Pete Hegseth and the Radical Queer Wing of Al-Qaeda

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Where Murder Dances With Law

A while back, maybe a decade and change ago during the Obama administration, I was drinking with some nerdy friends in a San Francisco hackerspace. We got to talking about National Security law, hacktivism, and terrorism. I had been Wired’s correspondent on Anonymous, and probably understood The hacktivist collective better than anyone. They had recently tore through the net, hacking companies and governments like they were wet paper towels. I was explaining to my fellow nerds that Anonymous was very similar to Al-Qaeda. Though in form only, not in content.

One of Anonymous' logos, a suit with a question mark instead of a head

Anonymous, the biggest story going, in 2011.

There was no crossover between the shit-talking data “liberators” I had embedded with in 2011/12 and the religious extremist terrorist group founded by Osama bin Laden. They had no members in common, (that I ever knew of) and the ethos of the two groups were so far apart as to not just be in opposition, but to be mutually unintelligible.

A lawyer friend also drinking with us explained that US law struggled to categorize these kinds of leaderless collectives. Al-Qaeda has leaders, but they’re more the winners of a local popularity contest than they are formally appointed, ordained, coronated, or what not.

The answer legislators came up to deal with these groups with was a bit of legalistic nailing jello to a wall. Much like Anonymous, if you wanted to go start your own Al-Qaeda cell, you just did it. It was entirely possible that as an Al-Qaeda terrorist, you would talk your friends into doing some terrorism with you. Then presumably go and blow something up, possibly yourself, possibly random innocent victims, or both.

Anons also would pick a target, usually a perceived terrible company or government, and try to hack the hell out of it. They’d bring down servers, steal secret data and dump it on the net for anyone to see, jam the websites of badly behaved companies, and so forth.

By being essentially more internet/media brand than traditional organization, both Al-Qaeda and Anonymous were particularly hard to prosecute as a group, or even legislate against. They were collectives architected by speech acts, mostly on the internet. Law enforcement could and did go after both groups, but to do so they had to find someone breaking a law and pursue them for that one single act of law breaking.

Unlike the Mob or a criminal gang, there was no illicit organization to target, there was just “the memes.” When you caught one Anon, you caught exactly one Anon. Even in the case of the notorious Anonymous operation run by the FBI, they only managed to arrest one person. (That was a shit show, mainly put together to make Shawn Henry’s exit from the FBI and move over to Crowdstrike as lucrative as possible, as far as I could tell.)

Lawmakers eventually found a way around the strange status of groups like Al-Qaeda, but it was pretty terrible lawmaking. To make a very long set of laws and recent history very short, the provision basically amounted to this: if you called yourself Al-Qaeda, you were Al-Qaeda. That meant you could be killed, on sight, without due process, because you were Al-Qaeda. That name meant that you were an enemy of the state.

I found this situation so absurd that I started the Radical Queer Wing of Al-Qaeda. I was curious how I could be (theoretically) the most murderable non-combatant possible, both by my own government and a terrorist organization. We (mostly me) were a pretty tame branch of Al-Qaeda.  All our bombs were glitter bombs, and we touted ourselves as the most fabulous of the Al-Qaedas. Straight people were not allowed to join our Al-Qaeda, but they could hang, if they were cool.

The lawyer friend (who declined our offer to join the Radical Queer Wing of Al-Qaeda, as he was straight and also definitely not going to do that) confirmed that, yes, maybe, even probably, I could be killed on sight, without due process, under the existing law. He pressed me to make sure I understood that no one was going to do that, it would simply never happen or even come up. This was all a hypothetical. “But they could,” I replied, “And that’s the important part!” The weirdly violent ridiculousness of the situation was the point.

We all continued drinking. Later, I had a few Radical Queer Wing of Al-Qaeda brunches at my co-living space in San Francisco, before getting bored and running off to find new ways to get in fights with, and make fun of, my government.

A 21st Century of Rot

Woman holding a sign that reads "The Patriot Act is not patriotic action"

2011: We’ve been protesting this crap for a hot minute.

George Bush’s 2001 PATRIOT act had so many horrific provisions to fight and make fun of, and even as some parts were repealed, others persisted into future administrations, and still others became not just part of law, but also part of culture. The War on Terror normalized killing the bad guys, because they were bad. Because we were told they were bad. Americans mostly learned not to question their badness, or the slow and sneaky erosion of our rights to the presumption of innocence.

Obama not only kept the PATRIOT Act provisions in place, he expanded them, including the open killing of children. Obama loved murder by drone. Famously, he killed a 16-year-old American citizen, Abdulrahman Anwar al-Awlaki, a few days after he’d already killed the kid’s father. Killing people with drones in the Obama era became common enough that it didn’t really make the news after a while. Obama seemed to have loved a good techno-assassination.

