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

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

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

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

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

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

The Bombing and Indictments.

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

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

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

What the Alderman Case Meant.

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

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

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

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

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

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

The Illegal Surveillance of Plamondon.

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

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

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

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

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

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

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

The Mitchell Doctrine Argument.

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

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

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

…

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

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

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

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

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

I am going to make this shorter than I originally planned on when I started it earlier today, because I have some Trash to take out. But, as Bob Schacht pointed out, not that anybody would know it, but there has been a terror trial going on all week in a real live Article III courtroom in the heart of Manhattan. Exactly like all the Republicans with vapors and trembling Democrats said could not be safely done.

Jury selection started Wednesday September 29th and today the trial in chief, expected to start Monday, was tentatively postponed until next Wednesday pending determination of admissibility of evidence and testimony from an important prosecution witness, Hussein Abebe. From Bloomberg:

The federal judge presiding over the trial of Ahmed Khalfan Ghailani, a Tanzanian charged with taking part in the bombing of two American embassies in Africa, delayed the case by two days until Oct. 6.

U.S. District Judge Lewis Kaplan in New York today granted a prosecution request to postpone the trial, for which jury selection started Sept. 29. Kaplan said he may grant a delay if he rules a key prosecution witness, Hussein Abebe, can’t testify. The adjournment would give the government time to appeal that ruling before the trial.

……

Prosecutors want to call Abebe, 46, a Tanzanian who is former miner, to testify that he sold five crates of dynamite to Ghailani before the blast. He would provide a first-hand account of Ghailani’s role in the attacks, the government says.

Abebe, who hasn’t been charged, is a “giant” witness, according to prosecutors. The judge said earlier he may not decide until after opening arguments whether the jury should hear Abebe’s testimony.

…..

Ghailani’s lawyers argue that Abebe’s testimony should be excluded because the government learned of his involvement through a coercive interrogation of Ghailani by the CIA. Abebe also was coerced into cooperating with authorities, according to the defense attorneys, led by Peter Quijano and Steve Zissou.

Motions in limine and other evidentiary motions are always at issue in big criminal trials and brief delays and provision for interlocutory appeals are certainly common. So, what you see here is another criminal trial. Ho hum and yawn. Certainly not the unholy hell Baby Dick Cheney, Rudy 9/11 and the other cowering fearmongers predicted is it? The attached video from Human Rights First sums it up perfectly. Here is Human Rights First’s press release on the issue:

Despite repeated warnings that trying Guantanamo detainees in New York would result in chaos, mayhem, kidnappings, astronomical security costs, a police take-over of Lower Manhattan, snarled traffic, street closures, and “utter, unmitigated disaster,” New Yorkers interviewed by Human Rights First are going about their daily business within blocks of the federal terrorism trial of a former Guantanamo detainee.

In an exclusive video released today, the group reveals that many New Yorkers are not only failing to fear, they do not even realize that accused terrorist Ahmed Khalfan Ghailani’s trial is underway. Some, despite the urgent warnings from those trying to “Keep America Safe,” even expressed pride that the prosecution was happening in New York City.

“We have trials like that here all of the time,” one woman observed as Human Rights First correspondent Reagan Kuhn interviewed her near the federal courthouse in Foley Square.

Despite the best efforts of Liz Cheney, Deborah Burlingame, Rudy Guiliani, and Karl Rove to spread panic, many naïve New Yorkers seemed completely uninformed about the chaos that was supposed to reign. Some even observed that “everything seems pretty normal,” “I haven’t noticed anything,” and “I’m sure everybody knows what they are doing.”

As the Ghailani trial proceeds this week and in the weeks ahead, Human Rights First will continue to monitor New Yorkers’ failure to fear federal prosecution of this case. It will also continue to send representatives to Guantanamo Bay, Cuba, where military commission proceedings are set to commence next month. For those keeping score, U.S. federal courts have convicted more than 400 terrorists. Military commissions have secured only four convictions.

They have been holding terrorism trials of the highest order for years in New York City. SDNY is where the Blind Sheik Omar Abdel-Rahman was tried for the first World Trade Center Attack. There is not a better secured and more appropriate place in america to try the 9/11 terrorism suspects. That is what we do in America, and what we do as Americans. Giving in to the fear and bed wetting of the Cheneys, Rudy Guiliani, Lindsey Graham, Lieberman and others of their ilk is giving up on our principles and giving in to the terrorists themselves. Besides, NYC is always a target of terrorists and would be even if Khalid Sheikh Mohammed and the other four 9/11 suspects were tried in Gitmo.

Put the trials where the crimes happened and deal with it.

As you have probably heard by now, Vaughn Walker, the Chief Judge for the Northern District of California, has announced his retirement:

The United States District Court for the Northern District of California announces today that Chief Judge Vaughn R. Walker will step down as chief judge effective December 31, 2010. Also, Chief Judge Walker notified President Obama by letter today that he will leave the court in February 2011.

Chief Judge Walker has been a United States District Judge since February 5, 1990 and has served as chief judge of the court since September 1, 2004. Before becoming a federal judge, Chief Judge Walker was a litigation partner at the firm now known as Pillsbury Winthrop Shaw Pittman LLP. Upon leaving the federal bench, Chief Judge Walker plans to return to the private sector.

In his letter to the President, Chief Judge Walker said: ““Concluding twenty one years of judicial service, I leave the bench with the highest respect and regard for the federal judiciary, its judges and their staff and the essential role they fulfill in our constitutional system.””

By statute, United States district chief judges are selected based on a combination of age, seniority and experience and may serve in the post for a maximum of seven years. 28 USC § 136. By application of this statute, District Judge James Ware will assume the post of chief judge of the Northern District on January 1, 2011.

That was the formal announcement I received from Walker’s chambers. For further reportage, see the always outstanding Bay area legal reporter for the San Francisco Chronicle, Bob Egelko. (I will take issue with one thing Egelko reported though, that Walker’s announcement was “unexpected”; I have heard rumors of him retiring at the end of the year for several months now.)

I started to write this post last night with a million thoughts swirling in my head on the plethora of important cases Walker has handled over the years and erudite opinions rendered thereon. There is far more to the man’s record than al-Haramain and Perry v. Schwarzenegger; he also sat on such blockbuster cases as the Hearst/ SF Chronicle Antitrust litigation, the Apple/Microsoft intellectual property battle, and the knock down drag out Oracle/Peoplesoft takeover war. And hundreds of others over the years that, from every opinion of his I have read over the last couple of decades, he treated with pretty much the same dedication and attention to detail as you see in the landmark cases you know him from now. Vaughn Walker was both driven and meticulous, they simply do not make many like that; even in the cream of the crop hallowed halls of the Federal judiciary, Vaughn Walker stands out and above.

