January 23, 2021 / by 


The Union Imperfect


[photo: Minute Man statue by Muffet via Flickr]

Like Marcy, I find myself pondering today the Declaration of Independence as well as the subsequent system of government set in motion with publication of this influential document.

So much of what our founding fathers protested about the monarchy was the unilateral nature of governance. The signatories quite literally signed their death warrants as they rejected the power of the British crown to govern their lives, so serious were they about the need for self-rule with representation, and oversight to prevent abuses.

Yet here we are, 237 years later, moving toward a unicameral government, witnessing the slow-moving collapse of a democratic republic for which the earliest Americans gave both blood and treasure.

Increasing in number under the last several presidents, the White House has issued classified or secret executive orders and findings—in effect creating law without true oversight by the only body charged with lawmaking, and/or without restraint by the judiciary responsible for ensuring government powers are confined within the limits established by the Constitution.

Congress has failed to adequately exercise its oversight powers to constrain the White House’s execution of laws and and unilateral orders, while permitting departmental employees to lie and misrepresent actions carried out at the orders of the President or subordinate functions.

Congress’s failure to take adequate action with regard to Director of National Intelligence James Clapper’s misrepresentations is but one example. Were the three branches of government truly distinct and acting according their purview, Congress would have demanded an immediate investigation into Clapper’s activities as well as the intelligence functions he oversees, punishing Clapper as appropriate for misleading the people through their representatives.

The judiciary as the third branch has become a rubber stamp function of the plutocracy, set in place by the über-wealthy who co-opted members of Congress with campaign donations, or media sufficient to bully members of Congress to do their bidding. The Court’s composition does not represent the American public, interpreting laws through a perspective shaped and dominated by white male privilege.

That is, when laws find their way in front of the judiciary at at all. Congress and the White House have both created law that deliberate attempts to evade judicial intervention and subsequent review. For example, this recently enacted legislation:

…The so-called Monsanto Protection Act is actually a provision (officially known as Section 735) within a recently passed Congressional spending bill, H.R. 933, which exempts biotech companies from litigation in regard to the making, selling and distribution of genetically engineered (GE) seeds and plants.

President Obama signed the bill and its controversial rider into law in March 2013 much to the dismay of environmentalists. It means that Monsanto and other companies that supply the majority of the nation’s crop seeds can continue to produce GE products regardless of any potential court orders stating otherwise. …” [emphasis mine]

Another effort to bypass the judiciary is noted in the creation and modifications of the REAL ID ACT of 2005. The text of the original bill introduced as H.R. 418 prohibited any judicial review:


Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note) is amended to read as follows:

`(c) Waiver-

`(1) IN GENERAL- Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.

`(2) NO JUDICIAL REVIEW- Notwithstanding any other provision of law (statutory or nonstatutory), no court shall have jurisdiction–
`(A) to hear any cause or claim arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1); or
`(B) to order compensatory, declaratory, injunctive, equitable, or any other relief for damage alleged to arise from any such action or decision.’.

Though subsequently modified before passage with regard to judicial review, the current legislation retains authority (under the Executive Branch’s Department of Homeland Security) to waive laws as necessary to secure the nation’s borders. Legitimacy of this language is questionable, but not reviewed as yet by the judiciary.

With each of the three branches of government failing in multiple ways to do the work assigned to each them alone under the Constitution, failing to limit the power of government under the same document which authorizes their existence at the consent of the governed, we should take pause this Fourth of July.

Was it worth 25,000 dead and 25,000 wounded for us to end up with something our founding fathers fought against — an unlimited, unilateral executive retaining concentrated and centralized powers, ineffectively restrained by the people’s representatives, nor limited by the judiciary appointed by the same representatives?

Think about it: we could instead have been lower Canada, with all its so-annoying health care for all.

We could still realize a more perfect union if we remember as a people we are governed only at our consent. To paraphrase the Declaration of Independence itself, I like to believe we the people can still alter this situation to effect our safety and happiness.

I wish you and yours a safe and happy Fourth of July.

The Marriage Equality Decisions

Picture-1The moment of truth has finally come on the long and tortured path through the Supreme Court for the marriage equality movement. Without further adieu, the Defense Of Marriage Act has been struck down as unconstitutional under Equal Protection grounds in a 5-4 opinion authored by Anthony Kennedy. A lack of standing has been found by the court in the California Hollingsworth v. Perry Prop 8 case, thus meaning the case will revert to the Ninth Circuit decision.

Frankly, everybody in the universe is going to have instantaneous analysis and opinion on the nature and import of these two decisions. I will likely be along with the same on particular aspects later, but for now I want to get the decisions and opinions up here so that one and all can read and discuss them. Below I will give the links to the opinions and the critical language blurbs from each.

United States v. Windsor (DOMA): Here is the opinion. As stated above, it is a 5-4 split authored by Justice Kennedy, joined by the liberal bloc of Ginsburg, Breyer, Sotomayor and Kagan. Chief Justice Roberts, Scalia, Thomas and Alito dissent in separate dissents written by Roberts and Scalia.

The opinion is very broad in range and focuses on Section 3 of DOMA, which will effectively obliterate the law. The key holding comes at the end of Kennedy’s majority opinion:

DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA in- structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the mar- riages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

Hollingsworth v. Perry (Prop 8): Here is the opinion. As stated above, the court found a lack of standing by the appellants Hollingsworth (Prop 8 Proponents). ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined. So, just to be clear here: The liberals are the reason the court could not issue a decision granting ALL Americans the right to marriage equality that citizens in California, and the other few states who have state law marriage equality, will enjoy.

Anthony Kennedy, by his crystal clear decision and language he penned in the Windsor DOMA decision, and his willingness to find standing and rule on the merits in the Prop 8 case, was ready to make it happen. And all the liberal justices, save for Sonia Sotomayor, prevented it.

The court has remanded Hollingsworth back to the 9th Circuit with instructions to enter a similar ruling based on lack of standing/jurisdiction. That means that the broad and sweeping decision entered by Vaughn Walker in the district court trial will become law in California.

Now, to again be clear, I expect there will be litigation attempts by the Equality Haters to try to restrict Walker’s decision to the two plaintiff couples and/or the two respective counties at issue in the original Perry complaint. I do not believe that will bear any fruit and fully expect full marriage equality to exist across all of California, but it may not be as immediate as it should. We shall see.

In closing, a very good day for marriage equality and LGBT rights. The DOMA decision is broad and provides for heightened scrutiny in evaluating marriage and sexual identity issues; that portends well for future rights litigation. And, of course, DOMA is dead. Also heartwarming that all of California’s citizens will have their rights protected; it is, however, sad that this will not extend to all Americans.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

The Day of Sentencing Judgment for Scott Bloch

When we last left Scott Bloch, the former Bush attorney who was the appointed head of the Office of Special counsel (OSC), it was the original date for his sentencing. The court delayed entry of sentence to further investigate the full extent of his criminal conduct. It appeared that, after strong letters like from this blog and attorney Debra Katz, who represents several former OSC employees and good government groups, the court had real concerns about the entirety of Bloch’s vast criminal conduct compared to the sweetheart whitewashing collusive plea the DOJ was giving him.

Today, the court showed it really was not nearly as concerned as had been hoped. Scott Bloch has just been sentenced to one day in jail and two years probation. The single measly day in jail was stated by the court to be due to the “seriousness” of the offense. What a joke. I guess we should just be thrilled that, unlike James Clapper, Bloch was prosecuted at all. Still, it is a grossly soft sentence considering the entirety of Bloch’s admitted criminal conduct.