He held “Terror Tuesdays” every week where he’d work with staff to pick a new person to kill. Presumably, what Trump calls “bad hombres,” but are, one way or another, still people. They were people we were once required to provide with due process, to be presumed innocent if arrested, be they citizens of the United States or not, because that’s who we were supposed to be. But now we call it war, and then murder some guys because they’re in boats off the coast of Venezuela.

Well before Trump, we had left the principles of the Fifth Amendment (due process) dying in a ditch. He’s gone on to attack free speech. Trump shat on the right to assemble (using AI), denied literally thousands the right to trial before forced deportation. He even tried to strike out birthright citizenship with a stroke of his sharpie. His government has engaged in unreasonable searches and seizures. Trump has tried to confiscate the rights of both the people and the States. Trump did not merely come to weaken Bill of Rights, he came to destroy it altogether. In this task, he has faced barely any resistance, in part because the last few presidents loosened the bolts on the system for him.

No one should be surprised at this point that Whiskey Pete Hegseth kills people with impunity. He’s tacked on “terrorist” to a narco- prefix to make the whole thing look vaguely legal, as if that one magical word abrogates all human rights. But “Narco-terrorist” is just a term he made up to justify what remains murder. That is what is going on in the Caribbean. It’s the logical conclusion of what I was trying to parody all those years ago with my Al-Qaeda glitter bombs — laws that allow for extrajudicial killing, based on the slippery idea that anything we don’t like is terrorism, can only arrive at the place we are now. It’s not quite within legal regimes, but colored by laws that seem to contradict the Constitution in both meaning and plain language.

But here we are, and here is where we have to come back from.

Pete Hegseth’s campaign of terror against poor fishermen in the Caribbean may have taken us out of the rule of law more than any other single act, but Bush and Obama prepared the ground for Trump. This situation would be recognizable to the Founding Fathers as the kind of thing that we rebelled against those centuries ago.

Osama bin Laden and Al-Qaeda never really had the power to destroy America, anymore than gays or communists did. But he invited us to destroy ourselves. Standing on the shoulders of the last few administrations, Trump has taken up bin Laden’s dream of making America into a pseudo-religious hellscape of gerontocratic corruption and vice, just with more fake Jesus and less fake Muhammad.

It’s Not Too Late for US

We don’t have to settle for this. We can save America. Somewhere beneath the layers of corporate corruption, bigotry, and jingoism, we still have values. We are often good neighbors. Americans have some of the highest rates of volunteerism in the world — we don’t just sit at home, we work the problems around us, and we go work abroad. We donate, but we also get off our butts and help people. To defeat that, the ghouls running our government have tried to convince us that no one else matters. Right now, we have to remember who we are and take care of each other. We have to protect ourselves and our communities against the avaricious.

No Kings protest, earlier this year

No Kings was one of the largest protests in US history. We still have it in us, damn it.

This administration tried to make us selfish. But they are failing. According to polling by YouGov and the Economist, Trump has 38% approval, and falling. The message that we should work together to make our world a better place was key to Zohran Mamdani’s recent win in New York, and it’s key to how we rally Americans against this venal administration. But it does mean we have to look past our own troubles and begin to engage in community together.

Trump voters voted on prices more than anything else. They didn’t see the larger picture, but it’s coming into focus now.

Donald Trump’s grand bet is that our selfishness will keep us weak and atomized, but we can prove him wrong. When we reach out and take care of each other, when we organize, rally, and commit, we build the community we need to defeat this rising darkness.

A previous version of this piece described Obama as targeting Abdulrahman Anwar al-Awlaki, which was incorrect He was killed in a targeted attack, but he was not the target himself. I regret the error.

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FDL: Looking At Things As They Were; Dreaming Of Things That Never Would Be

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UnknownThere are multiple better voices here to address the apparent demise of Firedoglake, whether briefly or at length. I was, in a way, an interloper by chance. By fortune, actually. Because I was asked, for inexplicable reasons I will never fully understand, but will always treasure, to join Emptywheel when it morphed from The Last Hurrah into the Emptywheel blog at Firedoglake. Yes, I had been a decent contributor to both Next Hurrah, and, often, FDL, but still it was a bit of a shock when it came.

I can honestly say I, as a result, encountered some of the finest and most genuine people in my life. That happened because of FDL, both as to the lifetime friendships with people that are here with us, including, most notably, Marcy, and all the others. Marcy, Rayne, Jim White, Ed Walker, Rosalind….and, please, let us not forget Mary and some of the others no longer here. All that came, at least for me, out of seeing Scooter Libby coverage early on nearly a decade ago. At FDL.

This medium may be digital, but it has wings and real life beyond the URL’s and binary code or whatever. The people I have met and interacted with as a result of being around FDL were, with little exception, remarkable, intelligent, wonderful and I think the world has been made better by them.

