July 8, 2020 / by 

 

The 3 Hop Scotch of Civil Liberties and Privacy

I was in court, so I didn’t see it, but apparently there was a little hearing over at House Judiciary Committee this morning on “Oversight of the Administration’s Use of FISA Authorities“. There was an august roll of Administration authorities and private experts: Mr. James Cole, United States Department of Justice; Mr. John C. Inglis, National Security Agency; Mr. Robert S. Litt, ODNI; Ms. Stephanie Douglas, FBI National Security Branch; Mr. Stewart Baker; Mr. Steven G. Bradbury; Mr. Jameel Jaffer; and Ms. Kate Martin.

Hmmm, let’s take a look and see if anything interesting occurred (as reported by Pete Yost of AP). Uh, well, there was THIS:

For the first time, NSA deputy director John C. Inglis disclosed Wednesday that the agency sometimes conducts what’s known as three-hop analysis. That means the government can look at the phone data of a suspect terrorist, plus the data of all of his contacts, then all of those people’s contacts, and finally, all of those people’s contacts.

If the average person calls 40 unique people, three-hop analysis could allow the government to mine the records of 2.5 million Americans when investigating one suspected terrorist.
….
The government says it stores everybody’s phone records for five years. Cole explained that because the phone companies don’t keep records that long, the NSA had to build its own database.

Go read all of Yost’s report, there is quite a bit in there that is stunning in the blithe attitude the Administration takes on this hoovering of data and personal information. Also clear: Congress has no real grasp or control of the government’s actions. The Article I brakes are out and the Article II car is accelerating and careening down the road.


The Marriage Equality Decisions

Picture-1The moment of truth has finally come on the long and tortured path through the Supreme Court for the marriage equality movement. Without further adieu, the Defense Of Marriage Act has been struck down as unconstitutional under Equal Protection grounds in a 5-4 opinion authored by Anthony Kennedy. A lack of standing has been found by the court in the California Hollingsworth v. Perry Prop 8 case, thus meaning the case will revert to the Ninth Circuit decision.

Frankly, everybody in the universe is going to have instantaneous analysis and opinion on the nature and import of these two decisions. I will likely be along with the same on particular aspects later, but for now I want to get the decisions and opinions up here so that one and all can read and discuss them. Below I will give the links to the opinions and the critical language blurbs from each.

United States v. Windsor (DOMA): Here is the opinion. As stated above, it is a 5-4 split authored by Justice Kennedy, joined by the liberal bloc of Ginsburg, Breyer, Sotomayor and Kagan. Chief Justice Roberts, Scalia, Thomas and Alito dissent in separate dissents written by Roberts and Scalia.

The opinion is very broad in range and focuses on Section 3 of DOMA, which will effectively obliterate the law. The key holding comes at the end of Kennedy’s majority opinion:

DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA in- structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the mar- riages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

Hollingsworth v. Perry (Prop 8): Here is the opinion. As stated above, the court found a lack of standing by the appellants Hollingsworth (Prop 8 Proponents). ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined. So, just to be clear here: The liberals are the reason the court could not issue a decision granting ALL Americans the right to marriage equality that citizens in California, and the other few states who have state law marriage equality, will enjoy.

Anthony Kennedy, by his crystal clear decision and language he penned in the Windsor DOMA decision, and his willingness to find standing and rule on the merits in the Prop 8 case, was ready to make it happen. And all the liberal justices, save for Sonia Sotomayor, prevented it.

The court has remanded Hollingsworth back to the 9th Circuit with instructions to enter a similar ruling based on lack of standing/jurisdiction. That means that the broad and sweeping decision entered by Vaughn Walker in the district court trial will become law in California.

Now, to again be clear, I expect there will be litigation attempts by the Equality Haters to try to restrict Walker’s decision to the two plaintiff couples and/or the two respective counties at issue in the original Perry complaint. I do not believe that will bear any fruit and fully expect full marriage equality to exist across all of California, but it may not be as immediate as it should. We shall see.

In closing, a very good day for marriage equality and LGBT rights. The DOMA decision is broad and provides for heightened scrutiny in evaluating marriage and sexual identity issues; that portends well for future rights litigation. And, of course, DOMA is dead. Also heartwarming that all of California’s citizens will have their rights protected; it is, however, sad that this will not extend to all Americans.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]


The Day of Sentencing Judgment for Scott Bloch

When we last left Scott Bloch, the former Bush attorney who was the appointed head of the Office of Special counsel (OSC), it was the original date for his sentencing. The court delayed entry of sentence to further investigate the full extent of his criminal conduct. It appeared that, after strong letters like from this blog and attorney Debra Katz, who represents several former OSC employees and good government groups, the court had real concerns about the entirety of Bloch’s vast criminal conduct compared to the sweetheart whitewashing collusive plea the DOJ was giving him.

Today, the court showed it really was not nearly as concerned as had been hoped. Scott Bloch has just been sentenced to one day in jail and two years probation. The single measly day in jail was stated by the court to be due to the “seriousness” of the offense. What a joke. I guess we should just be thrilled that, unlike James Clapper, Bloch was prosecuted at all. Still, it is a grossly soft sentence considering the entirety of Bloch’s admitted criminal conduct.

Just so the record is complete after all these years, here are the significant documents documents lodged with the court between the first sentencing date and today:

1) Bloch’s supplemental sentencing memorandum

2) DOJ’s supplemental sentencing memorandum

3) Bundle of additional sentencing letters from Bloch supporters

4) Supplemental sentencing letter from this blog

One last thing should be noted, and that is the sheer and craven hutzpah of the Department of Justice in whitewashing this matter. I refer to their supplemental memorandum (item 2 above), but specifically to footnote 1 therein that baldly claims other members of the public and victims aggrieved by Bloch just don’t have all the secret facts that the government was able to collect. It was truly an amazing thing to see the government saying they had the hidden facts mitigating Bloch’s conduct. Simply astounding and, as stated in the responsive letter to the court (item 4 above), it was unconscionable:

The bald faced hubris of the DOJ in footnote 1 of their “Supplemental Memorandum In Aid Of Sentencing” lodged in docket Number 21 to claim, and rely on, uncharged and unstated evidence and facts to mitigate the sentence of the defendant is far the other side of unconscionable and shocking. Hidden considerations cited by the government, in the face of the shocking record of conduct by defendant Bloch, are an insult to the court, and the citizens and rule of law it is designed to protect. In fact, the recitations of fact by the government itself demonstrates how absurd their protestations for mitigation, much those of Bloch himself in his supplemental sentencing memorandum (Docket Number 22), really are.

The perfidy, and obstruction to the American form of government, by Executive Branch officials upon the function of the Congress is a scourge that cannot be tolerated by the American people or the courts of the United States. After the questions germinated by ODNI Clapper’s testimony, there has been a sudden and welcome bi-partisan return of healthy concern over the conduct of Executive Branch officials in front of Congress.

This court stands at the crossroads on a seminal issue to the Constitutional health of these United States and the health of the separation of powers in our form of government. The problem of disdain for, and duplicity in front of, Congress must be addressed and a precedent set for the future. Mr. Bloch violated the trust and damaged the people and their lawfully elected representatives. Frankly the plea in this case is outrageous and should never be accepted, it is not in the interest of justice. But, if it is to be followed, and sentenced thereon, a precedent should be set and an appropriate sentence handed down for the egregious conduct of Scott Bloch.

