h/t Zapiro @ sahistory

Joe Conason has a new piece out in Salon that is enough to cause sane heads to explode. Noting that, like math, bringing accountability is hard, Conason biliously opines:

Here we have no such consensus and no revolutionary government with the power to mete out retribution to vanquished foes. What we have instead are the unrepentant officials of the Bush era, who continue to justify their misconduct as critical to the nation’s survival. We have a new administration, immured in a world economic crisis, that recognizes conflicting imperatives of accountability and cooperation. And we have a responsibility to explore how the nation embarked on "a dangerous and disastrous diversion from American values," as Leahy put it.

Is there a way for President Obama to pursue that responsibility without inflicting vengeance or humiliation? Perhaps he ought to consider the creation of a presidential commission whose aims would be purely investigative — and encourage the participation of those implicated in the abuses of the past by promising a complete pardon to anyone who testifies fully, honestly and publicly.

With that gesture, he would acknowledge the importance of uncovering the facts, no matter how ugly, while magnanimously binding up the nation’s wounds. He could leave the issue of criminal prosecution to international authorities that can act without any partisan taint. And he could seek truth without vengeance.

Conason waxes romantic about Sen. Pat Leahy’s much ballyhooed truth and reconciliation plan. Here is the money quote from Leahy:

We could develop and authorize a person or group of people universally recognized as fair-minded, and without axes to grind. Their straightforward mission would be to find the truth. People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts.

That’s right, another blue ribbon commission that is going to solve our difficult problems of governance. Yeah, that is going to work out well because, you know, such things always do. Paging Lee Hamilton to the blue ribbon phone. The problem with Leahy and Conason’s commission is that there exists a body of law, both statutory and common, for a reason; for it to be the rule and for the rule to be enforced. Conason wants to be "magnanimous" and "pardon" and "leave the issue of criminal prosecution to international authorities that can act without any partisan taint". What a totally perfect bunch of tripe. Hey Joe, exactly what "international authorities" are you referring to here? And how are these "miscreant" defendants going to be rendered to justice by said international authorities? Is Conason saying he supports extradition of Americans to the Hague or other loci of international justice? Because if he isn’t (and trust me, his shallow babble doesn’t) then this chatter about international justice for the malfeasants is horribly idle.

Oh, and one more thing, when Conason notes that he and Leahy’s claimed brilliance is founded upon

using a process modeled partly on the Truth and Reconciliation Commission of post-apartheid South Africa

it ought also be noted that not quite everybody considers that process to be all that wonderful, even in the tectonic change scenario where it is supposedly appropriate. From yesterday’s Washington Post:

But the ruling also stirred debate about how to deal with history in a young democracy that depicts itself as a miracle built on the notion of forgiveness. In a country where many blacks remain poor and many white perpetrators walk free, it is a question on which even the widows of the Cradock Four do not agree: What is best for reconciliation — digging up the past or letting it lie?

"We have had trickle-down reconciliation in this country," said Piers Pigou, a former Truth and Reconciliation Commission investigator who now directs the South African History Archive. "There’s been an absence of commitment to those issues because it’s likely to raise a lot of hard questions."

The main protagonists of the Bush/Cheney regime effectively reverse engineered our laws and Constitution in order to gut them of all meaning and effect, so that they could impose their demented whims of dominance and submission on the nation and the world. Their crimes are more than the violence of man on man that hold forth in truth and reconciliation commissions; the crimes of Bush and Cheney rip at the very heart of who and what we are, and were founded to be, as a Constitutiional democracy.

The half baked blue ribbon commission of Conason and Leahy will not address the heart of what has gone on, and it will never bring valid accountability for it. Good governance and the maintenance of the rule of law is hard, especially when truth must be spoken to power. Difficulty is no excuse for failure.

Here it is, another glorious President’s day, and wouldn’t you know it world leaders are exchanging presents. And Venezuelan President Hugo Chavez has sent one President Obama’s way:

President Hugo Chávez handily won a referendum on Sunday that will end presidential term limits, allowing him to run for re-election indefinitely and injecting fresh vibrancy into his socialist-inspired revolution.

The results, coming after voters had rejected a similar effort by Mr. Chávez just 15 months ago, pointed to his resilience after a decade in power, as well as to the fragmentation of his opposition, which as recently as November had won key mayoralties and governorships.

The vote opens the way not only for Mr. Chávez to run for a new six-year term when his current one expires in 2013, but could also bolster his ambitious agenda as an icon of the left and a counterweight to American policies in Latin America.

It also creates a new foreign policy challenge for the Obama administration, strengthening a leader who has made a career of taunting and deriding the United States, even though Mr. Chávez just this weekend seemed to open the door for a different relationship.

Chavez is not going away anytime soon, and with the petro status of Venezuela remaining significant, both as to the US and as a vehicle for Chavez to spread influence in Latin America, Barack Obama needs to fashion a coherent policy for Latin America as a whole and Venezuela in particular. President Obama has shown a refreshing tendency in foreign policy to address glaring problems head on and, unlike the previous Bush Administration, actually use intelligence instead of muscle.

A heavy fist and a thumbed nose was about all the subtlety George Bush showed in his Latin American foreign policy; it is time for that to change. With the decline and fall of Fidel Castro in Cuba, and brother Raul being both slightly more progressive and not long for office himself, coupled with Chavez’s newfound extended lease on power and inability to know what to do the Obama agency of change, it is time for a new direction on both. We don’t need to all be best friends, but we need to quit being intransigent enemies for the sake of nothing more than needing to make each other a villain to play off of. President Obama can stop the stupid; he should.

In this post, I’m going to make a wildarsed guess at what actually went down with Burris’ campaign to be Senator. See the timeline of known interactions below.