So, to Jane Hamsher, Christy Hardin Smith, Siun, Pachacutec, Richard Taylor, Karl, Suzanne, Bev Wright (Bev and Book Salon was one of the most awesome things ever), Ellie, each and every one of the fantastic moderators who were the ones who kept the enterprise really alive for so long, and a host of others that allowed me to participate with them, thank you. There are too many to list, and I love one and all. You will all be missed, and I apologize to the too many other friends I met there and have not listed. You know who you are, and thank you.

I am starting to see eulogies all over the web, and most are quite decent. FDL was right, and early so, about the rule of law, the Cheney Administration, torture, surveillance, marriage equality and ACA/Obamacare, just to name a few of the plethora of topics breached on her pages. The voices have not died, but, now, the common enterprise has.

I will leave it to others to say where exactly FDL fits into the hierarchy and history of the blogosphere, but it was certainly up there. Thanks, and vaya con dios FDL.

Update, from emptywheel: bmaz forgot to mention DDay, but I’m certain it was an oversight.

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A Tale of Celebrity Bon Vivant Civil Servants and Access Journalism

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Screen Shot 2015-07-02 at 12.27.12 PMThere is a distinct problem in this country with excessive inbreeding of politicians, lobbyists and journalists. In a country where so many are now ruled by so few in power, it is becoming, if not already become, the biggest threat to American democracy. I would add in corporations, but, heck, who do you think the politicians, lobbyists and journalists represent at this point?

Now, corporations and their money through their mouthpiece lobbyists have long had a stranglehold on politics, whether through the corps themselves or their wealthy owners. But the one saving mechanism has historically been claimed to be the “Fourth Estate” of the American press who were there on behalf of the people as a check on power. But what if the Fourth Estate becomes, in fact, part of the power? What then?

What if the crucial check on federal and state power is by journalists who are little more than stenographers clamoring for access and/or co-opted social friends and elites with the powers that be? What if the sacrosanct civil servants of this country are nothing but Kardashian like shills out for a free gilded ride before they leave office to cash in with private sector riches befitting their holiness?

Golly, if only there was an example of this incestuous degradation. Oh, wait, get a load of this just put up by Kate Bennett’s KGB File at Politico:

In a generally stay-at-home administration, one member of the Obama Cabinet is proving to be the toast of the town. Jeh Johnson, the oh-so-serious-on-the-outside secretary of Homeland Security, is fast becoming Washington’s No. 1 social butterfly, dining out at posh restaurants like CityCenter’s DBGB, as he did last week with a small group that included Amy Klobuchar, Steny Hoyer, CNN’s Jim Sciutto, the New York Times’ Ashley Parker, author Aaron Cooley, and lobbyist Jack Quinn and his wife Susanna.

For a guy who’s been running a 24/7 war against terror since 2013, Johnson seems to have a lot of time to trip the light fantastic. He can often be seen enjoying regular catch-up sessions with BFF Wolf Blitzer at Café Milano (back table, naturally); and mingling at black-tie soirées, such as the Kennedy Center Spring Gala, the Opera Ball, or a champagne-fueled VIP garden party at Mount Vernon to toast French-American relations, all of which Johnson attended—and stayed at beyond the requisite cocktail-hour schmooze.
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“There’s rarely an invitation he’ll turn down,” says an aide to Johnson, who prefers to remain anonymous, of his boss’s penchant for spending three-to-four evenings a week at social functions — and actually enjoying them.

I am not going to bother to dissect that, it speaks all too clearly for itself. And it is hard to figure which is more pukeworthy, the bon vivant civil servant or the elitism displayed by the supposed watcher last bastion journalists. It is all of the same cloth.

What’s wrong in Washington DC? Here you go. When the pathology on the boneyard of American democracy is run, this vignette will appear.

Maybe this is why Tom Vilsack could find a spare couple of hours out of one of his days to explain in a deposition why he and the Obama Administration knee jerkily demanded Shirley Sherrod’s resignation based upon a crank fraudulent video by a schlock like Andrew Breitbart.

Because “Executive Privilege” now means “Privileged Executives” who can party all night with their elitist journalistic pals and screw the rest of the government, and people it serves, during the day. Just like the Founders envisioned obviously.

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Beautiful Equality Comes To Marriages In America

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Screen Shot 2015-06-26 at 8.10.49 AMLove will find a way, and it finally has. There are many, many friends I am thinking of right now, and they all know exactly who they are. Congratulations, and it was far too long coming. Here is the opinion.

EQUALITY

There is so much to say, that it is hard to know what to actually say. There are many quotes like this one, but it is indicative of the decision:

“laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

What I don’t find in the majority decision, as wonderful as it is, is discussion of heightened scrutiny, strict scrutiny, or other clear cut, across the board protection for the status of sexual identity. And that is disappointing. Also why I cried bit when SCOTUS, two years ago to this very day, callously refused to take the incredibly wonderful tee shot that Vaughn Walker gave them in the Proposition 8 case previously.