If not in the instant case, then where? If not now, then when?

The answer is Article II Executive Branch officials and attorneys simply cannot, and will not, be prosecuted for perjury and obstruction of Congress, and neither the Article I Congress, nor the Article III Courts, seems to particularly care that such violation of constitutionally protected powers and prerogative is occurring habitually. It is a sad comment.


Scott Bloch Sentencing Blocked By The Court

I have been a bit busy lately, so this is a tad late; but I should probably give the update on the Scott Bloch criminal sentencing that was scheduled for 9:30 am Monday morning May 13 in DC District Court in front of Judge Robert L. Wilkins. As you will recall, this blog has covered the Bloch case closely over the years due to its symbolism for government accountability and/or lack thereof.

The most recent coverage was immediately prior to the sentencing, and was in the form of a comprehensive post entitled “Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing”. As promised, a copy of said post was mailed to the court and it was entered on the docket. Several others sent letters as well, such as here for example.

The upshot is that Judge Robert L. Wilkins heard the voices. In what I can only describe as truly commendable, yet still refreshingly surprising, this is what happened at sentencing as described by Ann Marimow of the Washington Post:

The legal odyssey of Scott J. Bloch, the former head of the federal agency that protects government whistleblowers, continued Monday when a federal judge balked at proceeding with sentencing because of what he called an “improperly sanitized version of events.”
….
But U.S. District Judge Robert L. Wilkins chastised attorneys on both sides for presenting a narrow account of Bloch’s actions that the judge said doesn’t fully describe the conduct at issue. Wilkins said he was uncomfortable issuing a sentence until a fuller description of Bloch’s actions was in the record.

Sentencing documents, Wilkins noted, make little mention of Bloch’s previous deal with the U.S. Attorney’s Office in which he pleaded guilty to a misdemeanor charge of contempt of Congress.
….
In the current case, federal guidelines call for a sentence from zero to six months in prison. But prosecutors have agreed not to oppose a period of probation and want Bloch to pay a $5,000 fine and complete 200 hours of community service.

Wilkins suggested Monday, however, that he intends to consider Bloch’s conduct related to the previous case, which could expose him to jail time. The judge pointed specifically to Bloch’s position as a presidential appointee, a “position of public trust, operating with little oversight.”

Bloch’s sentencing hearing has been rescheduled for June 24.

We will try to do another update on status again before the next sentencing date on June 24. But, for now, hat’s off to Judge Robert L. Wilkins for hearing the voices of the public who object to the whitewash that was being applied to the misconduct in high office by Scott Bloch. Maybe there is hope for this Rule of Law thing after all.


Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing

CryingJusticeWhen this blog last substantively left the continuing saga of Bush/Cheney Special Counsel Scott Bloch, it was with these words:

So, between August 2, 2011 and December 21, 2012, a period of nearly a year and a half’s time, the DOJ has done nothing whatsoever in furtherance of prosecuting Scott Bloch. Until today. And the vaunted Department of Justice has, on the Friday before the Christmas holiday…..filed a Motion to Dismiss. However, that is not the end of the story, as clause 5 of the Motion to Dismiss contains this language:

Concurrent with this Motion to Dismiss, the government is filing a new information.

Well, not quite concurrent, as the Motion to Dismiss was filed mid to late morning, and the new information was just now made public. The new charge, a misdemeanor, is pursuant to 18 USC 1361 Depredation of Government Property or Contracts. The factual basis is made out from the “seven level wiping” Bloch caused to be done. Here is the new information just filed.

Yes, that is the “Reader’s Digest” version of how Scott Bloch came to be where he is now….awaiting sentencing in the United States District Court for the District of Columbia. For a crime that barely even references, much less is indicative of, the actual acts he committed against the United States Government, and the citizens it represents.

But, Bloch is indeed now facing sentencing on the latest cushy plea he has been afforded by the Department of Justice; sentencing scheduled for Monday May 13, 2013, less than one week from today. Here is Defendant Bloch’s sentencing memorandum, and here is the curiously collusive memorandum from the DOJ, who simply cannot stand for any Article II Executive Branch attorney being sent to jail/prison for lying to Congress because, seriously, many more might be in jeopardy if that was the case and precedent.

So, what is Mr. Scott Bloch doing? Taking his medicine quietly for having been given the gift plea by the DOJ to a misdemeanor after he actually committed such acts that appear by all legal rights to warrant felony allegations? Allegations as were described the last time Bloch was tried to be handed such a gift horse plea by the DOJ as:

…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.

Nothing has changed; not a single underlying fact has changed in the least, and Bloch still stands imperious and unrepentant. Scott Bloch has never disputed the report of the sworn statement of facts he previously submitted to the court that clearly supports charges of far more serious conduct. Indeed, at this point, Mr. Bloch could not dispute said statement of facts without committing even more false statements and/or perjury.

What is truly shocking about Scott Bloch is not just that he is colluding with the Department of Justice to skate, as he is, because no Article II branch wants to set a contrary precedent, but what is really shocking is that Scott Bloch has had the hubris to threaten and bully independent bloggers who have spoken the truth about his misconduct.

It has come to this blog’s attention that Scott Bloch has authored one or more threatening and bullying letters, ahead of his criminal sentencing, to internet journalists reporting facts on his previous professional misconduct*. Letter(s) threatening the very root First Amendment freedoms of the press and free speech. A copy of one such letter is attached here, and spelled out in relevant form as follows:

I have been the subject of articles and blogs on your [redacted] website and blog site. The content and intent of these blogs/articles is to defame me by casting aspersions on my professional standing and ability to represent contractors.
….
I write to demand that you remove these articles and blogs about me and my time as Special Counsel immediately. This is harmful to my professional reputation as a lawyer and you are not commenting on any public matters that are current. The prior legal defense fund is defunct and has not been active for over two years. Your demeaning and personal attacks impute to me qualities that tend to injure me in my business of representing contractors. Your website is dedicate [sic] to them and therefore you are targeting my business in Washington, D.C. intentionally, and my residence in Virginia, from where I draw some of my clients.

If you choose to ignore this and not remove the materials from your internet site and blogs and all caches, I will be forced to sue for an injunction and to seek damages. As long as the article remains on your website, you are publishing it. In addition, you are publishing it in various fora, including in Virginia and Washington D.C. where I represent employees and federal employees [sic] Continuing publication also subjects you to Virginia jurisdiction as long as the article remains on the web. I will institute an action in Virginia and in Washington D.C. against you for defamation and actual malice, together with damages and punitive damages.1 I will also seek damages for civil conspiracy to harm my business, and Virginia courts and juries have proved to be very protective of one’s business reputation when gratuitously harmed by publications.2 If I determine through discovery that you have worked with others to do this, I will join them as well. (emphasis added)

Threatening not only freedom of speech and press, but the right to speak the truth. Mr. Bloch has hubris beyond description to think that discussion of the misconduct and facts he has admitted to, as factually depicted by his own sworn statement of facts, are beyond “commenting on any public matters that are current”. When HE IS PENDING CRIMINAL SENTENCING on those very same facts. The name and contact information of the recipient of this letter were redacted at the request of the recipient, who indeed fears the wrath of Bloch and his threats.

When Bloch could have been, and should have been, charged with FAR more serious federal crimes, Scott Bloch is out threatening citizen journalists reporting on his conduct. By the way, upon information and belief, the “legal defense fund” Mr. Bloch and/or his friends had set up for him was still up and on the internet as of the time the blog posts he complained of were written; it was just conveniently taken down before Bloch threatened the innocent bloggers for discussing it.

