Well hello there Wheelhouse members! Marcy is still on the road, but I am back and ready to roll, so there will start being actual content here again! I want to start with a bit of interesting post-mortem news on Thomas Drake.

As you will recall, Tom Drake was belligerently prosecuted by the DOJ on trumped up espionage charges (See: here, here, here and here) and their case fell out from underneath them because they cravenly wanted to hide the facts. As a result, Drake pled guilty to about the piddliest little misdemeanor imaginable, and will be sentenced, undoubtedly, to no incarceration whatsoever, no fine and one year or less of unsupervised probation on July 15, 2011. But the entire Tom Drake matter emanated out of Drake’s attempt to internally, and properly, cooperate with a whistleblowing to the Department of Defense Inspector General.

The report from the DOD IG in this regard has now, conveniently after Drake entered his plea, been publicly released through a long sought FOIA to the Project On Government Oversight (POGO), albeit it in heavily redacted form:

The U.S. Department of Justice (DOJ) prosecuted Drake under the Espionage Act for unauthorized possession of “national defense information.” The prosecution was believed to be an outgrowth of the DOJ’s investigation into disclosures of the NSA warrantless wiretapping to The New York Times and came after Drake blew the whistle on widespread problems with a NSA program called TRAILBLAZER. Most of the Espionage Act charges against Drake dealt with documents associated with his cooperation with this DoD IG audit. However, this month the government’s case against Drake fell apart and prosecutors dropped the felony charges. Instead, Drake pleaded to a misdemeanor charge of exceeding the authorized use of a computer.

The report, which was heavily redacted, found that “the National Security Agency is inefficiently using resources to develop a digital network exploitation system that is not capable of fully exploiting the digital network intelligence available to analysts from the Global Information Network.” The DoD IG also found, in reference to TRAILBLAZER, that “the NSA transformation effort may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.”

Here is a full PDF of the entire redacted public version of the report in two parts because of file size: Part One and Part Two.

The report speaks for itself and I will not go in to deep quotes from it; suffice it to say, the DOD IG report proves that Tom Drake was precisely correct in his initial complaints that the TRAILBLAZER program was a nightmarish fraud on the taxpayers and inherently inefficient compared to the THIN THREAD program originally devised in house. The money quotes, as noted by POGO, are:

…the National Security Agency is inefficiently using resources to develop a digital network exploitation system that is not capable of fully exploiting the digital network intelligence available to analysts from the Global Information Network.

and

…the NSA transformation effort may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.

So, in sum, thanks to POGO’s FOIA release here, we now know that not only was the persecution of Tom Drake by the DOJ completely bogus and vindictive, Tom Drake was bloody well right about TRAILBLAZER versus THIN THREAD to start with. Who couldda predicted?

As most know by now, Charlie Savage at the New York Times let loose a stunning blockbuster of an expose of the conduct of Barack Obama and his inner circle in relation to the Libyan war vis a vis the War Powers Resolution:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Let’s be crystal clear as to what happened here: The Attorney General, Head of the Office of Legal Counsel and the General Counsel for the Pentagon/DOD all listened to Obama’s plan to flat out ignore the War Powers Resolution (50 U.S.C. 1541-1548), and the Article I power it represents, and they unanimously said it was untenable and illegal in the face of the War Powers Resolution.

Mr. Obama knows the War Powers Resolution exists, does not challenge its viability or Constitutionality and, against the direct opinion and advice of the three most germane attorneys in the United States Government, has just blithely and unilaterally blown it off. There are nine fairly short provisions in the statutory delineation of the “War Power Resolution” and, despite the yammering from the Administration and dithering by the press, they are actually remarkably clear in their intent and letter.

A criminal can nuance, excuse and rationalize himself around pretty much every statutory criminal provision, but society as a whole has no problem looking at the statute and seeing that there is offending conduct. And so it is here; Obama has thrown up sophistry, excuse and self indulgent rationalization. But any honest review of the WPR yields the unmistakable conclusion Obama is in direct violation, and has been from the outset. Congress has been crystal clear that they have NOT authorized the Libyan war participation.

Make no mistake, this is simply a stunning act of the most basic type of executive branch usurpation of power and illegal act that the Founders contemplated when they included the impeachment power and provision into the Constitution. As Alexander Hamilton stated in Federalist Paper Number 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

Whether or not there should be an impeachment investigation, or what the scope of such would be, is a discussion for another day and not the subject of the instant post. The point here is simply that the conduct we are discussing here is precisely the nature and type of which the Founders contemplated when adopting the separation of powers and impeachment provisions. Not to mention placing war making authority within the Article I scope of Congress.

The point here is that failure to at least have that discussion, and take a sober look at the facts at issue, and ourselves in the mirror, is to fail the Constitutional form of representative democracy we profess to love. It is to fail our basic duties as participatory citizens; it is to fail the nation.

Professor Jack Balkin gave an even handed, but truly damning at heart, analogy to the recent ills occasioned by the Bush/Cheney Administration:

It is instructive to compare President Obama’s actions with those of his predecessor, George W. Bush, who sought legal justification for his decision to engage in waterboarding and other “enhanced interrogation techniques,” which constituted torture. Bush wanted above all to be able to deny that he was violating the anti-torture statute and other laws and treaties. So he found a small group of lawyers in the OLC, headed by John Yoo, and asked for their opinions. This short-circuited the usual process through which the OLC collected views from various agencies and then used them to develop legal opinions for the executive branch. That is, Bush (assisted by his Vice-President, Dick Cheney) arranged matters so that decisions about waterboarding and enhanced interrogation techniques would be in the hands of lawyers he knew would tell him yes; the normal process of collating opinions was short-circuited and other lawyers were effectively frozen out.