But that part of Vaughn Walker’s career is winding down now, and in a little more than three months he will be out the door of his chambers at the Philip E. Burton Federal Courthouse for the last time. Many, if not most, Federal judges who retire after they are at least 65 years of age and have 15 or more years on the bench, go on “senior status” where they continue to receive full salary, but work only part time as needed and as they wish. Walker is not taking senior status though, instead planning on returning to the private sector from which he came.

Although there are remnants of his former firm, Pillsbury, Madison & Sutro still in existence in the conglomerate now known as Pillsbury, Winthrop, Shaw & Pittman LLP, the firm as Walker knew it is gone. The rumor I hear is Vaughn intends to relax a little (a tremendously tireless and relentless worker, he has earned it) and do some private judging, likely at a place like JAMS (Judicial, Arbitration and Mediation Services, Inc.) I would not be surprised to see him also pop up on the board of directors of a company or two as well, although I would think he would be pretty discerning as to who he would involve himself with.

Vaughn Walker will leave a man in full, having done all you could ever ask to do as judge, and more. Some people, even Federal judges, shrink from the toughest cases, and most controversial issues; not Vaughn Walker. Like Michael Jordan wanting the last shot with the game on the line, Walker wanted the most important issues of the day and he saw to it that they were handled with determination, fairness, logic, gravitas and with a sense of duty and history. Walker was a man of big moments, and always rose to meet them.

So, who will fill the enormous shoes of Vaughn Walker? The sad and pitiful truth is probably nobody because Barack Obama has displayed a shocking and reckless disdain for his duty to stock and replenish the Federal Judiciary (see here and here). There are currently 105 Federal judicial seats vacant, and that is not including Vaughn Walker’s yet; and a grand total of 48 nominees pending, with 25 of them pending in the Judiciary Committee and 23 having already been passed out of Judiciary and placed on the Senate Executive Calendar (although Harry Reid has not scheduled a floor vote for a single one of them).

This is simply inexcusable and a dereliction of duty by the Obama Administration for having named nominees for less than half, well less than half, of the empty judicial seats at a time when the Federal Judicial Conferences are declaring emergencies and begging for relief. It is also inexcusable for Harry Reid to have not wielded his power as Majority Leader better so as to move nominees that have come out of committee. About the only entity that has consistently done its job on this is, in fact, Pat Leahy’s Senate Judiciary Committee. Leahy moves the nominees, even tough ones like Goodwin Liu, in and out of committee promptly. And then they die from the not so benign neglect of the Obama White House and Harry Reid and, of course, the intransigence of Mitch McConnell and the GOP caucus.

Judiciary Chairman Leahy issued a statement today on the appalling record being made on the Federal judiciary:

The Senate Wednesday night recessed until after the November elections without confirming any of the 23 judicial nominations pending on the Executive Calendar. One nomination, Fourth Circuit nominee Albert Diaz, was unanimously reported by the Judiciary Committee more than eight months ago, but Senate Republicans have yet to give consent to schedule a vote on his nomination. Seventeen of the 23 judicial nominations pending on the calendar were reported by the Committee unanimously.

“The Senate is well behind the pace set by a Democratic Majority in the Senate considering President Bush’s nominations during his first two years in office,” Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said in a statement. “Republicans have allowed the Senate to consider and confirm only 41 of President Obama’s circuit and district court nominations over the last two years. In stark contrast, by this date in President Bush’s second year in office, the Senate with a Democratic majority had confirmed 78 of his Federal circuit and district court nominations. That number reached 100 by the end of 2002, all considered and confirmed during the 17 months I chaired the Senate Judiciary Committee.”

The Senate has taken more than five times longer to confirm circuit court nominations after being favorably reported by the Judiciary Committee than it did in the first Congress of the Bush administration. The Senate has taken three times longer to confirm district court nominations after being favorably reported by the Judiciary Committee.

“Last year the Senate confirmed only 12 Federal circuit and district court judges, the lowest total in 50 years,” Leahy said. “This year we have yet to confirm 30 Federal circuit and district judges. We are not even keeping up with retirements and attrition. As a result, judicial vacancies are, again, over 100 and, again, more than 10 percent. This trend should alarm the American people who expect justice from the Federal courts.”

It is indeed alarming, but it is certainly not all the doing of GOP obstructionism. That simply does not hold water when Obama cannot even be troubled to put up a nominee for well over half of the vacant seats. That is not just alarming, it is appalling. Remediation of the Federal judiciary from the right wing Federalist society coup underwritten by the Bush/Cheney Administration was one of the big things Barack Obama ran on as a candidate in 2008. And it is yet another, in what is becoming a long laundry list of promises and positions, he has failed to live up to.

When Mr. Obama has actually deigned to make judicial nominees, they have been characteristically centrist, milquetoast, unexciting “consensus” hollow suits. When Elena Kagan was installed on the Supreme Court, there was much talk, and fairly much some consensus, that Obama was moving the ideological spectrum of the Supreme Court to the right to at least some degree, even if not greatly. What has seen precious little discussion, however, is what is occurring to the ideological spectrum of the bread and butter District and Circuit levels of the Federal judiciary. A hint of what I am describing is found in Attorney General Eric Holder’s Op-Ed yesterday in the Washington Post:

The problem is about to get worse. Because of projected retirements and other demographic changes, the number of annual new vacancies in the next decade will be 33 percent greater than in the past three decades. If the historic pace of Senate confirmations continues, one third of the federal judiciary will be vacant by 2020. If we stay on the pace that the Senate has set in the past two years — the slowest pace of confirmations in history — fully half the federal judiciary will be vacant by 2020.

These are generally the same kind of numbers I have been hearing for months from a couple of Federal judges who are getting simply apoplectic about what is occurring under Obama’s watch (and these are folks that were big Obama supporters). What I would like to make crystal clear to any and all progressives out there though, is that it is not just the sheer number of retirements looming, it is who a great many of the retirees will be. And this is where we come back to Vaughn Walker, because the coming retirements will, tragically, have a disproportionately high percentage of the old school civil liberties lions appointed by Carter, the first term Bill Clinton and, yes, even Reagan and George H.W. Bush.

