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.

Dear Congressman Blumenauer:

I must say, I was both surprised and heartened to see you intrepidly and doggedly pursuing the existence and nature of indemnification agreements from the United States government insulating and immunizing private companies such as Halliburton/KBR from damage liability they would otherwise accrue for heinous, illegal and/or unconscionable acts committed in their participation in national security and the war on terror. Excellent work sir!

However, now that you are up to speed on the insidious use and abuse of such provisions, maybe you would like to continue your fine work – and give honor to your oath of office to defend the Constitution – and ask the same questions, and demand answers thereto, regarding indemnification agreements given to telcos by the Bush Administration in conjunction with the telcos’ participation in the illegal and unconstitutional warrantless wiretapping program instituted by the Bush/Cheney Administration. And we know the program was illegal and unconstitutional because a United States Federal Judge directly and specifically declared it to be just that.

So, what you need to know is that the same type of craven indemnification agreements you have pluckily exposed for Halliburton/KBR were almost certainly given to the telcos participating in the President’s Wiretapping Program, and you owe it to your constituents and the citizens of this country to look into it and get answers just as you have done here.

Now I know this may be a lot to grasp and there is much for you to learn in order to successfully pursue this matter, but by great and fortuitous luck, I have already laid out everything you will need to get going. In fact, I did it nearly three years ago, and here is a taste:

For the foregoing reasons, the telcos are already protected by the immunity of existing statutory safe harbor provisions for legal conduct requested by the Administration and will have indemnity for other acts demanded by the Administration. I respectfully submit that the telcos are already sufficiently protected from the Spectre (some pun intended) of massive financial peril of the existing civil lawsuits; and that the only real reason for the desperate push for immunity is panic among Administration officials that their craven illegality will be exposed and they will be held to account. We now know for a fact, that which we have always suspected, thanks to Mike McConnell, namely that the entire belligerent push for FISA reform is all about immunity, and not about what George Bush would call “protectun Amarikuh”.

The minor issues with FISA that need tweaking could have been easily accomplished and, indeed, Congress offered long ago to work with them to do just that; but, of course, were belligerently spurned because, as Dick Cheney famously bellowed, “We believe… that we have all the legal authority we need”. This furious push has been about immunity, from the start, to prevent discovery of the Administration’s blatant and unconscionable criminal activity. The House of Representatives, and the cave-in Administration cover-up specialists in the Senate as well, should take a long, hard look at what is really going on here and steadfastly refuse the Administration’s self serving craven grab for the cover of telco immunity.

But, alas, Congress, which you were a member of, went along like a bunch of blind lemmings with the Bush/Cheney Administration’s demand for immunity for telcos that, along with the dishonest assertion of state secrets, has completely eviscerated citizens’ ability to know and understand what illegal and unconstitutional actions the US government is taking in their name, not to mention ability to seek proper redress for the crimes and acts.

So, now that you are all hardwired in on indemnification abuse, and on a roll of success, how about you go ahead and pursue this part of it? Come on Earl, it is your duty after all. Thank you in advance for your attention and cooperation in resolving this important matter.

Sincerely,

bmaz

Hot on the heels of a pretty spirited discussion of the Obama Administration treatment of progressive nominees, both in the blog post here at Emptywheel and yesterday on Twitter, comes the reminder by Main Justice that there are no appointed, nor confirmed, US Attorneys in all of Texas:

Career prosecutors have run the four U.S. Attorney’s offices in Texas for more than a year. Obama has made one U.S. Attorney nomination in Texas thus far: state Judge John B. Stevens Jr., who withdrew from consideration for Eastern District of Texas U.S. Attorney.

The Senate has confirmed 66 of Obama’s U.S. Attorney nominees. There are 93 U.S. Attorney posts.

Now the framing of the report is a complaint by John Cornyn, which I have little sympathy for, and who has undoubtedly contributed somewhat to the impasse; but that said, the facts are pretty astounding.

Over a year and a half into the Obama Presidency, and still over 30% of the US Attorney positions remain unfilled or, even worse, still under the control of Bush/Cheney appointees. The percentage is only that low due to a recent surge in investitures of US Attorneys; for most of the current Administration’s term, the situation was even far worse than it is as of today.