Obama’s practice is different, but it has disturbing similarities. Normally, Obama would have asked the OLC for its opinion, and as noted above, the OLC would have polled legal expertise in various agencies, consulted its precedents, had long discussions, and then come up with a scholarly opinion that is normally binding on the executive branch. Instead, Obama routed around the OLC, asking for opinions from various lawyers, including the White House Counsel and the Attorney-Advisor for the State Department. It is difficult to escape the conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC.

Obama’s strategy, like Bush’s, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC’s function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC’s. If one is disturbed by Bush’s misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures

Ouch, that may leave a mark, as does the spot on discussion of OLC manipulation by Jack Goldsmith at Lawfare. And Glenn Greenwald at Salon makes a similarly compelling analogy of the Obama WPR conduct with the Constitutional crisis presented by the unconstitutional and illegal surveillance program of Bush Administration that blew up in the night of near legal mutiny of the “Ashcroft Hospital Incident”.

Balkin, Goldsmith and Greenwald are all correct to analogize and discuss the Obama WPR treachery in terms of the Bush/Cheney precedent. But, as much as I respect them and their discussion on this issue, I think all three sell the situation short. In a critical way. The Bush/Cheney precedent, whether as to the torture component or the surveillance component, involved an administration that twisted the law to suit their ends; but give the Bushies their due, at least they made the surface attempt at having the patina of a legal imprimatur. Obama has, on quite a different and much worse hand, arrogantly and belligerently, in your face and finger in your eye, violated an important existing law that he does not challenge the Constitutionality of. Obama thus admits the validity of the War Power law and in the same breath says with impunity that he is above it and not subject to it.

The War Power Resolution treachery on Obama’s part is actually materially worse than what the Bush brigade did. As Glenn said:

All that aside, what is undeniable is that Obama could have easily obtained Congressional approval for this war — just as Bush could have for his warrantless eavesdropping program — but consciously chose not to, even to the point of acting contrary to his own lawyers’ conclusions about what is illegal.

Other than the same hubris — and a desire to establish his power to act without constraints — it’s very hard to see what motivated this behavior. Whatever the motives are, it’s clear that he’s waging an illegal war, as his own Attorney General, OLC Chief and DoD General Counsel have told him.

Indeed, that is exactly where we are, and the most troubling aspect is there is no question whatsoever that Congress would have pliantly given Obama the requisite authorization sufficient to give at least nominal legal cover for the American participation in the Libyan hostilities. But, instead, Mr. Obama chose to arrogantly and belligerently usurp Article I power on what is likely the most fundamental and germane aspect underlying the separation of powers in the Constitution – how the nation goes to war and inflicts death on another nation’s citizens.

That is where we are today. I am sure laying it out in these terms will unleash the dogs of whine from fawning Obama acolytes and partisan hacks who blindly think only of partisan interest in the upcoming election. But those trifling concerns shrink in the face of the Congressional oath to protect and defend the Constitution and the corresponding duty and obligation on American citizens to demand and insure they do just that.

Without saying Obama should be impeached, failure to at least have the discussion made in those terms is dereliction of constitutional duty by people, pundits and Congress. This critical issue is not yet getting that kind of play, but it should as it is absolutely why the founders placed the provision in the Constitution to start with.

If our society and political discourse cannot seriously discuss impeachment for the type of executive perfidy demonstrated by Barack Obama in relation to Libya and the War Powers Resolution, and could not discuss it during the Bush/Cheney crimes, then the impeachment provision of the Constitution has no meaning and should be stricken.

Seriously, those are the stakes. A discussion, even an investigation, does not mean there has to be an impeachment conviction, or even that articles of impeachment should even be filed. But the discussion must be had if there is to continue to be integrity to the most fundamental terms and conditions of the United States Constitution.

EW and probably bmaz as well will likely have more to say on this one when they free up.

Charlie Savage reported on Friday that Obama rejected advice from both Jeh Johnson (Pentagon general counsel) and, even more significantly, Caroline Krass (the acting head of DOJ’s Office of Legal Counsel) when he availed to himself the power to continue bombings and killings in Libya, under the assertion that he’s, well, he’s just not being all that hostile in his bombing campaign.

Like Nixon in Cambodia, Obama did find supporters for his decisions about Libya. Ex-Yale Dean, current assassination proponent, Harold Koh (legal advisor for the State Department) apparently assured Obama that the bombings just do not rise to the level of being “hostilities” for which Obama needs Congressional permission. Robert Bauer, Obama’s White House counsel, reportedly provided his own version “yeah buddy” for Obama.

Just as Bush found it convenient to get his White House Counsel, Alberto Gonzales, to opine that as long as Bush designated his torture victims as being “illegal enemy combatants” (whatever the ultimate facts) he was exempt from war crimes prosecutions, Obama’s White House counsel is equally eager to tell Obama that, as long as he doesn’t call them “hostilities,” Obama can bomb any nation for any period of time.   

Most importantly – all of this is being done in derogation of the Office of Legal Counsel opinion that the President has exceeded his authority.   At issue, according to White House Spokesman Eric Shultz (Dan Pfeiffer was tied up) isn’t the very same, age old, typical power grab of any unchecked sovereign, but instead the age of the War Powers resoluton.

“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”

The Obama theory is that with 10 years of Bush-Obama battering of the psyches and vocabularies of of Americans and with some very dedicated government propaganda processes to boot, the meaning of the term “hostilities” has changed to exclude American or American led NATO bombings.  And this is “ordinary and healthy.”