Threatening internet journalists who have reported facts about Mr. Bloch, and who object to what he has done in the name of the American people. Journalists who object to the skating kid gloves treatment curiously afforded Mr. Bloch by the DOJ despite his egregious, and admitted, acts.

Massive prosecutorial effort was expended by the DOJ on Roger Clemens, a man who, at worst, was accused of lying to Congress about taking a few shots of steroids while playing the game of baseball. The DOJ pursued another player of games, Barry Bonds every bit as relentlessly for years before getting a single count of obstruction of justice that is very likely to be thrown out on appeal.

The Department of Justice pursued these crimes, all for lying to Congress, far, far more aggressively compared to the silk hands treatment they have afforded their own former fellow Executive Branch attorney, Scott Bloch.

Roger Clemens and Barry Bonds lied about, at worst, whether they enhanced their ability to play a silly game (and none of that was proved). Scott Bloch ADMITTED to facts that, on their face, appear to constitute obstruction of justice, false statements, perjury, willful destruction of government property and Federal Records Act violations. There is a qualitative difference here, and it is hard to envision how it runs in favor of Mr. Bloch.

The dangerous and constitutionally subversive apparent (and admitted) acts of Scott Bloch, a man entrusted with representing, shepherding and protecting the lifeblood of honest government – whistleblowers meant to keep the government honest and forthright – betrayed every ounce of that trust. Bloch’s own stipulated facts described the office he was entrusted with as:

The United States Office of Special Counsel (“OSC”) is an independent federal agency charged with safeguarding the merit-based employment system by protecting federal employees and applicants from prohibited personnel practices (“PPP”). As such, OSC receives, investigates and prosecutes allegations of PPPs, with an emphasis on protecting federal government whistleblowers.

Bloch himself was accused of violating the very tenets of good government he was charged with protecting. Bloch scrubbed the very digital records of his federal agency that could, at least partially, document what he had done and perhaps substantiate the claims of whistleblowers in his own agency. And Bloch did it via a completely outside of the government, “Best Buy Geek Squad” self described “seven level wipe” of pertinent computers. Computers that belonged to the government, to the people of the United States. Computers and records subject to the the Federal Records Act. Then Bloch gave misleading and false information about his conduct to Congress.

The man, Scott Bloch, charged with protecting the watchers of the government, turned out to be the very man who violated and betrayed all three branches of Constitutional government at the same time. The effects are still being felt right now in the court Bloch is before. Yet, oddly, the DOJ seems to think Scott Bloch is infinitely less harmful than the likes of common ballplayers like Clemens and Bonds. How can that be?

It can only be if one is to be so absurd as to consider corruption of the very foundation of all three branches of government to be less important that cheating in a baseball game. When the Scott Bloch corruption of all three branches of government is ADMITTED and the ball field allegations are unproven. Yet, that is exactly where the record is with respect to Mr. Bloch and the DOJ.

And, so, sentencing is set for Scott Bloch on 5/13/2013 at 9:30 AM in Courtroom 27A before Judge Robert L. Wilkins. What should the court do with Mr. Bloch? The position here has not changed one iota since the sentencing letter we sent that stated before the last attempted sentencing of Bloch on a cushy plea deal from the DOJ:

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. … It is scandalous and should not be permitted by the Court. There is, however, 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 which 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 name of the United States citizenry.

As described at the start of this letter, 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 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.

And this, like the sentencing recommendation we made, is being formally sent to the United States District Court for the District of Columbia, care of Judge Robert L. Wilkens.

But, let this not be the only word on Mr. Bloch and his appropriate disposition; let us also consider the valid words of long time attorney John W. Cochrane, disciple of one of the greatest voices of the United States Circuit Court of Appeals for the District of Columbia, Judge Spottswood W. Robinson III:

Thirty-three years ago, it was my great honor to be selected by Hon. Spottswood W. Robinson III to serve as a Judicial Extern for three months. For a young man from the UCLA Law School, the opportunity to work with such a luminous and inspirational jurist, at such a phenomenal court, was something I have never stopped appreciating.

Judge Robinson instilled in me a deep respect for the Rule of Law, a reverence for the Constitution, and an abiding recognition that the courts of this country exist to assure and mete out Justice on an equal basis to all who come before them. I have gone on to become a partner in large American law firms and counsel to respected American companies; but it was the time I spent with Spottswood Robinson III, his clerks, and in the presence of his fellow judges, that I treasure most about my exposure to the Law in America. I am sure you understand exactly what I mean, and that you have the same feelings toward the position you are honored to hold in the courthouse you are able to work while overseeing a legal system dedicated to Equal Justice Under Law.

Please do not dishonor the memory of Judge Robinson, the sanctity of your Oath, and the preeminence of your Court – not to mention the romantic notions of a California lawyer who believes in the American system of justice – by allowing the present efforts of the Department of Justice to whitewash the despicable actions of Scott Bloch. Please, please, PLEASE send at least Scott Bloch to PRISON for the violations of law to which he has already pleaded guilty, and do NOT facilitate the cowardly and despicable efforts of the Justice Department to establish a principle that governmental criminals should be exempted from the Rule of Law when it comes to sentencing.

You know the arguments. You know you are being played by the DOJ, who are counting on you to rubber-stamp a pernicious end run around Justice, and you know that the DOJ wants nothing more than for you to do so quietly so as to not “cause a stir”.

Please have the courage of America’s convictions. Send Scott Bloch to prison.

Whether it is Judge Spottswood Robinson III, or Judge Deborah Robinson, the previous judge in this sorry case, the result should be the same. The DOJ and Mr. Bloch should NOT be allowed to skate with this level of sheer impunity. It is flat out a violation of the interest of the American people, the officials they deem to elect, and the trust they are entitled to preserve. The same trust this court is obligated to protect by protecting and imposing the Rule of Law.

Scott Bloch must not be allowed to walk from this egregious conduct, and this court, “scott free”. What is being pitched by both parties to this court is an affront to both justice and the Constitution of the United States and the court should sentence accordingly, both to bring accountability here, and to deter such conduct in the future.

Let the record so reflect.

[* = Mr. Bloch has not now, nor has he ever, threatened this blog; instead, he has preyed on smaller blogs (whose proprietors were, in fact, chilled by the First Amendment icing of Scott Bloch)]


Tsarnaev: Right to Counsel, Not Miranda, Is the Key

LadyJusticeWithScalesSince Dzhokhar Tsarnaev was taken into custody just over a week ago, the hue and cry in the public and media discussion has centered on “Miranda” rights and to what extent the “public safety exception” thereto should come into play. That discussion has been almost uniformly wrongheaded. I will return to this shortly, but for now wish to point out something that appears to have mostly escaped notice of the media and legal commentariat – Tsarnaev repeatedly tried to invoke his right to counsel.

Tucked in the body of this Los Angeles Times report is the startling revelation of Tsarnaev’s attempt to invoke:

A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. The exemption allows defendants to be questioned about imminent threats, such as whether other plots are in the works or other plotters are on the loose.

