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

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

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

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

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

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

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

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

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

But the complaint in this case was brought as to a group – LCR – that claimed locus in, and harm occurring within, the CACD. And, in fact, there was indeed much pretrial litigation of standing and scope and, before the case was allowed to proceed, the LCRs had to put up specific individuals claiming identifiable and quantifiable harm. Plaintiff LCRs eventually did that on the back of one originally identified and specified individual, to which a second specified and joined individual was later included for a grand total of two individuals the group “LCR” was allowed to proceed on as the nominal representative plaintiff.

There is, however, a distinction between having the authority to declare the DADT policy unconstitutional on its face, which Judge Phillips has done, and the further power to immediately force the entire US military worldwide to stop enforcing the policy, which Judge Phillips has now also done.

Having every district court judge in the country with that kind of injunctive authority over military function is likely unacceptable to any administration, and will be for the Obama Administration. It has only grown to this absurd point through the fantastical overreaching of the LCRs and, now, Judge Phillips. They have gone a bridge too far.

And that is the problem here, by wildly overreaching, Judge Phillips has given the White House/Executive Branch legitimate and compelling grounds to appeal that are separate from the critical merits issue of the constitutionality and propriety of DADT, which is a discriminatory and loathsome policy and should be terminated immediately.

In this regard, a grave disservice has been done by Phillips to the cause of elimination of DADT. I think the DOJ has to appeal and seek stay, and will unfortunately do just that. Phillips root determination of unconstitutionality combined with a compelling injunctive order limited to her jurisdiction would have been a very powerful stick in the eye of a recalcitrant White House and would have forced them to act, or not act, on the merits and expose themselves as either true to their word on elimination of DADT or craven impostors. But now there are powerful side issues injected, and even I have issue with the posture the case is now in. And I am livid that it gives the duplicitous on DADT Obama White House something to hide behind when they deserve to be exposed.

Last Friday, I reminded the clueless media, and thus mostly uninformed public, there was a critical terror trial going on right in their midst in New York City, and doing so quietly and competently as was claimed was impossible by howlers such as Liz and Dick Cheney, Guiliani, Lindsey Graham and the right wing noise machine. The case is US v. Ahmed Khalfan Ghailani, and as I explained, although jury selection was well under way, there was a brief delay imposed by the trial judge, SDNY Judge Lewis Kaplan, until today so he could contemplate a motion to exclude a critical prosecution witness argued by the defense on the grounds the putative testimony was the product of torture and coercion.

The decision by Judge Kaplan was just issued and, in somewhat of a shock, he has ordered the witness, Hussein Abebe, excluded. From Bloomberg News:

A judge barred the U.S. from calling as a witness a Tanzanian miner who admits supplying explosives to Ahmed Ghailani, an alleged al-Qaeda terrorist charged with the 1998 bombing of the U.S. embassies in Africa.

U.S. District Judge Lewis Kaplan, in New York, denied a request by federal prosecutors to allow Hussein Abebe to testify that he sold five crates of dynamite to Ghailani before the blast. Abebe, whom prosecutors called a “giant” witness in their case, would provide a first-hand account of Ghailani’s role in the attacks, the government said.

Kaplan ruled that Abebe’s testimony is too closely tied to coerced statements made by Ghailani while he was in CIA custody and must be excluded from the trial. The ruling, made public today, will delay the trial’s start until Oct. 12 to give the government time to decide whether to appeal.

“The court has not reached this conclusion lightly,” Kaplan wrote. “It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction.”

This is a critical ruling and, while it should not be this way, a refreshingly positive one for the health and sanctity of the Constitution and federal Article III courts. Hats off to Judge Kaplan, for while the legal basis seems quite clear on its face, the blowback pressure from the government and boogity boogity terrorism howlers described above (not to mention the Old Gluehorse McCain) will be intense. Here is the critical language from Kaplan’s order:

Abebe was identified and located as a close and direct result of statements made by Ghailani while he was held by the CIA. The government has elected not to litigate the details of Ghailani’s treatment while in CIA custody. It has sought to make this unnecessary by asking the Court to assume in deciding this motion that everything Ghailani said while in CIA custody was coerced.) In these circumstances, the Constitution does not permit Abebe to testify in this criminal trial unless the government has sustained its burden of proving that (l) the connection between Ghailani’s coerced statements and Abebe’s testimony is sufficiently remote or attenuated, or (2) there is another basis upon which that testimony properly may be received.

The Court has had the benefit of extensive evidentiary submissions, a three-day

hearing at which Abebe and representatives of the Federal Bureau of Investigation, the CIA, the Tanzanian National Police testified, legal briefs, and skilled argument. On the basis of that record – including importantly its assessment of the credibility of the only witnesses called to testify who actually were present when Abebe was persuaded to confess his role, to implicate Ghailani, and to cooperate with authorities – it now finds and concludes that the government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’s coerced statements to permit its receipt in evidence. In a previous decision, it rejected the other bases advanced by the government for allowing Abebe to testify. United States v. Ghailani, _ F. Supp.2d _, 2010 WL 3430514 (S.D.N.Y. Aug. 17,2010). Accordingly, the motion to preclude Abebe’s testimony is granted.

The Court has not reached this conclusion lightly. It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.

Three cheers for Judge Lewis Kaplan, who made the tough, but required, decision. You would expect that of any Federal judge but, alas, that is not always the case in a Federal judiciary increasingly controlled by right wing ideologues. There is one note of caution on the celebration, and that is the concluding language from Kaplan in his order:

Moreover, it is appropriate to emphasize that Ghailani remains subject to trial on the pending indictment, that he faces the possibility of life imprisonment if convicted, and that his status as an “enemy combatant” probably would permit his detention as something akin to a prisoner ofwar until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

This brief order will be supplemented by an opinion containing the Court’s findings of fact and conclusions of law. In view of the classified nature of much of the evidence and in accordance with the Classified Information Procedures Act, that opinion will be filed with the Court Security Officer. A redacted version will be filed publicly as soon as possible.

As always, there may be no relief for those caught in the terrorism clutches of the United States government even when they are acquitted or ordered released. But, that is for another day, for today Judge Lewis Kaplan’s order should be cheered by those who believe the principles embodied in the Constitution – the rule of law – are more important than one man or one case, whether it involves terrorism or not. The trial is now on hold until at least Oct. 12 to give the government time to decide whether to appeal the exclusion ruling by Kaplan.

[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. In Part I we went into the background, predicate facts and surrounding circumstances of the Keith case. Today in Part 2 we will discuss the actual court goings on in more detail. – Mary]

District Court Judges Deal with the Mitchell Doctrine in Smith & Sinclair.

Before we can get to the actual Keith case, where the DOJ filed a mandamus against Judge Keith, we have to look at what Judge Keith did with the DOJ arguments in the Sinclair case. In his Memorandum Opinion, Judge Keith summarized the DOJ’s position:

The position of the Government in this matter, simply stated, is that the electronic monitoring of defendant Plamondon’s conversations was lawful in spite of the fact that the surveillance was initiated and conducted without a judicial warrant. In support of this position, the Government contends that the United States Attorney General, as agent of the President, has the constitutional power to authorize electronic surveillance without a court warrant in the interest of national security.

