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Bill Clinton Did Not Win an Election By Getting a Blowjob: The Danger of Lindsey Graham’s Willful Ignorance about Russian Interference

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In his statement in Brett Kavanaugh’s confirmation hearing yesterday, Lindsey Graham embodied the problem with Republicans’ deliberate ignorance about Russian interference in the 2016 election.

As part of his statement, he raised the time Joe Biden pointed out what a hypocrite Brett Kavanaugh was for believing presidents should not be investigated during their term but nevertheless thought it necessary to ask Bill Clinton the following questions:

If Monica Lewinsky says that you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?

[snip]

If Monica Lewinsky says that she gave you oral sex in the Oval Office area, would she be lying?

If Monica Lewinsky says that you ejaculated in her mouth on two occasions in the Oval Office, would she be lying?

Lindsey did so to suggest Biden’s comments about the Clinton investigation refute the claim that Trump picked Kavanaugh to protect himself from investigation, as if the investigation of Clinton for a blowjob was as legitimate as Mueller’s investigation into whether Trump cheated to win the election.

To justify such an absurd claim, Lindsey suggests that the Mueller investigation is only about whether Trump acted improperly when he fired Comey.

When it comes to the pillar of political virtue, Comey. Harry Reid: “That he’s been a supporter of Comey, and led the fight to get him confirmed, as he believed Comey was a principled public servant. With the deepest regret, I now see that I was wrong.” Mr. Nadler, from NY. “The President can fire him for cause and ought to. He violated the guidelines and put his thumb on the scale of an election.” Mr. Cohen, from Tennessee, a Democrat. “Call on Comey to resign his position, effective immediately, I’m sureupon reflection of this action he will submit his letter of resignation for the nation’s good.” To my Democratic friends,  you were all for getting rid of this guy. Now all of a sudden the country is turning upside down cause Trump did it.

The same guy who recently endorsed the idea of Trump firing Jeff Sessions once Kavanaugh gets confirmed then claimed he would do everything to protect the Mueller investigation. He says that even while suggesting he agrees with Kavanaugh that the president shouldn’t be investigated.

There’s a process to find out what happened in the 2016 election. It’s called Mr. Mueller. And I will do everything I can to make sure he finishes his job without political interference. And I’m here to tell anybody in the country that listens, that this is so hypocritical of my friends on the other side. When it was their President, Kavanaugh was right. When you’re talking about Roe v. Wade, it’s okay to promise the nation it will never be overturned. It’s okay to pick a Democratic staff member of this committee, but it’s not okay to pick somebody who’s been a lifelong Republican.

Which brings us to the stunning bit. Having just misrepresented the scope of the Mueller investigation — completely ignoring that the primary investigation is about whether Trump conspired with a hostile foreign power to win the election — Lindsey then suggests that Democrats should have no influence over judges because they lost the election the legitimacy of which Mueller continues to investigate (and about which Mueller has already provided evidence that the scope of Russia’s help for Trump went further than initially known).

People see through this. You had a chance, and you lost. If you want to pick judges from your way of thinking, then you better win an election.

After discussing his support for Sonia Sotomayor and Elena Kagan, Lindsey then suggests that stripping the last limits on presidential power is just a game (even while admitting he likes Trump best of all for getting two SCOTUS picks).

I hope people in the country understand this game. It’s a game that I’m sad to be part of. It’s gotten really bad. The antidote to our problems in this country when it comes to judges and politics is not to deny you a place on the Supreme Court. This is exactly where you need to be, this is exactly the time you need to be there, and I’m telling President Trump, “You do some things that drive me crazy, you do some great things. You have never done anything better, in my view, than to pick Gorsuch and Kavanaugh.  Cause you had an opportunity to put well-qualified conservatives on the court — men steeped in the rule of law — who will apply analysis not politics to their decision-making, and you knocked it out of the park, and I say to my friends on the other side: you can’t lose the election and pick judges.

Lindsey ends, again, by taunting Democrats that they can’t have any input on Supreme Court justices if they lose an election.

An election the investigation of which Lindsey claims to, but is not, protecting. An election the investigation of which may be stymied by the confirmation of Brett Kavanaugh.