Just so the record is complete after all these years, here are the significant documents documents lodged with the court between the first sentencing date and today:

1) Bloch’s supplemental sentencing memorandum

2) DOJ’s supplemental sentencing memorandum

3) Bundle of additional sentencing letters from Bloch supporters

4) Supplemental sentencing letter from this blog

One last thing should be noted, and that is the sheer and craven hutzpah of the Department of Justice in whitewashing this matter. I refer to their supplemental memorandum (item 2 above), but specifically to footnote 1 therein that baldly claims other members of the public and victims aggrieved by Bloch just don’t have all the secret facts that the government was able to collect. It was truly an amazing thing to see the government saying they had the hidden facts mitigating Bloch’s conduct. Simply astounding and, as stated in the responsive letter to the court (item 4 above), it was unconscionable:

The bald faced hubris of the DOJ in footnote 1 of their “Supplemental Memorandum In Aid Of Sentencing” lodged in docket Number 21 to claim, and rely on, uncharged and unstated evidence and facts to mitigate the sentence of the defendant is far the other side of unconscionable and shocking. Hidden considerations cited by the government, in the face of the shocking record of conduct by defendant Bloch, are an insult to the court, and the citizens and rule of law it is designed to protect. In fact, the recitations of fact by the government itself demonstrates how absurd their protestations for mitigation, much those of Bloch himself in his supplemental sentencing memorandum (Docket Number 22), really are.

The perfidy, and obstruction to the American form of government, by Executive Branch officials upon the function of the Congress is a scourge that cannot be tolerated by the American people or the courts of the United States. After the questions germinated by ODNI Clapper’s testimony, there has been a sudden and welcome bi-partisan return of healthy concern over the conduct of Executive Branch officials in front of Congress.

This court stands at the crossroads on a seminal issue to the Constitutional health of these United States and the health of the separation of powers in our form of government. The problem of disdain for, and duplicity in front of, Congress must be addressed and a precedent set for the future. Mr. Bloch violated the trust and damaged the people and their lawfully elected representatives. Frankly the plea in this case is outrageous and should never be accepted, it is not in the interest of justice. But, if it is to be followed, and sentenced thereon, a precedent should be set and an appropriate sentence handed down for the egregious conduct of Scott Bloch.

If not in the instant case, then where? If not now, then when?

The answer is Article II Executive Branch officials and attorneys simply cannot, and will not, be prosecuted for perjury and obstruction of Congress, and neither the Article I Congress, nor the Article III Courts, seems to particularly care that such violation of constitutionally protected powers and prerogative is occurring habitually. It is a sad comment.

Aaron Swartz, Plea Leveraging & The Bordenkircher Problem

CryingJusticeAs Netroots Nation 2013 begins, I want to emphasize one of the best panels (If I do say so) of the event. It is titled: Beyond Aaron’s Law: Reining in Prosecutorial Overreach, and will be hosted by Marcy Wheeler. Joining Marcy will be Aaron Swartz’s attorney, Elliot R. Peters, of Keker & Van Nest LLP in San Francisco, Shayana Kadidal of the Center for Constitutional Rights in New York, and Professor Jonathan Simon of Boalt Hall at Berkeley. The panel goes off at 3:00 pm Saturday June 22.

As a lead in to the panel discussion, I want to address a topic that struck me from the first moment of the tragic loss of Aaron Swartz, the pernicious effect of the late 70’s Supreme Court case of Bordenkircher v. Hayes.

Paul Hayes was a defendant on a rather minor (involved $88.30), but still felonious, bad check charge in Kentucky. But Hayes had a bad prior criminal history with two felony priors. The prosecutor offered Hayes a stipulated five year plea, but flat out threatened Hayes that if he didn’t accept the offer, the prosecution would charge and prosecute under Kentucky’s habitual criminal (three strike) law. Hayes balked, went to trial and was subsequently convicted and sentenced to life in prison under the habitual offender enhancement charge. It was a prosecutorial blackmail threat to coerce a plea, and the prosecutor delivered on his threat.

Hayes appealed to every court imaginable on the theory of “vindictive prosecution” with the prosecutorial blackmail as the underlying premise. Effectively, the argument was if overly harsh charging and punishment is the penalty for a defendant exercising his right to trial, then such constitutes prosecutorial vindictiveness and degrades, if not guts, the defendant’s constitutionally protected right to trial.

Every appellate court along the way declined Hayes’ appeal until the 6th Circuit. The 6th, however, came up with a surprising decision, granting Hayes relief, but under a slightly different theory. The 6th held that if the prosecutor had originally charged Hayes with the habitual offender charge, and then offered to drop it if Hayes pled guilty, that would have been perfectly acceptable; but using it like a bludgeon in plea negotiations once the case was charged was impermissibly vindictive, and therefore unconstitutional.

Then, from the 6th Circuit, the case finally made its way to the Supreme Court of the United States. By that time, Hayes had long been in prison and the prison warden, Bordenkircher, was the nominal appellee in the caption of the case. The Supreme Court, distinguishing another seminal vindictive prosecution case, Blackledge v. Perry, reversed the 6th Circuit and reinstated Hayes’ life sentence.

Blackledge v. Perry is a famous case known in criminal defense circles as the “upping the ante case”. Blackledge was convicted of a misdemeanor and appealed, which in North Carolina at the time meant he would get a new trial in a higher court. The state retaliated by filing the charge as a felony in the higher court, thus “upping the ante”. The Supreme Court in Blackledge held that to be impermissibly vindictive.

A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a [new trial] in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources. . . . And, if the prosecutor has the means readily at hand to discourage such appeals — by “upping the ante” through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defendants will brave the hazards of a [new] trial.

. . . A person convicted of an offense is entitled to pursue his statutory right to a trial . . ., without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.

Alas, the Supreme Court in Bordenkircher v. Hayes did not think the same logic in Blackledge controlled the day. In a 5-4 decision, Potter Stewart held that the practice engaged in by the Hayes prosecutor was just fine. In distinguishing Blackledge, Justice Stewart wrote:

In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation “very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.”

By now, it should go without saying that Justice Stewart’s view of a criminal defendant having “relatively equal bargaining power” with the prosecution is a sick and demented joke. Nothing could be further from the truth. But, from that time on, the power of prosecutors to add charges as a bludgeon against criminal defendants has been unfettered and increasingly problematic.

And so we come to the unfortunate case of Aaron Swartz. You can probably already see the Bordenkircher problem in the Swartz case. There is, however, another related problem in Swartz – overcharging. Overcharging is the initial charging by a prosecutor of multiple counts where only one charge is called for, or tacking on extra charges that are beyond what the evidence calls for, all in an effort to coerce the defendant to quickly accept a plea. It is a corollary, but distinct, practice that goes hand in hand with Bordenkircher leveraging of charges. Both are excessive and vindictive leveraging of criminal defendants to force a plea (or cooperation as a snitch), and both are present in spades in the prosecution of Aaron Swartz by Carmen Ortiz and the US Attorney’s Office for the District of Massachusetts.

Initially, upon arrest at MIT, Aaron Swartz was first charged in the local Middlesex/Cambridge state court. Which was somewhat notable and interesting since the arresting officer was actually Special Agent Michael Pickett of the United States Secret Service, who was working with the Boston area located New England Electronic Crimes Task Force. The Task Force had a well established reputation for working with the D-Mass US Attorney’s Office and FBI. So, despite an arrest by a federal agent, working a federal task force, the charge was in local court. That was January 7, 2011.