Assuming the accuracy of this report, the news of Tsarnaev repeatedly attempting to invoke right to counsel is critically important because now not only is the 5th Amendment right to silence in play, but so too is the right to counsel under both the 5th and 6th Amendments. While the two rights are commonly, and mistakenly, thought of as one in the same due to the conflation in the language of the Miranda warnings, they are actually somewhat distinct rights and principles. In fact, there is no explicit right to counsel set out in the Fifth at all, it is a creature of implication manufactured by the Supreme Court, while the Sixth Amendment does have an explicit right to counsel, but it putatively only attaches after charging, and is charge specific. Both are critical to consideration of the Tsarnaev case; what follows is a long, but necessary, discussion of why.

In fact, “Miranda rights” is a term that is somewhat of a misnomer, the “rights” are inherent in the Constitution and cannot be granted or withheld via utterance of the classic words heard every day on reruns of Law & Order on television. Those words are an advisory of that which suspects already possess – a warning to them, albeit a critical one.

In addition to being merely an advisory of rights already possessed, and contrary to popular belief, advising suspects of Miranda rarely shuts them down from talking (that, far more often, as will be discussed below, comes from the interjection of counsel into the equation). As Dr. Richard Leo has studied, and stated, the impact of Miranda on suspects’ willingness to talk to interrogators is far less than commonly believed. One study has the effect rate of Miranda warnings on willingness to talk at 16%; from my two plus decades of experience in criminal defense, I would be shocked if it is really even that high.

On top of this fact, the Miranda warnings relate only to the admissibility of evidence or, rather, the inadmissibility – the exclusion – of evidence if it is taken in violation of Miranda. Professor Orin Kerr gives a great explanation here.

Since there is, without any real question, more than sufficient evidence to convict Tsarnaev without the need for admissibility of any verbal confession or other communicative evidence he may have provided the members of the HIG (High Value Detainee Interrogation Group), the real question was never “Miranda” but when Tsarnaev would be presented to the court which, in turn, would determine when he would be given access to counsel. Not surprisingly, one of the first people I saw to correctly point this out was Marcy Wheeler:

Folks: FAR more important, IMO, than Miranda is presentment. If he sees a judge in 2 days she’ll make sure he gets a lawyer.

That could not have been more true, as was demonstrated on Monday morning, April 22, when Magistrate Judge Marianne Bowler went to the Beth Israel Deconess Medical Center where Tsarnaev was receiving treatment in custody. Also present was William Fick and Miriam Conrad (fascinating look at Conrad and her history here) of the Federal Public Defender’s office in Boston. Fick, who speaks fluent Russian, and Conrad met with Tsarnaev immediately before the formal initial appearance process and represented him in the brief actual initial appearance itself.

So, all is as it should be because Tsarnaev got the initial appearance he was entitled to by law, right? No.

First off, there is the timing of the initial appearance, sometimes also colloquially referred to as “presentment”. The initial appearance is governed by Rule 5 of the Federal Rules of Criminal Procedure (FRCrP). While you may have seen mention of “within 48 hours”, the rule itself provides only that an arrested person must be taken before a magistrate “without unnecessary delay”. The “48 hours” standard for first court appearances comes from the 1991 case of County of Riverside v. McLaughlin, which held that 48 hours was the outside limit. The importance of the Rule 5 initial appearance was cemented by the Supreme Court as recently as 2009 in the case of Corley v. United States (which even suggests delays longer than six hours may be presumptively violative).

But the 48 hour limit was not honored, in either spirit or letter, by the federal authorities in charge of the detention and interrogation of Dzhokhar Tsarnaev. The formal taking into custody of Tsarnaev, the arrest, was effected and announced at 8:45 pm EST Friday night April 19 and, as evidenced by the complaint cover sheet filed with the court, Tsarnaev was immediately in federal custody. The criminal complaint signifying the formal charging of Tsarnaev is noted by Judge Bowler to have been sworn out to her at 6:47 pm on Sunday, April 21. So, Tsarnaev was charged within 48 hours of his arrest, but he was not given his initial appearance within 48 hours, as required by Rule 5 FRCrP, County of Riverside v. McLaughlin and Corley.

The Rule 5 initial appearance was finally given to Dzhokhar Tsarnaev Monday morning April 22, as evidenced by the official transcript of the proceeding. The specific sequence and timing of these events is critical because of the nature and timing of the interrogation of Tsarnaev prior to him being advised of his Miranda warnings by Judge Bowler. It appears as if there were two substantive interrogation sessions by the HIG team, a fact reported by no less than Ray Kelly, based upon claimed briefing by the federal authorities:

The police commissioner explained that was the original story that Dzhokhar told police when they began to interrogate him in the hospital, but that he later provided a more detailed account during a subsequent interview.

Both interviews appear to have happened before authorities read the younger Tsarnaev brother his Miranda rights on Monday. According to Kelly, Dzhokhar was interrogated twice by authorities in the hospital, the first time on “Saturday evening into Sunday morning” and the second on “Sunday evening into Monday morning.” According to an Associated Press report from earlier today, the questioning lasted a total of 16 hours before Dzhokhar stopped cooperating upon being informed of his right to remain silent.

Remember, however, from above, that “Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule”. This is where the Miranda, the public safety exception and right to counsel all intersect for Mr. Tsarnaev. Frankly, the government has issues on all of those fronts, but let us first look at the one that has been most discussed, and cowardly demagogued by the likes of House Intel Chairman Mike Rogers and NY Congressman Peter King, the most – Miranda and the “public safety exception”.

Professor Erwin Chemerinsky, in the Los Angeles Times, explains the nuts and bolts of the “exception”, and why it arguably does not apply to Tsarnaev’s situation:

Holder said on the Sunday talk shows that the government intended to invoke the “public safety exception” that allows suspects to be questioned without being given Miranda warnings in emergency circumstances. But this exception does not apply here because there was no emergency threat facing law enforcement.

The emergency exception to Miranda that Holder embraced was announced by the Supreme Court in New York vs. Quarles in 1984. A woman told the police that she had been raped by a man with a gun. When the police caught the suspect in a grocery store, they saw an empty holster and no gun. The man was asked about the location of the gun, and he told the officer where to find it.

The Supreme Court ruled that, although the suspect had not yet been given Miranda warnings, the statement about the gun was admissible against him because of the urgent need to find the gun. In other words, the public safety exception applies only when police are acting in an emergency to prevent serious immediate harm. If the police needed to question Tsarnaev as to the location of other bombs, the emergency exception would apply.

The New York v. Quarles case Chemerinsky discusses as setting out the public safety exception can be found here. In light of the fact that not only had multiple voices, from Attorney General Holder, to President Obama, to a myriad of investigation authorities, both local and federal, stated there was no evidence of further threat, there is some merit to Professor Chemerinsky’s opinion on the Quarles exception not being applicable to Tsarnaev by the time his interrogation commenced on Saturday April 20.

Of course, the DOJ did not rely on Quarles alone, they also invoked their now infamous “”Public Safety Exception Memo” first incarnated in a memo from Attorney General Holder dated October 19, 2010, and formally distributed in a cleaned up version dated October 21, 2010. The memo goes beyond the basic immediate public safety questions permitted by Quarles to allow further broader ranging questions:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment. (Emphasis added)

Let us give the DOJ and HIG team the benefit of the doubt under Quarles, and even their own self-stated memo (which is neither binding nor controlling law in any regard), and grant that some base level of questioning of Tsarnaev was reasonable to confirm there were no outstanding bombs, weapons or other dangers, and no outstanding co-conspirators and/or terrorist ties, whether domestic or foreign. In fact, there is court precedent in a recent case via the decision of Judge Nancy Edmunds to uphold this use of the public safety exception, in the case of the “Undie Bomber”, Umar Farouk Abdulmutallab

Grant all of these root questions, and the bolded language – from the Obama DOJ’s own Public Safety Exception Memo – delineates why there is still a significant problem with the treatment of Tsarnaev. The Rule 5 initial appearance, i.e. “presentment”, was not complied with as to Tsarnaev, and public safety questioning can neither appropriately nor legitimately delay it.