Apparently the words “ordinary” and “healthy” have changed some over the last 40 years as well. For those civilian residents in Tripoli who were killed or maimed by NATO’s bombing run today, there is no translation dictionary or program current enough to convert their descriptions of the outcome of the NATO bombing into the words “ordinary” and “healthy.”  NATO provided an assist though – what happened wasn’t a bombing of civilians, but rather a strike on an unintended target. 

“[I]t appears that one weapon did not strike the intended target and that there may have been a weapons system failure which may have caused a number of civilian casualties.”

Cue up Obama’s spox to explain to us how words like “civilian casualties” have also changed a lot over the last few decades – in an ordinary and healthy way.  Maybe they’ll even bring on Henry Kissinger to help with the explanation.   

I don’t completely buy Glenn Greenwald’s take that Bush had “better” lawyers, because [now starts my paraphrase of Glenn’s point] some were prepared to threaten to quit over the NSA program (which they demanded be revised into an equally unconstitutional format) and others were prepared to blindly follow the lead without even knowing anything about why they’d be resigning, still, I will say that Bauer and Koh can easily fill the shoes of Gonzales and Bellinger.

Bush and “torture.” Obama and “hostilities.”  The one thing that we can rely upon is that the meaning of the phrase “Executive Power” has changed over the years. Unchecked, it will continue to change at an ever-increasing rate.  And for those of us who remember Obama’s “stern face” as he promised during primaries and camaigns to “restore the rule of law” we can only wonder when that phrase went so far astray as to encompass the things the Obama administration has done over the last few years. 

The government argues that, in spite of the fact that Saifullah Paracha’s Gitmo Detainee Assessment Brief was leaked in April, his lawyer, David Remes, cannot talk about it. Because if he did, we might conclude the DAB was real.

Granting Petitioner’s request could also be detrimental to the interests of national security, given the access to classified information that petitioners’ counsel enjoy but that members of the public at large do not. Reliance on the purported detainee assessments leaked to WikiLeaks in unclassified public writings by habeas counsel known to have access to classified information could be taken as implicit authentication of the reports and the information contained therein.

Of course, no one really doubts that it is real. But the government will claim that this public information remains classified to make sure Remes can’t mention the information. Remes can only represent his client, I guess, in court, not in the public sphere.

The problem, of course, is that the file contains obvious problems–if not out and out lies, then at least one gross misrepresentation, to wit: the government claims that Aafia Siddiqui “was detained in Afghanistan in mid-July 2008” (see Detainee assessment (the Scribd like embed at the link), page 5).

There are certainly other areas Remes would be interested in discussing and having the freedom to argue to the public on behalf of his client, because that is not only what defense lawyers are supposed to do, but are ethically required to do, in order to provide a zealous representation for their client.

The real extent of the conundrum this places Remes, and similarly situated Gitmo counsel, in is demonstrated by this from the Blog of Legal Times at the National Law Journal:

Remes, the department said, cannot have unrestricted use of the documents that the government refuses to confirm or deny are authentic assessments of detainees. DOJ’s submission (PDF) expands on the scope of the guidance the department issued this month to lawyers in Guantanamo habeas cases.

In court papers, the DOJ theme is clear: the Justice Department over and over refused to confirm or deny that any individual WikiLeaks document is an official government record.

“Unfettered public use, dissemination, or discussion of these documents by cleared counsel could be interpreted as confirmation (or denial) of the documents’ contents by an individual in a position of knowledge, with corresponding harm to national security,” DOJ Civil Division attorney Kristina Wolfe said in court papers.

The government, Wolfe said, cannot acknowledge the authenticity of one document and then refuse to substantiate another document. The “very act of refusal would in effect reveal the information the government seeks to protect—the authenticity of the purportedly classified document,” Wolfe said.

This is beyond absurd, the DOJ is refusing to admit or deny, and is wantonly limiting the ability of lawyers to use, something the entire world is in on. They are treating the information like it is secret material under a Glomar exception to FOIA. And they do not even have the honesty to admit that is what they are doing, probably because an actual Glomar discussion would make them look like idiots. For those unfamiliar with Glomar, here is a description from the recent case of Wilner v. NSA:

The NSA and DOJ served and filed so-called Glomar responses—neither confirming nor denying the existence of such records—pursuant to FOIA Exemptions 1 and 3. Whether, as a general matter, agencies may invoke the Glomar doctrine and whether, in particular, the NSA may invoke the Glomar doctrine in response to a FOIA request for records obtained under the Terrorist Surveillance Program (“TSP”) are both questions of first impression for our Court.

We affirm the judgment of the District Court upholding the NSA’s Glomar response and hold that: (1) a Glomar response is available to agencies as a valid response to FOIA requests; (2) an agency may issue a Glomar response to FOIA requests seeking information obtained pursuant to a “publicly acknowledged” intelligence program such as the TSP, at least when the existence of such information has not already been publicly disclosed; (3) the NSA properly invoked the Glomar doctrine in response to plaintiffs’ request for information pursuant to FOIA Exemption 3; (4) the government’s affidavits sufficiently allege the necessity of a Glomar response in this case, making it unnecessary for us to review or to require the District Court to review ex parte and in camera any classified affidavits that the NSA might proffer in support of its Glomar response; and (5) we find no evidence in the record that the NSA invoked Glomar for the purpose of concealing activities that violate the Constitution or are otherwise illegal. We agree with counsel for all parties that we need not reach the legality of the underlying TSP because that question is outside of the scope of this FOIA action.