President Obama is WAY behind the curve. Remedying this situation, even if he suddenly finds the desire he has lacked to date, will certainly not get any easier with the greatly reduced Senate majority the Democrats will clearly be faced with, at best, after November’s mid term elections. The GOP can already smell the blood in the water. Obama has literally squandered the best conditions imaginable – an unheard of Senate majority of 60 seats and then 59 after Scott Brown – for restocking of the Federal bench with liberal judges. It is simply unfathomable this has occurred after what the Bush/Cheney regime did by turning the Federal judiciary over to the radical right wing Federalist Society types.

With such an inexplicable and unconscionable backlog now created, and in light of the foregoing reduced majority and grounds for increased GOP obstruction, Obama will be beyond lucky, if he fights with a determination and vigor he has never mustered before, to come close to treading water in the next two years. And that is only if he appoints the most milquetoast centrist hacks he can find (which clearly is his default preference). Should Obama continue down the path he has plowed to date and fail to get reelected in 2012, there may be 120-150 judicial vacancies by January 2013 and we will be set up for a President Palin or whatever other conservative crusader comes through, to administer the coup de grace on the wholesale permanent takeover of the Federal judiciary for the next 20-30 years by right wing ideologues that do not represent the common will of the American citizenry, and who will dogmatically attack anything and everything progressive in their sights.

This is what progressives need to understand about the dire predicament we face in relation to the non-SCOTUS Federal judiciary; it is truly bleak. And the Obama White House just completely squandered the best two year window for doing something about it. What now?

Given that our President now holds that he has the authority to assassinate US Citizens with no due process–and he doesn’t have to explain that authority to any  court–it should be no surprise that the DC District Court has upheld its earlier decision dismissing the suit of a filed by the families of a bunch of men “suicided” at Gitmo. (I’m already 3 hours into my 15 hour transit from Holland to Holland, so I’m going to just quote from CCR’s press release; here’s one of Scott Horton’s articles on this to remind you of the background and the new evidence the plaintiffs submitted.)

Today, the United States District Court for the District of Columbia affirmed its decision to dismiss Al-Zahrani v. Rumsfeld, a civil lawsuit brought by the Center for Constitutional Rights (CCR) and co-counsel concerning the deaths of three Guantánamo prisoners in June 2006, despite newly-available evidence from soldiers stationed at the base at the time of the deaths that strongly suggest the men were killed at a black site at Guantánamo and a government cover-up of the true cause and circumstances of the deaths. The government reported the deaths as suicides.“No one can compensate me for the loss of my son; no one can bring him back to me,” said Talal Al-Zahrani, father of Yasser Al-Zahrani. “But the court’s refusal to hear my son’s case is devastating and deepens my family’s pain. The courts should be investigating my son’s death and holding those responsible accountable. President Obama should be defending human rights and the democratic values the U.S. preaches to the world, rather than going to court to defend the lies and gruesome crimes of the Bush administration.”

The case, filed on behalf of the families of two of the deceased, Yasser Al-Zahrani of Saudi Arabia and Salah Ali Abdullah Ahmed Al-Salami of Yemen, charged the government and 24 federal officials with responsibility for the men’s abuse, wrongful detention and ultimate deaths. Earlier this year, the court granted the defendants’ motion to dismiss the case, holding that national security considerations prevented the court from hearing the families’ claims. Following the dismissal, the families filed a motion for reconsideration on the basis of the evidence from the soldiers, as reported by Scott Horton in Harper’s Magazine in January 2010, arguing that the new facts compelled the court to reopen the case.

While noting that “‘it is, as plaintiffs argue, ‘disturb[ing]’ that defendants allegedly ‘fought to keep secret virtually all information concerning the cause and circumstances of Al-Zahrani and Al-Salami’s deaths’ and that ‘details of an elaborate, high-level cover-up of likely homicide at a ‘black site’ at Guantanamo’ are now emerging,’” the court’s decision today held that national security considerations still bar it from considering the families’ claims, and that the defendants’ alleged involvement in the murder of Al-Zahrani and Al-Salami was still within the scope of their employment.

Obama, of course, would say that he had to support this cover up to protect the spooks in the field.

But consider the change we’ve made? The last Administration conducted cover-ups by claiming that it was in the job description of top employees to out CIA spies. Now, the President conducts cover-ups in the name of protecting CIA spies by holding that murder is within the job description of spooks and soldiers. Hope! Change!

(Thanks for all the advice on Scotch the other night–I hope to put that advice to good use.)

Justice, what do you care about justice. You don’t even care whether you’ve got the right men or not. All you know is you’ve lost something and someone’s got to be punished. The Ox-Bow Incident.

Nine years after September 11 and eight years after the CIA provided a memorandum to the White House explaining that at a minimum, one-third of the detainees at GITMO were “mistakes” who had been purchased in bounty transactions. Nine years after the Department of Justice covertly elevated the President of the United States as a power above the Constitution and the laws of the United States and seven years after the Department of Justice assisted in allowing the torture of Ibn al Shaykh al-Libi to be laundered through Colin Powell to the UN and to America. So many years after so many incidents, our nation is still being flimflammed over what to do with so-called terrorist detainess. 

Enter Jack Goldsmith with his recent op ed titled, “A way past the terrorist detention gridlock.”  While Marcy and Spencer have already weighed in, I whined until Marcy let me have my own go at this too, because I wanted to provide an alternative route to deal with the “gridlock.”  

Goldsmith’s advice to Obama is to:  (i) keep GITMO open because closing it is hard, (ii) forget civilian criminal actions because they are hard, (iii) forget military commissions because they have no international crediblity and are hard, (iv) get Congress to give the President unchecked and unsupervised powers to engage in forever detentions without respect to guilt or innocence, and (v) use the reality of  forever detentions for the innocent as well as the guilty and other coercion to get detainees to offer up confessions and plea deals and thereby get around the hard parts of civilian criminal suits.   Part (v) includes the caring-compassionate touch of only being recommended if Obama takes the death penalty off the table.  

Despite such awesome[ly bad] advice, GITMO has not proved hard to close because there are not enough coerced confessions and coerced plea deals.  GITMO has proved hard to close because current and ex-Department of Justice lawyers, as well as  current and ex-Presidents and their intelligence apparatus, have found it too politically dangerous to tell the truth. It’s worth noting that throughout Goldsmith’s piece the one thing he never mentions is innocence.  He offers up a lot of advice, but none of it even begins to contemplate the innocent and how they can be protected and released.   

