March 28, 2024 / by 

 

Lanny Davis Fudges and Shills His Way Through Another Op-Ed

Being away to San Francisco to cover the Prop 8 Closing Arguments this week, I am just catching up on a few things. One I would like to point out is the contemptible and disingenuous op-ed Lanny Davis deposited at The Hill:

Two events last week involving elements of the Democratic Party who call themselves the “true progressives” show a danger they represent to the progressive change they say they want to effect. Together they offer President Barack Obama an opportunity for a “Sister Souljah moment” — perhaps to save the Democratic Party majority in both houses of Congress, as well as his progressive agenda in the last two years of his administration.

First was the success of Sen. Blanche Lincoln in June 8’s Arkansas Democratic primary, despite a campaign organized by these self-described progressives, along with certain labor unions.
……
The second event was a conference on that June 8 primary day, held in Washington and organized by the Campaign for America’s Future, a self-described “progressive” organization, which cheered denunciations of Obama for “retreat on Guantánamo [and] no movement on worker rights or comprehensive immigration reform,” according to The Washington Post’s Dana Milbank, and shouted down and nearly prevented liberal House Speaker Nancy Pelosi (D-Calif.) from speaking.
……
President Obama can confirm that the Democratic Party still stands for the centrist, Clintonian combination of fiscal conservatism, cultural moderation and progressive social programs that favor the middle class over the extremely wealthy — the best chance the Democrats have to hold their majorities in both houses of Congress and to enact the progressive changes that the critics on the left say they truly want.

The holier than thou arrogance and self entitled belligerence of Davis is simply stunning. As if Obama has not scorned the progressives and netroots enough already. Davis apparently feels he is the one who gets to decide who is, and who is not, a “true Progressive” and those he deems unfit are due the “Sister Souljah” execution hit. Nice. In the process of whining about progressive activism destroying Democratic party unity, he wants to divide, marginalize and destroy a significant sector of the Democratic party. Clearly Davis’ clarity of thought has been so addled by the toxic brine of the inbred Washington Beltway elitism he cannot see he is committing the very sins he complains of. Either that or he is so cravenly duplicitous he does not care. Davis has a history of such duplicity.

Davis similarly accuses the netroots of being “long on innuendo and personal attacks and short on substance”, which is hilarious for a man lobbing unlinked, uncited and unsupported screed in such a deceptive manner. For instance Davis directly intimates that if/when Blanche Lincoln loses in the general election it will because of the netroot and labor supported primary challenge of Bill Halter in Arkansas. This bit of self serving dishonesty of course neglects the fact that if Davis and his fellow centrist corporate shills really cared about retaining the seat in the general election, they should have supported Halter who arguably was a stronger candidate in the general than Lincoln. Not to mention that, in the general, Lincoln will be the only, and unified, Democratic candidate and thus will be judged on her record by the voters of Arkansas. Apparently Mr. Davis does not approve of the democratic concept of voters being able to express their choice in a primary and thinks only the wise sages of the Washington Beltway get to say who the party choice is.

As to his specific arguments in relation to Lincoln, Davis neglects to mention that the majority of Arkansas voters supported the public option, it is just that he and his corporatist doppelganger Blanche Lincoln who did not. Mr. Davis also failed to admit the only version of “health reform” Lincoln would grudgingly vote for was one that gave her constituents expensive health insurance but little in the way of more or usable health care. Par for Davis’ disingenuous course.

The other manufactured poutrage Davis throws down from his grandiose high horse related to the CAF presser where Nancy Pelosi was heckled by a noisy group of protesters on June 8th. Davis dishonestly intimates in his op-ed that the subject hecklers were the progressive netroots and CAF members he so despises protesting over the public option.

But if Davis had possessed any intellectual integrity or journalistic professionalism, he would have researched and realized the hecklers were not the netroots/CAF crowd, but instead were a separate and limited single issue group of nursing home professionals from an unrelated association known as ADAPT who were concerned about the Community Choice Act relating to long term care provisions for the elderly. Instead, Davis relied on an emailed report from a friend who was not at the event, but sent Davis a missive after reading about the conference from an unknown source. Oh, and a terminally shallow Washington Post column by the supposed humorist Dana Milbank. What a paragon of reportage Lanny Davis is.

Davis closes out his fine whine with this sage wisdom:

President Obama can confirm that the Democratic Party still stands for the centrist, Clintonian combination of fiscal conservatism, cultural moderation and progressive social programs that favor the middle class over the extremely wealthy — the best chance the Democrats have to hold their majorities in both houses of Congress and to enact the progressive changes that the critics on the left say they truly want.

Well, yeah, I guess. Or Mr. Obama could, alternatively, pull out of his hazy downward spiral and demonstrate he is the leader of the whole party, and entire country, and not just the centrist corporatist hacks like Lanny Davis.

Go “Sister Souljah” yourself Lanny Davis, you plutocratic Beltway corporatist huckster.

[The attached video is from a December 17, 2009 encounter Jane Hamsher had with Lanny Davis on MSNBC]


BP Well Bore/Casing Integrity Issues and Senator Nelson’s Statements

One week ago, on the morning of June 7, I wrote about questions on the substantive physical integrity of the BP Macondo well casing and bore, and statements by Florida’s Senator Bill Nelson on the same, as well as potential resulting seepage from the sea floor surrounding the well head. To say the least it raised a few eyebrows.

I have again attached the FDL video from the appearance Nelson made on the Andrea Mitchell MSNBC show where he became the first official to materially discuss the game changing issue of sea floor seepage from a structurally compromised well below the surface. Since Nelson first made the statements and raised the questions, I have spoken to his office several times.

Here is a quote given directly to Emptywheel/Firedoglake by Senator Nelson:

Why do scientists and others suspect the well casing is breached beneath the seafloor? Well, for one, in one of my briefings I learned that a lot of mud used in the so-called “top kill” attempt didn’t come back up after it was pumped down there.

Clearly, from Senator Nelson’s quote, he has received multiple briefings in addition to the information in the public domain, and he is hearing other private disturbing reports. Quite frankly, this should be of no shock in light of that which is, and was, already in the public domain. In this post, mindful of the fact there is likely a wealth we in the public do not yet know, I would like to delve into the public evidence Senator Nelson was relying on and why this is an issue that should, and must, remain squarely in the forefront of public and media conscience.

First off, it is clear Senator Nelson’s measured statements to Andrea Mitchell were not an off the cuff or uninformed gaffe by Nelson. Quite the contrary, he and his staff had been probing the issue of the integrity of the well bore long prior to the MSNBC appearance. On June 2, Sen. Nelson directed the following correspondence to BP:

June 2, 2010

Mr. Lamar McKay
Chairman and president, BP America, Inc.
501 Westlake Park Boulevard
Houston, Texas 77079

Dear Mr. McKay:

I understand the priority of your company right now is capping the Deepwater Horizon well. But new information about the accident has come to light in two recently published accounts that raise serious questions I hope you can promptly address.