Which led me to wonder exactly what the corresponding status was for federal judicial nominations. It is fairly bleak. There are 103 Federal judicial vacancies and, shockingly, on 48 of them even have so much as a nominee pending. 12% of the 876 total Federal judgeships are sitting vacant. In my own little nook of the world, the 9th Circuit, there are 13 total judicial seats vacant, and only three of them have even putative nominees.

The critical importance of filling judicial vacancies is explained very nicely in a current post by Gaius Publius at AmericaBlog that expands on my Progressive Nominations/Goodwin Liu post yesterday:

This matters for several reasons. One is that the current judiciary is overwhelmingly Republican-appointed and conservative (including Movement-Conservative):

Over the last three decades, Republicans have put the appointment of conservative judges at the top of their agenda. And controlling the White House 20 of the last 30 years has allowed them to carry out their plan. By the time George W. Bush left office, 60.2 percent of the judges, including two-thirds of the Supreme Court, had been appointed by Republican presidents. The younger Bush appointed nearly 40 percent of all federal judges.

Yet Obama has been cautious to the point of weird about reversing this trend. While news stories on this subject headline his lack of judicial confirmations, stories like this one also contain tales of his caution; Bloomberg:

A lot of groups are still waiting for this president to nominate someone who will really reshape the bench,” said Barbara Arnwine, executive director of the Lawyers’ Committee on Civil Rights in Washington. The group supports expanding legal protection for blacks and other minorities.

Gaius Publius is exactly right. In fact, reshaping the Federal judiciary away from the hard conservative Federalist society bent that has been installed and meticulously grown by the Reagan and two Bush Administrations was one of the primary rallying cries for Democrats, including the Obama campaign, during the 2008 election. And, yes, there has been significant and unified Republican obstructionism; that is absolutely a factor. The problem is that there has been little if any fight put up by the Obama Administration and instead mostly weak resignation.

And you have to wonder how the situation on nominations at the White House is going to get any better soon with this news:

White House Counsel Robert Bauer will assume responsibilities for lobbying, transparency, government reform and a host of other government operations issues once White House ethics adviser Norman Eisen departs for his new role as ambassador to the Czech Republic, senior administration officials confirmed Friday.

Since Bauer was supposedly the go to guru for nominations, and especially judicial nominations, It is hard to see how a major dilution of his time (he is already White House Counsel after all, which you would think might take up a lot of time) by adding a giant new portfolio on ethics compliance is going to help the already languishing White House efforts.

There are always excuses like the economy and the push for healthcare; but it does not excuse a failure to make a better effort. And with the losses in both houses of Congress universally expected this November the maximum time of strength for the Obama Administration has been squandered to an inexplicable extent. It is time for them to make good and get the vacancies in the justice system filled while they still can. The bonus is it is a move that would actually please and fire up their base.

UPDATE: A reader has conveyed off blog some information stated to be more up to date (even though the Federal Courts site I linked said it was current as of today’s date) and I want to post it here.

1. While the Administrative Office of the U.S. Courts lists the number of vacancies as of the date of the article as either 103 http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx (used by bmaz) or 104 http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/CurrentJudicialVacancies.aspx by my count after taking into account last week’s confirmations, as of the date of the article there were only 99 openings (as matters stand presently at least 3 more vacancies will occur later this month) although I have not checked to confirm that the confirmed circuit court and district court nominees have in fact taken their oath of office for their new positions (as Justice Kagan did on the 7th following her confirmation on the 5th). If the new judges have not taken their oaths of office, one could always argue that the positions for which they were confirmed are still vacant.

2. There are only 40 pending nominations http://judiciary.senate.gov/nominations/111thCongressJudicialNominations/Materials111thCongress.cfm not 48.

Another site which may be useful and which appears to have up to date information is here: http://judicialnominations.org/

I will admit, I took my figures straight off the Federal Courts site and did not go count and tabulate districts and circuits individually. I don’t know which set of figures are the most accurate, so I am leaving them both here. Quite frankly it does not change the point of my post or conclusions one iota; I think it all demonstrates a problem with the Administration taking advantage of the opportunity to fill vacancies in the Federal bench (it is especially worse if there are really only 40 current nominees instead of 48 as I had).