Of course, this is only possible because of the way four different efforts in Congress — including Lindsey’s own — have served to obscure the matters under investigation. You’ve got Lindsey’s investigation and Bob Goodlatte’s — both more worried about a single FISA order that even a conservative Republican has told me was based on overwhelming evidence — than whether the guy making lifetime appointments cheated to get that authority. You’ve got Devin Nunes’ investigation, better described as an information gathering effort to help Trump get away with any cheating he engaged in than an investigation of whether he did cheat. Finally, there is Richard Burr’s investigation which, while on its face is more credible, nevertheless is not pursuing leads that support a case that Trump conspired with Russia to win the election.

Lindsey Graham is concerned about lies Christopher Steele may have told under oath in the UK, but not lies Don Jr clearly told his own committee. His big rush to stack SCOTUS suggests the reason for that has everything to do with a need to sustain a fiction that those SCOTUS choices are the result of a legitimate election win rather than willfully conspiring with a foreign adversary to get those choices.

Will Verizon Challenge the Government’s Fishy Dragnet?

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Tim Edgar has a fascinating post on how the SCOTUS decision in Yates v US — in which a guy busted for throwing away undersized fish was let off because those fish do not constitute a tangible object under the law — might have repercussions for the phone dragnet.

The Supreme Court let Yates off the hook.  Five justices agreed that a fish is not a tangible object.  At first blush, this seems a bit implausible.  Justice Kagan certainly thought so.  Her eloquent dissent cites Dr. Seuss’s One Fish Two Fish Red Fish Blue Fish – for a time, my favorite book – as authority that fish are, indeed, tangible objects.  I expect it is the first use of any book by Dr. Seuss as legal authority in an opinion of the Supreme Court, and I must say that I found it squarely on point, if not ultimately persuasive.

Justice Ginsburg’s opinion for the plurality explains that fish are not tangible objects because “in law as in life . . . the same words, placed in different contexts, sometimes mean different things.”

[snip]

Surprisingly, Yates has real implications for national security surveillance.   The NSA’s bulk collection of telephone records is based on section 215 of the Patriot Act, which amended the business records provision of the Foreign Intelligence Surveillance Act (FISA).  That provision is titled “Access to certain business records for foreign intelligence and international terrorism investigations.”  It allows the government to obtain an order from the FISA court “requiring the production of any tangible things(including books, records, papers, documents, and other items)” in national security investigations.

Does this literally mean “any tangible things,” or is this just a catch-all ensuring that  all types of business records are covered?  While the provision is very broad even if limited to business records or data, until Yates it might have meant literally anything at all.  For example, it might be tempting for the government to use it to obtain, in national security investigations, the kind of physical items that would otherwise have required a physical search order.  As a FISA business records order requires only relevance, and not probable cause, that would be a dangerous loophole.  Yates closes it.

Perhaps more to the point, Yates also weakens the government’s bulk collection theory for telephone records.  While Yates is interpreting a different statute, the logic is clear: the words “any tangible things” should not be read literally.  Instead, they must be read in context, taking account of the words immediately surrounding it, the title of the section, the structure of the law, and its purpose.  Read in this way, it is clear that “tangible things” should not be read to encompass things far afield from the sorts of business records that Congress expected would be sought in national security investigations.

[snip]

Bulk collection is qualitatively, not just quantitatively, different from the sorts of requests for records, documents, or other “tangible things” ordinarily made by government both in law enforcement and intelligence investigations. 

Steve Vladeck made a similar observation on Twitter earlier today, so Edgar is not the only one raising this question.

As it happens, today is dragnet renewal day. Which not only means that some FISC judge will reapprove the dragnet, but that providers will get new Secondary Orders. And — as happened in January 2014, when Verizon challenged an order based on Richard Leon’s decision in Klayman v. Obama — that presents the providers with an opportunity to challenge the order based on new legal developments.

And it’s not just Verizon that has a new opportunity to challenge the government’s fishy dragnets.

I’ve long suspected that the government has, in limited fashion, used Section 215 to obtain DNA material (they have databases of DNA from Gitmo detainees, for example, and I can imagine that they’d love to obtain DNA samples where they exist).

More interestingly, we’ve been talking about the government’s use of Section 215 to obtain Internet data, probably in hacking investigations. If, as a number of people suspect, they’re using it to get data flow records, that may be deemed even further away from common definitions of “tangible things.” And the Internet companies are riled up.

