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The NY Times, Sekulow and Dowd’s Sophistry and Trump’s King Like Viewpoint

I have obligations that I seriously must run out the door for, but this need to be posted so that it can be dissected. The inestimable crew of Haberman, Schmidt et. al have posted a rather amazing letter 20 page letter issued on behalf of Trump by his attorneys at the time, Jay Sekulow and John Dowd. There is a minimum of mockery of the effort, which I will attribute to the contributions of Charlie Savage and Matt Apuzzo, who have the curious, too often for the Times, habit of actually appropriately reading legal things with an eye to what they really represent.

This “letter” is one of the most ridiculous pieces of legal sophistry I have ever seen in my life. It, without an iota of shame or self reflection, brazenly place Trump as not just a King, but a God like entity that far outstrips the importance of the rule of law or separation of powers the Founders intended.

So, I am leaving this here until either Marcy or I come back to it later. Read the damn thing. Weep for your country and the shreds of its Constitution before Trump and his lackeys burn what’s left.

Garr King’s Speculative FISA Ruling

Garr King, the judge in Mohamed Osman Mohamud’s case, has refused Mohamud’s demand for broad discovery into the government’s failure to notice him about the Section 702 surveillance they used to bust him.

Before I get into the substance of King’s ruling, take a look at how King dismisses the reporting–almost exclusively from NYT’s Charlie Savage–about how, upon having lied to SCOTUS, Solicitor General Don Verrilli pushed to change DOJ’s policy on notice about Section 702. Here’s King:

Defendant bases his argument, in part, on events concerning Clapper, 133 S. Ct. 1138. The Solicitor General argued to the Court that the government provided notice to defendants when evidence was derived from § 1881a surveillance. Plaintiffs had not received such notice, so the Court ruled plaintiffs had no standing to challenge the constitutionality of the FAA. Id. at 1143, 1148. Newspapers began to speculate about an internal Justice Department debate on providing notice in these circumstances. Defendant received his Supplemental Notification thereafter. [my emphasis]

That is, King dismisses clear evidence of DOJ misconduct by claiming the reporter — Savage — was just speculating.

Here’s the reporting King bases that “speculate” claim on:

Prosecutors plan to inform the defendant about the monitoring in the next two weeks, a law enforcement official said. The move comes after an internal Justice Department debate in which Solicitor General Donald B. Verrilli Jr. argued that there was no legal basis for a previous practice of not disclosing links to such surveillance, several Obama administration officials familiar with the deliberations said.

[snip]

In February, the Supreme Court dismissed a case challenging its constitutionality because the plaintiffs, led by Amnesty International, could not prove they had been wiretapped. Mr. Verrilli had told the justices that someone else would have legal standing to trigger review of the program because prosecutors would notify people facing evidence derived from surveillance under the 2008 law.

But it turned out that Mr. Verrilli’s assurances clashed with the practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant.

 [snip]

Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials.

The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.

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Shaker Aamer: “Guards Using Ramadan to Massage Numbers” on Gitmo Hunger Strike

When this Charlie Savage story came out yesterday in the New York Times, my spidey senses went all tingly. Something just didn’t feel right:

An American military spokesman said Sunday that 15 detainees at the military prison at Guantánamo Bay, Cuba, who had been listed as having gone on hunger strike had quit participating in the protest, accelerating an apparent downward trend since the start of Ramadan last week.

The spokesman, Lt. Col. Samuel House, said in an e-mail that as of Sunday, 81 of the 166 prisoners were still listed as taking part in the hunger strike. That figure was down from 96 on Saturday, 102 on Friday, 104 on Thursday and 106 on Wednesday, the number at which participation in the protest had peaked and plateaued.

Even Savage seemed to realize that given the way head guard John Bogdan has manipulated the prisoners and especially the hunger strikers, there could perhaps be more to this story:

But David Remes, a defense lawyer who represents several Guantánamo detainees in habeas corpus proceedings, expressed skepticism in an e-mail and said he wanted to talk to his clients before drawing any conclusions about what the military was reporting.

“Perhaps the authorities finally made hunger striking such a horrendous experience that some men, at least, are dropping out,” Mr. Remes said. “Perhaps some men feel the hunger strike has achieved its goals by forcing Guantánamo back onto the national agenda and jump-starting the transfer process. There are still other ways to read the numbers. Until we speak with our clients, we can only speculate.”

It turns out that the skepticism is well-founded. From the Guardian:

But lawyer Clive Stafford Smith said his client Shaker Aamer had told him on Friday that guards were using Ramadan to massage the numbers.

