of other agencies and departments. Before the election occurred, a high-ranking official requested a follow-up evaluation of our assessments, and I wrote a memo that described our precision. The memo made its way up through the chain, and a few days later the office got a note from Stephen Cambone, the Undersecretary of Defense for Intelligence, praising both the prediction and the self-evaluation.

Unfortunately, the bulk of the last half of AJ’s book describes how such accurate predictions are generally weeded out by higher-ranking analysts worried that their office’s work product might piss off the Administration.

[snip]

When AJ was asked how he got the 2005 election right, one of the things he pointed to, half-seriously, was the open source work of Juan Cole.

I began to write the explanation of our methodology, and I tried to resist the temptation to criticize other agencies while explaining how and why we did things differently. State, in particular, was very sensitive about their screwup, and I didn’t want to piss anybody off.

“Sir, can’t I just say that I copied and pasted Juan Cole?”

Now, I’m not suggesting that the White House was digging dirt on Juan Cole because he correctly predicted Ahmed Chalabi would get smoked in a democratic election.

But it’s probably worth noting what opinions Cole expressed that generated this attention in the first place.

Pow Wow left a comment, in response to me and Candace Gorman, on Marcy’s Gitmo Lawyers Information Gulag post that warrants highlighting and further comment. For convenience, here it is in full:

This is what bmaz and hcgorman @ 12 are referencing:

Two Guantanamo detainees, Fahmi Al-Assani and Suleiman Al-Nahdi, have moved the D.C. Circuit to dismiss their habeas appeals (Al-Assani’s motion is here, Al-Nahdi’s is here). Both men lost their district court habeas cases in decisions by Judge Gladys Kessler; the Al Assani decision is here, the Al-Nahdi decision is here. Both men appealed, and today, both men have given up their appeals as lost causes.

Their lawyer, Richard Murphy, explained in an email,

Judge Kessler denied our clients’ habeas petitions and we appealed to the D.C. Circuit, but then stayed the appeals pending the outcome of several [other Guantanamo habeas] cases in which [Supreme Court] cert petitions had been filed. Once cert [review] was denied [by the Supreme Court] in all of the relevant cases coming out of the D.C. Circuit it became clear that the appeals were futile. Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantanamo.

This development strikes me as a big deal–albeit a quiet one that won’t get a lot of press attention. […] – Benjamin Wittes, June 2, 2011

That grim assessment of the current posture of Guantanamo habeas petitions, which, for years, have been pending before federal judges serving in the Judicial Branch of the United States Government, was further illuminated and reinforced by this June 8, 2011 Benjamin Wittes post:

Habeas lawyer David Remes sent in the following comments on recent developments in D.C. Circuit case law. He emphasizes that he has been counsel in several of the cases discussed below and that the following represents his own opinion only:

I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.

Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.

The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court affirmed six of the eight government wins (al-Bihani, Awad, Barhoumi, al Odah, Esmail, Madhwani), remanding the other two (Bensayah, Warafi).

In two critical non-merits cases, the D.C. Circuit held in Kiyemba I and III that the district court cannot compel the government to release a detainee found to be unlawfully held; and in Kiyemba II, the court effectively barred the district court from enjoining the release of a detainee to a country where he fears he will be tortured. Because the Supreme Court denied review in both cases, only Congress can overrule them. Unless Congress removes from the Executive the discretion to decide whether to release a prevailing detainee, I don’t see what practical difference legislation making substantive or procedural improvements in Guantánamo habeas litigation can make.

* * *

The D.C. Circuit’s methodology is even more revealing. When a detainee prevails in district court, the D.C. Circuit fashions, if necessary, a rule that rationalizes reversal or remand. When a detainee loses in district court, the D.C. Circuit sometimes uses the appeal as an occasion to tilt the law even further against detainees.

For example, in al-Bihani (who lost in district court), Judge Brown appeared to accept the government’s contention that any guesthouse where an alleged al Qaeda member stayed is an “al Qaeda guesthouse,” and that any detainee who stayed at an “al-Qaeda guesthouse” is, ipso facto, a member or supporter of al-Qaeda. She implicitly excluded the possibility that a guesthouse can be used by al-Qaeda members and still be a public guesthouse.

In al-Adahi (who won in district court), Judge Randolph created the “conditional probability” test. Under this test, as Lyle Denniston distilled it (here), “each assertion is to be considered, not for what it says by itself, but how it might make the next assertion seem more solid, and so on, so that the overall weight adds up to enough to support detention.” Citing Judge Silberman’s concurrence in Esmail, Steve Vladeck has suggested (here) that the test, in effect, reduces the “preponderance” standard to a “some evidence” standard.

Or consider Uthman (who won in district court). In earlier cases, including al-Adahi, the D.C. Circuit criticized district court judges for taking an “unduly atomized” approach to the evidence when ruling for detainees, and instructed them to consider “all of the evidence” as a whole. Judge Kennedy did precisely that in granting Uthman’s petition. On appeal, however, Judge Kavanaugh cherry-picked the government’s evidence and tossed aside Uthman’s, reversing the district court and finding Uthman lawfully held.