The key to understanding what really happened in Burris’ campaign to be Senator is a discrepancy between what RobBlago is saying and what Burris is saying. In a statement to the Sun-Times, RobBlago’s lawyer  Michael Ettinger claimed that RobBlago didn’t know about Burris’ interest in the Senate seat when he made three fund-raising calls to Burris.

"He didn’t know he was in the running for the U.S. Senate seat," Michael Ettinger said.

But Burris had already expressed his interest in running to at least three people (John Wyma and Doug Scofield at a June fundraiser, and Lon Monk in July and/or September) by the time RobBlago first called. And Burris said that the Senate seat came up during at least two of their calls. In fact, Burris says that when RobBlago first called in October, RobBlago clearly stated that he knew Burris was in consideration for the seat.

I asked Rob Blagojevich what was going on with the selection of a successor if  then-Senator Obama were elected President, and he said he had heard by name mentioned in the discussions.

So here’s what I think happened (and this is all a wildarsed guess).

Burris told all the Blago people he had ties with of his interest in the seat. By early October, RobBlago was already trying to fund-raise off candidates for the seat. He called Burris and specifically in the context of the Senate seat asked him to do a fund-raiser for Blago (note, this would almost certainly have taken place before Fitz bugged Blago’s office, so there’s almost certainly no tape of this conversation). Burris deferred until after the election, perhaps because he wanted to make sure of two things: that Obama got elected and that he was under serious consideration before he went to the trouble of having a fundraiser. It is fairly clear that Burris was playing Blago’s game at this point, because he was already a known candidate for Obama’s seat–doing a fundraiser in October would be perceived as just as much an "attempt to curry favor" from Blago as would a fundraiser after the election!! But rather than saying no, Burris said, talk to me after the election.

After the election, John Harris (who was one of the first people taped after the election pushing Blago to get money for the seat) called Burris to touch base on the Senate seat; Harris remained non-committal about the seat, perhaps to suggest to Burris that unless he started fundraising he wouldn’t even be in the running. After which RobBlago called (as if on cue) and pushed Burris to do a fund-raiser again.

Now this second post-November call is where it gets interesting. Because it sure seems like Burris and RobBlago were talking about ways that Burris could fundraise without it looking like a clear quid pro quo.  At least one of these meetings took place at the campaign headquarters–which was bugged. But when it first came out that Fitz had tapped Blago, he seemed to assume that Wyma and others were wired, not that they had bugged his office. So I wonder whether they thought they were being safe by meeting face to face.

So RobBlago asks Burris for money. And Burris responds that he could not hold a fundraiser because it "could be viewed as an attempt to curry favor with [Blago] regarding his decision to appoint a successor to President Obama." In response, RobBlago suggested having others donate–that is, rather than Burris donating himself or having a fundraiser, he should do some kind of bundling. (Recall, by the way, Jesse Jackson Jr’s denials of paying for the seat–he said no one did it on his orders, and he didn’t know about it, but he never denied that someone had held a fundraiser on his behalf; this appears to be a parallel structure of plausible deniability as Burris and RobBlago seem to have discussed.)

I’m totally agnostic on whether or not someone did fundraise for Burris. But it’s worth noting that Burris’ partner, Fred Lebed, was on the board of the charity that, until recently, employed Patti Blagojevich, and when asked about Lebed’s ties to Blago, Burris claimed he knew nothing about it nor was involved. And Lebed has been involved in Burris’ prior campaigns. 

In any case, after getting busted for trying to sell the seat, and after Ed Genson assured everyone that Blago wouldn’t appoint anyone to the seat, Blago’s not defense lawyer Sam Adam Jr. approached Burris about the seat in two face-to-face meetings at Burris’ house–two conversations that (particularly since Adam was a long-time associate of Burris’) would probably escape the direct notice of the FBI. Only after those two conversations did Blago call, in a conversation that was surely taped, and offer Burris the seat.

Burris spent the next several weeks denying he had any untoward ties with Blago’s people. In his sworn testimony before the IL legislature, Burris dodged questions regarding:

• Whether he had spoken with RobBlago, John Harris, John Wyma, and Doug Scofield
• Whether he would have reported a quid pro quo offer to the Feds
• Whether he had bundled donations for Blago

And only after he was sworn in as Senator did he reveal what Fitz surely knew–that Blago’s people had made a quid pro quo offer. 

What Burris hasn’t admitted–but which the evidence suggests–is that Burris and RobBlago were trying to find a way for Burris to fundraise for Blago without leaving any tracks.

Here’s the timeline:

June 27, 2008: At a $1000 fundraiser for Blago, Burris told both Doug Scofield and John Wyma that he was interested in Obama’s Senate seat.

July (maybe–Burris was unclear whether this was July or September): Burris asks Lon Monk to tell Blago he is interested in Obama’s seat.

September (maybe–Burris was unclear whether this was July or September): Burris asks Lon Monk to tell Blago he is interested in Obama’s seat. There may have been a conversation about whether Blago would think Burris were qualified.

Early October: RobBlago calls Burris to ask him to hold a fund-raiser. Burris asks RobBlago "what was going on with the selection of a successor" for Obama’s seat. RobBlago responds that Burris’ name has come up in those discussions. Burris says he won’t give money now, but will wait until after the election.

October: Burris leaves a voice mail for John Harris, ostensibly to pitch his nephew for a job with the State. 

November (probably post-election–Burris describes it as "approximately three weeks" after he left his email): Harris calls Burris. Burris pitches his nephew for the state job. Then, Burris asks "whether there was any news" about the Senate seat. Harris says there is no news.