I guess the handwriting was on the wall when even the old liberal lion Steve Reinhardt, a man I have met, and a judge I truly love and revere, pulled up short and did not have the balls to take the root concept of sexual identity “equality” where it naturally flowed when he had the pen in his wise hand. But he didn’t then, and his old friend Tony Kennedy has not today.

So, while there is so much to cheer right this moment, we, and this country, are still far from where we need to be with regard to inclusion of all our citizens in the concept of equality. It is more than black and white, it is straight, gay and trans too. We are all on this patch of earth together, and we all are equal, and that needs to be admitted legally by the highest court in the land and understood by all the people it serves.

So, there are still miles to be traveled. Let the four, count them four, spittle laced, bigoted, backwards, and disgusting dissents in the Obergefell decision speak for themselves. Honestly, they make me want to puke. For all that were celebrating the enlightened liberal thought of Chief Justice John G. Roberts yesterday, today is a rough reminder of who and what he really is. And you really have to read Scalia and Alito to understand the fucked up pathology of the dissenters. Wow.

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A Big Day at SCOTUS on Obamacare and Fair Housing

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JusticeA little more than two hours ago, a fairly monumental day at the Supreme Court got underway. Two big boxes of opinion were brought out signaling at least two, and perhaps as many as four, new decisions were going to be announced. It was only two, but they are huge and critically important decisions King v. Burwell, better known as the “Obamacare case”, and Texas Dept of Housing v. Inclusive Communities Project, better known as the Fair Housing case.

Both King and Texas Housing are big, and both have been the cause of serious apoplexy and fear among liberals and progressives. And both were decided very much in the favor of the liberal position, so it was a very good day on both issues.

First off is King v. Burwell, and the full opinion is here. It is a 6-3 opinion written by Chief Justice Roberts. Many people seem shocked that the majority was 6-3. I am not. While I thought the challenger King plaintiffs had a cognizable legal argument, it always struck me as a losing one, and one the Chief Justice was unlikely to sign off on after his sleight of hand to keep the ACA alive in the earlier NFIB case.

Similarly, though Anthony Kennedy was a bigger concern because of his states rights history, he has a long history on protecting citizens on social justice issues (which is why we are about to get marriage equality, maybe as soon as tomorrow). And, once Obamacare was upheld in NFIB, and all the millions of additional Americans had been given health insurance access (which, let us keep in mind, is still different than actual healthcare), it really became a social justice issue, and thus one Kennedy would be very troubled to strip away.

As to the general overview, Rick Hasen at Election Law Blog has a great summary:

Before the case, so much ink was spilled (and more virtual ink virtually spilled) on the question of deference to the IRS’s interpretation of ambiguity under the statute (under the so-called “Chevron” doctrine) as well as principles of federalism, which were used to argue for results for and against the Administration in the case. There were also questions about the standing of various plaintiffs. There were arguments about the intent of the drafters, and what MIT economist Gruber said, or may have said, or may have misspoken about the way the law was supposed to work. In the end, the Court rejected application of Chevron deference to the IRS and federalism made no appearance. Nor did standing or Gubert get discussed. Instead the Court’s analysis went basically like this:

The question whether tax subsidies applied to poor people in states that did not set up their own health care exchange is important, so important that it is hard to believe that Congress would have delegated that question to an agency (and particularly to the IRS, whose job it is to collect revenue not design health care policy). So there is no “Chevron” deference on the question. The court has to use its tools of statutory interpretation to decide the case. The law, read as a whole, is ambiguous. It is certainly possible to read the challenged language as giving subsidies only to people in state exchanges and not in the federal exchange. But there are other parts of the law, read in context, that only make sense if subsidies apply to those in state or federal exchanges. In such an ambiguous case, it is the purpose of the law that should govern. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

Go read all of Rick’s post, it is also notable for its explanation as to why King is likely the last word on the ACA as a viable entity and Obamacare is here to stay. I concur.

I would like to point out one aspect of the King decision I find particularly rewarding – the lack of attention to all the extrinsic noise that has been generated over the many months the King case was pending by all the crazed pundits on both sides of the issue at heart. Absent was all the relentless sturm and drang about standing, loss of standing, federalism, what Hans, err Jon, Gruber said or didn’t say, post hoc interviews with Congress members, their staff and lobbyists and what it meant, and all other sundry sorts of faux legislative history by people that apparently would not recognize real “legislative history” if it hit them in the butt. That is very satisfying thing for somebody that thinks appellate decisions should, at their core, be based on the statutes, precedence and the record on appeal.