“The military are cheating on the numbers as usual. Some detainees are taking a token amount of food as part of the traditional breaking of the fast at the end of each day in Ramadan, so that is now conveniently allowing them to be counted as not striking,” Stafford Smith said.

Aamer – who has been held at Guantánamo for more than 11 years yet never charged – also claimed during a phone call with Stafford Smith that fellow inmates were being punished by being held in isolation during Ramadan if they refused to eat.

Isn’t that interesting? We have flip sides of the same story. Savage informs us that the guards moved prisoners who are no longer participating in the hunger strike back into communal living areas where they can pray together, while Aamer’s take on the same situation suggests that isolation is used a tool to punish those who still refuse to eat.

Considering the history of John Bogdan and the emerging questions over his fitness to retain command of the guard detail at Guantanamo, it is not surprising that Ramadan practices would be used to game the numbers on the hunger strike while continuing to inflict punishment on those who continue the strike.

Remember, the US military has a strong reputation to uphold when it comes to an understanding of the effects of Ramadan fasting and its use as a propaganda tool.

The Kiriakou Conundrum: To Plea Or Not To Plea

There are many symbols emblematic of the battle between the American citizenry and the government of the United States in the war of transparency. One of those involves John Kiriakou. Say what you will about John Kiriakou’s entrance into the public conscience on the issue of torture, he made a splash and did what all too few had, or have since, been willing to do. John Kiriakou is the antithesis of the preening torture monger apologist in sullen “big boy pants”, Jose Rodriquez.

And, so, people like Kiriakou must be punished. Not by the national security bullies of the Bush/Cheney regime who were castigated and repudiated by an electorate who spoke. No, the hunting is, instead, by the projected agent of “change”, Barack Obama. You expect there to be some difference between a man as candidate and a man governing; the shock comes when the man and message is the diametric opposite of that which he sold. And, in the sling of such politics, lies the life and fate of John Kiriakou.

Why is the story of John Kiriakou raised on this fine Saturday? Because as Charlie Savage described, Kiriakou has tread the “Path From Terrorist Hunter to Defendant”. Today it is a path far removed from the constant political trolling of the Benghazi incident, and constant sturm and drang of the electoral polling horserace. It is a critical path of precedent in the history of American jurisprudence, and is playing out with nary a recognition or discussion. A tree is falling in the forrest and the sound is not being heard.

You may have read about the negative ruling on the critical issue of “intent to harm” made in the federal prosecution of Kiriakou in the Eastern District of Virginia (EDVA) last Tuesday. As Josh Gerstein described:

Prosecutors pursuing former CIA officer John Kiriakou for allegedly leaking the identities of two other CIA officers involved in interrogating terror suspects need not prove that Kiriakou intended to harm the United States or help a foreign nation, a federal judge ruled in an opinion made public Wednesday.

The ruling from U.S. District Court Judge Leonie Brinkema is a defeat for Kiriakou’s defense, which asked the judge to insist on the stronger level of proof — which most likely would have been very difficult for the government to muster.

In 2006, another federal judge in the same Northern Virginia courthouse, T.S. Ellis, imposed the higher requirement in a criminal case against two former lobbyists for the American Israel Public Affairs Committee.

However, Brinkema said that situation was not parallel to that of Kiriakou, since he is accused of relaying information he learned as a CIA officer and the AIPAC staffers were not in the government at the time they were alleged to have received and passed on classified information.

“Kiriakou was a government employee trained in the classification system who could appreciate the significance of the information he allegedly disclosed. Accordingly, there can be no question that Kiriakou was on clear notice of the illegality of his alleged communications.

Gerstein has summarized the hard news of the court ruling admirably, but there is a further story behind the sterile facts. By ruling the crucial issue of “intent” need not be proven by the accusing government, the court has literally removed a critical element of the charge and deemed it outside of the due process proof requirement, much less that of proof beyond a reasonable doubt.

What does that mean? In a criminal prosecution, it means everything. It IS the ballgame.

And so it is here in the case of United States v. John Kiriakou. I am going to go a little further than Gerstein really could in his report, because I have the luxury of speculation. As Josh mentioned:

On Tuesday, Brinkema abruptly postponed a major motions hearing in the case set for Wednesday and a hearing set for Thursday on journalists’ motions to quash subpoenas from the defense. She gave no reason for canceling the hearings.

HELLO! That little tidbit is the everything of the story. I flat out guarantee the import of that is the court put the brakes on the entire case as a resultnof an off the record joint request of the parties to facilitate immediate plea negotiation. As in they are doing it as you read this.

