Obama, Holder, Verrilli and the Mark of Civil Rights History

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Leaving aside the heinous 3/5 compromise set forth by James Wilson and Roger Sherman at the founding Philadelphia Constitutional Convention, American history is marked by significant moments of dedication to civil rights for its citizens. Far from perfect, it has been a struggle and evolution. As Ralph Waldo Emerson noted:

Nothing great was ever achieved without enthusiasm.

Which is certainly true, from the Founding Fathers, to Lincoln and the Emancipation Proclamation, to the 19th Amendment protecting the right of women to vote, to the Civil Rights Act of 1964, moments of enthusiasm, sweat, toil and, eventually, greatness mark the struggle for equality for all in the United States.

And here we are on the cusp on the next defining moment in the quest for equality for all in the US. It is not for origin, not for skin color, not for gender, but for something every bit as root fundamental, sexual identity and preference. Marriage equality, yes, but more than that, equality for all as human beings before the law and governmental function.

For all the talk of the DOMA cases, the real linchpin for the last measure of equality remains the broad mandate achievable only through Hollingsworth v. Perry, the Proposition 8 case. The case for full equality in Hollingsworth has been made beautifully, and strongly, in the Respondent’s Brief penned by Ted Olson, David Boies, Theodore Boutrous and Jeremy Goldman.

But there is still a missing voice in the discussion, that of the United States government. The government has the voice, and spoke it loudly in the DOMA litigation, first in a policy declaration letter to Congress, then in lower court briefing and finally in Supreme Court briefing. Mr. Obama’s initial policy declaration noted that we must “suspicious of classifications based on sexual orientation” and concluded:

…that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Indeed that is true, but it only takes the equality movement so far, it still leaves room and ability for bias against sexual orientation by individual states, most notably on the front of marriage equality, but potentially a host of other invidious modalities as well.

That is not good enough. It is time for the government, by and through the Obama Administration, to take the final step in cementing full equality for all citizens, not just as to the federal government, but as to the states as well. The government needs to file an amicus brief supporting full equality in Hollingsworth v. Perry.

Three men are in the crucible – President Barack Obama, Attorney General Eric Holder and Solicitor General Donald Verrilli, Jr. History will remember these men either way, but they have the opportunity to be remembered among the giants in civil rights history. It is a defining moment for their once and future legacy.

What a major moment in history this is, and will be, if the if the Obama Administration Solicitor General files a brief in support of full heightened scrutiny based protection for sexual orientation.

It brings to mind the scene from “Lincoln” where President Lincoln says

“Now, Now, Now”

and forces the 13th amendment through because “Now” was the moment to eradicate slavery in one fell swoop and waiting posed unconscionable risks and further damning inequality.

Such is exactly the time and place now as to the last recognized measure of fundamental equality, sexual orientation. The Perry Plaintiffs’ team has argued well in their brief for the broad principles of due process and equal protection heightened scrutiny that would resolve these issues “Now”. All the stars are aligning. Prominent Republicans have filed an amicus brief. So too a broad swath of leading American businesses. Openly gay Congress members are calling for it.

Now is the time to seize the moment and eradicate discrimination across the board against gay men and women. This is the moment for enthusiasm, and President Obama, Attorney General Holder and Solicitor General Verrilli have a historic opportunity to help make it happen. This is the moment, and they need to step up. Great men take such great steps.

The time is “Now, Now, Now”.

File the amicus brief for full equality in Hollingsworth v. Perry gentlemen.

Why Is Ron Weiser Such a Sissy?

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Note: I apologize for the lengthy outage yesterday. It appears to have been nothing more than a traffic issue, coming from Reddit readers who, like me, agree that HSBC should be subject for the law. 

Top MI Republican Ron Weiser addressed the state’s Tea Party in August and explained why he was confident the state’s Republicans could deliver the State for Mitt. He rather predictably made a bunch of racist comments. He showed no awareness that his candidate had little appeal (especially in the state he tried to consign to bankruptcy) and–in retrospect though it was apparent at the time–little of the organizational ability it took to win a Presidential election.