For this I am thankful for the clarity and cleanliness of Roberts opinion. As a side note, the majority’s scuppering of the Chevron basis has created a side issue among us in the legal chattering class as to whether it signals a weakening of the “Chevron Doctrine”. Rick seems to think there is a fundamental weakening here. I am not so sure of that at all, even though I have had sincere problems with Chevron pretty much as long as I have been practicing law, as it gives far too much deference to often out of control administrative agencies, and the appellate burden is very onerous to overcome bad administrative rulings.

We shall see how the components of today’s decision in King play out in the future, but it was a very good day for the law, and the ACA, today.

The second, and also huge, case handed down today is the Texas Fair Housing decision, and the full opinion is here. Although it will be overshadowed today by the more famous (infamous?) King Obamacare decision, the Texas case is absolutely critical to the ability to fight and control discrimination.

As the excellent Lawrence Hurley reports for Reuters:

On a 5-4 vote in a major civil rights case, the court decided that the law allows for discrimination claims based on seemingly neutral practices that may have a discriminatory effect. Justice Anthony Kennedy, a conservative who often casts the deciding vote in close cases, joined the court’s four liberals in the majority.

The ruling also was a triumph for President Barack Obama and his administration, which had backed Inclusive Communities Project Inc, a nonprofit group in Texas that claimed the state violated the law by disproportionately awarding low-income housing tax credits to developers who own properties in poor, minority-dominated neighborhoods.
…..
Although a broad win for civil rights advocates on the legal theory, Kennedy, writing for the court, indicated in the ruling that the Texas plaintiffs could ultimately lose when the case returns to lower courts.

The court was considering whether the 1968 law allows for so-called disparate impact claims in which plaintiffs only need to show the discriminatory effect of a particular practice and not evidence of discriminatory intent. There was no dispute over the law’s prohibition on openly discriminatory acts in the sale and rental of housing.

Kennedy wrote that Congress indicated in 1988 when it amended the law that it intended disparate impact claims to be available.

“It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification,” Kennedy added.

Kennedy also made clear there are limits to the types of claims that can be brought, saying that “statistical disparity” alone is not enough. Plaintiffs must “point to a defendant’s policy or policies causing that disparity,” Kennedy added.

As Adam Serwer said on Twitter (here and here), “banks and insurance companies have been trying to tee up this case for years because they thought the Roberts court would rule in their favor” and “without this law, it’s unlikely any of the banks would have paid any price for trapping minorities in bad loans regardless of credit”. That is right. But it goes further than that, the “disparate impact” claim is one of the most important tools available to fight discrimination that may not be apparent on the face of a cagily crafted provision or business model policy, but which nevertheless is effected by it. Discriminatory animus has gotten very sophisticated, and this tool under the Fair Housing Act of 1968 is necessary to have to fight it.

Texas Fair Housing was a 5-4 decision authored, somewhat surprisingly, by Anthony Kennedy where he joined the four justices of the “liberal bloc”. It is yet another indication of where Tony Kennedy is on “social justice” issues, again a trend that augurs well for marriage equality. We shall know soon enough!

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Loretta Lynch Is A Dubious Nominee For Attorney General

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CryingJusticeLoretta Lynch is an excellent nominee for Attorney General, and her prior actions in whitewashing the blatant and rampant criminality of HSBC should not be held against her, because she didn’t know that at the time she last whitewashed that criminal enterprise, right?

No. Nothing could be further from the truth.

This is a cop out by Lynch’s advocates. Lynch either knew, or damn well should have known. She signed off on the HSBC Deferred Prosecution Agreement (DPA), if she was less than fully informed, that is on her. That is what signing legal documents stands for….responsibility. Banks like HSBC, Credit Suisse, ING etc were, and still are, a cesspool of criminal activity and avoidance schemes. Willful blindness to the same old bankster crimes by Lynch doesn’t cut it (great piece by David Dayen by the way).

But, all the above ignores the Swiss Alps sized mountains of evidence that we know Lynch was aware of and blithely swept under the rug by her HSBC DPA. So, we are basically left to decide whether Lynch is a bankster loving toady that is her own woman and cravenly whitewashed this all on her own, or whether she is a clueless stooge taking orders to whitewash it by DOJ Main. Both views are terminally unattractive and emblematic of the oblivious, turn the other cheek to protect the monied class, rot that infects the Department of Justice on the crimes of the century to date.

And that is only scratching the real surface of my objections to Lynch. There are many other areas where Lynch has proven herself to be a dedicated, dyed in the wool “law and order adherent” and, as Marcy Wheeler artfully coined, “executive maximalist”. Lynch’s ridiculous contortion, and expansion, of extraterritorial jurisdiction to suit the convenient whims of the Obama Administration’s unparalleled assault on the Rule of Law in the war on terror is incredibly troubling. Though, to be fair, EDNY is the landing point of JFK International and a frequent jurisdiction by designation. Some of these same questions could have been asked of Preet Bharara (see, e.g. U.S. v. Warsame) Loretta Lynch has every bit the same, if not indeed more, skin in the game as Bharara, whether by choice or chance.