So let’s have it, providers! Some challenges to the fishy dragnet!

Update: In the post announcing the reauthorization (yesterday, actually) of the dragnet, I Con the Record noted that this one expires on June 1. I suppose that’s designed to add pressure on the reauthorization fight.  I think that works out to be a 95 day dragnet.

Elena Kagan Votes With Alito and Thomas To Undermine Miranda

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When Elena Kagan was nominated, there were very few of us voicing strenuous objection, one of the primary reasons I did was her complete lack of experience in the adversarial system, especially with her total lack of knowledge and interest in criminal process issues, which would be critical in the face of the Obama DOJ’s determination to further gut Miranda.

The feared Kagan chickens have come home to roost. The Supreme Court just announced its decision in Howes v. Fields, and the decision is a significant further erosion of the critical Constitutional protections embodied in Miranda. The ruling specifically holds that police are not automatically required to tell prisoners of their legal right to remain silent and have an attorney present when being questioned in prison about another crime.

Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Stephen Breyer dissented. Noting that Fields was only incarcerated for disorderly conduct in the first place, Ginsburg stated:

For the reasons stated, I would hold that the “incommunicado interrogation [of Fields] in a police-dominated atmosphere,” id., at 445, without informing him of his rights, dishonored the Fifth Amendment privilege Miranda was designed to safeguard.

Notice who did NOT side with her fellow “liberal bloc” Justices to honor and protect Miranda? Elena Kagan. No, Kagan instead sided completely with Clarence Thomas, Samuel Alito and the rest of the conservative bloc.

No democratic appointee to Supreme Court should ever vote to further erode Miranda, and this case did exactly that in a fundamental way. But Barack Obama gave us the authoritarian Elena Kagan who, predictably, did just that. As a prediction: you will be seeing a lot more of Elena Kagan voting with Alito, Scalia and Thomas on crucial law and order/criminal process, not to mention evidentiary, issues. Get used to it.

Oh, and as a reminder, Obama may soon enough have the opportunity to further shove the ideological spectrum of the Supreme Court substantially to the right, just as he did when he replaced John Paul Stevens with Kagan. If Obama replaces the liberal stalwart Ruth Bader Ginsburg with another mushy authoritarian and/or corporatist centrist, like he did in replacing Stevens, liberals will regret it for decades.

Judicial policy matters.

[updated slightly to reflect authoritarian as a descriptor for Kagan, which, as EW points out, is more germane to this discussion on Howes]

The Material Support of Hillary Clinton and Tarek Mehanna

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18 USC 2339(A) and 18 USC 2339(B) proscribe the material support of terrorism and designated foreign terrorist organizations. In short, it is the “material support” law:

the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials;

During oral argument on the now seminal defining case as to the astounding reach of this statute, Holder v. HLP, now Supreme Court Justice Elena Kagan argued, as Solicitor General, that even humanitarian lawyers could be charged and convicted under the wide ranging provisions:

JUSTICE KENNEDY: Do you stick with the argument made below that it’s unlawful to file an amicus brief?

GENERAL KAGAN: Justice Kennedy —

JUSTICE KENNEDY: I think I’m right in saying it that that was the argument below.

GENERAL KAGAN: Yes, I think that would be a service. In other words, not an amicus brief just to make sure that we understand each other. The Petitioners can file amicus briefs in a case that might involve the PKK or the LTTE for themselves, but to the extent that a lawyer drafts an amicus brief for the PKK or for the LTTE, that that’s the amicus party, then that indeed would be prohibited.

Kagan argued for an interpretation so broad that even the filing of an amicus brief would be violative of the material support prohibitions and the Supreme Court so held.

So, surely, the DOJ is going to heed the words and intent of the right honorable Justice Kagan over this report then, right?

The Iraqi government has promised to shutter Camp Ashraf — the home of the Iranian dissident group Mujahedeen e-Khalq (MEK) — by Dec. 31. Now, the United Nations and the State Department are scrambling to move the MEK to another location inside Iraq, which just may be a former U.S. military base.

The saga puts the United Nations and President Barack Obama’s administration in the middle of a struggle between the Iraqi government, a new and fragile ally, and the MEK, a persecuted group that is also on the State Department’s list of foreign terrorist organizations.