While Goldsmith stops short of saying that our country has a long and celebrated history of lynchings that could be used when trials are hard, he does pretty much advocate that if trials are hard, you just do something else – preferably something that bars any judicial review.  Something like putting human trafficking victims in forever military detention; expanding from the Strawberry Fields (forever) detention facilities we already have to ever expanding concentrated population camps necessitated by his long term solution of granting the President unchecked powers for extra-judicial detentions. For this foray into solving “detainee gridlock” WaPo stops the presses.

Well, let me offer up a counterpoint to Goldsmith’s argument that it is the “abundant dysfunctions in our system for incapacitating terrorists” that has led to not only GITMO (and let’s not forget Bagram) but also to an increase in “targeted” killings and in outsourced renditions which are not “optimal.” He’s wrong.  It has never been the dysfunction of our system that was the problem; rather, it has been the dysfunction ofour Department of Justice and our Presidents that have created GITMO and the “gridlock” associated with it.  

The solutions to the dysfunction are the same now as they were eons ago, and for that matter the same as when we were in kindergarten. We have to face the truth, tell the truth and take responsibility. So here is a short review of a “pragmatic” approach that would begin to address the “detainee gridlock” that perturbs Goldsmith, by using truth and accountability – a way towards the rule of law as opposed to a bypass around law, with no off ramps. 

First, the White House has to acknowledge what much of the world, although not necessarily much of America, knows to be true. Obama needs to publically explain to this nation that, despite the rhetoric that GITMO was a facility reserved for the “worst of the worst” terrorists, it has been, in fact, a destination for many innocent people who were sold to the US or mistakenly captured by the US. He needs to admit we comingled people who had plotted and supported the 9/11 attacks with innocent chefs from London. He needs to admit the White House has had this information since at least August, 2002 when it was provided by the CIA after a review of the detainees at Guantanamo. He needs to release that memo, which has already been mentioned in at least one habeas decision. The “difficulty”  dealing with GITMO will never, ever, be diminished until we tell the truth about detainees who were not invovled in 9/11and take responsibility for what has been done to them.

Second, Obama needs to lay out that in addition to having kidnapped and purchased people who were not involved with 9/11 , the treatment of the guilty and the innocent detainees alike has involved war crimes. He needs to reference and support the findings of Susan Crawford that detainees at GITMO were tortured. He needs to explain that interrogators were sent out with the direction that “no one leaves GITMO innocent” and he needs to explain that under the Geneva Conventions, it is a war crime to transport innocent civilians out of country, to a destination like GITMO or to destinations like our CIA blacksites. He needs to say that our tribunals can never have international credibility without recognizing that we have committed war crimes against some detainees and that we have innocent detainees who are entitled to reparations and apologies. 

Third, the President needs to explain to the nation that it is because we have picked up innocent people as well as terrorists involved in plotting 9/11 and we have treated both in ways that are shameful, that we must have full, fair and transparent trials of anyone we are claiming had something to do with 9/11.  He needs to explain that if we can’t do that – if we can’t allow the innocent to have access to courts and we can’t make a public case against the guilty – then  the terrorists have won because they have rendered America unable to live up to its Constitution and its international commitments.

Fourth, Obama needs to explain that in addition to innocent people and terrorists involved in 9/11, we also have captured people who were not involved in 9/11 but who fought back against invasion of their countries (or who responded to the invasion of a Muslim country) by outside forces and also people who are far from innocent (like drug lords) but who had nothing to do with 9/11. These people need to be returned to their sites of capture, in Afghanistan or Iraq respectively. In Iraq, they need to be handed over to the Iraqi government and in Afghanistan, they need to be turned over to the Afhgan government or to be held at Bagram until our forces return home next year (at which time they should be handed over to the Afghan government the way our thousands of Iraqi detainees were). Those who were fighting back against invasion need to be given all proper prisoner of war status and treatment while they are held in Bagram. Those who are drug lords or were captured while they were engaged in crimes need to be treated as civilian criminals.

Fifth, those who had nothing to do with 9/11 and were not captured in Iraq or Afghanistan are going to be a problem that requires another set of revelations – that we operated in many countries other than Iraq and Afghanistan and those operations included kidnapping or buying humans for a bounty without any proof that they were inovled with 9/11.  Obama needs to explain that we have a duty to these people who had not committed acts against the United States, but who may have been refugees from totalitarian regimes and who cannot be returned now.  

Sixth, the canard of the worldwide battlefield needs to be addressed. Obama needs to explain that while the US is going to fight terrorism and terrorists everywhere, it is a sign of failure and a lack of understanding of U.S. law to suggest that the “world” is a battle theatre, because our U.S. courts have defined that term to mean a place where there is no civilian law.  He needs to absolutely and completely reject any argument that terrorists have forced the closure of our courts or robbed America of the rule of law.  We fought for it, died for it and it lives. And he needs to say that America is not so fearful that it needs to make up peculiar interpretations of civilian or military laws to transform a cook or a driver into a terrorist or war crimnal.  He needs to say that there are many Americans dead and injured and over two million Iraqi refugees  that stand as a living testament to why America should not make life and death decisions based on evidence that was coerced from someone being buried alive or waterboarded.  

Seventh, Obama as Commander in Chief and as chief law enforcement officer of the nation, needs to assert that if Congress fails to provide full and open and transparent trials, it puts our nation at risk.  America is strong and once, faced with the truth, it has many, many more than just a few good men who can handle that truth.   

The way out of “detainee gridlock” isn’t more power to a dilettante White House and dysfunctional Department of Justice and more statutes provding Congressional support for detentions on Executive whim.  It isn’t collecting a worldwide assortment of human specimens to hold in the belief that the rest of the world will at some point become a  Borg colletive that supports the US in its every action without dissent.   That “way past” won’t provide international credibility. That “way past” won’t protect the innocent. That “way past” won’t require leadership from the Presidency. That “way past” will guarantee more and more who hate the US. That “way past” will weaken rather than strengthen America.  That “way past” buries facts and disinforms our citizenry.  That “way past” relies on the destruction of the rule of law. 

The law’s a lot more than words you put in a book … it’s everything people ever have found out about justice and what’s right and wrong; it’s the very conscience of humanity.  There can’t be any such thing as civilization unless people have a conscience.  The Oxbow Incident.

