BREAKING: Obama Continues Bush Policy On State Secrets

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Earlier this morning, Looseheadprop wrote about the case of Binyam Mohamed, the British subject tortured at the hands of the United States at Gitmo, including having his genitals carved selectively with a scalpel. The Mohamed case is of critical significance for a variety of reasons, not the least of which is the fact that there was an oral argument in the Ninth Circuit Court of Appeals in San Francisco this morning that was to provide a crucial test of the new Obama Administration’s willingness to continue the Bush policy of concealing torture, wiretapping and other crimes by the assertion of the state secrets privilege.

From an excellent article by Daphne Eviatar at the Washington Independent at the end of January:

President Obama’s sweeping reversals of torture and state secret policies are about to face an early test.
…
The test of those commitments will come soon in key court cases involving CIA “black sites” and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used whatʼs known as the “state secrets privilege” – created originally as a narrow evidentiary privilege for sensitive national security information — as a broad shield to protect the government from exposure of its own misconduct.

One such case, dealing with the gruesome realities of the CIAʼs so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.

Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as itʼs also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that
knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.

Well, the news being reported out of Courtroom One in San Francisco is not good and indicates that the Obama Administration has continued the walk of the oppressive shoes of the Bush/Cheney regime and has formally continued the assertion of state secrets.

The best hope for transparency on Read more →

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Toyota Sings The Mercury Blues

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As the Republicans in Congress, most notably the Senate, fixate on emasculating the stimulus package, stripping it and the country of hope for success in heading off the economic death spiral we are witnessing, I want to return to another recent example of the un-American activities and bent of the Republican Caucus of legislative geniuses. I refer to this same group’s actions and illogic in relation to the American Auto manufacturer bridge loan issue that roiled little more than a month ago and still percolates near the surface of our economic woes.

Remember how Richard Shelby, Bob Corker and a pack of GOP loons made their bones by preening against the American auto industry and trying to cram American autoworker and union wages down to, and below, the level of foreign transplant wages? Of course you do because you remember the big Republican "Lizard Lie" on the myth of the $73/hr wage rate. It was all predicated on the supposed superiority of the foreign automakers. The Republicans literally were willing to make the American auto industry grovel and beg, and even talk about killing them outright, based on their claims of the superiority of the foreign automakers.

So how are those vaunted foreign automakers, that are so much more brilliant and perfect than GM and the other American manufacturers, doing these days? Well let’s check in on Toyota, which along with Honda is the supposed gold standard to the lizard brained GOP. From the New York Times:

Toyota, the world’s largest automaker, said Friday that it expected to suffer a loss this year, thanks to rapidly declining sales around the world, especially in the United States. The company is expecting its first full-year operating loss since 1937 — 350 billion yen ($3.9 billion) — more than double its previous forecast.

The company’s 2008 fiscal year ends on March 31.

It widened its forecast for an operating loss on its main automotive business to 450 billion yen, or $5 billion, attributing the larger loss to both steep declines in global auto sales and strong gains by the Japanese currency, the yen, which lowers the yen-denominated value of overseas earnings.

Ouch; not so good.

So, times are bad for even the precious to the GOP Toyota, just like GM. So what kind of implications does this news portend for Toyota’s short and long term future? Ah, glad you asked:

“Toyota is going to Read more →

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Sign the Petition: Howard Dean for HHS Secretary

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So far, there’s a lot of support in these parts for Howard Dean to be HHS Secretary. And since then, some great progressives have come out in support of Dean to be HHS Secretary: Tom Harkin:

"I think that would be a very good move," Harkin told the Huffington Post. "He brings all the background and experience. He’s very strong on prevention and wellness, which I’m very strong on. I think he’d make an outstanding secretary of HHS."

Raul Grijalva:

Six years ago Howard famously addressed a meeting of the DNC where he chastised our fellow Democrats by saying, "What I want to know is why we’re fighting in Congress about the Patient’s Bill of Rights when the Democratic Party ought to be standing up for health care for every single American man, woman, and child in this country."

Fixing health care is central to the recovery of the American economy and the security of the American family. Howard Dean is my candidate for the job. I hope he will be yours.

And Alan Grayson (via email):

"He’s progressive, he’s experienced, he’s effective, and he’s vetted."

With support for Dean growing, we’ve put together a petition to collect signatures in support of Dean. We’ll deliver these to Max Baucus next week.

Please sign the petition to support Howard Dean for HHS Secretary.

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Dan’s Rather Exciting Brief

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As you may recall, Dan Rather is in litigation against CBS, Viacom and executives Les Moonves and Andrew Heyward over his treatment after the Bush Texas Air National Guard story on 60 Minutes II. The complaint stakes out a number of claims alleging that not only was Rather improperly treated over the TANG story but but also over the abu Ghraib story on the infamous torture pictures.