November, post-election: RobBlago makes two calls to Burris. RobBlago now says he did not know that Burris wanted the Senate seat, presumably to be able to claim there was no quid pro quo. But given the repeated calls, the subtext was clear. It appears possible that Burris and RobBlago talked about how to fundraise in such a way that the fundraising was not tied directly to Burris.

December 26: Conversation with Sam Adam Jr., Blago’s maybe Defense Attorney, about appointment

December 28: Conversation with Adam, then Blago, accepting seat

January 5: Roland signs affidavit that does not address contacts with Blago’s people, beyond the appointment discussions on December 26 and 28. In it he states:

Prior to the December 26, 2008 telephone call from Mr. Adams Jr., there was not any contact between myself or any of my representatives with Governor Blagojevich or any of his representatives regarding my appointment to the United States Senate.

January 8: In State Legislative hearing, Burris admits to contacts with Lon Monk, but does not mention contacts with four other Blago representatives

January 15: Burris sworn in as Senator

February 5: Burris writes a new affidavit, revealing additional conversations

Here’s a prediction of where the new Burris controversy is going: I suspect we’ll find out, in coming days, that while Burris did not donate directly to Blago, he never refused to bundle donations for Blago. I don’t know whether Burris actually did bundle donations, but I suspect we’ll learn that Burris has never refused to do so.

As Sun-Times reports, there is some debate over whether, as part of his discussions with Rob Blagojevich after the election, of fund-raising from others for Blago.

In October and again in November, Burris spoke with Robert Blagojevich, who initially asked him to host a fund-raiser. Burris said he’d get back to him after the election, sources with knowledge of the conversations said. The two later talked again, and Burris again was asked for campaign cash.

Burris said he refused to contribute and "made it unequivocally clear … that it would be inappropriate and pose a major conflict because I was interested in the Senate vacancy."

A source with knowledge of the exchange said there was some discussion about Burris possibly getting others to give or raise money on his behalf. Not so, according to Burris: "I did not donate or help raise a single dollar for the governor from those conversations and would never consider making a donation through a third party."

Note the form of Burris’ denial. In response to an assertion that there was "some discussion about Burris possibly getting others to give or raise money on his behalf," Burris (in what appears to be an unsworn statement to the newspaper) responds, "I did not … help raise a single dollar for the governor … and would never consider making a donation through a third party." I’m not sure what the "did not … help raise a single dollar" would include (would it include telling his partner–who was on the board of the charity at which Blago’s wife worked–to go raise money, but then not getting involved in the actual fundraising?), but Burris then says he would not make a donation through a third party, which is slightly different than having others give on your behalf.

The Trib provides more details, quoting Rob Blagojevich’s lawyer saying there was such a discussion.

"I was asked to raise money by the governor’s brother and made it unequivocally clear to him that it would be inappropriate and pose a major conflict because I was interested in the Senate vacancy," Burris said in the statement. "I did not donate or help raise a single dollar for the governor from those conversations and would never consider making a donation through a third party."

Robert Blagojevich’s attorney, Michael Ettinger, said his client did ask Burris to help with fundraising but not to donate personally and that after Burris expressed his interest in the Senate seat no fundraiser was held.

Ettinger also said he presumes at least one of the two post-election calls between Burris and Robert Blagojevich was recorded by federal agents investigating the former governor, but that it will show no wrongdoing on his client’s behalf.

Ettinger admits that Rob Blagojevich asked Burris to "help with fundraising," but denies that a fundraiser itself was held.

Now look at how the statement Burris gave to the Sun-Times and Trib differs from his sworn affidavit:

 In one of the other conversations [after the election] (I believe the last one), I mentioned the Senate seat in the context of saying that I could not contribute to Governor Blagojevich because it could be viewed as an attempt to curry favor with him regarding his decision to appoint a successor to President Obama. I did not raise or donate any funds to Governor Blagojevich after the fundraiser on June 27, 2008.

In what appears to be an unsworn statement, Burris says he did not "help raise" funds, whereas in his sworn affidavit, Burris says he did not "raise" funds. The latter would seem to involve Burris making calls himself, the former is more nebulous.

Now look at the exchange starting at 3:09 in the YouTube.

Durkin: Did you bundle any money for the Governor’s campaign fund at any time in the last six months, from July 2008 until present?

(Burris’ lawyer, Timothy Wright, grabs the mike.)

Wright: I’m sorry, Mr. Representative, you say, "bundle," what do you mean by "bundle"?

Durkin: Collected money.

Wright: Oh, like giving a fundraiser, is that what you’re speakng of?

Durkin: Sure, I’d like to know that, I’d also like to know if Mr. Burris directed anybody to make contributions to the Governor since July of this year.

Wright: (tries to interrupt before Durkin finishes) Thanks.

Burris: The answer’s no.

Now, presumably Burris’ "no" would apply to both parts of Durkin’s question: Did Burris hold a fundraiser or direct others to make contributions. But I think Wright’s interjection (including his attempt to close off Durkin’s clarification after he says "fundraiser") looks suspiciously like an attempt to redefine "bundle." After all, what politician doesn’t know what "bundle" means? And it certainly looks like an attempt to blur the meaning of "collected money."

I’m guessing there’s a reason that Burris is being so weasely with his definition of fundraiser.

Check out this video of Roland Burris’ testimony before the IL Legislative Committee. Here’s the transcript, on the interactions between Burris and his lawyer.

Rep. Jim Durkin: Prior to his arrest, did you have any conversations with the governor about your desire to be appointed to the seat?

Roland Burris: No.