But as someone who woke up before dawn on Election Day in 2008 to go make sure voters in a very poor precinct in Detroit weren’t harassed by Weiser’s thugs (I did voter protection in Grand Rapids this year, where GOP challengers didn’t show up until it was light), I’m wondering what kind of coward says this.

Obama has hired a lot of people to go help him get that vote out. But if you’re not from Detroit, the places where those pool halls and barbershops are, you’re not going to be going at 6:30 in November. Not without a side arm.

Of course Obama’s team didn’t send volunteers like me to pool halls and barbershops because those are simply Weiser’s suburban inventions about what people from Detroit do in the day. But I did (at the time a sheltered Ann Arbor resident, just like Weiser still is) drive right into a fairly dangerous neighborhood in Detroit, park my car, and spend half the day there, starting before 6:30.

Safely. Without a side arm.

The biggest threat of violence came when a white Walt Kowalski type came in in mid-morning and started screaming racist threats at everyone. What I saw from everyone else was quiet resolution and, for many, real excitment about casting their vote, either because they were voting for an African American, or because they were among the sixth of voters at the precinct voting for the first time.

I felt safe at Detroit at 6:30 AM in November 2008.

Maybe Weiser just didn’t think about how much less risky Detroit is for people who don’t bear its residence ill will?

General Dynamics: The Digital Tale of John & Jill and Dave & Paula

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DO YOU KNOW THE WAY TO TAMPA BAY??

Another giant shoe has dropped in L’Affaire Petraeus. Not simply more specifics, but yet another General:

Gen. John Allen, the top American and NATO commander in Afghanistan, is under investigation for what a senior defense official said early Tuesday was “inappropriate communication’’ with Jill Kelley, the woman in Tampa who was seen as a rival for David H. Petraeus’s attentions by Paula Broadwell, the woman who had an extramarital affair with Mr. Petraeus.

In a statement released to reporters on his plane en route to Australia early Tuesday, Defense Secretary Leon E. Panetta said that the F.B.I. had informed him on Sunday of its investigation of General Allen.

Mr. Panetta turned the matter over to the Pentagon’s inspector general to conduct its own investigation into what the defense official said were 20,000 to 30,000 pages of documents, many of them e-mails between General Allen and Ms. Kelley, who is married with children.

Really, at this point, what can you even say about the secret storm soap opera that roils within the rarified brass air of the US Military? This was just the last hit for a night that saw the emergence of the Shirtless FBI Guy (now under investigation himself by the Office of Professional Responsibility at DOJ) to a nightime search of Paula Broadwell’s home by the FBI.

There are too many tentacles, evolving too quickly, to go too deep on all the facts that have rolled out even in the last twelve hours. But the General Allen/Jill Kelley bit is fascinating. Remember, the handful of emails Paula Broadwell sent to Kelley reportedly did not mention Petraeus by name. This latest report at least raises the possibility Broadwell was referring to an inappropriate relationship between Kelley and Allen, and not Kelley and Petraeus. I am not saying such is Read more →

The Coordinated Leaky Drips In The White House

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As I’ve noted previously, there has been a hue and cry against the critical and untenable use, and abuse, of secrecy by the United States government. There has always been some abuse of the government’s classified evidence for political gain by various administrations operating the Executive Branch, but the antics of the Obama administration have taken the disingenuous ploy to a new art form.

Today, via Politico’s old fawning Washington DC gluehorse, Roger Simon, comes an unadulterated (sometimes x-rated) and stunningly tin eared and arrogant admission of what the Obama White House is all about, straight from the lips of Obama consigliere Bill Daley:

Rahm was famous for calling reporters, do you call reporters? I ask.

“I call; I’m not as aggressive leaking and stroking,” Daley says. “I’m not reflecting on Rahm, but I’m not angling for something else, you know? Rahm is a lot younger [Emmanuel is 51], and he knew he was going to be doing something else in two years or four years or eight years, and I’m in a different stage. I’m not going to become the leaker in chief.”

You’ve got others for that, I say.

“Yeah, and hopefully in some organized leaking fashion,” Daley says, laughing. “I’m all for leaking when it’s organized.”