In Mahdwani (who lost in district court), Judge Henderson treated as “strong evidence” of culpability the fact that a detainee gave an exculpatory account of events that the district court does not credit. This conclusion isn’t logical or fair. There could be any number of reasons a detainee offered an exculpability account. Ironically, a detainee who says nothing is better off than a detainee who offers an account of the facts that the district court doesn’t credit.

***

Two factors appear to animate the D.C. Circuit’s apparent determination to rule against detainees. The first, exemplified by Judges Randolph and Silberman, is unabashed hostility to Boumediene. They have made quite clear that that they think Boumediene was wrongly decided, and Judge Randolph, in particular, takes every opportunity to undermine it. […]

– David Remes, 6/8/11

[Subsequent to this summary by Remes, the D.C. Circuit (i.e, a three-member appellate panel of Silberman, Kavanaugh and Rogers) handed down, on June 10th, its thirteenth Guantanamo habeas merits decision, in Almerfedi – reversing, of course, a writ of habeas corpus that had been granted – i.e., that had nominally ordered the release of the prisoner Almerfedi, because he had been unlawfully detained without proof that he was an armed conflict “enemy combatant” – by a district court trial judge. -pow wow]

What was that fancy rhetoric, again, that Supreme Court Justice Stephen Breyer was recently heard delivering outside the Court? Oh, right – from the emptywheel-linked Morris Davis commentary “Torture: Finding Our Moral Compass”:

Justice Stephen Breyer spoke on the theme of justice and accountability at the 2011 Day of Remembrance at the U.S. Holocaust Memorial Museum. He said, “we need only look around today’s world to understand that rights, rules, the obligations that the law sets forth; all of them are no more powerful than the human will to enforce them.“

How can you “call the balls and strikes,” Chief Justice Roberts & Company, when you refuse to work the game?

[David Remes, as emptywheel highlights and Charlie Savage indicates in the linked article, is the detainee lawyer (as opposed to “defense” lawyer, in this habeas corpus case) who forced the government’s hand, to the extent described by Candace @ 5, on the verboten WikiLeaked Guantanamo documents. Despite, to date, no help – as I noted (with a lot of other detail) in emptywheel’s April thread – from Judge Paul Friedman, who, since April, has uncomplainingly granted government requests for three consecutive extensions of time for the filing of its response (originally ordered due on May 11, in the “ordinary course” of the rules, but not submitted until yesterday, June 10) to the “emergency” motion that Remes had filed with Judge Friedman on behalf of his Guantanamo habeas client on April 27.]

Yes. Quite unfortunately, that is exactly right. First, let me say thanks to Pow Wow who here, as is so often the case, has taken the time to not just share superb knowledge and understanding, but made the effort to cite and explain exactly what is going on in detail. This is especially cool after I have basically done a sardonic hit and run comment as I had in Marcy’s post.

To add on to Pow Wow’s explication a bit, let me add a couple of things. First off, the two substantive quotes from Ben Wittes are spot on. This, in and of itself, is notable in that Ben is, by no stretch of the imagination, any dirty fucking hippy liberal as the proprietor of this blog and I somewhat proudly admit to mostly being. Ben is pretty conservative and is a key member of the Brookings Institute. His blog partner at Lawfare is Jack Goldsmith. In short, he certainly is no weak kneed French torture apologist as they say. So when Wittes is saying those things in complete agreement with me, Pow Wow, Marcy and the general skurvy radicals known to frequent this establishment, well, it is pretty telling. And damning.

Secondly, Al-Assani and Al-Nahdi did not lose after exhausting all levels of putative remedy, they just quit because the effort at justice was useless and a waste of what human energy and force they had left. Their resistance was futile and not only they but, very notably, their attorneys, knew it. Even Martin Luther King had at least the dream that justice would overcome; detainees Al-Assani and Al-Nahdi did not even reasonably have that. As Habeas Corpus is pretty much not just the “Great Writ”, but indeed the linch pin and foundation on which every ounce and fiber of Anglo in general, and American in specific, rule of law is founded, this is simply a mind numbing and stunning thing.

Seriously. If human beings have no viable Habeas Corpus remedy in a country, then that country exists in an immoral void outside of any known understanding of the concept of “the rule of law”.

Third, I would like to highlight just exactly who has decreed this fundamental gutting of everything the United States of America is supposed to stand for, and was founded upon. It was not, as Pow Wow appropriately notes, the august robes of final judgment at the Supreme Court. No, the Supremes have indeed, like Pilates of modern justice, washed their hands of the critical murder. Notably, not even Anthony Kennedy, who authored Boumediene, voted in favor of accepting certiorari and defending his seminal, and critical, decision. But the Kiyemba III abdication was simply the crowning coup de grace. Instead, despite the early work on detainee litigation, and notably Habeas claims, which culminated in the groundbreaking, and somewhat refreshing, Boumediene decision penned by Tony Kennedy, the Supremes have abdicated their throne and left the law to the uniquely questionable discretion of the DC Circuit.