There is simply no other reason for the court to suspend already docketed process and procedure in a significant case, much less do so without a formal motion to extend, whether by one party or jointly. That just does not happen. Well, it does not happen unless both parties talked to the court and avowed a plea was underway and they just needed the time to negotiate the details.

So, what does this mean for John Kiriakou? Nothing good, at best. Upon information and belief, Kiriakou was offered a plea to one count of false statements and no jail/prison time by the original specially designated lead prosecutor, Pat Fitzgerald. But the “word on the street” now is that, because the government’s sheriff has changed and, apparently, because Kiriakou made an effort to defend himself, the ante has been ridiculously upped.

What I hear is the current offer is plead to IIPA and two plus years prison. This for a man who has already been broken, and whose family has been crucified (Kiriakou’s wife also worked for the Agency, but has been terminated and had her security clearance revoked). Blood out of turnips is now what the “most transparent administration in history” demands.

It is a malicious and unnecessary demand. The man, his family, and existence are destroyed already. What the government really wants is definable precedent on the IIPA because, well, there is not squat for such historically, and the “most transparent administration in history” wants yet another, larger, bludgeon with which to beat the baby harp seals of whistleblowing. And so they act.

To date, there have been no reported cases interpreting the Intelligence Identities Protection Act (IIPA), but it did result in one conviction in 1985 pursuant to a guilty plea. In that case, Sharon Scranage, a former CIA clerk, pleaded guilty for providing classified information regarding U.S. intelligence operations in Ghana, to a Ghanaian agent, with whom she was romantically involved. She was initially sentenced to five years in prison, but a federal judge subsequently reduced her sentence to two years. That. Is. It.

So, little wonder, “the most transparent administration in history” wants to establish a better beachhead in its fight against transparency and truth. John Kiriakou is the whipping post. And he is caught in the whipsaw….prosecuted by a maliciously relentless government, with unlimited federal resources, and reliant on private defense counsel he likely long ago could no longer afford.

It is a heinous position Kiriakou, and his attorneys Plato Cacheris et. al, are in. There are moral, and there are exigent financial, realities. On the government’s end, as embodied by the once, and now seemingly distant, Constitutional Scholar President, and his supposedly duly mindful and aware Attorney General, Eric Holder, the same moralities and fairness are also at issue. Those of us in the outside citizenry of the equation can only hope principles overcome dollars and political hubris.

Eric Holder, attorney general under President Barack Obama, has prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.
….
“There’s a problem with prosecutions that don’t distinguish between bad people — people who spy for other governments, people who sell secrets for money — and people who are accused of having conversations and discussions,” said Abbe Lowell, attorney for Stephen J. Kim, an intelligence analyst charged under the Act.

The once and previous criticisms of John Kiriakou, and others trying to expose a nation off its founding tracks, may be valid in an intellectual discussion on the fulcrum of classified information protection; but beyond malignant in a sanctioned governmental prosecution such as has been propounded against a civilian servant like John Kiriakou who sought, with specificity, to address wrongs within his direct knowledge. This is precisely where, thanks to the oppressive secrecy ethos of the Obama Administration, we are today.

Far, perhaps, from the “hope and change” the country prayed and voted for in repudiating (via Barack Obama) the festering abscess of the Bush/Cheney regime, we exist here in the reality of an exacerbated continuation of that which was sought to be excised in 2008. Kiriakou, the human, lies in the whipsaw balance. Does John Kiriakou plead out? Or does he hold out?

One thing is certain, John Kiriakou is a man, with a family in the lurch. His values are not necessarily those of those of us on the outside imprinting ourselves on him.

If the government would stop the harp seal beating of Mr. Kiriakou, and at least let the man stay with his family instead of needlessly consuming expensive prison space, that would be one thing. But the senseless hammer being posited by the out for blood successor to Patrick Fitzgerald – Neil MacBride, and his deputy William N. Hammerstrom, Jr. – is scurrilous.

Rest assured, far from the hue and cry on the nets and Twitters, this IS playing out on a very personal and human scale for John Kiriakou while we eat, drink and watch baseball and football this weekend.

Is Anwar al-Awlaki The Unnamed “National of the United States” In Warsame Indictment?

As Marcy noted Tuesday afternoon, and has been large in the news the last two days, there is a new terrorism prosecution announced by Eric Holder and the Obama DOJ. The case concerns Ahmed Abdulkadir Warsame, and is interesting in that Warsame is alleged to be a member/leader of al-Shabaab, and none of the allegations involve acts of plots against the US or its citizens directly.