And, see, that is what is wrong with this craven charade by the DOJ – the information is about as publicly disclosed and known as could be imaginable under the circumstances. Not to mention that many of the activities the Gitmo Habeas counsel like Remes want to discuss freely are activities that are precisely those that “violate the Constitution or are otherwise illegal”.

The other thing of note, especially to readers of this blog, was the somewhat desperate attempt to distinguish the judgment of Judge Vaughn Walker in al-Haramain v. Bush (see page 7 here) by referring to that part of al-Haramain that discussed not-public classified information instead of the critical part of the opinion that was based on information well within the public sphere, such as the WikiLeaks material now is.

No matter how you look at this attempt to suppress and ignore the WikiLeaks material, it is bizarre and somewhat comical. The WikiLeaks Gitmo Detainee files genie is out of the bottle; it would behoove the US government to join the battle and arguments on the merits and facts instead of trying to cram the genie back in and play hide the bottle.

[Editor’s Note: This post was started by Marcy, but finished by bmaz; so we are both responsible, whether good or bad!]

Pow Wow left a comment, in response to me and Candace Gorman, on Marcy’s Gitmo Lawyers Information Gulag post that warrants highlighting and further comment. For convenience, here it is in full:

This is what bmaz and hcgorman @ 12 are referencing:

Two Guantanamo detainees, Fahmi Al-Assani and Suleiman Al-Nahdi, have moved the D.C. Circuit to dismiss their habeas appeals (Al-Assani’s motion is here, Al-Nahdi’s is here). Both men lost their district court habeas cases in decisions by Judge Gladys Kessler; the Al Assani decision is here, the Al-Nahdi decision is here. Both men appealed, and today, both men have given up their appeals as lost causes.

Their lawyer, Richard Murphy, explained in an email,

Judge Kessler denied our clients’ habeas petitions and we appealed to the D.C. Circuit, but then stayed the appeals pending the outcome of several [other Guantanamo habeas] cases in which [Supreme Court] cert petitions had been filed. Once cert [review] was denied [by the Supreme Court] in all of the relevant cases coming out of the D.C. Circuit it became clear that the appeals were futile. Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantanamo.

This development strikes me as a big deal–albeit a quiet one that won’t get a lot of press attention. […] – Benjamin Wittes, June 2, 2011

That grim assessment of the current posture of Guantanamo habeas petitions, which, for years, have been pending before federal judges serving in the Judicial Branch of the United States Government, was further illuminated and reinforced by this June 8, 2011 Benjamin Wittes post:

Habeas lawyer David Remes sent in the following comments on recent developments in D.C. Circuit case law. He emphasizes that he has been counsel in several of the cases discussed below and that the following represents his own opinion only:

I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.

Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.

The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court affirmed six of the eight government wins (al-Bihani, Awad, Barhoumi, al Odah, Esmail, Madhwani), remanding the other two (Bensayah, Warafi).

In two critical non-merits cases, the D.C. Circuit held in Kiyemba I and III that the district court cannot compel the government to release a detainee found to be unlawfully held; and in Kiyemba II, the court effectively barred the district court from enjoining the release of a detainee to a country where he fears he will be tortured. Because the Supreme Court denied review in both cases, only Congress can overrule them. Unless Congress removes from the Executive the discretion to decide whether to release a prevailing detainee, I don’t see what practical difference legislation making substantive or procedural improvements in Guantánamo habeas litigation can make.

* * *

The D.C. Circuit’s methodology is even more revealing. When a detainee prevails in district court, the D.C. Circuit fashions, if necessary, a rule that rationalizes reversal or remand. When a detainee loses in district court, the D.C. Circuit sometimes uses the appeal as an occasion to tilt the law even further against detainees.

For example, in al-Bihani (who lost in district court), Judge Brown appeared to accept the government’s contention that any guesthouse where an alleged al Qaeda member stayed is an “al Qaeda guesthouse,” and that any detainee who stayed at an “al-Qaeda guesthouse” is, ipso facto, a member or supporter of al-Qaeda. She implicitly excluded the possibility that a guesthouse can be used by al-Qaeda members and still be a public guesthouse.

In al-Adahi (who won in district court), Judge Randolph created the “conditional probability” test. Under this test, as Lyle Denniston distilled it (here), “each assertion is to be considered, not for what it says by itself, but how it might make the next assertion seem more solid, and so on, so that the overall weight adds up to enough to support detention.” Citing Judge Silberman’s concurrence in Esmail, Steve Vladeck has suggested (here) that the test, in effect, reduces the “preponderance” standard to a “some evidence” standard.

Or consider Uthman (who won in district court). In earlier cases, including al-Adahi, the D.C. Circuit criticized district court judges for taking an “unduly atomized” approach to the evidence when ruling for detainees, and instructed them to consider “all of the evidence” as a whole. Judge Kennedy did precisely that in granting Uthman’s petition. On appeal, however, Judge Kavanaugh cherry-picked the government’s evidence and tossed aside Uthman’s, reversing the district court and finding Uthman lawfully held.

In Mahdwani (who lost in district court), Judge Henderson treated as “strong evidence” of culpability the fact that a detainee gave an exculpatory account of events that the district court does not credit. This conclusion isn’t logical or fair. There could be any number of reasons a detainee offered an exculpability account. Ironically, a detainee who says nothing is better off than a detainee who offers an account of the facts that the district court doesn’t credit.