I am at the downtown court complex in Phoenix this morning for other matters but have obtained a copy of Judge Bolton’s decision in United States of America v. State of Arizona, the most significant of the multiple litigations against the controversial Arizona Immigration law, known as SB 1070. In a nutshell, the most critical and important parts of the law have all been enjoined – i.e. have been stayed pending further litigation.

The full written decision is here.

The summary, as written by Judge Bolton, is:

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070 – A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person

Section 3 of S.B. 1070 – A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers

Portion of Section 5 of S.B. 1070 – A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work

Section 6 of S.B. 1070 – A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States

The Court also finds that the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest. The Court therefore issues a preliminary injunction enjoining the enforcement of the portion of Section 2 creating A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating A.R.S. § 13-2928(C), and Section 6 creating A.R.S. § 13-3883(A)(5).

The decision is very well taken and written. It should be noted that this is not a final decision on the merits, but only a ruling on questions of preliminary injunction on enforcement of the law. While Bolton has not enjoined the entire law, what she has done effectively guts any ability of the State of Arizona and its law enforcement agents to utilize the statute for the purpose intended.

I will also note that I have known and had experience with Judge Bolton for the better part of two decades going back to her term as a Maricopa County Superior Court judge; she is bright and not a wild card in the least; reserved although not conservative. She writes sound decisions and is not prone to being overruled. For these reasons, and from a quick reading of her analysis here, I think she is on very solid ground and this decision bodes well for the future, both in the 9th Circuit and Supreme Court. Again, however, although this is a very good read as to where Judge Bolton will go in her final decision, there is still formal litigation on the merits to follow prior to reaching the appellate levels.

All in all a good day here at the Sandra Day O’Connor Federal Courthouse in Phoenix Arizona.

Alex, I’m going with – “What is getting a prosecutor fired for not complying with your political agenda?”

The investigation (not of the U. S. Attorney firings despite misleading headlines) into the Iglesias firing is done. bmaz is ready to change his name to Carnac and Holder’s Department of Justice has shot off a letter-ary masterpiece to  the House Judiciary Committee (HJC).  As per Carnac’s bmaz’s predictions, no charges.

What bmaz could not have predicted, but did link to in his post, is the actual content of the letter sent to Conyers.  I don’t think anyone would have predicted the cavalier way in which Holder’s DOJ reaches its seemingly predetermined decision, while providing a roadmap to other legislators who’d also like to get a prosecutor fired for political convenience. Dannehy and Holder explain to Members of Congress – if a Federal prosecutor isn’t filing or refraining from filing the cases you want, feel free to covertly conspire to get him fired. As long as you don’t make any misguided attempt to “influence” him before you get him fired, you’re good to go. Oh, and btw, phone calls to him at home to fume over his handling – not to worry, those doesn’t count as an attempt to influence.

Stripped and shorn, Holder and Dannehy have said –

1. We aren’t gonna investigate anything but Iglesias and we aren’t saying why:  “The investigative team also determined that the evidence did not warrant expanding the scope of the investigation beyond the removal of Iglesias.”

WHAT EVIDENCE? They freakin didn’t expand the scope of the investigation to see what evidence there was, then they decide, oh well, we don’t have any of the evidence we didn’t look for so we shouldn’t look for it since we don’t have it … whatever.

2. Hey, yeah, Domenici DID make a contact to smack on Iglesias about the handling of a matter currently in front of the USA’s office but:   “The evidence about the call developed in the course of Ms. Dannehy’s investigation, however, was insufficient to establish an attempt to pressure Mr. Iglesias to accelerate his charging decisions.”

So similar to the lack of intent to torture – I mean, if Domenici in good faith thought he was just gathering intel on the status of political prosecutions … um, let’s move on.

3. Instead of trying influence Iglesias, Holder and Dannehy think that Domenici *just* got Iglesias fired for not pursuing political bias in his prosecutions. “The weight of the evidence established not an attempt to influence but rather an attempt to remove David Iglesias from office, in other words, to eliminate the possibility of any future action or inaction by him.”

