One of last Friday’s big stories somewhat lost in the hustle and focus on the BP Gulf oil disaster and the holiday weekend concerned the continuing outrage of the US drone targeted assassination program. Specifically, Charlie Savage’s report at the New York Times that the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, was expected to issue a report calling on the United States to stop Central Intelligence Agency drone strikes thus “complicating the Obama administration’s growing reliance on that tactic in Pakistan”.

Today, the report is out, and Charlie Savage again brings the details in the Times:

A senior United Nations official said on Wednesday that the growing use of armed drones by the United States to kill terrorism suspects is undermining global constraints on the use of military force. He warned that the American example will lead to a chaotic world as the new weapons technology inevitably spreads.

In a 29-page report to the United Nations Human Rights Council, the official, Philip Alston,the United Nations Special Rapporteur on extrajudicial executions, called on the United States to exercise greater restraint in its use of drones in places like Pakistan and Yemen, outside the war zones in Afghanistan and Iraq. The report — the most extensive effort by the United Nations to grapple with the legal implications of armed drones — also proposed a summit of “key military powers” to clarify legal limits on such killings.

In an interview, Mr. Alston, said the United States appears to think that it is “facing a unique threat from transnational terrorist networks” that justifies its effort to put forward legal justifications that would make the rules “as flexible as possible.”

Here is Alson’s official report.

Interestingly, Alston’s report comes hot on the heels of the news the biggest get yet for the Obama drone assassination program, Al-Qaida Number Three (or at least the latest Number Three) Mustafa Abu al-Yazid. But Alston, although indicating that al-Yazid migh could be distinguished because of the direct al-Qaida status, nevertheless expressed reservations even is such situations.

For example, it criticized the United States for targeting drug lords in Afghanistan suspected of giving money to the Taliban, a policy it said was contrary to the traditional understanding of the laws of war. Similarly, it said, terrorism financiers, propagandists and other non-fighters should face criminal prosecution, not summary killing.

It also said that a targeted killing outside of an armed conflict “is almost never likely to be legal.” In particular, it rejected “pre-emptive self-defense” as a justification for killing terrorism suspects far from combat zones.

“This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the U.N. Charter,” Mr. Alston said. “If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.”

Alston’s concerns are especially troubling considering Charlie Savage’s first NY Times report in last Friday’s print edition on the quiet efforts of the Obama Administration to insure its drone operators can never be prosecuted for the extrajudicial murders they commit. Describing surreptitious efforts to amend the Military Commissions Manual:

The Pentagon delayed issuing a 281-page manual laying out commission rules until the eve of the hearing. The reason, officials say, is that government lawyers had been scrambling to rewrite a section about murder because it has implications for the C.I.A. drone program.

An earlier version of the manual, issued in 2007 by the Bush administration, defined the charge of “murder in violation of the laws of war” as a killing by someone who did not meet “the requirements for lawful combatancy” — like being part of a regular army or otherwise wearing a uniform. Similar language was incorporated into a draft of the new manual.

But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition could be construed as a concession by the United States that C.I.A. drone operators were war criminals. Jeh Johnson, the Defense Department general counsel, and his staff ultimately agreed with that concern. They redrafted the manual so that murder by an unprivileged combatant would instead be treated like espionage — an offense under domestic law not considered a war crime.

All of which is not just distressing, but telling as to who the United States have become as a country. Made all the more sickening by the fact the extrajudicial assassination program has exacerbated geometrically under the short, but deadly, tenure of the supposedly enlightened Constitutional law authority Barack Obama.

The new rules have transformed the program from a narrow effort aimed at killing top Al Qaeda and Taliban leaders into a large-scale campaign of airstrikes in which few militants are off-limits, as long as they are deemed to pose a threat to the U.S., the officials said.

Instead of just a few dozen attacks per year, CIA-operated unmanned aircraft now carry out multiple missile strikes each week against safe houses, training camps and other hiding places used by militants in the tribal belt bordering Afghanistan.

The original NY Times article by Savage last Friday is an excellent piece on the drone program worthy of a read if you did not catch it at the start of the holiday weekend when it first was published.

Getting back to Philip Altson’s UN Special Rapporteur report, the wrath of the world against the US is growing not just from the existence of the program to start with, but by the indiscriminate “collateral damage the US wreaks with callous impunity. Overshadowed by the glee of the Obama Administration and the blinkered stenographic major media over the remote hit on al-Qaida Number Three al-Yazid was a concurrent report lost in the shuffle of that even US Military investigators have determined completely innocent Afghan citizens were being murdered by the Obama Killer Drones along with a pattern of deception trying to cover it up. From the AP via the Arizona Republic:

U.S. military investigators found that “inaccurate and unprofessional” reporting by U.S. operators of a Predator drone was responsible for a missile strike that killed 23 Afghan civilians in February, according to a report released Saturday.