Specifically, a recent Wall Street Journal account indicates that BP altered the design of the Deepwater Horizon well even up to five or six days before the rig exploded. And one of these design decisions, according to drilling experts cited in the Journal, could have left the well more vulnerable to the blowout that occurred April 20.

Also, a Washington Post report cites sources including a BP official saying that sometime during or after the recent abortive top kill operation, new damage was discovered inside the underground well. Some of the drilling mud that was forced into the well was moving sidewise into rock formations, sources told the newspaper.

If the sourced information is accurate and mud leaked out the side of the well casing, oil and gas likely are leaking beneath the seafloor as well, according to Professor Ian R. MacDonald, an oceanography expert at Florida State University who advised my staff.

Both of the published accounts, then, raise serious questions. Please address these accounts and provide my staff with any and all information and documents regarding the following:

· The discovery of breaks or leaks in the well casing beneath the seafloor;
· Records of any monitoring BP is undertaking of the Deepwater Horizon wellbore for structural integrity;
· Records of any monitoring of the seafloor surrounding the Deepwater Horizon well, including any geological or geophysical information showing changes in the formations within the proximity of the Deepwater Horizon well;
· Records reflecting whether any oil, natural gas, or residual drilling mud might be migrating to the seafloor beyond the boundaries of the casing, including any analysis of how this might impact the drilling of two relief wells or other methods to mitigate the flow of oil;
· All documents related to BP’s casing strategies for wells in the Macondo prospect.

Thank you in advance for your prompt response.

Sincerely,

Bill Nelson

The first of the two articles Nelson relies on in his June 2 correspondence to BP is from the Washington Post on May 31, 2010. After noting that drilling experts were afraid the failed “Top Kill” attempt by BP, which involved shooting drilling mud down through the heavily damaged blow out preventer (BOP) and into the well “might have done further damage to the well”, the Post article stated:

Sources at two companies involved with the well said that BP also discovered new damage inside the well below the seafloor and that, as a result, some of the drilling mud that was successfully forced into the well was going off to the side into rock formations.

“We discovered things that were broken in the sub-surface,” said a BP official who spoke on the condition of anonymity. He said that mud was making it “out to the side, into the formation.” The official said he could not describe what was damaged in the well.

Therein lies the issue at the heart of the issue regarding the lack of well integrity; with the Post citing multiple (if some unnamed) sources confirming the well casing was completely breached to such an extent that, when the Top Kill attempt was made, they lost drilling mud out through the breached casing, well walls and into the surrounding rock formation. Now the other thing I find absolutely fascinating about this Washington Post article in the discussion of Dr. Steven Chu and the Department of Energy (DOE) tucked in toward the end:

“At the end of the day, the government tells BP what to do, and at the end of the day, we will hold BP accountable for all of this,” she said.

She also sought to portray the administration as in charge and engaged. She said an administration “brain trust” led by Energy Secretary Steven Chu urged BP to stop adding pressure to the well through the top-kill maneuver because “things could happen that would make the situation worse.”

But she stopped short on CBS of saying that Chu ordered an end to the top-kill maneuver.

Well, Carol Browner may have “stopped short” of saying that Dr. Chu and the DOE were the ones who ordered the premature termination of the ill fated Top Kill attempt by BP, but it is pretty clear that is exactly what happened.

A decent question is by what mechanism did Chu and DOE come to be so in the middle and calling the shots on the Top Kill operation? Not that DOE has no interest, but MMS/Department of Interior are the lessors, and generally the well operation authority, for the government for this area of the Gulf; why is DOE micro-managing well operations? A copy of the actual BP lease for the Macondo Well at Mississippi Canyon 252 is here. And who else from DOE beside Steven Chu was tasked to this “brain trust” and calling shots for the BP Macondo catastrophe reclamation effort? What information and evidence regarding the compromised and blown state of the Macondo Well are they still withholding from the public? Oh, and another thing, under the terms of the lease, BP was, and is, supposed to be providing weekly reports, well logs and other information to MMS. Where is all that information, and why is none of it, apparently, available to the public?

The Wall Street Journal article Nelson cited only reinforces the the above facts, issues and questions, but also gives a view of how rickety the BP casing work was on its Macondo well, why there was an almost immediate blowout and why it is a given there is little, if any, integrity of the well bore:

By April 14, when BP filed the first of three permits that would later be amended, the London-based oil company had already faced many problems with the well, including losing costly drilling fluid and fighting back natural gas that tried to force its way into the well. The problems had caused BP to use eight pieces of steel pipe to seal the well, rather than the planned six pieces. The permit filed on April 14 dealt with the eighth and final section, which hadn’t yet been installed in the well.

BP had hoped to get a 9 7/8-inch pipe—big enough to handle a lot of oil and gas—into the reservoir. But for the final section, the largest pipe they could fit was a 7-inch pipe. The company had to decide whether to use a single piece of pipe that reached all the way from the sea floor down to the oil reservoir, or use two pipes, one inside the other.

The two-pipe method was the safer option, according to many industry experts, because it would have provided an extra layer of protection against gas traveling up the outside of the well to the surface. Gene Beck, a longtime industry engineer and a professor at Texas A&M University, said the two-pipe method is “more or less the gold standard,” especially for high-pressure wells such as the one BP was drilling.

But the one-pipe option was easier and faster, likely taking a week less time than the two-pipe method. BP was spending about $1 million per day to operate the Deepwater Horizon.
……
At 9:54 a.m. on April 15 BP filed another permit informing the MMS of a correction. Rather than using a 7-inch-wide pipe the whole way, it planned to run a tapered pipe that was wider at the top than at the bottom. This was approved by the MMS seven minutes later.

Then, at 2:35 p.m., BP filed another revision. This one informed the MMS that it had “inadvertently” omitted mention of a section of pipe already in the well. Four and one-half minutes later, MMS approved this permit also.

Last year, the MMS floated a proposal to require all companies to “document and analyze” all major changes. BP responded during a comment period that the proposed safety rules were unnecessary.

Less than five days and a whole lot more warning signs later, the Macondo well had blown, the Deepwater Horizon rig had exploded and was on fire and the biggest environmental disaster in American history was well underway. And now, 55 days later, and a series of ever more destructive and futile attempts to stanch the flow of hydrocarbon from the mouth of the Macondo, we stand with a well head leaking more than ever into the waters of the Gulf of Mexico and its fragile ecosystem. Not to mention serious concerns as to whether the oil and gas pollutants are also seeping up from the immediately surrounding sea floor.

To return to the original issue of this post, it appears quite clear Florida’s Senator Bill Nelson was on very solid ground with his statements about the compromised state of the Macondo well casing and well bore walls, there is a record of everyone from BP officials to government officials to drilling professionals to outside experts agreeing on the substantial loss of well integrity. The only part of the well that appears to still have any known integrity is the cement collar immediately below the well head, and there is little reason to believe even that will necessarily remain intact under the circumstances.