Judge Keith then went on to list several cases, one from the Fifth Circuit and two others from District Courts in Kansas and Illinois, respectively, where the government had been successful in a similar argument.

However, not every case had gone DOJ’s way and Judge Keith chose to focus on “the exceptionally well-reasoned and thorough opinion of the Honorable Judge Warren Ferguson of the Central District of California. United States v. Smith, 321 F. Supp. 424 (C.D.Cal.1971).” Judge Ferguson bucked the Mitchell Doctrine in very clear and even prescient terms. The opinion isn’t long and it’s well worth the read. Judge Ferguson deals very swiftly with the Omnibus Act argument and moves on to the Fourth Amendment issues, finding that whatever exceptions you may and may not find in a statute, they do not create an exemption from the application of the Constitution.

DOJ argued (and its an argument that those involved in illegal surveillance still mouth today, largely unchallenged) that the Fourth Amendment isn’t really about interposing independent magistrates and warrants, it’s about … being reasonable. DOJ argued that the Executive branch only had to be reasonable in its surveillance and that they can best decide, based on all the complex issues of national security, if they’ve been reasonable. Judge Ferguson, quoting from a prior Supreme Court case, exposed that this argument would mean that the Fourth Amendment evaporates.

Interestingly, the Smith case also delves pretty deeply into another of the DOJ’s argument (again, one that persists today) that the warrantless wiretaps were legal because *everyone else did it too.* It makes for very interesting reading and attaches prior Presidential directives on warrantless wiretapping.

Beyond dealing with the Mitchell Doctrine Judge Ferguson had the insight and foresight to identify the problems presented by the inability of the courts to punish illegal Executive action other than by the Exclusionary Rule and also by the fact that under the DOJ’s, there was nothing that required the President to delegate this warrantless wiretap authority to the Attorney General. Rather than a delegation to the highest law enforcement officer of the nation who was required to specifically designate each person for surveillance, Judge Ferguson worried that under the DOJ’s argument the President could, instead, delegate such warrantless wiretap power to anyone and they could target without particularity. Judge Ferguson didn’t specifically mention night supervisors at the NSA or a massive program where the Attorney General turns the NSA loose to allow massive interceptions at the options of low level NSA operatives – interceptions without individual authorizations and without even an ability for the Attorney General to track, in filings to a secret court, who has been illegally surveilled. But he knew what men do with no oversight and no checks – he knew who Haydens were and what they would do.

But back to Judge Keith’s case. After invoking a striking image, the “uninvited ear” Judge Keith goes on to side with Judge Ferguson and make his own indelible contribution.

In this turbulent time of unrest, it is often difficult for the established and contented members of our society to tolerate, much less try to understand, the contemporary challenges to our existing form of government. If democracy as we know it, and as our forefathers established it, is to stand, then “attempts of domestic organizations to attack and subvert the existing structure of the Government” (see affidavit of Attorney General), cannot be, in and of themselves, a crime.

The DOJ Files Against Judge Keith

Rather than complying with Judge Keith’s order, the DOJ insisted it was right and would not turn over the information. It was not at a juncture where it could appeal, so it filed a mandamus action against Judge Keith, asking superior courts to order that the Judge turn over the surveillance logs and not disclose them to the defendants. A mandamus action exists when an officer or lower court is refusing to do something where it has a clear duty. Here, DOJ was claiming that the clear duty was to return the logs to DOJ and not disclose them (we’ll come back to this – but this is the state’s secret aspect of the Keith case).

Now, the Executive branch had used its prosecutorial power to make Judge Keith a defendant and it looked to the Sixth Circuit to rein in the District Court Judge. The Sixth Circuit, however, sided with Judge Keith.  The scene was set for a truly remarkable case to be heard by the Supreme Court.

DOJ Searches for a Good Argument While the Supreme Court Takes the Case.

Now that the DOJ was going before the Supreme Court, it had several difficulties – one of the foremost being just what argument it really wanted to sell hardest to the Court. It wanted to argue that of course the President could do “anything” when national security was involved, but it didn’t really want to argue forthrightly that the President was exempt from law. Except, it was willing to make that argument if it had to – but it didn’t want to have to. All of which made for a curious dance leading up to the filings and oral argument in the case.

The Supreme Court had two new members when the case went up, Justices Rehnquist and Powell. Justice Rehnquist (who had been working on the surveillance case briefs from the DOJ’s Office of Legal Counsel) recused. Justice Powell, though, was largely seen as being a “win” for the Government’s case, having written aggressively in favor of the Executive’s power in national security settings. And since the lower courts and Justice Powell had both seemed favorably inclined to find that there was power to wiretap foreign powers, DOJ tried to pull in foreign power aspects to the case as well.

As reported in March 6, 1972 Time article titled, ” The Law: Turmoil on Taps”

The tap was perfectly legal, [DOJ] said, even though it had been installed without a judicial warrant, because warrants are not necessary in cases involving a threat to “national security.” This is true not only for the traditional danger from a foreign power, the Justice Department maintains, but also for the security threat posed by the current radical protest movement.

…

In his argument to the Supreme Court last week, U.S. Solicitor General Erwin Griswold (sic) insisted that radical protests within the U.S. are “interrelated” with security threats from abroad. The Government was merely gathering intelligence to protect the nation, he said, not deliberately seeking evidence for criminal prosecutions. If each case had to be submitted to a judge to get a warrant, Griswold added, “the Government would have to disclose sensitive and highly secret information.” Judges, he said, are not as qualified as the Attorney General to make the “subtle inferences” involved. Even though the Attorney General might abuse his power, that “is not a valid basis for denying [him] the authority.” emph added

The Time’s article reference to Griswold, above, is incorrect. The Solicitor General , a former Harvard law dean (but otherwise unlike an Elena Kagan) actually refused to argue the case although his name was on the briefs. Not having a Paul Clement available, Robert C. Mardian was asssigned to handle the arguments. So, while no one knew it at the time, both the Attorney General (Mitchell) who authorized the illegal taps and the deputy Solicitor General, Mardian, who argued the case to the court, would later become indicted in matters relating to the Watergate wiretaping, a case made possibly only by the appointment of an actual, independent prosecutor (something the Bush and Obama DOJs have shunned).

The Supreme Court Rules.

After Mardian’s oral argument, the DOJ was less enthused with their prospects for success and they had a right to be. The Justices were beginning to align in two camps, but neither camp gave DOJ the win. At least one Justice was inclined towards a very limited decision, one that would focus on the Omnibus Act and merely find that the Reynold’s type affidavit (we’ll get to that later) offered by the DOJ and Mitchell was insufficent under the Omnibus Act’s requirements – in other words, that a “national security” argument from the government could be trumped by … bad drafting. That Justice, though, was Justice White (who ended up issuing a  separate concurrence on this theory), not Justice Powell.  In the other camp, to the surprise of many, was newly appointed Justice Powell.