Release of the scathing report is part of a U.S. effort to counter rising public anger over civilian deaths, which threatens to undermine the campaign against the Taliban at a critical juncture in the nearly nine-year war. Twelve other civilians including a woman and three children were wounded in the missile strike, the report said.

Four American officers – two described as senior – received career-damaging reprimands, the U.S. command said in a statement. The top U.S. and NATO commander in Afghanistan, Gen. Stanley McChrystal, called on the Air Force to investigate the actions of the Predator crew.

Isn’t that special? Grossly wanton and willful work by American remote video gameboys leave a swath of death 23 innocent civilian souls wide and they have received some demerits on their record. The “operators’ of the drones, back in Nevada, where the video gameboys are shacked up, just somehow had never noticed any Afghani women and children in the cars, despite watching them for 3 1/2 hours. Not only had they not noticed women and children themselves, they didn’t notice warnings intelligence analysts sent to them that children were present and visible.

It is not a mistake, it is murder. But don’t try to tell that to US governmental officials:

That comment drew a response from a U.S. official: “Those who think we strike at terrorists over the objections of the Pakistani government are mistaken. This is a common fight against those who menace both our countries. That fact alone renders absurd the notion that U.S. officials might be tried in a Pakistani court for counterterrorism operations.

Yeah, just totally absurd. You give the CIA a huge budget, the whole world as a killing field, carte blanche to terminate human souls with prejudice, no duty to get individual Presidential authorization for each kill, put the President directly in the authorization to murder chain, remove all substantive accountability and then give them killer drones operated by jacked up video gameboys. What could possibly go wrong?

[Notice of erratum: Due to author error on my part, I incorrectly originally attributed two later block quotes in this post to the LA Times when they, in fact, came from Charlie Savage and the New York Times. The post has been corrected to reflect the same with my sincere apologies to Charlie.]

As you undoubtedly know by now, BP has failed miserably at every “fix” they have attempted so far. There is growing evidence of what a total sham exists in the craven use by BP of any number of subsidiaries to insulate itself from criminal and civil liability.

But right now the focus is on the ongoing LMRP attempt that BP now is warning could drag on from four days to a week. Many of you have been keeping up the monitoring of this back on the previous Top Hat and Tails: BP Has Yet Another “Solution” thread from Sunday. Please continue that discussion and reporting here.

One other thing I would like to point out; despite making a big dog and pony show of its commitment to speak with a single voice, Thad Allen, and quit making a media show of parading a series of Cabinet Officers down to the Gulf in a vain attempt to look like they are on top of things, the Obama Administration is …. wait for it …. making a media show of sending Attorney General Eric Holder down to the Gulf to make it look like they are on top of things. From Reuters:

Attorney General Eric Holder will survey the damage from the Gulf Coast oil spill on Tuesday and meet with federal prosecutors and state attorneys general, the Justice Department said on Monday.
…..
After a tour and briefing by the U.S. Coast Guard, Holder will meet with the state attorneys general from Louisiana, Alabama and Mississippi as well as U.S. attorneys from those states. Holder is also scheduled to speak to reporters in New Orleans.

The Justice Department has already demanded that the companies involved in the spill, including BP Plc, Transocean Ltd and Halliburton Co to preserve paperwork related to the accident that could become part of an investigation.

Experts have said the Justice Department was likely eyeing potential violations of the Clean Water Act, the Endangered Species Act, the Migratory Bird Treaty Act and the Refuse Act.

Notice what is missing from that last paragraph? There is no mention of prosecution under the negligent and/or reckless provisions of the Federal manslaughter law for the eleven deaths occurring on Deepwater Horizon as a result of BP’s willful and wanton conduct. The article mentions the deaths, but the Obama Administration and Holder DOJ never does. When it comes to talk of potential accountability, it is like the eleven deaths never happened to the Obama Administration. But hey, there are business interests and military fuel contracts they must protect and, clearly, that takes precedence for this Administration.

[Graphic – BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]

Jason Leopold and I have both been going head on at the DOJ and Obama Administration over the issue of criminal treatment for BP and its actions in causing the Gulf disaster; see: here, here, here and here. One of the thoughts has regarded the DOJ’s ability to leverage one or both of the Federal criminal probation matters BP is currently operating under for past crimes.

One case was for the Alaska spill and BP was placed on criminal probation for three years starting in December 2007. The other case was a felony plea resulting from the Texas City Refinery explosion. Here is the plea agreement from the Texas City Refinery case and here is the concurrent statement of facts in support thereof.

The key to unlocking where we stand on this is understanding the exact relationship, and how clearly defined it is, between the parent company “BP Plc.”, the Texas City criminal defendant entity “BP Products North America Inc.” and the Alaska criminal defendant entity “BP Exploration (Alaska) Inc. Also, what exact names are on the permits and leases for the Macondo well project? How do all these fit together and can we pierce these alter egos and reasonably argue that the parent entity BP Plc. is legally, including criminally, liable for all?