******UPDATED  As bobschact has noted @ 27  I probably need to clarify the seventh item.  Congress has actively blocked funding for closing GITMO and Senators have been working hard to defund civilian trials and transport for those trials.   This, despite the Democratic majorities in both Houses.

Okay, as promised, here is the real Trash Talk for the weekend. Not sure what other football games and sports there are after the Geezer’s debut Thursday night, but I will try to find some to talk about……

Hey, turns out there is a game in South Bend today! That’s right Wheelers and Wheelettes, it’s the Wolvereenies versus the Flighting Irish. Emptywheel versus Masaccio. Just like when they had the battle of the unvictorious and untieds in 2007 – except better! Both teams appear to be resurgent this year and, all joking aside, that is good for college football. Bothe teams come in at 1-0 and are desperate to get to 2-0 to make a run at a prime bowl spot. Michigan is keyed by Denard Robinson, the super soph quarterback. Last week against UConn, Robinson threw for 186 yards and ran for another 197 as the Wolverines rolled to a 30-10 victory. Thankfully, after last year’s fiasco, Rich Rod seems to have seen the light and made Tate Forcier permanent number two.

Notre Dame seems already to be much more disciplined and cohesive under new coach Brian Kelly. Look for QB Dayne Crist to go deep to Michael floyd, maybe the best receiver in the country, especially considering Big Blue’s defensive secondary is beat up. The real test in this game will be whether Notre Dames defensive front and linebackers can stop Robinson and Michigan’s running game. If they do that, Notre Dame wins, and that is what I expect, although it should be a pretty good game. If Robinson gets loose again like last week, however, the Wolverines will win easy.

There are a lot of other really good games on the bill too. First and foremost is The U at the Ohio State Sweatervests. We will see if Jacory Harris and the Canes are back enough to nip the Buckeyes in the Horseshoe. Also, Georgia at South Carolina, the newly Bowdenless Florida State Seminoles at Oklahoma, Penn State at Bama, Oregon at Tennessee and in an unusually early Pac-10 matchup, Stanford at UCLA. That is a hell of a lot of really good games.

PROS: The big tilt is of course on Monday night when Ray Lewis and the Ravens travel to the Jets Jets Jets and their loud coach and new stadium. That ought to be really something; two nasty defenses, both coached up at one point by Rex Ryan. Revis Island, Bart Scott and Jim Leohnard along with a solid line provide the Dee in the Jets’ fence. They will show up. So will Ray Lewis, although the other superstar ball hawk for the Ravens, Ed Reed, is out. Really, this game will come down to how the two offenses perform. In that category, you have to take the Ravens all the way with Flacco and Ray Rice over Mark Sanchez and a worn out LaDanian Tomlinson. Ravens get the job done

In other key games, the Boys and Romeo visit McNabb and the Skins. Everybody is high on the Boys this year, but I dunno. Still McNabb is banged up, so I will take the Boys this week; later maybe not so much. Pack at Iggles could be interesting. If Kevin Kolb is what he has looked to be in preseason and a couple of games last year, this might be interesting. Might, but won’t; Pack easy. Bengals at Pats; if the Bill Bels can muster any defense at all, they win – I think they will. I think the Lions at Bears may actually be pretty interesting just to see what happens. Lions should be MUCH improved, and who knows what the hell is up with the Bears, they could be good or horrible – who knows? I’ll take the Lions in what I guess is an upset. I saw some cluck on MSNBC website predict the Texans will beat the Peyton Mannings; nuh uh, Peyton scores too much for the Texans. Broncos beat the Jags, Stillers eke out a win over the Dirty Birds, Fish beat the Bills, Browns over the Bucs, Raiders upset the Titans, Eli and the Gents take the Panthers, Cards beat the Rams, SeaSquawks somehow over the Niners, and the Bolts kill the Chiefs.

US Open: Federer pulls one last major win over Nadal and Kim Clijsters wins another Open over Vera Zvonareva.

F1 Circus: This weekend the Circus sets down at the Autodroma Nationale de Monza for the one and only Italian Grand Prix. Monza is the fastest circuit on the tour and is a great track that always provides great racing. Not surprisingly, fast, good teams go fast at Monza, and so they did at practice. Sebastian Vettel led the way for Red Bull followed closely by the two home town heroes in red, the Ferraris of Alonso and Massa. The two Mclarens of Hamilton and Jenson Button followed with Mark Webber trailing with mechanical difficulties. This is another critical race with only three points separating Webber from Hamilton for the driver’s crown and only one point between Red Bull and McLaren for the Constructor’s Championship. The big chattering for the weekend has been over the use of team orders. FIA hit Feerrari with a $100,000 fine for the incident at Hockenheim. I have no clue why this is always so shocking in today’s F1, team orders have been a part of the Circus for over six decades; that is just the way it is and the way it is going to be. Ecclestone should give up the ghost on this one. The race goes off at 7:30 am EST and 4:30 PST Sunday morning on SpeedTV.

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.

Here’s where Jack Goldsmith’s op-ed, purporting to offer a solution to the Gitmo problem, breaks down (see Spencer’s take on it here).

Civilian trials for terrorists have also proven difficult. They gathered disfavor when Attorney General Eric Holder said he would prosecute Khalid Sheik Mohammed and other alleged Sept. 11 plotters in civilian court in Manhattan. Disfavor grew when the failed Christmas Day plotter, Umar Farouk Abdulmutallab, and the Times Square suspect, Faisal Shahzad, were placed in the civilian criminal system and read Miranda rights rather than detained and interrogated in the military system. The Bush administration prosecuted scores of terrorists in civilian court with little controversy. But the charge that the Obama administration is insufficiently tough on terrorists has made it harder for this administration to try terrorists in civilian court.

Difficulties with trials have left the Obama administration, like its predecessor, relying primarily on military detention without trial to hold terrorists.

Granted, Goldsmith uses the lawyerly trick of hiding the agency in his statement–substituting “disfavor grew” for “Republicans drummed up disfavor because it polled well”–to hide his faulty logic. But what he’s basically saying is that: (1) there’s no big deal with civilian courts, as the Bush experience shows, (2) nevertheless a bunch of fearmongerers who just happen to come from Goldsmith’s own party have been bad-mouthing civilian trials for crass political reasons, and therefore (3) civilian trials are just too difficult to pull off.

The rest of Goldsmith’s op-ed follows from this artificially created difficulty.