Oh, ha ha ha, isn’t that just hilarious? Bill Daley, and the White House he runs, are all for leaking, history bears out even the most highly classified government secrets, and doing so in an organized pre-planned fashion, when it serves their little self-centric petty political interests. But god help an honest citizen like Thomas Drake who, after exhausting all other avenues of pursuit within the government, leaks only the bare minimum information necessary to expose giant government waste, fraud and illegality because he feels it his duty as a citizen.

For citizens like Tom Drake, the “most transparent administration in history” will come down on his head like a ton of nuclear bricks even when they embarrass themselves in so doing. But they are more than willing to exploit and leak to self serve their own interests. What is good for the king is not appropriate for the commoner.

In this regard, I wish to amplify point that Glenn Greenwald has previously made about the pernicious affect of this duplicitous use of classified information. Glenn said:

But the problem is much worse than mere execssive secrecy. Anyone who purports concern over the harmful leaking of classified information should look first to the Obama administration, which uses secrecy powers as a manipulative tool to propagandize the citizenry: trumpeting information that makes the leader and his government look good while  suppressing anything with the force of criminal law that does the opposite. Using secrecy powers to propagandize the citizenry this way is infinitely more harmful than any of the leaks the Obama administration has so aggressively prosecuted.

That is exactly right. It is not just that the government keeps unnecessary secrets from the public on information that is critical to their duties and responsibilities as citizens, it is that the self-serving selective leaking creates an intentionally fraudulent paradigm for the citizenry. It is not only manipulative, is fundamentally dishonest and duplicitous.

When the leaking is so selective and self-serving it is not just the people who are deceived, is the press they rely on as a neutral information conduit from which to make their opinions and determinations. The press then becomes little more than a hollow funnel for opportunistic and dishonest spin. We saw the effects of this in the case of Anwar Awlaki’s extrajudicial assassination, and have seen it again in the Scary Iranian Terrorist Murder ruse.

The last bastions against this pernicious practice are the press and courts. Until both start admitting how they are relentlessly gamed and played by the White House, there is little hope for change. And make no mistake, the press ratifies this pernicious conduct by lazily accepting such leaks and reporting without properly noting just how malignant the process is. It is all a joke to Bill Daley and Barack Obama, and the joke is on us.

PS: For a little more on the joy that is White House Chief of Staff Bill Daley, see Digby today. And a fine dissertation of why Daley should be fired on the spot by Joan Walsh in Salon. I would only note that it is not just Rahm and Daley, it is the man who consistently brings this Chicago style heavy handed belligerence to the White House. Mr. Obama’s two Chiefs of Staff do not operate apart from him, they ARE him and his Presidency. The buck for this stops at the top.

DC Mayor Gray Arrested: Finally a Leader In Washington DC Finds His Shoes

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Barack Obama famously promised his supporters and voting base in 2007

And understand this: If American workers are being denied their right to organize and collectively bargain when I’m in the White House, I will put on a comfortable pair of shoes myself, I’ll will walk on that picket line with you as President of the United States of America. Because workers deserve to know that somebody is standing in their corner.

But, of course, now that Mr. Obama is safely ensconced in Washington DC at the oh so elite address on Pennsylvania Avenue, neither he nor his shoes are anywhere to be found when when workers and “their right to organize and collectively bargain” are under not just attack, but siege, in Wisconsin, Ohio, and other locales.

Today, however, we see what real Democratic leadership in Washington DC looks like when the rights of their citizens and constituents are being trampled on. District of Columbia Mayor Mayor Vincent Gray and other DC Council members found their shoes, took to the street to protest the wrongs occasioned upon the District and its women by the budget compromise that Mr. Obama applauded and congratulated himself over late Friday night. Mayor Gray and friends led by example:

Updated, 6:22 p.m.: Mayor Vincent Gray, D.C. Council Chairman Kwame Brown (D) and council members Yvette M. Alexander (D-Ward 7), Tommy Wells (D-Ward 6), Muriel Bowser (D-Ward 4) and Michael A. Brown (I-At Large) have been arrested by U.S. Capitol Police officers.

Also arrested was Sekou Biddle (D), who is filling Brown’s former at-large council seat on an interim basis.

More than 200 protesters gathered, including local officials and activists. Police let them sit in the street for 30 minutes, then began arresting them. Protesters chanted, “No justice, no peace.”