So this is a crowdsourcing game for one and all that are interested in helping. If we can dissect this bull manure for the cute liability dodge sham it is, maybe we can gain some traction. Put any thoughts, links, cites and results of your work in the comments. Many of you are a lot better at drilling into corporate entities than I am, so thanks for the help!

The major media and rest of the country are catching on to what should have been patently obvious from the start, i.e. the discharge from the BP Deepwater Horizon catastrophe in the Mississippi Canyon offshore oilfield in the Gulf of Mexico is many factors larger than was being disclosed by either the relentlessly dishonest BP or the US government partnering with them in the disaster response. But while the public attention has been focused on the Top Kill well closure attempt and the mind numbing spill cam BP was finally forced to “allow” the public to see, hearings have been proceeding in not only Congress as covered by Emptywheel (see here and here), but also in Kenner Louisiana in front of a joint Coast Guard/MMS Federal inquiry board.

There have been startling revelations, especially out of the Kenner joint inquiry. The New Orleans Times Picayune is once again on a path to a Pulitzer for their disaster coverage and has given comprehensive coverage from Kenner and The Hill in Washington. Here are some items from the evidence set being adduced in Kenner and Congress:

The failed blowout preventer on the Deepwater Horizon oil rig had a hydraulic leak and a dead battery in one of its control pods, and testing in the hours before an April 20 explosion revealed that pressure in the well was dangerously out of whack.

While some data were being transmitted to shore for safekeeping right up until the April 20 blast, officials from Transocean, the rig owner, told Congress that the last seven hours of its data are missing and that all written logs were lost in the explosion.

Heavy drilling fluid was unconscionably replaced with lighter seawater against industry standards just prior to the blowout. Over heated objections by experts on the scene, BP management supervisors overruled drillers, and insisted on displacing the mud with seawater

The broken blow out preventer had not been inspected in over five years.

BP was in a severe economic and time crunch to finish the job quickly and were over six weeks behind schedule.

Immediately leading up to the explosion, BP used procedures that violated their own drill plan; and in spite of indications of a “very large abnormality,” kept testing until they got something they could disingenuously claim fulfilled the test.

BP management supervisors refused to run the comprehensive cement bond log test, a definitive test of the integrity of a well’s cement mandated by Federal Regulations if there are concerns with the results of negative and positive pressure tests like were clearly present.

The BP management official on Deepwater Horizon making the unconscionable decisions, over the vehement objections of seasoned drilling experts, Robert Kaluzza has refused to testify by invoking his 5th Amendment criminal right against self incrimination.

BP officials aboard the rig wanted to skip required pressure tests and tried to impose a drilling plan sent directly from BP’s Houston headquarters that had not been approved, as required, by the federal government’s Minerals Management Service.

As a direct and proximate result of the above described reckless, wanton, willful, and grossly negligent conduct, eleven men are dead and the biggest environmental disaster in history has been unleashed on the fragile and critical Gulf of Mexico, threatening the lives and livelihoods of untold numbers of American families. Some of the toxic death foisted upon the environment cannot even be seen because it lurks in deep giant underwater plumes miles wide by miles long.

The applicable criminal provisions of the Clean Water Act are set out in 33 USC 1319, which in pertinent part provide:

(c) Criminal penalties
(1) Negligent violations
Any person who—

(A) negligently violates section 1311, 1312, 1316, 1317, 1318, 1321 (b)(3), 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator or by a State, or any requirement imposed in a pretreatment program approved under section 1342 (a)(3) or 1342 (b)(8) of this title or in a permit issued under section 1344 of this title by the Secretary of the Army or by a State; or

shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than 1 year, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment of not more than 2 years, or by both.

(2) Knowing violations
Any person who—
(A) knowingly violates section 1311, 1312, 1316, 1317, 1318, 1321 (b)(3), 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator or by a State, or any requirement imposed in a pretreatment program approved under section 1342 (a)(3) or 1342 (b)(8) of this title or in a permit issued under section 1344 of this title by the Secretary of the Army or by a State;

shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $100,000 per day of violation, or by imprisonment of not more than 6 years, or by both.

(3) Knowing endangerment
(A) General rule
Any person who knowingly violates section 1311, 1312, 1313, 1316, 1317, 1318, 1321 (b)(3), 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator or by a State, or in a permit issued under section 1344 of this title by the Secretary of the Army or by a State, and who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be subject to a fine of not more than $250,000 or imprisonment of not more than 15 years, or both. A person which is an organization shall, upon conviction of violating this subparagraph, be subject to a fine of not more than $1,000,000. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both fine and imprisonment.
(B) Additional provisions
For the purpose of subparagraph (A) of this paragraph—
(i) in determining whether a defendant who is an individual knew that his conduct placed another person in imminent danger of death or serious bodily injury—
(I) the person is responsible only for actual awareness or actual belief that he possessed; and
(II) knowledge possessed by a person other than the defendant but not by the defendant himself may not be attributed to the defendant;
except that in proving the defendant’s possession of actual knowledge, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself from relevant information;
(ii) it is an affirmative defense to prosecution that the conduct charged was consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of—
(I) an occupation, a business, or a profession; or
(II) medical treatment or medical or scientific experimentation conducted by professionally approved methods and such other person had been made aware of the risks involved prior to giving consent;
and such defense may be established under this subparagraph by a preponderance of the evidence;
(iii) the term “organization” means a legal entity, other than a government, established or organized for any purpose, and such term includes a corporation, company, association, firm, partnership, joint stock company, foundation, institution, trust, society, union, or any other association of persons; and
(iv) the term “serious bodily injury” means bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