Then came the first significant upping of the ante against Aaron Swartz with the filing of the initial federal indictment on four counts with a request for forfeiture of property on July 14, 2011, over six months after his arrest and filing of local charges. What did Aaron Swartz do in the time between his arrest and initial charges to the federal indictment to earn the increase in seriousness of the charges against him? Nothing, he simply failed to roll over.

You would think the United States Department of Justice might have exercised enough vindictiveness against the 26 year old Swartz. But, no, there was more in the offing. Much more. Again, Aaron Swartz did not roll over. Swartz had a benefit than very few caught up in the American justice system do, he had money and he had powerful friends and supporters. He wouldn’t roll.

Aaron Swartz and his lawyers relentlessly tried to negotiate a fair plea – probation and no incarceration – for the piddly level of conduct that was actually involved, and they were relentlessly rebuffed by the DOJ. What happened next? The US Attorney’s Office for the District of Massachusetts, led by Carmen Ortiz (with undoubtedly some help from DOJ Main), decided to really put the thumb on Mr. Swartz.

A superseding indictment to further terrify Swartz was filed on September 12, 2012 charging an outrageously puffed up thirteen felony counts, along with the forfeiture demand. Four months later Aaron Swartz was gone.

Aaron Swartz was overcharged right out of the gate in the first federal indictment, which also constituted upping the ante from the state charges. Then the overcharging and upping of the ante went nuclear in the superseding indictment. It was unnecessary, oppressive and unreasonable. It was, and is, the mark of a Department of Justice, and justice system, run amok. Both a Bordenkircher and an overcharging nightmare writ large and public.

Aaron Swartz is tragically gone far too young, but he left us so much in his time. And one of those things is the public exposure this case has brought, and the manner in which it has exposed the ugly underbelly of the American criminal justice system and its reliance on an oppressive and unbalanced system of plea negotiation.

Kevin Cullen, in a Boston Globe op-ed, in quoting Mr. Swartz’s lawyer Elliot Peters, put it succinctly:

Elliot Peters, the San Francisco lawyer who took the case over from Weinberg last fall, could not persuade prosecutors to drop their demand that Swartz plead guilty to 13 felonies and spend six months in prison. Peters was preparing to go to trial and was confident of prevailing.

But the prospects weighed heavily on Swartz.

“There was such rigidity with the people we were dealing with,” Peters said. “I couldn’t find anyone in that office to talk about proportionality and humanity. It was driven by a desire to turn this into a significant case, so that some prosecutor could put it in his portfolio.”

Proportionality and humanity are excellent words that are part and parcel of what is supposed to be “prosecutorial discretion”. As the courts in Bordenkircher and Blackledge noted, the criminal justice system, from local to federal, runs on plea bargaining. But contrary to what Potter Stewart said in Bordenkircher, the power of the defendant is NOT “relatively equal” to that of the prosecution.

The system, and the wielding of power by the government is out of balance, and out of control, as even prominent former federal judges are noting. There are any number of reasons prosecutors so abuse their power. Sometimes it is the desire to notch the big win, always it is a self desire to maintain their personal “conviction record” necessary for promotion, and sometimes it is to force a defendant into cooperation and snitching on other potential defendants and cases. All can be appropriate concerns for a prosecutor, but not without proportionality, humanity and discretion.

Radley Balko penned an excellent discussion of many of the different facets of the immense power, and abuse of power, of the prosecutor:

Prosecutors have enormous power. Even investigations that don’t result in any charges can ruin lives, ruin reputations, and drive their targets into bankruptcy. It has become an overtly political position — in general, but particularly at the federal level. If a prosecutor wants to ruin your life, he or she can. Even if you’ve done nothing wrong, there isn’t a whole lot you can do about it.

I highly recommend reading Balko’s piece in full as there is much depth there that goes beyond what there is space for in the instant post.

High profile cases like that of Aaron Swartz have brought a new light on abuse of prosecutorial power. Another example I feel compelled to mention is that of famed Hollywood director John McTiernan that was put on display last month in one of the last big articles by a friend to this blog, the late Michael Hastings. But while the famous cases like Swartz and McTiernan bring needed exposure, the root problem plagues and rots the entire system. Most defendants are at a far greater disadvantage than those who are wealthy and well known.

Former federal prosecutor and current criminal defense attorney Kenneth White, on his Popehat blog, gave a passionate and troubling description of the bigger picture in our criminal justice system:

People think the system failed or abused or singled out Aaron Swartz. This is the system, dammit, and if you think that Aaron Swartz faced what he did because he’s a hacker and the government has it out for hackers, then I’m here to tell you that you’re full of shit. Aaron Swartz had a great, well-funded defense team and a healthy support system. Most people don’t. If you read this blog, you know the types of things the system does to people, including people with far less ability to fight back. The system sends sick people to their death in a system that can’t care for them because they smoked weed. The system denies its prisoners medical care until they have to have their genitals amputated in a fruitless effort to delay an early death from cancer. The system sticks people into cells and very literally forgets them until they’ve spent a few days drinking their own urine. The system strives and strains to execute people based solely on the word of serial perjurers — serial perjurers whose record of perjury they have concealed from the defense. The system prizes junk science so long as that junk science supports its allegations. The system treats invocation of constitutional rights as evidence of guilt. The system reacts with petulant fury to being questioned. The system detects and punishes law enforcement and prosecutorial misconduct so rarely that bad actors are hardly ever subjected to real consequences.

These things happen every day to people less photogenic, talented, and charismatic than Aaron Swartz.

If the Aaron Swartz case has taught us anything, it is that as a nation we desperately need to have a discussion and recalibration on prosecutorial discretion, proportionality and humanity in our criminal justice system. The “system” is not about “them”, it is about us and who we are as a people. It is long past time to fix the system.

Government Spying: Why You Can’t ‘Just Trust Us’

imagesOkay you Wheelhouse mopes, Marcy, Jim and I are all in San Jose at Netroots. Not sure the jail in this here town is big enough to hold us all. Marcy already put up two posts earlier today, but posting may be a bit spotty, we shall see. I have an important one that will probably go up tomorrow morning on the Aaron Swartz case.

At any rate, to give some extra fodder here, and because Ms. Wheeler is terminally lame at noticing our own blog when she writes articles elsewhere, I am hereby placing you on notice that she has a great article that went up late yesterday at The Nation titled:

Government Spying: Why You Can’t ‘Just Trust Us’

Go read it, you will be glad you did! Other than that, use this as an open thread for Trash Talk (GO SPURS!), and anything and everything else you want to yammer about.

Scott Bloch Sentencing Blocked By The Court

I have been a bit busy lately, so this is a tad late; but I should probably give the update on the Scott Bloch criminal sentencing that was scheduled for 9:30 am Monday morning May 13 in DC District Court in front of Judge Robert L. Wilkins. As you will recall, this blog has covered the Bloch case closely over the years due to its symbolism for government accountability and/or lack thereof.

The most recent coverage was immediately prior to the sentencing, and was in the form of a comprehensive post entitled “Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing”. As promised, a copy of said post was mailed to the court and it was entered on the docket. Several others sent letters as well, such as here for example.