Lynch has never uttered a word in dissent from this ridiculous expansion of extraterritorial jurisdiction. Lynch’s record in this regard is crystal clear from cases like US v. Ahmed, Yousef, et. al. where even Lynch and her office acknowledged that their targets could not have “posed a specific threat to the United States” much less have committed specific acts against the US.

This unconscionable expansion is clearly all good by Lynch, and the ends justify the means because there might be “scary terrists” out there. That is just dandy by American “executive maximalists”, but it is toxic to the Rule of Law, both domestically and internationally (See, supra). If the US, and its putative Attorney General, are to set precedents in jurisdictional reach on common alleged terroristic support, then they ought live by them on seminal concerns like torture and war crimes under international legal norms. Loretta Lynch has demonstrated a proclivity for the convenience of the former and a toady like disdain for the latter.

And the same willingness to go along to get along with contortion of the Rule of Law in that regard seems beyond certain to extend to her treatment of surveillance issues and warrant applications, state secrets, over-classification, attack on the press and, critically, separation of powers issues. Those types of concerns, along with how the Civil Rights Division is utilized to rein in out of control militarized cops and voting rights issues, how the OLC stands up to Executive overreach, whether OPR is allowed to continue to shield disgraceful and unethical AUSAs, and whether she has the balls to stand up to the infamously insulated inner Obama circle in the White House. Do you really think Loretta Lynch would have backed up Carolyn Krass and OLC in telling Obama no on the Libyan War Powers Resolution issue?

For my part, I don’t think there is a chance in hell Lynch would have stood up to Obama on a war powers, nor any other critical issue, and that is a huge problem. Krass and Holder may have lost the Libyan WPR battle, but at least they had the guts to stand up and say no, and leave a record of the same for posterity.

That is what really counts, not the tripe being discussed in the press, and the typically preening clown show “hearing” in front of SJC. That is where the rubber meets the road for an AG nominee, not that she simply put away some mobsters and did not disgrace herself – well, beyond the above, anyway (which she absolutely did) – during her time as US Attorney in EDNY. If you are a participant in, or interested observer of, the criminal justice system as I am, we should aspire to something better than Eric Holder. Holder may not have been everything hoped for from an Obama AG when the Administration took office in January of 2009, but he was a breath of fresh air coming off the AG line of the Bush/Cheney regime. Loretta Lynch is not better, and is not forward progress from Holder, indeed she is several steps down in the wrong direction. That is not the way to go.

The fact that Loretta Lynch is celebrated as a great nominee by not just Democrats in general, but the so called progressives in specific, is embarrassing. She is absolutely horrible. If Bush had put her up for nomination, people of the progressive ilk, far and wide, would be screaming bloody murder. Well, she is the same person, and she is a terrible nominee. And that does not bode well for the Rule of Law over the remainder of the Obama Administration.

And this post has not even touched on more mundane, day to day, criminal law and procedure issues on which Lynch is terrible. And horrible regression from Eric Holder. Say for instance pot. Decriminalization, indeed legalization, of marijuana is one of the backbone elements of reducing both the jail and prison incarceration rate, especially in relation to minorities. Loretta Lynch is unconscionably against that (See, e.g., p. 49 (of pdf) et. seq.). Lynch appears no more enlightened on other sentencing and prison reform, indeed, she seems to be of a standard hard core prosecutorial wind up law and order lock em up mentality. Lynch’s positions on relentless Brady violations by the DOJ were equally milquetoast, if not pathetic (See, e.g. p. 203 (of pdf) et. seq.). This discussion could go on and on, but Loretta Lynch will never come out to be a better nominee for Attorney General.

Observers ought stop and think about the legal quality, or lack thereof, of the nominee they are blindly endorsing. If you want more enlightened criminal justice policy, to really combat the prison state and war on drugs, and to rein in the out of control security state and war on terror apparatus, Loretta Lynch is a patently terrible choice; we can, and should, do better.

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Cuba Libre! A Momentous Shift in Relations

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Without any question, the news of the day is the direct turnabout in relations between the United States and Cuba announced this morning. There is a rather long list of areas in which many people, including me, have profound disappointment with Barack Obama over. Lack of accountability for torture is but the latest and greatest in the news consciousness of the attuned public. But today is not such a day; today Barack Obama has risen to at least part of his once heralded promise. Today, Mr. Obama has my love and affection. Today is one of the type and kind of foreign policy, whether toward middle east or other global neighbors, moments promised in Cairo and rarely, if ever, fulfilled in tangible deeds instead of words. So, today, sincere thanks and appreciation to President Obama.