4. This, they say, is fine. Seriously. They say there’s nothing DOJ can do about it. It’s no problem for politicians to get DOJ lawyers fired for not being political lapdogs. But to be fair, they then finish up by saying both, “In closing, it is important to emphasize that Attorney General Holder is committed to ensuring that partisan political considerations play no role in the law enforcement decisions of the Department” and (bc that wasn’t really the closing after all) “The Attorney General remains deeply dismayed by the OIG/OPR findings related to politicization of the Department’s actions, and has taken steps to ensure those mistakes will not be repeated.”

HUH? They’ve just said it is perfectly legal for politicians to get USAs who won’t do their political bidding fired by covert contacts with the WH, but Holder is  “committed” to ensuring partisan political considerations play no role at DOJ? WTH?  I guess if you put those two concepts together and held them in your mind for long, you’d end up committed too.

5. Anyway, they pull all of this off by giving a Bybee-esque review of “18 U.S.C. § 1503 [that] punishes anyone [at least, anyone the DOJ selectively decides to prosecute] who ‘corruptly . . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” It’s a simple thing – according to Holder and Dannehy,  Domenici didn’t try to “influence” Iglesias, he just had Iglesias fired.   Which obviously isn’t an attempt to obstruct or impede.  I mean, there’s nothing that *doesn’t impede* a case like getting the prosecutor handling it fired.

They also explain to us that they can’t go after Domenici for trying to get, then getting, Iglesias fired – at least, not under 18 USC 1503, because that section “penalizes only forward-looking conduct.” So Domenici would have to be doing something that would involve forward-looking conduct. And after all, as they just said (see 3 above) Domenici wasn’t trying “in other words, to eliminate the possibility of any future action or inaction by [Iglesias].” Oh, except for, you know, they actually say in the letter that’s exactly what Domenici WAS doing. Trying to affect future action or inaction – in a forward-looking way with his forward-looking conduct.

This clarifies so many things.  Who knew, until now, that the only person who got things right during the Saturday Night Massacre was Robert Bork?

Nixon wrote the first act in DOJ’s current play (which is only fair, since he also wrote their anthem that it’s not illegal if the President does it) when he arranged for the firing of prosecutors who were bugging him, but in response to a livid Congressional response, using words like impeachment and obstruction, said:

“…[I]n all of my years of public life, I have never obstructed justice. And I think, too, that I can say that in my years of public life that I’ve welcomed this kind of examination, because people have got to know whether or not their President’s a crook. Well, I’m not a crook!”

And now Dannehy and Holder have made that chapter and verse – nothing wrong with firing some prosecutors if they aren’t playing politics.  Poor Karl Rove – so much trouble could have been avoided if he had just known that a Democratic administration’s DOJ would take the position that it would be perfectly ok for him to get Bush to fire Fitzgerald (something that apparently made even Buscho lawyers Gonzales and Miers flinch) – no obstruction, no impeding – as long as Rove never tried to “influence” the prosecutor first.

And now DOJ prosecutors now know exactly how things work. It’s been spelled out. No one will try to influence them. It’s just that if they aren’t making Obama’s favorite politicians and fundraisers happy, well – their career may have a little accident.

With AGeewhiz’s like Holder,  we can rest easy.  Gonzales may have been afraid to come out and state DOJ’s policy plainly. He never quite coughed out the admission that it is DOJ policy that Republican Senators who conspire with the Republican WH to get prosecutors fired for not carrying out the Republican Senator’s political agenda are acting well within their rights. Holder is not nearly so timid.  He’s spelled it out. Prosecutors are fair game for Congresspersons, at least those with the right WH ties.

I guess we should be grateful he hasn’t handed out paintball guns to Democratic legislators and encouraged them to mark the weak links in his legal herd – the ones that haven’t been compliant enough to keep their jobs.

At least, not yet.

And besides, haven’t we already learned what Holder just told Conyers in that letter?

Firing the Republicans in 2006 and 2008 didn’t impede or obstruct the attacks on the rule of law one little bit.

Update: On the good news front – Happy Day fatster!