Did I mention just exactly who the judges at the DC Circuit, that have made the current sad and tragic law, is notable?? Look no further than Pow Wow’s comment. We have the smooth stylings of none other than Janice Rogers Brown, Lawrence Silberman and a chap who was actually an active part of the Bush/Cheney torture brigade prior to being elevated to the court, Brett Kavanagh. It would be impossible, even in the wildest Salvador Dali dream, to conjure up three judges more unsuitable for the task of deciding the viability, indeed existence, of Habeas Corpus in these circumstances.

And, make no mistake, what happens in the supposedly distinct and discreet realm of “detainee law” can, and absolutely will, eventually bleed into standard criminal law as we know it. Regular citizens do not want to believe that, and will poo poo the thought; lawyers that ply the halls of high grade criminal law not only think it, they know it for a fact in their bones. The Fourth Amendment, Due Process and Fundamental Fairness only travel in one direction, and it is not the enlightened, proper and just direction.

When our children ask in the future how the Great Writ of Habeas Corpus, the foundation of law, died, this is the time and this is the answer.

[UPDATE: Bloch was sentenced to one month prison, one year probation and 200 hours of community service. His attorney indicated they will appeal, which could be interesting since the plea appears to, on its face, disallow appeal. And the saga of Scott the Blochhead rambles on…..]

Since mid-February an important, but little noticed, criminal case has been playing out in DC District court in which former Bush/Cheney administration Special Counsel Scott Bloch is charged with criminal contempt of Congress pursuant to 2 USC 192. As I summarized in an earlier post:

As you will recall, former former Bush/Cheney Administration Special Counsel Scott Bloch destroyed evidence by wiping government computers clean, lied to Congress about it and conspired with the DOJ to minimize the conduct and slough it off with a sweetheart plea deal. Then, outrageously, when the court indicated it was inclined to impose the mandatory minimum month in jail, which was mandated by the statute Bloch pled guilty to, Bloch and the DOJ conspired to get the plea, which had already been accepted and entered by the court, withdrawn.

When Bloch and DOJ both worked together to get the plea withdrawn, and frustrate justice, the egregious nature of the attempt was documented here in a fully argued and supported post published on Tuesday March 1, 2011. Subsequent to that post, the court also found questions with the attempt to withdraw the plea and ordered Bloch to file a reply supporting the attempt.

At the previous date set for sentencing, on March 14, the court gave Bloch one last shot to brief his way out of the hole he dug for himself and ordered a tight briefing schedule therefore. Bloch filed his Motion for Reconsideration on March 14, The government filed their response, again colluding with Bloch, on March 17, and Bloch filed his reply on March 23.

Late yesterday afternoon, Judge Deborah Robinson ruled on Bloch’s latest attempt to get out of the mandatory incarceration sentence he pled guilty to, and entered her order denying his motion. The court fairly well blasted Bloch’s whining attempt to withdraw and, by extension, the continued craven collusion by the government in said attempt.

First the court gutted the claimed ability of Bloch to have a motion for reconsideration entertained on the merits at all:

In sum, while judges of this court have, on occasion, entertained motions for reconsideration of interlocutory orders in criminal cases, no Federal Rule of Criminal Procedure, or Local Criminal Rule of the United States District Court for the District of Columbia, provides for such motions. The undersigned finds that although the pending motion is styled a “Motion to Reconsider[,]” it is effectively an effort “[to] rehash[] previously rejected arguments” regarding both the finding that the offense to which Defendant pled guilty carries a mandatory minimum sentence, and the order denying Defendant’s motion to withdraw his guilty plea.

Undoubtedly Judge Robinson, recognizing the significance of Bloch’s case to both the Executive Branch and Congress, not to mention the defendant himself, wanted to give Bloch every opportunity to make his record. But when decision day came, she followed the law and properly noted the procedural disfavor of such motions as Bloch was proffering. It was smart of Robinson, however, to let Bloch play out the string before so ruling.

And then the court got to the factual merits of Bloch’s argument. To say that the court found no merit in this regard is somewhat of an understatement:

The court finds that Defendant has failed to show that the court “made an error in failing to consider controlling decisions or data[.]” Defendant blithely proclaims that the court “fail[ed] to discuss in its Memorandum Opinion – or even mention – the only two prosecutions in the past twenty years which proceeded under 2 U.S.C. § 192: United States v. Miguel O. Tejada, Cr. 09- mj-077-01, and United States v. Elliot Abrams, Cr.-91-575 (AER)[]” (see Defendant’s Motion for Reconsideration at 4). However, Defendant’s proclamation is belied by the record: the court has, in fact, considered both of those prosecutions

….