In fairness to the Obama DOJ, who has been roundly blasted for the Public Safety Exception Memo, they arguably could have gone further and not included the such strong guidance against violation of Rule 5. There is authority from both the Ninth Circuit in United States v. DeSantis, 870 F.2d 536, 541 (9th Cir. 1989), and the Fourth Circuit in United States v. Mobley, 40 F.3d 688, 692–93 (4th Cir. 1994), cert. denied, 514 U.S. 1129 (1995), for the proposition that, like Miranda, the right to counsel can give way briefly for the public safety exception under Quarles.

The extensions of the public safety exception to right to counsel by the courts in Desantis and Mobley, however, give little, if any, support to the government’s actions vis a vis Mr. Tsarnaev, because the intrusion into the constitutional right to counsel in both the other cases was so fleeting – in both it was no more than a question or two about a weapon on the premises of a search while the search warrant was actively being executed. Nothing whatsoever like the 16 hours of interrogation applied to Tsarnaev, across at least two sessions, over a period of at least two days. The “public safety” interrogation of Tsarnaev was not immediate to potential danger, was not narrow and limited, and occurred long after he had been taken into custody. And, apparently, at least as to one of those sessions, the “Sunday evening into Monday morning” session, the interrogation occurred well after formal charges had been filed with Judge Bowler.

Let’s take a look at the “right to counsel”, why it differs, and is arguably far more important in the Tsarnaev scenario than utterance of the “Miranda warnings”. The right to counsel during custodial police interrogations emanates from the seminal 1964 case of Escobedo v. Illinois. The language of the decision syllabus reflects the bright line rule announced by the court:

…where a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect in police custody who has been refused an opportunity to consult with his counsel and who has not been warned of his constitutional right to keep silent, the accused has been denied the assistance of counsel in violation of the Sixth and Fourteenth Amendments; and no statement extracted by the police during the interrogation may be used against him at a trial.

Escobedo, as direct law, was implicitly obviated two years later by the decision in Miranda v. Arizona, where the court suddenly, and somewhat curiously, placed the right to custodial interrogation counsel under the umbrella of the Fifth Amendment instead of the Sixth.

The primacy, and fundamental nature of the right to custodial interrogation counsel, however, was confirmed in the 1981 decision of Edwards v. Arizona, where the court held suspects have the right under the Fifth and Fourteenth Amendments to have counsel present during custodial interrogation, as declared in Miranda, and that right cannot be invaded absent a clear and valid waiver. While it is true, under Berghuis v. Thompkins, a suspect must affirmatively invoke his right to counsel as opposed to simply standing silent, there is no authority for interrogators to simply ignore and frustrate, over an extended period, a suspect’s express request for counsel as appears to have occurred in Tsarnaev’s case.

Once, however, a defendant is presented to the court for initial appearance, he will be afforded counsel, and counsel will in almost all cases stop immediate questioning, both to prevent incrimination and to preserve evidence as leverage for plea negotiations. That is exactly what a defense counsel should do, and exactly what our constitutional system of justice and protections contemplates. This is also exactly why the Rule 5 presentment, and not “Miranda”, has always been the critical concern in analyzing the Tsarnaev case, and still is. Once legitimate general questions as to public safety had been asked, Tsarnaev should have been afforded his Rule 5 initial appearance and access to counsel. Clearly Judge Bowler was available on Sunday the 21st, since, as previously noted, she was available to accept the swearing and filing of the criminal complaint.

Again, the timing of the interrogation, and requests for counsel, will prove critical. There are still many questions and facts to be locked down on these issues including, but not limited to:

When in the timeline did Dzhokhar Tsarnaev first invoke by requesting counsel?

How many times did he attempt to do so?

In light of the fact much of his communication to the HIG interrogators was reportedly written, were his attempts to invoke in writing too?

How did the interrogation team document Tsarnaev’s non-written responses in light of the difficulty he had in communicating?

Was there a video or audio record made to preserve the evidence?

Did Tsarnaev provide any evidence that would warrant continuation of the Quarles public safety questioning?

In light of the fact that Undie Bomber Abdulmutallab (who actually had layers of foreign terrorist ties and activities outside of the continental US) was only questioned for 50 minutes under the public safety exception, why did Tsarnaev (who had no such ties or activity) require 16 hours of interrogation over two full days, substantial portions of which were after charges were filed?

The bottom line is this: not telling a suspect about his rights in order to try obtain brief, immediate and emergency public safety information is one thing. Straight out denying and refusing a defendant constitutional rights he is legally entitled to, and has tried to invoke, is quite another. The government has issues on both fronts as to Tsarnaev.

The other thing that must be remembered is all of the foregoing likely only affects the admissibility of evidence communicated in the relevant period by Tsarnaev, not the legality of his detention and not the ability of the government to convict him. At best, it involves evidentiary exclusion principles only. There is, by all accounts, more than enough evidence to convict the man without anything he communicated being admitted in a trial (if indeed there ever is a trial). Dzhokhar Tsarnaev will not be walking free in society again no matter how it sorts out. Big and emotionally fraught cases of national interest rarely make for good, and sound, creation of law and the Tsarnaev case is no exception.

How the Tsarnaev facts and case is discussed, sorted out in court, and what foundation it lays for future cases – and there will be future cases – does, however, speak loudly as to who we are as a nation. Are we the cowering nation of supposed leaders such as Mike Rogers and Peter King, or are we the strong and resolute one envisioned by our Founding Fathers and protected by the constitutional rights they bequeathed us with? Recent polls have shown that Americans are increasingly “skeptical about sacrificing personal freedoms for security.” The people have that right, we should listen to them.


April Snows Bring May Outrage: Record Flooding Ahead

[Map, national hydrologic assessment via NOAA-NWS]

Map, national hydrologic assessment via NOAA-NWS

In contrast to headline news today, the weather seems perfectly harmless — until one looks carefully at these maps.

Though increased soil moisture levels may be a big improvement over this past summer’s drought, a serious problem remains: there’s been too much late snow and it’s going to melt quickly.

Based on the 21-MAR-2013 hydrologic map above, conditions along the Red River basin were quite bad; changes of major flooding were already predicted at that time. Since that report, the State Climatology Office at University of Minnesota recorded 4 inches of water (which includes 13 inches of snow) at their Twin Cities campus. This same station, however, received between 6-15 inches less snow over the last month than Fargo, North Dakota, located on the Red River.

The data used for the Percent Chance of Flooding map below is dated 15-APR-2013, before the final snowfall tally after The Weather Channel-branded winter storm “Xerxes” on 16-APR-2013. The area between Bismarck and Fargo received at least two feet of snow.

[Graphic: NOAA Nat'l Operational Hydrologic Remote Sensing Center]

Graphic: NOAA Nat’l Operational Hydrologic Remote Sensing Center

I’m no meterologist, climatologist, or hydrologist, but it sure looks to me like the chances of major flooding have increased from 80% to 100%. Just an uneducated guess on my part; I’ll also speculate flooding will accelerate within the next week-10 days without doing any additional research into the subject. (Hint: It’s called “spring.”)