Mayor Gray and council members Brown, Alexander, Wells, Bowser and Brown not only found their shoes and their voice to stand up for the people they represent, they were willing to put their physical liberty on the line to do so. Gray et. al should be congratulated for this principled stand.

There is a lesson to be learned here by other inhabitants of our nation’s capitol.

The Fog of Obamawar In Hi-Def 1080p

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David S. Cloud has what can only be described as an amazing piece in today’s Los Angeles Times on the sobering reality and cold hearted bloodlust of remote drone warfare. Cloud’s story tells, in gripping, fully fleshed from all angles, detail the story of an United States killer drone operation gone awry.

The Americans were using some of the most sophisticated tools in the history of war, technological marvels of surveillance and intelligence gathering that allowed them to see into once-inaccessible corners of the battlefield. But the high-tech wizardry would fail in its most elemental purpose: to tell the difference between friend and foe.

This is the story of that episode. It is based on hundreds of pages of previously unreleased military documents, including transcripts of cockpit and radio conversations obtained through the Freedom of Information Act, the results of two Pentagon investigations and interviews with the officers involved as well as Afghans who were on the ground that day.

Before you go any further, go read Cloud’s full article. Seriously, do it now, because the details of the story – of just this one singular drone strike – are too many and Cloud lays them out to well for me to pick, choose and substitute.

Suffice it to say, by the most conservative casualty report, by the US military naturally, there were at least 16 dead and 12 critically wounded. For which General Stanley McChrystal gave a verbal apology and the oh so benevolent United States government paid blood money stipends of $2,900 for the dismembered and disfigured survivors and $4,800 for the dead. At $76,800, the combined lives of 16 innocent dead citizens, blown to bits in their own country, is about the cost of one of the Hellfire missiles fired by a Predator drone. The cold and celebratory technician soldiers at the drone pilot center in Nevada, and video review center in Florida, played their war games on video monitors that are worth more than the United States assigns as the value of a developed human life in Afghanistan.

So much of the angst (though certainly not all) from the legal liberal left, whether here at Emptywheel, from our friend Glenn Greenwald, or others, centers on promises and inferences that Barack Obama Read more →

Real Reason For US Deficit: GE Greed-$14.2B Profit, $0 Tax

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For all the caterwauling from the right and, stupifyingly, from the Obama Administration and Blue Dog left as well, here is the real reason the United States has the sizable deficit issues it does (well, in addition to the fact we will not tax even rich individuals appropriately either) – our biggest corporations pay no tax. Even when they make unholy amounts of profit. From a sobering article just up at the New York Times:

General Electric, the nation’s largest corporation, had a very good year in 2010.

The company reported worldwide profits of $14.2 billion, and said $5.1 billion of the total came from its operations in the United States.

Its American tax bill? None. In fact, G.E. claimed a tax benefit of $3.2 billion.

That may be hard to fathom for the millions of American business owners and households now preparing their own returns, but low taxes are nothing new for G.E. The company has been cutting the percentage of its American profits paid to the Internal Revenue Service for years, resulting in a far lower rate than at most multinational companies.

Its extraordinary success is based on an aggressive strategy that mixes fierce lobbying for tax breaks and innovative accounting that enables it to concentrate its profits offshore. G.E.’s giant tax department, led by a bespectacled, bow-tied former Treasury official named John Samuels, is often referred to as the world’s best tax law firm. Indeed, the company’s slogan “Imagination at Work” fits this department well. The team includes former officials not just from the Treasury, but also from the I.R.S. and virtually all the tax-writing committees in Congress.

Read the whole article and weep for your and your children’s future. And then take a moment to consider that a competent political class, that was honest about their representation of their constituents and oath to office, would have moved the country away from this reverse Robin Hood dystopia instead of moving ever further down the black hole of elite and corporate greed, robber barons and neo-feudalism.

DOJ’s New Miranda Policy Betrays Constitution & Power of Judiciary

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The proclivity of the Obama Administration to simply do as it pleases, whether it violates the Constitution, established authority or the separation of powers doctrine is beyond striking. Last week at this time they were ignoring the Constitutional right of Congress, the Article I branch, to be the determinative branch on the decision to take the country to war. Today Mr. Obama’s Department of Justice has stretched its ever extending arm out to seize, and diminish, the power and authority of the judicial branch and the US Constitution.