The court finds that Defendant’s claim that “the Plea Agreement contemplated eligibility for probation” (Defendant’s Motion for Reconsideration at 4) is equally specious. No such provision is included in the plea agreement; moreover, Defendant “acknowledge[d] that [his] entry of a guilty plea to the charged offense authorizes the sentencing court to impose any sentence, up to and including the statutory maximum sentence, which may be greater than the applicable Guidelines range.”

…..

Finally, the proffer of the advice of counsel, offered, for the first time, through the affidavit of one of the lawyers who represented Defendant (see Affidavit of Ryan R. Sparacino, Esq. (“Sparacino Affidavit”) (Document No. 49-1)), is of no moment.

…..

To the extent which the affidavit of counsel has probative value at all in this context, it is that it serves to highlight the court’s finding that Defendant was aware that the offense to which he pled guilty was one for which a mandatory minimum sentence was provided.

….

Counsel’s advice that the court was not likely to impose the mandatory minimum sentence simply because two other judges apparently had not done so is not

germane to any issue now before the court.

Ouch. That’s going to leave a mark. And that mark should be on the DOJ and its assigned attorney in this case, Glenn Leon, as well. It was nothing short of a craven attempt by the Obama DOJ to collude with a defendant to escape punishment because the administration does not want to have a precedent that – gasp – Executive Branch officials that lie to and are otherwise in contempt of Congress could be sent to prison. Good bet Mr. Tim Geithner is paying close attention to this ruling.

At any rate, Scott Bloch will be sentenced by Judge Robinson on his guilty plea conviction today at 4:00 pm EDT. Bloch will be sentenced to at least one month of prison. He should be sentenced to the full six months that are the upper end of the sentencing guidelines range for his plea, but it is unlikely, under the circumstances, the court will impose more than the mandatory one month.

As you will recall, former former Bush/Cheney Administration Special Counsel Scott Bloch destroyed evidence by wiping government computers clean, lied to Congress about it and conspired with the DOJ to minimize the conduct and slough it off with a sweetheart plea deal. Then, outrageously, when the court indicated it was inclined to impose the mandatory minimum month in jail, which was mandated by the statute Bloch pled guilty to, Bloch and the DOJ conspired to get the plea, which had already been accepted and entered by the court, withdrawn.

When Bloch and DOJ both worked together to get the plea withdrawn, and frustrate justice, the egregious nature of the attempt was documented here in a fully argued and supported post published on Tuesday March 1, 2011. Subsequent to that post, the court also found questions with the attempt to withdraw the plea and ordered Bloch to file a reply supporting the attempt.

Seeing the specious nature of Bloch’s reply filed on March 3, 2011, the Emptywheel blog got involved and initiated a formal filing with the court. We combined much of the material from the previous blog post on March 1 with new argument directly responsive to Bloch’s Reply, and additional general argument, into a formal sentencing recommendation and filed it with the court. The document was lodged on March 4.

Late last night, after consideration of the various pleadings related to the attempt to withdraw Bloch’s plea, the court filed its decision on PACER. Scott Bloch’s motion to withdraw from his plea, despite the collusive help from the DOJ, is DENIED!

For all of the foregoing reasons, the court finds that Defendant, at the time he pled guilty to a violation of 2 U.S.C. § 192, was well aware that he could have been sentenced to a period of incarceration of up to one year. His assertion, through his affidavit, that he would not have pled guilty had he “been informed” that he would not receive probation is, simply put, not entitled to credence. This court–like the Circuit, when confronted with a comparable contradiction between the defendant’s answers under oath during the Rule 11 colloquy and the affidavit in support of his motion – finds that “[Defendant’s] argument – if not his affidavit – amounts to a claim that the defect in the taking of the plea consisted of his committing perjury, when, under oath, he acknowledged the truth of the factual recitals in the plea agreement and in the government’s proffer. Lying to a court is not a ‘fair and just reason,’ Fed.R.Crim.P. 11(d)(2)(B), for allowing a plea to be withdrawn.” (emphasis added)

The entire ruling by the court is 20 pages long and takes apart every argument Bloch makes limb by limb. As it should have been. Perhaps the best line of Judge Robinson’s decision, and a point we argued strongly, is:

Confidence in the fair and orderly administration of justice is undermined by the suggestion that the court should participate in a process by which a sentence is first determined by Defendant and the government, and then an offense expected to guarantee such sentence is alleged.

Boy, the court sure got that right. Not to mention that confidence in fair and honest government is undermined when the DOJ is willing to not prosecute and/or minimize clear crimes committed by other Executive Branch officers. They tried to soft walk Scott Bloch out of this, and it is still awfully small punishment considering Bloch’s crimes, but at least they did not get away with further obfuscation and frustration of justice. Now let’s get the Obama DOJ to get some more prosecutions for all the other egregious Executive Branch crimes of the previous administration going. It is about time.

Bloch’s sentencing is set for this afternoon at 2:30 pm at the E. Barrett Prettyman Federal Courthouse.

As you will recall, Scott Bloch is the senior governmental attorney who formerly served as head of the United States Office of Special Counsel:

The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency. Our basic authorities come from four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA).