As several folks have noticed in comments, the results are in from the Nick and Nora Dannehy DOJ investigation into the US Attorney firings by the Bush/Cheney Administration. And, shockingly, the Obama/Holder Department of Justice just cannot find any conduct, not one single instance, worthy of criminal prosecution.

From the official six page letter from DOJ Main’s AAG, Ronald Welch, making the belated and pitiful report to Judiciary Chairman John Conyers,

This supplements our earlier response to your letter of October 2, 2008, which requested information about the appointment of Assistant United States Attorney Nora R. Dannehy of the District of Connecticut to detennine if criminal charges are warranted based on certain findings in the public report of the Office of the Inspector General (OIG) and the Office of Professional Responsibility (OPR) (collectively OIG/OPR) entitled “An Investigation into the Removal of Nine U.S. Attorneys in 2006” (Report). We are sending identical responses to the other Members who joined in your letter to us. As more fully explained below, Ms. Dannehy has detennined that no criminal charges are warranted with respect to this matter.

…..

In closing, it is important to emphasize that Attorney General Holder is committed to ensuring that partisan political considerations play no role in the law enforcement decisions of the Department. In this instance, Ms. Dannehy, a long time career prosecutor, was asked only to assess the possible criminality of the actions described in the OIG/OPR report, to conduct such additional investigation as necessary to make that assessment, and to determine whether anyone made prosecutable false statements to Congress or OIG/OPR. The Attorney General appreciates the work of Ms. Dannehy and her investigative team and has accepted her recommendation that criminal prosecution is not warranted.

The Attorney General remains deeply dismayed by the OIG/OPR findings related to politicization of the Department’s actions, and has taken steps to ensure those mistakes will not be repeated. The Attorney General also appreciates the work of the Inspector General and the Office of Professional Responsibility on this matter.

We hope that this information is helpful. Please do not hesitate to contact this office if we can provide additional assistance regarding this or any other matter.

The whole letter is here and speaks for itself if you care to read it.

This is entirely what anybody with a lick of sense should have expected from the forward looking modus operandi of the Obama Administration. The one note I would make is that Dannehy’s “investigation” was never a full fledged inquiry into the entire matter; the focus was set at, and remained, on David Iglesias’ complaint, which was not phrased all that compellingly by Iglesias to start with, and was further muddled by the antics of Scott Bloch. Little but lip service was given to the remainder of the sordid picture of Purgegate. You might remember Scott Bloch, the “professional” Iglesias was so sure would do the right thing and get to the bottom of the abuse engendered upon Iglesias.

In other news, the Obama/Holder DOJ recently announced they have no problem with Scott Bloch getting off with probation on his criminal plea of guilt.

The Obama White House loves tidy little packages, and they have clearly wrapped one up here. Any more questions about how the big John Durham “preliminary review” will come out?

Coming late in the day (h/t Fatster) is the somewhat weak and ineffectual response from Judiciary Chairman John Conyers. Acceptance and resignation continue to rule the day. Every day.

President Obama has announced yet another recess appointment; the courtesy and propriety that he would not give to Dawn Johnsen:

President Barack Obama, frustrated by Republican obstruction of key administration staffing appointments, will use his power to appoint his pick to run Medicare and Medicaid while the U.S. Congress is in recess, the White House said on Tuesday.

Obama will make the appointment on Wednesday of Dr. Donald Berwick, a healthcare expert he nominated in April to run the vast federal medical programs for poor and elderly Americans, according to White House Communications Director Dan Pfeiffer.

Obama has found the inner spine to recess appoint NLRB member Craig Becker along with 14 other people to a variety of positions from the DOJ to Treasury Department, has stated he will do so for militarized spook James Clapper (who neither side seems to like), and now Donald Berwick.

Obama seems to consider Berwick critical:

Berwick’s appointment as administrator of the Centers for Medicare and Medicaid Services (CMS) place him at the heart of Obama’s historic healthcare reform, and the role was too vital to leave unfilled, Pfeiffer said.

“CMS has been without a permanent administrator since 2006, and even many Republicans have called on the Administration to move to quickly to name a permanent head,” he said.