The same Powell who had argued for government powers of surveillance before coming to the court (and is thought of as the father of the think tank approach to corporate activism to shape legislation) was now being given the assignment of writing the opinion for the majority of the court, a court that agreed 8-0 that the DOJ could not order the District Court Judge to return evidence in the case, with only a split on how narrowly they would issue their opinion. The Powell opinion took Madrian’s argument that the Attorney General (much less night supervisors on an NSA shift) was better qualifed than the courts to determine if and when the Fourth Amendment should apply and stood it on its uninvited ear.

With respect to the Omnibus Act argument, Powell wrote:

At most, this is an implicit recognition that the President does have certain powers in the specified areas.

…Rather than stating that warrantless presidential uses of electronic surveillance “shall not be unlawful” and thus employing the standard language of exception, subsection (3) merely disclaims any intention to “limit the constitutional power of the President.”

…In view of these … carefully specified conditions, it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. This would not comport with the sensitivity of the problem involved or with the extraordinary care Congress exercised in drafting other sections of the Act.

Now on to the DOJ’s Mitchell Doctrine argument. Powell restricts the decision to not include a case where there had been authorized surveillance leaving open, in part, what might be required to be turned over if the surveillance had been legal (ed. although cases such as Jencks and Brady presumably would still have application in such a case, especially since Jencks, too, involved DOJ arguments of “national security”) and also leaving open the issue of whether surveillance involving a foreign power  for foreign intelligence would have been legal. With those caveats, he went on to deal with the Mitchell Doctrine for surveillance of US “dissidents.”

History abundantly documents the tendency of Government – however benevolent and benign its motives – to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect “domestic security.” Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. … The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.

Pointing out that the warrant clause of the Fourth Amendment is not “dead language” Powell dismisses the argument that the Executive branch is only required to be subjectively “reasonable” and recites a long history of cases finding that the Fourth Amendment is not intended to be entrusted to an Executive’s secret and subjective decision of reasonableness. Despite the pragmatic force lent to the government’s arguments by bombed out buildings and civil unrest, Powell found that the President’s role with respect to domestic security has to be exercised within the bounds of the Fourth Amendment.

Thus, we conclude that the Government’s concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government’s domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.

As the surveillance of Plamondon’s conversations was unlawful, because conducted without prior judicial approval, the courts below correctly held that Alderman v. United States, 394 U.S. 165 (1969), is controlling and that it requires disclosure to the accused of his own impermissibly intercepted conversations. As stated in Alderman, “the trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect.”

So now we have some of the picture that was partly completed with the Keith case. Uncertainty as to what is intended on the domestic v. foreign intelligence front, uncertainty as to delegation powers of the President, some certainty as to domestic groups or persons and even “intelligence” surveillance of such groups. There is a rule for full (not limited by relevancy) revelation of illegally obtained information to a criminally accused. How does that apply to a capriciously, or even “reasonably” detained person who has not had pre- or post- detention due process or to a militarily detained person “on a battlefield” that is argued to include the United States, even though courts are open and operating here?  How does it apply to innocent Americans who were granted civil enforcement rights under FISA and yet were routinely subjected to warrantless, non-particularized, surveillance and storage of their personal information?

Many of the unanswered questions are, after all, questions the Supreme Court would just as soon not have to answer, if for no reason other than the one pointed out by Judge Ferguson – that no matter what egregious government behavior the court is faced with, the courts have little power to remedy that situation. I would argue, though, that there is more power than Judge Ferguson had available to him. After the Church commission findings that many peaceful Americans and journalists and even politicians were wiretapped, the Foreign Intelligence Surveillance Act was passed. FISA put limits on the government’s ability to claim that it had legally engaged in foreign surveillance, requires oversight by a court – even if it is a secret court, and recognized the problems with relying on the same prosecutors who were violating the law to prosecute themselves or their superiors by creating a direct action by citizens against the illegal and uninvited ears.

To date, no court has allowed any American citizen to avail themselves of the FISA civil penalties in connection with the massive warrantless government programs, despite the fact that those penalties written specifically to address the problem Judge Ferguson pointed out and to allow for a remedy when the Executive runs amok. One reason they have not done so is that they have consistently agreed that petitioner in a case under FISA could not have access to the very information that the Keith case required to be made available to defendants in the criminal cases there. And they have denied such access based on the same kind of Reynolds affidavit that even Justice White found insufficient in a case, such as the Keith case, where there was a statutory scheme that made non-compliant government action criminal .

These aspects of the Keith case (or at least my take on these being aspects) – the Reynolds affidavit, Justice White’s concurrence in the Keith case, duties of the Federal intelligence Surveillance Court under Alderman, and the FISA civil penalties overlay – those may have to wait for a part III. ;)

In March of this year, Marcy reported about a Center for Constitutional Rights (CCR) petition to the Supreme Court on behalf of Guantanamo Lawyer Thomas Wilner and cited the CCR press release:

Last night, the Center for Constitutional Rights (CCR) asked the Supreme Court to take up its warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argue that the Executive Branch must disclose whether or not it has records related to the wiretapping of privileged attorney-client conversations without a warrant. Lawyers for the Guantánamo detainees fit the officially acknowledged profile of those subject to surveillance under the former administration’s program, and the Executive Branch has argued in the past that it has a right to target them.

Yesterday, the petition for cert on behalf of Tom Wilner was denied on the Court’s traditional First Monday announcements.

But the story will not end there for Tom Wilner in this nascent Supreme Court term, in a move that will prove ultimately much more significant than the somewhat weak FOIA case CCR was pursuing, Wilner has petitioned for cert on the Habeas case of his client Fawzi al-Odah. This will be a critical test to see how the Supremes are going to deal with the progeny of their decision in Boumediene v. Bush.

From Andy Worthington:

Last week, two years and three months after the US Supreme Court granted the prisoners held at Guantánamo constitutionally guaranteed habeas corpus rights in Boumediene v. Bush, Fawzi al-Odah, a Kuwaiti prisoner held for nearly nine years, became the first prisoner to appeal to the Supreme Court “to protest federal court interpretations of detainees’ right to contest their detention,” as AFP described it.

Over the last two years, the prisoners have won 38 out of the 55 cases in which the District Court judges in Washington D.C. have made a ruling, but al-Odah is one of the 17 whose appeals have been denied. As I reported when he lost his petition in August 2009:

….

Although the burden of proof is on the government in the habeas cases, the “preponderance of evidence” standard is considerably lower than in criminal cases, for example, where a case must be established beyond reasonable doubt. However, the Circuit Court dismissed al-Odah’s complaint “under binding precedent in this circuit,” and also dismissed his complaint about the use of hearsay evidence, pointing out that the use of hearsay evidence had been approved by the Supreme Court in Hamdi v. Rumsfeld, the 2004 case that approved the detention of prisoners under the Authorization for Use of Military Force, the legislation passed by Congress the week after the 9/11 attacks, which authorized (and still authorizes) the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (or those who harbored them).