The upshot is that Judge Robert L. Wilkins heard the voices. In what I can only describe as truly commendable, yet still refreshingly surprising, this is what happened at sentencing as described by Ann Marimow of the Washington Post:

The legal odyssey of Scott J. Bloch, the former head of the federal agency that protects government whistleblowers, continued Monday when a federal judge balked at proceeding with sentencing because of what he called an “improperly sanitized version of events.”
But U.S. District Judge Robert L. Wilkins chastised attorneys on both sides for presenting a narrow account of Bloch’s actions that the judge said doesn’t fully describe the conduct at issue. Wilkins said he was uncomfortable issuing a sentence until a fuller description of Bloch’s actions was in the record.

Sentencing documents, Wilkins noted, make little mention of Bloch’s previous deal with the U.S. Attorney’s Office in which he pleaded guilty to a misdemeanor charge of contempt of Congress.
In the current case, federal guidelines call for a sentence from zero to six months in prison. But prosecutors have agreed not to oppose a period of probation and want Bloch to pay a $5,000 fine and complete 200 hours of community service.

Wilkins suggested Monday, however, that he intends to consider Bloch’s conduct related to the previous case, which could expose him to jail time. The judge pointed specifically to Bloch’s position as a presidential appointee, a “position of public trust, operating with little oversight.”

Bloch’s sentencing hearing has been rescheduled for June 24.

We will try to do another update on status again before the next sentencing date on June 24. But, for now, hat’s off to Judge Robert L. Wilkins for hearing the voices of the public who object to the whitewash that was being applied to the misconduct in high office by Scott Bloch. Maybe there is hope for this Rule of Law thing after all.

Former Bush Special Counsel Scott Bloch Bullies Journalists and Threatens 1st Amend Speech Before Criminal Sentencing

CryingJusticeWhen this blog last substantively left the continuing saga of Bush/Cheney Special Counsel Scott Bloch, it was with these words:

So, between August 2, 2011 and December 21, 2012, a period of nearly a year and a half’s time, the DOJ has done nothing whatsoever in furtherance of prosecuting Scott Bloch. Until today. And the vaunted Department of Justice has, on the Friday before the Christmas holiday…..filed a Motion to Dismiss. However, that is not the end of the story, as clause 5 of the Motion to Dismiss contains this language:

Concurrent with this Motion to Dismiss, the government is filing a new information.

Well, not quite concurrent, as the Motion to Dismiss was filed mid to late morning, and the new information was just now made public. The new charge, a misdemeanor, is pursuant to 18 USC 1361 Depredation of Government Property or Contracts. The factual basis is made out from the “seven level wiping” Bloch caused to be done. Here is the new information just filed.

Yes, that is the “Reader’s Digest” version of how Scott Bloch came to be where he is now….awaiting sentencing in the United States District Court for the District of Columbia. For a crime that barely even references, much less is indicative of, the actual acts he committed against the United States Government, and the citizens it represents.

But, Bloch is indeed now facing sentencing on the latest cushy plea he has been afforded by the Department of Justice; sentencing scheduled for Monday May 13, 2013, less than one week from today. Here is Defendant Bloch’s sentencing memorandum, and here is the curiously collusive memorandum from the DOJ, who simply cannot stand for any Article II Executive Branch attorney being sent to jail/prison for lying to Congress because, seriously, many more might be in jeopardy if that was the case and precedent.

So, what is Mr. Scott Bloch doing? Taking his medicine quietly for having been given the gift plea by the DOJ to a misdemeanor after he actually committed such acts that appear by all legal rights to warrant felony allegations? Allegations as were described the last time Bloch was tried to be handed such a gift horse plea by the DOJ as:

…felony crimes Bloch could have been, and should have been, charged with are staggering; including obstruction of justice, false statements, perjury, willful destruction of government property and Federal Records Act violations. But Defendant Bloch made a deal to plead to one little misdemeanor with the guarantee he would be considered under the most favorable sentencing guideline conditions imaginable.

Nothing has changed; not a single underlying fact has changed in the least, and Bloch still stands imperious and unrepentant. Scott Bloch has never disputed the report of the sworn statement of facts he previously submitted to the court that clearly supports charges of far more serious conduct. Indeed, at this point, Mr. Bloch could not dispute said statement of facts without committing even more false statements and/or perjury.

What is truly shocking about Scott Bloch is not just that he is colluding with the Department of Justice to skate, as he is, because no Article II branch wants to set a contrary precedent, but what is really shocking is that Scott Bloch has had the hubris to threaten and bully independent bloggers who have spoken the truth about his misconduct.

It has come to this blog’s attention that Scott Bloch has authored one or more threatening and bullying letters, ahead of his criminal sentencing, to internet journalists reporting facts on his previous professional misconduct*. Letter(s) threatening the very root First Amendment freedoms of the press and free speech. A copy of one such letter is attached here, and spelled out in relevant form as follows:

I have been the subject of articles and blogs on your [redacted] website and blog site. The content and intent of these blogs/articles is to defame me by casting aspersions on my professional standing and ability to represent contractors.
I write to demand that you remove these articles and blogs about me and my time as Special Counsel immediately. This is harmful to my professional reputation as a lawyer and you are not commenting on any public matters that are current. The prior legal defense fund is defunct and has not been active for over two years. Your demeaning and personal attacks impute to me qualities that tend to injure me in my business of representing contractors. Your website is dedicate [sic] to them and therefore you are targeting my business in Washington, D.C. intentionally, and my residence in Virginia, from where I draw some of my clients.

If you choose to ignore this and not remove the materials from your internet site and blogs and all caches, I will be forced to sue for an injunction and to seek damages. As long as the article remains on your website, you are publishing it. In addition, you are publishing it in various fora, including in Virginia and Washington D.C. where I represent employees and federal employees [sic] Continuing publication also subjects you to Virginia jurisdiction as long as the article remains on the web. I will institute an action in Virginia and in Washington D.C. against you for defamation and actual malice, together with damages and punitive damages.1 I will also seek damages for civil conspiracy to harm my business, and Virginia courts and juries have proved to be very protective of one’s business reputation when gratuitously harmed by publications.2 If I determine through discovery that you have worked with others to do this, I will join them as well. (emphasis added)

Threatening not only freedom of speech and press, but the right to speak the truth. Mr. Bloch has hubris beyond description to think that discussion of the misconduct and facts he has admitted to, as factually depicted by his own sworn statement of facts, are beyond “commenting on any public matters that are current”. When HE IS PENDING CRIMINAL SENTENCING on those very same facts. The name and contact information of the recipient of this letter were redacted at the request of the recipient, who indeed fears the wrath of Bloch and his threats.

When Bloch could have been, and should have been, charged with FAR more serious federal crimes, Scott Bloch is out threatening citizen journalists reporting on his conduct. By the way, upon information and belief, the “legal defense fund” Mr. Bloch and/or his friends had set up for him was still up and on the internet as of the time the blog posts he complained of were written; it was just conveniently taken down before Bloch threatened the innocent bloggers for discussing it.

Threatening internet journalists who have reported facts about Mr. Bloch, and who object to what he has done in the name of the American people. Journalists who object to the skating kid gloves treatment curiously afforded Mr. Bloch by the DOJ despite his egregious, and admitted, acts.

Massive prosecutorial effort was expended by the DOJ on Roger Clemens, a man who, at worst, was accused of lying to Congress about taking a few shots of steroids while playing the game of baseball. The DOJ pursued another player of games, Barry Bonds every bit as relentlessly for years before getting a single count of obstruction of justice that is very likely to be thrown out on appeal.

The Department of Justice pursued these crimes, all for lying to Congress, far, far more aggressively compared to the silk hands treatment they have afforded their own former fellow Executive Branch attorney, Scott Bloch.