In fact, the only significant nexus to the United States contained within the indictment unsealed against Warsame is that he:

…conspires with a national of the United States…

This is unusual as to the complete lack of description and details about the “national of the United States” and the complete absence of any information indicating the nature of conspiracy and/or contact with the “national of the United States. To be fair, a charging document is not legally required to be a “speaking indictment” that fully lays out every minute detail of the jurisdiction, venue and facts; although this one is one of the more silent ones I have seen in a long time from the DOJ.

But, what is really fascinating is this today from Charlie Savage at the New York Times:

Meanwhile, new details emerged about Mr. Warsame’s detention on a Navy ship after his capture in April aboard a fishing skiff between Yemen and Somalia, and about internal administration deliberations on legal policy questions that could have implications for the evolving conflict against Al Qaeda and its affiliates.

A senior counterterrorism official said Wednesday that Mr. Warsame had recently met with Anwar al-Awlaki, the American-born radical cleric now hiding in Yemen. After his capture, he was taken to the Boxer, an amphibious assault ship that was steaming in the region and has a brig, a senior military official said.

While Mr. Warsame is accused of being a member of the Shabab, which is focused on a parochial insurgency in Somalia, the administration decided he could be lawfully detained as a wartime prisoner under Congress’s authorization to use military force against the perpetrators of the Sept. 11, 2001, attacks, according to several officials who spoke on the condition of anonymity to discuss security matters. (emphasis added)

So, we have Warsame allegedly “conspiring” with a “national of the United States” in the indictment with the identity and circumstances being unusually and ridiculously guarded and vague; and now we have Warsame having had contact with Awlaki.

Gee, I wonder what the odds are they are one in the same person???

Because, as you may remember, Awlaki is so secret that the US government saw fit to declare state secrets rather than explain to Awlaki’s parents why they feel justified to violently assassinate their son, a US citizen, without so much as a speck of due process. Now, I guess a guy that secret is someone the government might just be really vague about in an indictment of some tangential corollary person, say Warsame, for instance.

So, is it truly the case that Awlaki is indeed the unnamed “national of the United States” here in the Warsame indictment? I don’t know for certain, but it sure as heck fits the facts as we know them and the depraved refusal of the American government to talk about or let the public know its basis for impunity in marking an American citizen for extrajudicial termination with prejudice.

Now, back to the Warsame indictment for one last thought. While I agree with Marcy, Ben Wizner of ACLU and Adam Serwer that the Obama Administration decision to bring Warsame in front of an Article III court for trial was a brave one in relation to establishing credibility of traditional terrorism prosecutions, I wonder if Warsame is really the right case to do that with?

In Warsame, all the overt acts, heck all the acts period, took place outside of the US, and none of them, none, were particularly directed at all, much less with malice, at the US or US citizens. al Shabaab is a nasty group of terrorists to be sure, but is this really the use we want to make of US Article III courts? Shouldn’t the prosecutions the Administration uses to establish credibility have some, even minimal, overt act nexus to the United States and the Southern District of New York?

The Charlie-Savage-Used-to-Be-Richard-Lugar’s-Intern SFRC Libya Hearing

Boy has Charlie Savage caused a headache for Barack Obama and Harold Koh.

The Senate Foreign Relations Committee had a hearing to grill Koh today, in part, because of Savage’s report that Obama overrode OLC, DOJ, and DOD lawyers in deciding that we are not engaged in “hostilities” with Libya and therefore he can blow off the requirements of the War Powers Resolution. Granted, the Obama Administration limited the headache by having just Koh, who sided with Obama in the dispute, and not those lawyers who were overridden, appear at the hearing. Committee Chair John Kerry admitted they had been invited, but declined to attend.

The issue of how Obama came to claim Libya did not involve “hostilities,” by itself, had Koh speaking in circles worthy of his former student, John Yoo.

But what really made things difficult was Savage’s 2007 report on what candidate Barack Obama believed about a President’s war powers. In response to Savage’s question about whether or not the President could unilaterally bomb Iran, the constitutional professor presidential candidate responded,

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Richard Lugar–who by partnering with Senator Obama on a key foreign relations law gave him some credibility in the area–started the hearing by citing both Savage’s article citing the wisdom of candidate Obama and the one depicting President Obama overriding key lawyers on this issue.

It was about that point of the hearing where Charlie Savage revealed, via Twitter, that 15 years ago he served as an intern in Lugar’s office.

When Jim Risch raised the same quote from candidate Obama (Savage said nothing about interning for Risch), the lawyer now sanctioning Obama’s curious definition of hostilities said that candidate Obama’s 2007 stance on presidential war powers was legally incorrect.