The Federal criminal provisions for negligent and reckless homicide (statutorily known as manslaughter) are contained in 18 USC 1112 and specify:

(a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
Voluntary—Upon a sudden quarrel or heat of passion.
Involuntary—In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of voluntary manslaughter, shall be fined under this title or imprisoned not more than 15 years, or both;
Whoever is guilty of involuntary manslaughter, shall be fined under this title or imprisoned not more than 8 years, or both.

It is hard, if not impossible, to find any way that the conduct of both BP and its key decision making officials responsible for the Deepwater Horizon catastrophe, and corresponding mass loss of life, do not fit within the ambit of the above crimes. Why has the Obama Administration and its DOJ not acted? Why is there not a dedicated criminal investigation open and securing critical evidence?

As best as can be ascertained, the only real DOJ Main assets sent to the Gulf scene are Tony West and Ignacia Moreno, the talking heads for the Civil Division and Environmental Divisions respectively, a tasking that screams of a total coddle the petroleum industry and manage the fallout move, not a get tough criminal consideration.

The DOJ could also be using the Texas Refinery Fire probation case that BP is still under the court’s jurisdiction for from their 2007 felony conviction as an easy investigatory and prosecutorial tool; but the DOJ will not even address the thought, much less act on it.

Why?

The Obama Administration and its DOJ owes the citizens a better effort than they have mustered to date. It is funny they are out trying to prosecute Guantanamo defense attorneys for doing their jobs and are still hell bent to persecute inconsequential marijuana crimes, but have no burning desire to go hard after BP, the biggest environmental criminal in history. How can that be?

UPDATE: I have two things to add. First, is an article just was put up by Jason Leopold at Truthout which dovetails perfectly with this post. It is dead on point with the subject of this post and relates multiple former senior EPA criminal and debarment authorities asking the same questions about focus as are raised in this post; a must read.

Secondly, as I described above, 33 USC 1319 contains the criminal provision of the Clean Water Act. Specifically, 33 USC 1319(c)(1)(A) and 1319(c)(2)(A), through their reference to multiple other provisions, but most notably 33 USC 1312, make the toxic contamination of navigable waterways and wetlands a crime. For an idea of just what contamination of wetlands we are dealing with here, check out this chilling overflight video and post by the National Wildlife Federation. This is criminal in multiple senses of the term.

[Graphic – BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]

The WaPo reports that the Obama Administration might be impeded from filing a suit against the AZ anti-immigrant law because of a 2002 Jay Bybee Memo holding that local police have the authority to detain people for both civil and criminal violations of Federal immigration law. It pitches the story as the Obama Administration being constrained by a Bush Administration reversal of a Clinton Administration position.

In the legal battle over Arizona’s new immigration law, an ironic subtext has emerged: whether a Bush-era legal opinion complicates a potential Obama administration lawsuit against Arizona.

[snip]

The 2002 opinion, known as the “inherent authority” memo, reversed a 1996 Office of Legal Counsel opinion from the Clinton administration. “This Office’s 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken,” says the 2002 memo, which was released publicly in redacted form in 2005 after civil rights groups sued to obtain it.

Though that doesn’t account for the fact that the 2002 opinion not only explicitly reverses that 1996 memo, but also dismissed doubts raised in 1989 in an OLC memo authored by Douglas Kmiec.

Indeed, the only contrary suggestion [as to whether local police can enforce federal statutes] of which we are aware is contained in a footnote in a 1989 opinion of this Office. In that footnote, after stating that “it is not clear under current law that local police may enforce non-criminal federal statutes” and tbat any exercise of authority granted under state law “would necessarily have to be consistent with federal authority” we opined that “unlike the authorization for state and local involvement in federal criminal law enforcement, we know of no similar authorization in the in the non-criminal context.” Memorandum for Joseph R. Davis, Assistant Director, Federal Bureau of Investigation, from Douglas W. Kmiec, Assistant Attorney GeneraI, Office of Legal Counsel, Re: Handling of INS Warrants of Deportation in relation to NCIC Wanted Person File at 4 & n.11 (Apr. 11. 1989) (“1989 OLC Opinion”) (emphasis added).

Why does Poppy Bush hate W?