The only question at this point whether or not there has been seepage or leakage detected from the sea floor surrounding the Macondo well head as suggested by Senator Nelson and Professor MacDonald and, if so, to what extent. Senator Nelson and the public are entitled to answers from BP, and for that matter from the Obama Administration and its officials, to the material and germane questions raised in Nelson’s June 2 letter to BP, and they are entitled to them immediately. Lastly, the Obama Administration, the DOE and its head Steven Chu, and BP should all explain exactly what role each played in the ill fated Top Kill and Junk Shot operations, and why the DOE, and through what agents, was so centrally involved in the Top Kill/Junk Shot and what damage they caused to the Macondo well structure in the process.


BP Oil Slick The Result Of Republican DOJ And Regulatory Policy

The economic and environmental damage resulting from the exploding fireball compromise of the Deepwater Horizon oil platform may be unprecedented, with the potential to emit the equivalent of up to four Exxon Valdez breakups per week with no good plan to stop it. There will be plenty of finger pointing among BP, Transocean and Halliburton, while it appears the bought and paid for corporatist Congress put the screws to the individual citizens and small businesses by drastically limiting their potential for economic recovery; all in the course of insuring big oil producers like BP have effectively no damage liability for such losses.

How did this happen? There are, of course, a lot of pertinent factors but, by far, the one constant theme underlying all is the mendacious corporate servitude of the Republican party, their leaders and policies. The arrogance and recklessness of BP and its oily partners gestated wildly under the Bush/Cheney administration.

Until the turn of the decade, BP had a relatively decent safety and environmental record compared to others similarly situated. Then BP merged with American oil giant Amoco and started plying the soft regulated underbelly of Republican rule in the US under oil men George Bush and Dick Cheney. Here from the Project On Government Oversight (POGO) is an excellent list of BP misconduct, almost all occurring and/or whitewashed under the Bush/Cheney Administration. If you open the door, foxes eat the chickens.

But it is not just regulatory policy behind the open and notorious recklessness of BP and its ilk, it is intentional policy at the Department of Justice as well. Here is how the former Special Agent In Charge for the EPA Criminal Investigative Division, Scott West, described the DOJ coddling of BP under the Bush/Cheney Administration:

In March 2006, a major pipeline leak went undetected for days, spilling a quarter-million gallons of oil on the Alaskan tundra. The spill occurred because the pipeline operator, British Petroleum (BP), ignored its own workers warnings by neglecting critical maintenance to cut costs. The spill sparked congressional hearings and a large federal-state investigation. Despite the outcry, in a settlement announced in late October 2007, BP agreed to one misdemeanor charge carrying three-year probation and a total of only $20 million in penalties (a $12 million fine with $8 million in restitution and compensatory payments).

The settlement resulted from a sudden U.S. Justice Department August 2007 decision to wrap up the case, according to West. That precipitous shutdown meant

Felony charges would not be pursued and the agreement foreclosed any future prosecutions. No BP executive faced any criminal liability for a spill second in size only to the Exxon Valdez;

The fines proposed by Justice (to which BP immediately agreed) were only a fraction of what was legally required under the Alternative Fines Act. EPA had calculated the appropriate fine levels as several times what Justice offered BP – ranging from $58 million to $672 million, depending upon the economic assumptions; and

The BP Alaska settlement is part of a pattern of “lowball” corporate public safety and pollution settlements engineered by the Bush Justice Department. In that October 2007 settlement package, Justice asked for only $50 million in fines for the BP Texas refinery explosion in which 15 people died – penalties not carrying strong deterrent value for a big multi-national corporation

The above is verbatim from a formal complaint filed with the Inspector General of the DOJ, Glen Fine, by West and a group known as Public Employees for Environmental Responsibility (PEER). The complaint went on to quote West as follows:

Never …have I had a significant environmental criminal case shut down by the political arm of the Department of Justice, nor have I had a case declined by the Department of Justice before I had been fully able to investigate the case. This is unprecedented in my experience.

When a chief agency criminal investigator cannot get traction for the prosecution of crimes, and considers the internal DOJ policy to be complicit, you might have a problem. It appears, however, the complaint went nowhere, which is not IG Glen Fine’s fault as, once again, DOJ accountability has been prevented by the fact that, unique to executive agencies, the DOJ IG has no jurisdiction over the conduct of the attorneys in the DOJ and goodness knows neither OPR nor David Margolis would countenance such an investigation.

By the way, since I have not seen anybody else mention it, much less the Obama/Holder DOJ appear to care, it should be pointed out that BP, despite the bend over sweetheart comprehensive deal the Bush DOJ worked out for them, is still on at least two different criminal probations for their malevolent reckless and intentional conduct. One case was for the Alaska spill and BP was placed on criminal probation for three years starting in December 2007. The other case was a felony plea resulting from the Texas City Refinery explosion. Here is the plea agreement from the Texas City Refinery case and here is the concurrent statement of facts in support thereof.

As special Agent Scott West complained, they were indeed sweetheart deals cut in a comprehensive settlement swath by the Bush DOJ; nevertheless there are still multiple criminal probations BP is still operating under. Where is the DOJ on this now? Contemplating a third strike, repeat offender takedown of BP? No, there has been nary a peep in this regard from the Obama/Holder DOJ. In fact, the only lawyers DOJ has indicated they are assigning the BP Deepwater Horizon catastrophe are Civil Division and Natural Resource Division talking heads Tony West and Ignacia Moreno. Nope, par for the course, the DOJ is sending managers to smooth the waters, not prosecutors and investigators to bring accountability.

The DOJ under the politicized Republican rule of Bush and Cheney instituted a preference for coddling corporate malfeasants like BP and Exxon with lax civil measures instead of punitive criminal prosecutions and, in the process, created a get rich windfall program for their friends to serve as “monitors” for the civil settlements. The policy was begun when Bush first took office and was formally instituted as DOJ policy by Bush/Cheney water carrier Paul McNulty in 2006. From an April 2008 New York Times article by Eric Lichtblau:

In a major shift of policy, the Justice Department, once known for taking down giant corporations, including the accounting firm Arthur Andersen, has put off prosecuting more than 50 companies suspected of wrongdoing over the last three years.

Instead, many companies, from boutique outfits to immense corporations like American Express, have avoided the cost and stigma of defending themselves against criminal charges with a so-called deferred prosecution agreement, which allows the government to collect fines and appoint an outside monitor to impose internal reforms without going through a trial. In many cases, the name of the monitor and the details of the agreement are kept secret.
…..
But critics of the agreements question that assertion. Charles Intriago, a former federal prosecutor in Miami who specializes in money-laundering issues, said that huge penalties, like the $65 million fine for American Express Bank International in 2007, were “peanuts” compared with the damage posed by a criminal conviction.