Specifically, the DOJ has decided to arrogate upon itself the power to modify the Constitutionally based Miranda rights firmly established by the Article III Branch, the Supreme Court. From Evan Perez at the Wall Street Journal:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

The move is one of the Obama administration’s most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

The Supreme Court’s 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

This type of move has been afoot for almost a year, with Eric Holder proposing it in a string of Sunday morning talk shows on May 9, 2010 and, subsequently, based on Holder’s request for Congressional action to limit Miranda in claimed terrorism cases, Representative Adam Smith proposed such legislation on July 31, 2010. Despite the howling of the usual suspects such as Lindsay Graham, Joe Lieberman, etc. the thought of such legislation died in the face of bi-partisan opposition from a wide range of legislators who actually understood Constitutional separation of powers and judicial authority. They knew the proposed legislation flew in the face of both concepts. And they were quite Read more →

The Misplaced US Determination To Indict Assange

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I have stayed out of the WikiLeaks scrum to date, mainly because the relatively few cables published to date (only 1,269 of the more than 250,000 cables they possess have been released so far) did not provide that much new on the subjects I normally write on as opposed to just confirming or further supporting previous knowledge and/or suppositions. This is certainly not to say they have not been interesting reading or useful to many others, the WikiLeaks material has been all that.

But now comes the bellicose fixation of the United States government on criminally prosecuting WikiLeak’s editor-in-chief Julian Assange. What started out as the usual idiotic yammering of Rep. Peter King and Sen. Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange. As the following discussion will demonstrate, it will require dicey and novel extrapolation of legal theories and statutes to even charge Assange, much less actually convict him.

The interesting thing is this type of prosecution flies directly in the face of the written charging guidelines of the DOJ which prescribe a prosecution should be brought only where the admissible facts and evidence are “sufficient to obtain and sustain a conviction”. As we have seen in so many instances over the last few years, the DOJ uses this requirement to decline prosecution on a whole host of matters they simply do not want to touch, even where the evidence for conviction of serious crimes is crystal clear and unequivocal. Take for instance the case on the blatant destruction of the abu-Zubaydah and al-Nashiri torture tapes for instance (see here and here), where the DOJ and John Durham used just this basis to decline prosecution because the DOJ just does not, you know, go out on limbs.

So, why would the Obama Administration be so aggressive against Assange when doing so flies in the face of their written guidelines and standard glib protocol? Is it really all about prosecuting Assange? That would be hard to believe; more likely it is not just to monkeywrench Assange and WikiLeaks, but to send a hard and clear prior restraint message to the American press. This is almost surely confirmed by the rhetoric of Joe Lieberman, who is rarely more than a short ride away from his disciple and friend Barack Obama on such matters, and who is making noises about also prosecuting the New York Times.

Never before has the Espionage Act, nor other provisions of the criminal code, been applied to First Amendment protected American press in the manner being blithely tossed around by US officials in the WikiLeak wake. Avoidance of First Amendment press and publication has been not just the general position of the DOJ historically, it has been borne out by significant caselaw over the years. If you need a primer on the hands off attitude that has been the hallmark of treatment of press entities, you need look no further than New York Times v. United States, aka the “Pentagon Papers Case”. In NYT v. US, the government could not even use the Espionage Act in a civil context against the press, much less a criminal one as they propose for Assange, without being forcefully shot down. Daniel Ellsberg is right when he says that “Every attack now made on WikiLeaks and Julian Assange was made against me”.

The Barack Obama Administration, who rode into office on a platform and promise of less secrecy, more transparency and a respect for Constitutional principles, has proved itself time and again to be anything but what it advertised. And to the uninformed populous as a whole, ill served by the American press that is being pinched in this process, Julian Assange presents an attractive vehicle for this prior restraint demagoguery by the US government. The public, especially without strong pushback and fight from the press, will surely bite off on this craven scheme. Read more →

Judge Phillips’ DADT Order Is Not The Victory Being Claimed

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

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

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

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

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

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

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

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

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

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