Durkin: OK. Did you talk to any members of the governor’s staff or anyone closely related to the governor, including with family members or any lobbyists connected with him, including oh, let me throw out some names: John Harris, Rob Blagojevich, Doug Scofield, Bob Greenlee, Lon Monk, John Wyma? Did you talk to anybody who was associated with the governor about your desire to seek the appointment prior to the governor’s arrest?

Burris (confers with his attorney off-mic and says): I talked to some friends about my desire to be appointed, yes.

Durkin: I guess the point is I was trying to ask: Did you speak to anybody who was on the governor’s staff prior to the governor’s arrest or anybody, any of those individuals or anybody who was closely related to the governor?

Burris (again confers with attorney and says): I recall having a meeting with Lon Monk about my partner and I trying to get continued business and I did bring it up, it must have been in September-maybe it was in July of ’08 and you know, ‘If your close to the governor, well let him know that I will feel certainly interested in the seat.’"

Durkin: OK.

Durkin lists off a list that includes all five people whom Burris has now admitted speaking to about the seat and other issues. Burris’ lawyer seems to know immediately that Burris is going to need help with the question and asks for a moment to confer. Burris gives his attorney a short explanation, the attorney responds with one word (seemingly telling him he has to reveal it), and the elaborates that advice. Burris then gives his weasely answer, "I talked to some friends." Durkin tries again and asks what was in effect a simple yes or no question about whether Burris had talked to anyone on the Governor’s staff or "was closely related" to the Governor.

Rather than saying yes, or starting with those closest to the Governor (his brother), Burris launches into a vague answer about Lon Monk.

And he never gets around to revealing that conversation in which Rob Blagojevich discussed fundraising in the context of the Senate appointment. And here–from later in the transcript–is Burris trying to avoid answering whether or not he would have turned the Blagos in if they asked for a clear quid pro quo.

Durkin: At any time were you directly or indirectly aware of a quid pro quo with the governor for the appointment of this vacant Senate seat?

Burris: No sir.

Durkin: Ok. If you were aware of a quid pro quo, what would you have done?

(Burris’s lawyer calls it a hypothetical question and inappropriate. Durkin calls it "highly relevant" and what his response would have been. Rep. John Fritchey (D-Chicago) says his response to something that did not occur was "irrelevant" and "speculative." Durkin says its "germane" to the hearing and a "reasonable request" of what he would have done. Burris’ lawyer says Burris will respond because he wants to be "clear and open.")

Burris: Rep. Durkin, knowing my ethics, I would not participate in anybody’s quid pro quo. I’ve been in government for 20 years and never participated in anybody’s quid pro quo.

Durkin: I guess the point is, would you have gone to the federal authorities if you were aware of that?

Burris: I have no response to that.

Let me answer this for you, Representative Durkin: No. Burris would assuredly not go to the Feds if he were offered a quid pro quo.

Obviously, I’m not a juror or a court of law, but I’d say the evidence suggests Burris operated with clear intent in hiding both his conversation with Rob Blagojevich and the quid pro quo conversation they had.

The Sun-Times reports today that Roland Burris was not very forthcoming when he told the State House what contacts he had had with Rod Blagojevich’s camp.

Former Gov. Rod Blagojevich’s brother solicited U.S. Sen. Roland Burris for up to $10,000 in campaign cash before Blagojevich named Burris to the coveted post — something Burris initially failed to disclose under oath before an Illinois House impeachment panel, records and interviews show.

Burris acknowledges being hit up for the money in a new affidavit he has sent to the head of the House committee that recommended Blagojevich be removed from office.

[snip]

The affidavit is dated Feb. 5 — three weeks after Burris was sworn in to replace President Obama in the Senate.

Burris — who did not give money to the Blagojevich campaign fund in response to the previously undisclosed solicitation — provided a copy of the sworn statement to the Chicago Sun-Times Friday in response to questions about his contacts with the Blagojevich camp about fund-raising.

Burris acknowledged having three conversations with Robert Blagojevich, who headed the Friends of Blagojevich campaign fund — and one of those was likely recorded by the FBI.

[snip]

In his new affidavit, Burris confirms he also spoke of his interest in the Senate appointment with Blagojevich insiders John Harris, Doug Scofield and John Wyma.

The discussions with Robert Blagojevich about money came after Burris spoke with those people. 

So best as I can reconstruct, here are the contacts Burris had with Blago’s folks:

July or September: Discussions with Lon Monk about picking up lobbying business to the Governor

Unknown: Conversations with John Harris, Doug Scofield, and John Wyma about seat

October: Conversation with Robert Blagojevich tying money to seat

November: Conversation with Robert Blagojevich tying money to seat

December 26: Conversation with Sam Adam Jr., Blago’s maybe Defense Attorney, about appointment

December 28: Conversation with Adam, then Blago, accepting seat

January 5: Roland signs affidavit that does not address contacts with Blago’s people, beyond the appointment discussions on December 26 and 28

January 8: In State Legislative hearing, Burris admits to contacts with Lon Monk, but does not mention contacts with four other Blago representatives

January 15: Burris sworn in as Senator

February 5: Burris writes a new affidavit, revealing additional conversations

One of the key details is the genesis of the new affidavit. Burris says he sent it after realizing he wasn’t forthcoming to the hearing.

Burris acknowledges being hit up for the money in a new affidavit he has sent to the head of the House committee that recommended Blagojevich be removed from office.

[snip]

Burris said he sent the new statement to House Majority Leader Barbara Flynn Currie (D-Chicago) after he read the transcript of his testimony before the impeachment committee she headed and realized it was incomplete. "There were several facts that I was not given the opportunity to make during my testimony," Burris said. "I voluntarily submitted an affidavit so everything was transparent."

Uh, right, Burris. But you didn’t review the transcript until after you had been sworn into the Senate?