Neutering the criminal deterrent of the DOJ criminal process for big business and corporate interests, and gutting of regulatory agencies, is the Republican ethos. It is what they live for, and what gets us where we are with catastrophes like the Gulf oil slick. A guest poster at Digby, Debcoop, hit the nail on the head:

The fault lies with the ideology and mores of the Republican party and its theory of government. Their solution to this country’s energy’s future is to drill anywhere and everywhere. In their theory of government, government has no right to control who, what, where and how the natural resources of this country or this planet are exploited or not exploited, resources that are needed by us all and are needed to protect us all. Like my friend Jim Gilliam said in a private email, government is supposed regulate corporate behavior not just be their willing partner/follower. This is a lesson that we all need to keep in mind and that includes the president.

In the Republican theory of government, government regulation is inherently evil or at least counterproductive. So under George Bush et al, the only regulation in the Gulf has been self regulation. This oil spill is the fault of Republican ideology.

It is who the Republicans are, and what they do. And when they cannot accomplish their goals by legislating in service to corporate masters, they pack the Supreme Court with corporatist ideologues like Roberts, Alito and Thomas. The result is directly displayed by the 2008 decision in Exxon Shipping Co. v. Baker:

…a nakedly activist decision that pulls its standard for limiting damages out of thin air, demonstrates hostility to the role of Congress, and continues a pattern of ignoring the Framers’ views on the importance of civil juries. Progressives would do well to treat this decision with resounding scorn, and highlight it as a textbook example of why the Supreme Court matters.

The case arose from the 1989 Exxon Valdez spill, wherein Exxon allowed Joseph Hazelwood, a relapsed alcoholic, drunk at the time, to the helm of a massive oil tanker navigating the treacherous waters of Alaska’s Prince William Sound at night. The ship ran into a reef, ruptured and spilled 11 million gallons of crude oil, devastating the Sound’s fragile and pristine ecosystem. Grant Baker is one of 32,000 commercial fishermen and Alaska Natives that sued Exxon for their economic losses and for punitive damages against Exxon.

More than 6,000 of these victims have died during the course of this litigation, which Exxon has tenaciously prolonged for 16 years with appeal after appeal. In 2006, the Ninth Circuit Court of Appeals cut what was originally a $5 billion jury verdict down to $2.5 billion. Today, the Court cut this again for Exxon to a maximum of $500 million.

It is not just the Republicans however, Democrats have become the same kind of servile lackeys for big corporate interests as the Republicans. The Obama DOJ has continued the Bush/Cheney/McNulty policy of coddling corporate criminals with civil treatment as opposed to hard criminal prosecution and conviction of both corporations and their leaders. And if Barack Obama follows through with his impostrous determination to appoint a “moderate consensus builder” like Elena Kagan to replace John Paul Stevens, you can expect even more corporatist decisions from the Supreme Court.

Business/government symbiotic corporatism is becoming the defining characteristic of our government; the United States is on the road to neo-feudalism in a land run by the New Robber Barons. The oil slick in the Gulf can either be a wake up call, or grease for a further slide down the current slope.

UPDATE: Jason Leopold has a new article up at Truthout that meshes perfectly with this post. As I noted above, BP was on criminal probation for the Texas City Refinery fire; Jason follows up with the literally dirty details of just how repetitively and badly BP has wantonly violated said probation:

“It was the most comprehensive and detailed investigation the CSB has ever done,” Bresland said March 24, marking the fifth anniversary of the refinery explosion. “Our investigation team turned up extensive evidence showing a catastrophe waiting to happen. That cost-cutting had affected safety programs and critical maintenance; production pressures resulted in costly mistakes made by workers likely fatigued by working long hours; internal audits and safety studies brought problems to the attention of BP’s board in London, but they were not sufficiently acted upon. Yet the company was proud of its record on personnel safety.” According to OSHA, BP has not only failed to comply with the terms of its settlement agreement, it has knowingly committed hundreds of new violations that continue to endanger the lives of its refinery workers. ….. Still, as highlighted in a January 2007 report issued by a panel chaired by former Secretary of State James Baker III, systemic issues related to process safety were not limited to the firm’s Texas City refinery. In fact, they were widespread.

Leopold’s article is a good read and gives a good bead on the reckless operating philosophy of BP which gestated under the lax regulatory and prosecutorial Republican regime of Bush/Cheney as discussed in the body of this post above.


SEC: CoxSlackers & BushWackers Fiddled While Wall Street Burned

The big outrage de jour making the rounds in the media currently is the porn scandal at the Securities and Exchange Commission (SEC). This report from the Washington Post is typical of the reporting coming out of the main media:

Republicans are stepping up their criticism of the Securities and Exchange Commission following reports that senior agency staffers spent hours surfing pornographic websites on government-issued computers while they were supposed to be policing the nation’s financial system.

California Rep. Darrell Issa, the top Republican on the House Oversight and Government Reform Committee, said it was “disturbing that high-ranking officials within the SEC were spending more time looking at porn than taking action to help stave off the events that put our nation’s economy on the brink of collapse.”

He said in a statement Thursday that SEC officials “were preoccupied with other distractions” when they should have been overseeing the growing problems in the financial system.

Would it be too much for the media to actually think for a moment before they perform stenography for alarmist Darrell Issa? Because even a moment’s pause would yield the realization that Republican outrage on this is absurd and duplicitous. In fact the SEC – IG report produced for another of the Republican howlers, Iowa Senator Charles Grassley, proves the pornification of the SEC was born and grown during the Bush/Cheney Administration and the leadership of Republican stalwart and longtime Issa colleague and friend Chris Cox. The IG Report also demonstrates quite clearly that the vast majority of the incidents occurred during Cox’s reign during the second Bush term, although there were some that continued on during the Obama Administration.

But it is not just that the problem was born and matured under Bush and Cox, it is the fact that it is symptomatic for the emasculation and gutting of the SEC which occurred at their hands and express direction. It was not a bug, but a feature. As Bloomberg News reported last year:

Under former SEC Chairman Christopher Cox, the agency instituted policies that slowed cases and led enforcement-unit lawyers to conclude commissioners opposed fining companies, the Government Accountability Office said in a report today. An unidentified attorney said it was “widely felt” commissioners prevented the division from “doing its job,” according to the report.

“Some investigative attorneys came to see the commission as less of an ally in bringing enforcement actions and more of a barrier,” the GAO said. Cox’s policies “contributed to an adversarial relationship between enforcement and the commission.”

The non-partisan GAO report on the Bush/Cox SEC found poor management, determination to not pursue cases, lack of transparency, and collusion with business interests. It was the Republican philosophy and direction which neutered the SEC. It is little wonder they took to surfing the net for porn, they literally had nothing else to do under Republican “leadership”.