….

In his petition to the Supreme Court, al-Odah argues that the courts have “applied a burden of proof lower than any ever approved by this Court in a case involving prolonged imprisonment, allowing the government to justify indefinite detention by a mere preponderance of the evidence, rather than by clear and convincing evidence.” He also argues that “both the District Court and the Court of Appeals have … allowed the indiscriminate admission of hearsay, denying the detainees any meaningful opportunity to test the reliability of statements made against them.”

Here is the official Petition for Certiorari in al-Odah. al-Odah will be an important bellwether to see if the Court accepts cert and, if so, what they do with the case.

The DOJ has just announced significant arrests in the long simmering Alabama Bingo case. This is huge news that will shake Alabama politics to the bone like nothing has since the Governor Don Siegelman persecution. From the official DOJ Press Release:

Eleven individuals, including four current Alabama state legislators, three lobbyists, two business owners and one of their employees, and an employee of the Alabama legislature have been charged for their roles in a conspiracy to offer to and to bribe legislators for their votes and influence on proposed legislation, announced Assistant Attorney General Lanny A. Breuer of the Criminal Division and Assistant Director Kevin Perkins of the FBI’s Criminal Investigative Division.

The defendants are charged in an indictment returned by a grand jury on Oct. 1, 2010, in Montgomery, Ala., which was unsealed today. Various defendants are charged with a variety of criminal offenses, including conspiracy, federal program bribery, extortion, money laundering, honest services mail and wire fraud, obstruction of justice and making a false statement. They will make initial appearances today in U.S. District Court for the Middle District of Alabama before U.S. Magistrate Judge Terry F. Moorer.

“Today, charges were unsealed against 11 legislators, businessmen, lobbyists and associates who, together, are alleged to have formed a corrupt network whose aim was to buy and sell votes in the Alabama legislature in order to directly benefit the business interests of two defendants, Milton McGregor and Ronald Gilley,” said Assistant Attorney General Lanny A. Breuer of the Criminal Division. “The people of Alabama, like all our citizens, deserve to have representatives who act in the public’s interest, not for their own personal financial gain. Vote-buying, like the kind alleged in this indictment, corrodes the public’s faith in our democratic institutions and cannot go unpunished.”

So, this is pretty interesting timing for this big prosecutorial move, no? It sure is. From today’s report from the excellent Roger Shuler at Legal Schnauzer, who practices in the area and has covered this case from the outset:

The U.S. Justice Department is spinning today’s actions as a legitimate probe focused on corruption connected to gambling legislation. But our sources have been saying for weeks that it is designed to affect the November elections. Polls show Republican Robert Bentley already leading Democrat Ron Sparks in the race for governor, and the arrests could help the GOP take over one or both houses of the Alabama Legislature, a long-stated goal of outgoing governor Bob Riley.

….

Means and Ross are Democrats, Pruett is a Republican, and Smith is an Independent. That appears to be a relatively bipartisan target list. But there is little doubt that Canary and her prosecutors went after Democrats and others who oppose Gov. Riley and his efforts to shut down gaming in Alabama.

….

So far, there is no word of an indictment on Sparks. But what does all of this say about the Obama administration? It already had a dreadful record on justice issues. And yet it backs a process where neither Gov. Riley nor any of his conservative backers who opposed gambling were apparently even investigated. We’ve seen no sign of a probe into the $13 million in Mississippi gaming money that reportedly was spent to help get Riley elected in 2002. Canary seems to have focused only on pro-gambling individuals, who tend to be Democrats or Riley critics.

….

What is this “investigation” all about? It looks like a thinly veiled effort to pay back Riley’s Mississippi gaming supporters–who reportedly laundered money through Jack Abramoff, Michael Scanlon, and Ralph Reed–by shutting down competition in Alabama.

Yes, very interesting timing indeed. It was not enough that DOJ, Canary and Morris used the specter of investigation to influence an earlier legislative vote on the bingo issue (see here and here), there is now every appearance they are materially affecting a general election in Alabama. More importantly, the move flies in the face of the DOJ Public Integrity Section (PIN) rule against announcing major prosecutions just before elections if it can be avoided. Yet, by every appearance, that is exactly what was intentionally done here. Why? What were the exigent circumstances? The rumors of this action have been around for months; the DOJ could not have done it earlier or waited?

This prosecution is also very interesting because, you see, the Middle District of Alabama is where the right wing Karl Rove ally Leura Canary holds forth as the United States Attorney. Another spot the Obama White House has just not seen fit (here may be why, and if so it is deplorable) to even find a nominee for, in spite of the hell she caused for Don Siegelman with ethically questionable tactics.

What is really fascinating is that the DOJ press release does not even mention Leura Canary. Not even once in passing; yet this is most assuredly her doing in conjunction with Governor Bob Riley. Here is a report from Legal Schnauzer this April on Canary’s involvement:

According to press reports, representatives from the Office of the U.S. Attorney for the Middle District of Alabama played a key role in Thursday’s meeting. Bush appointee Leura Canary, who oversaw the prosecution of former Democratic governor and Bob Riley opponent Don Siegelman, remains in the charge of that office. Alabama’s two Republican U.S. Senators, Richard Shelby and Jeff Sessions, have scuttled various Obama nominees for the position, and the White House, so far, has chosen not to fight for the two candidates (Michel Nicrosi and Joseph Van Heest) favored by Democrats.

Canary’s lingering presence in office almost certainly is driving the bingo investigation. Angela Tobon, an FBI special agent in Mobile, Alabama, told The Birmingham News that the Public Integrity Section (PIN) of the Justice Department is leading the inquiry. Tobon refused to elaborate when contacted by a reporter from the Montgomery Advertiser.

….

Does that mean Leura Canary was able to take advantage of a leaderless organization, contacting “loyal Bushies” still embedded in the Justice Department to help get PIN involved in a bogus Alabama operation?

It sure looks that way.

Why would the Obama/Holder DOJ be masking the central involvement of right wing Rove ally Leura Canary?

But wait, it gets even better! Who else is working this case that is the pet wet dream of right wing Alabama Governor Bob Riley, attached to the hip of Alabama gaming bigwigs that do NOT want the bingo competition? Why none other than Brenda Morris the disgraced former DOJ “Public Integrity” official who’s butt was on the chopping block for all of the egregious prosecutorial misconduct in the Ted Stevens case that led to dismissal of the charges and a criminal investigation to be opened by the court. Here is what I wrote last April about Morris’ involvement:

Morris has promptly inserted herself into another high charged political mess, and done so with questionable ethics and curious basis for involvement. From Joe Palazzolo at Main Justice:

Brenda Morris, a veteran trial lawyer in the Criminal Division’s Public Integrity Section, was among a group of federal law enforcement officials who met with Alabama legislators on April 1 to inform them of the probe, which is related to a proposed amendment to the state constitution that would legalize electronic bingo.