The holy grail of the Rather litigation, however, has always been Dan, and thus us the public, getting substantive discovery on his case – depositions, requests for production and requests for admissions. Over a year ago the New York State trial court ordered initial limited discovery. Since then, however, the case has been hamstrung by a series of motions to dismiss and, after the core of Rather’s complaint survived, appeals (initiated by the defendants).

A critical point was reached Monday afternoon with the filing of Rather’s appellate brief (pdf file) by his attorneys. The brief is long, but provides a superb background, factual description, statement of procedural posture and detail of legal arguments being made on Dan Rather’s behalf. It is well worth a read if you are interested and so inclined.

First the good news. The positioning and quality of Dan Rather’s response to the points appealed by the trial court defendants appear strong and, at first blush anyway, would appear sufficient to fend off the attack. Bottom line, it looks very likely that Rather’s case will continue to survive and head back to the trial court for that all important and fun filled discovery.

Now the better news. It would appear that Rather has some very decent arguments for reinstating counts and defendants that the trial court has preliminarily dismissed. You see, that is one of the things about filing an appeal – sometimes the other party cross-appeals, and that is exactly what Rather has done here. So, while CBS et. al have gotten greedy wanting to have the whole case dismissed, Dan Rather has answered back "No, and I want the gains you had obtained returned to me". Of the five questions Rather has cross-appealed on, these two appear to hold the most promise to be decided by the appellate court in Rather’s favor:

4. Are fraud damages adequately pleaded if an employee alleges the fraud led to lesser compensation than the market would have provided? Supreme Court held that fraud damages were insufficiently pleaded solely because the Read more →

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Eric Holder Confirmed, 75-21

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We finally have a new Attorney General.

The no votes include (roll call here):

Barrasso
Brownback
Bunning
Burr
Coburn
Cochran
Cornyn
Crapo
DeMint
Ensign
Enzi
Kaybee Hutchison
Inhofe
Johanns
McConnell
Risch
Roberts
Shelby
Thune
Vitter
Wicker

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Kit Bond Sings a Different Song on Holder

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Here’s a liveblog of what Kit Bond had to say about any "promises" Holder made him about prosecution. You’ll note several areas of difference from the Moonie Times article:

Most notably I’ve been concerned about some of the comments related to intelligence activities that Holder made in hearings. I wanted to make sure the intelligence community has the tools it needs to protect the country. I wanted to make sure we had an AG who would keep the country safe. Discussed TSP, FISA Amendments, interrogation program, Gitmo, interrogation legislative proposals, media leak investigations. A second meeting. 

Carrier liability provisions, and propriety of investigating intelligence officials.

Confusing press reports and statements from Senators who were not in attendance. 

Neither Holder nor I made promises with respect to prosecutions. Holder provided additional insight that assures me he will keep the country safe. Assurance given to Kyl concerning investigation of intelligence officials on interrogation. 

Holder expanded on these remarks and explained how he reached this conclusion. His public emphasis on those who followed DOJ guidance, I told him and I believe he understood that trying to prosecute political leaders would generate a political firestorm. 

Carrier liability. He believed he would unless circumstances changed. I asked if he could explain changed circumstances. It would be difficult for circumstances to change since all this happened in the past.  Didn’t give me specific idea of changed circumstances. Given that those certifications are based on simple legal facts, I’m confident he’ll reach the same conclusion as Mukasey. I can’t emphasize enough the importance of the carrier liability.

Mr. Holder is not read in, or given access, to the TSP or the other programs, it would not be advisable to make statements about either program without the facts. I enjoyed his willingness to withhold judgement until he had the fact. I believe he will take good ideas from whereever they come.[my emphasis]

Here’s the relevant passage from the Moonie Times:

President Obama’s choice to run the Justice Department has assured senior Republican senators that he won’t prosecute intelligence officers or political appointees who were involved in the Bush administration’s policy of "enhanced interrogations."

Read more →

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Holder on State Secrets

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The Senate debate on Eric Holder’s nomination is on CSPAN2 right now. Tom Coburn is on the floor now pretending that Holder is going to bring back the Fairness Doctrine and take away your guns.

But Holder’s nomination is bound to pass, with large margins, when they vote this evening. So it’ll be interesting to see how Holder implements these highly parsed views, written in response to questions from Russ Feingold, courtesy of Secrecy News.

3. I’m concerned that the outgoing administration may have used the "state secrets privilege" to avoid accountability for potentially unlawful activities, including warrantless wiretapping and rendition. Courts tend to be very deferential to these privilege claims, so there’s certainly room for abuse. Will you commit to reviewing all pending cases in which DOJ has invoked the state secrets privilege to make sure the privilege was properly invoked, and withdraw any claims of privilege that are not necessary to preserve national security?