I’m wondering, too, whether in the interim Burris didn’t have a visit with Patrick Fitzgerald’s folks about what got caught on the FBI’s tapes?

AMERICAS MOST ABUSIVE SHERIFF

You have probably heard of the shamelessly self professed "Toughest Sheriff in America", Maricopa County Arizona Sheriff Joe Arpaio. For years he has been making a PR spectacle of himself, all the while running an unconstitutionally deplorable jail system, letting inmates die under tortuous conditions, and violating the civil rights and liberties of everybody in sight, especially minorities. Today, the House Judiciary Committee made public a critical and public step to rein in the Most Abusive Sheriff In America.

From the HJC press release:

House Judiciary Committee Chairman John Conyers, Jr. (D-Mich.), and Immigration Subcommittee Chairwoman Zoe Lofgren (D-Calif.), Constitution Subcommittee Chairman Jerrold Nadler (D-N.Y.), and Crime Subcommittee Chairman Bobby Scott (D-Va.) called on Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano to investigate allegations of misconduct by Maricopa County (Arizona) Sheriff Joe Arpaio.

Sheriff Arpaio has repeatedly demonstrated disregard for the rights of Hispanics in the Phoenix metropolitan area. Under the guise of immigration enforcement, his staff has conducted raids in residential neighborhoods in a manner condemned by the community as racial profiling. On February 4, 2009, Arpaio invited the media to view the transfer of immigrant detainees to a segregated area of his "tent city" jail, subjecting the detainees to public display and "ritual humiliation." Persistent actions such as these have resulted in numerous lawsuits; while Arpaio spends time and energy on publicity and his reality television show, "Smile… You’re Under Arrest!", Maricopa County has paid millions of dollars in settlements involving dead or injured inmates.
…
It is time for the federal government to step in and uphold the rule of law in this country, even in Maricopa County."

"Law enforcement is not a game or a reality show, it is a public trust," said Scott. "There is no excuse for callous indifference to the rights of the residents of Arizona, whether in their neighborhoods or as pretrial detainees."

The full official text of the letter to Napolitano and Holder is here.

It is high time that somebody on the national scene notice, and the Federal government take action on, the egregious and violative conduct of Joe Arpaio.

Joe Arpaio is a two bit carnival barker and huckster, not a dedicated law enforcement official. The opportunistic man came into office running against a fellow Republican and incumbent Maricopa County Sheriff, Tom Agnos, by bad mouthing Agnos and arguing that the entire Maricopa County Sheriff’s Department needed to be cleaned up. In fact, Arpaio’s winning campaign was predicated upon his willingness to mock the very department he was running to lead and promise to expose the dirty laundry of Agnos and the Sheriff’s Department for its involvement in the infamous Buddhist Temple Murder case (link is a fascinating three part story), a seminal case in textbooks on coerced confessions (from the fact that four separate coerced false confessions were obtained to a single crime). Arpaio promised to restore honor to the department, and also swore he would serve only one term in office. Five terms and seventeen years later, Arpaio has failed miserably on both promises.

The upshot of the House Judiciary Committee’s missive to Attorney General Holder and DHS Secretary Napolitano is that Arpaio’s:

…repeated course of conduct, which values publicity opportunities over the civil rights of residents of Arizona, is too disturbing to leave enforcement of the civil rights laws to private litigants. There are several tools at the federal government’s disposal to address these allegations, and we urge their prompt consideration and application.

In short, the HJC is demanding that a full panoply of federal civil and criminal laws and remedies be brought to bear by the arms of federal law enforcement. One of the grounds for the HJC demand is Arpaio’s acts earlier this month, described in the letter as follows:

Most recently, on February 4, after making sure to alert the media, Arpaio reportedly paraded approximately 200 suspected illegal immigrants in shackles to a segregated area of his "tent city" county facility, where they will supposedly remain until they are adjudicated and have served any sentences they face for local violations. The New York Times described this conduct as "ritual humiliation." The men who Arpaio is displaying like trophies are reportedly in pretrial detention, not having been convicted of any crime.

If you want to understand the true extent of Sheriff Joe’s war on brown people, the Phoenix New Times’ expose "Guadalupe Made It Clear That Joe Arpaio’s Attacking Anyone With Brown Skin" is an absolute must read. Seriously, it is a long piece, but to call it chilling and important would be an understatement, and it is superb start to finish. Here is a taste:

With spirited protesters and helmeted deputies on horseback, the night of April 3 in Guadalupe was like some historical reenactment, albeit in miniature, of a late-’60s anti-war melee. You know, the kind chronicled by Norman Mailer in one of his seminal "non-fiction novels" of the era, such as Miami and the Siege of Chicago or The Armies of the Night.
…
Following up on his criticism of Arpaio during a César Chávez luncheon in March, Phoenix Mayor Phil Gordon addressed a letter to the U.S. Justice Department asking for an investigation of the sheriff. The letter was dated April 4, the second day of the MCSO’s Guadalupe sweep, and the MCSO’s actions in Guadalupe figured prominently in the missive.

Egregious to be sure, but hardly the only such acts by Arpaio, and certainly not the worst. Let’s go through some of the others alluded to in the letter, although not described in detail.

Arpaio was little more than halfway through his first term in office when his policies and jail conditions first came under investigation for abuse by the US Department of Justice. Shortly after that, and still during his first term in office, young Scott Norberg died in Arpaio’s jail as a result of said policies:

[Norberg] was in Arpaio’s jail just 15 hours before he was handcuffed by guards, kicked, stomped on, and then strapped into a restraint chair. There, guards held a towel over his head, literally suffocating him. Medical records later revealed that he had been shot with a stun gun at least 14 times and beaten so badly that his larynx cracked.