The investigation has inflamed tensions between state Democrats and Republican-appointed U.S. Attorney Leura Canary, who prosecuted former Gov. Don Siegelman (D) and whose husband has close ties to Republican Gov. Bob Riley, who strongly opposes the amendment. Canary’s office and the Public Integrity Section are jointly investigating bingo proponents’ quest for votes in support of the amendment, which the Senate passed on March 30.

The state House of Representatives has yet to vote. Alabama Democrats sent a letter to the Lanny Breuer, the head of the Justice Department’s Criminal Division, charging that the “unprecedented” disclosure of the investigation was meant to have a “chilling effect” on state legislators who otherwise might have voted for the amendment.

Here, from the Alabama Press Register, are a few quotes from local Alabama legal experts familiar with the facts and history:

Doug Jones, a former U.S. attorney now in private practice in Birmingham, called the private meeting a “virtually unprecedented” break from standard FBI procedures.

“I can’t think of a legitimate law enforcement purpose to do something like this,” said Jones, who represents members of the Alabama Democratic Caucus.

“I have never, in all my years of practicing law, heard of an event like what happened (on Thursday)” said Mobile County District Attorney John Tyson Jr. “It was stunning to me.”

Former U.S. Attorney William Kimbrough of Mobile said he’d seen nothing like it in a legal career that spans nearly five decades.

So what in the world was Brenda Morris doing smack dab in the middle of such a contentious political mess and how could the Obama/Holder DOJ think it appropriate? The answer is hard to fathom. Morris was supposed to have been tasked to the Atlanta US Attorney’s office as a litigation attorney while she is being investigated by the court for criminal contempt from her last case. You really have to wonder who is running the asylum at DOJ Main to think that there could ever be positive optics from Morris being involved in anything politically contentious.

The bottom line is, the DOJ and Leura Canary have hatched open an ugly can of worms, at the most prejudicial moment possible, with far ranging effects on local politics. Just what should be avoided at all cost. And they have done so in a flammable tinderbox situation and location through as tainted and ethically questionable prosecutors as can be imagined under the circumstances. One would have hoped that this type of prejudicial timing of prosecutions ended with the Bush/Cheney Administration; clearly it did not.

UPDATE: The DOJ has now made the statement that Leura Canary and the rest of her office, save for two individuals, are recused from the bingo case:

Breuer said Assistant U.S. Attorneys Louis V. Franklin and Steve P. Feaga from the Middle District of Alabama are assisting in the prosecution. But the Assistant Attorney General said the U.S. Attorney’s office is otherwise recused from the case. He declined to comment on the reason for the recusal.

Of course, Leura Canary saying she has recused herself in favor of Louis Franklin has a proven history of questionable veracity. Not to mention, of course, Canary’s involvement in the critical workup including the first wrongful impingement on the Alabama legislative function described above.

[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. What follows today is Part I. – Mary]

It was a time of war. America had been attacked in the Gulf of Tonkin. The National Security Agency (NSA) and our military had reassured us this was true. Our national security apparatus, Congress and press had joined behind the office of the President to lead us into a series of forays (Vietnam, Laos, Cambodia) that would leave tens of thousands of American soldiers dead and many times that wounded physically or mentally, while at the same time decimating over three million Vietnamese and over a 1.5 million Laotians and Cambodians.

At home, we were working our way through the civil rights movement, dealing with the cold war and threats of Russian nuclear weapons and witnessing anti-war protests that left students dead and buildings bombed. Algeria was hosting U.S. fugitives from justice, Eldridge Cleaver and Timothy Leary, while Cuban connections were alleged to be behind much of the organized anti-war movement.

Court martial proceedings had begun for the My Lai killings with polls showing most of America objected to the trial. President Nixon would later pardon Lt. Calley for his role. A trial had also, briefly, seemed to be in the works for the “Green Beret Affair,” the killing of Thai Khac Chuyen by Green Berets running an intelligence program called Project GAMMA. The investigation began after one of the soldiers assigned to the Project became convinced that he was also being scheduled for termination. Charges in the Green Beret Affair would be dropped after the CIA refused to make personnel available, claiming national security privileges.

Against this backdrop, Nixon and his campaign manager – attorney general, John Mitchell (the only attorney general to date to be convicted for illegal activities), began a warrantless wiretapping program, authorized only by the White House and Mitchell, with no oversight and no review by an independent magistrate. A secret program that they claimed was necessary for reasons of national security.

This is part of the complex and ongoing story of United States Executive Branch violations of law, and the role the judiciary has played, or failed to play, to address those illegal and unconstitutional activities. One of the central chapters in this story, to date, involves the efforts of the Department of Justice (DOJ) to force Federal District Court Judge Damon Keith of the Eastern District of Michigan, in the case of United States v. U.S. District Court (the “Keith Case”), to support the Executive’s power to disregard the Constitution and domestic law during a time of war.

The Bombing and Indictments.

The important cases never have easy facts. The progenitor of the Keith Case was United States v. Sinclair. The Sinclair prosecution was based on indictments against White Panther members, John Sinclair, Lawrence (Larry) “Pun” Plamondon and John Waterhouse Forrest for the September 29, 1968 bombing of a CIA office in Ann Arbor, Michigan. After the bombing, Plamondon went underground, traveling to various foreign countries before landing in Algeria. By 1969 he was on the FBI’s 10 Most Wanted list.

The lure of Michigan was too strong for him to stay away, though. He was arrested after being pulled over for throwing beer cans out of his car. In U.S. v. Sinclair, Plamondon was represented by the famous defense lawyer, William Kunstler and the case was assigned to Judge Damon Keith. Early in the case, Kunstler filed a Motion to require the Department of Justice to turn over any electronic surveillance of the defendants, including any illegal surveillance.

That Motion relied in part upon a case decided just a year or so earlier, Alderman v. United States (March 10, 1969), where the Supreme Court had ruled that the government had a duty to turn over illegal surveillance information to the defense.

What the Alderman Case Meant.

In Alderman, the Department of Justice (DOJ) admitted they had engaged in illegal surveillance (not authorized by any warrant), but argued that the court should let the illegal surveillor – DOJ – unilaterally review the surveillance information to determine whether any of the information was “relevant” to their prosecution case. DOJ would not be required to turn over any of the illegal surveillance information unless they made the in-house determination of relevance to the prosecution’s case in chief. .

The Supreme Court response was, roughly translated: Nice try, but no. With that argument shot down, DOJ made a fallback argument. They should only have to provide the surveillance information to a judge for review in camera and only any information that the judge, after review, determined was “arguably relevant” to the criminal case at hand would need to be provided to the defense.

DOJ argued that this process – of blocking defense access – was necessary because of the “potential danger to the reputation or safety of third parties or to the national security.” The Supreme Court was less than impressed by this argument, finding instead that a fair adversary proceeding required the turnover of all the illegal surveillance:

Although this may appear a modest proposal, especially since the standard for disclosure would be “arguable” relevance, we conclude that surveillance records as to which any petitioner has standing to object should be turned over to him without being screened in camera by the trial judge.