Roger Clemens and Barry Bonds lied about, at worst, whether they enhanced their ability to play a silly game (and none of that was proved). Scott Bloch ADMITTED to facts that, on their face, appear to constitute obstruction of justice, false statements, perjury, willful destruction of government property and Federal Records Act violations. There is a qualitative difference here, and it is hard to envision how it runs in favor of Mr. Bloch.

The dangerous and constitutionally subversive apparent (and admitted) acts of Scott Bloch, a man entrusted with representing, shepherding and protecting the lifeblood of honest government – whistleblowers meant to keep the government honest and forthright – betrayed every ounce of that trust. Bloch’s own stipulated facts described the office he was entrusted with as:

The United States Office of Special Counsel (“OSC”) is an independent federal agency charged with safeguarding the merit-based employment system by protecting federal employees and applicants from prohibited personnel practices (“PPP”). As such, OSC receives, investigates and prosecutes allegations of PPPs, with an emphasis on protecting federal government whistleblowers.

Bloch himself was accused of violating the very tenets of good government he was charged with protecting. Bloch scrubbed the very digital records of his federal agency that could, at least partially, document what he had done and perhaps substantiate the claims of whistleblowers in his own agency. And Bloch did it via a completely outside of the government, “Best Buy Geek Squad” self described “seven level wipe” of pertinent computers. Computers that belonged to the government, to the people of the United States. Computers and records subject to the the Federal Records Act. Then Bloch gave misleading and false information about his conduct to Congress.

The man, Scott Bloch, charged with protecting the watchers of the government, turned out to be the very man who violated and betrayed all three branches of Constitutional government at the same time. The effects are still being felt right now in the court Bloch is before. Yet, oddly, the DOJ seems to think Scott Bloch is infinitely less harmful than the likes of common ballplayers like Clemens and Bonds. How can that be?

It can only be if one is to be so absurd as to consider corruption of the very foundation of all three branches of government to be less important that cheating in a baseball game. When the Scott Bloch corruption of all three branches of government is ADMITTED and the ball field allegations are unproven. Yet, that is exactly where the record is with respect to Mr. Bloch and the DOJ.

And, so, sentencing is set for Scott Bloch on 5/13/2013 at 9:30 AM in Courtroom 27A before Judge Robert L. Wilkins. What should the court do with Mr. Bloch? The position here has not changed one iota since the sentencing letter we sent that stated before the last attempted sentencing of Bloch on a cushy plea deal from the DOJ:

The number and quality of felony crimes Bloch could have been, and should have been, charged with are staggering; including obstruction of justice, false statements, perjury, willful destruction of government property and Federal Records Act violations. But Defendant Bloch made a deal to plead to one little misdemeanor with the guarantee he would be considered under the most favorable sentencing guideline conditions imaginable. … It is scandalous and should not be permitted by the Court. There is, however, much more to this case than just that.

It is the duty of the federal court system to provide fair and impartial justice to those before it and to stand as one of the three co-equal branches of government with a solemn duty to protect the sanctity of the government and see that justice is done not just for the powerful and privileged, but for all. For a misdemeanor plea case, there are powerful and critical factors involved in the instant case which warrant consideration by the Court. Central is the question of whether there is now, and will be in the future, meaningful accountability for Executive Branch officials as to the crimes they commit in office and in the name of the United States citizenry.

As described at the start of this letter, our government and constitutional rule of law fails if Executive Branch officials can lie and destroy material evidence, not only to shield themselves from accountability, but to mask their efforts to deny legitimate governmental whistleblowers the light of day with which to inform and protect the public. It is truly that fundamental. And when you then compound the problem with fellow Executive Branch attorneys and officials colluding to minimize the crimes and frustrate even the minimum statutory punishment, the issue, and thus the case of Mr. Bloch, becomes of immense importance.

This Court should fulfill that duty, stand for the people and rule of law, and send a message to Mr. Bloch and subsequent Executive Branch officials that there is a penalty for criminal behavior in obstruction and contempt of Congress, and that it will be enforced.

And this, like the sentencing recommendation we made, is being formally sent to the United States District Court for the District of Columbia, care of Judge Robert L. Wilkens.

But, let this not be the only word on Mr. Bloch and his appropriate disposition; let us also consider the valid words of long time attorney John W. Cochrane, disciple of one of the greatest voices of the United States Circuit Court of Appeals for the District of Columbia, Judge Spottswood W. Robinson III:

Thirty-three years ago, it was my great honor to be selected by Hon. Spottswood W. Robinson III to serve as a Judicial Extern for three months. For a young man from the UCLA Law School, the opportunity to work with such a luminous and inspirational jurist, at such a phenomenal court, was something I have never stopped appreciating.

Judge Robinson instilled in me a deep respect for the Rule of Law, a reverence for the Constitution, and an abiding recognition that the courts of this country exist to assure and mete out Justice on an equal basis to all who come before them. I have gone on to become a partner in large American law firms and counsel to respected American companies; but it was the time I spent with Spottswood Robinson III, his clerks, and in the presence of his fellow judges, that I treasure most about my exposure to the Law in America. I am sure you understand exactly what I mean, and that you have the same feelings toward the position you are honored to hold in the courthouse you are able to work while overseeing a legal system dedicated to Equal Justice Under Law.

Please do not dishonor the memory of Judge Robinson, the sanctity of your Oath, and the preeminence of your Court – not to mention the romantic notions of a California lawyer who believes in the American system of justice – by allowing the present efforts of the Department of Justice to whitewash the despicable actions of Scott Bloch. Please, please, PLEASE send at least Scott Bloch to PRISON for the violations of law to which he has already pleaded guilty, and do NOT facilitate the cowardly and despicable efforts of the Justice Department to establish a principle that governmental criminals should be exempted from the Rule of Law when it comes to sentencing.

You know the arguments. You know you are being played by the DOJ, who are counting on you to rubber-stamp a pernicious end run around Justice, and you know that the DOJ wants nothing more than for you to do so quietly so as to not “cause a stir”.

Please have the courage of America’s convictions. Send Scott Bloch to prison.

Whether it is Judge Spottswood Robinson III, or Judge Deborah Robinson, the previous judge in this sorry case, the result should be the same. The DOJ and Mr. Bloch should NOT be allowed to skate with this level of sheer impunity. It is flat out a violation of the interest of the American people, the officials they deem to elect, and the trust they are entitled to preserve. The same trust this court is obligated to protect by protecting and imposing the Rule of Law.

Scott Bloch must not be allowed to walk from this egregious conduct, and this court, “scott free”. What is being pitched by both parties to this court is an affront to both justice and the Constitution of the United States and the court should sentence accordingly, both to bring accountability here, and to deter such conduct in the future.

Let the record so reflect.

[* = Mr. Bloch has not now, nor has he ever, threatened this blog; instead, he has preyed on smaller blogs (whose proprietors were, in fact, chilled by the First Amendment icing of Scott Bloch)]

Tsarnaev: Right to Counsel, Not Miranda, Is the Key

LadyJusticeWithScalesSince Dzhokhar Tsarnaev was taken into custody just over a week ago, the hue and cry in the public and media discussion has centered on “Miranda” rights and to what extent the “public safety exception” thereto should come into play. That discussion has been almost uniformly wrongheaded. I will return to this shortly, but for now wish to point out something that appears to have mostly escaped notice of the media and legal commentariat – Tsarnaev repeatedly tried to invoke his right to counsel.