In short, it is an unique, but quite important, entity in the federal government, and is entrusted with protecting the sanctity of whistleblowers, who are one of the last checks on an increasingly imperious federal government, and especially the Executive Branch thereof. Mr. Bloch refused to do his job appropriately under the Bush/Cheney Administration and, when members of his own staff, including attorneys, attempted to blow the whistle on Bloch, the man entrusted with protecting whistleblowers unconscionably retaliated against them and blatantly destroyed governmental property and statutorily protected electronic files evidencing his acts.

Once informed of the questionable, inappropriate and/or patently illegal acts by Bloch, the Chairman and Ranking Member of the House Oversight Committee instigated a formal Congressional investigation of Bloch. On March 4, 2008, in the course of formal interviews with Oversight Committee staff, Bloch withheld critical information and lied. (See Bloch’s signed Stipulation of Facts dated 4/27/2010). Bloch entered into a plea agreement with the government and has been awaiting sentencing by Magistrate Judge Deborah Robinson of the District of Columbia District Court.

As Marcy Wheeler and I previously explained, the Obama Department of Justice is furiously colluding with the defendant they are supposed to be prosecuting, Scott Bloch, to ensure that he never does a day in jail for his crimes, and there appears to be no credible reason they are doing so:

The Department of Justice has literally teamed up with Scott Bloch-who previously plead guilty to blowing off Congress–to try to help him avoid any jail time, at any cost to credibility, for that crime. The extent of this collusion first became apparent in a ruling dated February 2, 2011 by Federal Magistrate Judge Deborah Robinson, who is handling the matter.

…

Now, there’s more than a chance that what is going on here is DOJ scrambling to prevent Bloch from doing jail time because they–part of the Executive Branch–like it that people like Alberto Gonzales, Monica Goodling and John Yoo have managed to avoid almost all Congressional oversight. And, now with Darrell Issa cranking up the not-so-way back investigatory machine, they really do not want a precedent made that executive branch officials who lie to Congress have to – gasp – actually serve jail time.

…

Then, the willingness of the government prosecutors to fight to keep the criminal Bloch from serving one lousy second in jail goes from the absurd to the ridiculous. A mere four days after having filed the whiny Motion to Reconsider, and before it was substantively ruled on, the government, by and through the ever ethical DOJ, suddenly files a pleading encaptioned “Governments Motion To Withdraw Its Motion To Reconsider The Court’s February 2, 2011 Memorandum Opinion“. In this pleading, the government suddenly, and literally, admits their February 2 Motion to Reconsider was without merit.

The foregoing is the background that brings us to where we are today, with a DOJ unconscionably, and with at least questionable ethics, literally fighting tooth and nail to help Scott Bloch get out of his pleas deal because he might actually have to serve 30 days in jail for his crimes. What, as the remainder of this article, and argument to the court, will delineate is that there is no merit to the attempted withdrawal and, incredibly, both Bloch and the DOJ entered into written covenants that they would not attempt to do so. For the reasons described below, Judge Robinson should deny Mr. Bloch’s motion to withdraw, and the craven DOJ joinder therein, and sentence Mr. Bloch pursuant to the plea and in accordance with her finding and inclination stated in her February 2, 2011 Memorandum Opinion.

I. The Mandatory Minimum Is In The Statute Itself

Defendant Bloch cites and argues Federal Rules of Criminal Procedure (FRCrP) Rule 11(b)(1)(I) for the proposition he should be allowed to withdraw from his plea because the court did not explain, and he did not understand, there was a minimum mandatory sentence of one month in jail.

This is a specious and meritless argument. The existence of the mandatory month in jail is not the creature of some arcane and separate sentencing provision or the result of the confusing federal sentencing guidelines or some other hard to grasp source. No, the requirement of one month incarceration is directly and specifically in the the statutory crime Mr. Bloch pled guilty to under 2 USC 192:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. (emphasis added)

For Mr. Bloch to say he did not know of the mandatory incarceration provision, and that the court did not advise him, defies both clear logic and complete credibility. At the April 27, 2010 plea proceeding in front of the court, under oath and on the record, Defendant Bloch stated definitively and unequivocally that he knew, had read, been briefed by competent counsel and understood completely the charge he was pleading guilty to. Bloch, his attorney and the prosecuting AUSA in charge of the case for the DOJ, Mr. Glen Leon, avowed to the court there was no impairment and no reason whatsoever Bloch did not know what he was doing and could not knowingly enter into the plea. (See Plea Hearing Transcript, Exhibit 1 to Bloch Motion to Withdraw).

The following pertinent portions of the plea proceeding apply:

THE COURT: Do you understand the charge that is alleged in the Information?

THE DEFENDANT: I do, Your Honor.

…..

THE COURT: Has anyone promised you what sentence will actually be imposed?

THE DEFENDANT: No one has promised me that, Your Honor.

…..