In any case, the WaPo’s discussion does ignore Eric Holder’s suggestion in an exchange with Judy Chu last week (from around 2:54:40 to 2:56:25) that DOJ is considering the 2002 OLC opinion in its larger review of the Arizona law.

REP. CHU: Well, in 1996, the Office of Legal Counsel concluded that the state and local police lacked legal authority to detain individuals solely on the suspicion of being in the country illegally; however, in 2002, Assistant Attorney General Jay Bybee, issued an Office of Legal Counsel memorandum concluding that federal law did not preempt state police from arresting aliens on the basis of civil deportability.

Have you officially asked the Office of Legal Counsel to review this policy?

MR. HOLDER: Not as yet, but the part — as we go through our review, one of the things that has to be taken into account is the 2002 opinion that you referenced, its continued viability, whether it is a correct assessment of the law, that is all a part of what our review team will be — is in fact, looking at.

REP. CHU: Well, why would you keep that 2002 opinion enforced while it is under review, if it is under review? Especially given the widespread opposition and civil liberties complaints.

MR. HOLDER: Well, I don’t think, as I said, it’s going to take us a — an extended period of time to decide what action we are going to take. But before we decide to take any action, I think we need to understand this statute in its totality, the impact that it will have, understand and take into account what policies the federal government has put in place including OLC opinions, the history that is involved in all of this. There is a wide variety of things that go into the determination that ultimately we will have to make. And I want to make sure that we take as comprehensive a look as we can before we make what I think is going to be a very consequential decision. [my emphasis]

Aside from all that, I’m rather interested in the redacted portions of the 2002 memo. OLC fought pretty hard to hide what appear to be the underlying reasons to push this expansive local authority for police to arrest suspected undocumented immigrants. Why?

[Note Update Below]

On the fateful September 11, 15 men from Saudi Arabia, along with four others, perpetrated the attacks on the World Trade Center in New York. Since that time, the United States has invaded Afghanistan and Iraq in response with hundreds of thousands dead in the process. Saudi Arabia was not only never considered as an enemy, its citizens were spirited out of the country while US citizens were grounded.

Also since then a list longer than you can measure of countries and/or entities have been designated as global terrorists by the United States government. One of those so designated is al-Haramain of Oregon, who happens to be the root plaintiff in the critical litigation – pretty much the sole remaining substantial hope of challenging the incredible, illegal and unconstitutional executive power grabs by the Bush/Cheney Administration now hypocritically supported and adopted by the Obama Administration.

In spite of the fact there has never been any substantive link to terrorism, much less September 11, on the part of al-Haramain Oregon, the US government has steadfastly maintained it on the designated list. Now maybe al-Harmain was, and maybe it was not, even remotely involved in terrorism in any provable way; however the one irreducible fact is the US has never, despite repeated challenges, anted up any convincing factual support on the record for the allegation.

In fact, while al-Haramain Oregon is defunct and no longer exists in any form, the US has stood mute and even gone so far as to allow an US Federal Court to declare their wiretapping of al-Haramain’s attorneys, nearly a decade ago, patently illegal. All the while still maintaining the long defunct and non-existent charity on the specially designated terrorist list and so cocksure and adamant about it that the government has stated they cannot allow any judgment to be entered, much less settle, the al-Harmain litigation because they could not possibly think of a designated terrorist organization receiving one red cent from the US government.

Such is the seriousness of actions that could lead an entity to be designated a terrorist by the United States government. Well, except for the Saudis of course. And now, apparently, the Pakistani Taliban. From Mike Isikoff at Newsweek Declassified:

In light of evidence that the group known as the Pakistani Taliban was behind the attempted May 1 Times Square bombing, the Obama administration is “actively considering” designating it as a ”foreign terrorist organization” in the next few weeks —a move that would allow the U.S. government to freeze any assets belonging to the group and make it a federal crime to assist the group, officials said Tuesday. But the disclosure, first made by State Department spokesman P.J. Crowley, immediately raised questions among some counterterrorism experts as to why Washington didn’t act sooner. “I’m pretty surprised that it has taken the U.S. government such a long time to do this,” says Hassan Abbas, a Columbia University professor and former Pakistani police officer who is considered the leading academic expert on the Pakistani Taliban. “This is certainly one of the most lethal [terrorist] groups in South Asia and I would rank it in the top five of all international terror groups.”

Now, granted, there is a technical distinction between the specially designated terrorist organization list by the Treasury Department that al-Haramain is on, and the “foreign terrorist organization” list by the State Department Isikoff describes; however, the asset freezing and general tenor are effectively coterminous. So, it is pretty interesting the Obama Department of Justice clings so desperately on the designation of the defunct and no longer existent al-Haramain while fretting and vacillating so strenuously over the Pakistani Taliban.