So perhaps the media stenographers ought to remember this when suddenly howling duplicitous Republican shills like Issa and Grassley want to tar, feather and undermine the SEC now that Democratic leadership, led by Mary Schapiro, have cleaned the agency up, turned it around and put it back to work doing its oversight and enforcement job.

On a related note in things financial, our friend Selise is going to be along in comments to discuss her Seminal Diary on financial reform and the commendable Fiscal Sustainability Conference and Teach-In occurring next week in Washington DC. This is a worthy effort and is supported by a variety of progressive interests including Jamie Galbraith and my friend and former colleague, Ian Welsh.

(graphic by nathan bransford)


Scott Bloch Cops A Plea For Bloching Justice

You might remember our old friend Scott Bloch, the former head of the United States Office of Special Counsel under the Bush/Cheney Administration. The OSC’s primary mission is to safeguard the Federal merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. You might also remember Bloch was the one David Iglesias was sure could unravel the US Attorney Purgegate and nail Karl Rove. That didn’t work out so well, and then Bloch got in hot water himself for purging his own computers with the pros from “Geeks on Call” performing a “seven level wipe” for him.

Well, to make a long story short, it appears Lady Justice has finally caught up to the intrepid BlochHead. From the Washington Post:

Scott J. Bloch, the former director of a federal office in charge of helping shield government whistleblowers from unfair treatment, plans to plead guilty to withholding information from congressional investigators after he had his office computer files professionally deleted in 2006.

U.S. prosecutors filed papers in federal court Thursday that accuse Bloch, who led the Office of Special Counsel through much of President George W. Bush’s administration, of failing to truthfully answer questions about whether he arranged for private computer technicians to “scrub” his office computer and that of other political appointees. This type of filing, known as an information, is made public when a suspect is about to plead guilty to the allegations.

Bloch came under criticism early in his tenure as special counsel for ordering all mention of workplace discrimination based on sexual orientation be removed from OSC’s Web site and printed materials. Bloch stated his office lacked the authority to ban discrimination on the basis of sexual orientation.

He was abruptly removed from his post and barred from returning to his office in October 2008 after a meeting with White House officials.

The root here is Bloch is to plea to withholding information about his computer scrape from the House Oversight and Government Reform Committee. A criminal information was filed today, and that means his change of plea to guilty is on the immediate horizon, very possibly tomorrow. Here is the AP version of the story.

Hilariously enough, Bloch’s troubles began when someone blew the whistle on him; from a February 2007 Washington Post article:

A trouble-plagued whistle-blower investigation at the Office of Special Counsel — whose duties include shielding federal whistle-blowers — hit another snag this week when employees accused the special counsel of intimidation in the probe.

The Office of Personnel Management’s inspector general has been investigating allegations by current and former OSC employees that Special Counsel Scott J. Bloch retaliated against underlings who disagreed with his policies — by, among other means, transferring them out of state — and tossed out legitimate whistle-blower cases to reduce the office backlog. Bloch denies the accusations, saying that under his leadership the agency has grown more efficient and receptive to whistle-blowers.

The probe is the most serious of many problems at the agency since Bloch, a Kansas lawyer who served at the Justice Department’s Task Force for Faith-based and Community Initiatives, was appointed by President Bush three years ago. Since he took the helm in 2004, staffers at the OSC, a small agency of about 100 lawyers and investigators, have accused him of a range of offenses, from having an anti-gay bias to criticizing employees for wearing short skirts and tight pants to work.

At any rate, the continuing saga of Bungalow Bloch appears to be nearing an end. Oh well, another name to the Bush Administration convict list and another update of Hugh’s Bush Scandal List needed.


Obama Killed The Johnsen Nomination, Not Ben Nelson Nor The GOP

It strikes me as necessary to follow up a bit on the death of the Dawn Johnsen nomination to lead the Office of Legal Counsel at the Department of Justice. Specifically, it needs to be clear the conventional wisdom of the main media, and even a surprising number of normally more clear headed progressive bloggers, that the nomination failed because of opposition from Republican obstruction coupled with opposition by Ben Nelson, is completely and patently false.

The false meme was already in play with the first substantive reporting by Sam Stein at Huffington Post as I noted yesterday. It is being propagated by the Washington Post (Republicans and “moderate lawmakers”), the New York Times (conservatives and two Democrats), even progressive stalwarts like Glenn Greenwald and McJoan at DKos have discussed the effects of the Republicans and Ben Nelson on the torpedoed nomination (although, to be fair, neither ascribes full blame on the GOP and Nelson).

Perhaps the best example of purveying the false wisdom comes from Jake Tapper at ABC. Tapper, in an article supposedly about the Obama White House not having the stomach for a fight on Johnsen, nevertheless proceeds to regurgitate the usual suspects:

Senate Republicans opposed her nomination overwhelmingly, meaning Senate Majority Leader Harry Reid, D-Nev., needed 60 votes to bring her nomination to the floor of the Senate for a vote.

The White House put all the blame on the Republican minority — White House spokesman Ben LaBolt said, “Senate Republicans will not allow her to be confirmed” — but it was a bit more complicated than that.

A Senate Democratic leadership source said that throughout 2009 two Democrats said they would vote against her — Sen. Ben Nelson, D-Neb., and Sen. Arlen Specter, D-Pa. The only Republican of the 40-member GOP caucus who said he would vote for her was her fellow Hoosier, Sen. Dick Lugar, R-Ind.
…..
Specter remained opposed to Johnsen’s nomination even after he switched parties in April 2009, but his primary opponent Rep. Joe Sestak, D-Pa., began to attack Specter for his opposition to her nomination.

Johnsen’s nomination expired at the end of 2009, but in January 2010 Specter said he’d vote for her.

This is a bunch of bunk. I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles; for now though, I want to revisit the false light being painted on Ben Nelson and Arlen Specter on the nomination’s failure.

To date, the only journalist I have seen to even come close to being accurate about Ben Nelson’s status on Johnsen’s nomination is Charlie Savage at the New York Times, who yesterday briefly noted:

And it was not clear whether Mr. Nelson would join Republicans in trying to block a vote on Ms. Johnsen with a filibuster.

And that is the only germane question. It matters not whether Ben Nelson likes Johnsen, nor even if he would vote for her on the floor; the only salient issue is whether Nelson would vote for cloture and permit a floor vote. Ben Nelson never said he would block cloture. Never. And when questioned by the Indianapolis Star, he said the WH had never even discussed the subject with him.

Nelson said Wednesday that he doubted Johnsen’s nomination would be brought to a vote.

“We have to let the administration decide what they want to do,” Nelson said. Asked if he has told the administration whether he’d vote for Johnsen, Nelson said he hasn’t been asked.

There is no evidence whatsoever Nelson would have voted against allowing the nominee of Barack Obama, the sitting President of his own party, to have an up or down vote. None. How Nelson would have voted on the up or down floor vote is irrelevant as there were far more than the 51 votes for confirmation in an up or down vote. Ben Nelson was not the problem.