That one cost the taxpayers of Maricopa County $8.25 million, but did not deter the Most Abusive Sheriff in America; instead, he seemed to get off on the notoriety. There were more unnatural deaths in Arpaio’s jails, from a variety of causes, after Norberg. The belligerent Arpaio finally stopped the deplorable use of the restraint chair in 2006 after fighting demands by citizens and federal overseers on the issue for nearly a decade.

What caused Arpaio to finally give up his demonic obsession with the restraint chair that killed Scott Norberg? Ah, glad you asked:

On March 29, 2006, a $9 million court judgment was leveled against Arpaio and the county in the beating and restraint-chair death of inmate Charles Agster III.

Agster, 33 and mentally retarded, was arrested for trespassing on August 6, 2001. Detention officers at the Madison Street Jail pulled a hood over his head and slammed him into a medieval-looking restraint chair. The hood around Agster’s throat smothered him to the point that he became brain dead. He was pronounced legally dead three days later on August 9, 2001.

Agster’s death should have been prevented. Two years before he was killed, the county had paid $8.25 million to settle the Norberg suffocation suit.

There was at least one more death at the restraints of Arpaio’s cherished chair, Clint Yarborough in 2005. It should be noted that neither Norberg, Agster, nor Yarbrough were ever tried or convicted for the charges they were arrested on; none of them lived to see their first court date and died innocent men under the law. Those are just the deaths associated with the medieval restraint chair, there have been numerous deaths from improper or complete lack of medical care, neglect and other perils.

One of the other examples of the decrepit conditions Arpaio presided over is that of Kathleen Carey:

Like most attorneys, Kathleen Carey leads a busy life. So she didn’t take much time to examine what looked like a pimple on her arm. Twelve days later, Carey’s arm had ballooned to nearly twice its normal size, and pus was oozing from a boil where the zit had been.

After $180,000 in medical bills, four doctors, and two hospitals, Carey learned that the supposed pimple was actually the flesh-eating "superbug" bacteria commonly known as MRSA staph infection. You may recognize MRSA from recent news reports, following a study concluding that more Americans die each year from antibiotic-resistant MRSA infections than from HIV/AIDS.

MRSA commonly spreads through hospitals, but Carey hadn’t been to a hospital or doctor for months before her infection. So where did she get the potentially fatal infection?

Carey says she knows exactly where she got it — the Maricopa County Jail. She wasn’t there as an inmate, but as an attorney visiting her client.
…
Carey is one of many Maricopa County residents who’ve never been booked into Sheriff Joe Arpaio’s jails but who are paying dearly for conditions inside his lockups.

Vermin, filth, medical care suggestive of POW camps, chronic mismanagement, the wanton destruction of records, and a steady parade of corpses in Maricopa County jails have cost taxpayers an astonishing — and until now, undisclosed — 41.4 million dollars.

Don’t know if you caught that or not, but that is nearly $42 million dollars (and that was as of over a year ago, the figure is now higher) that Maricopa County has paid out due to the Most Abusive Sheriff in America’s detention policies and procedures. Want to know how that compares to other big municipalities? Get a load of this:

There simply isn’t another jail system in America with this history of taxpayer-financed litigation.

New York City, Los Angeles, Chicago, and Houston, for example, collectively housed more than 61,000 inmates per day last year. From 2004 through November of this year, these same county jails had a combined 43 prison-conditions lawsuits filed against them in federal courts.

In the very same three-year time frame, despite housing a mere 9,200 prisoners per day, Sheriff Arpaio was the target of a staggering 2,150 lawsuits in U.S. District Court and hundreds more in Maricopa County courts.

With a fraction of the inmate population, Arpaio has had 50 times as many lawsuits as the New York, Los Angeles, Chicago, and Houston jail systems combined.

But Sheriff Joe’s reign of terror does not end with the immigrant bashing and inhuman detention policies and facilities. When the Most Abusive Sheriff in America disagrees with colleagues, even fellow police officers, he attacks them with not only rhetoric, but the heavy dark hand of his department:

The sheriff raided municipal buildings in Mesa in what appeared to be nothing more than a blatant political maneuver against Arpaio’s perceived enemy, Mesa Police Chief George Gascón.

As a public safety effort, the pre-dawn October 16 incursion into Mesa City Hall and its library was laughable — it netted just three undocumented workers. A couple of former county Superior Court judges criticized Arpaio’s action in the East Valley Tribune, with former chief judge of the court Colin Campbell calling the raid "bizarre" and "extraordinary."

Last, but far from least, Sheriff Joe has waged a jihad against the local investigative weekly newspaper in Phoenix/Maricopa County, the Phoenix New Times. Arpaio long felt the New Times coverage of him was too strident; not content to address his concerns in the media and public sphere, Arpaio arrested the publishers, Michael Lacey and James Larkin, on trumped up asinine charges (that were almost immediately dismissed without ever seeing the light of a courtroom). However, if you cherish the First Amendment and the freedom of the press, Larkin and Lacey’s arrests by Arpaio were not even the worst part.

In a breathtaking abuse of the United States Constitution, Sheriff Joe Arpaio, Maricopa County Attorney Andrew Thomas, and their increasingly unhinged cat’s paw, special prosecutor Dennis Wilenchik, used the grand jury to subpoena "all documents related to articles and other content published by Phoenix New Times newspaper in print and on the Phoenix New Times website, regarding Sheriff Joe Arpaio from January 1, 2004 to the present."

Every note, tape, and record from every story written about Sheriff Arpaio by every reporter over a period of years.

In addition to the omnibus subpoena, which referred to our writer Stephen Lemons directly, reporters John Dougherty and Paul Rubin were targeted with individual subpoenas.