THE COURT: Do you know that if the sentence is more severe than you now expect it will be, that you are still bound by your plea, and that you will not be permitted to withdraw your plea for that reason?

THE DEFENDANT: I understand that, Your

Honor.

THE COURT: Do you understand, sir, that parole in the federal system has been abolished, so that if you are sentenced to a period of incarceration, you will not be released early on parole?

THE DEFENDANT: I believe I do understand that, Your Honor. Yes.

THE COURT: Do you need more time to discuss any of the questions I just asked, or any of your own questions about sentencing, with your lawyers before we continue?

THE DEFENDANT: No, I do not, Your Honor

Defendant Bloch repeatedly, under oath, swore he understood the charge, knew the penalties associated with the charge, knew the final sentence was in the Court’s discretion and there was even discussion on the record about the potential for a sentence of incarceration and the temporary provision of pre sentence release. The plea agreement itself specified:

Your client agrees to plead guilty to a one-count Information, a copy of which is attached, which charges a misdemeanor violation of 2 U.S.C. 192 (Criminal Contempt of Congress).

The record is crystal clear. Mr. Bloch himself is an experienced attorney and had the assistance of extremely gifted retained counsel (not just one, but a battery of them). There was no ambiguity as to the offense Defendant Bloch was pleading guilty to. The minimum one month incarceration period is clear as day and directly specified in the elements and body of the criminal statute, 2 USC 192, Bloch pled guilty to.

Further, as the citation to United States v. Padilla, 23 F.3d 1220, 1222 (7th Cir. 1994) in Defendant Bloch’s own motion delineates, “The relevant inquiry must center upon what the defendant actually knows when he pleads guilty.” Well, in the instant case, Defendant Bloch swore under oath and penalty of perjury that he knew exactly the criminal provision he was pleading guilty to, and what he now disingenuously claims ignorance to is in that statute, in glaring black and white, for the world to see. Mr. Bloch’s sudden claim of ignorance is dishonest, in bad faith and does not constitute just cause for withdrawal.

Rule 11(d) specifies that once a plea has been accepted on the record by the court, which is the case here, withdrawal by a defendant can only occur where the court rejects the plea or where “a fair and just” basis is established. Neither circumstance applies in the case of Mr. Bloch.

II. It Was Not A “Probation Plea” and the Terms and Conditions Forbid Withdrawal

The nature and tenor of Defendant Bloch’s motion to withdraw effectively presents a defendant who entered into a probation only plea and is shocked, shocked that he may actually serve some minimal jail time. Yet the plea was not a “probation plea”, and the parties, court, Mr. Bloch, the plea agreement letter and the plea proceeding were all crystal clear that incarceration, within the contemplation of the statute and relevant guidelines, was quite possible, and that Bloch would not be permitted to withdraw if that was the case so long as the sentence was within guidelines.

The plea agreement letter provides in pertinent parts:

The parties further agree that a sentence within the Stipulated Guidelines Range would constitute a reasonable sentence in light of all the factors set forth in 18 USC 3553(a). In addition, neither party will seek a sentence outside of the Stipulated Guidelines Range or suggest that the Court consider a sentence outside the Stipulated Guidelines Range.

….

It is understood that the sentence to be imposed on your client is determined solely by the Court. It is understood that the Sentencing Guidelines are not binding on the Court. Your client acknowledges that your client’s entry of a guilty plea to the charged offense authorizes the sentencing Court to impose any sentence, up to and including the statutory maximum sentence, which may be greater than the applicable Guidelines range. The Government cannot, and does not, make any promise or representation as to what sentence your client will receive. Moreover, it is understood that your client will have no right to withdraw your client’s plea of guilty should the Court impose a sentence outside the Guidelines range. (emphasis added)

The net result of the above stipulation, made both in the plea agreement letter dated April 19, 2010, and confirmed and further established in the plea proceeding in open court on April 27, 2010, is that Defendant Bloch made a deal in which he

(a) agreed not to contest a guidelines sentence imposed by the Court,

(b) waived his right to withdraw his plea so long as the Court sentenced legally, and

(c) waived the non-admissability of his allocution under FRCrP Rule 11(f).

The plea document literally stipulated:

It is further agreed that any sentence within the Stipulated Guidelines Range is reasonable.

in conjunction with both parties waiving any appeal rights.

Defendant Bloch entered into a plea agreement, and stood before the court to confirm it, that gave him a sweetheart deal to a misdemeanor crime with liberal and favorable further stipulations that he would be classified under the lowest available sentencing guidelines for calculation and imposition of his sentence. He swore he would not seek to withdraw, and the Court instructed him there would be no such withdrawal permitted so long as he was treated within the parameters of his plea. The proposed sentence indicated by the Court in its February 2, 2011 Memorandum Opinion is more than within those constricts. Mr. Bloch’s plea does not permit the action he, and the collusive government, now seek.