The Marxist-Islamist group, which was formed in 1965, was used by Saddam Hussein to attack the Iranian government during the Iran-Iraq war of the 1980s, and has been implicated in the deaths of U.S. military personnel and civilians. The new Iraqi government has been trying to evict them from Camp Ashraf since the United States toppled Saddam in 2003. The U.S. military guarded the outside of the camp until handing over external security to the Iraqis in 2009. The Iraqi Army has since tried twice to enter Camp Ashraf, resulting in bloody clashes with the MEK both times. (emphasis added)

Well, no, there will be no prosecution for aiding and abetting these terrorists. Now, in all Read more →

Obama’s Would-Be “Rule of Law” Counselor Calls Bradley Manning’s Treatment Unconstitutional

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In Charlie Savage’s story from last year on the sidelining of Laurence Tribe as head of an “Access to Justice” program at DOJ, he reported that Tribe originally believed he would serve as counselor for “rule of law” issues in Obama’s Administration.

There was also concern over how his presence might play out internally, several administration officials said. Some officials feared that he might be unmanageable, intruding into all manner of policy areas and able to call on Mr. Obama as a trump card.

“He has an ego,” said Charles Fried, a former solicitor general in the Reagan administration and a fellow Harvard law professor. “He’s entitled to it. He’s earned it.”

Several friends and administration officials said Mr. Tribe had initially sought and believed he would be given a far broader title and assignment: counselor for “rule of law” issues, which would have come with a mandate to help shape matters of national security and foreign policy. That did not happen, but Mr. Tribe came to Washington anyway.

After less than a year in that position, Tribe left last December, citing medical issues.

Now, the guy Obama sidelined to make sure he didn’t impose too much rule of law on his Administration has strongly criticized Bradley Manning’s treatment, not only signing a letter condemning Manning’s treatment, but elaborating on why that treatment was unconstitutional.

[Tribe] told the Guardian he signed the letter because Manning appeared to have been treated in a way that “is not only shameful but unconstitutional” as he awaits court martial in Quantico marine base in Virginia.

The US soldier has been held in the military brig since last July, charged with multiple counts relating to the leaking of thousands of embassy cables and other secret documents to the WikiLeaks website.

Under the terms of his detention, he is kept in solitary confinement for 23 hours a day, checked every five minutes under a so-called “prevention of injury order” and stripped naked at night apart from a smock.

Tribe said the treatment was objectionable “in the way it violates his person and his liberty without due process of law and in the way it administers cruel and unusual punishment of a sort that cannot be constitutionally inflicted even upon someone convicted of terrible offences, not to mention someone merely accused of such offences”.

A pity. Back when Tribe was celebrating candidate Obama, he called him the best student he ever taught at Harvard Law and promised he would defend civil liberties and would not appoint justices who put executive power above rule of law.

Tribe said Americans’ civil liberties are hanging by a thread. “But it’s better to have a thread than to have the thread cut,” he said. “A Republican president would be in a position to cut that thread.”

[snip]

Tribe said that if Obama were to be elected, he would appoint justices “who share his view that the Constitution is a living document that has to be interpreted in light of evolving values of decency.”

“They would not be justices who fool themselves into thinking they know what the Constitution’s original meaning was, and they can apply it as if nothing has happened in the last 200 years,” Tribe said. “They would be justices who have a serious record of support for human rights and constitutional values, rather than justices who simply have shown their loyalty to executive power.”

[snip]

On a more personal note, Tribe called Obama the “best student I ever had” and the “most exciting research assistant.”

As to Justices Obama would appoint, Tribe has proven himself badly wrong about who would and would not make a good Justice.

But it appears that his belief that Obama would support the rule of law was a far greater misjudgment.

Should Elena Kagan Really Be Getting Shooting Lessons from the Koch-Addled Hunting Buddy of the Guy Who Shoots People in the Face?

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I admit I’m no big fan of Elena Kagan. But tell me whether I’m justified in worrying about this?

Data point 1: On at least one occasion, Antonin Scalia participated in the Koch brothers’ secret sessions plotting to advance the Koch agenda.

Data point 2: Antonin Scalia is hunting buddies with Dick Cheney.

Data point 3: Dick Cheney has been known to “accidentally” shoot his hunting partners in the face.

Data point 4: Scalia and Kagan are spending lunches shooting skeet together.