More alarming still, Arpaio, Thomas, and Wilenchik subpoenaed detailed information on anyone who has looked at the New Times Web site since 2004.

Every individual who looked at any story, review, listing, classified, or retail ad over a period of years.

The article the passage immediately above was quoted from, "Breathtaking Abuse of the Constitution", was written personally by the two publishers, Mike Lacey and Jim Larkin, and is as chilling as was Arpaio’s attempt to silence them. Again, it is a feature length article, but a serious must read.

This post could easily be three or four times the already tedious length and still not have room to touch on the bill of craven particulars against the Most Abusive Sheriff in America, Joe Arpaio. But it is a start, and renders an idea as to why Chairman Conyers, Representative Nadler and the others on the House Judiciary Committee have requested the civil and criminal powers of the United States Government be brought to bear on Joe Arpaio. He isn’t the toughest, he’s the most abusive. It is imperative that Attorney General Holder and DHS Secretary Napolitano heed the call and address the long overdue matter. Secretary Napolitano, of all people, ought to understand the menace to society as a whole, and the citizenry of Maricopa County in particular, that Arpaio poses. It is time for it to be stopped.

Darn. We’ll have one less Republican in Obama’s cabinet, at least until Obama nominates Mitt Romney or Newt Gingrich to the post. I’m heartbroken.

But, really, does anyone actually believe this claptrap?

However, it has become apparent during this process that this will not work for me as I have found that on issues such as the stimulus package and the Census there are irresolvable conflicts for me. Prior to accepting this post, we had discussed these and other potential differences, but unfortunately we did not adequately focus on these concerns. We are functioning from a different set of views on many critical items of policy.

Shorter Gregg: "I just completely stopped listening after the moment Obama said, ‘interested in a cabinet spot?’ and missed all his discussion of retaining the census in Democratic hands." 

Yeah, I don’t find that too plausible either.

I wonder whether Gregg simply got to the point in the vetting process where he realized that he didn’t want his life to be investigated in detail by his colleagues and the press? I mean, it was just hours after Gregg was nominated that it became clear that Gregg’s Legislative Director from 2002 to 2004, Kevin Koonce, had been trading sports and music tickets and booze for legislative favors. As the latest details on the Abramoff make clear, Abramoff and his cronies were asking for $3.5 million earmarks and the defeat of a defense appropriations bill that would have hurt Abramoff’s Native American gaming clients. Koonce’s language, "[Gregg’s office] had the proposed amendment ‘flagged,’" "I got something for you too," "Let me know if I can return the favor," and Abramoff’s language (describing a request from a potential Abramoff client), "Koonce practically lives in our various suites. We are shady," suggest Abramoff’s $10,000 investment in sports tickets did not go to waste. Koonce was delivering on Abramoff’s requests. 

Which sort of means–whether or not Gregg is a subject or a target of the investigation at the moment–his office was trading legislative favors for gifts. And those trades, whether they were made with or without Gregg’s knowledge, certainly don’t say much for Gregg’s ability to shepherd the nation’s commercial interests.

Sure, Gregg tells a nice story about how his lifetime dream was to run a census. But I suspect he’s just hoping to get out of the Senate in 2010 with his honor and his clear criminal record intact.

Immediately below, Marcy described Judge Vaughn Walker’s new homework assignment to the parties in the consolidated litigation in the Northern District of California (effectively all cases except al-Haramain and a few others to which "section 802 of the FISA Amendments Act of 2008" are not germane). If you have not read Marcy’s post, and wish to proceed into the legal weeds of this one, I heartily suggest you go back there first.

Okay, as I suggested in comments in Marcy’s post, Judge Walker is looking at the Attorney General option to certify a matter for dismissal pursuant to section 802 of the FISA Amendments Act, and as to said provision:

It is the hyper-equivalent of vagueness. The provisions that are supposed to provide the guidelines, provide … none.

Mary went to the same point but, as usual, with a lot more flesh on the bone in her comment:

… the drafting is bad. It doesn’t say that if x,y and z are met, the AG SHALL give a certification and with that certification, the telcoms walk. It says that the AG MAY give a certification that x,y and z existed and if the AG gives that certification, it’s an out. So it makes the certification discretionary to the AG, but then gives no standards on the exercise of the discretion. So the AG could, under the statute give the certifications to some and withhold it from others under the same factual settings.

So how is a court to know of the AG is complying with Congressional will vis a vis the certifications – if there are no standards specified for the exercise of discretion.

Precisely. So, let’s look at what Walker is legally up to here. It is my contention that he has pretty much determined that he is not down with the government’s program in the least, is going to take the bold move of declaring it unconstitutional and, from all appearances, do so on multiple grounds. The one at issue here is the unfettered and infinite nature and scope of the AG certification process under section 802.

First off Judge Walker posits this:

The parties are directed to address whether section 802 runs afoul of the principle the Supreme Court set forth in Yakus v United States, 321 US 414, 425 (1944):

[T]he only concern of courts is to ascertain whether the will of Congress has been obeyed. This depends not upon the breadth of the definition of the facts or conditions which the administrative officer is to find but upon the determination whether the definition sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.

But you should have some further context to understand Walker’s aim. Here is what the court actually found in in that case; from Yakus, 321 US at 426:

The standards prescribed by the present Act, with the aid of the "statement of considerations" required to be made by the Administrator, are sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether the Administrator, in fixing the designated prices, has conformed to those standards. Compare Hirabayashi v. United States, supra, 320 U. S. 104. Hence, we are unable to find in them an unauthorized delegation of legislative power.