The correct response, for someone in Goldsmith’s position, would be to say, “stop being such cynical assholes, Republicans, this is about law, not your political stunts!” But instead, he wrings his hand and invents a new legal system to work around the difficulty created by his colleagues in the Republican party.

Which offers him the ability to make this move, which addresses an issue that has nothing to do with closing Gitmo:

Courts have given their general blessing to military detention as a legitimate form of terrorist incapacitation. But military detention still raises hard legal questions, about which Congress has said practically nothing. As a result, unaccountable judges are making fateful detention decisions, demanding release of some whom the administration thinks are dangerous terrorists.

[snip]

Second, acknowledge that military detention will remain the primary basis for holding terrorists, and strengthen the system. The president will eventually need Congress’s help, not only to put Guantanamo detentions on firmer footing but also to support the growing global fight against terrorists beyond traditional battlefields. The main legal foundation for targeting and detention in places such as Pakistan, Somalia and Yemen is the September 2001 congressional authorization to deal with the Sept. 11 attacks. But as dangerous terrorists have ever-dimmer connections to Sept. 11, the government is bumping up against the limits of what this authorization permits.

Again, Goldsmith hides his logic here. But what he’s actually saying is, “those mean judges on whom our entire legal system relies have pointed out that we’ve illegally been holding people who have nothing to do with 9/11” (and in fact have been doing so since the Bush Administration collected a lot of people who they called terrorists but weren’t tied to al Qaeda), “so we need to invent some means to hold them and more like them even though we have no legal basis to do so.” Sure, he, like John Bellinger, notes that the Obama Administration is pushing the legal limits of what the AUMF for Afghanistan legally authorized. But what he’s really calling for is some new legal authorization to just pick up anyone anywhere in the world and hold them indefinitely and maybe give them a civilian trial if we feel like it.

In the process he ignores the larger logical problem with this argument. Yes, the international community recognizes military detention as legal during times of war.

But what Goldsmith is advocating for is that Congress create some legal justification for military detention of those we are not at war with.

Now, Cap’n Jack isn’t really a big fan of international law binding US actions, which may be why he introduces this idea with so little thought, the same way he dismisses the symbolic value of closing Gitmo.

But if Congress were to pass a law granting the Executive the authority to unilaterally declare organizations terrorist groups, and on that basis, to indefinitely detain those alleged to be members without even the guise of war as a time-limiting factor, my guess is the international community would look none too fondly on it. It would be a new stain on our international reputation, added to the still-oozing sore of Gitmo.

And Jack Goldsmith, whose entire op-ed is premised on allowing his party to do anything it wants for political gain, doesn’t see where this kind of unilateral Executive power might lead.

In a country founded on “self evident truths” such as life, liberty, equality, and due process of law, the timeless quote from Ben Franklin speaks to the peril imposed when the founding principles are discarded or compromised:

Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.

Yet, of course, since 9/11 that is exactly what the United States has done and what has resulted in return. Fareed Zakaria has a piece up at Newsweek speaking to the senseless and destructive madness that has consumed the US since the 9/11 attacks:

The error this time is more damaging. September 11 was a shock to the American psyche and the American system. As a result, we overreacted.

….

Some 30,000 people are now employed exclusively to listen in on phone conversations and other communications in the United States. And yet no one in Army intelligence noticed that Maj. Nidal Malik Hasan had been making a series of strange threats at the Walter Reed Army Medical Center, where he trained. The father of the Nigerian “Christmas bomber” reported his son’s radicalism to the U.S. Embassy. But that message never made its way to the right people in this vast security apparatus. The plot was foiled only by the bomber’s own incompetence and some alert passengers.

Such mistakes might be excusable. But the rise of this national-security state has entailed a vast expansion in the government’s powers that now touches every aspect of American life, even when seemingly unrelated to terrorism.

…..

In the past, the U.S. government has built up for wars, assumed emergency authority, and sometimes abused that power, yet always demobilized after the war. But this is a war without end. When do we declare victory? When do the emergency powers cease?

Conservatives are worried about the growing power of the state. Surely this usurpation is more worrisome than a few federal stimulus programs. When James Madison pondered this issue, he came to a simple conclusion: “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germs of every other … In war, too, the discretionary power of the executive is extended?.?.?.?and all the means of seducing the minds, are added to those of subduing the force, of the people.

“No nation could preserve its freedom in the midst of continual war,” Madison concluded.

Indeed it is a chilling picture we have allowed our political “leaders” to paint us into, and Zakaria does not even hit some of the most disturbing impingements on due process and the rule of law such as the government arrogating itself the right to summarily execute American citizens with no judicial trial or due process whatsoever and the legal black hole that is Guantanamo and the Obama Military Commission and indefinite detention program. That is, as a nation, who and what we are today and it has bought us nothing except world scorn, geometrically more enemies, a plundered treasury, ignored and dilapidated domestic infrastructure, swelling joblessness and exploding income inequality.

But, hey, at least we have increased security and all those oppressive terrorist modalities are only for al-Qaida and the bad foreigners, right? No. The rot is now who we are, towards ourselves in addition to “them”. And that is where we finally get to the subject of the title of this post. Nothing demonstrates the deadly rot virus that has been injected into the blood of the American ethos than the story of Zeitoun. (more after jump)

Zeitoun is Abdulrahman Zeitoun, the subject of author Dave Eggers’ 2009 book Zeitoun, and his story is fascinating, chilling and the perfect illustration of the depths the United States has fallen from its founding principles. Zeitoun, originally of Syrian descent, is a long time resident of New Orleans who, along with his American born wife Kathy, owned and operated a successful contracting business, have four wonderful children and was (and still is) a beloved pillar of his community held in the highest regard by literally everybody who has ever come in contact with him. Literally the kind of folks that America daily claims to be built on. And so it was for Zeitoun and his family.

Then came Katrina and the ground changed. August 29, 2005 all hell broke loose in New Orleans and Zeitoun loaded up Kathy and their children and sent them off in the evacuation to Baton Rouge and later to stay with friends in Texas. But not Zeitoun, he stayed, not for himself, but for the city and community that he loved and which coursed through his veins. As the levees gave way and the city filled with water, so too did Zeitoun’s neighborhood and home. Zeitoun dug a battered old canoe from his garage, put into the teeming water and set about trying to help others; it was reflex for him, that is just who he is.