[Graphic: NOAA-NWS River Forecast Office]

Graphic: NOAA-NWS River Forecast Office

Fortunately some folks in Minn-Dak are watching this situation carefully; volunteers in Fargo have begun filling sandbags in preparation, for example.

The total number of bags to be filled by the end next Tuesday won’t be adequate, though, against anticipated record water levels. A certain mess lies ahead.

While we have virtually nothing in the way of predictive tools to help us defend against disaffected youth intent on killing and maiming us, we do have tools to predict slow-moving challenges like annual flooding affecting millions of Americans.

Doesn’t it seem like more of us would be aware of the risks and dangers so that we as individuals, businesses, and government agencies can take truly effective measures more than a week or two in advance? Shouldn’t the age of Big Data offer us better information for local/state/federal budgeting in response to weather volatility and incipient natural disasters?

Oh wait…that would require intelligent, rational actors in government instead of science-illiterate, reactionary anti-tax freaks in office who cannot countenance paying for baseline services from National Oceanographic and Atmospheric Administration and the National Weather Service — let alone adequately fund development and implementation of new and better predictive technologies for use by the same..

In the meantime you can anticipate the media will be shocked, SHOCKED! when they finally clue in.

It would be nice if a few more members of Congress would be equally shocked to the point that they clued in, too.


DOMA’s Day At The Supremes

RainbowNiagraFallsUPDATE: HERE IS THE AUDIO OF TODAY’S ARGUMENT

HERE IS THE TRANSCRIPT OF TODAY’S ARGUMENT

I am going to do something different today and put up a post for semi-live coverage – and discussion – of the DOMA oral arguments in the Supreme Court this morning. First, a brief intro, and then I will try to throw tidbits in here and there as I see it during and after the arguments.

The case at bar is styled United States v. Windsor, et al. In a nutshell, Edith Windsor was married to Thea Spyer, and their marriage was recognized under New York law. Ms. Spyer passed away in 2009 and Windsor was assessed $363,000.00 in inheritance taxes because the federal government, i.e. the IRS, did not recognize her marriage to Spyer in light of the Defense of Marriage Act, or DOMA. Litigation ensued and the 2nd Circuit, in an opinion written by Chief Judge Dennis Jacobs, struck down DOMA as unconstitutional and ruled in favor of Edith Windsor. Other significant cases in Circuit Courts of Appeal hang in the lurch of abeyance awaiting the Supreme Court decision in Windsor, including Golinski v. Office of Personnel Management, Gill v. OPM and Pedersen v. Office of Personnel Management.

As an aside, here is a fantastic look at the restaurant where Edith Windsor and Thea Spyer met nearly 50 years ago.

Arguing the case will be Solicitor General Donald B. Verrilli again for the United States, Paul Clement for the Bi-Partisan Legal Advisory Group (BLAG) on putative behalf of Congress, because the Obama Administration ceased defending DOMA on the grounds it was discriminatory and unconstitutional, and Robbie Kaplan for Edith Windsor. Clement and Verrilli are well known by now, but for some background on Robbie Kaplan, who is making her first appearance before the Supremes, here is a very nice article. Also arguing will be Harvard Law Professor Vicki Jackson who was “invited” by SCOTUS to argue on the standing and jurisdiction issue, specifically to argue that there is no standing and/or jurisdiction, because the Obama Administration quit defending and BLAG will argue in favor of standing and jurisdiction.

Here is a brief synopsis of the argument order and timing put together by Ed Whelan at National Review Note: I include Whelan here only for the schedule info, I do not necessarily agree with his framing of the issues).

Okay, that is it for now, we shall see how this goes!

Live Updates:

10:39 am It appears oral arguments are underway after two decisions in other cases were announced.

10:51 am RT @SCOTUSblog: #doma jurisdiction arg continues with no clear indication of whether majority believes #scotus has the power to decide case.

11:00 am By the way, the excellent SCOTUSBlog won a peabody award for its coverage of the Supreme Court.

11:05 am @reuters wire: 7:56:34 AM RTRS – U.S. SUPREME COURT CONSERVATIVE JUSTICES SAY TROUBLED BY OBAMA REFUSAL TO DEFEND MARRIAGE LAW

11:15 am Wall Street Journal is reporting: Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

11:20 am Is anybody reading this, or is this a waste?

11:32 am @SCOTUSblog Kennedy asks two questions doubting #doma validity but nothing decisive and Chief Justice and Kagan have yet to speak.

11:40 am Wall Street Journal (Evan Perez) Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.

11:45 am Wall Street Journal (Evan Perez) Paul Clement, attorney for lawmakers defending the law, argued that the went to the very heart of Congress’s prerogatives. Passing laws and having them defended was the “single most important” function of Congress, he argued.

11:52 am Wall Street Journal (Evan Perez) Justice Scalia and Mr. Srinivasan parried on whether Congress should have any expectation that laws it passes should be defended by the Justice Department. Mr. Srinivasan said he wouldn’t give an “algorithm” that explained when Justice lawyers would or wouldn’t defend a statute, but ceded to Justice Scalia’s suggestion that Congress has no “assurance” that when it passes a law it will be defended. That’s not what the OLC opinion guiding the Justice Department’s actions in these cases says, Justice Scalia interjected.

11:56 am Associated Press (Brent Kendall) One of the last questions on the standing issue came from Justice Samuel Alito, who asked whether the House could step in to defend DOMA without the Senate’s participation, given that it takes both chambers to pass a law.

11:59 am Bloomberg News During initial arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in some states can create conflicts.
“You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income tax cases.
Justice Ruth Bader Ginsburg said that when a marriage under state law isn’t recognized by the federal government, “One might well ask, what kind of marriage is this?”

12:05 pm @SCOTUSblog Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

12:07 pm The argument at the Court is well into the merits portion of the case now

12:09 pm Wall Street Journal (Brent Kendall) Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

12:12 pm It is pretty clear to me, from a variety of sources I am tracking, that the Court has serious problems with DOMA on the merits. Clement is getting pounded with questions on discrimination, conflict with state laws and federalism concerns. Pretty clear that if standing is found, DOMA is going down.

12:15 pm Wall Street Journal (Brent Kendall) Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan (pictured) follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.

12:19 pm @reuters wire: U.S. SUPREME COURT CONCLUDES ORAL ARGUMENTS ON FEDERAL LAW RESTRICTING SAME-SEX BENEFITS

12:30 pm @AdamSerwer Con Justices contemptuous of Obama decision not to defend DOMA but still enforce law. Kennedy said “it gives you intellectual whiplash”

Okay, as I said earlier, if the Justices can get by the standing issue, it seems clear that DOMA is cooked. I think they will get by standing and enter a decision finding DOMA unconstitutional as to Section 3, which is the specific part of the law under attack in Windsor. That effectively guts all of DOMA.

That is it for the “Live Coverage” portion of the festivities today. It should be about an hour and a half until the audio and transcript are available. As soon as they are, I will add them as an update at the top of the post, and will then put this post on the top of the blog for most of the rest of the day for further discussion. It has been bot a fascinating and frustrating two days of critical oral argument; please continue to analyze and discuss!