Golly, you would almost think the US government is prone to using their prohibited terrorist designations in some kind of shell game for political expediency. Awfully convenient for an Obama Administration in need of a handy excuse to continue propping up Bush/Cheney patent illegality on the warrantless wiretaps of the terrorist surveillance program; powers they have relentlessly protected and expanded for their own use. I wonder what Judge Vaughn Walker would think of such hypocrisy?

UPDATE: As Marcy noted, there is a new decision from the Northern District of Ohio in the case of KindHearts Charitable Humanitarian Development v. Geithner affecting the issue of terrorist designation. Here is the full order. These lines in the intro to the court’s discussion lay out the gist:

OFAC’s authority to designate SDGTs and block the assets of entities under investigation for supporting terrorism stems from the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-06, and Executive Order 13224 (E.O. 13224).

On August 18, 2009, I found that in blocking KindHearts’ assets, the government violated KindHearts’ constitutional and statutory rights. KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner (KindHearts I), 647 F. Supp. 2d 857 (N.D. Ohio 2009) (August 18 Order) [Doc. 87]. I found that, in blocking KindHearts’ assets, the government: 1) violated KindHearts’ Fourth Amendment rights by failing to obtain a warrant based on probable cause; 2) violated KindHearts’ Fifth Amendment rights by relying on criteria for the BPI that are unconstitutionally vague as applied, and by failing to provide KindHearts with adequate notice and a meaningful opportunity to respond; and 3) acted arbitrarily and capriciously in limiting KindHearts’ access to its own funds to pay counsel for its defense. Id. I reserved ruling on the remedies for these violations. On October 26, 2009, I temporarily restrained OFAC from proceeding with designation of KindHearts as an SDGT pending my determination of the appropriate remedies in this case. KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner (KindHearts II), 676 F. Supp. 2d 649 (N.D. Ohio) (October 26 Order) [Doc. 106].

A couple of points are in order. First, a still appealable decision by the District Court in Northern District Ohio (NDO) is not particularly binding precedent on the DC District and Circuit, which is where the Pakistani Taliban designation would be made. Secondly, as noted in the main post, the Pakistani Taliban designation consideration appears to be one of “Foreign Terrorist Organization” by the State Department as opposed to the SDGT designation by Treasury which was the subject of the NDO decision.

That said, KindHearts is extremely important and almost unquestionably would have factored very heavily into the consideration, and speed of consideration, of whether or not to designate the Pakistani Taliban. It does not however, explain the uneven and inconsistent designation strategy under the Bush/Cheney regime, some of which are still being defended now (including al-Haramain). For the record, I do sure wish I had known about the KindHearts case before; it is a significant case with sound Constitutional reasoning and absolutely affects the subject of my original post.

Yes, I know, it was hard to see this coming. As Condi Rice would say, “who could have expected”? Nevertheless, here it is. As you may recall, back at the end of March, Judge Vaughn Walker entered his somewhat earth shattering order granting summary judgment to Plaintiffs al-Haramain (see: here and here) and on April 16 Plaintiffs lodged their proposed form of judgment (see also: here).

Well, last Friday the government, by and through their ubiquitous attorneys the Department of Justice, filed their response to Plaintiffs’ proposed judgment. To put it mildly, the government is not consenting to the entry of judgment and is not going quietly into the night. The government did not just object to Plaintiffs’ judgment, they have lobbed another giant thumb in your eye belligerent pile of repetitive argument on Judge Walker:

Although the Court has made a finding of liability as to plaintiffs’ FISA claim (with which the Defendants respectfully disagrees), plaintiffs cannot merely rely on that determination at this stage. Rather, the entry of damages and other equitable relief is a separate matter, and plaintiffs have failed to demonstrate that there is any basis for the Court to award them the amount of liquidated damages they seek, punitive damages, or the other forms of relief set forth in plaintiffs’ proposed judgment.

For those not familiar with reading between the double spaced lines of legal pleading, the government is continuing to object to everything up to, and including, the Plaintiffs’ right to exist as plaintiffs in the first place. They will not consent to judgment; they will not agree to pay. They are not going to stop at go; they are not going to pay $200.

The government is fighting how long the surveillance occurred:

While the $100 per day of violation is an alternative amount of liquidated damages under Section 1810, that alternative turns on the fact issue of how many days the purported violation occurred. Thus, the total amount sought for daily damages must be supported not merely by a finding that plaintiffs had been intercepted, but on how many days that any violation of FISA Section 1809 occurred.

The government does not admit that plaintiffs were illegally surveilled, but argues if they were they were not illegally surveilled for the number of days claimed by plaintiffs. Gosh, if you didn’t know better, you might think the government is suddenly arguing the merits. But, of course, they will not admit to that either.

The government is fighting on even the availability of punitive damages:

In addition, even if punitive damages were available against the United States under Section 1810(b), plaintiffs’ proposed judgment fails to establish any factual basis for such an award. See Molzoff v. United States, 502 U.S. 301, 309 (1992) (punitive damages “embodies an element of the defendants’s conduct that must be proved before such damages are awarded”).