I always thought one of Kagan’s strongest qualities was her instinct for self-preservation. But going shooting with Cheney’s hunting buddy sure seems to violate every principle of self-preservation.

This Raid on Peace Activists Brought to You By Elena Kagan

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This article not only describes the hundreds of people who protested FBI raids of peace activists last week, but it provides more detail on what the FBI was looking for.

Agents were seeking “evidence relating to activities concerning the material support of terrorism,” the FBI said. Chicago FBI spokesman Ross Rice declined on Monday to discuss what agents were looking for, citing an “ongoing criminal investigation.” There have been no arrests.

Search warrants and subpoenas indicate authorities are looking for connections between the activists and groups including the Revolutionary Armed Forces of Colombia (FARC), the Popular Front for the Liberation of Palestine (PFLP) and Hezbollah. The U.S. government considers those groups to be terrorist organizations.

[snip]

Sundin said Monday she met FARC rebels when she visited Colombia in 2000, but noted that the Colombian government was holding peace talks at the time with the rebels, who held public forums where she met them. She said she has had no contacts with FARC since.

Kelly and Sundin acknowledged they’re active in the Freedom Road Socialist Organization, a group named in several warrants that openly supports FARC and PFLP and shares their Marxist ideologies. Two groups use the name after a 1999 split. They said their Freedom Road is a small group, but that they weren’t sure how many supporters it has. Kelly edits its newspaper.

These descriptions suggest that the FBI is raiding a bunch of peace activists it tracked during the RNC Convention to establish attenuated ties between them and at least three groups on the Foreign Terrorist Organization list.

What’s particularly interesting is the description of the work these activists were doing in Palestine and Colombia.

“We meet with human rights activists in other countries to get understanding of situations they face,” said Yorek.

Sundin said committee members use the trips to gather information that the group then uses in presentations to the public back in the United States.

“All trips always been very public,” Sundin said.

Aby said that in Palestine, committee members met with the Palestinian Women’s Commission and another group that advocates for Palestinian prisoners in Israeli jails. In Colombia, she said members met with representatives of Colombian unions.

“In Colombia, you’re considered to be a FARC supporter if you’re a member of a union,” Aby said. Critics of current Colombian President Juan Manuel Santos or former president Alvaro Uribe were also considered supporters of the FARC by Colombian authorities.

That is, after meeting with groups that the authorities in the country have an incentive to claim are terrorist groups, they come back to the US and publicize the conditions in the country.

Law Professor Peter Erlinder has said repeatedly precisely what I’ve been thinking about these raids since they happened: SCOTUS’ decision in Holder v. Humanitarian Law Project probably made such activities (which appear to have all happened before the decision in the case) illegal.

Congress has prohibited the provision of “material support or resources” to certain foreign organizations that engage in terrorist activity. 18 U. S. C. §2339B(a)(1). That prohibition is based on a finding that the specified organizations “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §301(a)(7), 110 Stat. 1247, note following 18 U. S. C. §2339B (Findings and Purpose). The plaintiffs in this litigation seek to provide support to two such organizations. Plaintiffs claim that they seek to facilitate only the lawful, nonviolent purposes of those groups, and that applying the material-support law to prevent them from doing so violates the Constitution. In particular, they claim that the statute is too vague, in violation of the Fifth Amendment, and that it infringes their rights to freedom of speech and association, in violation of the First Amendment. We conclude that the material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute inthe future.

Obviously, the six justices (the conservatives plus Stevens) who made peace activism material support for terrorism deserve the bulk of the blame for this decision. But this was also the argument where then Solicitor General Elena Kagan advocated for the broadest interpretation of the statute.

JUSTICE KENNEDY: Do you stick with the argument made below that it’s unlawful to file an amicus brief?

GENERAL KAGAN: Justice Kennedy —

JUSTICE KENNEDY: I think I’m right in saying it that that was the argument below.

GENERAL KAGAN: Yes, I think that would be a service. In other words, not an amicus brief just to make sure that we understand each other. The Petitioners can file amicus briefs in a case that might involve the PKK or the LTTE for themselves, but to the extent that a lawyer drafts an amicus brief for the PKK or for the LTTE, that that’s the amicus party, then that indeed would be prohibited.

And lo and behold, just three months after this decision, the FBI is investigating a bunch of peace activists for their efforts to foster peace in areas contested by these terrorist organizations.