Conclusion

The number and quality of felony crimes Bloch could have been, and should have been, charged with are staggering; including obstruction of justice, false statements, perjury, willful destruction of government property and Federal Records Act violations. But Defendant Bloch made a deal to plead to one little misdemeanor with the guarantee he would be considered under the most favorable sentencing guideline conditions imaginable. And, in return for this staggeringly kit gloved treatment, both Bloch and the government swore and promised not to withdraw or appeal. Yet, here they both are in front of this Court seeking to do just that. It is scandalous and should not be permitted by the Court. But there is much more to this case than just that.

It is the duty of the federal court system to provide fair and impartial justice to those before it and to stand as one of the three co-equal branches of government with a solemn duty to protect the sanctity of the government and see that justice is done not just for the powerful and privileged, but for all. For a misdemeanor plea case, there are powerful and critical factors involved in the instant case that warrant consideration by the Court. Central is the question of whether there is now, and will be in the future, meaningful accountability for Executive Branch officials as to the crimes they commit in office and in the peoples’ names.

As described at the start of this essay, our government and constitutional rule of law fails if Executive Branch officials can lie and destroy material evidence, not only to shield themselves from accountability, but to mask their efforts to deny legitimate governmental whistleblowers the light of day with which to inform and protect the public. It is truly that fundamental. And when you then compound the problem with fellow Executive Branch attorneys and officials colluding to minimize the crimes and frustrate even the minimum statutory punishment, the issue, and thus the case of Mr. Bloch, becomes of immense importance.

This Court, in its February 2, 2011 Memorandum Order, noted:

Thus Congress’s intent was to make the penalty for violating the statute punitive. See Russell v. United States, 369 U.S. 749, 755 (1962) (“In enacting the criminal statute . . . Congress invoked the aid of the federal judicial system in protecting itself against contumacious conduct.”) (quoting Watkins, 354 U.S. at 207). With respect to sentencing, the statute, as enacted in 1857, provided that “on conviction,” a person “shall” pay a fine and “suffer imprisonment in the common jail not less than one month nor more than twelve months.” Act of January 24, 1857, ch. 19, 11 Stat. 155 (emphasis supplied).

These words and opinion are exactly why this Court should deny Defendant Bloch’s motion to withdraw and sentence him as previously contemplated. It is literally the least he deserves. As the Court stated, the federal judiciary has a duty, in conjunction with Congress, to protect against contumacious conduct. This Court should fulfill that duty, stand for the people and rule of law, and send a message to Mr. Bloch and subsequent Executive Branch officials that there is a penalty for criminal behavior in obstruction and contempt of Congress, and that it will be enforced.

This is getting ridiculous.

The Department of Justice has literally teamed up with Scott Bloch-who previously plead guilty to blowing off Congress–to try to help him avoid any jail time, at any cost to credibility, for that crime. The extent of this collusion first became apparent in a ruling dated February 2, 2011 by Federal Magistrate Judge Deborah Robinson, who is handling the matter.

In a nice touch, DOJ cited the case of Elliott Abrams–a quintessential example of lack of accountability–for their argument that lying to Congress didn’t require jail time. And why not? He’s among the many criminals Obama now regularly takes advice from.

Now, there’s more than a chance that what is going on here is DOJ scrambling to prevent Bloch from doing jail time because they–part of the Executive Branch–like it that people like Alberto Gonzales, Monica Goodling and John Yoo have managed to avoid almost all Congressional oversight. And, now with Darrell Issa cranking up the not-so-way back investigatory machine, they really do not want a precedent made that executive branch officials who lie to Congress have to – gasp – actually serve jail time. In spite of the fact that is exactly what the law clearly specifies on its face. Again, from Judge Robinson:

In 1857, Congress enacted a statutory criminal contempt procedure, largely in response to a proceeding in the House of Representatives that year. CRS Report RL34114, Congress’s Contempt Power: A Sketch, by Morton Rosenberg and Todd B. Tatelman at 7. In the enactment, Congress provided for trial of the contemnor before a court, rather than a trial at the bar of the House or Senate. Id. “It is clear from the floor debates and the subsequent practice of both Houses that the legislation was intended as an alternative to the inherent contempt procedure, not as a substitute for it.” Id. (emphasis supplied). In a discussion of the legislative history of the statute, the Supreme Court observed that “[t]his statute was passed . . . as a direct result of an incident which caused the Congress to feel that it needed more severe sanctions to compel disclosures than were available in the historical procedure of summoning the . . . witness before the bar of either House of Congress . . .” Watkins v. United States, 354 U.S. 178, 207 n.45 (1957) (emphasis supplied). Thus, Congress’s intent was to make the penalty for violating the statute punitive. See Russell v. United States, 369 U.S. 749, 755 (1962) (“In enacting the criminal statute . . . Congress invoked the aid of the federal judicial system in protecting itself against contumacious conduct.”) (quoting Watkins, 354 U.S. at 207). With respect to sentencing, the statute, as enacted in 1857, provided that “on conviction,” a person “shall” pay a fine and “suffer imprisonment in the common jail not less than one month nor more than twelve months.” Act of January 24, 1857, ch. 19, 11 Stat. 155 (emphasis

supplied).