Tucked in the body of this Los Angeles Times report is the startling revelation of Tsarnaev’s attempt to invoke:

A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. The exemption allows defendants to be questioned about imminent threats, such as whether other plots are in the works or other plotters are on the loose.

Assuming the accuracy of this report, the news of Tsarnaev repeatedly attempting to invoke right to counsel is critically important because now not only is the 5th Amendment right to silence in play, but so too is the right to counsel under both the 5th and 6th Amendments. While the two rights are commonly, and mistakenly, thought of as one in the same due to the conflation in the language of the Miranda warnings, they are actually somewhat distinct rights and principles. In fact, there is no explicit right to counsel set out in the Fifth at all, it is a creature of implication manufactured by the Supreme Court, while the Sixth Amendment does have an explicit right to counsel, but it putatively only attaches after charging, and is charge specific. Both are critical to consideration of the Tsarnaev case; what follows is a long, but necessary, discussion of why.

In fact, “Miranda rights” is a term that is somewhat of a misnomer, the “rights” are inherent in the Constitution and cannot be granted or withheld via utterance of the classic words heard every day on reruns of Law & Order on television. Those words are an advisory of that which suspects already possess – a warning to them, albeit a critical one.

In addition to being merely an advisory of rights already possessed, and contrary to popular belief, advising suspects of Miranda rarely shuts them down from talking (that, far more often, as will be discussed below, comes from the interjection of counsel into the equation). As Dr. Richard Leo has studied, and stated, the impact of Miranda on suspects’ willingness to talk to interrogators is far less than commonly believed. One study has the effect rate of Miranda warnings on willingness to talk at 16%; from my two plus decades of experience in criminal defense, I would be shocked if it is really even that high.

On top of this fact, the Miranda warnings relate only to the admissibility of evidence or, rather, the inadmissibility – the exclusion – of evidence if it is taken in violation of Miranda. Professor Orin Kerr gives a great explanation here.

Since there is, without any real question, more than sufficient evidence to convict Tsarnaev without the need for admissibility of any verbal confession or other communicative evidence he may have provided the members of the HIG (High Value Detainee Interrogation Group), the real question was never “Miranda” but when Tsarnaev would be presented to the court which, in turn, would determine when he would be given access to counsel. Not surprisingly, one of the first people I saw to correctly point this out was Marcy Wheeler:

Folks: FAR more important, IMO, than Miranda is presentment. If he sees a judge in 2 days she’ll make sure he gets a lawyer.

That could not have been more true, as was demonstrated on Monday morning, April 22, when Magistrate Judge Marianne Bowler went to the Beth Israel Deconess Medical Center where Tsarnaev was receiving treatment in custody. Also present was William Fick and Miriam Conrad (fascinating look at Conrad and her history here) of the Federal Public Defender’s office in Boston. Fick, who speaks fluent Russian, and Conrad met with Tsarnaev immediately before the formal initial appearance process and represented him in the brief actual initial appearance itself.

So, all is as it should be because Tsarnaev got the initial appearance he was entitled to by law, right? No.

First off, there is the timing of the initial appearance, sometimes also colloquially referred to as “presentment”. The initial appearance is governed by Rule 5 of the Federal Rules of Criminal Procedure (FRCrP). While you may have seen mention of “within 48 hours”, the rule itself provides only that an arrested person must be taken before a magistrate “without unnecessary delay”. The “48 hours” standard for first court appearances comes from the 1991 case of County of Riverside v. McLaughlin, which held that 48 hours was the outside limit. The importance of the Rule 5 initial appearance was cemented by the Supreme Court as recently as 2009 in the case of Corley v. United States (which even suggests delays longer than six hours may be presumptively violative).

But the 48 hour limit was not honored, in either spirit or letter, by the federal authorities in charge of the detention and interrogation of Dzhokhar Tsarnaev. The formal taking into custody of Tsarnaev, the arrest, was effected and announced at 8:45 pm EST Friday night April 19 and, as evidenced by the complaint cover sheet filed with the court, Tsarnaev was immediately in federal custody. The criminal complaint signifying the formal charging of Tsarnaev is noted by Judge Bowler to have been sworn out to her at 6:47 pm on Sunday, April 21. So, Tsarnaev was charged within 48 hours of his arrest, but he was not given his initial appearance within 48 hours, as required by Rule 5 FRCrP, County of Riverside v. McLaughlin and Corley.

The Rule 5 initial appearance was finally given to Dzhokhar Tsarnaev Monday morning April 22, as evidenced by the official transcript of the proceeding. The specific sequence and timing of these events is critical because of the nature and timing of the interrogation of Tsarnaev prior to him being advised of his Miranda warnings by Judge Bowler. It appears as if there were two substantive interrogation sessions by the HIG team, a fact reported by no less than Ray Kelly, based upon claimed briefing by the federal authorities:

The police commissioner explained that was the original story that Dzhokhar told police when they began to interrogate him in the hospital, but that he later provided a more detailed account during a subsequent interview.

Both interviews appear to have happened before authorities read the younger Tsarnaev brother his Miranda rights on Monday. According to Kelly, Dzhokhar was interrogated twice by authorities in the hospital, the first time on “Saturday evening into Sunday morning” and the second on “Sunday evening into Monday morning.” According to an Associated Press report from earlier today, the questioning lasted a total of 16 hours before Dzhokhar stopped cooperating upon being informed of his right to remain silent.

Remember, however, from above, that “Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule”. This is where the Miranda, the public safety exception and right to counsel all intersect for Mr. Tsarnaev. Frankly, the government has issues on all of those fronts, but let us first look at the one that has been most discussed, and cowardly demagogued by the likes of House Intel Chairman Mike Rogers and NY Congressman Peter King, the most – Miranda and the “public safety exception”.

Professor Erwin Chemerinsky, in the Los Angeles Times, explains the nuts and bolts of the “exception”, and why it arguably does not apply to Tsarnaev’s situation:

Holder said on the Sunday talk shows that the government intended to invoke the “public safety exception” that allows suspects to be questioned without being given Miranda warnings in emergency circumstances. But this exception does not apply here because there was no emergency threat facing law enforcement.

The emergency exception to Miranda that Holder embraced was announced by the Supreme Court in New York vs. Quarles in 1984. A woman told the police that she had been raped by a man with a gun. When the police caught the suspect in a grocery store, they saw an empty holster and no gun. The man was asked about the location of the gun, and he told the officer where to find it.

The Supreme Court ruled that, although the suspect had not yet been given Miranda warnings, the statement about the gun was admissible against him because of the urgent need to find the gun. In other words, the public safety exception applies only when police are acting in an emergency to prevent serious immediate harm. If the police needed to question Tsarnaev as to the location of other bombs, the emergency exception would apply.

The New York v. Quarles case Chemerinsky discusses as setting out the public safety exception can be found here. In light of the fact that not only had multiple voices, from Attorney General Holder, to President Obama, to a myriad of investigation authorities, both local and federal, stated there was no evidence of further threat, there is some merit to Professor Chemerinsky’s opinion on the Quarles exception not being applicable to Tsarnaev by the time his interrogation commenced on Saturday April 20.