18 USC 1119 Foreign Murder and Obama Targeted Kill White Paper

Back in February, when the “White Paper” was first “leaked”, Marcy wrote a fantastic article entitled Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You on the issues of Article II authority versus AUMF authority in relation to the Obama targeted killing program. First off, let me say that the the lack of recognition of the presence of both these these respective authorities in the targeted killing program, even among legal commentators I respect greatly, is one of, if not the, most discouraging aspects of the discussion being had. Sadly, the big filibuster by Sen. Rand Paul did not necessarily improve the understanding, and even the New York Times continues to propagate the misdirection and misinformation peddled by the Obama Administration.

I wish to discuss the interaction of the statutory law contained in 18 USC 1119, the “Foreign Murder statute”, with the greater Obama Administration Targeted Killing Program, and the White Paper foundation for it. Specifically I want to point out the circular and disingenuous way in which the White Paper tries to bootstrap itself, and the Administration, around criminal liability for murder in the case of a targeted US citizen such as Anwar Awlaki. Frankly, Marcy let fly with another must read post on 18 USC 1119 and the White Paper yesterday in the wake of the New York Times sop to the Administration, and it filets both the White Paper, and the NYT, open at the seams.

The most important principle to understand about the White Paper’s discussion of 18 USC 1119 is, as Marcy noted, that it is impertinent if the the law of war (formally the “Law of Armed Conflict” or “LOAC”) is truly in play. In short, if the Administration is using the AUMF – military force – in an active battle situation, there is no need for further discussion, whether Mr. Awlaki is a US citizen or not. That, of course is diametrically opposed to what the facts were at the action point with Awlaki, and that we now know.

The truth is the Administration used a civilian agency, the CIA, to kill a US citizen without judicial due process, far from the “hot battlefield” and that is why such a deliberate attempt was made in the White Paper to obfuscate the legal basis for their targeting and killing, and why such a seemingly inordinate time was spent in the White Paper on a traditional criminal law statute, 18 USC 1119.

The statutory language of 18 USC 1119 states:

(a) Definition. – In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)).
(b) Offense. – A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113.
(c) Limitations on Prosecution. – (1) No prosecution may be instituted against any person under this section except upon the written approval of the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, which function of approving prosecutions may not be delegated. No prosecution shall be approved if prosecution has been previously undertaken by a foreign country for the same conduct.
(2) No prosecution shall be approved under this section unless the Attorney General, in consultation with the Secretary of State, determines that the conduct took place in a country in which the person is no longer present, and the country lacks the ability to lawfully secure the person’s return. A determination by the Attorney General under this paragraph is not subject to judicial review.

Hard to look at the face of 18 USC 1119 and not see why it is so germane to the targeted killing discussion. But you need not take my word for it, this is why the previously somewhat arcane statute takes up five full pages, nearly a third of the discussion, in the White Paper. It is also, as Marcy pointed out in back in February, why Judge Colleen McMahon of the Southern District of New York, who unlike the commentariat, has seen the classified filings, went out of her way to focus on the intersection of the targeted killing program with 18 USC 1119 when she said in her January 2, 2013 opinion:

Assuming arguendo that in certain circumstances the Executive power extends to killing without trial a citizen who, while not actively engaged in armed combat against the United States, has engaged or is engaging in treasonous acts, it is still subject to any constraints legislated by Congress. One such constraint might be found in 18 U.S.C. § 1119, which is entitled “Foreign murder of United States nationals.” This law, passed in 1994, makes it a crime for a “national of the United States” to “kill or attempt to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country.” The statute contains no exemption for the President (who is, obviously, a national of the United States) or anyone acting at his direction. At least one commentator has suggested that the targeted killing of Al-Awlaki (assuming it was perpetrated by the Government) constituted a violation of the foreign murder statute. Philip Dore, Greenlighting American Citizens: Proceed with Caution, 72 La. L. Rev. 255 (2011).

And, as both Judge McMahon and Marcy noted, “Presidential authorization does not and cannot legitimize covert action that violates the constitution and laws of this nation.” Well, no it cannot. And that is also consistent with the “Take Care Clause” in Article II, Section 3 of the Constitution requiring a President to insure that all laws (read statutes) are “faithfully executed”. That means the President cannot simply abrogate or ignore the clear language or 18 USC 1119.

So, if the target, in this case Awlaki, was killed by a US civilian action in a foreign country and away from a, as Judge McMahon put it, “hot field of battle”, then the Administration has a problem. Houston, the Administration has a problem with 18 USC 1119.

Let’s see how strong their justification for avoidance on 1119 is as laid out in the White Paper. In a word, it is weak sauce indeed. The White Paper relied on two commingled ideas to get around 18 USC 1119, “public authority justification” and traditional criminal law enforcement justifications (for instance self defense and necessity) as embodied in domestic case precedent. So, are those justification issues bars to prosecution for the CIA drone operators and their superiors up the food chain? No.

The NYT article described the rationale of the OLC Awlaki Kill Memos, Marty Lederman and David Barron, as follows:

Now, Mr. Barron and Mr. Lederman were being asked whether President Obama’s counterterrorism team could take its own extraordinary step, notwithstanding potential obstacles like the overseas-murder statute. Enacted as part of a 1994 crime bill, it makes no exception on its face for national security threats. By contrast, the main statute banning murder in ordinary, domestic contexts is far more nuanced and covers only “unlawful” killings.

As they researched the rarely invoked overseas-murder statute, Mr. Barron and Mr. Lederman discovered a 1997 district court decision involving a woman who was charged with killing her child in Japan. A judge ruled that the terse overseas-killing law must be interpreted as incorporating the exceptions of its domestic-murder counterpart, writing, “Congress did not intend to criminalize justifiable or excusable killings.”

And by arguing that it is not unlawful “murder” when the government kills an enemy leader in war or national self-defense, Mr. Barron and Mr. Lederman concluded that the foreign-killing statute would not impede a strike. They had not resorted to the Bush-style theories they had once denounced of sweeping presidential war powers to disregard Congressionally imposed limitations. (emphasis added)

So, Lederman and Barron found justifications and then boot strapped those into their pre-desired result. First, let’s look at the “public authority justification” component. Again, that would have solid weight if it were a military strike, but the CIA stands in different shoes. Kevin Jon Heller (who wrote that first pesky 2010 blog post on 18 USC 1119 that caused Lederman and Barron such “uneasiness”), also weighed in yesterday on the nonsense pitched by Mazzetti, Savage and Shane in the NYT. Here is the key take from Professor Heller on the “public authority justification” claim:

The CIA is obviously not an “organized armed force, group, or unit” that is under the command of the US military; the CIA is, in its own words, “an independent US Government agency responsible for providing national security intelligence to senior US policymakers.” Nor are the CIA’s drone strikes controlled by the military (which would not satisfy Art. 43 anyway). The interesting provision is paragraph 3. The CIA may be an “armed law enforcement agency,” but it still does not satisfy Art. 43(3): first, it has not been “incorporated” into the US’s armed forces, because incorporation requires national legislation subjecting the agency to military control (see the ICRC Commentary to AP I, para. 1682); and second, the US has not informed al-Qaeda and its associated forces that it has been so incorporated — indeed, as widely noted, the US has never even formally acknowledged that the CIA drone program exists.