Arlen Specter was not the problem either. Specter’s office directly confirmed to me that he was, and has been, willing to allow cloture on the up or down floor vote for Johnsen, and likely willing to support her in said up or down vote, ever since his second face to face meeting with Johnsen on May 12, 2009 and Specter confirmed the same to Marcy Wheeler in late February. The failure of the Johnsen nomination cannot be laid at the feet of Arlen Specter.

Oh, and one other thing should also be kept in mind, there is a very good chance that, if it ever came down to them, either or both of the Maine twins, Olympia Snowe and Susan Collins, would have permitted cloture on a floor vote too. They have a record of not blocking votes on Democratic Presidential nominees going back to the Clinton era and leading Maine women’s groups were very optimistic they would allow it on Johnsen if it came down to them (which I also separately confirmed with the groups).

So, it was not Ben Nelson who killed the nomination of Dawn Johnsen, nor was it Arlen Specter or Senate Republicans. No, the sole reason Dawn Johnsen is not leading the OLC is that Barack Obama and his coterie of advisors did not want Dawn Johnsen leading the OLC. The Obama Administration cravenly hung their own nominee out to dry, and the reason is almost certainly that she was not compatible with the Administration’s determination to maintain, if not expand, the Bush/Cheney positions on unbridled executive power, indefinite detention without due process as well as warrantless wiretapping and other Fourth Amendment invasions.

You want to know why the Obama White House killed their own nomination of Dawn Johnsen? Glenn Greenwald put it so well that I cannot improve on it and will just adopt and incorporate his spot on words:

virtually everything that Dawn Johnsen said about executive power, secrecy, the rule of law and accountability for past crimes made her an excellent fit for what Candidate Obama said he would do, but an awful fit for what President Obama has done. To see how true that is, one can see the post I wrote last January detailing and praising her past writings, but all one really has to do is to read the last paragraph of her March, 2008 Slate article — entitled “Restoring Our Nation’s Honor” — in which she outlines what the next President must do in the wake of Bush lawlessness:

The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.

What Johnsen insists must not be done reads like a manual of what Barack Obama ended up doing and continues to do — from supporting retroactive immunity to terminate FISA litigations to endless assertions of “state secrecy” in order to block courts from adjudicating Bush crimes to suppressing torture photos on the ground that “opennees will empower terrorists” to the overarching Obama dictate that we “simply move on.” Could she have described any more perfectly what Obama would end up doing when she wrote, in March, 2008, what the next President “must not do”?

I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges. I find it hard to believe that the Dawn Johnsen who wrote in 2008 that “we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power” would stand by quietly and watch the Obama administration adopt the core Bush/Cheney approach to civil liberties and Terrorism. I find it impossible to envision her sanctioning the ongoing refusal of the DOJ to withdraw the January, 2006 Bush/Cheney White Paper that justified illegal surveillance with obscenely broad theories of executive power. I don’t know why her nomination was left to die, but I do know that her beliefs are quite antithetical to what this administration is doing.

There is your answer. In brutal black and white. And progressives better wake up and start paying attention, because what you see here is extremely telling about the mindset and backbone, or severe lack thereof, the Obama White House has for the coming nomination and confirmation battle to replace Justice Stevens. If past is prologue, we are on the cusp of shifting the ideological balance of the Supreme Court severely to the right – under a Democratic “liberal” President.


The Inevitable Sacking Of The Dawn Johnsen Nomination

There was never any question but that the nomination of Dawn Johnsen to be head of the Department of Justice Office of Legal Counsel would be withdrawn. None. Much to the dismay of progressives everywhere who believe in the principles Professor Johnsen has written and stood for, early on in the Obama Administration it was crystal clear Mr. Obama and his Administration had retreated completely from the what has turned out to be empty rhetoric of his campaign and short term in the Senate.

As dday and Sam Stein have already alerted, Professor Johnsen’s nomination has been withdrawn. I want to focus on a later part of Stein’s piece in the Huffington Post, not to pick on Sam who is a fantastic reporter, but to knock back the bullshit meme that is going to be pervasive in the media:

The withdrawal represents a major blow to progressive groups and civil liberties advocates who had pushed for Johnsen to end up in the office that previously housed, among others, John Yoo, the author of the infamous torture memos under George W. Bush.

But the votes, apparently, weren’t there. Johnsen had the support of Sen Richard Lugar (R-Ind.) but was regarded skeptically by Sen. Ben Nelson (D-Neb.) — primarily for her positions on torture and the investigation of previous administration actions. A filibuster, in the end, was likely sustainable. Faced with this calculus, the White House chose not to appoint Johnsen during Senate recess, which would have circumvented a likely filibuster but would have kept her in the position for less than two years.

In a statement accompanying Johnsen’s letter, White House spokesman Ben LaBolt said her credentials were “exemplary and her commitment to the rule of law has been proven time and again.”

“After years of politicization of the Office during the previous administration, the President believes it is time for the Senate to move beyond politics and allow the Office of Legal Counsel to serve the role it was intended to – to provide impartial legal advice and constitutional analysis to the executive branch,” LaBolt added. “He will work now to identify a replacement and call on the Senate to move swiftly to confirm that nominee in order to achieve those goals.”

It is indeed a serious blow to progressives; but far more than that, it is a serious blow to the country and its desire to bring common sense, morality and the rule of law back to the tattered United States Department of Justice. No division of the DOJ has more symbolized the rot, moral and legal decay brought on by the Bush/Cheney Administration than the OLC where the sick and despicable opinions of John Yoo, Jay Bybee and Steve Bradbury emanated from. This is why Dawn Johnsen was both symbolically and pragmatically so critical and so welcomed. But it was not to be; it was never to be.

But Stein, and the rest of the major media that has had their head in the sand and not been paying attention need to wake up and realize that the failure of the Johnsen nomination is NOT and NEVER WAS about a lack of votes. No, it is completely and unequivocally about the failure of Barack Obama and his Administration to support their own nominee and stand up for the values she proffered which led them to select her in the first place. This is about Obama, not the Senate, not Republicans and not about obstruction. From an earlier post:

If one needed any more confirmation of the stunts Obama and his Administration have been pulling without the strong and principled leadership at the OLC (and there really should be no question after the wholesale adoption of Bush policies on surveillance and torture that are at complete odds with Johnsen’s long-stated beliefs), it came like a ton of bricks with the recent revelation that Obama brazenly used the OLC to retroactively immunize serial and repetitive illegal and unconstitutional violation of Federal wiretapping laws by the FBI and telecom companies.

By the way, we have now seen the OPR Report on the “Torture Memos”; did you know that there has been a parallel OPR investigation going on all along over the OLC illegal warrantless wiretapping memos?? You have to wonder where that report is and how it played into the refusal to support Dawn Johnsen. You also have to wonder why nobody else is asking that question.