In Yakus v. United States, the Court was evaluating the authority given to an executive branch "Price Administrator", whose job it was to determine prices of commodities during World War II, and the court found there were sufficient criteria set forth by Congress for the courts to decide, and and the people to understand the basis of the decisions rationally, i.e. how the price determinations were arrived at. In short, the court in Yakus found the situation was not so vague as to be completely arbitrary and capricious.

Appears to me that Walker thinks the situation in respect to the AG certifications in the NDCA consolidated cases do not possess such requisite identifiable criteria for determining the basis thereof as Yakus would require, and is making darn sure that he has given the government a full chance to make their case. Before he holds that they haven’t.

Secondly, in his order, Walker asks that the parties, and, again, he is clearly directing this at the government, brief as follows:

The parties are further directed, in doing so, to give consideration to two principles of statutory construction: (1) a court should treat the “plain meaning of legislation [as] conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters,’” United States v Ron Pair Enterprises, Inc, 489 US 235, 242 (1989); and (2) “[t]he canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.” Clark v Martinez, 543 US 371, 385 (2005).

Of these two demands, the key looks to be the second based on Clark v. Martinez. In this regard, here is the full operative section from Clark that Vaughn Walker is basing his inquiry upon (note Clark is a Scalia opinion and is therefore written in his typical oblique style that turns simple concepts into the nearly undecipherable):

If we were, as the Government seems to believe, free to interpret statutes as becoming inoperative when they approach constitutional limits, we would be able to spare ourselves the necessity of ever finding a statute unconstitutional as applied. And the doctrine that statutes should be construed to contain substantive dispositions that do not raise constitutional difficulty would be a thing of the past; no need for such caution, since whatever the substantive dispositions are they become inoperative when constitutional limits are approached. That is not the legal world we live in. The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.

Here, Walker is anticipating an argument he reasons the government will make to try to squirm out of their vagueness hole and, again, after giving them a full opportunity to brief it, he appears ready to bite them. The Clark argument they will try is to say, in simple terms, "Gee judge, if you can’t tell what the parameters of the statute are, you can just assume they are whatever could be appropriate right up to the Constitutional extreme". I don’t think Vaughn Walker thinks that is going to fly in this case. Neither do I.

Ladies and gentlemen, Vaughn Walker is on a mission. As most of you know, I have thought that was the case for quite some time now. But jeebus, and seriously, I have rarely, if ever, seen a judge more on top of a subject, loaded for bear and out in front of a case as we see here. It is awesome and impressive. He is anticipating what the parties are going to argue and how appellate courts are going to rule in the next set of appeals, all from a pre-trial posture. He is treating this case with the respect, depth and care that it deserves because nothing short of our Constitution and Fourth Amendment thereto is at issue. There are precious few bright lights in the dark field of justice these days; irrespective of how it all plays out in the end, so far this sure looks like one of them.

I linked earlier to the House version of the State Secrets Bill. Here’s Leahy’s announcement about the Senate version.

Leading members of the Senate Judiciary Committee have joined together to introduce the State Secrets Protection Act, a bill that provides guidance to federal courts considering cases in which the government has asserted the state secrets privilege. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), Ranking Member Arlen Specter (R-Pa.), and Committee Member Russ Feingold (D-Wis.) joined with former Committee Chairman and Member Edward Kennedy (D-Ma.) to introduce the bill Wednesday.

The legislation was initially proposed in the 110th Congress in response to the government’s assertions of the state secrets privilege in cases challenging the constitutionally of several of the Bush administration’s national security programs, including the warrantless wiretapping, rendition and interrogation programs.

Leahy said, "The State Secrets Protection Act will help guide the courts to balance the government’s interests in secrecy with accountability and the rights of citizens to seek judicial redress. The bill does not restrict the Government’s ability to assert the privilege in appropriate cases. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation. I hope all Senators will join us in supporting this bill."

Specter said, "While national security must be protected, there must also be meaningful oversight by the courts and Congress to ensure the Executive branch does not misuse the privilege," Senator Specter said. "This bipartisan legislation provides guidance to the federal courts in handling assertions of the privilege. It is designed to protect state secrets from disclosure, while preventing misuse of the privilege and enabling litigants to achieve justice in court, regardless of which party occupies the White House."

Feingold said, "A country where the government need not answer to allegations of wrongdoing is a country that has strayed dangerously far from the rule of law. We must ensure that the state secrets privilege does not become a license for the government to evade the laws that we pass. This bill accomplishes that goal, while simultaneously providing the strongest of protections to those items of evidence that truly qualify as state secrets."

Senator Sheldon Whitehouse (D-R.I.) and Senator Claire McCaskill (D-Mo.) are also cosponsors of the legislation. The Leahy-Specter-Feingold-Kennedy legislation would:

• Provide a uniform set of procedures for federal courts considering claims of the state secrets privilege
• Codify many of best practices that are already available to courts but that often go unused, such as in camera hearings, non-privilege substitutes, and special masters
• Require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits
• Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish a valid defense
• Require judges to order the government to produced unclassified or redacted versions of sensitive evidence when possible to allow cases to move forward safely
• Establish security procedures to ensure that secrets are not leaked during litigation, including closed hearings, security clearance requirements, sealed orders, and expedited appeals
• Establish congressional reporting requirements
• Address the crisis of legitimacy surrounding the privilege by setting clear rules that take into account both national security and the Constitution

The legislation was first introduced in January 2008, and was ordered reported by the Senate Judiciary Committee in April 2008. A Committee report was filed with the legislation.

They’ve got more firepower here than they do in the House–having Haggis may be very useful. And having centrists like McCaskill may win some votes.

Now let’s see if Harry Reid ever lets this get to the floor.