The government is fighting over whether the illegal fruits of their illegal surveillance can be suppressed and/or scrubbed:

As a threshold matter, the equitable relief plaintiffs seek as to alleged documents and information is not authorized by the cause of action at issue here.
….
Nor does § 1806(g) authorize the expungement remedy that plaintiffs seek. That subsection only provides for suppression of evidence unlawfully acquired by electronic surveillance of an aggrieved person with standing in an ongoing proceeding.
….
Plaintiffs have not alleged or shown that they are facing any threat of irreparable harm, let alone a real and immediate threat of irreparable harm, from the alleged existence of the allegedly unlawful electronic surveillance in the Government’s files and records. As noted above, plaintiffs’ request is not made in the context of any ongoing proceeding against them, nor have they made any showing of any anticipated action against them. Finally, balancing the relevant interests would again require disclosure of whether or not plaintiffs were in fact subject to electronic surveillance, whether any information derived from such surveillance exists and what it may indicate information that the Ninth Circuit found is protected by the state secrets privilege.

Hell, the government is even fighting and denying that Judge Walker even has the power to decalre their conduct illegal:

Paragraph six (6) of plaintiffs’ proposed judgment also seeks the “equitable relief” of a declaratory judgment that the “defendants’ warrantless surveillance of plaintiffs was unlawful as a violation of FISA.” See Dkts. 723/117 at 3. The Court lacks jurisdiction to enter such relief. Section 1810 does not authorize the entry of any equitable declaratory or injunctive relief.

Oh, and the government does not think plaintiffs are entitled to attorney fees either and certainly not at this point. The bad faith joke of a judgment the government is willing to have Vaughn Walker sign is attached to the tail of their extended whining. Read it and laugh. Funny thing is, if you didn’t know better, you would say the government is actually fighting on the merits right now.

So, in sum, the government is not remotely close to conceding judgment, paying and walking away. And they are still determined to spit in Judge Walker’s eye at every possible opportunity; and sure have done so here. To me, based on my experience with courts and advocacy, the DOJ’s attitude is so malignant and unsophisticated that the only explanation is that they are desperately trying to get Judge Walker to lash out at them in order to contaminate the record. It is either that or Coppolino, Hertz, Letter et. al are such crappy lawyers they simply do not know better and, as craptastic as some of their work has been in this case, I do not buy that they are that poorly skilled.

And so we move on with the further litigation of al-Haramain v. Obama. The next activity expected in the case is this Friday, May 7 when the court has set Plaintiffs’ brief in support of punitive damages as being due. After reading this tripe by the government, I have a feeling the Plaintiffs may have more than a few things to say.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You might not know it from the asleep at the wheel major media, but the Bush/Cheney war on terror foundation has taken some serious hits recently, from news of the murder of Gul Rahman at the Salt Pit, to the selective prosecution of David Passaro, to the finding by Judge Walker that the wiretapping was illegal, to widely acclaimed terror pros Steve Kappes and Phil Mudd both suddenly bailing from their high ranking intelligence jobs. You can add to the list a hard slap down by a Federal Court of the government’s continued use of bogus evidence obtained by brutal torture to try to justify continued detention of detainees at Guantanamo.

On Wednesday, Judge Henry H. Kennedy of the DC District Court issued his written opinion in the Habeas Petition by Uthman Abdul Rahim Mohammed Uthman, and it is a testament of what it looks like when a legitimate court encounters the unconscionable torture and innuendo evidence the US Government, under both the Bush and Obama Administrations, has been relying on to hold the detainees at Gitmo.

Uthman had been captured in the Afganistan/Pakistan border region (allegedly in the general area of Tora Bora, although that was never established) with a large group of others all rounded up en masse. Uthman claims he was a teacher innocently traveling, the DOJ asserted he was a key bodyguard for bin Laden. The evidence proffered against Uthman came almost exclusively from two other detainees, Sharqwi Abdu Ali AI-Hajj and Sanad Yislam Ali Al Kazimi, who both assert they fabricated the statements in response to severe torture.

Here is how the handling of Hajj and Kazimi was described by Uthman, and found credible by the court:

Uthman has submitted to the Court a declaration of Kristin B. Wilhelm, an attorney who represents Hajj, summarizing Hajj’s description to her of his treatment while in custody. The declaration states that while held in Jordan, Hajj “was regularly beaten and threatened with electrocution and molestation,” and he eventually “manufactured facts” and confessed to his interrogators’ allegations “in order to make the torture stop.” After transfer to a secret CIA-run prison in Kabul, Afghanistan, Hajj was reportedly “kept in complete darkness and was subject to continuous loud music.”