I wrote about this previously here and here and demonstrated the point with evidence. Yet no matter what my effort, the point refused to gain traction in the greater media. Will the major media continue to flail with their head in a dark place? You can bet on it.


Here Comes The Judge; Gitmo Military Commissions Redux

It has now been a little over a month since we learned just how far over the due process rule of law cliff the Obama Administration has gone with regard to politicization of the DOJ prosecutorial function in relation to terrorist trials. That striking realization came courtesy of Jane Mayer’s and Josh Gerstein’s respective reports on the Rahm/Obama negotiations with Lindsay Graham to go strictly with military commissions and Eric Holder’s seeming resignation that such may indeed be the case.

There are two new developments that would seem to indicate the Obama Administration is indeed moving toward capitulation to the neocon howlers on the issue of military tribunals over civilian trials. First, from Main Justice comes word that the Graham/Emanuel deal is looking like it is on and Graham has finalized his proposal on terrorist detentions and trials band and he and the administration are circulating it on the hill:

Graham’s proposal comes after weeks of discussion between the South Carolina senator and White House Chief of Staff Rahm Emanuel. In January, Emanuel and Graham began talks on a deal: Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, terrorist attacks, would be tried in a military tribunal, in exchange for Graham’s support for a new U.S. detention center to replace Guantanamo Bay. (Graham has warned that his support for closing Gitmo would be affected by a civilian trial for KSM, which he adamantly opposes.) According to an unnamed administration official cited by The Post, those discussions have broadened and Graham now hopes to reach a “grand bargain” that would resolve many outstanding questions concerning terrorist detention.

The White House opposes some of the ideas in Graham’s proposal, such as a separate national security court to try alleged terrorist detainees, according to The Post. But other provisions — including one that would create a standard process for dealing with habeas petitions, where alleged terrorists challenge their status as “unlawful enemy combatants” in U.S. courts — are likely to find support, The Post said.

It is all disquieting enough, but the last part signals a abject willingness by the Obama Administration to have Congress restrict habeas access to courts; I guess they are noticing that real courts keep thinking there is no justification for detention of the people they have salted away for years at Gitmo.

The second piece of news comes vis Mike Isikoff and the Declassified Blog:

The White House may yet be several weeks away from announcing whether it plans to overrule Attorney General Eric Holder and order that the 9/11 conspirators be tried before military commissions rather than in civilian courts. But it’s not hard to figure out which way the wind is blowing.

The Pentagon is set to announce that Secretary of Defense Bob Gates has appointed a new chief judicial officer for the Office of Military Commissions, according to three Defense Department sources familiar with the decision. The appointment, which could come as early as Wednesday, paves the way for the Pentagon to begin convening a series of high-profile terror trials before military commissions at the U.S. detention facility at Guantanamo Bay–the very same prison the president had once pledged to have shut down by the beginning of this year.

“All the indications we’ve been given are to get ready for a lot of activity in Guanantamo,” said a military prosecutor, who asked not to be identified talking about upcoming cases. “It’s full steam ahead.

The appointment of retired Admiral Bruce MacDonald, who formerly served as the chief Judge Advocate of the Navy, as the new “convening authority” for the Office of Military Commissions is among the most important moves in an apparent gearing up for the expected new wave of trials. As convening authority, MacDonald–who replaces Susan Crawford, a Bush political appointee who retired two months ago–will have the responsibility to “refer” charges against Guantanamo terror suspects to trials after receiving recommendations from military prosecutors.”

There is much more in Isikoff’s report, including that Omar Khadr is still first in the tribunal queue and that a more “refined” prosecution of al-Nashiri is being worked up. If you believe that the military commissions are fatally flawed and that terrorists should be tried in Article III courts like the the non-state actor criminals they are, there is not much good news here. The handwriting for a complete ObamaRhama cave to the neocon howlers is getting carved awfully deep in the granite wall. The one halfway encouraging thing is that early reports on MacDonald are that he is a reasonable and decent pick for the convening authority spot, but time will tell.


Obama Had 60 Votes For Dawn Johnsen's Confirmation Last Year; Johnsen Stalled Again This Year

3855The Obama Administration’s confounding unwillingness and/or inability to move the nomination of Dawn Johnsen as head of OLC has manifested itself yet again. The renomination of Johnsen was set to be voted out of the Senate Judiciary Committee Thursday, but somehow they just “ran out of time” before they could get to it, even though they found time to muse about a couple of far less significant district court judges and other lesser nominees.* It is a continuing and puzzling pattern of delay and diversion that has kept Dawn Johnsen’s nomination in limbo for better than a year.

I previously wrote about the failure of the Obama Administration to support the Dawn Johnsen nomination, a far less than good faith effort that finally resulted in Johnsen’s nomination being killed by operation of Senate Rule XXXI when they adjourned on Christmas Eve, December 24, 2009. It turns out what I wrote has been borne out and, as lawyers are wont to say, proved up pretty well.

As I will detail below, there is now crystal clear evidence that Barack Obama and Harry Reid had the sixty (60) votes for cloture on the confirmation of Dawn Johnsen all along last year, at least subsequent to July 7, the day Senator Al Franken was sworn in, and despite that fact refused to call a vote and get Johnsen installed in her critical post at OLC. Here is what I wrote immediately following the Christmas Eve death of her nomination:

Moreover, the bleating by Harry Reid and the Obama Administration that it is all the fault of mean old Republican obstructionism simply does not hold water. The Democrats hold a 60 seat caucus block, sufficient to overcome Republican obstruction. Of those, the Main Justice article is quite clear there were only two Democratic problem children, former Republican Arlen Specter and the ever whiny Ben Nelson, who never passes up an opportunity to betray his party. That means there were potentially only 58 Democratic votes for Johnsen’s nomination. But Republican Richard Lugar firmly supported Dawn Johnsen, so that makes 59 votes, only one shy of confirmation.

In addition to Lugar, both Republican Senators from Maine, Susan Collins and Olympia Snowe, have refused to rule out voting for Johnsen and were being lobbied hard by extremely influential women’s groups and liberal constituents. Both Collins and Snowe have a history of agreeing, when pressured, to allow up or down votes on Presidential nominees, even from Democrats.

Barack Obama and Rahm Emanuel had 59 votes in favor of Dawn Johnsen’s nomination, a distinct possibility of picking up Collins, Snowe or both, and are more than aware Arlen Specter needs big help in his reelection campaign in Pennsylvania and that Ben Nelson can always be bought. And despite all of the above, the Obama White House did not ever request Harry Reid to call a vote. The only rational conclusion from this is the Obama White House did not want Dawn Johnsen, their own nominee, to be confirmed.