…Adversary proceedings are a major aspect of our system of criminal justice. Their superiority as a means for attaining justice in a given case is nowhere more evident than in those cases, such as the ones at bar, where an issue must be decided on the basis of a large volume of factual materials, and after consideration of the many and subtle interrelationships which may exist among the facts reflected by these records. As the need for adversary inquiry is increased by the complexity of the issues presented for adjudication, and by the consequent inadequacy of ex parte procedures as a means for their accurate resolution, the displacement of well-informed advocacy necessarily becomes less justifiable.

. . . It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to national security or third-party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally and which it admits, or which a judge would find, is arguably relevant to the evidence offered against the defendant. (emph. added)

The Illegal Surveillance of Plamondon.

The U.S. Attorney handling the Sinclair case indicated that he was unaware of any such illegal surveillance, but that he would have Main Justice check with the FBI. When the word came back that there had been illegal surveillance of Plamondon, things changed. Based on Alderman, it would seem clear that the information was well on its way to being turned over to the defense. Except that it wasn’t.

The US Attorney did provide surveillance logs to Judge Keith in camera but, despite the Supreme Court recent ruling in Alderman, DOJ argued that Judge Keith could not make the information available to the defendants. The DOJ argued, just as it had (and lost) in Alderman, that there were national security aspects to the case.

So what was new and different? Well, the Government upped the ante over their bid in Alderman in three ways. First, they claimed that the wiretaps were not actually illegal and instead were somehow authorized by exception pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Next, and somewhat overlapping, they argued that even though the wiretaps were on their face warrantless and illegal, there were not, actually illegal because of the so-called “Mitchell Doctrine.” These elements of what the case have received the bulk of the scrutiny and helped form some of the basis for the FISA legislation which Congress later passed. There is another place where the DOJ upped the ante, but we’ll get to that later. For now, let’s look at the arguments.

The Omnibus Crime Control and Safe Streets Act of 1968 Argument.

This argument went something like this. The Omnibus Crime Control and Safe Streets Act of 1968 (Omnibus Act) spells out how warrants will be handled for criminal cases (including making violations of the warrant requirements of the Omnibus Act a serious crime) except that the Omnibus Act specified an area where it did not apply.

Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.”

DOJ argued that this exception to coverage was also intended to be a Congressional recognition of, or maybe even a grant to, the President of the power to engage in warrantless wiretaps.

The Mitchell Doctrine Argument.

The Mitchell Doctrine argument went a few steps further. It was based on a claim of inherent power. This Doctrine asserted that the Attorney General, as a representative of the Executive Branch, had the inherent constitutional power to authorize electronic surveillance without a warrant in “national security” cases and to unilaterally determine whether a particular circumstance falls within the scope of a “national security” concern.

The Mitchell Doctrine was the DOJ’s end run around Alderman, but the Sinclair case was not the only case where DOJ was attempting that end run.

While defense lawyers and Judge Damon J. Keith sat open-mouthed, the government tendered an affidavit from the attorney general, John Mitchell — soon to be of Watergate infamy. Mitchell stated in writing that he, on behalf of the president, had the authority to order wiretaps without judicial approval to “protect the nation from attempts of domestic organizations to attack and subvert the government.”

…

By itself, this case might have been a weird wrinkle in turbulent times. When comparing notes nationally, though, progressive defense lawyers realized there was a pattern. Mitchell had done the same thing in the Chicago 7 / 8 case [internal link] and in a Black Panther trial in California. Something was up. The attorneys came to a conclusion that shocked them: The Justice Department was openly demanding judicial approval of a scheme in which the president alone, without legislative advice or consent, without judicial oversight, decided when the Bill of Rights [internal link] would be suspended, and which citizens’ rights would be overborne. The designation “subversive” would not be defined. “Probable cause,” the ancient Constitutional requirement, would not be shown. The lawyers were aghast not only

at the arrogance of the government’s position. They feared that the government might win. Mitchell’s Justice Department would not have opted for this strategy — no longer denying the illegal bugs, but admitting them, and telling the courts to find them legal — unless they were confident in their position.

… two weeks previously, a Nixon administration official (H.R. Haldeman …) had claimed that the Democrats were giving “aid and comfort to the enemy.” Under the government’s scheme, such a designation would open even the political party out of power to warrantless eavesdropping by whoever held the White House.

As a result of the government’s coordinated, nationwide strategy invoking the Mitchell Doctrine, by the time Judge Keith ruled in the Sinclair case, there were several other cases at various stages including one in the Central District of California, United States v. Smith, where another judge’s ruling was very influential.

[Part II will how the District Court judges dealt with the Mitchell Doctrine in Smith and Sinclair, the curious action of the DOJ in response thereto and the eventual Supreme Court decision.]

Well this is good news, the United States Department of Justice is interested in finding and prosecuting human rights violators here in the “Homeland”. From the special announcement from DOJ:

The Human Rights and Special Prosecutions Section actively seeks out information that may assist the U.S. Government in identifying human rights violators who may have entered the United States.

If you know of anyone in the United States or of any U.S. citizen anywhere in the world who may have been involved in perpetrating human rights violations abroad, please contact HRSP either by email at [email protected] or by postal mail at:

Human Rights and Special Prosecutions Section (Tips)

Criminal Division

United States Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0001

You do not have to identify yourself when providing information. Please provide as much detail as possible, such as:

* the suspect’s name, place and date of birth,

* physical description, and current location;

* the suspect’s alleged human rights violations including the locations and dates of those activities;

* how you learned of the suspect’s alleged activities and when and where you saw the suspect.

We are unable to reply to every submission; however, your information will be reviewed promptly by HRSP.

Information on non-U.S. citizen suspects living in the United States may be provided to Immigration and Customs Enforcement in the Department of Homeland Security, at 1-866-347-2423 (a toll-free call).

Anybody here have any suggestions for the DOJ?? Glenn Greenwald has more.

The late, but great, news this fine Friday afternoon is the decision of Western District of Washington (WDWA) Judge Ronald Leighton in the case of Air Force Major Margaret Witt. Witt has been an Air Force reserve flight and operating room nurse since 1987 and was suspended from duty in 2004, just short of retirement, upon her base commanders being informed by an off base nosy neighbor that she was a lesbian.

From NPR:

A federal judge ruled Friday that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible in the latest legal setback to the military’s “don’t ask, don’t tell” policy.

The decision by U.S. District Judge Ronald Leighton came in a closely watched case as a tense debate has been playing out over the policy. Senate Republicans blocked an effort to lift the ban this week, but two federal judges have ruled against the policy in recent weeks.

Maj. Margaret Witt was discharged under the “don’t ask, don’t tell” policy and sued to get her job back. A judge in 2006 rejected Witt’s claims that the Air Force violated her rights when it fired her. An appeals court panel overruled him two years later, leaving it to Leighton to determine whether her firing met that standard.