Uthman has also submitted a declaration of Martha Rayner, a Professor at Fordham University Law School who represents Kazimi, regarding Kazimi’s description of his treatment in detention. Rayner reports that while Kazimi was detained outside the United States, his interrogators beat him; held him naked and shackled in a dark, cold cell; dropped him into cold water while his hands and legs were bound; and sexually abused him. Kazimi told Rayner that eventually “[h]e made up his mind to say’ Yes’ to anything the interrogators said to avoid further torture.” According to Rayner’s declaration, Kazimi was relocated to a prison run by the CIA where he was always in darkness and where he was hooded, given injections, beaten, hit with electric cables, suspended from above, made to be naked, and subjected to continuous loud music. Kazimi reported trying to kill himself on three occasions. He told Rayner that he realized “he could mitigate the torture by telling the interrogators what they wanted to hear.” Next, Kazimi was moved to a U.S. detention facility in Bagram, Afghanistan, where, he told Rayner, he was isolated, shackled, “psychologically tortured and traumatized by guards’ desecration of the Koran” and interrogated “day and night, and very frequently.” Kazimi told Rayner that he “tried very hard” to tell his interrogators at Bagram the same information he had told his previous interrogators “so they would not hurt him.” (citations omitted)

The DOJ shamelessly attempted all types of circuitous and bootstrapped argument to try to buck up the tortured proof they were passing and the court properly called them on it at every turn. The decision is only twenty pages long and is a quick read; it is worth it to see just how many layers of unsupported and flimsy innuendo the government, through those beacons of ethical virtue at the Obama DOJ, will ply a court with and maintain a presumably straight face. It is stunning.

In order to give you an idea of the soundness of Judge Kennedy’s ruling, I will leave the legal citations in the quote from his discussion of the applicable law and his conclusion thereon:

Uthman asserts that the proximity in time between the torture Hajj and Kamizi described and their interrogations by the CITF investigator, however cordial, renders their statements unreliable. In general, “resort to coercive tactics by an interrogator renders the information less likely to be true.” Mohammedv. Obama, 2009 WL 4884194, at 23 (D.D.C. Dec. 16,2009) (citing Linkletter v. Walker, 381 U.S. 618, 638 (1965)). To determine admissibility in analogous situations criminal cases, courts assess the voluntariness of statements made after the application of coercive techniques based on a totality of the circumstances test. ld. (citing United States v. Karake, 443 F. Supp. 2d 8, 87 (D.D.C. 2006)); see also Schneckloth v. Bustamante, 412 U.S. 218,226 (1973) (“In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances. “). Judges of this Court have adopted this test in the cases of other Guantanamo Bay detainees seeking release. See, e.g., Mohammed, 2009 WL 4884194, at 23; Anam v. Obama, – F. Supp. 2d -,2010 WL 58965, at 4 (D.D.C. Jan. 6, 2010). The test calls for considering, inter alia, “the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators.” Mohammed, 2009 WL 4884194, at 23 (quoting Oregon v. Elstad, 470 U.S. 298, 310 (1985)) (internal quotation mark omitted).

Respondents do not argue that the alleged torture of Hajj and Kazimi is sufficiently attenuated from the interviews at which they gave the relevant statements to support a conclusion that despite the coercion, the statements are nonetheless reliable. The interviews on which the relevant FM40s are based occurred in Bagram, where torture of Hajj was ongoing and where Kazimi had arrived directly from the CIA prison, at which he was tortured, only about a month earlier. Therefore, the Court concludes that there has been no “break in the stream of events … sufficient to insulate the statement from the effect of all that went before.” Clewis v. Texas, 386 U.S. 707, 71 0 (1967). Accordingly, the Court will not treat Hajj and Kazimi’ s statements as true.

Again, the full decision is worth a read. As you do, keep in mind that the standard in evaluating the lawfulness of the detention of the individuals held at Guantanamo Bay is the government may detain only “those who are ‘part of’ the ‘Taliban or al Qaida forces,’” and the key question is whether an individual ‘receive[s] and execute[s] orders’ from the enemy force’s combat apparatus”. It is not a hard standard, but there does have to be some credible evidence.

Also critical to keep in mind is the fact that the burden of proof in a Habeas proceeding is only a civil one of “preponderance of the evidence”; commonly accepted to mean anything at all more than 50%, i.e. anything that makes the asserted proposition more likely than not. It is the lowest possible burden of proof. Judge Kennedy couldn’t find the government was even close to the mark on the lowest possible scale in a civil case. Just think what this says about the ability of the government to meet any criminal burden of proof such as “beyond a reasonable doubt”.

Uthman Abdul Rahim Mohammed Uthman has been being held by the US government in brutal captivity at Gitmo since January of 2002 – over eight years – based on evidence that would not be sufficient to convict him of a parking ticket. And then remember that, as one of the far less than 200 detainees remaining at Guantanamo, Uthman is supposed to be one of the worst of the worst and that the government has a solid case on. Thanks to the Bush and Obama Administrations, this is who we are now as a country. Any more questions as to why Lindsay Graham and the Obama Administration are fighting for military commissions?

(Graphic by the one and only Darkblack)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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