My calculations on the 60 votes being available were confirmed upon Obama re-nominating Johnsen when it was immediately announced to much ballyhoo that Arlen Specter would be the 60th vote for cloture on the re-nomination; albeit apparently only after Johnsen has been again dragged through the committee process and other vagaries of prolonged confirmation procedure. The TPM report of Specter’s intention to support Johnsen’s confirmation confirms exactly what I stated, Specter was the 60th vote (there were always 58 Dems plus Richard Lugar) and was there all along; all Obama and Harry Reid had to do was call the vote. From TPM’s Brian Beutler:

Sen. Arlen Specter (D-PA) says he’s revisited his initial concerns over Obama Justice Department nominee Dawn Johnsen, and has decided to support her confirmation.

“After voting ‘pass’ (which means no position) in the Judiciary Committee, I had a second extensive meeting with Ms. Johnsen and have been prepared to support her nomination when it reaches the Senate floor,” reads a statement Specter sent to TPMDC. …… With Specter now in the ‘yes’ column, there are no obvious impediments to her confirmation. (emphasis added)

If Arlen Specter’s own statement is to be taken at face value, then he has been prepared to, at a minimum, support cloture on Dawn Johnsen since his second meeting with her. I have been personally informed by Senator Specter’s office that Specter’s second meeting with Dawn Johnsen took place on May 12, 2009; further, Specter’s office reaffirmed the accuracy of his reported statement on having been prepared to support her.

Unless Arlen Specter is just being disingenuous to curry votes in his primary battle, and to his credit there is no evidence of that (I have specifically given Specter the opportunity to retract or hedge his statement; he has affirmatively not done so), it means that with Specter’s availability, there were the necessary 60 votes for cloture on Dawn Johnsen’s confirmation as of July 7, 2009, the day Al Franken was sworn in as the junior Senator from Minnesota.

All President Obama had to do to get Dawn Johnsen confirmed was have Harry Reid call the vote. But the Obama White House obviously never requested a vote on their own nominee; if they had, Reid would have obliged, that is simply what Majority Leaders do for Presidents from their own party. By the same token, when such Presidents don’t want such a vote called, it is not; and that refusal by the White House is almost certainly the reason Dawn Johnsen was not confirmed, and is not in office serving the OLC and country right now.

But wait, there is more evidence of the Obama Administration’s disinterest in Johnsen’s confirmation. It was not just Arlen Specter that was wrongly pegged with being the holdup on Dawn Johnsen, it appears the White House has falsely let Ben Nelson be pegged as a culprit, as well. Turns out that is not necessarily true, either, as Nelson has point blankedly stated the White House never even asked him to support Johnsen. From The Indianapolis Star:

Nelson said Wednesday that he doubted Johnsen’s nomination would be brought to a vote.

“We have to let the administration decide what they want to do,” Nelson said. Asked if he has told the administration whether he’d vote for Johnsen, Nelson said he hasn’t been asked.

And, of course, there is the fact that the Maine twin Senators, Collins and Snowe, have steadfastly refused to directly oppose cloture on Johnsen’s confirmation. Despite history that suggests they very well might not deprive Johnsen of an up or down vote, they too have not been put on the spot by the White House.

Which brings us back to why Obama never had Harry Reid call the vote last year. As I previously opined, there are hard policy grounds to explain the Administration’s failure to push Dawn Johnsen’s confirmation:

In the end, it is likely Barack Obama, Rahm Emanuel and the servants of the status quo simply did not really want a true advocate for governmental transparency, a critic who excoriated Bush/Cheney policies on warrantless wiretapping, torture, indefinite detention, ignoring international treaties and conventions, and concentration of power in a unitary executive; all policies the Obama Administration has substantially co-opted as its own.

If one needed any more confirmation of the stunts Obama and his Administration have been pulling without the strong and principled leadership at the OLC (and there really should be no question after the wholesale adoption of Bush policies on surveillance and torture that are at complete odds with Johnsen’s long-stated beliefs), it came like a ton of bricks with the recent revelation that Obama brazenly used the OLC to retroactively immunize serial and repetitive illegal and unconstitutional violation of Federal wiretapping laws by the FBI and telecom companies.

As Marcy previously noted, the stunning report comes from Ryan Singel at Wired/Threat Level:

The FBI and telecom companies collaborated to routinely violate federal wiretapping laws for four years, as agents got access to reporters’ and citizens’ phone records using fake emergency declarations or simply asking for them.

….

The Obama administration retroactively legalized the entire fiasco through a secret ruling from the Office of Legal Counsel nearly two weeks ago.

That’s the same office from which John Yoo blessed President George W. Bush’s torture techniques and warrantless wiretapping of Americans’ communications that crossed the border.

Yes, indeed, that is precisely the type of bastardization of the rule of law and accountability the Bush/Cheney administration would have cravenly used the Office of Legal Counsel for. Bush and Cheney used the OLC (also, notably, without a Senate confirmed leader at the time since Steve Bradbury served only in “acting” capacity) to shamelessly and retroactively give paper cover to illegal and immoral torture after the fact; I guess it is progress and “change” that Obama only does it to cover up illegal surveillance. But it is most certainly not consistent with the lifetime of work, opinions, statements and positions from Dawn Johnsen, who would be expected to have adhered to the law and OLC protocols.

The standard of conduct for OLC in this regard is specified by the OLC guidance for Best Practices for OLC Opinions (promulgated May 16, 2005):

OLC is authorized to provide legal advice only to the Executive Branch; we do not advise Congress, the Judiciary, foreign governments, private parties, or any other person or entity outside the Executive Branch.

…..

As a prudential matter, OLC should avoid opining on questions likely to be at issue in pending or imminent litigation involving the United States as a party (except where there is a need to resolve a dispute within the Executive Branch over a position to be taken in litigation). Finally, the opinions of the Office should address legal questions prospectively; OLC avoids opining on the legality of past conduct (though from time to time we may issue prospective opinions that confirm or memorialize past advice or that necessarily bear on past conduct).

Pretty hard to figure exactly how retroactively giving paper cover to the FBI and telecom co-conspirators for patently illegal surveillance in violation of the Electronic Communications Protection Act and Fourth Amendment is a proper OLC function, especially when doing so is contra to their own stated protocols. It is hard to fathom Dawn Johnsen signing off on this legal perfidy by Obama; pixie dust does not seem her style.

The evidence is clear and convincing that it was not a lack of 60 votes behind Dawn Johnsen’s nomination withering and dying on the vine last year, it was the desire by the Obama Administration to not have a strong confirmed leader like Johnsen guiding the OLC. President Obama owes Dawn Johnsen and the nation an explanation for his disingenuous handling of her nomination, failure to install strong leadership in a rudderless OLC and for continuing the Bush/Cheney-like abuses of the OLC to cover up illegal acts.

Update: * I have been informed by Judiciary Committee staff that they truly did just run out of time today, that Chairman Leahy is committed to Johnsen’s nomination, and immediately noticed another Committee business meeting for next Thursday, in which Dawn Johnsen is listed as the first order of business.

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