Here are the basics from the AP:

The United States and Cuba have agreed to re-establish diplomatic relations and open economic and travel ties, marking a historic shift in U.S. policy toward the communist island after a half-century of enmity dating back to the Cold War, American officials said Wednesday.

The announcement came amid a series of sudden confidence-building measures between the longtime foes, including the release of American prisoner Alan Gross, as well as a swap for a U.S. intelligence asset held in Cuba and the freeing of three Cubans jailed in the U.S.

President Barack Obama and Cuban President Raul Castro were to separately address their nations around noon Wednesday. The two leaders spoke by phone for more than 45 minutes Tuesday, the first substantive presidential-level discussion between the U.S. and Cuba since 1961.

Wednesday’s announcements followed more than a year of secret talks between U.S. and Cuban officials in Canada and the Vatican. U.S. officials said Pope Francis was personally engaged in the process and sent separate letters to Obama and Castro this summer urging them to restart relations.

This news alone would have constituted something earth shattering, but there is much more than just that. In fact, the AP laid out the merest of backgrounds with that opening. There is much, much, more. I have the official press release, and Read more →

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Torture? Obviously, But What About Litany Of Other Crimes?

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So, just a quick thought here, and with a little prompting by Jon Turley, obviously there is torture, and outright homicide thereon, spelled out and specified by the SSCI Torture Report. As I have said on Twitter, there are many things covered in the SSCI Torture Report and, yet, many things left out.

There are too many instances in the SSCI Torture Report to catalogue individually, but let’s be perfectly clear, the failure to prosecute the guilty in this cock up is NOT restricted to what is still far too euphemistically referred to as “torture”.

No, the criminality of US Government officials goes far beyond that. And, no, it is NOT “partisan” to point out that the underlying facts occurred under the Cheney/Bush regime (so stated in their relative order of power and significance on this particular issue).

As you read through the report, if you have any mood and mind for actual criminal law at all, please consider the following offenses:

18 U.S.C. §1001 False Statements

18 U.S.C. §1621 Perjury

18 U.S.C. §1505 Obstruction of Justice

These are but a few of the, normally, favorite things the DOJ leverages and kills defendants with in any remotely normal situation. I know my clients would love to have the self serving, toxically ignorant and duplicitous, work of John Yoo and Jay Bybee behind them. But, then, even if it were so, no judge, court, nor sentient human, would ever buy off on that bullshit.

So, here we are. As you read through the SSCI Torture Report, keep in mind that it is NOT just about “torture” and “homicide”. No, there is oh so much more there in the way of normally prosecuted, and leveraged, federal crimes. Recognize it and report it.

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SSCI Torture Report Key: They Knew It was Torture, Knew It Was Illegal

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CryingJusticeOkay, here are the critical working documents:

The SSCI Torture Report

The Minority Response to SSCI Torture Report

Dianne Feinstein’s Statement

But, without any question, my best early takeaway key is that the United States Government, knew, they bloody well knew, at the highest levels, that what was going on in their citizens’ name, legally constituted torture, that it was strictly illegal. They knew even a “necessity” self defense claim was likely no protection at all. All of the dissembling, coverup, legally insane memos by John Yoo, Jay Bybee et. al, and all the whitewashing in the world cannot now supersede the fact that the United States Government, knowing fully the immorality, and domestic and international illegality, proceeded to install an intentional and affirmative regime of torture.

Here, from page 33 of the Report, is the language establishing the above:

…drafted a letter to Attorney General John Ashcroft asking the Department of Justice for “a formal declination of prosecution, in advance, for any employees of the United States, as well as any other personnel acting on behalf of the United States, who may employ methods in the interrogation of Abu Zubaydah that otherwise might subject those individuals to prosecution. The letter further indicated that “the interrogation team had concluded “that “the use of more aggressive methods is required to persuade Abu Zubaydah to provide the critical information we need to safeguard the lives of innumerable innocent men, women and children within the United States and abroad.” The letter added that these “aggressive methods” would otherwise be prohibited by the torture statute, “apart from potential reliance upon the doctrines of necessity or of self-defense.”

They knew. And our government tortured anyway. Because they were crapping in their pants and afraid instead of protecting and defending the ethos of our country and its Founders.

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Are New Sealed Filings in Barry Bonds Appeal More Dirty Tricks By DOJ? Update: YES!

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The handling of the BALCO series of investigations, both by lead investigator Jeff Novitsky and the US Attorneys office, has been relentlessly aggressive and marked by dubious, at best, tactics. Considering that the DOJ, during the entire time period, could not find the resources to prosecute the banksters who brought down the entire economy, BALCO was one of the most hideous wastes of taxpayer money imaginable.