Of course, the DOJ did not rely on Quarles alone, they also invoked their now infamous “”Public Safety Exception Memo” first incarnated in a memo from Attorney General Holder dated October 19, 2010, and formally distributed in a cleaned up version dated October 21, 2010. The memo goes beyond the basic immediate public safety questions permitted by Quarles to allow further broader ranging questions:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment. (Emphasis added)

Let us give the DOJ and HIG team the benefit of the doubt under Quarles, and even their own self-stated memo (which is neither binding nor controlling law in any regard), and grant that some base level of questioning of Tsarnaev was reasonable to confirm there were no outstanding bombs, weapons or other dangers, and no outstanding co-conspirators and/or terrorist ties, whether domestic or foreign. In fact, there is court precedent in a recent case via the decision of Judge Nancy Edmunds to uphold this use of the public safety exception, in the case of the “Undie Bomber”, Umar Farouk Abdulmutallab

Grant all of these root questions, and the bolded language – from the Obama DOJ’s own Public Safety Exception Memo – delineates why there is still a significant problem with the treatment of Tsarnaev. The Rule 5 initial appearance, i.e. “presentment”, was not complied with as to Tsarnaev, and public safety questioning can neither appropriately nor legitimately delay it.

In fairness to the Obama DOJ, who has been roundly blasted for the Public Safety Exception Memo, they arguably could have gone further and not included the such strong guidance against violation of Rule 5. There is authority from both the Ninth Circuit in United States v. DeSantis, 870 F.2d 536, 541 (9th Cir. 1989), and the Fourth Circuit in United States v. Mobley, 40 F.3d 688, 692–93 (4th Cir. 1994), cert. denied, 514 U.S. 1129 (1995), for the proposition that, like Miranda, the right to counsel can give way briefly for the public safety exception under Quarles.

The extensions of the public safety exception to right to counsel by the courts in Desantis and Mobley, however, give little, if any, support to the government’s actions vis a vis Mr. Tsarnaev, because the intrusion into the constitutional right to counsel in both the other cases was so fleeting – in both it was no more than a question or two about a weapon on the premises of a search while the search warrant was actively being executed. Nothing whatsoever like the 16 hours of interrogation applied to Tsarnaev, across at least two sessions, over a period of at least two days. The “public safety” interrogation of Tsarnaev was not immediate to potential danger, was not narrow and limited, and occurred long after he had been taken into custody. And, apparently, at least as to one of those sessions, the “Sunday evening into Monday morning” session, the interrogation occurred well after formal charges had been filed with Judge Bowler.

Let’s take a look at the “right to counsel”, why it differs, and is arguably far more important in the Tsarnaev scenario than utterance of the “Miranda warnings”. The right to counsel during custodial police interrogations emanates from the seminal 1964 case of Escobedo v. Illinois. The language of the decision syllabus reflects the bright line rule announced by the court:

…where a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect in police custody who has been refused an opportunity to consult with his counsel and who has not been warned of his constitutional right to keep silent, the accused has been denied the assistance of counsel in violation of the Sixth and Fourteenth Amendments; and no statement extracted by the police during the interrogation may be used against him at a trial.

Escobedo, as direct law, was implicitly obviated two years later by the decision in Miranda v. Arizona, where the court suddenly, and somewhat curiously, placed the right to custodial interrogation counsel under the umbrella of the Fifth Amendment instead of the Sixth.

The primacy, and fundamental nature of the right to custodial interrogation counsel, however, was confirmed in the 1981 decision of Edwards v. Arizona, where the court held suspects have the right under the Fifth and Fourteenth Amendments to have counsel present during custodial interrogation, as declared in Miranda, and that right cannot be invaded absent a clear and valid waiver. While it is true, under Berghuis v. Thompkins, a suspect must affirmatively invoke his right to counsel as opposed to simply standing silent, there is no authority for interrogators to simply ignore and frustrate, over an extended period, a suspect’s express request for counsel as appears to have occurred in Tsarnaev’s case.

Once, however, a defendant is presented to the court for initial appearance, he will be afforded counsel, and counsel will in almost all cases stop immediate questioning, both to prevent incrimination and to preserve evidence as leverage for plea negotiations. That is exactly what a defense counsel should do, and exactly what our constitutional system of justice and protections contemplates. This is also exactly why the Rule 5 presentment, and not “Miranda”, has always been the critical concern in analyzing the Tsarnaev case, and still is. Once legitimate general questions as to public safety had been asked, Tsarnaev should have been afforded his Rule 5 initial appearance and access to counsel. Clearly Judge Bowler was available on Sunday the 21st, since, as previously noted, she was available to accept the swearing and filing of the criminal complaint.

Again, the timing of the interrogation, and requests for counsel, will prove critical. There are still many questions and facts to be locked down on these issues including, but not limited to:

When in the timeline did Dzhokhar Tsarnaev first invoke by requesting counsel?

How many times did he attempt to do so?

In light of the fact much of his communication to the HIG interrogators was reportedly written, were his attempts to invoke in writing too?

How did the interrogation team document Tsarnaev’s non-written responses in light of the difficulty he had in communicating?

Was there a video or audio record made to preserve the evidence?

Did Tsarnaev provide any evidence that would warrant continuation of the Quarles public safety questioning?

In light of the fact that Undie Bomber Abdulmutallab (who actually had layers of foreign terrorist ties and activities outside of the continental US) was only questioned for 50 minutes under the public safety exception, why did Tsarnaev (who had no such ties or activity) require 16 hours of interrogation over two full days, substantial portions of which were after charges were filed?

The bottom line is this: not telling a suspect about his rights in order to try obtain brief, immediate and emergency public safety information is one thing. Straight out denying and refusing a defendant constitutional rights he is legally entitled to, and has tried to invoke, is quite another. The government has issues on both fronts as to Tsarnaev.

The other thing that must be remembered is all of the foregoing likely only affects the admissibility of evidence communicated in the relevant period by Tsarnaev, not the legality of his detention and not the ability of the government to convict him. At best, it involves evidentiary exclusion principles only. There is, by all accounts, more than enough evidence to convict the man without anything he communicated being admitted in a trial (if indeed there ever is a trial). Dzhokhar Tsarnaev will not be walking free in society again no matter how it sorts out. Big and emotionally fraught cases of national interest rarely make for good, and sound, creation of law and the Tsarnaev case is no exception.

How the Tsarnaev facts and case is discussed, sorted out in court, and what foundation it lays for future cases – and there will be future cases – does, however, speak loudly as to who we are as a nation. Are we the cowering nation of supposed leaders such as Mike Rogers and Peter King, or are we the strong and resolute one envisioned by our Founding Fathers and protected by the constitutional rights they bequeathed us with? Recent polls have shown that Americans are increasingly “skeptical about sacrificing personal freedoms for security.” The people have that right, we should listen to them.

ICRC President Visits Obama, Brennan, Hagel Regarding “International Humanitarian Law”

ICRC President Peter Maurer (Wikimedia Commons)

ICRC President Peter Maurer (Wikimedia Commons)

Peter Maurer, President of the International Committee of the Red Cross, yesterday completed four days of meetings with US officials in Washington. According to the blog site for the ICRC, Maurer met with President Barack Obama, senior members of Congress and a number of high-ranking government figures, including “Secretary of Defense Chuck Hagel, Secretary of Homeland Security Janet Napolitano, Director of National Intelligence James Clapper, Director of the Central Intelligence Agency John Brennan, Deputy Secretary of State William Burns, and Deputy Attorney General James Cole.”

It is perhaps not surprising that since there is a widespread hunger strike at Guantanamo (and since the ICRC visited Guantanamo earlier this month), detention issues were high on the list of topics for the meetings:

A focus of Mr Maurer’s visit was detention-related matters. “The United States, including its Congress, must urgently find a way to resolve all pending humanitarian, legal and policy issues relating to the detention of persons held at Guantanamo Bay, including those deemed to no longer represent a threat that justifies their continued detention there,” said Mr Maurer.