In an IAC, then, CIA drone operators would not have the right under IHL to kill anyone. And it is difficult to see how the situation could be any different in a NIAC. Arguing that the rules of IAC apply analogically in NIAC, as the US often does – it borrows the concept of an al-Qaeda “associated force,” for example, from the IAC concept of co-belligerency — is no help, for all the reasons just mentioned. So the US would have to argue that the category of privileged combatants in NIAC is somehow actually wider in NIAC than in IAC, an idea for which there is no precedent in state practice and little if any support in conventional international law. (An excellent Australian scholar, Ian Henderson, has argued that a state can authorize anyone it wants to use lethal force in a NIAC. I don’t find his argument persuasive, particularly in the context of a transnational NIAC where a state is using force on the territory of many other states, but interested readers should check out his article.)

This is a critical conclusion. If a CIA drone operator does not possess the combatant’s privilege in the US’s “NIAC” with al-Qaeda and its associated forces, the US cannot plausibly argue that — to quote another paragraph in the White Paper (p. 15) — killing someone like al-Awlaki “would constitute a lawful killing under the public authority doctrine” because it was “conducted in a manner consistent with the fundamental law of war principles governing the use of force in a non-international armed conflict.” Such a killing would not be “consistent with the “the fundamental law of war principles governing the use of force,” because the absence of combatant’s privilege means that a CIA drone operator has no right under IHL to use any force at all. As a result, a CIA drone operator prosecuted for violating the foreign-murder statute would not be entitled to a public-authority defense – at least insofar as the US purports to base his or her public authority from IHL’s recognition of the right of privileged combatants to kill.

Now that is a fairly long segment I borrowed from Kevin, but there is much more at his superb post, please do go digest all of it. Suffice it to say, for the reasons stated, the “public authority justification” just does not hold up as described in the White Paper and the New York Times paean to Lederman, Barron and the Administration.

But what about that linchpin “1997 district court decision involving a woman who was charged with killing her child in Japan” they found that permitted “excusable killings” that I bolded above? The official name and cite of the case is United States v. White, 51 F.Supp 2d 1008 (EDCA 1997), and it is mentioned a grand total of twice, as a secondary back up citation, in the White Paper. But the NYT pitched the spiel that discovery of this little known, impossible to find online, non-binding case from the Eastern District of California makes everything copacetic. Maybe the NYT did not read the case, as they did not mention or cite its name in their article, but I have read US v. White, and it does nothing of the sort claimed by the NYT and the Administration.

In fact, if anything, White stands for the fact that 18 USC is constitutional on its face, there are no Due Process denials occasioned by the statute, and that it properly encompasses the traditional federal homicide statutes contained in 18 USC 1111, 1112, and 1113 respectively. If anything, White supports the proposition that the Administration has a big problem with 18 USC 1119. As evidence, I am attaching a pdf copy of the US v. White decision so that one and all, who may not have ready access to dusty old reporters in a law library, may see it in all its glory (actually quite lack thereof). [UPDATE: Kevin Jon Heller just sent this link for White online. It is easier to read than my scan.]

I would like to make one last point, and it is a pretty important one. All these justifications, defenses, excuses – whatever term the Administration bandies about (and they have used all three of those) – as used in the White Paper and NYT article, even the “public authority justification”, are what are known in criminal law as “affirmative defenses”. But affirmative defenses are not a bar to prosecution or criminal culpability in the least; they have to be pled by the criminal defendant once charged, and then established to the jury at trial. And ask any practicing criminal defense attorney, juries are pretty skeptical of such affirmative defenses generally.

Now, in closing, I think we ought to be honest about the nature of this discussion. Fact is, the Obama Administration is never going to actually charge their own people, it is not about that; it is about the root legality of the activity. And the problem is, at root, there is no way to say that CIA performed extrajudicial execution of American citizens away from the hot battlefield is legal in the face of 18 USC 1119. The Obama Administration is trying to baffle the public with legalistic bull, and is trying to hide their illegal pea under a moving set of inapplicable and inapposite legal shells. But, in the end, it does simply does not hold water.


The Cost of Bullshit: Climate Change, National Security, and Inaction

photo: toolmantim via Flickr

photo: toolmantim via Flickr

While we’re waiting for Congress and the White House to do something productive together for once, let’s recap:

•  The Department of Defense said climate change is a critical strategic concern with regard to its operations and its impact on defense efforts, based on its legislatively-mandated Quadrennial Defense Review (QDR) published two-plus years ago in 2010;

•  The State Department also said climate change is a serious threat to our national security, noted in its inaugural Quadrennial Diplomacy and Development Review (QQDR), also published two-plus years ago in 2010;

•  A who’s who of defense and diplomacy expressed their concerns about climate change and the need for urgent action, as Marcy noted two days ago; apparently whatever action has been taken so far has not impressed these experts as responsive to the threat climate change poses.

Yet if asked, the average American likely could not point to a single action taken by the U.S. government to reduce the impact of climate change.

In other words, all the effort expended and resources spent on drafting the components of the QDR and QQDR are wasted, the words published mere bullshit—more wasted government employees’ time and taxpayer money.

How much has this wordy inaction cost us?

Here’s a more specific opportunity to save taxpayer money:

…Of all military spending, energy accounts for a small proportion, roughly less than 2% of total military expenditures and 2% of total US energy usage–but is 93% of all US government energy consumption.In fact, the US military is the single biggest consumer of energy in the nation, at about 932 trillion BTU in 2009, resulting in 4% of all US carbon emissions.

Oil accounts for 78.5% of all US military energy usage (54% of that is jet fuel); electricity is 11%, direct use of natural gas comes in a bit under electricity. Direct use of coal and other sources of energy are small fractions of total usage. …

[source: TreeHugger.com, 05-MAY-2011]

The amount spent on energy surely hasn’t declined since these numbers were published in 2009.

Yet Congress and the White House have been locking horns over the sequester for some time now, looking for places to cut costs. Doesn’t it seem like any item should be ripe for examination and audit for cost-cutting if the government is the largest consumer?

Further:

…The United States is far and away the largest military spender on the planet–but you probably already knew that. How much more? In 2010 the US accounted for 42.8% of all military spending in the world (and has doubled military spending since 2001). The next nearest competitor, China, accounts for 7.3% of global military spending. The UK, France, and Russia each spend roughly 3.7%. Japan, Saudi Arabia, Germany and Italy round out the top ten. All other nations spending 25.3% combined.

In dollar terms, the grand total spent on military offense and defense in 2010 was $1.6 trillion. So based on those calculations, done by a Swedish think tank, the US outspent China by 5.86 times. …

[source: TreeHugger.com, 05-MAY-2011]

If the U.S. is the largest military spender, its energy expenditures must likewise be the largest globally. This means the U.S. military could provide the largest impact globally on climate change by urgently and robustly changing its fossil fuel consumption.

Which begs the question: are we going to stop wasting time and money on reports like the QDR and the QDDR when we’re clearly making no effort to follow the recommendations they contain by responding to climate change and its inherent national security risks?

Or are we going to save some serious money on downsizing our military’s fossil fuel consumption AND make immediate, widespread impact on climate change and national security at the same time?

We really need an answer because this bullshit is costing us a fortune in taxes and lost societal opportunities. (Hurricane Sandy cost the federal government at least $180 million dollars; it’s not yet clear how much February’s blizzard cost in tax dollars. Toronto CAN, however, spent CA$4 million on cleanup and repairs, and it was not the municipality hardest hit by the storm.)

And with each drought and mega-storm, the lack of response is costing us even greater treasure in loss of personal opportunities, homes and lives.

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Originally Posted @ https://www.emptywheel.net/congress/page/12/