Remarkably, the questionable tactics by DOJ may well be raising their ugly head yet again. Bonds’ appeal in the 9th Circuit is a somewhat mundane legal issue that has been fully briefed on the en banc petition for the better part of a year. The en banc hearing, before KOZINSKI, Chief Judge; and REINHARDT, O’SCANNLAIN, GRABER, WARDLAW, W. FLETCHER, RAWLINSON, CALLAHAN, N.R. SMITH, NGUYEN and FRIEDLAND, Circuit Judges is set for 2:00 pm tomorrow, Thursday September 18, 2014

Yet, less than 48 hours before the en banc rehearing is scheduled to commence, the DOJ has suddenly, and mysteriously, lodged sealed filings at 8:00 pm last night. These are Docket Numbers 64 and 65 respectively:

Filed UNDER SEAL Appellee USA motion to file a letter to the court under seal (PANEL). Deficiencies: None. Served on 09/16/2014. [9242886] (JFF)

Filed UNDER SEAL Appellee USA letter dated 09/16/2014 re: constructive amendment argument. (PANEL) Paper filing deficiency: None. [9242910] (JFF)

Here is Bonds’ Petition for Rehearing En Banc. Here is the previous panel decision in the 9th Circuit. If you don’t want to bother with the full pleadings, this article from the Orange County Breeze gives a nice synopsis of the scope of the en banc proceeding for Bonds.

As can quickly be discerned, the appeal centers really on common statutory interpretation as applied to the facts in the public trial record. The issue is whether there was sufficient evidence to convict Bonds because his statement describing his life as a celebrity child — in response to a question asking whether his trainer ever gave him any self-injectable substrances — was evasive, misleading, and capable of influencing the grand jury to minimize the trainer’s role in the distribution of performance enhancing drugs, and whether, under the law, that can properly constitute obstruction. I wrote an extensive piece arguing the weakness and infirmities of the verdict at the time it was handed down by the jury. Which is when the jury also acquitted Bonds of all the substantive underlying perjury counts.

Yes, the appeal is really that simple. So why, pray tell, does the DOJ need to be interjecting last minute sealed documents? What possible need could there be for anything to be sealed for this mundane criminal appeal? There may be a valid explanation, but it is nearly impossible to fathom what it could be.

I am willing to bet Bonds’ attorneys, Allen Ruby and Dennis Riordan, must be apoplectic.

UPDATE: Well well, I am sitting in Alice Cooperstown having lunch, waiting for my preliminary hearing to reconvene, and Josh Gerstein just sent me the answer to the question of this post. YES! Indeed the sealed filings are a slimy last minute trick pulled by the DOJ. DOJ was trying to insert grand jury testimony from the aforementioned government BALCO investigator, Jeff Novitsky, into the appeal when it has never, at any point of the proceedings, whether in the trial court or 9th Circuit, been part of the record or indictment.

Here is the responsive pleading just filed by Bonds’ attorney Dennis Riordan. Here is the pertinent part:

The grand jury transcripts referred to in the government’s motion and letter are not part of the record on appeal. Had they been before the district court in any form, the proper method of adding them to the appellate record would have been by means of a timely motion to correct or modify the record under Rule 10(e) of the Federal Rules of Appellate Procedure. The transcripts which are the subject of the government’s motion, however, were never placed before the district court in either pretrial, trial, or post-trial proceedings. Notably, the declaration of AUSA Merry Jean Chan which accompanies the government’s motion makes no claim that the transcripts were filed with the district court. “Papers not filed with the district court or admitted into evidence by that court are not part of the clerk’s record and cannot be part of the record on appeal.” Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (citing, inter alia, United States v. Walker, 601 F.2d 1051, 1054–55 (9th Cir.1979)).

Should the Court nonetheless wish to consider the transcripts in question, they fully support Mr. Bonds’s argument that the district court constructively amended the indictment by instructing on “Statement C” as a basis for conviction on the Count Five obstruction count, although that statement was not contained in the indictment. In his testimony, in discussing Statement C, then labeled “Statement F” before the grand jury, Novitsky admitted that Mr. Bonds had responded to the pending question—“Did Greg ever give you anything that required a syringe to inject yourself with?”—with a “denial” before veering off into a digression about “being a celebrity child.” (RT of February 3, 2011, at 110.) Novitsky’s admission that the prosecutor’s question was in fact answered by Mr. Bonds constituted a good reason why the grand jury would not have relied on Statement C in indicting on the obstruction charge. The only manner of accurately ascertaining whether a grand jury relied on an act in indicting is by the inclusion of that act in the indictment itself. Here, Statement C was expressly excised from the indictment by the use of asterisks. See Appellant Bonds’s Petition for Rehearing En Banc, at 16.

Hilarious. DOJ tries a patently inappropriate punk move and Dennis Riordan turns it around to bite them in the butt. Quite well deserved. You have to hand it to the DOJ in the BALCO cases, they are nothing if not consistently ethically dubious.

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