***

Two factors appear to animate the D.C. Circuit’s apparent determination to rule against detainees. The first, exemplified by Judges Randolph and Silberman, is unabashed hostility to Boumediene. They have made quite clear that that they think Boumediene was wrongly decided, and Judge Randolph, in particular, takes every opportunity to undermine it. […]

– David Remes, 6/8/11

[Subsequent to this summary by Remes, the D.C. Circuit (i.e, a three-member appellate panel of Silberman, Kavanaugh and Rogers) handed down, on June 10th, its thirteenth Guantanamo habeas merits decision, in Almerfedi – reversing, of course, a writ of habeas corpus that had been granted – i.e., that had nominally ordered the release of the prisoner Almerfedi, because he had been unlawfully detained without proof that he was an armed conflict “enemy combatant” – by a district court trial judge. -pow wow]

What was that fancy rhetoric, again, that Supreme Court Justice Stephen Breyer was recently heard delivering outside the Court? Oh, right – from the emptywheel-linked Morris Davis commentary “Torture: Finding Our Moral Compass”:

Justice Stephen Breyer spoke on the theme of justice and accountability at the 2011 Day of Remembrance at the U.S. Holocaust Memorial Museum. He said, “we need only look around today’s world to understand that rights, rules, the obligations that the law sets forth; all of them are no more powerful than the human will to enforce them.“

How can you “call the balls and strikes,” Chief Justice Roberts & Company, when you refuse to work the game?

[David Remes, as emptywheel highlights and Charlie Savage indicates in the linked article, is the detainee lawyer (as opposed to “defense” lawyer, in this habeas corpus case) who forced the government’s hand, to the extent described by Candace @ 5, on the verboten WikiLeaked Guantanamo documents. Despite, to date, no help – as I noted (with a lot of other detail) in emptywheel’s April thread – from Judge Paul Friedman, who, since April, has uncomplainingly granted government requests for three consecutive extensions of time for the filing of its response (originally ordered due on May 11, in the “ordinary course” of the rules, but not submitted until yesterday, June 10) to the “emergency” motion that Remes had filed with Judge Friedman on behalf of his Guantanamo habeas client on April 27.]

Yes. Quite unfortunately, that is exactly right. First, let me say thanks to Pow Wow who here, as is so often the case, has taken the time to not just share superb knowledge and understanding, but made the effort to cite and explain exactly what is going on in detail. This is especially cool after I have basically done a sardonic hit and run comment as I had in Marcy’s post.

To add on to Pow Wow’s explication a bit, let me add a couple of things. First off, the two substantive quotes from Ben Wittes are spot on. This, in and of itself, is notable in that Ben is, by no stretch of the imagination, any dirty fucking hippy liberal as the proprietor of this blog and I somewhat proudly admit to mostly being. Ben is pretty conservative and is a key member of the Brookings Institute. His blog partner at Lawfare is Jack Goldsmith. In short, he certainly is no weak kneed French torture apologist as they say. So when Wittes is saying those things in complete agreement with me, Pow Wow, Marcy and the general skurvy radicals known to frequent this establishment, well, it is pretty telling. And damning.

Secondly, Al-Assani and Al-Nahdi did not lose after exhausting all levels of putative remedy, they just quit because the effort at justice was useless and a waste of what human energy and force they had left. Their resistance was futile and not only they but, very notably, their attorneys, knew it. Even Martin Luther King had at least the dream that justice would overcome; detainees Al-Assani and Al-Nahdi did not even reasonably have that. As Habeas Corpus is pretty much not just the “Great Writ”, but indeed the linch pin and foundation on which every ounce and fiber of Anglo in general, and American in specific, rule of law is founded, this is simply a mind numbing and stunning thing.

Seriously. If human beings have no viable Habeas Corpus remedy in a country, then that country exists in an immoral void outside of any known understanding of the concept of “the rule of law”.

Third, I would like to highlight just exactly who has decreed this fundamental gutting of everything the United States of America is supposed to stand for, and was founded upon. It was not, as Pow Wow appropriately notes, the august robes of final judgment at the Supreme Court. No, the Supremes have indeed, like Pilates of modern justice, washed their hands of the critical murder. Notably, not even Anthony Kennedy, who authored Boumediene, voted in favor of accepting certiorari and defending his seminal, and critical, decision. But the Kiyemba III abdication was simply the crowning coup de grace. Instead, despite the early work on detainee litigation, and notably Habeas claims, which culminated in the groundbreaking, and somewhat refreshing, Boumediene decision penned by Tony Kennedy, the Supremes have abdicated their throne and left the law to the uniquely questionable discretion of the DC Circuit.

Did I mention just exactly who the judges at the DC Circuit, that have made the current sad and tragic law, is notable?? Look no further than Pow Wow’s comment. We have the smooth stylings of none other than Janice Rogers Brown, Lawrence Silberman and a chap who was actually an active part of the Bush/Cheney torture brigade prior to being elevated to the court, Brett Kavanagh. It would be impossible, even in the wildest Salvador Dali dream, to conjure up three judges more unsuitable for the task of deciding the viability, indeed existence, of Habeas Corpus in these circumstances.

And, make no mistake, what happens in the supposedly distinct and discreet realm of “detainee law” can, and absolutely will, eventually bleed into standard criminal law as we know it. Regular citizens do not want to believe that, and will poo poo the thought; lawyers that ply the halls of high grade criminal law not only think it, they know it for a fact in their bones. The Fourth Amendment, Due Process and Fundamental Fairness only travel in one direction, and it is not the enlightened, proper and just direction.