And help others he did. Zeitoun paddled his canoe to bring food to stranded neighbors and animals and literally saved the life of at least one elderly woman and likely others as well. From The Guardian:

Zeitoun takes us on a guided tour of the route that he negotiated in his canoe in the days after the storm. He begins by pointing to a pillar at the front of his house. “That’s where I kept the canoe tied, like you’d tie up your horse.”

We set off by car along the maze of streets around his neighbourhood. On every street corner he has a tale to tell. The first stop we make is at a house of grey clapboard standing on stilts. In the hurricane, the flood waters reached almost up to its windows. As he paddled by, Zeitoun explains, he heard a voice faintly crying “Help!”. He swam to the front door and inside found a woman in her 70s hovering above him. In one of the most memorable phrases of the book, Eggers writes: “Her patterned dress was spread out on the surface of the water like a great floating flower.”

“She was inside the house holding on to the bookshelf with water up to her shoulder,” Zeitoun recalls, as we stand outside the house. “She must have been in the water for about 24 hours by then.”

Zeitoun helped the woman reach safety in a fishing boat, which was no small feat given that she weighed 90kg (14st). His construction skills and great strength proved invaluable as he levered her on a ladder out to the vessel.

Our tour continues and we pass the house of a local Baptist church pastor and his wife whom the Zeitouns had known for years and who similarly cried out for help. Further on, we come to the residence of a man who was stranded and to whom Zeitoun brought food and water every day while he still had his canoe and his liberty.

All in all, Zeitoun reckons he must have helped to save or rescue more than 10 neighbours. “The way I thought of it was, anything you can do to help. God left me here for a reason. I did what I was brought up to do – to help people.”

But a new hell was about to descend on Zeitoun. The roiling waters and uncertainty were, as Zacharia described the US in the aftermath of 9/11, causing a gross overreaction from government and its leaders. The new militaristic ethos that now seems to grip every facet of American governance was about to swallow up family man and community hero Zeitoun. On September 6, 2005, exactly five years ago today, Zeitoun made his way to a rental property he and Kathy owned to check the status of the friends he leased the house to and to use the telephone, as it was in one of the few locations in the city left with active phone service.

This is when things for Zeitoun went from the darkness of Katrina’s wake to the black hole that is now, thanks to the cowed and craven political leadership in the United States, the American “rule of law”. As Zeitoun spoke on the phone to a concerned relative overseas, a group of at least six National Guardsmen and police officers, in full out battle dress and armed with automatic weapons, broke the door down, stormed in and seized Zeitoun and the three other men in the house. Zeitoun tried desperately to show his legal identification and convey that he was the owner of the house, that the others were legitimately there and there was nothing improper going on. This, of course, was all to no avail whatsoever.

Zeitoun and the others were handcuffed and shackled at automatic weapon point, thrown like meat into a boat and transported to “Camp Greyhound”. If you are not familiar with Camp Greyhound, you should be. If there was any doubt as to whether American citizens could be portaged off to a Gitmo like gulag with no due process right here on American soil, Camp Greyhound will disabuse you of such notion.

While unable to rescue stranded and dying citizens from their sweltering attics and rooftops, or get food and water to the festering Superdome refugees, the federal government, commissioned through the Louisiana Prison Bureau, amazingly managed to complete the first reconstruction program, the Camp Greyhound detention facility:

…an outdoor jail built in New Orleans’ central bus station within hours of the hurricane’s landfall at the behest of the federal Department of Homeland Security and FEMA. Similar to Guantanamo Bay, Camp Greyhound (the guards’ name for it) was a kennel, runs of wire fencing and concrete flooring; there was nothing to sit or sleep on, and toilet facilities were portables outside the enclosures. Power was provided by a running diesel locomotive parked within yards of the cages, providing a continuous deafening hum and diesel pall.

Once the sudden stormtroopers had packed Zeitoun and his three fellow innocent compatriots from Zeitoun’s own property into the boat, it was to Camp Greyhound they were rendered to and, along with hundreds of other citizens, caged like animals. No Miranda, no initial appearance, no charges, no evidence of wrongdoing, no explanation, no communication permitted to the outside, no due process and no humanity. All sanctioned by the government against American citizens. Surely Zeitoun and friends were the unfortunate exception at Camp Greyhound. No.

Again from the review of Eggers’ book in the Buffalo News by Ed Taylor linked above:

Fellow prisoners he was able to talk to included a New Orleans firefighter ordered to stay in the city to work who was arrested in his own yard, and a Houston sanitation worker whose company contracted to help in the cleanup effort — arrested wearing his work uniform, possessing ID, and with the keys to his garbage truck in his hand.

Prisoners included Marlene Maten, 73-year-old diabetic deaconess at Resurrection Mission Baptist Church, arrested as she carried a package of sausages from a cooler in her car, parked beside the hotel to which she was returning.

Marlene, along with Zeitoun and hundreds of others from Camp Greyhound, ended up at maximum security Elayn Hunt Correctional Center, in St. Gabriel, La., 70 miles from New Orleans. They were FEMA prisoners: FEMA rented state prison space and Camp Greyhound transfers were, according to prison staff, “FEMA’s problem.” Again: transferred with no charges, no information, no opportunity to make a phone call or talk to a lawyer.

Thanks only to a volunteer missionary making rounds at the Hunt Prison facility, Zeitoun was able to get word to his wife and family, who had presumed him dead, where he was. On September 29, well over three Kafkaesque weeks after being rendered, and after having to post $75,000 bail, Zeitoun finally was released. The three other innocent men taken with him from the house he owned were not as fortunate and spent nearly half a year more in prison. No substantial prosecution was completed against any of them and all charges dismissed.

Their experiences were just a blip in the civil rights catastrophe that was Katrina. Camp Greyhound held a total of 1,200 detainees in the aftermath of the hurricane, most of whom were African-Americans and all of whom suffered the indignity of having their right to habeas corpus removed.

Detention, rendition, torture, waterboarding, extrajudicial assassination – even of American citizens, secret foreign prisons, indefinite detention, Gitmo and Camp Greyhound. It is all of the same immoral and un-American cloth. From 9/11’s global war on terror to Zeitoun in the post Katrina aftermath, the new American response paradigm is increasingly militaristic and totalitarian. It is driven by political cowardice and opportunism, fueled by the insatiable greed of the military industrial security complex. The blog Dystopolitik addressed the same conclusion from the governmental reaction to Katrina:

The “criminals of Katrina” are clearly victims of circumstance. A government that could not ensure their survival criminalized their survival techniques. A government terrified of armed citizens armed itself to the teeth. A government whose jail flooded constructed a camp to administer justice. A simple reading of these events would be that of projection, or scapegoating, and there is no doubt that media attention shifted from a scathing portrayal of government problems to a terrifying portrait of chaos.