Dan Pfeiffer and the White House are full of dung. If “many Republicans” were clamoring for his nominee, even a couple in the Senate, he would not need to recess appoint. What is truly stunning though is that Obama considers this position critical, but not the head of the Office of Legal Counsel, the body that is supposed to be the legal conscience of an administration. Equally galling is the fact the White House trots out the excuse that “CMS has been without a permanent administrator since 2006”. Four years is too long for CMS, but six years is no problem for the critical Office of Legal Counsel? Really?

As I have repeatedly explained and demonstrated with facts and evidence, Barack Obama had 60 votes for confirmation of Dawn Johnsen to head OLC for the entire second half of last year and sat on her nomination, refusing to even call a vote. The fact that Obama flat out refused to even consider a recess nomination for Dawn Johnsen to an office dying for real leadership, and that he will use the recess appointment power anywhere and everywhere else, ought to be proof to any doubters that the sole reason Dawn Johnsen is not leading the OLC is because Barack Obama did not want her there.

For a President intent on granting retroactive FISA immunity to criminally complicit telecoms, asserting endless claims of “state secrecy” to cover up crimes of the Bush/Cheney Administration, suppressing torture photos, tapes and evidence, ordering the indefinite detentions without trial or due process and ordering the extra-judicial assassination of remote targets (including American citizens), well I guess a person of Dawn Johnsen’s morals and ethics indeed might not be convenient. Even given that, why did the White House engage in such crass duplicity with the country and hang Dawn Johnsen out to dry for so long? Why won’t anybody ask that question of them and demand a legitimate answer?

Exactly one week ago, in a post entitled Judicial Ethics in the Gulf: Judge Feldman’s Conflicts and DOJ Malpractice, I related the patently obvious, and disqualifying, statutory ethical conflicts on the part of the Federal judge in the Eastern District of Louisiana, Martin Feldman, who made the curious and shocking decision to stay enforcement of the Obama Administration’s six month deepwater moratorium. As I pointed out, it legally was somewhat astounding the government did not raise Feldman’s conflict at any opportunity:

With this knowledge in the public sphere at least substantially by the night after Feldman’s decision, the government nevertheless did not even mention it as a ground in their attempt to stay Feldman’s ruling at the district court level when they filed their motion to stay at the district court level late the following day. That motion was in front of Feldman himself, so maybe you could rationalize the government not raising it at that point (although I would have posed the motion to stay to the chief judge for the district and included the conflict as grounds for relief were it me).

Having predictably received no relief in their lame request for stay from Feldman, the judge who had just hammered them (not surprising), the government put their tails between their legs and made preparations to seek a stay from the 5th Circuit. Surely the government would forcefully argue the glaringly obvious egregious appearance of both conflict and lack of impartiality once they were free of Feldman and in the Fifth Circuit, right? No, no they didn’t.

When the government filed their motion for stay in the 5th Circuit mid to late day Friday June 25, a full three days after getting hammered by oiled up Judge Feldman, and after Feldman’s most recent 2009 financial disclosure had even started being released to the general public (as evidenced by the literally damning piece on it Rachel Maddow did Friday night), the government STILL did not avail themselves of the glaringly obvious argument of conflict by Feldman. Nary a peep from the fine lawyers at the DOJ on one of the most stunningly obvious arguments of judicial bias in recent memory.

Another week later, and there STILL is no peep from the government on an issue that would be critical to reinstating their moratorium if they really wanted to. But while the government lawyers refuse to zealously litigate the position they claim to support, intervenors represented a by law school clinic professor and two lawyers for environmental groups have done the work the government should have done. On Friday June 2, Defendant-Intervenors filed a Motion to Disqualify Feldman in the district trial court and properly noticed the record at the 5th Circuit.

From the D-I Motion to Disqualify:

Pursuant to 28 U.S.C. § 455, Defendant-Intervenors Defenders of Wildlife, Sierra Club, Florida Wildlife Federation, Center for Biological Diversity, and Natural Resources Defense Council (collectively “Defenders”) respectfully move this Court to disqualify itself from proceedings in this case.