This is indeed a wonderful decision, and one based upon the elevated level of scrutiny that is now clearly the standard in Federal court consideration of the rights based on sexual preference. The full text of the court’s decision is here. The critical language from the decision setting and clearing the table is as follows:

Plaintiff commenced this action by filing a Complaint on April 12, 2006. On July 26, 2006, this Court granted the government’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), concluding that the regulation was subject to rational basis scrutiny, and that the evidentiary hearings held, and factual findings adopted, by Congress provided a sufficient foundation to support the regulation. Plaintiff timely appealed.

The Ninth Circuit agreed with plaintiff. It held that Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003) effectively overruled previous cases wherein the Ninth Circuit had applied rational basis to DADT and predecessor policies. It held that something more than traditional rational basis review was required. Witt v. Department of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008). The Circuit

Court vacated the judgment and remanded to the District Court the plaintiff’s substantive and procedural due process claims. It affirmed this Court’s dismissal of the plaintiff’s equal protection claim. On remand, this Court was directed to determine whether the specific application of DADT to Major Witt significantly furthers the government’s interest, and whether less intrusive means would substantially achieve the government’s interest. Witt, 527 F.3d at 821.

Now comes the interesting part of the opinion (and case as argued by the government) and it ties in directly with the Log Cabin Republicans v. USA DOD decision recently rendered in the Central District of California (I will return to that in a bit). Specifically, the 9th Circuit based at least partially upon briefing in the alternative by the government (i.e arguing multiple positions), granted the government’s argument that, at a minimum, they were at least entitled to argue that homosexuals were bad for moral and unit cohesion on a case by case basis.

In essence, the government figured that, rather than lose the whole case, they would be “smart” and roll with being able to at least handle it on a case by case basis. But Judge Leighton saw through the government’s baloney in the remand of the very case they had argued it, Witt:

Added to this calculus, is the government’s plea for uniformity. Lt. General Charles Stenner, the government’s expert, made the unassailable point that uniformity and consistency in the administration of personnel policies is a desirable objective. When similar people are treated differently, morale and cohesion suffer. The government argues that Major Witt’s continued military service necessarily would result in the application of a different personnel policy to her than to other service members, such as those in the First Circuit, where the DADT statute was upheld as constitutional. See, Cook v. Gates, 528 F.3d 42, 60 (1st Cir. 2008). The argument proves too much, however. The call for uniformity defies as-applied analysis. By definition, if uniformity is required, exceptions cannot be encouraged. And if exceptions cannot be encouraged, as-applied analysis is pointless. The direction to this Court to apply DADT to the specific circumstances of Major Witt compels it to reject any notion that the overriding need for uniformity trumps individualized treatment of Major Witt.

…..

For the reasons expressed, the Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and cohesion. If DADT does not significantly further an important government interest under prong two of the three-part test, it cannot be necessary to further that interest as required under prong three. Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment.

In a nutshell, Leighton called bullshit on the government, and rightly so. The government came out of the earlier appeal in Witt with the order that it only seek DADT discharges where it was provably appropriate, and then went and tried to continue to do just that in the most absurd case imaginable, and after having been excoriated on the facts by the 9th Circuit. And the decision to so proceed in the face of such overwhelming absurdity was made squarely by the Obama DOJ, the tools of the Administration that ran for, and took, office promising to do the opposite.

Which brings us back to the aforementioned Log Cabin Republican (LCR) case. Shocking, but true, the Obama DOJ doubled down on the hypocritical two faced argument. In LCR, Judge Virginia Phillips found DADT unconstitutional under both due process and First Amendment analysis and, seeing as how the case sought injunctive relief, told the plaintiff LCRs to submit a proposed injunction and the government to put any objections in writing thereafter. The plaintiff LCRs submitted their proposed injunctive order on September 16th, and the government filed its objection thereto yesterday. (By the way, the reply by the LCRs was literally just filed and is here).

Now the hilarity and absurdity of the Obama Administration policy rears its ugly head because, you see, part of the government’s objection in LCR is based on the Witt 9th Circuit decision that they should at least be entitled to make a showing on a case by case basis. When, at almost the same exact moment, the Obama Administration was proving in the further proceedings of the Witt case itself, that they could not, and would not, adhere to the spirit of Witt and proceed intelligently and on a case by case basis where they could prove morale and unit cohesion were at risk.

Instead, what the Obama Administration, by and through the actions of their Department of Justice, have proven that their current rhetoric about being dedicated to ending DADT is as empty as their similar campaign promises were hollow. Yet day after day, the Administration wonders why those on the left are unhappy and chastises them for not clapping loudly enough heading into midterm elections where turnout of the base is critical. Tin ear does not begin to describe this arrogance.

Remember when George W. Bush defended his illegal warrantless surveillance program with these lines:

We are at war with an enemy who wants to hurt us again …. If somebody from Al Qaeda is calling you, we’d like to know why,” he said. “We’re at war with a bunch of coldblooded killers.

…when we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so … We’re at war, and as commander in chief, I’ve got to use the resources at my disposal, within the law, to protect the American people

That statement was made on January 2, 2006 in direct response to a question Bush got about Jim Risen and Eric Lichtblau’s blockbuster article in the New York Times exposing the illegal program that went to print just two weeks prior.

Since those early days of realizing the United States government was running an illegal and unconstitutional spy surveillance operation on its own citizens, we have learned an awful lot. For too many citizens, it does not even seem to hold interest. Today, the Center for Constitutional Rights reminds us what the Bush Administration was really up to, how patently absurd it was and just how big of a lie George Bush fostered on the American public. Turns out “If al-Qaida is calling” meant random government searches of phone books for Muslim sounding names and taking crank phone calls.

From a CCR press release I just received:

Today, the Center for Constitutional Rights (CCR) announced that six new plaintiffs have joined a federal, class action lawsuit, Turkmen v. Ashcroft, challenging their detention and mistreatment by prison guards and high level Bush administration officials in the wake of 9/11. In papers filed in Federal Court in Brooklyn, CCR details new allegations linking former Attorney General Ashcroft and other top Bush administration officials to the illegal roundups and abuse of the detainees.

Five of the plaintiffs in the original lawsuit won a $1.26 million settlement in November 2009.

The new plaintiffs include two Pakistani men, Ahmer Iqbal Abbasi and Anser Mehmood; two men from Egypt, Ahmed Khalifa and Saeed Hammouda; Benamar Benatta, an Algerian man who has sought and received refugee status in Canada; and Purna Raj Bajracharya, a Nepalese Buddhist whose prolonged detention after 9/11 prompted outrage not only by civil libertarians, but even by the FBI agent who originally investigated him. Despite the fact that the government never charged any of them with a terrorism-related offense, the INS kept the men in detention for up to eight months, long past the resolution of their immigration cases. CCR attorneys say that the government treated these men as terrorists during that time, placing them in ultra-restrictive, super-maximum security confinement and abusing them. The treatment was based not on any actual evidence tying the men to terrorism, but merely because of their race, religion, and national origin.