The spectacular drama of a breakdown in “Law & Order” appears to be a drama of anarchy, rebellion and criminality. At a deeper level of analysis, the situation is actually a crisis of raison d’état. A government that failed it’s citizens with poorly constructed levees, bad crisis management and delayed evacuations, violently reestablished its legitimacy with force. “Camp Greyhound” and the militarization of New Orleans are flip sides of a cypher that we might use to uncover our contemporary political situation. If government failures in the Katrina crisis transformed the human figures of that failure into detainees at one end of the spectrum and refugees at the other, might the large scale socio-economic failures of government be transforming similar figures into America’s swelling prison population? In this analysis, Katrina appears to have exposed the dark underbelly of a generalized governmental failure and a corresponding expansion of military tactics over the population. Put concisely, when the state’s power to protect its citizens floundered, the criminalization of citizens of New Orleans reestablished a reason for the existence of the state.

We might extend our argument even further. Perhaps, the fact that scenarios of this sort are poping up around the globe is evidence of a larger scale crisis of raison d’etat. That is certainly the perspective of the military establishment. Pentagon planners, and military officials are using Katrina data to conduct war-games of future domestic scenarios, according to Army Times. In fact, Congress passed legislation in 2006 overturning the century old Posse Comitatus Act, banning the deployment of active duty military personnel on domestic soil. The law was repealed in subsequent legislation in 2008, but the precedent has been set.

In the security complex that responded to Katrina, we can see the growing indistinction between police and military operations. The combat mission has been generalized, and so have the camps.

That strikes home pretty hard, but pretty accurately. And you see the trend not just in complete breakdowns such as Katrina, but every day in seemingly normal life. The burgeoning use and abuse of Tasers by law enforcement and security personnel is a prime example; it is now second nature to Taser citizens for any perceived slight or non-compliance, no matter how trivial.

The mark of a society is not how it enjoys peace, calm and prosperity, but how it reacts and carries itself in times of trouble and despair. That is a test the United States is rapidly failing. The direction of our country under the Bush/Cheney administration and, quite disappointingly, the not nearly so enlightened as advertised administration of Barack Obama, will not be treated kindly in history’s analysis. And while economic strife is the order of the day now, you can bet that the loss of the American ethos will be the lasting imprint from our time now.

When a society refuses to inspect its mistakes and wrongs, mete out appropriate accountability and learn from the exercise, it loses its moral authority. When Barack Obama and the Democratic Congress belligerently refused to honor their oaths of office by defending and protecting the Constitution via bringing accountability for the attacks on it by the previous administration, it served to ingrain and ratify the offenses and abuses into our fabric of society and law; it set a new and disturbing norm.

And thus, bit by bit, we have waived and forfeited our founding principles. Nine years from September 11, and five years from Zeitoun’s Katrina gulag hell, what Ben Franklin presciently predicted, and what Fareed Zakaria lamented occurring in the wake of 9/11, has come to pass.

It is who we are now.

[The wonderful graphic is by Mirko Ilić. Mirko is an artist par ecellence in New York who also teaches illustration and design. Please visit Mirko and check out his stock of work, it is really superb.]

Can you feel it? It is almost here. Real football is just over the horizon. The excruciatingly long preseason slate of games has thankfully ended with the obligatory fourth game of scrubs on scrubs, and now all that is left is the mandatory roster cutdowns which always serves up some interesting big names hitting the street. I’ll get back to that in a minute, but first there is the rather large issue of…..

Helen of Troy Palamalu has insured his hair for one million large. Holy flowing locks Batman! Actually, hair products company Haead & Shoulders, who Polamalu shills for, took out the policy from Lloyds of London. Pretty smart PR ploy actually. But the extreme value of Polamalu’s mop does raise the question of the relative value of Tom Brady’s new Justin Bieber look. Seriously, what’s up with that? Man, if the head Patsy gets any closer to his feminine side, he is gonna be strutting down the Victoria’s Secret catwalk with his wife.

Now, back to some of the comings and goings. Of local note here, it seems pretty clear that the Cardinals are going to cut bait with Matt Leinart. The guy has been given every opportunity, but has just never come to grips with the speed of the pro defenses and has been often aloof as a teammate and leader. Oh well, no loss, and the Cardinals have a rather impressive history of wasting high first round picks on quarterbacks that go bust (one of them, Kelly Stouffer, who in spite of being a complete bust in the NFL, nevertheless is forever known for refusing to play for the Cardinals after they used the number six overall pick on him).

T.J. Houshmandzadeh has been cut by Seattle after signing a big free agent contract last year. The Cowboys have dumped former fan favorite Patrick Crayton on the Bolts (who need a receiver because they seem unable to deal with Vincent Jackson). It may well be that Byron Leftwich’s knee injury last night earns him being dumped by the Steelers. Pittsburgh really only wanted Leftwich for the period of Big Ben’s suspension anyway and that has now been reduced to four games, which is how long Leftwich looks to be laid up. Hard to believe Pittsburgh will pay the money to keep him on the opening day roster under those circumstances.

In other news and notes, the student athletes have already started play. Sort of. USC ran up the score on Hawaii; the Trojans offense looked decent, but their defense looked very un-Trojan like. And not very Monte Kiffin like either. I dunno, could be a long year in for the scarlet and gold in Watts. However, there was one pretty good game last night, Utah and Pitt, with the Utes pulling out an overtime win. It will be pretty interesting to see coach Kyle Whittinham and Utah in the Pac-12 next year; the guy is a very good coach and Utah always seems to have solid players. They may make some waves.

But, hands down, the game of the week is Monday night between Boise State and the Virginia Tech Hokies. Boise is rated number 3 preseason and VaTech number 10. That is a good game any time, but this is simply huge in that if Boise State gets by the Hokies, they are primed for a run at playing for the National Championship in the BCS title game, which would be yet another perfect black eye for the hated BCS assholes. And boy would that be sweet. Boise State is my favorite team right now; Go Broncos!!

There is also MLB baseball as the season winds up and October looms and a few other things sporting out there, so get yer trash on people!