Now, I have no idea what Kagan thinks about this raid (though she used Hezbollah as her example in the argument, not the Tamil Tiger groups actually named in the suit, and Hezbollah is one of the organizations named in the warrants). But even during the argument, she sustained a fiction that the Court’s interpretation of material support to include peace efforts would be an unlikely use of prosecutorial discretion.

GENERAL KAGAN: First, because with respect to overbreadth, all of those uncertain or even unconstitutional applications will be but a thimbleful, compared to the ocean full of completely legitimate applications of this statute.

[snip]

GENERAL KAGAN: Of course, that’s a different thing as to how prosecutorial judgment is used to decide which are the high-priority cases and which are the low-priority cases.

Or maybe she just badly misinterpreted what FBI’s priorities really were.

Lindsey Graham Predicts Successful Terrorist Attack Followed by Harsh Resolution of Gitmo

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Josh Gerstein provides Lindsey Graham a soap box to complain that his efforts to craft a grand compromise with the Administration on Gitmo stalled in May.

“I thought we were close to getting a deal,” Graham told POLITICO last week. “I had some meetings where I walked out of the White House and said, ‘This is great.’ These were better meetings than I ever had with the Bush administration.”

But sometime around May, according to Graham, the line of communication with the White House shut down.

“It went completely dead,” Graham said. “Like it got hit by a Predator drone.”

The article as a whole suggests that Administration was fairly close to a deal, though even that deal was threatened by Graham’s inability to bring a number of Republicans along on the compromise as a whole, rather than a series of solutions. Efforts to craft a deal intensified following the Faisal Shahzad attempted Times Square bombing. Gerstein suggests that Eric Holder’s big appearance on the Sunday shows on May 9–to entertain thoughts of a Miranda compromise–was a sign of how close the Administration and Graham were to a deal.

“We had a great discussion on Miranda warning reform,” Graham recalled about an evening session with Bauer and Sen. Dick Durbin (D-Ill.). “I spent three hours down at the White House — it was probably the best meeting I’ve ever been in — where we game-planned this. … I left the meeting thinking we’re going to get a statute.”

Indeed, on May 9, Attorney General Eric Holder publicly embraced the idea on NBC’s “Meet the Press.” Calling Miranda-related legislation a “new priority,” he declared: “This is a proposal that we’re going to be making.”

And then the efforts to craft a compromise died (and, as a result, Miranda remains intact). Gerstein suggests Graham’s flip-flopping on other key legislation made it clear that Graham was not an honest broker.

Graham also may have lost credibility with the administration after he lashed out at the White House in disputes over the health care bill, climate legislation and immigration reform.

The timing certainly makes sense. During the last week of April, Graham threatened to kill the climate change bill he was crafting with the Administration as a way of keeping immigration reform from coming to a vote. By early June, he was promising to vote against any energy or climate bill. So the collapse of the grand “bargain” on Gitmo may have as much to do with Graham’s apparently successful effort to prevent Democrats from focusing on the legislative goals of a key constituency. And that may be why the electoral calendar is cited for killing the compromise as much as anything else: Graham’s yoking of immigration and climate change to Gitmo.

But I also wonder whether the Administration got a sense of just how bad Graham’s “compromise” really was. Negotiations on the grand compromise seem to have been at their height just as DOD was kicking four reporters out of Gitmo for making clear what was already in the public domain: that the interrogator who threatened a child with rape and possibly death in US prisons is the same guy who was convicted in relation to the death of another detainee. Since then (in July), Omar Khadr fired the lawyers who were crafting a plea deal, thus closing off one of the most palatable ways for the Administration to avoid making Khadr the poster child for America’s continued abuse of power at Gitmo.

I also suspect the nomination of Elena Kagan on May 10 may have played a part in the timing, not least because no Republicans would be willing to make a deal against the background of a SCOTUS nomination.

As it is, Graham seems to be using Gerstein’s article to issue two threats: first, that he will push for his own legislation in the next Congress, presumably with the votes of a few teabaggers to help him. And, his implicit threat that there will be another terrorist attack after which any decisions on Gitmo will be far worse than the policies being discussed now.