But avoiding this crystal clear statutory mandate would be utterly consistent with one of the first things the Obama Administration did after taking office–negotiate  a deal between Karl Rove and the House Judiciary Committee that required Rove to testify but prevented HJC from arguing their case to the District of Columbia Circuit–which would likely have set a binding precedent requiring the Executive to testify before Congress. Just can’t have that.

But given the record of this Administration–from the mantra of “look forward” to the refusal to charge Dick Cheney for illegal wiretapping Americans to the refusal to charge Jose Rodriguez for destroying evidence of torture–I think it’s just that they refuse to send an official–one of their own–to jail. They cannot uphold the law, because the law might be upheld against them.

So, back to I guess he won’t see a cell Bloch Scott. Is DOJ really saying that a guy who wiped his hard drive shouldn’t go to jail? Yes, and they are willing to fight for him and with him to see that such is indeed the case. First the government filed a Motion to Reconsider dated February 7, 2011 regarding Judge Robinson’s 2/2/2011 ruling discussed and linked above. The Motion to Reconsider was basically five pages of whining that there was compelling authority to the effect the criminal they were prosecuting did NOT have to serve jail time. Yes, that is one hell of a strange argument for government prosecutors to be making.

Then, the willingness of the government prosecutors to fight to keep the criminal Bloch from serving one lousy second in jail goes from the absurd to the ridiculous. A mere four days after having filed the whiny Motion to Reconsider, and before it was substantively ruled on, the government, by and through the ever ethical DOJ, suddenly files a pleading encaptioned “Governments Motion To Withdraw Its Motion To Reconsider The Court’s February 2, 2011 Memorandum Opinion“. In this pleading, the government suddenly, and literally, admits their February 2 Motion to Reconsider was without merit.

As if withdrawing their motion with an admission they were full of manure was not strange enough, then the clincher is injected. The DOJ slides the following in as a footnote at the end:

In light of this Court’s ruling that 2 U.S.C. § 192 requires a minimum penalty of one month’s incarceration, defense counsel has informed the government that the defendant intends to file a motion to withdraw his guilty plea in this case, on the ground that plea colloquy did not satisfy the requirement of Federal Rule of Criminal Procedure 11(b)(1)(I) that “[b]efore the court accepts a plea of guilty . . . the court must inform the defendant of, and determine that the defendant understands, . . . any applicable mandatory minimum penalty.” The government believes that the defendant’s position is well-founded, and will not oppose his motion to withdraw his plea. See, e.g., United States v. Hairston, 522 F.3d 336, 338-343 (4th Cir. 2008) (vacating a guilty plea because the defendant was not properly advised of the applicable mandatory minimum sentence).

The parties are currently in the process of negotiating another plea agreement, pursuant to which the defendant would plead guilty to a different offense should the Court grant the defendant’s motion to withdraw his guilty plea.

Let me put that bluntly for you: the DOJ is helping a guy they have already convicted by way of guilty plea – that has already been accepted by the court – get out of that plea conviction. And they are already negotiating a different deal with the defendant, Bloch, to insure he doesn’t serve one stinking day in jail.

I have been in and around criminal defense law for nearly 25 years; you know how many times I have seen something like this? Never. In a couple of extreme cases, I have had the government “take no position”, but never actively help a defendant withdraw like they are with Bloch. Why? Because it is the government’s job to prosecute and incarcerate criminals; they simply just do NOT care if it turns out the criminal got a month in jail, whether the criminal was expecting it or not. But it is even worse than that, here the DOJ is actively, and somewhat disingenuously, helping Bloch manufacture a basis for the withdrawal.

And, absent some tangible and material just cause, withdrawal of a plea which has been formally accepted by the court is, under the Federal Rules of Criminal Procedure, Rule 11, prohibited:

A defendant may withdraw a plea of guilty or nolo contendere:

(1) before the court accepts the plea, for any reason or no reason; or

(2) after the court accepts the plea, but before it imposes sentence if:

(A) the court rejects a plea agreement under Rule 11(c)(5); or

(B) the defendant can show a fair and just reason for requesting the withdrawal.

The problem with Mr. Bloch’s case is there is simply no just cause. The mandatory 30 day jail term is part of the charge Bloch pled guilty to under 2 USC 192. Clear as day. And, as Judge Robinson made Bloch confirm, on the record in open court, he understood what he was pleading to and had the advise of counsel before doing so. End of story.

Or, it would be the end of the story, if the Obama Administration and Holder Justice Department were not willing to make misrepresentations and disingenuous arguments to cravenly insure that Executive Branch officials lying to Congress do not serve so much as a day in jail. Man, I guess they must be awfully worried about Timmeh Geithner, eh? Wonder if the DOJ will be so aggressive for Karl Rodney or Roger Clemens?

[Editor’s note – This post was originally started by Marcy, but finished by bmaz. So, you get the best of both worlds!]