When our children ask in the future how the Great Writ of Habeas Corpus, the foundation of law, died, this is the time and this is the answer.

Abby Philip and Josh Gerstein at Politico have an excellent piece up on the state of Executive Branch nominations in the Obama Administration.

It’s crunch time for the White House to get key executive branch jobs filled before the end of President Barack Obama’s first term.

Dozens of top posts in both the executive branch and the judiciary remain vacant, while some of those who started near the beginning of the administration are bailing out.

Nominees who aren’t confirmed by the Senate by the end of this year likely will become tangled in election-year politics, given Republican hopes of taking the White House, the Senate or both. If Obama wants a good shot at getting his nominees through this year, Hill veterans say, names need to reach the Senate by the summer recess.

Adding to the heightened urgency for action: Many of the unfilled posts deal with Obama’s major policy priorities, including financial regulatory reform, immigration and health care. Not coincidentally, those positions also are some of the most likely to become ensnared in partisan disputes.

Go read their full article, it is a good across the board discussion on nominees and where we stand in various areas of interest.

There are two areas of the Politico piece I want to draw attention to. The first is the critical importance of work and support by the White House for their nominees and the nomination process.

But one former official said much of the blame for the slow pace lies with the White House.

“A lot of fingers have been pointed at the Senate,” said Chase Untermeyer, who served as director of presidential personnel for President George H.W. Bush. “I always say that two-thirds of the job is on the executive side.”

Exactly. For one thing, it is hard for an administration to get a confirmation if it does not make nominations. Take federal judges for instance, for most of the past two years there have been around a hundred vacancies on the Circuit and District courts; Mr. Obama has rarely had nominees for more than half of them. This is simply federal administrative incompetence, and it takes a heavy toll in the hallways and dockets of justice. Gerstein and Phillip pointed to the appalling state of play in Arizona to illustrate the issue. I owe them a debt of gratitude for pointing the Arizona situation out, because I have long been screaming about the empty seats and docket problems both here in Arizona and in the 9th Circuit.

For most of the last half of 2010, Chief Judge John Roll was in the process of certifying the District of Arizona as a formal “judicial emergency” zone from docket overcrowding, a situation that exacerbates relentlessly in most all case types, but especially from immigration and immigration related types of cases. We needed more judges allotted to start with, but have simply been killed from having long had two empty District judicial seats that were not only empty, but for which Obama could apparently not even be bothered to name nominees for.

Then John Roll was killed in the Giffords shooting, leaving three empty seats in a District that would need another two seats to have some normalcy even if all three of those traditional seats were indeed filled. In the intervening six months since Judge Roll’s death, Obama has not designated one solitary nominee for the previous two openings, nor John’s now empty large chair. It is simply unacceptable and a dereliction of duty.

It is not just judges either, Obama was extremely slow to move out Bush/Cheney US Attorneys (and only recently did so with the extremely troubling Leura Canary), has left a dearth of economic positions unfilled including the absolutely critical position of Director of the Consumer Finance Protection Board (which cannot even become fully operational without a Director) and, of course, has struggled to fill key Justice Department positions, including at OLC.

But, as Chase Untermeyer pointed out, there also is the issue of support for the nominees by the White House. For all the bad mouthing of Greg Craig, Bob Bauer has not been able to get that much more accomplished on the nomination priorities, and the word is that he honestly tried. You have to wonder what type of high wall and tin ear the Obama inner circle has up to ignore the critical need to fill vacant positions causing literal emergencies in the field.

The other point that leaps out from the Politico piece is who the Obama brain trust put in the lead for Presidential Personnel, a position critical to making and shepherding executive nominees:

Less than five months into his administration, Obama nominated Presidential Personnel Director Don Gips — a former high-tech executive — as ambassador to South Africa. Months later, White House Counsel Greg Craig quit.

“They did some things that hurt them: changing leadership of the president’s office of personnel, which pushed them back,” said Clay Johnson, who was former President George W. Bush’s personnel director and co-chairs the Aspen Institute’s committee on presidential appointments.

Gips was replaced in 2009 by his 30-year-old chief of staff, Nancy Hogan, a little-known former aide to Daschle.

Quite frankly, Phillip and Gerstein understate how shocking this fact is. This is a position that is exceedingly important to all nominations in general, although WH Counsel’s Office generally leads on justice related nominations. Putting a 30 year old in charge of this job, no matter how talented they are, is simply amazing. It is a process and job that calls for material gravitas and experience working the process on the Hill; it defies credulity that was the path of the Obama Administration.

At any rate, the Politico article is an excellent barometer and report of where we are and why on the nomination gap in the Obama Administration, and it is a troubling picture in many regards. Obama is certainly due credit for getting two Supreme Court justices confirmed in a forthright manner, but the record apart from that is pretty damning.

The other news of note today fits right in with the discussion nicely. Bob Bauer is leaving his position as White House Counsel. From the official White House announcement:

Today, June 2nd , the White House announced that White House Counsel Bob Bauer will return to private practice and that current Principal Deputy Counsel to the President Kathryn Ruemmler will serve as White House Counsel.

“Bob is a good friend and has served as a trusted advisor for many years,” said President Obama. “Bob was a critical member of the White House team. He has exceptional judgment, wisdom, and intellect, and he will continue to be one of my close advisors.”

At the end of June, Bauer will return to Perkins Coie where he will resume his practice focused on serving as general counsel to the President’s reelection campaign, general counsel to the Democratic National Committee, and personal lawyer to President Obama.