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

4. One reason that the state secrets privilege is so vulnerable to abuse is that courts don’t always use the tools that are at their disposal to review privilege claims, such as in camera review of the privileged evidence. I cosponsored the State Secrets Protection Act (S. 2533 in the 110th Congress), with Sen. Kennedy and Sen. Specter, to require courts to engage in meaningful review of these claims. Would you support enactment of this bill?

I appreciate the Committee’s concern about potential abuses of the state secrets privilege and will work to ensure that assertions of the privilege are made only when legally and factually appropriate. I will consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment on whether to support this or other particular legislation.

"I will review significant pending cases." That would, presumably, include the al-Haramain case. Of course, that says only that he would review the cases.

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Rahm’s Not So Secret Plans

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Say, have you heard that Rahm wants to return to Congress in two years so he can eventually run for Speaker? Sure you have, because we’ve covered it here. But it’s sure interesting the way folks in Chicago treat it as a widely known fact, yet one you can’t speak about.

White House Chief of Staff Rahm Emanuel is interested in potentially returning to Chicago someday to reclaim the congressional seat he held until a month ago, a candidate running to replace him said Sunday.

When 11 Democrats at the first 5th Congressional District forum were asked whether they have had direct or indirect conversations with Emanuel about being a "place holder" for the seat, only state Rep. John Fritchey (D-Chicago) said he had.

"I spoke with Rahm maybe a week or two after he had accepted the job of chief of staff," Fritchey said. "At that time, he had commented to me that he may be interested in running one day again for the seat. I told him that should I be fortunate enough to run, and should I be fortunate enough to win the seat, I would look forward to campaigning against him."

The state lawmaker then appeared to sense he might have been a bit too open about the conversation he had with Emanuel, who represented the district from 2003 through 2009, before leaving to work for President Barack Obama.

"If I’m going to put words in anybody’s mouth, it’s not going to be Rahm’s," he said. "So, let me phrase it as exactly as I can for a conversation that took place three months ago. But that was a statement that he may be interested in running for the seat at some point down the road." [my emphasis]

Oops. I guess you’re not allowed to speak the truth about Rahm in Chicago, huh?

Add in the little difficulty that "a week or two after he had accepted" the COS job would put it in the November 13 to 20 timeframe–or precisely the time frame when Blago seemed to be preparing to send John Wyma out to talk to Rahm about just these plans and when Michael Sneed was reporting on it. But that was all before it was revealed that whatever conversations Rahm had with Blago were helpfully taped by the FBI, after which point it became important to cover up any of those conversations. 

No wonder Fritchey thought better of admitting Read more →

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Super Bowl 43 Trash Talk: The Red & The Black

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This is it baby, the big finale. All the marbles come down to these two: One Red. One Black. One will leave with the Lombardi Trophy in hand, the other with the regret of the world’s biggest runner-up percolating in their gut for the entire off season, maybe for the rest of their lives.

Parting is such sweet sorrow; nevertheless, with this game will come the end of another season of football trash talk here at Emptywheel. Yes, we occasionally whip out a trash talk without football (March Madness and the start of the F1 Circus are certainly possibilities), but it isn’t the same without the pigskin in the air.

What a season it has been, from the tantalizingly close to perfect season by the Pats that came just a few points short to Good Eli and the Gents in Super Bowl 42, the entire complexion of the 2009 season inexorably changed with the loss of Tom Brady in the first few minutes of this year. For eleven games Brett was Favre and all was magical; then it wasn’t. The San Diego team looked like the Clippers for the first twelve games, then they caught lightning and were Chargers on into the playoffs where they again went Norval. When it was all said and done, it was the Stillers and the Cardinals, yes the Arizona freaking Cardinals, left standing. And, thus, here we are.

Who are the Arizona Cardinals’ fans? I’m not quite sure, but I appear to live in the town that houses almost all of what few there are of them. Oh, and even here I have not noticed the whole town being painted red and buildings redecorated in team colors and insignias like it was purple for Barkley and the Suns in 1993 and the Diamondbacks in 2001. Da birdz de rojo get no respect I tell ya. And if all that were not bad enough, now That One is climbing on the dogpile,

Q. The Steelers or Cardinals, sir?

THE PRESIDENT: I have to say, you know, I wish the Cardinals the best. Kurt Warner is a great story and he’s closer to my age than anybody else on the field, but I am a long-time Steelers fan. Mr. Rooney, the owner, was just an extraordinary supporter during the course of the campaign. Franco Harris was campaigning for me in Pittsburgh. So Read more →

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Buh Bye Blago

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59-0 to oust the now former Governor.

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