So we’ve learned today that 2007 Harold Koh didn’t agree with what 2007 Charlie Savage reported 2007 Barack Obama believed about the law. But in 2011, Savage’s report made clear, 2011 Koh is the key administration lawyer who agrees with 2011 Obama’s views on the law.

UN Special Rapporteur Condemns America’s Killer Drones

One of last Friday’s big stories somewhat lost in the hustle and focus on the BP Gulf oil disaster and the holiday weekend concerned the continuing outrage of the US drone targeted assassination program. Specifically, Charlie Savage’s report at the New York Times that the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, was expected to issue a report calling on the United States to stop Central Intelligence Agency drone strikes thus “complicating the Obama administration’s growing reliance on that tactic in Pakistan”.

Today, the report is out, and Charlie Savage again brings the details in the Times:

A senior United Nations official said on Wednesday that the growing use of armed drones by the United States to kill terrorism suspects is undermining global constraints on the use of military force. He warned that the American example will lead to a chaotic world as the new weapons technology inevitably spreads.

In a 29-page report to the United Nations Human Rights Council, the official, Philip Alston,the United Nations Special Rapporteur on extrajudicial executions, called on the United States to exercise greater restraint in its use of drones in places like Pakistan and Yemen, outside the war zones in Afghanistan and Iraq. The report — the most extensive effort by the United Nations to grapple with the legal implications of armed drones — also proposed a summit of “key military powers” to clarify legal limits on such killings.

In an interview, Mr. Alston, said the United States appears to think that it is “facing a unique threat from transnational terrorist networks” that justifies its effort to put forward legal justifications that would make the rules “as flexible as possible.”

Here is Alson’s official report.

Interestingly, Alston’s report comes hot on the heels of the news the biggest get yet for the Obama drone assassination program, Al-Qaida Number Three (or at least the latest Number Three) Mustafa Abu al-Yazid. But Alston, although indicating that al-Yazid migh could be distinguished because of the direct al-Qaida status, nevertheless expressed reservations even is such situations.

For example, it criticized the United States for targeting drug lords in Afghanistan suspected of giving money to the Taliban, a policy it said was contrary to the traditional understanding of the laws of war. Similarly, it said, terrorism financiers, propagandists and other non-fighters should face criminal prosecution, not summary killing. Read more

Obama Killed The Johnsen Nomination, Not Ben Nelson Nor The GOP

It strikes me as necessary to follow up a bit on the death of the Dawn Johnsen nomination to lead the Office of Legal Counsel at the Department of Justice. Specifically, it needs to be clear the conventional wisdom of the main media, and even a surprising number of normally more clear headed progressive bloggers, that the nomination failed because of opposition from Republican obstruction coupled with opposition by Ben Nelson, is completely and patently false.

The false meme was already in play with the first substantive reporting by Sam Stein at Huffington Post as I noted yesterday. It is being propagated by the Washington Post (Republicans and “moderate lawmakers”), the New York Times (conservatives and two Democrats), even progressive stalwarts like Glenn Greenwald and McJoan at DKos have discussed the effects of the Republicans and Ben Nelson on the torpedoed nomination (although, to be fair, neither ascribes full blame on the GOP and Nelson).

Perhaps the best example of purveying the false wisdom comes from Jake Tapper at ABC. Tapper, in an article supposedly about the Obama White House not having the stomach for a fight on Johnsen, nevertheless proceeds to regurgitate the usual suspects:

Senate Republicans opposed her nomination overwhelmingly, meaning Senate Majority Leader Harry Reid, D-Nev., needed 60 votes to bring her nomination to the floor of the Senate for a vote.

The White House put all the blame on the Republican minority — White House spokesman Ben LaBolt said, “Senate Republicans will not allow her to be confirmed” — but it was a bit more complicated than that.

A Senate Democratic leadership source said that throughout 2009 two Democrats said they would vote against her — Sen. Ben Nelson, D-Neb., and Sen. Arlen Specter, D-Pa. The only Republican of the 40-member GOP caucus who said he would vote for her was her fellow Hoosier, Sen. Dick Lugar, R-Ind.
…..
Specter remained opposed to Johnsen’s nomination even after he switched parties in April 2009, but his primary opponent Rep. Joe Sestak, D-Pa., began to attack Specter for his opposition to her nomination.

Johnsen’s nomination expired at the end of 2009, but in January 2010 Specter said he’d vote for her.

This is a bunch of bunk. I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles; for now though, I want to revisit the false light being painted on Ben Nelson and Arlen Specter on the nomination’s failure. Read more