But Guantanamo was not the only topic. It comes as a welcome development to me that Maurer would widen the scope of discussion with key figures such as Obama, Brennan and Hagel to remind them of their duties under international humanitarian law:

“We enjoy a robust and multi-faceted dialogue with the United States, and my visit was an opportunity to discuss issues and contexts of mutual concern such as Syria and Afghanistan,” said Mr Maurer. “The United States values the mandate, positions and input of the ICRC and I am confident that this interaction will continue to bring concrete results, notably in terms of implementation of and respect for international humanitarian law in current and future battlefields.”

Especially when it comes to Obama and Brennan, it is striking that this statement can be construed as saying that the US needs to implement international humanitarian laws and to respect them. Although not stated outright, it is impossible to come to any other conclusion than to believe that the ICRC now believes that the US does not abide by international humanitarian law. I would think that the US practice of targeted killings, which is viewed by the UN as an issue for international law (and where the UN has called “double tap” drone strikes war crimes) would likely have been a topic for Maurer when talking with Brennan, who has played a key role in ordering drone strikes.

Sadly, I don’t share the ICRC’s optimism regarding our government’s respect for the “mandate, positions and input of the ICRC”. We need look no further than the sad news out of Guantanamo yesterday where it now appears that hundreds of thousands of confidential files and communications belonging to Guantanamo defense lawyers have been provided to the prosecution. In addition, a number of key files seem to have disappeared. From Carol Rosenberg:

At issue has been the disappearance recently of certain defense documents off what was thought to be a secure hard drive at the Office of Military Commissions. Technicians were creating a mirror of the war court’s server, so lawyers could work on their documents between the Pentagon region and the crude war court compound at the remote Navy base in Cuba, and documents on both the Cole and Sept. 11 death penalty cases simply vanished.

“I honestly don’t know how bad it is. All I know is that the information systems have been impacted, corrupted, lost,” Mayberry said, describing the lost work product by 9/11 defense lawyers as of a greater magnitude than the Cole case.

There is more from the New York Times:

The latest delay traces back to an effort by Pentagon technical staff to find records about plea negotiations in another tribunal case. The records had been requested by a military commissions appeals court, according to several military officials. But when prosecutors began going through the records, they discovered that they included confidential e-mails between defense lawyers. Prosecutors alerted the defense and the court to the problem, but several additional searches continued to sweep up confidential records.
The problem brought to light the potential accessibility of confidential lawyer-client e-mails to outsiders. As a result, the chief military commissions defense lawyer ordered all military defense lawyers not to use their e-mail system until it can be made secure.
“We need to try to get some idea of the scope of the intrusions, and the second piece of it is how do they get fixed,” said Richard Kammen, a civilian defense lawyer for Mr. Nashiri. “It’s not realistic to practice law in an environment where outside agencies can come in and look at attorney-client or work product materials.”

But it is in the Washington Post where we get a feel for the true scope of the problem:

The military justice system at Guantanamo Bay, Cuba, which has been dogged by charges of secret monitoring of proceedings and defense communications, became embroiled in a fresh controversy Thursday when it was revealed that hundreds of thousands of defense e-mails were turned over to the prosecution.

Wow. Hundreds of thousands of defense emails turned over to the prosecution, and yet there is still an effort to claim that this was not an intentional breach? I think I agree with defense attorney James Connell:

“Is there any security for defense attorney information?” said James Connell, attorney for Ali Abdul Aziz Ali, one of the Sept. 11 defendants. “This new disclosure is simply the latest in a series of revelations of courtroom monitoring, hidden surveillance devices and legal-bin searches.”

Recall also the actions of OCA (Original Classification Authority) in censoring courtroom transmissions without the consent of the presiding judge. Guantanamo is clearly spiraling out of control as it moves further and further into lawlessness. Recall also that just as the ICRC was visiting Guantanamo, the issue of drinking water came up. Prisoners complained that their supply of bottled water was cut off and they were advised by guards to drink the tap water. Despite claims by authorities at Guantanamo that the tap water is safe, defense attorneys maintain that Guantanamo’s tap water has always been considered not to be potable. Further support for that position came yesterday when Jason Leopold posted this tweet:

It’s a good thing someone is lecturing the Obama administration on humanitarian law, because right now they seem to be ignoring it on a number of fronts.

Odds and Ends

First off, let’s wish Marcy a big Happy Birthday! The woman is doing nothing but getting younger and smarter. Amazing.

Secondly, my fine Emptywheel friends, I’d like to apologize, I got a little sidetracked today with some work and duties with my daughter, Jenna. And, honestly, far more of my day was spent learning about some of the players and watching the action in Twitter Fight Club. While our own @emptywheel met her unfortunate demise in the second round (without question hampered by her lack of access to internet connection), I was somehow or another asked to judge the Elite Eight, which is taking place today. If you want to weigh in with your votes, all the Twitter Fight Club info is here. These are all excellent people participating in this game, and it is really a lot of fun. I have, just today, been exposed to several people I did not previously regularly track, even though I knew who they were.

The downside is, for all these reasons, plus now that there is once again a three hour difference between me and the east coast, I am hopelessly deep in the day without having written any substantive posts. In light of that, I will post a couple of interesting quick hits for discussion and make this an open thread for those subjects and all other things generally.

First up: A bit of a weird case was announced today in the Eastern District of Virginia (EDVA). An American citizen, Eric Harroun, was arrested for what appears to be pretty much only foreign terroristic acts:

A former Army soldier from Phoenix who joined rebels fighting the Syrian government and boasted to FoxNews.com of his exploits as a Muslim soldier of fortune earlier this month was arrested Wednesday in Virginia and could face life in prison.

Eric Harroun, 30, who left the Army in 2003 on full disability pay after a truck accident, was charged with conspiring to use a rocket-propelled grenade while fighting with the al-Nusrah Front, an organization also known as Al Qaeda in Iraq. Harroun, who was in Syria or Turkey when he spoke to FoxNews.com by Skype, was nabbed shortly after flying in to Dulles International Airport after a voluntary interview with FBI agents, according to a criminal complaint filed Thursday.

There are all kinds of fascinating about this story. For one, Harroun was just featured in a big story in Foreign Policy. The FP story was only dated March 22, so the timing of when they really interacted with Harroun (the earliest date FP noted was March 2nd and the latest March 16th) in relation to the time and circumstances of his arrest are interesting. Here is the critical affidavit filed on him in EDVA so far. And here is a piece by Bobby Chesney at Lawfare on the Harroun announcement, and I completely agree with him about the curious disconnect between the charge maybe called for under 18 USC 2339(D) and the one contained in the one page, fill in the blank complaint that was filed, of 18 USC 2332(a)(b).

Second, the Sweet Sixteen is underway. I have a rooting interest in the Arizona Wildcats, who are playing an evil Bit 10.2 team, Ohio State. Go Cats! also on tap tonight are Marquette/Miami, Syracuse/Indiana and, in a battle of surprise teams, Wichita State/La Salle. These are all fantastic games, but I think the Buckeyes, Marquette and Indiana will likely win out. The one that is a crap shoot and really fascinating is the Wichita State Shockers and the La Salle Explorers. The Shockers have big and tough inside and the Explorers have guards. I always default to killer guard play in the tournament, and I will ride with La Salle.

Okay, what else you got? Whether in the news, March Madness, or anything else, let fly.

Copyright © 2021 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/obama-administration/page/4/