As detailed more fully in Defenders’ memorandum in support of this motion, the Court must recuse itself for two distinct and independent reasons. First, the Court’s financial holdings in various companies involved in oil and gas drilling raise in an objective mind a reasonable question concerning the Court’s impartiality in these proceedings, triggering the obligation under 28 U.S.C. § 455(a) for the court to disqualify itself. This obligation is not mitigated by the Court’s sale of some of this stock prior to the issuance of the preliminary injunction on June 22, 2010 since, prior to that time the Court must have formed substantive opinions about the case from both the briefs filed by the parties and the hearing on June 21. The Court owns and/or recently has owned an interest in several companies that comprise part of the network that supports the Gulf’s oil and gas industry. To rule that the moratorium would injure irreparably a network in which the Court was financially invested creates an impermissible appearance of partiality in the mind of a reasonable observer, which is enough to trigger the duty to recuse under § 455(a).

So, hats off to attorney Catherine Wannamaker and her clients the Center for Biological Diversity and Defenders of Wildlife, David Guest of Earthjustice for Florida Wildlife Federation and the Sierra Club and Professor Adam Babich of Tulane Law School’s Environmental Law Center also for the Sierra Club. These intrepid intervenors are doing the job the government lawyers should be doing, but curiously refuse to do.

But this is not the only instance of highly suspect lawyering by the DOJ and DOI attorneys handling the Hornbeck litigation on the six month moratorium. There is also the government’s failure to meaningfully address the critical case Feldman used to craft his contorted ruling. As I said a week ago:

Furthermore, the legal eagles at the DOJ and DOI failed to effectively address and contradict Judge Feldman’s reliance on the case of Motor Vehicle Manufacturers Association V. State Farm Insurance, 463 U. S. 29 (1983), which Feldman contorted and misapplied to wrongfully reach his result.

Here is Feldman’s opinion/order staying the Administration’s six month moratorium. Here is the decision in Motor Vehicle Manufacturers Association v. State Farm that Feldman used to contort the playing field in the direction he wanted. A reading of Feldman’s decision coupled with a close reading of State Farm reveals the clear distinction and contrast between the two situations and why the State Farm decision does not operate in the fashion Feldman claims.

State Farm is remarkably ill applied by Feldman. First off, and most obviously, State Farm reaffirms the proper standard of review, namely that any competent evidence in the agency record mandates upholding the agency determination (in this case the moratorium). Feldman, of course, did a complete end run of this standard. The government, in their respective motions for stay at the district and 5th Circuit, did at least make a halfhearted argument on Feldman violating the standard of review, although they completely fail to use his own linchpin State Farm case against him as would have been appropriate under the circumstances.

Beyond that though, and much more significantly, State Farm delves into a situation where the agency in question there (NHTSA) completely rescinded a rule deemed by the court to be in the interest of protecting the public, and did so without an arguable basis for completely removing the protection to the public. Put more plainly, the government agency in the State Farm situation was harming the public with no viable explanation for the action.

The Court in State Farm found such action – harming the public sector the agency was tasked with protecting instead of helping it – to be directly contrary to the mission and task of the that agency. That logic and framing certainly does NOT apply in the least to the Interior Department’s action in the instant case to impose a six month moratorium where it is crystal clear that the regulatory structure and practices of the oil and gas extraction industry are incapable of protecting the public and environmental welfare. Not to mention that the Department has asserted that their entire array of resources is being consumed entirely by the BP Macondo leak and it is an emergency scenario they are operating under.

In the instant case, Interior was acting exactly within their mission and task to protect the public in relation to mineral exploration and removal, and was not rescinding a rule to protect the public, it enacting a rule – a temporary delay – in order to immediately protect the environment and public, and determine how to better protect the public in the future. There is simply no way to read State Farm as being consistent with the way Feldman applied it to the instant case; in fact a proper scrutiny of State Farm demonstrates that it quite arguable actually supports the government’s agency decision on the moratorium.

But if you review the subsequent motions by the government by and through their attorneys at the DOJ and DOI linked above (and here and here for convenience), they barely address the State Farm decision Feldman used to leverage his entire decision. It is almost beyond belief that a competent lawyer truly zealously and appropriately fighting to restore the moratorium would fail to attack Feldman’s use and abuse of State Farm.