“I was deprived of my liberty and I was abused at the hands of the U.S. government simply because of my religion and ethnicity. Now, nine years later, I seek to vindicate my rights and hold the people who mistreated me accountable,” said Benamar Benatta. “My hope is that this never happens to anyone again.”

Mr. Benatta succeeded in having a criminal charge for possession of false immigration documents thrown out of court when the federal judge in his case ruled that his immigration detention was a “subterfuge” and “sham” created to hide the reality that, because Benatta was an “Algerian citizen and a member of the Algerian Air Force, [he] was spirited off to the MDC Brooklyn…and held in the [Administrative Maximum Special Housing Unit] as ‘high security’ for the purposes of providing an expeditious means of having [him] interrogated by special agents of the FBI.”

“For almost ten years now, former 9/11 detainees have been fighting for acknowledgment that government officials, no matter what exalted position they hold, cannot get away with ordering abuse and racial profiling,” explained Rachel Meeropol, staff attorney at CCR. “This battle is far from over.”

The new suit names as defendants then-Attorney General John Ashcroft, FBI Director Robert Mueller, former INS Commissioner James Ziglar and officials at the Metropolitan Detention Center in Brooklyn, where the plaintiffs were held. It includes additional detail regarding high-level involvement in racial profiling and abuse, including allegations that former Attorney General Ashcroft ordered the INS and FBI to investigate individuals for ties to terrorism by, among other means, looking for Muslim-sounding names in the phonebook. In the resulting dragnet, hundreds of men were arrested, many based on anonymous and discriminatory tips called in to the FBI.

The complaint also discloses, in some cases for the first time, the discriminatory and nonsensical tips that led to each plaintiff’s arrest and detention. Lead plaintiff Mr. Turkmen, for example, was arrested after his landlady called the FBI to report that she rented an apartment to several Middle Eastern men, and “she would feel awful if her tenants were involved in terrorism and she didn’t call.”

Among other documented abuses in detention, many of the 9/11 detainees had their faces smashed into a wall where guards had pinned a t-shirt with a picture of an American flag and the words, “These colors don’t run.” The men were slammed against the t-shirt upon their entrance to MDC and told “welcome to America.” The t-shirt was smeared with blood, yet it stayed up on the wall at MDC for months.

Michael Winger, CCR cooperating counsel, said, “Last year the Supreme Court tried to derail challenges to the Attorney General’s role in this scheme by announcing tough new pleading standards for claims against high level government officials. We’re going forward to show that despite the new standards, even cabinet officials can be held responsible for abusive treatment.”

The suit further charges that the detainees were kept in solitary confinement with the lights on 24 hours a day; placed under a communications blackout so that they could not seek the assistance of their attorneys, families and friends; subjected to physical and verbal abuse; forced to endure inhumane conditions of confinement; and obstructed in their efforts to practice their religion. One of the new plaintiffs, Saeed Hammouda, was forced to endure eight months of this abuse before he was cleared of any connection to terrorism and deported.

Some of the abuse included beatings, repeated strip searches and sleep deprivation. The allegations of inhumane and degrading treatment have been substantiated by two reports of the Justice Department’s Office of the Inspector General, and several defendants in the case have been convicted on federal charges of cover-ups and beatings of other prisoners around the same time period.

There has been constant, at least in these circles, focus on the due process black hole we have thrown hundreds and hundreds of men into at Gitmo, Bagram and the black sites. But it was not just over there, as the CCR Turkmen v. Ashcroft case above, and the Zeitoun case in post-Katrina New Orleans prove, it is right here at home too.

Turns out “If al-qaida is calling” really meant a tragic game show of “Dialing for Detainees” and taking crank calls from batty old landladies. Based on this atrocious “evidence” human beings were detained without due process, beaten and abused. Right here in the “Homeland”. The new definition of “security”. there is nothing really new in today’s CCR announcement, but it is good to be reminded of where we were not long ago and where, thanks to the cover and complicity of the Obama Administration, we still likely may be.

With the long anticipated retirement of Justice John Paul Stevens, it was important for President Obama to appoint and get confirmed a new justice so there would not only be a full compliment of justices on the court, but to insure the ideological balance of the court was maintained. By selecting Elena Kagan, Obama certainly did not pick the most qualified person for the job, nor did he maintain the ideological balance particularly as Kagan undoubtedly moved the court to the right at least to some degree.

Now, it turns out, by appointing Kagan Obama did not even give the Court a full compliment of justices. From the Blog of Legal Times:

Supreme Court Justice Elena Kagan this week quietly recused herself in 10 cases that will be argued in the term beginning Oct. 4, bringing to 21 the number of cases in which she will not participate.

That represents more than half of the 40 cases the Court has already agreed to hear in the new term — a number that will grow in coming months as the justices agree to hear arguments in more new cases.

During her confirmation this summer, Kagan already indicated she would recuse in 11 cases in which she was counsel of record as solicitor general. The new batch appears to reflect a determination that her participation at earlier stages — even where her office did not file a brief — required her to step aside.

So, as it stands today, Kagan will not be participating in over half the cases on the Supreme Court docket for the coming term. Lovely. A full list of the cases Justice Kagan has recused on to date can be found at the BLT link.

What is more distressing, however, are the cases to come that Kagan will also undoubtedly be recusing on. For instance the al-Haramain, Jeppesen and Jewel cases from the 9th Circuit. There are a whole plethora of Executive/Unitary power, Habeas, Gitmo, Detainee and other critical war on terror cases Kagan either did have, or may have had, her fingers on as head of the Solicitor General’s office. At this point, it looks like she plans on recusing herself from anything and everything that was in her vicinity, no matter how nominally. As should be well known by now, there is no necessity for a justice to recuse from everything they have ever known about, no less an authority than Antonin Scalia proved that.

Now, quite frankly, I have no problem with Elena Kagan recusing from consideration of Vaughn Walker’s decision in al-Haramain, I think the case would be better off without her toadying for the Obama Administration’s view of supreme Executive power and covering of crimes through assertion of state secrets, but what about the Prop 8 Perry v. Schwarzenegger case? In case you have forgotten, a portion of that case (the cameras in the court issue) went to the Supreme Court; if Elena Kagan decides she has to recuse herself, or is looking for an excuse to avoid such a controversial matter, that is going to be a HUGE blow to the chances of success on appeal.

I wonder how many people really understood they would be getting a part time justice for such a critical period over the next couple of years? And for all those on the liberal end of the political spectrum that carped about the fundamental dishonesty of John Roberts when he swore he was just a “balls and strikes” kind of guy “respectful of precedent”, I wonder what they think of the same type of deception from Kagan when she ridiculously understated the depth of her anticipated recusal problem to the Judiciary Committee?

There were a lot of things needed from President Obama’s choice to fill the seat of Justice John Paul Stevens; none of them have been fulfilled so far by Elena Kagan.