“There’s going to be an attack. That’s going to be the impetus. That’s going to be what it takes to get Congress and the administration talking; we have to get hit again,” the senator said, suggesting that passing a bill before that happens might be more reasonable than what would come afterward.

“If there is a successful attack, there is going to be a real violent reaction in the Congress, where we will react more emotionally than thoughtfully,” Graham said.

Let it be remembered–for the day when we’ve completely capitulated to those who want to use the threat of terrorism to establish a police state–that Lindsey Graham planned for it to happen.

With Kagan On SCOTUS, We Are Still Down A Justice

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With the long anticipated retirement of Justice John Paul Stevens, it was important for President Obama to appoint and get confirmed a new justice so there would not only be a full compliment of justices on the court, but to insure the ideological balance of the court was maintained. By selecting Elena Kagan, Obama certainly did not pick the most qualified person for the job, nor did he maintain the ideological balance particularly as Kagan undoubtedly moved the court to the right at least to some degree.

Now, it turns out, by appointing Kagan Obama did not even give the Court a full compliment of justices. From the Blog of Legal Times:

Supreme Court Justice Elena Kagan this week quietly recused herself in 10 cases that will be argued in the term beginning Oct. 4, bringing to 21 the number of cases in which she will not participate.

That represents more than half of the 40 cases the Court has already agreed to hear in the new term — a number that will grow in coming months as the justices agree to hear arguments in more new cases.

During her confirmation this summer, Kagan already indicated she would recuse in 11 cases in which she was counsel of record as solicitor general. The new batch appears to reflect a determination that her participation at earlier stages — even where her office did not file a brief — required her to step aside.

So, as it stands today, Kagan will not be participating in over half the cases on the Supreme Court docket for the coming term. Lovely. A full list of the cases Justice Kagan has recused on to date can be found at the BLT link.

What is more distressing, however, are the cases to come that Kagan will also undoubtedly be recusing on. For instance the al-Haramain, Jeppesen and Jewel cases from the 9th Circuit. There are a whole plethora of Executive/Unitary power, Habeas, Gitmo, Detainee and other critical war on terror cases Kagan either did have, or may have had, her fingers on as head of the Solicitor General’s office. At this point, it looks like she plans on recusing herself from anything and everything that was in her vicinity, no matter how nominally. As should be well known by now, there is no necessity for a justice to recuse from everything they have ever known about, no less an authority than Antonin Scalia proved that.

Now, quite frankly, I have no problem with Elena Kagan recusing from consideration of Vaughn Walker’s decision in al-Haramain, I think the case would be better off without her toadying for the Obama Administration’s view of supreme Executive power and covering of crimes through assertion of state secrets, but what about the Prop 8 Perry v. Schwarzenegger case? In case you have forgotten, a portion of that case (the cameras in the court issue) went to the Supreme Court; if Elena Kagan decides she has to recuse herself, or is looking for an excuse to avoid such a controversial matter, that is going to be a HUGE blow to the chances of success on appeal.

I wonder how many people really understood they would be getting a part time justice for such a critical period over the next couple of years? And for all those on the liberal end of the political spectrum that carped about the fundamental dishonesty of John Roberts when he swore he was just a “balls and strikes” kind of guy “respectful of precedent”, I wonder what they think of the same type of deception from Kagan when she ridiculously understated the depth of her anticipated recusal problem to the Judiciary Committee?

There were a lot of things needed from President Obama’s choice to fill the seat of Justice John Paul Stevens; none of them have been fulfilled so far by Elena Kagan.

Why Isn’t Obama Clearing Brush on PDB Day?

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Nine years ago today, George W Bush was informed that “Al Qaeda [was] determined to strike in US.”

And then he went out to clear more brush at his pig farm in Crawford.

Obama is showing no such presidential manliness in the second year of his term. Yesterday, his Justice Department actually indicted 14 of those who were materially supporting al-Shabaab, which is determined to strike at the US.

And today, in addition to getting his own PDB and Economic Daily Brief and meeting with Secretary of State Hillary Clinton, Obama will celebrate the confirmation of just the fourth woman to serve on the Supreme Court (may Elena Kagan be as much of a pleasant surprise on the Court as Sonia Sotomayor has), and will talk about the economy at a small business (though it’d be nice if he did more than talk…).

I may not love everything President Obama is doing on PDB day and every day. But at least he’s doing something more than clearing brush on a pig farm.