I do not know much about Ruemmler, but she does have a solid background it appears. The decision by Bauer to leave may raise a few eyebrows, but it actually makes a lot of sense. Bauer is an extremely accomplished Democratic campaign attorney, and the party is starting to gear up in full for the 2012 election. Bauer can really make a valuable impact in that capacity, and after banging his head against the nomination wall in the White House, the return to his standard haunts is probably a welcome thing.

As you undoubtedly know by now, the furious rush to extend the Patriot Act is once again in full swing. The Patriot Act is an odious piece of legislation that was birthed by fearmongering and the imposition of artificial drop dead, if we don’t pass this today the terrortists are gonna OWN us, artificial time emergencies. Then it was extended the same way. That is not a bug, it is indeed a feature.

When the government, through its executive and compliant Congress, wants to cut surveillance and privacy corners out of laziness and control greed, and otherwise crush the soul of the Constitution and the 4th Amendment, demagoguery and fake exigencies are the order of the day. And so they are again. Oh, and of course they want to get out of town on their vacation. And that is what has happened today.

Senators Wyden and Mark Udall had a superb amendment proposed to narrow the Patriots core provisions ever so slightly so as to maintain some Constitutional integrity. Marcy explained the details here. But, because that would engender real and meaningful debate on the efficacy of Patriot, it had to be quashed, and that is exactly what has occurred. Harry Reid and Diane Feinstein gave a couple of hollow and meaningless “promises”, of unknown content, to Wyden and Udall and strongarmed them into withdrawing their amendment. The citizens are simply not entitled to meaningful debate on their Constitution.

Spencer Ackerman, over at Wired’s Danger Room, shredded Reid for his unPatriotic act. Gloriously:

Remember back when a Republican was in the White House and demanded broad surveillance authority? Here’s Reid back then. ”Whether out of convenience, incompetence, or outright disdain for the rule of law, the administration chose to ignore Congress and ignore the Constitution,” Reid said about Bush’s warrantless surveillance program. When Bush insisted Congress entrench that surveillance with legislation in 2008, Reid turned around and demanded Bush “stop fear-mongering and start being honest with the American people about national security.” Any claim about the detrimental impact about a lapse in widespread surveillance were “scare tactics” to Reid that ”irresponsibly distort reality.” (Then Reid rolled over for Bush.)

That’s nowhere near the end of Reid’s hypocrisy here. When the Senate debated renewing the Patriot Act in 2006, Reid, a supporter of the bill’s surveillance procedures, himself slowed up the bill’s passage to allow amendments to it — the better to allow “sensible checks on the arbitrary exercise of executive power.” Sounding a whole lot like Rand Paul, the 2006-vintage Reid registered his “objection to the procedural maneuver under which Senators have been blocked from offering any amendments to this bill” and reminded his colleagues, ”the hallmark of the Senate is free speech and open debate.”

Reid could hardly be more of an opportunist here. He favors broad surveillance authorities — just as long as those scary Republicans stop being mean to liberals. When Attorney General John Ashcroft warned civil libertarians that their “phantoms of lost liberty… only aid terrorists,” Reid told CNN on December 8, 2001 that “people should just cool their jets” — but not that Ashcroft was actually, you know, wrong. By contrast, the ultra-conservative pundit Bob Novak said Ashcroft made “one of the most disreputable statements I have heard from an attorney general.”

Exactly right. But it gets worse. Rand Paul also had an amendment, but he, unlike our fine Democratic Senators, was not willing to quietly go off into the night. Paul stood his ground and now Reid has agreed to let Paul’s amendment to exempt gun purchases from Patriot’s scope have a vote:

Senate Democratic leadership seems poised to acquiesce to Sen. Rand Paul’s (R-Ky.) demand that the chamber vote on an amendment that would restrict national security officials from examining gun dealer records in their efforts to track potential terrorists.

The Kentucky Republican had been insisting that such language at least receive a vote as an addition to the extension of the USA Patriot Act.

So, that is where the Democratic party, Democratic Senate Leadership and the Obama Administration are on protecting the Constitution and its 4th Amendment. Sane and intelligent amendments to narrow focus and appropriately protect American’s privacy are squashed like small irritating bugs under a hail of fearmongering and demagoguery – from Democratic Leadership – and terrorists’ rights to buy guns with impunity and privacy are protected because just one GOP senator has the balls to actually stand up and insist on it.

Hanoi Harry Reid is on point and leading this clown car of civil liberties insanity, and so deserves a healthy chunk of the blame, but he is certainly not alone. For all the noise they made, why cannot Ron Wyden and Mark Udall stand up in a similar fashion? Where are the other Democrats who used to have such alarm when it was the Bush/Cheney Administration doing these things? Where is Russ Feingold, I miss him so, but I am sure that Obama and Reid are glad he is gone on days like today. Exactly why Feingold was, and is, so important.

UPDATE: There is late word Reid may have talked Mitch McConnell and GOP Senate leadership into putting a clamp on Rand Paul and holding up his amendment debate demand. We shall see.

News broke this afternoon that Harry Reid might file for cloture on a floor vote on Obama’s nominee for the 9th Circuit Court of Appeals, Goodwin Liu:

Goodwin Liu’s bid for a federal judgeship may be headed for a crucial vote this week, in what would be the biggest fight yet over any of President Barack Obama’s nominees for the lower federal courts.

Senate Majority Leader Harry Reid (D-Nev.) is considering filing a cloture petition as soon as tonight, a spokesman said. That would set up a vote later this week on whether to end debate on Liu’s nomination, a motion that needs the support of 60 senators to pass. The Democratic caucus controls 53 seats, so they would need Republican help to defeat a filibuster.