So, if the Obama Administration and Interior Department Secretary Ken Salazar truly believe in the propriety of their six month moratorium, and are dedicated to fighting through appeal for it, why are their lawyers not acting like it? Are they really not trying because they really don’t care, or are they just sloppy and incompetent? It is one or the other.

Oh, and the 5th Circuit is moving things right along. The 5th Circuit told the Hornbeck and related moratorium challengers to file briefs on the stay issue by Friday July 2. Hornbeck filed a brief, as did, quite astoundingly, Senator Mary Landrieu against the government and in favor of oil companies. The government must reply by July 6, if it wishes. The Court set a one-hour hearing for the afternoon of July 8, in New Orleans and said no delays will be granted.

Remember the plaintive cries of Democrats and progressives about the wrongful politicization of the Department of Justice by the Bush/Cheney Administration? Remember the stunning chart Sheldon Whitehouse whipped out at a Senate judiciary hearing on Alberto Gonzales’ tenure as AG showing how politicized the hallowed independent prosecutorial discretion of the DOJ had become under Bush, Cheney and Gonzales? The one that Pat Leahy called “the most astounding thing I have seen in 32 years”?

That was in late April of 2007, little more than three years ago. Despite the most fervent hope of a Democratic and progressive base that they were voting to change the wholesale invasion of the prosecutorial discretion by the White House political shop (along with so, so many other things), it appears little has changed. In fact, the invasion of province appears to be being writ larger and more profound. From Jerry Markon in the Washington Post:

Now, the decision on where to hold the high-profile trials of Mohammed and four others accused of being Sept. 11 conspirators has been put on hold and probably will not be made until after November’s midterm elections, according to law enforcement, administration and congressional sources. In an unusual twist, the matter has been taken out of the hands of the Justice Department officials who usually make prosecutorial decisions and rests entirely with the White House, the sources said.

“It’s a White House call,” said one law enforcement official, who spoke on condition of anonymity to discuss internal deliberations. “We’re all in the dark.”

The delays are tied to the administration’s broader difficulties in closing the U.S. military prison at Guantanamo Bay, Cuba — where Mohammed and the other detainees are held — and are unlikely to affect the outcome of a trial that officials vow will be held at some point. But people on all sides of the debate over whether Mohammed should be tried in federal court or before a military commission expressed frustration that nearly nine years after Sept. 11, justice for the attacks seems so elusive.

“It’s important that these trials actually take place, and soon,” said Jameel Jaffer, director of the national security project at the American Civil Liberties Union, which has long pushed for the trials to be held in federal court. “It’s not just that people held for long periods of time in government custody deserve to contest the evidence against them. It’s also that these trials are important to the country.”

For all the hope and change, nothing has changed. Toying with the root charging and prosecutorial functions and discretion of the Department of Justice as a way to respond to the prevailing political winds is a craven path for the Obama Administration to take. And hanging Attorney General Eric Holder and his Department out to dry in those winds is despicable political and executive cowardice.

So, on this fine Fourth of July, as we celebrate America’s independence and reflect on our founding principles, it would be wise to remember, and refresh the recollection of the Obama Administration, that this is a nation of law, not men. Both the government and court system of the United States are open and operating unfettered by either war, hostility or rebellion. There is no justification, legal or moral, for indefinite detention, failure to charge and try criminals openly and fairly, without tortured evidence, and the other string of hideous denials of due process being occasioned in our name.

It is instructive to reflect back on the wisdom of ancestors past, also confronted with novel legal challenges, and at a time (unlike today) when the literal existence of the United States had been in question from the Civil War, as expressed by the Supreme Court in Ex Parte Milligan:

Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

……

All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, there is no difficulty of preserving the safeguards of liberty, for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion — if the passions of men are aroused and the restraints of law weakened, if not disregarded — these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.

The courts and government of the United States of America are open and unfettered. It is time for the Obama Administration to quit frittering away the American foundation of law to the whims and winds of personal electoral desire and perceived political necessity. There can be no greater show of strength and character than to demonstrate to the world that we live and die with the principles we were founded with. Put the September 11th defendants on trial where they belong, as criminals in the Article III Federal court of jurisdiction.