Well, shocking as it may be, and it really is, Harry Reid indeed pulled the trigger:

Prior to adjournment on Tuesday, May 17th, Senator Reid filed cloture on Executive Calendar #80, Goodwin Liu, of California, to be United States Circuit Judge for the Ninth Circuit. Senators should expect a roll call vote on the motion to invoke cloture on the Liu nomination to occur at a time to be determined on Thursday.

This is a fairly astounding happening as Liu was first nominated to the 9th in February of 2010, but the nomination died at the end of the 2010 session from lack of even an attempt to call for a floor vote. President Obama promptly renominated Liu, and he was again promptly reported out of the Judiciary Committee on a straight party line vote, but it appeared as if the nomination would be again be left to die a quiet death. Apparently not.

If you do not know about Goodwin Liu, you should. Liu is quite arguably the brightest and most accomplished young legal liberal star in the universe. He is the future of any liberal hope on the Supreme Court; like Antonin Scalia or John Roberts on the right, Liu is the future legal heavyweight for the liberal future. At only 39 years of age, Liu’s resume and record of accomplishment, service and involvement in the law makes Elena Kagan look like a malnourished piker. He is literally that good and valuable for the future, Liu is worth fighting for tooth and nail. For a great look at Goodwin Liu the man and scholar, take a look at Bob Egelko’s in depth biography from the San Francisco Chronicle.

So Goodwin Liu is set to get a floor vote on cloture Thursday, and if that threshold can be passed, he would look good on an up or down vote for confirmation. That is the good news. The bad news is, unless Harry Reid and/or the Obama White House have cut some kind of deal to get Liu through, there is little, if any, chance his nomination can muster the 60 votes necessary for cloture. And, despite some fast checking this afternoon, I can find no evidence of any such a deal having been cut or even discussed.

We will know by Thursday night whether Harry Reid and the Obama White House actually had a plan to get Goodwin Liu through and confirmed, or whether they just want the issue done and over with. One thing is for sure, it will not happen unless there is a plan and they have whipped some GOP support for cloture. Will Reid and Obama be heroes or goats? Stay tuned.

This is, to say the least, highly unusual. From the White House:

POTUS to address the nation tonight at 10:30 PM Eastern Time

Now, I have no idea what this is about yet and, somewhat eerily, neither does Marc Ambinder, who almost always has scary good sources for this kind of stuff:

I assume the WH will give the wire services a heads up, so we’ll known by 10:25??

CNN has just announced that it is “national security related”.

Stay tuned and we will update here as it comes down.

UPDATES: It is reportedly NOT Libya. Rumor is Bin Laden.

BIN LADEN REPORTEDLY DEAD AND US HAS BODY

From CBS News:

House Intelligence committee aide confirms that Osama Bin Laden is dead. U.S. has the body.

Rumsfeld (of all people) has also said the same.

So, it is quite clear that Bin Laden is the deal and he is confirmed dead. Does that mean the was is over? Can we close Gitmo? Is the AUMF now completed and done? Well, of course not. The long war is NEVER over. This will only be an excuse to go to a higher and more scary DEFCON because of alleged feared reprisals.

From Laura Rozen:

Heard WTOP radio reports suggesting helicopter crash in pakistan and UBL (body or alive?) handed to US forces in Afghanistan

[Update caveat: As i mentioned in comments, there is no independent confirmation other than the Libya press release/announcement that either Saif or children truly were killed. Many on the ground in Libya are skeptical that it is a stunt. That is certainly possible; however, that is a ruse that would be exposed you would think, so it would not seem to make for a promising stunt. It is possible though.]

Fresh off the BBC wire:

A Nato air strike in the Libyan capital, Tripoli, has killed the son of the Libyan leader, Colonel Gaddafi, a government spokesman has said.

Colonel Gaddafi himself was in the large residential villa which was hit by the strike, the spokesman added, but he was unharmed.

His son Saif al-Arab was killed, as well as three of his grandsons.

Journalists say the building was extensively damaged and one unexploded bomb remains at the site.

Government spokesman Moussa Ibrahim said the villa was attacked “with full power.”

NBC’s Richard Engel reports the “images look like NATO used bunker busters on compound”.

That is some “no fly zone” that is being enforced; apparently civilians, women and children (Saif Qaddafi and Qaddafi grandchildren) on the ground are considered legitimate targets. Mr. Obama and his White House have spoken out of both sides of their mouths as to whether “regime change” was their goal. Defense Secretary Gates has admitted that Libya did not pose any “actual or imminent threat” to the US. Mr. Obama has refused to characterize the Libyan intervention as a war even though it obviously is. The US is, just as obviously, the lead actor despite the faux NATO patina and gloss put on the pig.

So, is this type of action, full frontal force against the head of state and his family permitted under the UN resolution or the US guidance? Well, the operative UN provision is UNSCR 1973 . The OLC authorizing memo text is here.

Quite frankly it is hard to find any legal basis under either UN or US authorizations for the action that has been consummated today. Section 4 of UNSCR 1973 does authorize a broad range of force to ”protect civilians and civilian populated areas”; however, it is hard to see the moral, ethical or legal justification for today’s acts in that. It seems all the more tenuous coming directly on the heels of Qaddafi’s plea for a ceasefire.

As Jeremy Scahill stated,

Killing a dictator’s innocent grandchildren really showcases our moral superiority.

No kidding. But what the heck, maybe Obama can cut a few more drone killing jokes tonight at the White House Correspondents Dinner nerdprom. He seems to really like that kind of humor.